observations on the letter written to sir thomas osborn, upon the reading of a book called the present interest of england stated written in a letter to a friend. bethel, slingsby, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing l estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) observations on the letter written to sir thomas osborn, upon the reading of a book called the present interest of england stated written in a letter to a friend. bethel, slingsby, - . leeds, thomas osborne, duke of, - . lisola, françois paul, baron de, - . holles, denzil holles, baron, - . [ ], p. printed for j.b., london : . reproduction of original in huntington library. "april th. anno ..." [p. - ] is an opinion by denzel holles concerning the case of sir francis toppe. cf. huntington library. attributed to slingsby bethel. cf. bm. attributed by wing to françois paul de lisola. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng buckingham, george villiers, -- duke of, - . -- letter to sir thomas osborn. - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - andrew kuster sampled and proofread - andrew kuster text and markup reviewed and edited - pfs batch review (qc) and xml conversion observations on the letter written to sir thomas osborn , upon the reading of a book called the present interest of england stated . written in a letter to a friend . london , printed for i. b. anno domini , . observations , &c. sir , so soon as some indispencible occasions would permit ▪ i did at your instance , strictly peruse the pamphlet , called the present interest of england stated ; as also , the letter directed to sir thomas osborne in answer to it , and at your request , shall now give you my sense of both . i find no cause by the scope of the letter , to believe otherwise of the author , then according to his own professions , that he really designs the honour , greatness , and prosperity of this natoin . an honest , and honourable undertaking , the perfect discovery whereof , i wish may be pursued , by men of leasure , and put in practice by those of power . i understand the letter , to agree fully with the pamphlet in all its maxims , relating to our domestick interest , not differing neither from our forrein in anything , save what relates to holland , and therein likewise , not in all , but only in some particulars , but in several of them ; i observe also the author of the pamphlet , to be by the letter exceedingly mistaken ; for whereas it renders him so byassed with affection to the dutch , as makes him overlook the usefulness of forreign alliances . i cannot 〈◊〉 , but 〈◊〉 grounds all he writes concerning holland , upon the safety and benefit of england , insomuch as it seems strange to me ▪ how a person of that candor and ingenuity as the 〈◊〉 of the letter must be , sh●●● so for 〈…〉 the world that the pamphlet he answereth , pleadeth first , for allowing all the injuries and wrongs done by the hollanders to this nation , ( page . ) secondly , for the studying of their interests , and loving of them , because they 〈◊〉 trades , though by being so , they take our trade from us , ( page , . ) and thirdly , that their parsimonie is no good reason for dislike of them , ( page . ) as if all these were arguments made use of by express words in that book , when i do not find any expressions relating to any of these particulars , that do either in words say so much , or will in the least admit of any such inferences or conclusions ; ( although as to this third , if there were any word to that purpose , it might be defended ) for all the arguments made use of by the pamphlet , against the destroying of the hollanders , are either upon the account of justice and righteousness , ( which establisheth a nation ) or clearly in reference to the safety and utility of this kingdom , both in church and state , and not in the least , upon any particular affection to the people of that countrey , as the letter doth insinuate the pamphlet ; being no otherwise concerned for them , then as it is , for preserving the ballance of christendome , in opposition of popery and slavery . i find the pamphlets commendning the dutch for their morals , ( compared with the french , &c. ) to be answered by objecting , that if the author had lain but one night in any inn of theirs , he would have been convinced of the contrary , which implyeth , that he had never done it , or at least never told the world he had , and yet the book justifies his opinion of them in affirming his experience , from having travelled their countries ; ( interest of england page . ) and truly by his general knowledge of the netherlands , he may well be supposed to have throughly done it , and granting so much , it consequently follows , that he must then have experienced their inns , but if from cousening , and cheating ▪ in inns , alehouses , and taverns , the measures of a peoples morals , must be calculated , i fear , some other countries , by high reckonings , false measures , in bottles , pots and cans ; exceeding them , and tacitly allowed of , &c. will be found as faulty as they , and to lie ( at least ) equally with them , under the burden of that uncharitable syne●do●he , of blaming the whole for a part ; for i can my self by experience , so far joyn with the pamphlet in justifying of it , as to aver , that i never trevelled in all my life , in any countrey so cheap as in theirs , and that no private person doth otherwise , but either voluntarily , by being profuse , or carelesly in spending more then he needeth , in not keeping to his ordinaries , but living at large ; for their rates by land or water , are so certain , that none can pay one more then another , and the like is in their inns , for ordinaries and lodgings ; insomuch that i have often wondered their great trade and populousness ( which in all other places makes things dear ) considered , i found living there so cheap as i did . but as no number or society of men , can be said to be perfectly good , or altogether evil ; so the most just and certain rule for applauding , or condemning any countrey , is not from a few instances of a small part of it , but by way of comparison with other countries , and by that standard , holland cannot be found by much , so bad as popish countries , where the doctrines of the jesuits ( which hath more or less an influence upon most of their religion ) of good intentions , probability , and necessity , &c. and of their whole church , of keeping no faith with heriticks , &c. is inconsistant with honest conversation , rendering them unfit , even for one anothers society , there being no fence against such principles . the cruelty at amboina , is ( i confess ] to be had by all in abhorrence ; but since it was before we were born , that it was acted but by a few , and disowned , and not justified at home . that king james of happy memory , and his wise and excellent council , and favourites , thought therefore not fit to revenge it ; and that it hath since , by several treaties , been buried , and put in oblivion ; i question whether we ought still to remember it ; but provided , that the constant trade that the popish nations have ( in all ages down to our times ) driven in massakres , and cruel torterings , and that with the applause , and approbation of their chief bishop and church , as italy , savoy , france and ireland do witness , may be remembered ; i can be well pleased , that that single act at amboina , committed by a few protestants condemned by the rest , and which is abhorred by the principles of their religion , may not be forgotten ; and thereupon the whole designs of the pamphlet and letter , each severally considered , i cannot observe , that they differ in any material circumstance , but that both aim at the same end , the honour , greatness , prosperity and safety of this nation , unless the first is too straight laced in the rules of honesty and justice ; believing ( that though interest rightly understood or mistaken , governs all the world yet ) that that precept of doing to others , as we would have them to do to us , gives no latitude to any countrey to destroy another , to the end to increase their own trade , or greatness ; for were it otherwise , nothing could be more for our security against invasions , and the profit of england , then to destroy in time the french in their shipping , and thereby in their maritine commerce , before they are overgrown in strength and trade , in both , which from young interlopers , they are in a short time too much increased , especially in our newfoundland fishery , where they have almost eaten us out , to the unspeakable prejudice of the western parts ! though that trade was once our greatest nursery for seamen , and might have been much more improved , and is of such a nature , as the dutch were not capable of doing us much prejudice in , or at least as they never attempted to do us any . the letter reproves the pamphlets inviting all princes into the triple league , scoffing at it , as absurd ; the league being now determined , and to evince the error , gives this account of the league : that the french king being entered flanders , with a very powerful army , the kings of england , sweden , and the states of holland , entered into a confederacy , with design to force the french to make peace upon such tearms as should be proposed by them , ( and therein wisely to prevent the growing greatness of france ) and at the same time the confederates made articles amongst themselves , to help one another , in case any of them should be invaded for having made this league ) either by the french king , the king of spain , or any of their allies , and upon the acceptance of the articles proposed , the confederates became their guarranty or sureties ; for performance of them on both sides . and now , this being the state of the case , where the absurdity or bull lies , in making no distinction between the triple league , and the guarranty of the peace , is beyond my apprehension ; for the league , as is confessed being made to induce ( that is to force ) the french king to a peace , ( the king of spain , who was invaded , standing in no need of compulsion ) and the confederacy continuing for wartanting of the said agreement ( which in effect is no less then an honest and prudent league , for keeping the french , within tollerable bounds and limits ) and for the assistance of each other against any that should endeavour to revenge this consederacy ; the triple league seems to me ( as it is confessed by the letter it self , at the lower end of page . ) to be still in being , and the expression to be as properly used , as that of guarranty , as being one and the same thing ; for the guarranty , aiming at the same end the league doth , and being one article of the confederacy , the triple league must be still in being , as well as the guarranty , and surely , it was the last session of parliament . thought so to be , when money was desired for maintaining of it ; but this , sir , is not worth contending about ; for the matter being clearly laid down by the letter , the judgment of it is left to your self . as i am no statist , nor pretender to it , so it concerns not me to inquire further into the articles agreed on by his majesty with the swede and dutch , then is made publick , nor in the least to attempt the censuring any action of state ; ( for that shall always be forreign to me ) but yet i presume i may without offence say , it doth not appear to me , as it doth to the author of the letter , that the emperor and princes of germany , could not have been taken into the triple league by the confederates , without ingaging to assist them upon occasion against the turk ; for as we find that it hath been ordinary for princes to limit and proportion their leagues , according to their interests , so it is irrational to do otherwise ; and it doth not follow , that because it is the interest of the emperour , and princes of germany , to enter into a league with other princes , for keeping the french king from unjustly incroaching upon his neighbours , that therefore those princes , contrary to their manifest should enter into a league with them against the turk ▪ but i honour the author of the letter , for the care he expresseth to have for the prevention of war to this nation , and for the rest and quiet of the poor people of england , ( page 〈◊〉 ) the pamphlet not being concerned in the complaint against those that blame the breach with holland ▪ because of the triple league , i shall pass that over , agreeing fully with the author , that self-preservation is chiefly to be preferred , 〈◊〉 populi suprema lex . the author of the letter , in his treating of the interest of england , hath several observations , and notions , deserving consideration , which i shall reduce to these six heads following . first , that our increase in power , since the time of queen elizabeth , ( of famous memory ) is not proportionable to the increase of the dutch , ( page . ) secondly , that the dutch , being so powerful at sea as they now are , may by ioyning with the french , ( whenever they will agree upon it ) endanger the conquest of england ; and keeping to themselves the most confiderable parts in it for trade , being masters at sea , provide for their own security against the greatness of france , ( page . ) thirdly , that it is not wisdom for any nation to have its safety depend upon the prudence of another , as in relying upon its being against the interest of holland to invade england , because they may mistake their interest , ( page . ) fourthly , that a conquest of england being made , the dutch government being more easie and indulging trade , then the arbitrary and severe regiment of france , as also their religion concurring more with ours , then that of france , the trading party of england would be likelier to close with the first then the latter , and for the like reason should holland be ever in danger of a conquest by the conjunction of england with france , they would rather choose to become part of the english government , then submit to the power of france : for that their joyning with us , and therein making it , as much our interest to promote their trade , as the trade of any other nation , may answer that obiection , that their fear of our obstructing their trade , will make them averse to us , ( page . ) fifthly , that it is not probable , that the dutch will ever agree to put themselves under the dominion of the french , who will not trust them without such advantages as may compel them to observe their promises , as the other will never give them such a power , least they should make a corrupt use of it , ( page . ) sixthly , that considering the situation and constitutions of england , a coalition with us would prove more acceptable and advantagious to them , then any tearms they can expect from the french , and that should we get no more then the maritine towns , and the french all the rest of the states dominions , we should have no cause to repent our bargain , ( page . ) these notions contain the substance of that part of the letter , which treats of the interest of england ; the first of which i must not at present deny , because the auxiliary assistance which we have received from france , seems to make it good ; yet the story of . acquaints us , that the states in thosetimes with . men of war , blocked up dunkirk , and the duke of parma's navy in it , to the great service of england ; but it is certain , that all nations will increase , or decline more or less , according as their interest is pursued , and their government suted to it , which happily is the cause why none can be said to have out-done the states of holland ( their low beginnings considered ) in increase in trade and riches ; but if augmentation in territories , and power be a crime , it is one that france is more guilty of then the united netherlands , and ought therefore to be looked upon with a more jealous eye ? for the natural advantages that we have of the dutch in the situation of our countrey , and the greatness of it ; in the goodness and number of our havens and ports , to breed seamen , and harbour ships , are such , as appears to me to render it impossible for them , ever to become our superiours at sea ( as is suggested by the letter , page . ) as to the second assertion , or head , i must in that crave leave to dissent , without granting the question ( which is begged ) that holland , whilst in liberty , might be under a likelyhood of agreeing with france for the conquest of england , the thing seeming to me to be morally impossible . first , from their want of people , especially fit for war , their dominions being small , and furnished much with strangers , and altogether with traders , circumstances which no countrey must be under , that designs forrein conquests or invasions . secondly , from the nature of their government , in its being no more then an vnion of several absolute sovereignties , for common defence and preservation , which is a quality not fit for acquisitions , in that the difficulty in satisfying every concern upon the good success of their arms , and the many occasions that would arise from thence of differences amongst them , renders it impracticable . thirdly , from the impossibility of the french , and their agreement upon the division of england ; for that it is not to be imagined , but each of them would be jealous of the others increase in territories and power , and that the states would have no more cause to presume upon their over-witting the french , in getting to themselves the most considerable places in it for trade , ( as is supposed by the letter page . ) then the french in over-reaching them , who have always been wise enough in treaties ; for that an increase in the french monarchy would be more dangerous to the states , then the like in the states would be to them , who are already the others overmatch , and it cannot with reason but be supposed , that in the division of england , the french would on the one hand have an eye at supplying themselves with that they only want , for making them uncontrollable in the world , good havens and ports , and also on the other hand , that the dutch would never yield unto that , that would destroy them . but if england had reason to be jealous of france and hollands conjunction , in order to the conquest of it : ( as the letter suggests ) i fear with the same reason france will be jealous of englands impatronizing holland , as being as well unwilling to have the dominion of the seae so much undivided in the hands of any one lord , as all the rest of europe cannot check it , as we are to have the dominion of the land in the like kind under any other lord or prince ▪ to the third ascertion , i have not any thing to object in opposition , nothing being more ordinary in the world then gross mistakes in the interest of countries , proceeding often from passion , revenge , and disordered affections ; yet this may be said in the case , that the states were such great masters in the knowledge of their civil interests , that none might have been safelier trusted upon that account then they . to the fourth head or assertion , i have only this to answer , that as it is natural for all rational creatures , of two evils to choose the least , so supposing , that the states being reduced to a necessity of parting with their own government , will have the election of their new lords in their own power ; and taking it for granted , that they are men of some conscience and religion , ( though some deny them to be so ) i do fully agree with the author of the letter in his opinion , that they will in such case choose rather the english , then the severe government of the french , unless the consideration ( in their partial opinion ) of who is best able to protect their country , do not prevail with them , to trust the french king in point of religion ; but i very much question , whether it is not groundless to suppose , that any nation being attacked by two great monarchs , will have the choice of their own masters left to themselves , by a mutual agreement betwixt those monarchs , without which it cannot be ; but i highly esteem the author of the letter , for the true sense he expresseth to have of the french government , from which the lord in mercy deliver all other countries . the fifth assertion , is a supposition that the dutch will have it in their choice , to trust the french or not , and in such case i am of opinion with the letter , that they will never do it , spain , lorrain , and the protestants of france , being a sufficient warning to them ; but as affairs now stand , i very much fear they will not have the election of it in their own hands . the sixth assertion , though as most weighty , deserveth most consideration ; yet for the first part of it , whether england admitting the dutch to a coalition , would be of more advantage to them then any tearms they can expect from the french. i will not dispute , but am much of belief , that the french councils , considering that they want nothing to facilitate their universal design more then an interest in the northern seas , where they might harbour , and form an navy , nourish and breed seamen , and likewise considering , that the maritine towns of holland , zealand and friezland , would signifie nothing without trade ; but in danger of being swallowed up by the sea , for want of ability to maintain the banks against it , nor trade signifie any thing without liberty , they would soon find it necessary as to their interest , to wave the french principles for arbitrary government , and to leave the dutch in a great measure of freedom , relying only upon cittadels , for keeping them dependant upon them , and forcing them upon occasion to be useful to them , as judging that the best way to serve themselves of them , least otherwise by severity , they should provoke the dispersing the inhabitants to emden , bremen , hambourg , lubeck and dantzic , &c. the four first being imperial free cities , and the latter the same under poland ; for arbitrary government , ( that must be maintained by the sword ) and the idle callings and rude manners of souldiers , which are altogether inconsistant with , and enemies to trade and commerce , will always cause traders to change bondage for liberty , or at least in hopes of better entertainment one countrey for another , as did the subversion of the florentine government in that countrey ; and as they were preparing to do the like in holland , when they feared the late prince of oreng's over-turning that state , for the antipathy betwixt merchants and souldiers is such , that all monarchs of trading countries have ever held it their interest , to keep their great trading towns free from a mercinary militia , and it is exceeding difficult , if not morally impossible for a prince to advance trade to any great height , where the people are under the awe of a standing military power ; and the french king seems to own the truth of this , in that finding the benefit of commerce , he is even in france content that his trading cities should be freed from souldiers , and more gently used then the rest of his countrey ; for so far as the nature of his arbitrary government will permit , he studieth all manner of wayes to advance trade . as first , by totally prohibiting such forrein commodities , and manufactures , as his people are capable of making , sufficient to serve his countrey , as train-oyl , &c. secondly , by burthening others with high customs and impositions , to the end to incourage his own artisans and seamen , thereby making the trade of england thither very prejudicial to us , our transportations hence being inconsiderable to our importations thence , and as they improve in any faculty , so they either prohibit or increase their impositions , upon the importation of the forrein-made commodities of that faculty . and thirdly , as an incouragement to trade , the french king hath lately declared the exercise of commerce in a gentleman , to be no prejudice to his quality , having also erected an academy for breeding his nobility to sea affairs ▪ and teaching them the art of navigation , &c. all which may well alarm england to a jealousie of their designs as most dangerous to it , and to look upon the french , as those rivals , whom ( if hatred be lawful , as the letter in this case seems to make it ) we ought most to hate ; for should they once come to vie with us in trade or naval strength , we should find them to exceed all that ever went before them , in insolency , injustice , and selfishness . and whether the second part of this notion hath a good foundation , which asserts , that should england get but the sea towns alone , leaving the rest of the states dominions , to the french , we should have no cause to repent our bargain . i will not presume to judge , yet this i think considerable in the case , that should the inlands of the vnited provinces , and with them all the conquered places fall to the share of the french , as by the late published proposals in dutch ( if true ) they seem to pretend unto the latter ; then having thereby the command of the rivers of rhine and mase , &c. together with sluce , and the other garrisons which shuts up the trade of flanders and brabant , they will have it in their power to render all the parts of the seventeen provinces , which will remain to the kings of england and spain of no more use to them , then they please to allow of . first , because the sea towns of the vnited netherlands , cannot be divided from the inlands , from which they receive their nourishment , nor deprived of the use of their rivers , by which they drive their trades without utter ruine to them , and making them thereby an intollerable burthen to their masters . secondly , because the spanish netherlands will thereby be so invironed , or rather be leagured by the french garrisons and forces on all sides , as well towards germany , holland , and zealand , &c. as towards france , that having no means left them , for forming or maintaining an army , ( as any that know those countries must confess ) they will always be in the french kings devotion , and when assaulted by him , without possibility of contributing any considerable assistance to their own deliverance , or to make the triple league of any use to them , thirdly , because such will be the enervated condition of the spanish netherlands , that the king of spain will be necessitated , as not being able to maintain them longer then the french will permit him , either to quit them voluntarily , or ( if he can obtain so much favour ) to make an exchange or sale of them to the french king , who then having flanders and brab●nt , ( which he hath so long thirsted after ) and all the rivers belonging to them in his own hands , will assuredly for the advantage of himselfe , and his own countries even in times of peace , so obstruct and hinder the trade of the maritine towns of holland , zealand and friezland , ( if in the possession of any but himself ) and in times of war totally shut them up by land ) as will restore flanders and brabant to their ancient trade , and make a new holland of them , which being in the hands of the french , will probably prove abundantly worse to england then the old , if large experience of injuries and injustices , committed in trade by them against this nation , may warrant a conclusion , as by the certificate under the lord ambassador hollis his hand , ( which i send you here inclosed ) given upon an order of his majesties privy council , dated the . april . in the case of sir francis toppe , and company , doth for one instance sufficiently appear . nay , such is the envious care of the french , that no nation should get or thrive by them , that ( as mr. samuel fortrey , one of the gentlemen of his majesties privy chamber , reporteth in his book printed . and dedicated to king charles the second ) not many years ago , they suspecting ( through mistakes ) that england had an advantage of them in their trade for france , they were upon counsels for prohibiting all trade with england , until upon a strict examination , they found , that whereas england vented of their commodities into france , not to above the value of ten hundred thousand pounds per annum ; france vented of theirs to the english six and twenty hundred thousand pounds ; and then finding that they had sixteen hundred thousand pounds advantage in the ballance , they soon let fall their design , though yet not without burthening english manufactures with new impositions , in such manner , as might much hinder the vent of them in their countrey . and mr. fortrey in the aforementioned book , doth not only recite the very ballance of trade it self , which he affirms was presented to the french king , to shew the advantage they have in their trade with england ; but also adds further , that hereby it may appear , how insensibly our treasure will be exhausted , and the nation beggered , whilst we carelesly neglect our own interest , and strangers abroad are diligent to make their advantage by us . and it is of no little consideration , that the french should so far overvalue themselves , as to increase their impositions upon dutch commodities , to a degree of prohibiting ▪ them , and deny to the dutch the like power by theirs , as if they had a right to deal as they please towards other nations , and yet none to do towards them ( by way of retalliation ) any more then they shall think fit to give them leave to do , an over weening opinion of their own greatness , which all princes and states ought to be jealous of , as not knowing where their ambition will end . and besides these things thus instanced in , we have great cause to take notice , that as the effect of the implacable hatred of the french to our nation , they cannot forbear in their writings to express their inveterate malice against us , as that book called le politique de france , writ in the year ▪ and dedicated to the french king , is a pregnant testimony , where no better epithetes are allowed us , then being without friends , without faith , without religion , without honesty , without any justice , of defying or provoking natures , light or unconstant to the highest degree , cruel , impatient , gluttons , proud , audatious and covetous , proper for ready execution and assaults ; but uncapable of managing a war with judgment , with other such like opprobrious and reproachful expressions , besides a method propounded to be observed in order to the conquest of england , page , , , . enough to raise a lawful indignation in all true englishmen , against such insolent slanderers , who by their impudence , endeavour to impose their own characters upon in , contrary to the known experience of the rest of the world . and now sir i have no more to add then ( all circumstances considered ) my agreement with the pamphlet in this principle , that while france is so great as at present , it can in no kind be for the safety of england to subvert holland and zealand , &c. which are properly called their out-guards or works against all invasions , and cannot be demolished , or in the hands of the french , without laying england naked , or at least the more open to that nation , and that nothing is more demonstrable , then that since the united provinces cannot signifie much without freedom , they will under their own government be of most use to all christendome , ( save france , who only wants them as a qualification for threatning , instead of courting their neighbours , ) in maintaining the general ballance of europe , even as it was great wisdom in the long parliament ( for the wickedest of men may have worldly prudence ) to joyn with holland in the preserving of denmark , as necessary for the ballancing of sweden , when cromwel ( in his time ) in revenge of manifest affronts , and hatred had designed the ruine of the dane . and thus sir , having in obedience to your commands , given you freely my sense of the pamphlet and letter , without varying from the matter in either ; as it is in them respectively stated , i hope you will pardon any thing wherein i may differ with you in judgment or opinion ; for i have this for my buckler , that what i have writ is truth , and that i aim at nothing in it , but the true interest of the king and kingdom of england , and protestant religion , denying that any can have more cordial affection for them , then my self , who am &c. april th . anno . according to the printed copy . in obedience to an order of council of the th . present , requiring my opinion , what is fit to be done for relief of sir francis toppe , and company : i do humbly certifie , that i have perused their case , and find that they complain of great losses , and damages , sustained in the year . whilst they lived in st. malo , from the french , by seizing their goods in a time of peace , in the very harbours of france , whither they had brought those goods in a way of trading , and where by several treaties then in force , and by the very law of nations , ( which gives a security to the persons and estates of all , who reside peaceably within the dominions of any prince or state ) they ought to have been safe and free from all arrests , the owners not having done any thing whereby to forfeit their interest in them ; which course , if suffered , must needs be the destruction of all trade and commerce , between the two kingdoms , as it is also very dishonourable , and injurious to his majesty , that the publick faith should be broken to his subjects , who trade under his protection , by vertue of the treaties made between the two crowns ; and it is much to be feared , that the proceedings in france may become very prejudicial in this kind to the whole trading of the english nation in that kingdom , if nothing be done to stop this growing mischief : in regard this is not the single case , where this course hath been put in practice , the like having been done several times to english merchants at rouen , who are not yet free of the trouble ▪ for a capture at sea , whether real , or pretended to have been made in . by an english privateer of a french ship , belonging to one delaun●y , valued but at six thousand livers . and whilst i had the honour to serve his majesty , as his ambassador in france , two english ships coming into harbour at marseille , when they had landed their goods , and paid all duties , were seized upon , ships and goods , and notwithstanding all my solicitations , would not be discharged : but some months after , the war breaking out , were given to the east india company there , they pretending some ships of theirs , to have been formerly taken by the english. and now as i hear at st. john de luz , the same usage is threatned , if not already begun to our merchants there , for the reparation of the widow de lazin , for some goods of her late husbands , taken from her by the parliament in . so as all this makes me fearful it may come to be a constant custom ▪ if not prevented . i do therefore offer it as my humble opinion , that all care should be taken for the prevention of it . and for this particular case of sir francis topp's . and company , that in the first place a fair application may be made to the french king , as well by his ambassador here , as by his majesties ambassador at paris , for the just satisfaction of the petitioners , which may be hoped will prove effectual , and should it not , it will then be time for his majesty to consider , what is further to be done for the vindication , of his own honour , and and the protection of his subjects . hollis . finis . mr. denzell hollis his speech to the lords concerning the setling of the queen of bohemia and her electorall family in their right and inheritance with restitution for their sufferings july , . speech to the lords concerning the setling of the queen of bohemia and her electoral family in their right and inheritance holles, denzil holles, baron, - . this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (wing h ). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing h estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; :e , no ) mr. denzell hollis his speech to the lords concerning the setling of the queen of bohemia and her electorall family in their right and inheritance with restitution for their sufferings july , . speech to the lords concerning the setling of the queen of bohemia and her electoral family in their right and inheritance holles, denzil holles, baron, - . [ ], p. printed for francis constable, london : . reproduction of original in thomason collection, british library. eng elizabeth, -- queen, consort of frederick i, king of bohemia, - . great britain -- history -- charles i, - . a r (wing h ). civilwar no mr. denzell hollis, his speech to the lords, concerning the setling of the queen of bohemia, and her electorall family, in their right and i holles, denzil holles, baron c the rate of defects per , words puts this text in the c category of texts with between and defects per , words. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion mr. denzell hollis , his speech to the lords , concerning the setling of the queen of bohemia , and her electorall family , in their right and inheritance , with restitution for their sufferings . iuly . . london . mr. denzell hollis his speech to the lords , concerning the setling of the queen of bohemia , and her electorall family , to their right and inheritance , with restitution for their sufferings . iuly . . my lords , the knights , citizens , and burgesses of the house of commons , have commanded me to let your lordships know , that they have taken into their serious consideration , his majesties proposall unto them of the manifest , in which he is graciously pleased to declare his pious intentions concerning his royall sister , the prince palatine her son , and the rest of the electorall family . they do with all humblenesse acknowledge his majesties favour , in communicating unto them any part of his royall thoughts , and asking their advice and counsell , in a businesse that doth so neerly concern him ; as needs must the happinesse , nay the subsistence of these distressed princes , of so glorious an extraction , their veins being enriched with the same bloud , ( that is ) from so royall ancesters , derived with glory into his sacred person . and in that relation , the house of commons looks upon them with an eye of tendernesse , wishing that every drop of that princely bloud , may ever be illustrated with honour and happinesse : that his majesty may be crowned with this blessing , to see nothing but glory in himselfe , and in all that bow unto him . to heare then , that these princes , so nearly allied unto the king , should suffer that which is so unworthy of them , instead of honour , of greatnesse , to finde oppression , instead of a fortune answerable to their birth and relation , to have their ancient patrimony torn from them , and detained by a hand of violence , is a thing which makes our ears to tingle , and our hearts to rise within us . my lords , the loyall subject of england is so well tuned in a sweet agreeing harmony to the person of his prince , that he is affected with the least touch upon any part of the princely string , and answers it instantly with a sound proportionable ; if it be good and pleasant , with joy and exultation ; if harsh and displeasant , with sorrow and lamentation ; but a sorrow not womanish , and fatuant , but accompanied with indignation , and vigorous magnanimous resolution , to be avenged upon whosoever dare give offence to our royall soveraign . this then is enough to make us zealous for the redresse of the prince electors wrongs , to desire ( with impatience ) to see him reinvested in his rightfull possessions , were there nothing else to move us to it , but our love and affection , and our duty to the king . but my lords , there is yet another motive , which hath a strong irresistable operation with us ; and it is the consideration , how much this is of importance to the good of religion , the advancement of the protestant party , and the redeeming many soules from their antichristian bondage ; which hath a double aspect ; and relates to us , not only as we are fellow-members with them of the true church , which obliges us to a care and defence of them , and gives us an assurance of a reward in heaven : but doth more particularly concern us in point of policy and reason of state , by supporting our allyes , to advance this kingdom to the highest pitch of greatnesse and reputation , to make us formidable abroad to the enimies of our church and state , and so enjoy peace , and safety , and tranquility at home . for my lords , the protestant religion , and this kingdome , are like hyppocrates twins , that must both live and die together . it is madnesse to thinke this state can subsist , if religion be subverted ; and as great a madnesse to think our religion can continue here , if we suffer it to be destroyed and eradicated out of our neighbour countreyes ; which can no more be , ( that is our religion and this kingdome be preserved ) when our neighbours of the same religion and beliefe with us be consumed , than a fort can hold out , when all the out-works be taken ; or the heart preserved , when a gangrene hath seized on the outward parts of the body . my lords , as the true religion is in the truth , the heart of england , which gives it life , and makes it flourish with strength and power ▪ so is england , ( in politick respect ) the heart of the protestant religion in all the other parts of christendome ; and upon occasion , must send out supply into all the neighbouring countreyes , professing the same religion with it ; which ( to be themselves in safety ) must be under the protection of this fort , under contribution to this garrison . and on the other side , if these countreyes be one after another invaded and possessed by the enimies of our religion , that great tie of religion between us , and those bonds be dissolved , which only can unite and strengthen our mutuall affections and relations ; as if they got one part , their appetite will encrease soon to swallow up another . first , the palatinate ; then the other parts of germany ; afterwards the low countries ; and then let us think in what condition england will stand ? it will be left as a cottage in a vine-yard ; as a lodge in a garden of cucumers ; as a besieged city , when all the defences are gone ; it will soon fall to be a prey to the enimy . my lords , this consideration likewise works with the commons of england ; and as the wiseman is to have his eyes in his head , and look before him ; so they do look before them , and had rather see this evill met halfe way , than stay till it come to them ; rather see the eating gangrene of the austrian ambition in germany , than tarry till it seize upon the vitall parts of this island , and the death of religion inevitably follow . this businesse took up a serious debate , and after much time , and many arguments spent upon the subject , the knights , citizens , and burgesses assembled in parliament , came to this resolution which was here read . this they have commanded me to represent unto your lordships , and desire your lordships will joyn with them in a tender of the like advice unto his majesty , and approbation of his royall intendments . and likewise , that his majesty may be moved in the name of both houses , to recommend this busi●esse unto his parliament of scotland , to have the consent and furtherance of that kingdome , that as we be brethren in mutuall affection , in an equall tie of duty and allegeance unto the king our soveraign ; so we may be brethren also in the same tender care , and loving zeale , for the good and support of his majesties kindred , and their restitution , with their ancient inheritance , and the safety of the reformed churches . finis . lord hollis, his remains being a second letter to a friend, concerning the judicature of the bishops in parliament, in the vindication of what he wrote in his first : and in answer to ... the rights of the bishops to judge in capital cases in parliament, cleared, &c. : it contains likewise part of his intended answer to a second tractate, entituled, the grand question touching the bishops right to vote in parliament, stated and argued : to which are added considerations, in answer to the learned author of the grand question, &c., by another hand : and reflections upon some passages in mr. hunt's argument upon that subject, &c., by a third. second letter to a friend concerning the judicature of the bishops in parliament holles, denzil holles, baron, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing h estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) lord hollis, his remains being a second letter to a friend, concerning the judicature of the bishops in parliament, in the vindication of what he wrote in his first : and in answer to ... the rights of the bishops to judge in capital cases in parliament, cleared, &c. : it contains likewise part of his intended answer to a second tractate, entituled, the grand question touching the bishops right to vote in parliament, stated and argued : to which are added considerations, in answer to the learned author of the grand question, &c., by another hand : and reflections upon some passages in mr. hunt's argument upon that subject, &c., by a third. second letter to a friend concerning the judicature of the bishops in parliament holles, denzil holles, baron, - . holles, denzil holles, baron, - . letter of a gentleman to his friend. atwood, william, d. ? reflections upon antidotum britannicum. [ ], , [ ], - [i.e. ], [ ] p. printed for r. janeway, london : . the first article in this collection appeared also as: considerations touching that question, whether the prelates have the right to sit among the lords, and vote with them in parliament in capital cases. . "considerations ... in answer to the ... author of the grand question" (p. [ ]- ) and "reflections upon antidotum britannicum, and mr. hunt's late book and post-script" (p. [ ]- ) each have special t.p. paging irregular. marginal notes. includes index. errata: p. . reproduction of original in union theological seminary library, new york. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of 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true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng hunt, thomas, ?- . -- rights of the bishops to judge in capital cases in parliament cleared. stillingfleet, edward, - . -- grand question concerning the bishops right in parliament in cases capital. hunt, thomas, ?- . w. w. -- antidotum britannicum. church of england -- bishops -- temporal power. england and wales. -- parliament. -- house of lords -- jurisdiction. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - judith siefring sampled and proofread - judith siefring text and markup reviewed and edited - pfs batch review (qc) and xml conversion lord hollis his remains : being a second letter to a friend , concerning the judicature of the bishops in parliament , in the vindication of what he wrote in his first ; and in answer to a book since published against it , entituled , the rights of the bishops to judge in capital cases in parliament , cleared , &c. it contains likewise part of his intended answer to a second tractate , entituled , the grand question touching the bishops right to vote in parliament , stated and argued . to which are added considerations , in answer to the learned author of the grand question , &c. by another hand . and reflections upon some passages in mr. hunt 's argument upon that subject , &c. by a third . london , printed for r. janeway , . the general preface . the name of the lord hollis is so well known , both to the active , and contemplative part of mankind , that no more need be said to recommend any papers to the world , than to give assurance that they were his , and by him designed for the press . i am perswaded that most who read the first of these ensuing treatises , and have been conversant in that great man 's writings , cannot but acknowledge this , for the genuine product of his large soul , and close way of reasoning . but besides the inward testimony of the thing it self , we have other sufficient proof of its being authentick , from such as had the honour of a familiarity with that extraordinary person in his life time , to whom he communicated his thoughts on this subject , as he from time to time committed them to paper . he lived not to finish any more of his answer to the grand question , &c. than what is now published ; but often affirmed that he had conquer'd all the difficulties in it : nature was spent , and all the oyl of his vital lamp was consumed , before he could advance further with his pen : and when we consider that he had past the age of man , having arrived to his eighty first year , and that he still continued writing for eternity , when he was upon quitting this mortal state , we may well say that his life went not out in a snuff , as most very aged men expire ; but that he ascended to heaven in a bright flame , which still continues to enlighten us that remain here below . surely i cannot be taxt of impertinence , if i here strew upon his herse some of cicero 's happy flowers , since one would think they sprung up now for this very purpose , est etiam quietae , & purae , atque eleganter actae aetatis placida , ac lenis senectus , qualem accepimus platonis , qui uno & octagesimo aetatis anno scribens mortuus est . let no man say that it misbecame him to spend his time thus , when he was posting to eternity : he had found truth to stand in need of his defence , and his own reputation was called in question upon his appearing for it . and next to devotion , ( which without doubt had a due share of his time , ) nothing perhaps can give a greater foretaste of the joys of heaven , than the sense of a mans having fully vindicated truth , and his own good name . the author of the considerations is likewise a person of great age , and well known for his great learning : nor would his name , if made publick , give any small reputation to his book : but he is so sincere a lover of truth , that i dare say , he would not have any man byast with a previous disposition to believe , that there is more force in his arguments than he finds , but leaves them to their natural energy . for me to pretend to give the characters of such authors as these two , would he a presumption beyond what i am guilty of , in putting some papers of mine in the retinue of theirs . but though my character cannot do sufficient right to either ; yet a confutation of mr. hunt 's errors may be a piece of justice to the lord hollis , who has been much undervalued by this warm author . and as mr. hunt is a man justly in reputation for his parts and literature , unless it be shewn that his authority is of no great weight in this sort of learning , he might wound by his censure where he doth no great feats with his argument . i doubt not but he will pardon my freedom with him , since he has used as much , or more , with what i have formerly published to the world. indeed by his preface one would think , that he had wrote before i had set out any thing relating to antiquities : but then he must needs have understood by way of prophecy what i would say about the curia regis , great part of which he makes use of , and concerning the explication of king iohn's charter , and several other things , which he opposes . i am sensible that enough has been said by the two learned authors ( on whose papers mine attend : ) to clear the question concerning the bishops voting in capital cases in parliament , from all the dust raised by mr. hunt. but he having put things together in another manner than had been done before , some might think it requisite that there should be a particular answer given to every thing of his that bears the face of an argument , both upon the account of the weight his assertions may carry with many , and the want of judgement in others , to apply what may be found in these treatises to silence all objections , in how different a manner soever they may be repeated . and truly this i had done according to my talent , but considering that those things are wrote for the learned , whose judgements are too delicateisoon to rellish the same dish drest over and over again ; i thought it convenient to suspend the publication of what has occurr'd to me upon that subject . nor shall i at present interpose in that controversie any further , than to free my self from a two-horned argument , which i were very dull not to perceive my self to be concerned in , if not solely aim'd at by it . having first taken a difference between the great , or general council of the nation , to which proprietors of lands , as such , had right to come , till h. . and the curia regis compos'd of the kings immediate tenants , and officers ; i had occasion to enquire into the nature of the curia regis , mentioned in the constitution of clarendon , which obliges the ecclesiastick tenants in capite , interesse judiciis curiae regis quousque perveniatur ad diminutionem membrorum , vel ad mortem . this i took to relate to judgements in the curia regis , as such : and the ground of coming to the great , or general council being different from that of coming to the curia ; from thence i conceived might be gathered a sufficient reason , why the bishops might have been allow'd to vote in a legislative capacity in cases of blood : and yet that practice might no ways extend to warrant their sitting as iudges upon such causes , either when there was a bare curia de more , or when it sat within the general council of the kingdom , more than the suitors at the curia being summon'd . the legislative power they exercised as members of the general council or parliament : and the iudicial power , as members of the curia , and were members of the curia , as they held lands of the king in chief : whereas men came to the parliament generally upon the account of property in land , without consideration of tenure , so it were free . in short , a man may have that in an extraordinary capacity in parliament , which he has not there in an ordinary . i likewise held that becket was try'd for misdemeanors only , though according to the language of those days they were crimina laesae majestatis , and that the tryal was in a bare curia regis , when no more than suitors to that were summoned . mr. hunt 's argument upon this follows , if it was the curia regis wherein the ordinary justice of the nation was administred , and not the parliament was intended in the assize of clarendon , in which the priviledge and indulgence under the quosque was allow'd to bishops , then the assize of clarendon is unduly urg'd against the bishops judging in cases of blood in parliament , &c. and consequently by the assize of clarendon the bishops have no leave to withdraw . if the court wherein thomas becket was tryed was the curia regis , then the bishops judging in that court in that cause doth most clearly declare ( that being a case in point ) that the quousque was an indulgence which they might use or wave . now to my thinking , this seeming irrefragable argument has no real force : for , not to mention his wrong interpretation of the constitution of clarendon , nor yet his mistake of the fact in relation to becket 's tryal , as if he were tryed for a capital offence : in both which i doubt not but he will receive conviction to the contrary from these two learned authors : i am bold to say , that there is no manner of consequence in the first branch of his dilemma , which is the only thing that can lye upon me to answer : and truly , i conceive , that it by no means follows , that because the curia regis in the constitution of clarendon is not the whole parliament , but only that court which ( either when a parliament was held , or when only a council of tenants in capite , or lords , assembled ) had the sole exercise of the judicial power , that therefore iudgements in parliament before the lords , such as were members of the curia , are not affected by that constitution , any more than we can now say , the house of lords cannot be concerned in any matter which does not belong to the whole parliament . i shall only add three observations , which may go far to put an end to this controversie . . that part of the constitution of clarendon , which says of the ecclesiastick tenants in chief , debent interesse judiciis curiae regis quousque perveniatur ad diminutionem membrorum vel ad mortem , was part of the avitae consuetudines ecclesiasticae . if it had been a new law , then indeed whatever was not expresly forbidden , were matter of liberty : but it being only in affirmance of the ancient law , their liberty went no further than the usage , which was to be present only till such causes came to be tryed . . if precedents are as mr. hunt censures them , like an oracle , that will always give a response agreeable to the enquirer and consulter ; then we must , as i formerly did , look to the law in the case , without entring into the large field of precedents . . if the canons require the bishops not to concern themselves in the tryals of capital causes , and those canons have been sufficiently received to become the law of the land ; which these authors prove undeniably , then the bishops must ever be supposed to have been absent when such matters came in question in parliament ; unless they are mentioned there by name , and cannot be comprehended under words common to them with the temporal lords , any more than we can imagine that the popish lords , who are excluded the lords house by act of parliament ( yet still are peers ) are parties to any judgement given by the peers there . sir , the former trouble i gave you upon this subject , you pulled upon your self by desiring my opinion in it ; but for this i now give you , i must beg your pardon , it being singly upon my own account , to do my self ●…ht , and justifie what i then wrote to you , against several aspersions cast upon me in a pamphlet entituled , the right of bishops to judge in capital cases in parliament , &c. made it seems by the same person , who had set out the other pamphlet intituled , the honours of the spiritual lords asserted , &c. of which i gave you some account in a postscript to my former letter , and i think , without any sharp reflection either upon that author or his work . the most i said was , when i had instanced in three notorious falsifications of his : the first is , p. . where he quotes mr. selden to prove , that the spiritualty made their proxies in capital causes in more parliaments than the r. . for that they did it likewise in the h. . and h. . which i shew was a mistake , and only said he could not find it so in the record it self , but that he took it upon trust out of the margin of mr. seldens book of the priviledges of the baronage p. . where there is such a quotation of the h. . and the h. . but wholly misapplyed by our assertor of honours ; for mr. selden alledges that precedent to shew , that whereas h. . it was by the then earl of salisbury assigned as an error in the attainder of his father , ( who was condemned of high-treason in the h. . ) because it was done sans assent des prelates , which are the words of the record , without the assent of the prelates ( by the way speaks nothing of proxies ) it was then adjudged to be no error , and his petition rejected , which in truth is a strong argument to prove that the prelates had no right to be present at such tryals and judgments , which is the main question between us . and though he being of another mind , had maintained his opinion by so gross a prevarication , i was so far from retorting it upon him with any bitterness , saying , it was disingenious , and a suppressing of truth , and not setting things down faithfully ; which is his ordinary language concerning me : or with insipid jeers , saying , i wear a sharp sword , a trenchant toledo , as one of the younger house of great alexander ; and that he brings me to the sun like alexanders horse ; and telling of the magical combate in apuleius ; and a city of birds in aristophanes , and such other scurralous passages as his book is full of ; which shews the sweetness of the gentlemans nature , and the goodness of his cause , which he maintains only by railing and false assertions : whereas i rather lessened his fault , saying , only that he was mistaken , by being misled by the printers misplacing the quotation , so excusing him from any wilful error , and purposely venting of untruths . i do the like in another great falshood of his in the page following , upon his citing a record r. . in the case of the earl of arundel , which he makes to be , that the lord steward by the assent of the king , bishops and lords , adjudged the said earl guilty of treason ; whereas the record runs , that the lord steward by the commandment of the king and all the temporal lords , and sr. thomas percy , empowered by the prelates , and all the clergy of the kingdom , judged him guilty , &c. this you see is a foul misrepresenting of his precedent , and imposing upon the reader a falshood instead of a true record , for it shews that no bishop was personally present , and i make it out , that the putting of a lay-man in their steads , is a strong evidence of the incapacity of all clergy men to be any of them personally present at any of those tryals . yet in this i rather excuse our bold assertor , shewing how he was misled here likewise by sr. robert cottons abridgment ; and only add this , that methinks one should not venture to quote a record upon any mans allegation without consulting the record it self , which , i said , i am sure he had not done ; which i think was as gentle a reprimand as could be , and shews , that i supposed him such a lover of truth , as that if he had known it a falshood , he would not have made use of it , only he was deceived , relying upon the authority of that learned antiquary , sir robert cotton ; but in truth i am now of another mind , and see my gentleman hath a large conscience , and a mercenary pen to publish any thing right or wrong to please those that set him on work . his third notorious falshood is , the precedent , which he cites of richard earl of cambridge , who he saith , h. . was tryed in parliament , upon an accusation of treason , and found guilty ; the lords spiritual being personally present , and bids us see the record of it in the tower : to which i only say , that he had not done it himself , for he would have found it contrary to what he asserts ; and that the earl of cambridge was tryed , condemned and executed at southampton by a special commission ; and that his attainder was afterwards brought into parliament , and there confirmed by act of parliament , at which the bishops might be present . now i pray you sir , do you judge if i gave him any occasion for such a reply as he hath made to me throughout , from the beginning to the end of his pamphlet : and if he should not first have considered the beam in his own eye , and have purged himself , and given the world satisfaction for these gross mistakes of his , rather than add more to them as he hath done all along his book , with language fitter for billingsgate , than for the eyes or ears of any sober man : but i see it is the nature of the beast , as the proverb is , which he cannot help , therefore we must take him as he is , naturam expellas furca licet , usque recurret . and now sir i must beseech you to pardon the trouble i have given you with this long recapitulation of those his falshoods in his former pamphlet : in which i have been the longer to set forth the advantage he gave to one that would have fallen soul upon him , and how gently i dealt with him , thereby to justifie , or at least something excuse my sharpness with him now ( which i confess and am sorry for ) for his base return of scoffings and railings against me , not fit for a gentleman , who deserved better at his hands , and gave him not the least provocation for it : but tread upon a worm , and it will turn again . and so i shall apply my self to answer what he saith as to his arguments in the maintenance of his assertions , which i think will not prove very convincing , and will follow him , as he sayes he would follow me , step by step , and i hope i shall make it appear , that he hath made many a false step , and will begin with his postulata's as he calls them , wherein he saith we do agree , but he means i think like dogs and cats . his first postulatum is concerning the protestation of the bishops r. . wherein he saith we both agree that it is a law , but that i have not set it down faithfully , leaving out the most considerable things in it , because they make against me ; which if i have done , i am a very bad man , and may pass not as he stiles me for , one of the younger house of great alexander , but rather of the house of this great asserter himself , who is the chief of the family of the asserters of untruths . his charge against me is , for leaving out a passage in my recital of this protestation , which is , what they say in the beginning of it , and likewise towards the end of it , claiming themselves to be peers , and that in right of their peerage by the laws and customes of the kingdom , they ought to be personally present in all parliaments . then he subjoyns another protestation in the h . which he saith also i have not cited faithfully and ingenuously , as i ought to have done . this is a great charge upon me if it be true , that i have done any thing unfaithfully and disingenuously , of which i hope i shall be able to purge my self . and first give me leave to make a protestation for my self in the general , which i do upon the faith of a christian and an honest man , and it is this , that neither in the citing of these records , or any other throughout my letter to you , i have purposely and willingly left out or concealed any thing that i thought material , because it made against my opinion : but what i have written is the naked truth as i am fully perswaded in my soul and conscience , and all that i have done in it hath been singly and meerly for the discovery of the truth , and the satisfying of my self and others , of which i take the searcher of all hearts to witness ; and let our asserter say so much if he dares , though for venting falshoods for truths , i find him a daring man. and now to come to these particulars , i will first lay before you upon what ground and to what end i urged that protestation of the bishops , r. . it was for two reasons , one to shew , that it being at their desire enrolled in full parliament by the assent of the king , lords temporal and commons , it came to be the law of the land , though it had not been so before : the second thing was to shew that the salvo of the prelates in that protestation extended only to their right of sitting in parliament in other cases , but not in cases of blood ; and that they did not therein at all pretend to that : which i think i very clearly proved in that letter , to which i refer my self . but for these omissions which he makes so criminal : as for the first , concerning my not expressing that they made their peerage a ground of their protestation : i answer , that since what i conceived and maintained to have been their end in their protestation , which was , only to assert and lay claim to their right of being present in parliament in all other matters , but matters of blood , was not at all controverted by me , but that , to which i fully agreed in omnibus , i did not think it at all necessary nor proper to insert what moved them to make such a protestation , but only so much as was to the purpose for what i alledged that precedent : the matter of their peerage is another point , for which in truth there is little ground , notwithstanding all their claim to it ; and that it be sometimes attributed unto them by such as desire to please them , and perhaps by many ignorantly and mislead to it , in regard of their sitting in the upper house of parliament , and having a parity of vote with the temporal lords in the legislative part , and likewise in the judicial part of that house , in all other cases but of blood , from which they have been particularly debarred both by their own canon law , and afterwards by the law of the land , and the custome and usage of parliament , which may very well make many persons not considering the true nature of peerage , nor examining with care and diligence what in that particular our law saith , and what hath been the usage of parliament , give them that appellation : but i have in my former letter cleared also this point ( i think ) very fully , and shall say more to it in this , when i come to answer that article hereafter in course , as our assertor brings me to it , for this now is but by the way upon occasion of this his first postulatum . and now for his other charge upon my unfaithful citing the protestation in h. . leaving out how the lords spiritual and temporal joyned in challenging their right of judicature , and that the judgment given by the king concerning the duke of suffolk should not turn to their prejudice , but they and their successors should enjoy their liberties in case of their peerage hereafter , as freely and as largely as their ancestors had before them : i shall give a like answer to this as i did to the other , i concealed nothing that was necessary and proper to be said , which may appear by my letting forth particularly the whole proceeding in that tryal , step by step , how the prelates joyned in the management of it , from the beginning to the end ; therefore certainly it had been no more a disadvantage to me to acknowledge that the prelates claimed such a right in a verbal protestation , than that they did actually exercise it , as i say they did all along in the whole transaction of that business : therefore if it was designedly done , it was a weak design in me ; my end was only to shew the palpable extravagances of that tryal , and of the kings taking upon himself to give the judgment , and so mentioned the lords protesting against it , in which the prelates joyned with the temporal lords , as well as they had in all the foregoing passages of it : for the matter of their peerage , i reserved it still to be spoken to in a clause apart by it self , when it comes to be the proper subject matter in question , i did it in my former letter to you , and i shall do the same in this . his second postulatum is concerning attainders , in which he saith we both agree that bishops may and ought to be present , and yet attainders , saith he , are matters of blood ; and learnedly he adds , that it is not material in the judgment of any considering person , which way a mans life is taken away , whether by way of attainder , or by impeachment ; and infers further , that the canon law , which by a jeer he saith , i call the law of laws , is not so indispensibly obliging . and our asserter it seems puts himself into the rank of those considering persons , that make an attainder and an impeachment two distinct species or kinds of proceeding against a criminal person to take away life , saying it is not material which of the two wayes life is taken away , whether by attainder or impeachment . oh the ignoramus , that wants a considering cap to judge aright and know what an attainder is , which is what follows upon the conviction and condemnation of the guilty person , be it upon an impeachment in parliament and tryal there in a judicial way , or by an act of parliament in the legislative way , or by a special commission of oyer and terminer under the great seal ; the attainder is the result and consequent of those three wayes of tryal and condemnation , and not a distinct thing running in a different channel from an impeachment or from any of the other wayes of tryal , being the end and consequent as i say of all tryals , when the person is found guilty . the term attainder or attainted implies so much , which our etymologists derive from the latin attingere , to touch or reach to a thing ; now a criminal person is touched or reached unto , and seized upon by the law , upon an impeachment and tryal in parliament , or by a tryal out of parliament by commission , as well as by an act of parliament , so i think one may give it this definition , that it is a notion in law , whereby the law reacheth and seiseth upon a condemned person , taints his blood and divesteth him of all his priviledges both in publick and private concerns , which he enjoyed before as a free man of england . besides , our confident asserter doth not consider the nature of the question in controversy , which is not , whether a bishop quatenus a bishop , an ecclesiastical person in holy orders , may be present as a judge in any case when matters of blood are agitated ? and whether the canon law be so obliging , as that in no case he may , but whether by the law of the land , and the custome and usage of parliament , the bishops be forbidden it , when the house of peers acts in a judicial capacity to condemn any body , and not when they pass an act of parliament for it , and i think it is clearly made out , that they may in the latter case , passing a law for it , and not in the former , to act as judges in a judicial way . his third postulatum is concerning the petition of the commons r. . that in regard divers judgments in parliament had been heretofore undone and repealed , for that the lords spiritual were not present at them , the king would command them to make some their common procurator with sufficient authority thereunto ; which would put an end to all controversies : to this he saith , that for me to demand what in particular those judgments were at this distance of time , is neither equitable nor rational : and truely i made no such demand , for i do very well know what judgments the commons did then not intend , which were all judgments in capital cases ; for it is most clear by all records of parliament , and all the vestigia that remain with us of the usage and proceedings of antient parliaments , that there is not the least colour for so much as a doubt or a suspition that the prelates or lords spiritual could have any part in those judgments . and we know on the other side , what judgments they had their shares in , which were all judgments in such civil causes as came into the parliament , and in criminal causes that were not capital , and the commons then could intend none but these , which was enough to satisfie me , that this petition of theirs at that time was no wayes contrary or repugnant to what i maintained . and by the way , methinks it is worth observation , the reason they give of their desire that the bishops would make a proctor , not so much for that , that their presence there was of so absolute necessity , as that what was done without them was in it self null and void , but to put an end to all controversies ; which shews the prelates had expressed some dissatisfaction , and had gotten some things which had been done in their absence to be undone and repealed , which considering their power at that time , and how all the laity was in awe of them , would have a great effect upon mens minds , and make them do what else they would not have done , and perhaps strain a point a little to satisfie them : and still it shews , that notwithstanding their absence they were good and valid , till the same power that had made them did repeal them . and to shew what an ascendant the prelates had over king and parliament and the whole kingdom at that time , see what they did but the year before r. . they declared unto the king in open parliament , that they were sworn to the pope and see of rome , and if any thing were in parliament attempted in restraint of the same , they would in no wise assent thereunto , but would utterly withstand the same : and can we then wonder , if the commons were not very loth to displease them , and willing to comply with them much rather than have a controversie with them , and perhaps be fain at last to undo what they had done ? his fourth postulatum is upon the protestation of viscount beaumont in the name of the lords spiritual and temporal in the case of william de pole duke of suffolk , which hath been touched upon before , wherein he now saith i have left out the most material words ; but what they are he expresseth not , nor can i imagine what he means ; as i have already said , i have been very particular in setting down every circumstance of the whole proceeding , acknowledged the actings of the prelates in it thoroughout as far forth as the temporal lords , and then i say , how upon the kings giving judgment upon the duke , that viscount in the name of the lords spiritual and temporal made that protestation , that it should not be nor turn in prejudice nor derogation of them , their heirs , ne of their successors in time to come . i think this was sufficient to shew that i did acknowledg all that could be pretended to for the bishops judicature in that business , and what this assertor would have more , and wherein i have failed i can not imagine , only i see he is a quick-sighted gentleman and can see further into a milstone , than another man , and spy a fault which another cannot see . he hath a fifth postulatum , to whichi can say nothing , for i understand not what he would be at , he speaks of my accurateness in making a distinction between the matter andform of a law , and then saith , he observes three things ( though he expresseth but two ) which he saith , he shall have occasion to make use of hereafter when he comes to speak of the particular cases ; and i must refer my answer to what i shall there find , when i believe i shall make it appear that he makes no great use of them , nor of any other argument that he brings . and now i come to the particular cases , the first is e. . of roger mortimer earl of march being then condemned for treason . here our asserter saith , that by e . upon his cousin roger of wigmore's petitioning to have this judgment and attainder reversed , i acknowledg it to be an attainder , if i say truth , say nothing to the purpose . this is gentile language , and which discovers my gentlemans ignorance , as well as his rudeness ; his ignorance in conceiving an attainder to be only by a law , by an act of parliament , in which bishops may be present , and if they were not so , but did withdraw , it was their own voluntary act , and no diminution to their rights : i have already upon his second postulatum handled this point so fully , and made i think both his errour and the truth so clear , as i need not say any thing more to it here . then it is a pretty argument he brings against my saying , that the record being , les queur counts , barons & piers les articles per eur eramine ; rebindrent , &c. which earls , barons and peers having examined the articles returned , &c. it must be inferred that the bishops cannot be comprehended under the word peers , since the barons are named first ; to this his answer is , well but i find the contrary , peers many times put before barons , particularly in mr. selden's baronage , p. . then he cites a record of the judgment against john mautravers , where it is said , for which the said peers of the land and judges of parliament adjudge and award , &c. doth this at all contradict my quotation of the record in roger of mortimers case , but that it is as i say , that the general word peers is there put after the barons , and being so cannot comprehend bishops , because in some other records that word is put before . he talks of drawing arguments illogically , i am sure this is so . i would put him a case , he brings his action of slander against one , for that at such a time in such a place he had spoken ill of him , and said he was a lying knave , and other words that will bear an action , and proves it by witness ; that man proves by other witnesses , that at another time and in another place he had spoken very well of him , and said , he was a fine gentleman ; i ask now if he would be satisfied with this , and not stand upon it , that he had proved his plaint , and expects a verdict and judgment upon it : so may i say , that my precedent stands good , and proves what i alledge it for , and what he saith , is not to the purpose . but i will go further , and make it appear that even his precedents that he alledges , make all for me , and against himself , and though he charges me with not being so good as my word , saying , that i would run through all the tryals upon record , in that i have omitted four in that e. . i shall give you an account of those tryals in that parliament , and you will see that i could have no sinister end in not mentioning them , and that all of them proved and confirmed my assertion , that the bishops had no part in any of them . i expressed as much as was necessary to prove they were not present at roger de mortimers earl of march , who was the chief and the principal of those delinquents , and whose tryal was the leading case to all the rest . i give you the words of the record , how after the exhibiting of the articles against him , the king bespake the judges , the peers who were to judge him , and charged them in these words , dont le dit sr. le roy vous charge counts , barons , les piers de son royalme , que de st come cest choses touchent principalement , a lui a vous & a tout le people , &c. therefore our said lord the king charges you the earls , barons , peers of his realm , that as these things chiefly concern him and you and all the people , &c. you give righteous judgment . i ask now if this be not as clear as the sun at noon-day , that by the words of this record , i charge you the earls , barons , peers of the realm , ( which is the same as if he had said , i charge you earls and barons who are the peers of the realm ) can be no otherwise understood , but that only the earls and barons are the peers that are there charged , and none else , to give this righteous judgment : the earls and barons are the two species , particularly enumerated , and peers is the genus which comprehends both : and the same persons whom the king had so charged are they who tryed and gave judgement upon the earl of march , as the record shews it , saying , les queux countes , barons & piers , &c. did judge him guilty of those treasons . and the very same persons did give judgement immediately in that very parliament upon the rest , viz. sir simon de bereford , john mautravers , boeges de bayons , and the rest . therefore my not mentioning their tryals , which our asserter lays to my charge as a crime , and a not doing what i had engaged my self to do , which was to run through all the tryals in those parliament rolls , could not be designedly done , with an intention to conceal any thing which made against me , as it is maliciously and very falsely interpreted , for they all made for me , and it was a passing over sub silentio , of so many precedents that confirmed and fortified what i asserted . and should you , sir , ask me , why i omitted the mentioning of them ? i profess i could give you no good account of it , but that it was a meer inadvertency . when the question first arose about the judicature of the bishops , i took some short notes of some copies of records that i had ; and then seeing that all those particular tryals in e. . hung all upon one string , and were managed by the same persons , it seems i thought it then sufficient to set down the proceedings in the first , which was the rule and foundation of the proceedings in the rest , and afterwards when i came upon your request , to take a little more pains in making my enquiry into the usage of ancient parliaments , i was afterwards more exact in it ; but when i wrote my letter to you , i made use of my notes which i had taken of the first parliament , and particularly of e. . where these other tryals as i say , were left out . but i shall now give you an account what they are , and you will see it was not for my advantage to conceal them , nor would it have been for our asserters advantage if they had been mentioned ; but he quarrels at every thing . only give me leave before i come to that , to set it down as a general rule , and a very true one , that wherever there is an enumeration of particulars of several ranks and degrees , which goes downwards , beginning with the higher and ending with a lower , and in the close , a general expression is of others to be added to , and joined with them , those others must not be of a higher rank and a superiour degree to that particular which is last mentioned , but either of the same degree , or of a lower . this is a judged case even in the business of bishops in cokes second report in the arch-bishop of canterbury's case , p. . ad este adjuge que evesques ne sont include deins le statute , eliz. c. . it hath been adjudged that bishops are not included in the statute eliz. c. . which saith , that colledges , deans and chapters , parsons vicars , and then concludes , and others having spiritual promotions , that these last words cannot include bishops , for reasons before given , which reasons are upon the statute of h. . concerning the dissolution of abbies , which mentioning their coming into the kings hand , by renouncing , relinquishing , forfeiture , giving up , &c. and concludes with general words , or any other means ; this cannot be understood of an act of parliament , which is a higher way of conveyance , than any of those specified . so sir edward coke upon the statute of westminster the second , c. . which saith , si abbates , priores , custodes hospitalium & aliarum domorum religiosarum , &c. hath this comment , seeing this act begins with abbots , &c. and concludeth with other religious houses , bishops are not comprehended within this act , for they are superiour to abbots , &c. and these words , other religious houses , shall extend to houses inferiour to them that were mentioned before . so i conclude , that the record saying , earls and barons and peers , &c. the general words , and peers , can comprehend none but some other peers , equal only , or inferiour to barons , and not any above them , as i am sure bishops will say they are . and i will tell you when those of a higher degree may , and must be comprehended under a general expression , that is , when the enumeration or climax ( for so i may call it ) goes upwards , beginning with a lower rank , and rising higher in those which they particularize : as if it be said , barons , earls , and all other peers ; here marquesses and dukes will be comprehended , and bishops also would be , if they were peers , which they are not ; but still i say , if the enumeration descend , none higher than the last mentioned , can be understood to be meant by any general clause . i think you are satisfied that the e. of march was tryed and judged only by the temporal lords to whom the k. had committed his tryal , and charged them only with it . sir simon de bereford was the next who was tryed , and by the same persons ; the record is item en mesme le parlement si chargea nostre sur le roy les ditz countes , barons & piers a donner droit & loyal iugement come affiert a simon de bereford , chebalier , &c. item , in the same parliament our lord the king charged the said earls , barons and peers to give a right and loyal iudgement upon sir simon de bereford , &c. it follows afterwards , si agarderent & aviggerent les ditz countes , barons & piers , come iuges du parlement per assent du roy que le dit simon come treitre fast treisne & pendu . so the said earls , barons and peers , as iudges of parliament , did with the kings assent , award and adjudge sir simon de bereford to be drawn and hanged . you see the same persons were his judges , who had before tryed and condemned the earl of march ; yet i must observe a little difference in the expressions : the king in giving the charge to the peers in the earls case , the words of the record are , the king charges you earls , barons , les piers de son royalme , the peers of his realm , which must be construed , who are the peers , or being the peers of his realm : and then their judgement comes to be set down , the record saith , les queux countes , barons & piers , &c. the which earls , barons , and peers , did so and so , with a conjunction copulative [ and ] before peers , as if there were some other peers after the earls and barons ; which if there were , we are sure it could not be the bishops , which is all that we are to enquire into : we know that heretofore the kings of england did sometimes send writs of summons to other persons , that were not peers of the realm , but persons of quality , as bannerets , and some officers , as the warden of the cinque-ports , whom i find commonly to be the last set down in the list of those who were summoned : and those persons so summoned , came and attended the parliament , and had voice and vote with the peers , as members of their house , and as peers pro tempore , and might be comprized under the general name of peers , and being lay-men , might act as peers in all tryals , and in all other judgements of parliament , both civil and criminal , even in capital causes ; but these could in no sort be esteemed to be peers of the realm , though they might pass in a large acceptation , and a vulgar construction of the expression , be termed peers in parliament . these now might be summoned to a parliament , or two or three parliaments one after another , as pleased the king , and then be summoned no more , if the king was otherwise minded ; and they could not pretend to have wrong done them , their former summons having been ex mera gratia , without any right of theirs to them . so then i may conclude that it is all one , whether you will take it as it is expressed in the kings charge then , the earls , barons , peers of the realm , &c. or as it is when they come to give judgement , and as it is likewise expressed in the case of sir simon de bereford , the said earls , barons and peers , &c. and whether that conjunction [ and ] before the word peers , be of any signification or no , to mark out other peers subsequent to the barons , is not material to what our asserter would have to be understood of my leaving out any thing , for it had all made for me , and against him , making it clear enough , that the bishops had no part in those judgements . the next precedent is the judgement of iohn mautravers , the record says , trestouz les piers , countes & barons , assemblez a ceste parlement a westminster , 〈◊〉 on t examine estroitement , & sur ce sont assentuz & accordez que john mautravers 〈◊〉 est culpable , &c. all the peers , earls and barons , assembled in this parliament at westminster , have strictly examined , and thereupon have agreed and accorded that john mautravers is guilty , &c. i appeal now to any man that hath but common sense , if it can be imagined , that the prelates or bishops can be thought to be meant by that expression of all the peers , and if it be not the same in signification , as when the king charged them to give righteous judgement upon the earl of march , saying , si vous charge countes , barons , les piers de mon roialme , &c. and so i charge you earls , barons , the peers of my realm , &c. there the several ranks of peers are first named , and the general word , which denotes their quality , common to both , which makes them competent judges of those matters , that is , their being peers is put last : and here in this record concerning mau●…avers it is put first . which comes all to one . and it is further observable , that at the time of that parliament , there were no temporal lords before earls , neither dukes nor marquesses : so if any others were to be understood to be comprised under that general title of peers , it could be only the lords spiritual , which is a thing very ridiculous to believe : can it be thought , nay can our asserter himself think , i trow not , that when the other particular ranks and degrees of the peerage are expressed and set down nominatim by name ( as one may say ) by tale and by token , earls and barons , that ( i say ) at the same time , and to be joyned with them in the same action , another rank of men , viz. bishops must pass under a general title , and that put in the first place , as if peerage were an apellativum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to them , or a genus imperfectum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to the two species , the lords spiritual and lords temporal , which genus the logicians define to be quod speciebus suis non communicatur ex aequo , sed alteri magis , alteri minus , uni speciei immediatè & propriè , alteri mediatè & in ordine ad primariam : and that so the lords spiritual should still be principally and chiefly meant , by the general name of peers , they primariò , and the temporal lords secundarió . those logical expressions i know our asserter understands well , who blames others for bringing illogical arguments , therefore i put this to him . but that they are not at all peers of the realm , to speak properly and truly , and as they are in the eye of the law , though they have sometimes been stiled so , both by themselves and others , i have in my former letter i think made it clear , and all that our asserter saith to the contrary , hath not made me change my opinion , and i shall say more to it , when i come in course to answer what is there said by him . in the mean time i shall only add this , which i lay for a ground , that i do verily believe no instance can be given of an enumeration of some particulars in an universal collective proposition , and to leave out that particular which is first in rank , and ought to be first named , if any at all be named , and to have that to be tacitely implied under the general term , the signum collectivum , as in this proposition , all the peers , earls and ba●…ons , gave such a iudgement : this i say , that if the bishops did joyn in the judgement , it would have been so expressed , and they would have been first named , otherwise it is like an et caetera in the beginning of an enumeration , which in the close , and after an enumeration of some particulars , may intimate a joyning of some others that are not particularly specified and named , but is never put in the beginning . and i think , i may with confidence affirm , that there is no example in all the rolls of parliament , that any of the benches of the house of lords hath been particularly mentioned in any business , and if the prelates did likewise act in it , that they were not also particularly mentioned , and always in the first place , nay , before any other , even before the prince of wales , and the princes of the blood , as may be seen in the roll e. . upon roger of wygmore's petition , the record saith , le roy ●…st venir devant lui & les prelatz & edward son fitz eisne prince de gales , henri duc de lancastre , countes , barons & piers le iugement , &c. the king caused to be brought before him , and the prelates , and edward prince of wales his eldest son , and henry duke of lancaster , and the earls , barons and peers , the iudgement , &c. now is it probable , or can it be believed , that the decorum concerning the bishops being in those times still so punctually observed , and that respect always given to the prelacy , whenever they were concerned to mention them particularly and in their due place , that they would in that parliament of e. . be content to be comprized under a general notion , and pass as a man may say incognito , when others have more respect shewed them , to have their names recorded ? i do not think that the clerk of the parliament durst have been guilty of so great a disrespect to them : therefore we may well conclude , that in this judgement upon mautravers , the prelates were not at all signified under the general word of trestouz les piers , countes & barons : all the peers , earls and barons ; nor were they at all present , or had any part in that tryal , no more than in that of roger de mortimer , earl of march. the other persons judged that parliament , had all the same judges , and passed under the same judicature . the record for boeges de bayons and john deuerell is , item tieu iugement est assentiez & accorde que soit fait de boeges de bayons , john deuerell pur la cause sus●…ite , &c. item , the same judgement was agreed to , and accorded to be given upon boeges de bayons and john deuerell , for the cause aforesaid , &c. the very same words are likewise for the judgements upon thomas de gurney , and william de ocle . and to prove it more authentically that they were all ejusdem farinae , of one and the same nature , i will give you the kings writ that declares them to be so , to the lord treasurer , and barons of the exchequer , commanding them so to inroll those judgements , and with them a kind of protestation made by those peers , stiled a concordia ne trahatur in consequentiam : an agreement that it should not be drawn into consequence : that is , not made a precedent , to oblige and compel them to judge hereafter any but their peers , because of the judgement they had then given against sir simon de bereford , john mautravers , and the rest , who were commoners : for as for those who were their peers , they could not avoid the trying of them , particularly in parliament , where only a peer of the realm can be tryed in parliament time , which hath ever been the priviledge of the peers ; and from which i shall in due time and place , before i make an end , draw i think , an argument not to be answered , that the bishops are not peers , for if they be peers , and questioned in parliament time , they must be tryed in parliament . but e. . stephen , bishop of london , having been complained of in parliament for saying , that if edward the second were still alive ( as he was informed that he was , and in corfe-castle ) he would assist him with all his force , to re-establish him in his throne ; was by the parliament , referred for his tryal to the kings counsel , and by them to the kings-bench , where putting himself super patriam , to be tryed as all commoners do , a jury was empannelled , and the tryal went on there in the kings-bench , till at last he got the kings pardon : this is term. pasc. e. . rot . . now had the bishop been truly and really a peer of the realm , neither could the house of peers have avoided the trying of him themselves , nor would he have submitted to a tryal elsewhere out of parliament , the parliament being once possessed of his cause . but this is by the by , the writ for inrolling those judgements , and the concordia is , in memor and. scaccarii inter brevia directa baronibus de termino sancti hillarii rot. . e. . in these words , rex thes. & baronib . suis salutem . bittimus vobis sub pede sigilli nostri quaedam iudicia in parliamento nostro apud westmon . nuper tento per comites , barones at alios pares regni nostri super rogerum de mortuo mari & quosdam alios reddita , nec non quandam concordiam per nos & pares praedictos , nec non communitatem regni nostri in eodem parliamento factam super praemissis , mandantes quod iudicia & concordiam praedicta in scaccario nostro praedicto coram vobis legi & publicari & ibidem seriatim irrotulari & de caetero ibidem obser●…ari faciatis , teste me ipso apud wyndesor . die februarii , anno regni nostri . per ipsum regem & concilium . the king to the treasurer and barons greeting . we send you under our seal , certain judgements given in our parliament late at westminster , by the earls , barons , and other peers of our realm , upon roger of mortimer , and some others ; also an agreement made in the same parliament by our selves , the foresaid peers , and the whole commonaliy , concerning the matters aforesaid ; commanding you , that the said judgements and agreement you cause to be read in your presence in our court of the exchequer , and there to be enrolled in course , and duly observed . given under our test at windsor , febr. . in the fifth year of our reign . all this shews there was no variation in any of those tryals , but all went on pari passu , in the same method . and it is not probable there could be any great change in their proceedings , the parliament continuing together so short a time , but fifteen days in all , as mr. pryn observes by the writs of wages in his fourth part , which is concerning parliamentary writs . and i think i may now say , that few will believe i concealed these precedents because they made against me . the case of sir thomas berckley is of another nature , his tryal is said to be inter placita coronae tenta coram domino e. rege in pleno parliamento suo , &c. mem. thomas de berkeley miles venit coram rege in pleno parliamento suo , & allocutus de hoc , &c. about the murther of edward the second , and asked how he would be tryed , ponit se super patriam : so twelve knights were empannelled , who did acquit him . i do not look upon this as a tryal by the house of peers , acting in their ordinary judicial capacity . there was some other court in those times in time of parliament , where the peers probably were the principal judges , but then were added to them some great officers of the crown , and of the judges of westminster-hall , before whom those pleas of the crown were held ; i confess this is to me terra incognita , a thing of which i can give no very good account . but i think one may affirm with confidence that no prelates were amongst them , for they would have been mentioned , if they had been there ; as in all criminal causes which were capital , or in any thing concerning such causes , i observe , they were : and even in this case of sir thomas berckley the next parliament , n. . it is said , ●…tem en mesme le parlement si prierent les prelatz , countes 〈◊〉 barons , pout mr. thomas de berkley a nostre sur le roy ●…il lui voustst deliver de meynprise , &c. item , in the same parliament the prelates , earls and barons besought the king that he would set sir thomas berkley at liberty from his mainprize . i do observe they are always named , and never omitted if any else be named , which is my postulatum to our asserter , and not as he injuriously would put it upon me , p. . of his pamphlet , that i should maintain , that the prelates are in all cases particularly named , or else they cannot be thought to be there , and then to disprove it , quotes a bill of subsidy , where the words are , les seigneurs & communes si sont assentez : the lords and commons have agreed : and semble as seigneurs du parlement : it seems to the lords of parliament ; and a hundred such instances more , i know , he may give : and the trifler could not but know that i could intend it of no other but of the matters in question , which were judgements in criminal causes . and i shall add but this more to shew the improbability of the prelates of those times being at all employed in tryals of that nature , and least of all , that we should imagine they could be comprized under general expressions , which if it were , would argue an unquestionable right and title in them to such a judicature . let us consider the statute made but two years before , it is e. . c. . which confirms a statute formerly made e. . c. . which enacts , that the justices of gaol delivery which are sent down into the several counties , when they enquire of felonies and murthers , if one of them be a clerk , then some discreet knight of that county shall be associate to him that is the lay-man , and shall deliver the gaol . we see how careful they were then that no church-man should take cognizance of matters of blood , canon law , common law , and statute law did prohibit it . and now to follow my gentleman to the parliament e. . in which he tells me , i have not been fortunate in the choice of my topick , because that parliament being called for the redress of the peace , and the bishops saying , it did not properly belong to them to give the king counsel for the keeping of the peace of the kingdome , signified nothing . but had they said it did not all belong to them , it had been somewhat to the purpose . but under this gentlemans favour , i think it is to the purpose , to shew that the bishops did then believe and acknowledge that it did not properly belong to them to look to the keeping of the peace , that it was not their proper work , which implies that they conceived their duty and employment to lie another way : and it is a strong argument à minore , that if they might not do that , and advise the king in doing what was necessary for the keeping of the peace , and punishing the breakers of it , much less could they be put upon it to judge in matters of blood. and for them to say that it did not properly belong to them , was a little softer , and more respectful to the king to excuse themselves from doing what he required of them for giving their advice , than if they had bluntly said , that it was not at all of their duty to give such advice ; which had grated a little too much , and had been a kind of retorting it upon the king for requiring a thing in it self improper and unreasonable . and yet they did as strongly put it off from themselves , saying , it did not properly belong to them ; for no prudent and sober man will do a thing that is not proper for him , nor can it be required of him , that he should . so i think my topick was very good ; and i may say i am not altogether unfortunate to have to deal with so weak and impertinent an adversary . what he saith in the case of sir john grey , and sir william de la zouch , of bishops , that they are sometimes comprehended under the general word of les grantz , i never denied it ; but in that place where the king did charge , toutz les countes , barons , & autres grantz en lour foies & ligeances , &c. all the earls , barons , and other great men , &c. i say that bishops cannot be comprehended there , because in that place it can be understood but of such great persons , whose rank is after the barons , where i am sure no clerk of the parliament durst ever rank the prelates . and another rule which i stand upon is , that if any one bench of the house of peers be named and specified , as that of earls or barons , that of the bishops ( if the bishops were present ) is never left out , but always first placed . the next scratch he gives me , is upon the case of sir william thorp e. . upon my inferring , that by the general term of the grantz in that parliament , who approved of the judgement of death given upon thorp , it cannot be supposed that the bishops are understood , because they tell the king , that if such a case should happen afterwards , the king might call any of those grantz whom he pleased , and by their advice , give such a judgement of himself , which i say could not be meant of bishops , because it was no employment for them to assist in judgements of death . upon this , my gentleman is pleased in good serious earnest ( as he scoffingly expresses it ) to ask , if this be not petere principium , to beg what i am to prove . and i answer in true serious earnest , that i do not petere principium , not beg the question ; for the question is first general , whether bishops in parliament can be employed in such judgements , and then particularly whether among the grantz of that parliament of e. . that affirmed that judgement against thorp , there were any bishops ? and i infer there was none , because they tell the king , that hereafter even out of parliament , if any body else offend in like manner , he may take any of them , that is , of those grantz that now give him this advice , to joyn in condemning him ; and by the law of the land , a bishop could not joyn , therefore there was no bishop amongst them : and that by the law , bishops and all clergy-men were prohibited , appears by the act of parliament of the second of that king which i mentioned before , confirming one to the same purpose made in edward the first 's time , that no clerk should be a justice of gaol-delivery for tryal of felons : this , i think , is not petere principium , to prove the true meaning of what was done at that time in the house of lords , by what the law of the land had already established , which must regulate what the house of lords then did , and doth shew there could be no bishops in the number of those grantz . then for what he saith of the commons charging michael de la poole before the king , prelates and lords , which was in r. . and parallelling his crime to that of sir william thorp , who for it was condemned to dye ; upon which he will infer that michael de la poole was charged with a capital crime , and accused of it by the commons before the prelates , as well as before the other lords , who gave their judgements upon it . he may examine the record , and he will find that the impeachment was only for misdemeanors , cozening the king in an exchange of land , when he was chancellour , and some other miscarriages of that nature : and it is the impeachment , which is in the nature of an indictment , that governs the tryal , be the crime what it will : as it is laid in the impeachment or the indictment , it must be so found upon the tryal , at the least it can be found no higher , less haply it may be : a man that is indicted for a misdemeanour , cannot be found capitally guilty . and though by a comparison , by way of aggravation , it was likened to thorp's case , michael de la poole made it appear there was no resemblance between them : and who will take pains to read the record of thorp , which i dare say this trifler never did , nor scarce any record ; will see that the ground of that judgement , which made it capital , was that himself had submitted to such a condition , when he took upon him the office of chief justice ; the words are , si sembla a eur le jugement sur ceo rendu resonable depuis qil se obligea mesmes per son serement a tiel penance fil feist alencontre : the judgement given upon it , seemed to them to be agreeing to reason , since he had bound himself by his oath unto such a punishment , if he did contrary to his oath . and i must say , it would go hard with a great many , if every one should be hanged that cozens the king. and it is a pretty remark of his upon sir john lee's case e. . that the record saying , that he was brought before the prelates , dukes , earls , barons , and some of the commons , &c. he observes , that if at this tryal any thing had been objected which had been capital , the bishops were present at it : and i say he might have made a truer observation than that , which is , that they might be well assured , that nothing capital was to be objected , because then the bishops would not have been present . and one thing i am sure is observable , which is , that the bishops , that is , the prelates are here recorded to be present , and to be ranked before the dukes , earls , &c. we are sure , if any be specified , they are , and still ranked in the first place . what my gentleman means , in what he saith upon the tryals e. . i understand not ; they are the cases of richard lyons , the lord latimer , william ellis , the lord nevill , and john peach , all these were only charged with misdemeanors ; he saith their crimes were great and hainous , and reckons the loss of forts among them , which he saith was a crime capital in gomenitz and weston , r. . and that i acknowledge the bishops to have been present at those tryals . but still this learned gentleman , who brags here that he will not suffer the world to be longer amused and imposed upon by my notions , doth himself still mistake the business , not well understanding the nature of the thing he treats of . otherwise he would consider that the tryal of a criminal person must always be pursuant to his charge ; which is a point i have already spoken to , therefore i shall say little here , only this , that the impeachment of the commons against those persons , was only for misdemeanors , their tryal was accordingly , and the bishops were present . and for what he saith of gomenitz and weston was clean another case ; it was for betraying those towns which they had undertaken to keep , when the force upon them was not so great : however , it is not material what their crime would appear to be upon proof , but what their charge was , and that was capital . then for what he adds of the bishops being comprehended under the general apellation of les seigneurs du parlement ; the lords of parliament ; in several cases which he there cites , which he beats upon over and over again , in so many several places of his pamphlet , and sets up like a man of straw of his own making , to make sport with , is what i never denied : my position is , that i have still observed in all tryals of crimes , when bishops could be present , it is so expressed that they were so , as in all crimes not capital ; and i do not think one instance can be given to the contrary . and my other position , which i affirm with more confidence , is , that if any of the other ranks of the lords be mentioned , the bishops are so likewise , or else it is a certain argument that they were not there . my gentleman is a little put to his trumps in the case of gomenitz and weston , r. . that is so plain , first , the commons coming and desiring , that such as had lost towns and castles by their own default , might be punished , per agard des seigneurs & baronage ; by the judgement of the lords and baronage : whereupon those lords commanded gomenitz and weston to be brought before them , and upon a long hearing , condemned them both to death : and the lords are particularly named , the duke of lancaster first , and ten more earls and barons by name , of whom roger lord clifford was the last ; and then a general clause , et plusours autres setgneurs , barons & bannerettes ; and many other lords , barons and bannerets . now this is so plain , and exclusive of all prelates , as my gentleman is forced to confess , that it seems doubtful to him who these lords were , whether the prelates , or the lords particularly named ; and plusours autres seigneurs , under which ( he saith ) very probably the lords spiritual might be comprised . i see a truth cannot come clearly from him , a thing that is most clear , he makes it doubtful : and one thing he saith most falsely , of a petition commanded to be read , numb . . en cest parlement per les prelates , & seigneurs , piers du parlement ; by the prelates , and lords , peers of parliament ; which petition he will have to be concerning this matter , which is most false . for that which is said numb . . is of a petition , and writ of error , presented by william de montague , earl of salisbury , which was then read , and nothing at all concerning gomenitz and weston ; which is a horrible falshood , and imposture of our asserter to abuse the world so , and impose upon the reader . the first request of the commons concerning this business , and to have this matter examined is numb . . and then numb . . there is mention of a schedule given in by weston , and the record saith , ueue & leue la dite cedule en plein parlement ; the schedule being seen and read in full parliament ; and any thing concerning weston or gomenitz before this , there is not : but some falshood he must still add of his own , for the jesuites verse is very applicable to him , verba damus cum nostra damus , quia fallere nostrum est ; et cum nostra damus , nil nisi verba damus . and indeed throughout his whole pamphlet he doth but verba dare , take verba , words , as in opposition to reality and truth , for it is full of falshoods ; or take words in opposition to matter and good sense , for his whole book is a very bundle of words , without any good matter in it . but one thing more i cannot but observe , it is his insisting so much upon a thing , which i am confident himself doth not believe , though i have known a teller of stories tell one of his own invention so often , that at last himself hath begun to believe it to be a truth : it is , that after the naming several lords , and ending with some barons , there is a general expression , ●…t plusours autres seigneurs , barons & bannerettes ; and many other lords ; barons and bannerets ; my confident gentleman hath the boldness to add , under which probably the lords spiritual might be comprised ; which he knows the prelates of those times , if they had been concerned in it , would never have endured , and the clerk of the parliament would as soon have eaten fire , as have entered it so . then in the case of the murtherers of john imperial , a publick minister , r. . because i observe , that it is expressed in the parliament ▪ roll , that the bishops were not present at the framing of the act to make it treason in them , which i grant , in other places of my letter they might have been , being to pass an act of parliament in a legislative way , my gentleman is pleased to say , that i forget my self : in truth no , i did suppose it , and do suppose it to be a good argument à minore , to shew that the prelates were then so modest , as to withdraw upon the passing of a law for the greater punishment of such a capital crime , which in strictness perhaps they did not need to have done , much more then would they avoid the sitting as judges to take away life in a judicial way , which they could no ways pretend to : but my gentleman loves to quarrel , and scribble paper , though to no purpose . to the case of sir ralph ferrers , r. . he only sings over his tedious plain song , that under the general word of lords of parliament , bishops may be comprehended , and therefore he will have it , that they must be so : and much good may it do him with his crambe bis cocta , i may say centies cocta , for i think he serves up this same dish a hundred times in this his learned treatise . but i may not let pass what he saith upon the case of the bishop of norwich , r. . how extream falsly he recites things , taking all upon trust , how this man or t'other man cites a record , but never seeing the record it self , which perhaps he cannot so much as read . he desires it may be taken notice of , that for those misdemeanors he was adjudged to make fine and ransome to the king , and that the judgement was passed upon him by the lords by assent of parliament ; where he saith , he hopes i will not deny but that there were bishops present , and for this sends me to cotton's abridgement , r. . n. . but if he would have looked upon the parliament roll he would have found this , perquoy del a●…ent des countes , barons & autres seigneurs temporelz presentz en ce parlement est assentuz & accordez que vous soiez en la mercile roy , & mis au fin & raunceon pur vostre malfait solonc la quantitée & qualitée dicell : therefore by the assent of the earls , barons , and other lords temporal present in this parliament , it is agreed and accorded , that you shall be at the kings mercy , and put to fine and ransome , for your misdeeds , according to its quantity and quality . you see now how this man would impose upon us , and what stuff he brings to make good his assertion : if i had been guilty of such a falshood , i should have heard of it to purpose , that both my ears would have rung again ; and no ink this gentleman could have got black enough to set it out in its colours . then he comes to the case of michael d la poole , r. where he saith the same things he did before , and which i have already answered , so to that i refer you . the next is the r. . where the prelates withdrawing from parliament , by reason of matters of blood , which were then to come into agitation , enter a protestation with a salvo to their right of sitting in parment , which my gentleman will have to be meant even of their being present at the agitation of those matters , if they were so pleased . this hath been treated of before at large already , to which i refer you ; i will only observe this further at present , out of the words of their protestation , first , they say , quia in praesenti parliamento agitur de nonnullis materiis , in quibus non licet nobis aut alicui eorum juxta sacrorum canonum instituta quomodolibet personaliter interesse , ea propter pro nobis & eorum quolibet protestamur , & eorum quilibet hic presens etiam protestatur , quod non intendimus nec volumus sicuti de jure non possumus nec debemus , nec intendit , nec vult aliquis eorum dum de hujusmodi materiis agitur vel agetur , quomodolibet interesse , sed nos & eorum quemlibet in ea parte penitus absentaxe : this they declare , that it is not lawful for them , nor any of them , by the institutions of the holy canons , to be personally present , and that of right they cannot , nor ought to be there , and therefore they do not intend in any sort , quomodolibet , to be present , but wholly to absent themselves , while those matters are handling . can any man now have the fore-head to maintain , that they could have a thought of challenging still a right , contrary to such prohibitions , and to say , that it was only the canon law that did prohibit them : i say still that the canon law was to them above all laws , and the prelates of those times conceived themselves to be above all other laws ; even not to be subject to them , but what the canon law did allow or forbid , was accordingly by them held to be most lawful or unlawful . the salvo they add , makes it clear , iure paritatis nostrae & cuju●…ibet eorum interessendi in dicto parliamento , quoad omnia & singula inibi exercenda nostris & eorum cuju●…ibet statui & ordini congruentia in omnibus salbis ; the right of our parity , and of every one of them ( that is , our equal right in the general , and of every one of us in particular , with the rest of the lords ) of being present and acting in the said parliament , as to all things and every thing befitting our state and order , always remaining unto us safe and entire . now i would ask , if it can be imagined , that they would , by way of protestation , reserve to themselves a liberty ( when they pleased ) to do what they said was not lawful for them to do , and that which of right , and according to the law to which they were subject and must obey , they could not , nor ought to meddle with ? and if such things can be thought to be statui & ordini congruentia , for their salvo extends only to such things as are agreeable to their state and order . indeed , i think it a solecism to have such a thought . and i know it will be excepted against , that i do take paritas here in such a sense , and not to be nomen apellativum , to signifie peerage , a rank of men ; but i consider how it is put , that it is paritas interessendi in parliamento , which in my opinion is proper to render a parity , or an equal right with others , to be present in parliament . but let them construe it peerage , it matters not to me , i have handled that point fully by it self in my former letter , and shall do it again in this before i make an end , to shew i am not afraid of that expression ; and though in those times the prelates gave themselves sometimes that character , that it did not at all belong unto them . and he beats upon this again , that this was left out purposely by me in my citing this protestation , which i have sufficiently cleared already amongst his postulata's , therefore i shall not trouble you with it again in this place . in the case of thomas haxey , r. . my gentleman is so ingenious , as to say , he believes the bishops were not present , but then he tells you why ; because it was an erroneous judgment , and an irregular condemnation , and so commends their prudence : and sure , he hath been with some witch to raise some of those prelates from the grave , as the witch of endor did samuel , to tell him the true cause why they withdrew themselves , and did then forbear to use their right , as he saith it is lawful for every man to do , else he could never have hit so pat upon the true cause of their withdrawing , whereas otherwise a man might say it was because they knew they had no right to be there ; and if it had been their right , they should the rather have made use of it , to prevent and hinder an unrighteous judgement , and have caused a righteous one to be given . and more than that , if it was their right , and that they had a calling to be there , they were bound to attend the service , and i think it would have been a breach of duty , and a sin in them to withdraw themselves from it . and now i come to a bundle of words indeed , it is what he says concerning their proxies , r. . out of which one shall have much ado to pick some sense , and what it is he would be at , i will do my endeavour in it . he first puts us in mind of his fifth postulatum , and of what he said there of the difference between the matter of a law , and the manner of its enacting , and that a law may be repealed for the matter of it , and yet the manner of making it still hold good . this i suppose he saith , because i except against the authority which that parliament , at the desire of the commons , gave the bishops to make their common procurator , in regard that whole parliament was afterwards repealed , and consequently all it did , made null and void . yes , saith he , the parliament was repealed by h. . because it condemned those who were his friends , as traytors to the king and government ; yet the proceedings in that parliament were just and lawful . to which i answer , that what was done that parliament , agreeing with the practice and usage of other parliaments , was certainly just for the manner of the doing , though the matter might be repealed , and made null : but what was never done before in any parliament , nor any thing like it , could not receive any stamp of authority for its being done in this parliament , because the parliament it self had no authority , a subsequent parliament repealing it , and making it as if it had never been : and this of all the bishops joyning to make a common proctor was never done in any parliament before nor since . if any should object , that henry the fourth was an usurper , and had no right nor title to repeal former parliaments , nor to make any laws . this were an objection if it should be allowed , would have a long tail , and carry a very bad consequence , for it would sweep away at once all the good laws that were made in three kings raigns , and would make such a hiatus in our statute laws , as would put things into a very great disorder . we know that in edward the fourth's time , which followed immediately after those three henries , in all the acts of parliament which passed , when mention is made of any thing done in those kings reigns , still what was done is allowed of , and confirmed , and to their persons and government , the parliament still gives this character , that they were kings indeed , but not of right . which implies the stamp of soveraign power and authority to be set upon all their actions , and so upon the parliaments that were summoned and held by them , and principally there , because of the concurrence and conjunction of the whole kingdome in all things there done . nay , in some acts of parliament we find care taken , that nothing should clash with what had been done in parliament by some of those kings , as e. . c. . there is a statute concerning breakers of truce , and a proviso in it , that this act shall not extend to any act or ordinance made h. . late indeed , and not of right , king of england . but still he is acknowledged king of england , de facto , which goes a great way to authorize any thing done under their power . therefore h. . c. . a law is provided to indemnifie all persons that shall do service to the king in being , whether he have right or no. as for what is said of the bishops making their common proxy , at the prayer of the house of commons , that their proceedings might be valid , and not questioned in future parliaments by reason of their absence , and that divers judgements had been reversed , because they were not present . it is true , it is so expressed in the roll of that void parliament , which as it hath no authority nor validity in it self , so it is very strange , that if there had been ground for this apprehension , there should remain nothing upon record in all the rolls of parliament , that ever any judgement , or any other act done in any parliament had been so repealed . we know it was once attempted h. . by thomas montacute , earl of salisbury ( as i told you in my former letter ) who brought his writ of error to reverse the judgement given against his father h. . because the bishops ( as he alledges there ) being peers of parliament , were not parties to that judgement , but it was declared to be no error , and his petition was rejected . and we know that in edward the first 's time , there was a parliament held at st. edmonds-bury , clero excluso , not a prelate admitted to it . and in henry the eighth's time all the judges of england declared it for law , that the king might hold a parliament with his lords temporal and commons , altogether without the lords spiritual . tout sans les spirituels seigneurs , it is in keilwayes reports , in dr. standish's case . therefore there is no reason to think , that any judgements were repealed upon the bishops being absent , seeing their presence is not of necessity for the constituting and sitting of a parliament . and especially not for the judgements which we treat of in capital cases , because by what appears upon record , and by all the laws , canon , common and statute law , they never were present , i always except that unparliamentary extravagant proceeding and judgement of henry the sixth , in the twenty eighth of his reign , upon william de la pool . our asserter tells us of some judgements reversed e. . particularly in the case of the spencers , but he doth not tell us where he finds it , nor i believe , doth he know himself , having only taken it up some where upon trust , as he doth other things . but in this r. . upon the petition of the earl of gloucester , it appears by the record of the proceedings against the two spencers , father and son , in that e. . which are there repeated at large , that there was nothing capital in their case , neither in the charge nor in the judgement , so as this signifies nothing to the matter in question , which is all can be said to it . and as little shall i say to his witty allusion of bringing me to a sight of my self , as alexander did his horse to the sun , that he might not kick ; only this i might say , if i were as foul-mouthed as he , that indeed such a scoffing injurious scribbler were fitter to be answered with a kick , than with fair reasoning by way of argument . next we come to the h. . sir william rickhill's case , where i think , i should do well only to transcribe what he hath written , to shew it needs no answer , but that i should waste too much ink and paper : i represented in my letter to you , that rickill being sent for into parliament , no formal charge being against him , to give an account only by what order he had taken the duke of gloucester's confession at calais , which he did , the bishops present ; but when they came to consider what was to be done upon it , then only the lords temporal were asked their opinion , which i alledge to shew , that the bishops there were not advised with , because it might be preparatory to a further proceeding by way of tryal : and this our asserter says , is to serve an hypothesis , and learnedly gives it us in greek , and bids the reader judge , and so do i. then for the tryal of hall , who was one of the murtherers of the duke of gloucester , he hath the condescension to acknowledge it probable that the bishops were not there , but then saith , that they left it to the temporal lords , without any impeachment to their right , it being secured before by the security of a confessed act of parliament , r. . it is their protestation he harps at . and if i had as much greek as he , i would say it in greek , that he now doth serve an hypothesis , or in good english , beg the question , for that is his meaning of serving an hypothesis , for the right which the bishops there saved , he will have to be , and hath forty times repeated it , to judge capitally when they please ; but i have clearly shewed it was not of their assisting in those judgements , as he still will have it to be , but other judgements and proceedings in parliament , where in truth they had a right to assist . then follows the case of william sautre , h. . where he is pleased to give me a wipe for stiling him the protomartyr of england ; and out of his great reading informs , that st. alban lived some hundreds of years before him ; but he must give me leave to inform him , that the common acceptation of martyrs amongst us protestants now , is of such orthodox persons as have suffered for the truth , whom the papists have put to death for hereticks , and this man was the first of them in england . he hath some other notable remarks ; one is , that whereas i said that the bishops and clergy of those times were the chief promoters of bringing him to his end , which i meant of their declaring him an heretick , and then turning him over to the secular power , he observes upon it , that then they acted in a capital case , which he saith makes against me : and that if it was the lords temporal who signed the warrant for his execution , that the bishops had no hand in it , and so have escaped my lash , but who were his judges , nondum constat , i am sure it doth not constare to me to what purpose he saith all this , which i do not find to make either for him , or against me . no more , than what he saith of the case of the earls of kent , huntington , and salisbury , h. . who he grants were declared and adjudged traytors by the temporal lords , and no bishops present , and then saith , he will give a parallel case , it is of the earl of cambridge , and the lord scroope , h. . where the bishops were present , and that i confess they might be so , because it was in passing an act of parliament to confirm their attainder . but my gentleman is mistaken , as he commonly is almost in all his assertions , for the cases are not parallel , the earls of kent , huntington and salisbury had no tryal , had not been legally condemned and attainted , but being taken in circester by the townsmen rising upon them , were by them in a tumultuary manner put to death , and the house of peers afterwards in a judicial way adjudged the fact of those lords treason , and them traytors ; and this was done only by the temporal lords , who are there particularly named . but the earl of cambridge and the lord scroope had been tryed , condemned and executed at southampton , and this judgement afterwards was brought into parliament , and there confirmed by act of parliam . where the bishops were , and might be present : but our asserter hath ill luck in all his allegations . and he will have as ill luck in what he saith to the earl of northumberland's case , h. . where i am sure he begs the question , and doth disputare ex non concesso , for whereever lords , or peers of parliament are mentioned , he will have the bishops to be comprehended , whereas those general words , as all other such , are to be understood secundum subjectam materiam : if it be in a case where the bishops are particularly by the law of the land , and the continual practice in the execution of that law excluded , and others are comprized under the same general expression , it must be understood of them only , and not of those upon whom there is such a bar . now they who will have the bishops to be peers , do not make them the sole and only peers , but allow earls and barons to be peers with them . but i do not allow them to be peers at all , our asserter will prove them to be peers by two records , mautravers case , e. . and their protestation , r. . i have already given an account of what is in mautravers case , the words are , all the peers , the earls and barons being met , &c. is it not ridiculous to expound this , that by all the peers is meant only the bishops , as if the dignity of the peerage did principally belong to them , that they should be peers sans queue , as the french denominate a thing that belongs to some particular person more properly , and in a more eminent degree , than it doth to any body else ? or is it not more rational , and indeed only so , to understand this expression to import that the earls and barons were the peers who then met , and that saying , all the peers , the earls and barons , &c. the earls and barons are an exegesis , an exposition of the foregoing general denomination of peers , so mautravers case makes nothing for him , but much against him : and as to their own protestation , r. . indeed they call themselves peers there , but that doth not make them so , i have spoken to this point already very fully , and sorry i am that i am forced to do it again , and to do it so often , but he leads me to it , who doth as the proverb saith , reciprocare serram , go over and over the same thing , as much as ever any man did , i think , and as often mistake . the force of my argument to prove that by the general appellation of the lords who protested against the kings delivering the earls petition to the judges , to have their opinion , and judged the fact themselves not to be treason , but a trespass , could not be meant bishops , because the record saith , sur quoy le dit conte molt humblement remercia le roy , & les ditz seigneurs ses piers de lour droiturel iugement : whereupon the said earl very humbly thanked the king , and the said lords his peers , for their right iudgement . now the bishops could not be peers to the earl , who could not try him nor be tryed by him , they being to be tryed only by commoners , and commoners to try them , if there be occasion , of which more shall be said afterwards in its proper place . i will here only observe one thing , that our asserter hath it instead of humbly thanked , humbly reverenceth the king ; which he takes out of the pamphlet that goes under the name of mr. seldens baronage , which i have ever looked upon as a spurious book , not made by mr. selden , who would never have so translated remercia , and being full of faults and falsehoods , yet this book , and sir robert cotton's abridgment , which hath likewise faults enough , are the chief oracles that he consults , and which do many times deceive him , as the ancient oracles did those who resorted to them . of as little signification is what he adds of the lords of parliament declaring the action of henry percy , who was killed at the battel of shrewsbury to be treason ; where he doth assure you the bishops were present , and you shall have his oath for it , i dare say , if you will : and how doth he prove it ? why , saith he , the arch-bishop of canterbury was present at the former iudgement , for in express words he prayed the king , that forasmuch as he and other bishops were suspected to have been of confederacy with henry percy , that the earl of northumberland would now publish the truth , whereupon the earl , by the kings command upon his oath , purged them all . and then learnedly argues , that here was no departure of the arch-bishop and of the other bishops concerned : and i believe him , for in truth here is a good proof that they were all present , but to be purged themselves , that they should not be thought criminal , not to act as judges , which is what our worthy asserter doth assert , and what he would have us think that he fully proves , which he doth more solito , that is cujus contrarium , &c. then my gentleman ( for he is an active gentleman ) makes an alman leap to the very end of the last leaf of sir robert cotton's abridgement , where he finds a marginal note of mr. prynn's to this purpose , that the three estates must concur to make a parliament , or richard the third's title would still be ambiguous ; and this he thrusts in here by head and shoulders , i understand not how to the present purpose , i think only to have the occasion to say , that mr. prynn knew better of records , and what plein parlament meaneth than i , and another whom he joyns with me , and twenty more such as we are , which i deny not , though he should add to the number , himself , and forty more who were no wiser than he , who all of them would not make our ballance two grains the heavier . then he comes to the case of the earl of northumberland , and the lord bardolph , h. . which , he saith , i say is like to that of the earls of kent , huntington and salisbury , h. . and that is true , for in both those cases , those lords after their deaths ( having had their lives taken from them in a tumultuary way , without any formal tryal ) the business being brought into parliament , were by the temporal lords , in a judicial way of proceeding , adjudged to be traytors , and their fact to be treason . but then he adds , that i likewise make the case of the earl of cambridge , h. . like to these , which is not true , being of a clean different nature , an act of parliament which had its rise from a request of the house of commons , who brought it up to the lords ; here , i say , the bishops were , and might be present . that which he saith to the case of sir john oldcastle , h. . is so threadbare with rubbing it over and over again , and hath been so often said , and so often answered , as that it would too much trespass upon your patience , sir , to trouble you with any one word of it more ; i think i have made it exceeding clear , where under the general term of lords of parliament , bishops may be understood to be comprehended , and where not . those particular cases which he now brings to prove his assertion , are point blank against him , that is the case of mautravers , e. . and of gomenitz and weston , r. . in that of gomenitz many particular lords are named , several earls and barons , and then a general clause , et plusieurs autres seigneurs , barons & bannerettes . is it possible to think that bishops come in that fag end ? indeed i do observe one thing in this case of sautre , which is not in any of the other ; i cannot say that i lay any great stress upon it , yet something it is , that the record expresses that the bishops had done with him , declaring him a heretick , and then relinquentes eum ex nunc iudicio seculari : leaving him from henceforward to the secular judgement , as if they should say , they would have no more to do with him . and as convincingly he argues in the case of sir john mortimer , h. . he confesses with me that the indictment found against him at the guild hall was brought into parliament , before the duke of gloucester , and the lords temporal , fuit liberatum , it was there delivered to them ; and then he cites a record ( as he makes it ) de advisamento dictorum dominorum auctoritate istius parliamenti ordinatum est & statutum quod ipse usque ad turrim ducatur ; by the advice of the said lords , it was ordained and enacted by authority of the said parliament , and by the advice of the said lords temporal , that he should be led to the tower : these are his words , and how he hath mangled , and falsely rendred and expounded the record , you will judge by the words of the record it self , which i will here faithfully set down . it is this , numb . . memorand . quod . die februarii anno praesenti de advisamento dominorum temporalium ac ad supplicationem communitatis regni angliae in praesenti parliamento existentiam redditum fuit quoddam iudicium versus iohan. de mortimer , de bishops . natfield in comitatu nertford chevalier , cujus quidem iudicii recordum patet in schedula per iohannem hals unum iusticiariorum domini regis de banco edita & praesenti rotulo consuta : memor . that the th of february of this present year , by the advice of the lords temporal , and at the petition of the commons in this present parliament , a certain judgement was given upon sir john mortimer of bishops-hatfield , in the county of hertford , knight ; the record of which judgement appears in a schedule drawn by john hals , one of the justices of the kings-bench , and fastened to this roll. then follows the schedule it self , where is set down what past at guild-hall upon the sinding of the indictment , and how that indictment was brought into the parliament , coram duce bedfordiae ac aliis dominis temporalibus ; before the duke of bedford , and the other lords temporal ; and how sir john mortimer was brought before them by the lieutenant of the tower , and how the commons desired the indictment might be affirmed , and that judgement might be given upon him : then follows , super hoc viso & plenius intellecto indictamento , per dictum ducem de advisamento dictorum dominorum temporalium ac ad requisitionem totius communitatis authoritate istius parliamenti ordinatum est & statutum quod indictamentum affirmetur , & praedictus iohannes mortimer de proditionibus praedictis sit convictus , ad turrim ducatur , usque ad furcas de tyburn trahatur , & super eas suspendatur , &c. hereupon the indictment being viewed and well understood , it was by the foresaid duke , by the advice of the said lords temporal , and at the request of all the commons , ordained and decreed that the indictment should be affirmed , and the foresaid john mortimer stand convicted of his foresaid treasons , should be carried to the tower , then drawn to the gallows at tyburn , and there hanged , &c. this was a judgement of the house of peers in their judicial capacity , upon an impeachment , and at the pursuit of the house of commons , who prosecuted and pressed the evidence before the lords ; the words of the record are , tota communitas praefatum indictamentum illud in omnibus fuxta vim formam & effectum efusoem pro vero & fideli indictamento affirmat , ac praefatis duci ac aliis dominis temporalibus supplicat eadem communitas quatenus iidem dux & domini indictamentum praedictum pro vero & fideli indictamento affirmare vellent , & quod executio dicti iohannis mortimer ut de proditionibus & feloniis convicti fiat ; the whole house of commons do affirm the foresaid indictment to be in all points for the force , form and effect thereof , a true and legal indictment , and that execution of the said john mortimer , as of one convicted of the said treasons and felonies may follow . this you see was a formal tryal in all points , and a judgement upon it , and so it is entred upon the roll , such a day , februarii de advisamento dominorum temporalium ad supplicationem communitatis redditum fuit quoddam iudicium versus iohannem de mortimer , &c. and our asserter here tells us a tale of a tub , that the matter should be decreed after by authority of parliament , of which the bishops are an essential part , and therefore were present , which is an excellent chimae●…a , as if the advisamentum dominorum temporalium , & authoritas parliamenti , were two distinct things , and the work of several persons , some actors in the one who were not so in the other , and that the advice of the lords temporal had produced some other things which had a greater authority , and that the bishops had joyned in that , which shews his ignorance in the course of parliaments , for the judgement which is given judicially in the house of lords hath upon it the stamp and the authority of the whole parliament , and that advisamentum of the lords temporal here , was the judgement , as is the advice and assent of the lords spiritual and temporal , and of the commons in parliament in the passing of an act of parliament , for when a thing is said to be enacted , by the king , with the advice and assent of the two houses , that advice and assent of the two houses is their passing and enacting of it , as to their part in it : for any thing that is done in either house , if the king be mentioned in it , is said still to be done by him with the advice and consent of that house , so in a judgement judicially given by the house of peers ( where anciently the king was often present , when they acted judicially ) it is said to be given by the king , by the advice of his lords , and here the duke of gloucester represented the kings person , and held the parliament by special commission ; so the judgement is said to be given by him , by the advice of the lords temporal . and so the lords h . . when the king of himself gave the judgement upon the duke of suffolk , the lords protested against it , because it proceeded not by their advice and counsel : for that is it which gives the form and being to the judgement , and stamps upon it the authority of the parliament . then he comes to a precedent without debate , as he calls it , which is that of h . . the duke of suffolk's case , and confessed so by me , as he saith , but not truly . for i do not allow it to be a just and legal precedent . i do acknowledge that the bishops were present all along the whole transaction of that business , but as i said in my first letter to you , so i must and do say in this , there was in it from the beginning to the end nothing regular , nor according to the usage and practice of parliaments : then it cannot be said to be a precedent , no more than a monster , that hath no shape nor limb of a true child , can be said to be a child . as for the particular deformities of this monster ( for so i may term it ) they are already so fully deciphered in my former letter , as i will not now trouble you with them again : so it shall pass at this time as he will have it , for a precedent without debate , for it shall not be any further debated . only i must say still , it is but a single precedent , and of what force that is , or can be , when the constant course and practice of parliaments hath been to the contrary , i leave it to you to judge : one single precedent against all other parliaments , is an unequal match one would think . i have heard of a great conquering prince , that gave it for his , motto , souls contra omnes , but i have not heard it said so of a parliament , solum contra omnia . the authority of any one parliament i know to be very great , yet it is a known maxime in the law , parliament poit errer , a parliament may err ; and another parliament may mend what one doth amiss ; parliament-men are men , and may , and do sometimes mistake as well as other men ; it is possible they did so , h . . and more than probable they did so , because no other parliament before nor since , did ever do the like . and for his recapitulation of all the fore-mentioned records , in all twenty seven , which he makes to prove that this was not a single precedent , as i affirm it to be , all the rest ( as he saith ) concurring with it , to admit bishops to be judges in capital cases , i will only say , sit liber iudex , resort to the records themselves , and to what is already said in my former letter and this , and then judge if he saith true . then he hath a fling at me for what i say upon the case of nicholas de segrave , e. . where he must give me leave to say with truth , what he saith falsly of me upon several occasions , which is this , that he hath not set down things faithfully and ingenuously . he saith segrave came into full parliament into the presence of the king , the arch-bishop of canterbury , and several bishops , earls and barons , acknowledged his offence , and submitted to the kings pleasure : upon this he observes , that here was no iudicatory of parliament ; and then adds , that the king pardoned him , de advisamento comitum , baronum , magnatum , & aliorum : by the advice of the earls , barons , nobles , and others . you shall see now how faithful and ingenuous a dealer our asserter is , but certainly he takes all upon trust , and takes not the pains to see any thing himself . first , i do acknowledge it was no formal tryal , for there was no impeachment nor indictment against him , but i must say it was tantamount , for he comes in upon summons into the parliament then sitting , where the prelates were among the rest of the members of the house , and how long they continued there , it appears not by the record , but he being come , nicholas de warwick , the kings councel , charged him , and pressed matters against him . and then the king , as the record saith , willing to have the advice of the earls , barons , nobles , and others of his counsel , enjoyned them upon the homage , fidelity and allegiance which they owed him , to give him faithful counsel , what punishment was fit to be inflicted upon such a fact so confessed : who all of them upon a serious debate , and advising upon the matter , and well weighing all the particulars of it , and what was by the said nicholas plainly and expressly acknowledged , do say , that such a man deserved to lose his life . but afterwards the record saith , dominus rer tamen de gratia sua speciali pietate motus , malens vitam quam mortem eorum , qui se voluntati suae submittunt , remittit eidem nicholao iudicium vitae & membrorum . but the king moved by his special grace and piety , desiring rather the life than the death of those that submit to his will , did remit unto the said nicholas the judgement of loss of life or member . here you see the king advised not with his prelates , but with the earls , barons , and other nobles , and what did they advise ? not to pardon him , as our asserter will have it , but they say he deserved death , and then the king of himself would not have it go to that extremity . now whether this judgement would have been final , if they had pronounced sentence , and adjudged him to death , as they only said such a man deserved death , or whether this was only to be preparatory to a tryal , and to proceed afterwards upon a formal impeachment ; i confess it is not clear to me , nor is it greatly material to our purpose , only it shews the bishops were to give no advice in it one way or other ; and it is rather stronger to prove they are not to meddle in such matters , if it was but preparatory : for it shews that in those capital cases they must have nothing to do with them to determine and judge any thing concerning them , from one end to the other , ab ovo usque ad mala , as the saying is , neither in the judgement it self , nor any thing leading to it . so he comes to the arch-bishop becket's case , where he notably spends his mouth , but like an ill hound , all upon false hunting , and indeed runs riot so far , as he is not to be lashed in : he fills several leaves of his book with encomium's of the popish clergy , because some of them sometimes did what it was their duty to do , which doth not excuse them in the general current of their proceedings , commonly to stand for the authority of the pope , and the see of rome , against the regal power , and the authority of parliaments , as they did r. . saying , they were sworn to the pope , and to that see , and they would oppose whatever the king , and the temporal lords should do . en restriaion del poair apostoliqué ou derogagation de la libertoe de saina eglise ; in restraint of the power apostolick , or derogation of the liberty of holy church . so he takes much pains to assert the kings natural right to command his subjects to serve him upon any emergency , and so to make clergy-men justitiaries , if he see cause for it : which then gives them power of judicature , and i do acknowledge it , but it is to be understood of judicature in such cases as the law of the land allows ; we know they have been some of them lord chancellours , lord treasurers , lord privy seal ; but can he shew me , that any of them judged in cases of blood ? for this case of beckett's is certainly misrepresented in fitz-stephens manuscript . we know there have been heretofore in many counties , justices of assize , which have been clergy-men , joyned with others in commission , who were not clergy-men , to take assizes in the county : and the act of parliament , e. . c. . coming to give power to those justices of assize to deliver the gaols , and so to be made justices of gaol-delivery , and try felons and murtherers ; it provides , that if one of them be a clerk , then one of the most discreet knights of the shire shall be associated to him , that is a lay-man , and be empowered by the knights writ to deliver the gaols of the shires , and chasten and punish whom they shall find to be guilty . and this statute is confirmed , e. . c. . which makes it manifest what the intendment of the law is in that particular , that clerks must not meddle to judge in cases of blood , and must hold good even for bishops , who are all of them clerks . as for this case of beckets , which only stands upon the credit of a manuscript , said to be made by fitz-stephens , a monk , whom he characterizes for a sober and grave historian , and more solito , out of the sweetness of his nature gives me a lash , saying , it is usual with me to let fall expressions to vilifie testimonies and precedents when they make against me ; and this because i stile it a blind manuscript , and suspect the author as partial , having been a creature of beckets , and consequently no friend to the king. and therefore i give rather credit to the unanimous consent of the historians of those times , who do not relate the passages of that tryal to be as he makes them , than i do to him and his manuscript . i call it a blind manuscript , because it sees not the light , lyes obscure in some bodies closet , mr. selden doth not tell where , and i dare say our asserter never saw it , though he terms the author a grave historian . his tale is , how at that great council at northampton , archiepiscopus laesae majestatis coronae regiae arguitur , quia est a rege citatus pro causa iohannis , neque venerat , neque idonee se excusasset , &c. the arch-bishop is questioned for treason against the crown of the king , because he was summoned by the king in the cause of john ( that is one john the marshal , who complained that the arch-bishop had done him injustice in his court ) and he neither came , nor had sifficiently excused himself upon sickness , or any other just reason which might necessarily hinder him , whereupon he was condemned to forfeit his personal estate , and the bishops and barons not agreeing who should pronounce the sentence , they putting it off from one to another , at last the king commanded the bishop of winchester to do it . this is his story , and one may think it a strange piece of treason , one not to come immediately upon a summons to attend the king , especially if it be true what all the historians that write of those times have related of this business . gervasius dorobernensis is an author , as mr. selden observes , who lived in that age , and one of whom mr. selden , and all antiquaries ( we are sure ) have a good opinion : and though our asserter is confident enough to affirm they all have so of fitz-stephen , it is of what i do not find , that much hath been said by them to shew that , nor do i think that any of our antiquaries , but mr. selden , doth so much as mention him : and from gervasius dorobernensis , we have this relation , rex praecepit praesules & proceres regni apud northamptoniam una cum ipso archiepiscopo convenire , &c. the king commanded the prelates and nobles of the kingdome , together with the arch-bishop himself , to meet at northampton , where the arch-bishop was accused of many things ; first , that he had not fully done justice to one john that had a suit before him ; then that upon this occasion being called into the kings presence , he neglected to come . to this the arch-bishop made answer , that john had all the justice done him that was due to him , that he had illegally defamed his court , that he would not swear upon the evangelists , as the custome is , but upon an old song-book which he brought with him . but that being upon this summoned , he came not into the kings presence , was not upon any contempt , but that he was hindred by a great sickness , and that he had excused himself by two competent witnesses whom he had sent for that purpose ; yet this served not his turn , but curiali iudicio & episcoporum consensu condemnatus est ; he was condemned by the iudgement of the court , the bishops consenting to it , that all his personal estate should be at the kings disposing . this now is delivered unto us by an unquestionable known author , who lived in that time . fitz-stephen and he agree in the matter of the accusation , and agree in the judgement , but fitz-stephen lays it to be crimen laesae majestatis coronae regiae , high-treason , which must be for not coming to the king when he was summoned : gervasius saith , that he sent his excuse by two witnesses , who testified that he was then very sick , and not able to come , which we all know to be a lawful essoine , de malo lecti , which cannot be disallowed , but must excuse , nay , justifie any bodies absence . now can any body that is master of common sense , believe fitz-stephens relation , who will have this to be a capital crime , high treason , and a capital proceeding upon it ? we see the sentence was far from capital , and could not have been such as it was , if the crime had been laid in the accusation to be high treason . roger de hoveden in his relation of this business , makes no mention of treason , he saith , that the king calling a great council at northampton , taedium magnum fecit archiepiscopo , did a thing which much vexed the arch-bishop , which was , that he caused his horses to be put into the arch bishops inn , whereupon the arch-bishop sent the king word , that he would not come to the council till his inn was cleared of those horses ; yet upon the second day of the meeting , the arch bishop came into the chapel where the council sate , and there desired the kings leave , that he might go over into france to visit pope alexander who was then there , which the king denied him , and said he should first answer for the injustice he had done to john the marshal , in his court : this john having complained to the king , that he had had a long suit in the arch bishops court for some land he held of him , and could have no iustice , and that thereupon , curiam archiepiscopi sacramento falst ficaverat secundum consuetudinem regni : he had , according to the custome of the kingdom , upon oath charged the court with wrong doing ( which i take to be a protesting against the proceeding of that court , and the judgement there given , in the nature of a writ of error . ) the arch-bishop answered to this , that john had no injustice done him , and that he brought into the court a certain strange book , and would swear upon that ; how for want of iustice , he left my court , which the officers that kept my court , looked upon as an injury done to me , because it is the law of the kingdome , quod qui curiam alterius falsificare voluerit , oportet eum jurare super sacrosancta evangelia : whoever will so charge a court with false dealing , must take his oath upon the holy evangelists . notwithstanding this , the king swore he would have iustice done upon him . et barones curiae ; and the barons of the court gave iudgement on him to be at the kings mercy : which iudgement the arch-bishop going about to reverse , ( iudicium illud falsificare , is the expression ) he was perswaded by the barons to submit himself to the kings mercy for a fine of five hundred pounds . here is nothing in all this that can possibly infer any thing like treason . and it is something observable , what both these authors say of the judgement given ; gervasius saith , curiali iudicio & episcoporum consensu condemnatus est ; as if the part of the bishops in this judgement were something differing from the act of the court , and not comprized in it : hoveden saith , barones curiae regis judicaverunt eum ; as if the bishops had no hand in it at all . radulphus de diceto decanus londinensis , i suppose dean of pauls , who lived in those times , mentions this business , he saith , that the arch-bishop was questioned upon john the marshals complaint , and fined l. and that he was questioned likewise for moneys received by him , when he was chancellour , for some bishopricks and abbies , of which he had received the profits , during their vacancies , and that not finding the bishops to be his friends , he appealed from their judgement , but then the proceres , the nobles , though he appealed from their judgement likewise , yet they in eum nec confessum nec convictum , sententiam intorserunt : they wrested a iudgement against him , though he confessed nothing , nor was at all convicted . you see here is not a word of treason laid to his charge , nor nothing capital , or any thing towards it . matthew paris tells you the same story , and almost in the very same words . now let any man judge , whether all those historians concurring , or single fitz-stephen disagreeing , deserves more credit : and that which hath greatest weight with me , is the argument drawn ex natura rei , the crime which all agree that the arch-bishop was charged with , was his not appearing upon the kings summons , which without a great and a very false multiplying-glass , cannot appear to be any thing like treason : so i must conclude , that since the charge against him had nothing of capital in it , the proceedings upon it was not as against a capital offender , not brought to tryal as a prisoner , but came in upon a bare summons , and tarried there , and returned at full liberty , the judgement neither of loss of life nor limb , but meerly pecuniary , and , as some of the authors say , compounded with for five hundred pounds : i must i say , conclude , that this whole case is nothing to our purpose , and neither the law nor usage of parliament did bar the bishops from being personally present at such a tryal . and now i come to the point of peerage , which i have so fully handled in my former letter , as i think i need not say much in this . our asserter brings three arguments to prove them to be peers : the first is , that it is the general stile of all parliaments from the beginning , to be generale concilium cleri & populi , even before the coming in of the normans ; which no man denies . the businesses of the church , as well as of the civil state are there determined ; the writ of summons shews it , which saith , that the king intending to call a parliament , pro quibusdam arduis negotiis nos statum & defensionem regni angliae & ecclesiae anglicanae concernentibus . bishops and temporal lords are summoned , and heretofore several others were summoned as bannerets , and sometimes other persons of quality who likewise were not peers , and yet were called to the parliaments as pleased the king ; and the judges are so summoned at this day , super dictis negotiis tractaturi consilium suum impensuri . where the bishops act as bishops , and what by the law of the land , and the practice and usage of parliaments they ought to do , that they do , and may do ; the temporal lords in like manner , and so likewise the judges every one acts in his sphere ; but this neither gives the bishops power to judge in capital causes , if otherwise it be prohibited them , nor doth it make them peers , no more than it did formerly the bannerets , and others , for their being summoned to sit and vote in the house of peers : we had the experience of this the last parliament , a baron pretending to a much ancienter station among the peers , by proving that his ancestor had been summoned by one of our former kings , to sit more than once in the house of lords , yet not making it appear that that favour had been still continued to him ; and it being made appear on the other side , that several families in this kingdom would have the same pretence upon the like ground , it was the opinion of the house , that he had no right to it ; and consequently that his ancestor was never acknowledged to be a peer os the realm , and his blood enobled , which otherwise would have descended from him to his posterity , and to this present baron , who is since enobled by a later creation , but takes nothing from that ancestor . so then it is clear , that sitting in the house of peers , and having a parity of vote , and enjoying many of the same priviledges with the peers , doth not in true and proper speaking , make the bishops peers ; no more than r. . sir thomas percy sitting with the peers , and voting with them , as procurator for the bishops , was thereby a peer . his next argument is , that in several rolls of parliament they are expressly called peers , which cannot be denied , nor doth that make them peers , if the essential parts of peerage , be wanting to them : we know that denominations are many times taken up in a large and improper sense , for some circumstances , some similitudes , something which is extraneous unto them , yet wherein they agree with things of another nature : and so bishops having place and vote in the house of peers , and joyning with the peers of the realm , sitting in parliament , in all things , with equal power uno excepto , saving only in cases of blood , it is no wonder if they are often stiled peers of parliament . but the precedents he cites , are falsly recited both in the case of mautravers , and that of gomenitz and weston , as i have shewed before . his third argument is , that they have judged as peers , upon peers of parliament . but i deny that they judge there as peers , but as called to the parliament , to be members of the house of lords , as bannerets were formerly , and many principal gentlemen who were still commoners , and some officers , as the warden of the cinque-ports , who was no peer sometimes , and yet summoned up to the house of lords , and all these judged such peers as were tryed in those parliaments in which they sate . however , that bishops are not peers of the realm , and so consequently not properly and truly peers of parliament , though often called so , i think will be clearly made out . first , i must , as i have formerly done , insist upon the great charter , which sir edward cooke saith , is declaratory of the principal grounds of the fundamental laws of england , and which the statute made e. . confirmatio chartarum , will have to be observed as the common law , and all judgements given against it , to be undone and holden for nought , this law is certainly to be obeyed , and what is done in observance of this law , is most legal : and it enjoyning every man to be tryed by his peers , and bishops being tryed by a jury of commoners , commoners are their peers , and they are peers to commoners , and not peers of the realm : peers per eminentiam , as i may call them , or else magna charta is broken , and made a law of no authority . . to be a peer of the realm , their blood must be enobled , and their persons dignified ; nor can they otherwise be put into the same rank with those who are so , which would make but an ill accouplement , and they would never draw well together . now bishops do not sit in parliament ratione nobilitatis , but ratione officii , as stamford saith in his pleas of the crown , p. . en respect de lour possession se launcient baronies anneres a lour dignitées : in respect of their possessions , viz. the ancient baronies annexed to their dignities . . if they were peers , and their persons enobled , their wives would be noble , and have the priviledges of peeresses , being married or widows , for husband and wife are one person in law ; but we know they have no such priviledge , which shews their husbands to be no peers . . if bishops were peers of the realm , and any of them questioned for a capital crime in parliament time , they could be tryed and judged only by the house of peers , and by no other court of judicature . the lords could not avoid the trying of them themselves , indeed any but peers they may refuse , except it be upon an impeachment by the house of commons , for then they must retain it , and proceed in it , but not otherwise , except they see some great cause for it , pro bono publico , as it is r. . when the commons desired that no suit between party and party should be undertaken , and determined by the lords , or the officers of the council , but that the common law might have its course , except it be in such a business , and against so great a person as one cannot else hope to have right done in it : the same is confirmed h. . which i alledge to justifie the judicature of the house of lords , upon those who are not their peers , upon special occasion : but for trying of their peers is a duty incumbent upon them , which they must perform ; and any peer who is questioned , may challenge it as his right , and it cannot be denied him . and therefore e. . when they had , upon the kings earnest pressing them , tryed and condemned sir simon de bereford , sir iohn mautravers , and other commoners , they make a protestation , that they nor their successors , ne seroient mes tenus ne charges a rendre iugements sur autres , que sur lur piers : should not be bound nor charged to give iudgement upon any but their peers . but we know that they have sometimes turned off bishops to inferiour courts , as appears by the record of it in the exchequer , the same e. . stephen gravesend , bishop of london , was complained of in parliament , by one iohn de wymburne , for saying , that if edward the second was yet living , as he was informed he was in corf-castle , he would assist him with all his power , to re-establish him in his throne . sir edward cooke saith , that by order of parliament the matter was referred to be tryed in the kings-bench , but the record saith , that the parliament referred it to the kings council , and appointed him to appear before them at woodstock upon sunday fortnight after easter , and that they turned him over to the kings-bench to be tryed by the chief justice scroope , and his fellow judges . whereas had this bishop been then accounted a peer of the realm , he must have been tryed in parliament ; the parliament being once possessed of his cause , and they could not have referred him to any other judicature . so here you have four essential parts of peerage all of them wanting in bishops , and the want but of one essential part is enough to destroy the whole . he can be no peer of the realm who is at the kings sute capitally tryed by a jury of commoners , if magna charta be good law , which is our all as we are free-men . secondly , he who is not himself enobled , cannot be a peer in equal rank to one that is : for all peers are equally peers , as we may say , peerage doth not recipere magis & minus . the meanest baron is as much a peer as the greatest duke , else they were not peers , it would be contradictio in adjecto , an imparity in a parity . thirdly , if the husband be enobled , the wife must be so ; but the wife of a bishop is not enobled , therefore the person of her husband is not , for the wife and the husband are one . fourthly , if a bishop were a peer , he could in parliament time be tryed no where but in the house of peers , but matter of fact we find to be otherwise . therefore , i think , i may safely conclude that bishops are no peers . but before i leave this point , i must answer one thing which is said , they say , they hold by baronage , and therefore they are barons , as fitz stephen makes the bishops in their altercation with the temporal lords about the pronunciation of the sentence against the arch-bishop , saying , non sedemus hic episcopi , sed barones : nos barones , & vos barones , pares hic sumus : we sit not here in parliament as bishops , but as barons ; we are barons , and you are barons : here we are peers . fitz-stephen's authority signifies nothing to me ; but this i know is said , and believed by many , therefore it must be answered , to disabuse many , who may think , that holding by barony creates a baron , which it doth no more , than holding by knights service , makes a man a knight , or holding by villanage makes a man a villain , which many do to this day , even but here at east-barnet , and yet are good free-men and no villains , for it works not upon the person , as fleta saith , l. . c. . the service they do , is ratione tenementi non personae . so the bishops holding per baronagium , are thereby made subject to do the service of barons , and to obey the kings , writ of summons to attend the parliament , which makes them lords of parliament ; but affects not their person . the bishop of the isle of man is a bishop as well as any of the rest , first instituted by pope gregory the fourth , as sir edward cooke saith ; but not holding by baronage , hath no place nor vote in parliament . we must know that this tenure by baronage was first created by william the first , of all the lands which held of the crown in capite , consisting of so many knights fees , these lands were divided , some to lay-men , some to ecclesiastical persons : and these were all bound to certain services , though not all to the same , and among others , all to attend in parliament , whenever the king pleased to summon them , and so became lords of parliament . this continued so till king iohn's time , when the number of the temporal lords growing so great and numerous , that king made some alteration , which certainly was setled and confirmed by parliament , but justly the time when this was done is not known , the record of it being lost . the alteration was , that none of the temporal lords should come to parliament but such as received the kings writ , a particular summons for it . these were called barones majores ; those who were not so summoned , and so did not come to parliament were stiled barones minores , and were still feodal barons as before , and held their lands per baronagium , but were not lords of parliament . therefore it was not barely holding by barony , which made the person a baron even in those times , there was an act of the kings requisite even in the summoning of him to parliament , to make that honour to affect and enoble the person , and so to fix it , and make it hereditary in the family ; which way of dignifying a person continued till the eleventh year of richard the second , when iohn de beauchamp , steward of the houshold , was first created by patent , baron of kiderminster , since which time it hath still been practised to make them all barons by patent . but the bishops have still continued upon the first institution of being by their tenures obliged , and accordingly summoned to attend in parliament , which made them lords of parliament , but not peers of the realm . and now i come to his last point making them a third estate , for which he cites the bill presented to richard the third in his first parliament where they are made so , and to this i can oppose other passages in parliament clean contrary , as that h. . where the temporal lords and they together , are made to be one of the three estates , and other instances may be given of the same nature : but let us a little consider how that bill was framed , r. . it was first devised by certain lords spiritual and temporal , and other nobles , and notable personages of the commons , a party picked out and chosen for that purpose , who presented it in the behalf , and in the name of the three estates of this realm of england ; and what was this to do , to declare edward the fourth to have lived in adultery with dame elizabeth gray , whom he had married , being precontracted to dame ellianor bottiler , daughter to the earl of shrewsbury , and consequently all his children , bastards , edward the fifth a bastard , and elizabeth his sister , a bastard , afterwards married to henry the seventh , which entituled him and his posterity to the crown , set an end to all the foregoing competitions , and setled it as it is at this day , this bill , as the record saith , was first presented and delivered to their soveraign lord the king , that was to r. . whom they made so in the name and on the behalf of the said three estates , out of parliament , and now by the said three estates assembled in parliament , ratified and confirmed . and truly , i must say , this is not an authority to be bragged of , for making the bishops a third estate . but then let us see if the bishops sitting in the house of lords , have the necessary and essential qualifications of being a third estate in parliament , without which they cannot be a third estate there : that the clergy is one of the three estates of the realm , and they the principal and chief of them , no body denies : and that they are summoned to parliament as a third estate of the realm , the dignified clergy personally , others of the inferiour sort by their procurators and representatives , is likewise confessed ; but not to have any part in making of laws for the good government of the kingdom , no not so much as in matters meerly concerning the church ; but they may offer and propose and be consulted with , but whatever they agree upon must come to the two houses of parliament , and receive the stamp of their authority , before it can be presented to the king to become a law , and be binding to the people : this is the work of the convocation which meets at the same time with the parliament , and there is convened the third estate of the realm ; where the bishops make the upper house . and there sit as bishops according to their spirituality . but their summons gives them another capacity , which is to meet in the house of lords , and there cum caeteris praelatis , magnatibus & proceribus regni de arduis negotiis statum regni & ecclesiae specialiter tangentibus tractare & consilium impendere ; and thither they are obliged to come and attend by their tenure of their baronies , where they sit in their personal capacity , to do the service which they owe for the lands they hold of the king. now we will consider , if being there upon such an account , it can any ways stand with reason , and the nature of a third estate , to esteem them to be so . . to represent the body of the lesser clergy , as our asserter will have them to do , who else , he saith , would be in a worse condition than the meanest clown , having no body to represent them in giving aids and subsidies ; first , i say , that as subsidies were heretofore given in parliament , which was the ancient parliamentary way of supplying the necessities of the crown and government , where the convocation gave the supply of the clergy , the bishops as members of the house of lords , had nothing to do in it , but as members of the convocation they had , and the representatives of the lesser clergy , who were chosen by them , and made up the lower house of the convocation ; they gave their consents , and joyned in that gift for the whole body of the clergy ; the two houses of parliament did only ratifie and confirm what the convocation had done , and therefore only the beginning and the end of that act of subsidy given by the clergy , not the body of it , was openly read in the several houses of the lords and commons . so r. . the commons having offered to give an aid , so as the clergy , who enjoyed a third part of the realm , would pay one third part of the summ ; the clergy answered , that they were not to grant any aid by parliament , but of their own free wills , and therefore willed the commons to do their duties , and they would do theirs . this was the ancient way of granting supplies in parliament , where you see the lesser clergy had their representatives , which it seems our asserter did not understand , and so no wonder if he did mistake , as he commonly doth . and this i must say further , the lesser clergy , as he calls them , are little beholding to him , to have them to be represented by bishops , having no hand in the choice of them : this i am sure , puts them into a meaner condition than the meanest clown , who if he have but s. free-hold , gives his voice to whom he will to represent him in parliament , to give his assent to part with his money , and to make any law to bind him . of later times they have taken up another way of granting publick supplies , which is of so much in the pound , which they call a pound-rate , and this brings in the clergy to pay their proportion , who are now as busie as any in electing of members to parliament . in a word , none can represent another in parliament , that is not chosen by him ; every particular person that hath right of vote , being included in the majority of vote : so the whole clergy , being the third estate of the realm , and the bishops not being chosen by them , they cannot represent that third estate . . the bishops sit not in the house of lords ratione spiritualitatis , as was the opinion of all the judges of england , h. . in keilway's reports , in dr. standish's case . les spiritual seignieurs nont ascun place en ●…e parlament chamber per reason de lour spiritualtie mes solement per reason de lour temporal possessions : the lords spiritual have no place in the parliament chamber by reason of their spiritualty , but by reason of their temporal possessions . how then can they be said to be there a third estate , to represent the clergy of england , when they sit not there as clergy-men ? . if they be a third estate , they must have a negative voice to whatever is proposed in the house , if the majority of their opinions be against it . and for our asserter to say , that the custome , and so the law of the parliament is otherwise , and that the two estates of the lords temporal and spiritual make but one house , where they vote intermixedly . why , this shews they are not two estates , because they do vote intermixedly , for if they were so , they must vote severally , and not be twisted so together as they are , as i said before in my former letter , like a nest of boxes one within another . and think what a disparagement it would be to the house of lords , that two estates must be clapped together , to make them equal to the one estate of the house of commons . . if the bishops were a third estate , the parliament could not act as a parliament without them , for a parliament is composed , and must consist of three estates , and nothing is binding but what is so passed . but we know that in edward the first 's time , there was a parliament called and held clero excluso , and laws were there made , when none of them were present , and many acts have passed in several parliaments , when the bishops have all voted against them . the judges in that of h. . deliver their opinions for law : due nostre sur le roy poit assetz bien tener son parlement per luy , & ses temporal seigniors & per ses commons , tout sans les spirituals seigniors : our lord the king can hold his parliament himself with his temporal lords , and his commons , wholly without the lords spiritual . these , and many other reasons , confirm me in my opinion , that bishops are neither peers of the realm , nor a third estate in parliament , yet they might be both , and not invalidate my position , which i at first undertook to prove , which was only this , that by the practice and custome of parliament , and by the law of the land , bishops are prohibited from meddling in parliament as members of the house of lords in any tryal of a criminal person , where the charge , the proceedings , and the sentence upon it is capital , and goes to the loss of life or members , only one precedent excepted , that extravagant one of h. . and my good friend the asserter who hath almost as many errata's as lines in his book , must give me leave to summ up all my corrections of them in one distich , as martiall did those of his friend fidentinus ; such another fidentinus , it seems , as our asserter ; and it was this , emendare tuos o fidentine libellos multae non possunt , una litura potest . and i must say the verse doth not better quadrare with the product of his brains , which hath so many faults as can only be covered and put out of sight with one rasure from the beginning to the end , than this one and the same name of fidentinus deciphers the confidence of them both , nullâ pallescere culpâ . and so i shall leave my friend fidentinus to learn better manners , if he be not altogether incorrigible ; and apply my self to peruse and answer ( if i can ) a treatise of a worthy gentleman , who is , i see , of a differing opinion from me , and hath much more of reason , and something , though not much more of civility and fairness in the maintaining of it , so as whether or no his reasons will convince me , i know not ; but if they do , i will certainly grant it , for my maxime is still , amicus plato , amicus socrates , sed magis amica veritas . the writer of this treatise , intituled , the grand question concerning the bishops right to vote in parliament in cases capital , stated and argued ; doth state the question right , that is , whether the bishops may be present and vote judicially in capital cases which come to be judged in parliament , either in giving the judgement it self , or in resolving and determining any circumstance preparatory , and leading to that judgement . then he sets down some things granted on both sides , as . that bishops do sit in parliament by vertue of their baronies , and are bound to serve the king there . from this he infers they have a right of judicature , which is not denied ; but the question is , as he saith himself , what this judicature is . that they sit by the same kind of writ , that other barons do . upon which he would infer , that they are impowered and required to confer and treat of all the weighty affairs that shall be brought before them , the king having not limited nor restrained the one more than the other . but it follows not , because all are called together by the same authority , that therefore the same duty is incumbent upon all , if there be a higher power that directs what every ones duty is to do , when they are come together . now the king acts in a higher sphere by the law of the land , and the law and practice of parliament which prohibits bishops from meddling with judging of capital causes in parliament , nor did they ever do it , but in one extravagant proceeding in h. . where nothing was regular nor parliamentary from the beginning to the end , which i look upon as altogether insignificant to alter what is so setled by law and constant custome , therefore the kings writ of summons cannot dispence with that , to make that lawful , which in it self is unlawful ; as i have sufficiently proved it . and i will now go a little further in it , than i did before , for hitherto i have only insisted upon the law of parliaments , as a thing setled in parliament by the constituons of clarendon in henry the second's time , and the protestation of the bishops enrolled in parliament by the king , lords and commons , r. . but now i will deliver my opinion ( which i submit to better judgements ) that they lye still under a restraint by the canon law , which by the statute h. . c. . which ( was repealed and phil. and mar. but revived eliz. ) is still of force , where it is not repugnant to the laws of the realm , which we are sure this branch of it , restraining bishops from judging capitally is not ; so far from it , that it is confirmed and strengthened by the law of the land. . the third particular in which he saith all agree , is , that they have their votes in bills of attainder , acting in their legislative capacity , which is as much a case of blood as the other , and perhaps as much forbidden by the canon . but i desire this worthy person to consider , that the practice of parliament is the law of parliament , and is the commanding law for regulating the proceedings of parliament , and that hath over-ruled this point , that in the making of a law , every free-man of the kingdom doth give his consent , either explicitly if he be a member of either house , or implicitly by his representative , for every free-man of the kingdome is there present , or represented . and it is the fundamental constitution of our english freedome , that no man can be bound by any law , but what himself hath consented to ; now a bill of attainder is as much a law as any statute law of the kingdom . therefore bishops have acted in a legislative capacity to judge and condemn capitally , as several precedents we have of it in henry the eight's time , but not in a judicial capacity . and to say the canon law prohibits one as much as the other , the statute of h. . clears that point , which takes away the force of the canon in the one , not to abridge members of parliament from voting in the legislative way , and strengthens it in the other , forbidding bishops to vote judicially in cases of blood. yet if you will have me deliver you freely my opinion in it , i think it is an abuse crept in since henry the eight's time , for before none were judged by bill , but such as had been slain in open war , or tryed , condemned and executed by commission , and then the proceedings brought into parliament , and there approved of , and the attainder confirmed , but under henry the eighth several persons were condemned by bill , and the earl of strafford lately in our memories , which seems now to be authorized by the practice of parliament . sir edw. cooke tells a story which he had from sir thomas gaudy , one of the judges of the kings-bench , how the king had commanded cromwel , and the earl of essex , to attend the justices , and know of them , if a man who was forth coming should be condemned by act of parliament , without being heard ; who after some fencing , answered if it were so , it could not be afterwards called into question ; and cromwel himself was not long after so served ; but this is by the way . multa quae fieri non debent , facta valent . i have been a little the longer in these particulars , because it will much smooth our way in the following discourse . and this worthy gentleman must give me leave to say , that he needed not have put himself to all that trouble of his first chapter , in telling us of the mighty power the clergy had in the primitive times in the ordering of secular affairs , which certainly was more by way of counsel , than any thing of authority by way of judgement , and in a judicial way . and he will avow to me , i doubt not , that the ministery of the word was a full employment for the apostles , and so for bishops , who call themselves their successors , as well as serving of tables , and other ministerial duties was a full employment for those whom he calls the treasurers of the church ; and therefore they said it for themselves , and left it as a rule for their successors , even to bishops , and all other dispencers of the word and sacraments , that it was not reason they should leave the word of god , and serve tables . which it seems was a non est consonum , by the law of god , just as by the common law of the kingdom , a writ was provided , declaring it to be likewise a non est consonum , and to be contra morem & consuetudinem regni , that clergy-men should be employed in secular affairs . this indeed i hinted at then , as i gave also some little touch at the government of the church by the imperial law , but not that i put any stress upon it , but meerly to circumscribe the question , and keeping it within limits , by a negative , declaring what it was not , and an affirmative , expressing what it was , how bishops in parliament could not judicially act in capital cases . therefore were it all so as this learned gentleman seems to infer , that in france , spain , germany , and those northern kingdoms which he mentions , that bishops were joyned with the civil magistrates in ordering the publick affairs of those nations , and that they had a share not only in the legislative , but in the judiciary part , as he alledgeth two authors to prove it to have been in france , it would not be of any signification to decide our controversie , for what is this to us to regulate our parliaments , and to operate on our laws ? but first for matter of fact , as to france , to which i can speak a little , having spent many years in that kingdom , and i have , by way of discourse , informed my self from the ambassadour who is here from that crown , who doth assure me , that the judges ( whom they call counsellors , and not judges , as we do ) who are clergy-men , as many there are joyned with the others of the laity , never sit in that chamber of parliament , which trys capital causes , which they call the tournelle . i believe the same may be observed in those other countries which our author mentions , and i do not see how it could be otherwise , the severity of the canon law being so strict in the prohibition of it . but as i said before , the primitive christians had that veneration for the clergy , and especially for the bishops , that they were still joyned with the civil magistrate , in ordering the affairs both in church and state. the matters of the church , they determined judicially , in secular affairs , whether criminal or other , only by way of counsel , if the civil magistrate to whose province they belonged , did not do his part . i am sure it was so in england . brompton in his chronicle , recites the laws of king athelstane in this particular : i cited his very words in the original in my former letter , i shall now repeat them very faithfully in english. he saith , it appertains of right to a bishop to promote that which is right , both concerning god and the world. a little after he addeth , he ought likewise diligently , together with the secular judges , to promote peace and concord . and soon upon it , he hath this passage , the bishop ought to be present in judgement with the secular judges , not to suffer any buds of wickedness to sprout , if he can hinder it . his presence and his counsel was rather a check upon the judge , than to determine any thing in secular affairs . sir henry spelman is a little more particular in delivering unto us the nature of that mixt court , it is in his glossary upon the word comes . the earl , he saith , did preside in that county court , not alone , but joyned with the bishop ; he to deliver what was gods law , the other what was mans law , and that the one should help and counsel the other : especially the bishop to do it to the earl , for it was lawful for him sometimes to reprove the other , and to reduce him , bring him into order if he went astray . then he tells us what the work of that court was , that it had cognizance but of petty matters , that the earl had not cognizance of great mens businesses , for such matters are to be brought into the kings courts , he only judges poor mens causes . hence it is , that by our law , actions for debts and trespasscs are not to be commenced in the county court , if it be for above the value of s . it seems that in ancient times it was but one court , but each judge had his proper work , the ecclesiastical judge to distribute and deliver to them what was gods law , the secular judge , mans law. and so it continued till william the first 's time , who first separated the two courts , as appears by his charter to bishop remigius , which mr. selden relates in his comment upon eadmerus , p. . which he saith the king did communi concilio archiepiscoporum suorum & raeterorum episcoporum , & abbatum , & omnium principum regni sui : in a common council , by the advice of his arch bishops , and the rest of the bishops and abbots , and all the great men of the kingdom : the words are , wherefore i command you , and enjoyn you by my royal authority , that no bishop nor arch deacon presume to hold plea in the hundred court any more upon the episcopal laws , nor bring any cause that pertains to the rule of souls before the judgement of secular persons , but that whoever is questioned according to the episcopal laws for any misdemeanour or fault , shall come to that place which the bishop shall chuse and nominate for that purpose , and there shall make answer for himself , and not in the hundred court , but shall , according to the canons , and the episcopal laws , do that which is just and right both to god and to his bishop . this was again confirmed r. . and so the courts came to be divided , as they continue to this day . but nothing can be concluded out of that large enumeration , of the bishops being admitted in those ancient times to publick councils , which was more for their advice , and counsel and direction , than to act any thing at all authoritatively and juridically , and least of all to have any vote to determine any thing in cases of blood , which the canon law made a noli me tangere to them : i deny not , but before there were christian magistrates , even in the apostles times , the ministers of the gospel did many times interpose and reconcile differences and sutes , which many times happened amongst believers ; as st. paul saith , is there not a wise man among you , no not one that shall be able to judge between his brethren ? nor doth he exclude the bishops , that they may not come in as one of those wise men : yet cor. . . he seems to exclude them : for he saith , if then ye have judgement of things pertaining to this life , set them to judge who are least esteemed in the church . which doth seem to intimate , as if he meant not the bishops , for sure they are not least esteemed . but doth any man think , that they were by this authorized to compel men to submit to their judgement , to punish or imprison , or lay any corporal punishment upon them , if they would not ? indeed i cannot think so . nor do i find that st. augustine was of that opinion , the term he gives to those whom the author of that treatise will have to be ecclesiastical judges , doth not imply so much , rather the contrary methinks : he calls them cognitores , which denotes rather one that took notice of such differences , and would endeavour to compose them , than a judge to determine them , which hath made me examine that passage more particularly . in his comment upon the psalm he saith , speaking of those who interrupted them in their enquiry into the duty which they owed to the commandments of god , non solum cum persequuntur , aut litigare nobiscum volunt , verum etiam cum obsequuntur & honorant , & tamen cum suis vitiosis & negotiosis cupiditatibùs adiuvandis ut occupemur , & eis nostra tempore impendamus , efflagitant , aut certè infirmos premunt , ut causas suas ad nos deferre compellant , quibus dicere non audemus , dic homo , quis me constituit iudicem aut divisorem inter vos ? constituit enim talibus causis ecclesiasticos apostolus cognitores , in foro prohibens jurgare christianos . here is nothing of coercion in all this , they acted not as judges , nay , he complains that the clergy-men themselves were persecuted , and compelled to go to law ; or if they seemed to shew them some respect , and would be ruled by them , and drew them from their occupations to compose things between them , they would not drive them away , and say , who made me a judge between you ? for the apostle who forbids christians going to law , makes the clergy to be cognitores , referees or umpires between which is the greatest act of charity that can be , and most befitting the calling of the ministers of gods word . but what saith st. austin a little after , good men he saith will hearken to us , and seldome trouble us with their secular affairs , but others , qui inter se pertinaciter agunt , & quando bonos premunt , nostra iudicata contemnunt , faciunt que nobis perire tempora rebus eroganda divinis : good men will hearken to him , he saith , but those who are perverse do iudicata contemnere , despise his award of it ; which shews he took not upon him any authority of determining any thing . and so in his th epistle to proculianus the donatist , he hath this passage , et homines quidem causas suas seculares apud nos finire cupientes , quando eis necessarii fuerimus sic nos sanctos & dei servos appellant ut negotia terrae suae peragant , aliquando agamus & negotium salutis nostrae , & salutis ipsorum : non de auro , non de argento , non de fundis & pecoribus , pro quibus rebus quotidie submisso capite salutamur , ut dissentiones hominum terminemus , &c. nothing plainer than that all this is purely out of good will a work of charity to those who desire him to determine their secular differences , in which the clergy then had meerly an eye upon gods glory , the good of their own souls , and of the souls of those for whom they took that pains . but all this is nihil ad rem , let the clergy have right or no right to judge of secular causes , it will not decide our controversie , whether bishops in parliament can meddle in cases of blood : hic rodus , hic saltus , if we do all extravagate , i must come back to this . his next chapter will be more to the purpose , it is concerning the constitutions of clarendon , and the protestation of the bishops r. . these two particulars well cleared , and no disguise put upon them , will go a great way : he begins with the constitutions of clarendon , which he conceives to be that bishops are thereby required to be present in the kings courts , as other barons are , till they come to give sentence as to dismembring , or loss of life , and his method is to judge of them by these three ways : . the occasion . . the plain sense of the words , according to their true reading . . by the subsequent practice upon this constitution in the parliament at northampton soon after . . for the occasion , this author is pleased to say , he can hardly believe i should betray so much unskilfulness in the affairs of those times , as to say , that the bishops did then affect such a power of judicature in secular causes , and i think i have good warrant to be of that opinion . petrus blesensis , whom this author cites , as living in henry the second's time , and knowing the whole proceedings of those constitutions , complains of it sufficiently . in the first and genuine edition of them , printed at mentz in quarto , published by busaeus the jesuite in , in his treatise de institutione episcopi , p. . he hath this passage , illud coelestem exasperat iram & plerisque discrimen damnationis accumulat , quod quidam principes sacerdotum & seniores populi licet non dictent iudicia sanguinis , eadem tamen tractent disputando & disceptando de illis , seque ideo immunes à culpa reputant , quod mortis aut truncationis membrorum iudicium discernentes , à prounciatione duntaxat & executione poenalis sententiae se absentant . sed quid hac simulatione perniciosius est ? nunquid discutere & definire licitum est , quod pronunciare non licet ? this provokes gods wrath , and heaps up upon many a danger of damnation , that some of the prime of church-men , and elders of the people , though they do not dictate iudgements of blood , yet they debate them , and dispute of them , and therefore repute themselves free from fault , in regard they have withdrawn themselves from being present , at the pronouncing and giving order for the execution of the penal iudgement , though they had before agreed to the punishment of death , or loss of limbs . but what can be more pernicious than such dissembling ? can it be lawful to debate and to determine a thing , which it is unlawful to pronounce ? then he compares them to king saul , that had resolved upon the destruction of david , but would not that his hand should be upon him , but that he should fall by the hands of the philistines ; or to the scribes and pharisees , that cryed out against our saviour , crucifie him , crucifie him , but said it was not lawful for them to put any man to death . is not this as good as chaucer's fryer that this author quips me with , p. . ? i do not say that blesensis blamed all the bishops for evading the law in that manner , he saith they were quidam principes sacerdotum , some of the great bishops . but the author would have it to be the universal practice and opinion of all the bishops and clergy to understand the constitution of clarendon , that they might continue to sit in judgement till the sentence was to be pronounced ; and in the edition of blesensis , printed at paris in . instead of quidam it is printed quidem , but by a manifest error which carries no sense with it , and the marginal notes in both editions shew it , which is , abusus clericorum qui causas sanguinis discutiunt ; marking out the abuse of them that did so . this was obvious enough to the author in his quotation of blesensis , therefore he might have spared the censure of my unskilfulness in the affairs of these times , since i had such a leader to follow as blesensis ; and more have i cause to complain of his want of charity to me , p. . taxing me with representing those constitutions very unfairly , which is an expression of one engaged in a party , and not of one that only seeks for truth , but to shew his reading and learning , as i am afraid that author doth , who raiseth a great deal of dust meerly to blind mens eyes , and mis ▪ lead them into errours ; and thus he commends himself for speaking mildly , and much good may his mildness do him . it is apparent that the clergy were then very high , having gotten a great head by the favour they had found from the usurper king stephen , where on both sides they served one anothers turns , and henry the second , to bring things again into order , call'd that great counsel at clarendon , where , by the advice of the prelates and the nobility of the realm , a recapitulation was made of part of the ancient customs and priviledges under the former king , and particularly under his grand-father henry the first , which for the future he would have to be observed in the kingdom , and thus propter dissentiones & discordias saepe immergentes inter clerum & iusticiarios domini regis & magnatum regni . there were sixteen of those articles , the eleventh was , that they should hold their possessions of the king in capite , sicut barcniam ; and should be answerable to the king for their services ; and should as barons , interesse judiciis curiae regis , quousque perveniatur ad diminutionem membrorum , vel ad mortem . here we see the occasion of that meeting at clarendon , it was to remove all causes of difference between the great bishops and the civil magistrates ; let us now see what was most likely to displease them , it 's not probable it should be for being reduced to stand upon even ground with the rest of the nobility , and great men of the realm ; but if in any thing they are made less , and abridg'd of the powers which the others have , it stands most with reason they should be troubled at that ; and to be forc'd to walk out of the judgement-hall after they had cryed crucifige , is a great lessening of their figure , i think more than if they had not at all meddled in it . but this worthy author saith , i have made use of the most imperfect copy of matthew paris , and saith in the vatican copy , and several mss. it runs thus , debent interesse judiciis curiae regis cum baronibus , donec perveniatur in iudicio ad diminutionem membrorum vel ad mortem . now in my opinion , this makes more against the sense he would put upon these words , which is , that they may stay and have a hand in managing the debate upon the evidence , and agreeing upon the sentence , but must be gone when it is pronounced , ( which as i said before , i look upon as a greater scorn put upon them , as blesensis saith , quid hac simulatione perniciosius est , nunquid discutere & definire licitum , quod non licet pronunciare . ) for i should think that mentioning in iudicio in the second part should not have a different constructionthan iudiciis curiae in the first part . for there the judicia curiae which they may be present at , is to be understood of the whole proceeding , from the bringing in of the charge against a criminal person , to the pronouncing of the sentence : and can it be rationally thought that iudicium in the second place should be meant only of the sentence which is the principal part , and which the corruption of mans nature doth chiefly lead him unto . the poet saith , — — qui nolunt occidere quenquam , posse volunt — this power of killing and slaying , potestas iuvandi & nocendi , is a pleasing thing , and we are naturally angry with what abridgeth us of it . so i must conclude this point , that it 's most probable the bishops were most scandalized at this eleventh article . secondly , let us consider how to arrive at the true meaning of that constitution , which must be by comparing the passages of these times together , whereby we shall see how they understood it : yoyu have already heard what petrus blesensis judged of those who would retain that image of judicature , how much he blamed them , and what menaces of gods judgements he denounced against them , for the words of that constitution were not so clear and positive that it gave not ansam disputandi to those whose inclinations led them to turn it into another sense , and content themselves to play at small games rather than sit out altogether . so the wisdome of that time to make it yet more plain , and take away all ambiguity , moved the king to call another great council at westminster in the year . eleven years after , ad emendationem anglicanae ecclesiae ex assensu domini regis & primorum omnium regni ; where the third article is , his qui in sacris ordinibus constituti sunt iudicium sanguinis agitare non licet unde prohibemus ne aut per se membrorum truncationes faciant , aut inferendas judicent . quod siquis tale fecerit concessi ordinis privetur officio & loco , inhibemus etiam sub interminatione anathematis , ne quis sacerdos habeat vicecomitum aut praeposit●… secularis officium . it is not lawful for those who are in holy orders to act at all in judgements of blood , wherefore we forbid them to have any thing to do with taking off mens limbs , or to judge of any such thing . and if any do such a thing , he shall be deprived of the office and dignity of his orders : and we also forbid , under the pain of being anathematized , that no priest shall take upon him the office of a sheriff , or of a secular judge . this makes it out plain , what the sense of those times was ; that it was not lawful for them to act at all in cases of blood ; and this is as much the law of the land , as the constitutions of clarendon , or as any other statute law. but our author , p. . quarrels at this , as only standing upon roger hoveden's authority , and wishes he had produced the whole canon entire for it : here you have two of our ancient historians that liv'd in these times , and agree in terminis upon the relation of what there passed : but our author is not satisfied , tells us the council of toledo makes an &c. and leaves out the prohibition , which declares the meaning and extent of their canon : he will have this prohibition , and sanction of deprivation to attend only upon the latter part , that is , if they do joyn in pronouncing the sentence : but where doth he find that distinction allowed , it is what the clergy have framed and imagined to themselves to give them some power : admit we should allow them that , it makes it not the more lawful for them ; there is still a non licet , which is subject to punishment , and though the ecclesiastical law doth not go to that height to cut off a member , deprive him ab officio & beneficio , yet it may go less in a lower sentence , however the civil sanction may impose what punishment such a misdemeanour may deserve . caetera desiderantur . finis . considerations touching that question , whether the prelates have right to sit among the lords , and vote with them in parliament in capital cases , when the lords sit in their judicial way of proceeding upon the tryal of any of their peers ? in which it is asserted , that they have no right to sit and vote with them in such cases ; neither can it be made appear , they have ever practised the same . in answer to the reasons and records urged by the learned author of the grand question , &c. london , printed in the year . to the reader . this tractate which is now made publick , was written soon after the publication of that book intituled , the grand question concerning the bishops right to vote in parliament in cases capital , stated and argued , &c. it hath lain by the author many months , and should still have continued in the dark had not the unseasonable thrusting into the world of a book , called , an argument for the bishops right in judging in capital cases in parliament . for their right unalterable to that place in the government they now enjoy ( by one thomas hunt esq ) stirred up the pens of others , and the desire of friends , me among them , to assert , as i believe , the contrary truth . i assure the reader ; i did not at all guess the author of the grand question , when i took into my thoughts the consideration of his book . fame hath since put it upon a person of so great worth and learning in all sorts of literature , and for whom i have not only a particular honour my self , but the present and future times will look upon as one of the greatest champions of the english church against popish superstition and idolatry . i should difficultly have been engaged in this contest , did i not know the modesty and ingenuity of this learned person is so great , that he will not take it ill to have his reasons examined by a far less knowing pen , which shall be always ready to submit to better judgments . i have examined this author , chapter by chapter , have given answers to his reasons , and shewed the infirmity of those records he hath thought proper to urge for his opinion , and have given some other of my own , not taken notice of by him , i hope material to that end for which they are alleged : i was not willing to trust too much to abridgments ; nor had either the time or convenience to search the originals , and therefore had recourse for some to a very near relation of my own , who is well stored with that sort of treasure , and who never denied me the use of any thing in his well-furnish'd library i desired from him . truth is but one ; but men may vary in their apprehensions concerning it . as to others which i could not be supplied with from him , i must acknowledg my self deeply obliged to my much honoured , and very learned friend , mr. william petyt , of the inner temple , who was not only pleased to read over the ensuing treatise , but to give me the sight of a rich magazine of the transcripts of records which he hath fairly written by him , as also to give me the copies of some , necessary to my purpose , which i either had not , or not so fully as from him . the wrold hath already seen something of his , and may in due time expect more , in reply to the learned dr. brady , in whom i find various and useful learning , but ( if i may have leave to say so ) one misled in some measure by different notions of words , and interpretations of them , contrary to their known and common acceptation . some part of his book hath been already considered by the author of jani anglorum facies altera : but the intire answer to it we must expect from mr. petyt , who hath favoured me with the sight of a short specimen of a greater work to follow . i must not here forget my very deserving , and worthy friend mr. atwood of grays-inn , whose assistance i received in transcribing some records for me . he is a person whom god hath endowed with a good estate , and a large measure of knowledg , for the few years he hath hitherto spent in the world , and who ( i speak it to the shame of most of our young men ) spends his time in studies useful to himself and to the kingdom in which he lives . having already seen from his youthful labours so good effects , we may well expect from his more mature judgment things of greater advantage to the learned part of this nation . but let us now return to mr. hunt , a good protestant he appears to be in his postscript , which in these unconstant times deserves commendation ; and in his book , he shews himself a man of various reading and learning , with a competent knowledg in the tongues , but otherwise , if i much mistake not , a man of confused , and undigested notions , by which he forces things to serve his turn , contrary to their true meaning , from meer conjectures and surmises of his own , without any colour of demonstration . his whole book consists of three parts , argumentative , invective , or reproachful and extravagant , or conjectural . i cannot compare his argumentative part better than to a gleaning after a full vintage . there is nothing in it which had not been soreseen by the author of the grand question , and pressed by him with much more learning , subtilty , and closeness of arguing , or else wholly left out as unconclusive to the matter he had in hand ; of whom it may be said , what was once of hector in another case , si pergama dextra defendi possent , etiam & hâc defensa fuissent . what is by me said in answer to his arguments in this treatise , must be left to the judgment of such as shall read it . the second part is invective , reproachful , and unsavoury , in which i would advise no writer to follow his steps . soft words , and strong arguments , may convince a reader , whom railing language will but exasperate . i shall name some few of that sort , that he may not think i accuse him falsly . in his preface he blames the author of the grand question , for treating his adversaries too kindly who deserved sharper reflections then he hath given them . 't is plain by the th page of his book , that he knew the octavo gentleman , as he calls him , on whom he there ironically bestows the title of discrect gentleman , and instances in his talk against bishops , when he was young , which he could not leave when he was old . this person he charges with falshood , unrighteous dealing , imposing upon the people , self-condemnation , undue art , and such stuff , pag. . with a design to shut the bishops out of the house ; an extravagant surmise of his own , without any colour given by the author of the leter , pag. . want of candor , integrity , &c. pag. . iniquity , prevarication , petulancy , spight , inveterate displeasure , grinning , whetting his teeth , and squinting upon them with an evil eye , with much other such language throughout his book , which the reader may observe , if he pleases . he ought , with more reason , to have considered the age , the quality , the place , this octavo gentleman beld at court , the service he had done his country both at home and abroad , rather than to have loaden the ashes of a dead noble-man , with revilings railing language and reproaches , who was known to be a person of so great worth , and experience . the reader will pardon this warmth in me ; when i hear a person , now at rest , so slighted , who , had he been alive , this little gown-man durst not have approached without marks of reverence , and submission . but let us allow him to make up the shortness of his reasoning by the length of his railing . thirdly , his extravagancies are so numerous , that nigh every leaf hath somewhat or other of that nature , conjectures , and surmises , without any manner of proof , must pass for demonstrations . one while the bishops are spiritual barons , a title i never remember given to them ; nay , not so much as lords spiritual till the time of rich. ii. another time feudal barons , and that there was no other than feudal nobility : sometimes they are barones majores ; yet not enobled in blood , nor their honour conferred upon them by any actual ceremony , or otherwise esteemed than barons by tenure ; and that william the conqueror intended that as an honour , which themselves , and all other historians complain of as a burthen . that the bishops in parliament are a full third estate ; and yet we know acts are good when they are either excluded absent , or oppose the passing them ; and yet they never represented any but themselves . sometime he is troubled that the nomination of the bishops is in the king. these things cursorily observed by me , makes his whole book appear an indigested lump , fit to be lick'd over , if so it may be brought into any form . 't is not unlike a lottery , where after a hundred blanks , you may chance get a prize : but i shall leave a further examination of his crude notions to another hand , who may be more concerned to detect his errors than i am : however , i cannot omit the taking notice of his pompous title ; ●…tis indeed a titulus sesquipetulcus ; their right unalterable in that place in the government they now enjoy : which fancy is confirmed by a consequence of his own making , page , that the bishops cannot be detruded from that place they bear in the constitution of the government : for that no government can legally , or by any lawful power be changed , but must remain for ever once established , and it cannot be less then treason of state to attempt a change. no authority in the world is competent to make any alteration . how false this position is , he will find , if he consult the frequent change of governments since the creation , in the jewish , grecian , roman , nay , in our britannick state , with many others in all parts of the world. neither can i imagine this maxime can serve him to any other end , than to arraign those parliaments who have made laws without them , or that in car. . anno , which by act took away their seats in that house . and lastly , to accuse those as traitours to the state , if any hereafter shall attempt it . i am confident , no parliament will endeavour to take from them their just right ; but to say they cannot , and that the government cannot then subsist , is as absurd , as the other is unlikely . i must further observe , that this author doth upon all occasions blame those persons , who deny the prelates that judicial power in capital cases he would place in them as enemies to the government ; whereas he ought to know , that exceptio probat regulam , in non exceptis . he that gives them authority in all things that are clear , and denies it them in dubious , doth more asserttheir right , then he that by giving it them in all things , doth rather perplex it . i have now done with this unwary writer , who whilst he seems so zealous for the government , doth himself in the main part of it unhinge , and destroy it . doth he not , pag. . endeavour to destroy the most ancient court of chancery , which he calls both a reproach , and grievance to the nation ? doth he not spend some leaves to shew how this may be effected ? by setting up as many chancellours as there shall be judges in courts , which must in the end , be either wholly useless , or run us upon an arbitrary way of proceeding , and put an end to all our ancient way of trials by iuries , and leave all in the breast of the iudg to determine . let him not now think to take off the envy of this by a fawning commendation of our present lord chancellour . i am so well acquainted with the great abilities , and large endowments of that noble person , that i doubt not but his just decrees in that court will remain as perpetual testimonies of his conscientious iustice , and equitable distribution of it in that place in which he is now settled . nor can i believe he will be pleased with any , tho never so due commendations , to the disparagement of his worthy predecessors , or such as hereafter may succeed him in the most honourable station in which he now is worthily placed . did the author of this treatise believe that the lord bishops voting as judges in parliament , in cases of life and member , could any way conduce either to their honour or greatness , or the good of the church and nation , he would never have entred the list in this quarrel , being himself wholly conformable ; and in his judgment fully approving the polity of the church of england , as the best reformed of any other he knows , having cleared herself from the superstitious formalities of the church of rome on the one hand , and on the other , not requiring from her children , under terms of communion , any thing , in which she may not lawfully as he thinks be obeyed . but being fully convinced , that their asserting this right in themselves , will bring forth no other fruit , except envy to their persons , and perhaps sometime or other , through the unequal affections of a head-strong people , prejudice to their functions , i have been the more easily induced to make known my thoughts herein . i observe there have already been made publick six elaborate treatises upon this subject ; four asserting a right in them to vote in parliament in matters of blood , and two against it . but because the last and most learned tractate , which goes under the name of the grand question , &c. is look'd upon , and indeed is the most material , i shall apply my self chiefly to the examination of his arguments , and i hope discover the errors , fallacies , or inconsequences of them . he tells us at first , that 't is granted on both sides , that the bishops sit in parliament by virtue of their baronies . this i must take liberty to question as doubtful , still premising that truth doth not lye in what men may say of themselves , or passeth under common estimation of men , but what upon serious examinition of the question shall be found to be true , i shall endeavour to make it appear , that many who held lands in cap per baroniam , or , per servitium baroniae , were not enobled in blood , nor had right to demand their writ of summons as the noble barons had , but were to expect the king's will and pleasure , and were often left out : these were secundae dignitatis barones , or barons by tenure only , of which some might probably be adopted into the nobilitas major , afterwards as barones adscriptij , yet at first were not so ; and this was to them an honour , but to the bishops a burthen , who held their lands free before , and had no honour conferred upon them as the rest had . for tho it be true that all the great noble-men held per baroniam ; yet was it not their tenure which gave them that right , as i shall shew by and by . these second sort of barons were called barons peers , because they held of the king in capite , as his immediate free-holders , and were stiled barones regis , for the word imported then no more but men holding of the king's person in capite . these subdivided their lands to others , under the like military service ; these were likewise called barons from their appearing at their lord's court , called the court baron ; and baronagium became a word of general signification , comprehending those liberè tenentes , or sutors to the court baron , who together with the king 's immediate tenants , who were the barones regis , that is , the kings immediate free-holders , made up the communitas angliae , and comprehended all persons except such as held in villenage . besides these , thus made by the king , there were others , some found here , some brought out of normandy , of great nobility and extraction , who had of their own , great possessions , as earldoms and counties in this country , and others brought over with the conquerour out of normandy , of an inferiour rank , to whom he gave the like honour , out of the lands of those adhered to harold , which all held of him per baroniam , but by creation were many of them afterwards made of a higher rank , and were called comites regis , and majores barones regni ; they being possessed of the like honours in their several countries before . the bishops , i conceive , were not under any of these ranks , but were called to parliaments ratione episcopalis dignitatis , not ratione tenurae , only , of which they complained as a burthen . creation they had none to any higher honour than episcopal ; their tenure could not give them a greater honour than to be barones minores , or barons , peers . neither can i find in any act of parliament or record , that they were called lords before the time of rich. ii. and then first called lords spiritual , to shew their honour arose from their spiritual function , and not from any temporal possessions ; nor the name of barons applied to them except by themselves , who perhaps finding the burthen of their service which before was free , were willing that others should give them the title , tho there was no more reason that their tenure by baron service should make them barons , than that knight service should make the tenant a knight . having thus cleared my way , i shall in the next place , shew that these barones minores , or barons peers , were sometimes summoned by writs to parliament , and sometimes left out . the abbot of feversham ( one under the same rule with the bishops ) was summoned to consecutive parliaments as tenant in capite per baroniam , and then left out , edw. . rot. penes remem . dom. regis in scall . thomas de furnival had been sumoned to parliaments , and yet upon an amerciment in the exchequer , pleads he was no baron : now except he had held in cap. per baroniam , or part of a barony , he could not have been summoned at all as a member of parliament . whether his plea were allowed doth not appear upon the record , but by this and some other records in my hand to the same purpose , it seems to me that many that held per baroniam , were not barons , but at the best bannerets , or barons peers . i cannot find by my utmost search , that any thing hitherto hath madeit apparent , that baronies were ever annexed to the possessions of the bishops ; but men have generally taken it for granted , that they were so . they say that william the first , soon after his reception to the crown of england , did introduce new tenures , and established counties and baronies , and did then order that bishops , and the parliamentary clergy should hold per baroniam , or sicut baroniam , which the learned mr. selden saith in the language of those times signified the same thing : for he saith , that tenere de rege in capite , and habere possessiones sicut baroniam ; and to be a baron according to the laws of those times , are synonimous : seld. tit. hon. part . pag. , cook , hakewell , and others say they hold per baroniam . but the proofs , any that i have met with , offer to make good this division by william , or that tenure per baroniam , did infer more when a minor baron in my judgment , are not cogent . what they urge is taken out of wendover , and from him transcribed by matth. paris . he first greatly blaming the act of william , hath these words ; episcopatus , & abbatias , omnes quae baronias tenebant , & catenus ab omni servitute saeculari libertatem habuerant sub servitute statuit militars irrotulans singulos episcopatus , & abbatias pro voluntate suâ quot milites sibi , & successoribus suis hostilitatis tempore voluit a singulis exhiberi . that is ; he established under military service all bishopricks , and abbeys which held baronies , and at that time had freedom from all secular service , inrolling them all , and appointing according to his pleasure what souldiers in time of war they should severally find unto him , and his successors . mr. selden finding the contradiction in these words , that their baronies which should have kept them , as he thought , free from secular service , as the words import , were the only thing that bound them to it , thinks there ought to be a parenthesis after baronias ( in purâ & perpetuâ eleemosina ) & eatenus ab omni servitio saeculari , &c. and makes the words run thus : all bishops and abbeys that held baronies in frankalmoign , and in that respect freed from all secular service , &c. and backs this conjecture by the authority of mr. cambden , who he conceives might have seen some copy where those words were . but he need not have put himself to the trouble of that conjecture , had he translated ( eatenus ) at that time , as the word signifies , and never that i know in that respect . however , finding further , that this would not take away all doubt , because the words refer not to all bishopricks and abbeys , but to such only as then possessed baronies , for ought appears of elder time , which he denies any did before the time of william the first , ( of which perhaps more anon ) doth believe that this tenure was enacted by some parliament in william's time preceding to this , whose journals , or records are now lost ; yet adds for a further proof , the authority of an ancient manuscript in his hand ( belonging it seems to the abbey of ramsey ) of matth. paris , where over the year , are inserted these words : in this year the servitium baroniae , was imposed upon ramsey . this perhaps might equally concern other abbies ; yet seems but a weak proof of the matter in question as to the bishops , did not somewhat in ingulphus , and the subsequent practice , give some light to the business . but neither laws nor practice ought to be forced or stretched to a greater latitude than the natural construction of the words will bear . it cannot reasonably be denied , but that in the times of our ancestors , when learning in lay-men was very rare ; that the clergy bare a great sway in the councils of princes and great men , who busied themselves in little more then feats of arms , and hospitality . but the clergy , a wary and vigilant sort of people , guided by the subtile heads of rome , under whose banner they always fought ; what under pretences of piety , satisfaction for sins commited , redemption of souls out of purgatory , and what not , captivated the consciences , and drained the purses of most of the ignorant multitude . nay , so holy was their function , and so sacred their persons , that no secular tribunal was by them thought sanctified enough to question their actions , but they still pressed to be remitted to their own , or by their appeals to rome , frustrated the designs of the civil magistrate . william the first being desirous to put a stop to this exorbitant pride , and growing power of these men , and yet not disgrace their calling , did ( as before is mentioned out of mat. paris ) ordain that the clergy should not be wholly exempted from all secular service , and probably might before that , have altered their tenure , which most-what before was in frankalmoign , unto the tenure in capite sicut baroniam , or in the nature of a barony , by which they were made subject to such services as tenants in cap. per baroniam were tyed unto , and were called to parliaments , and sate among the other noble-men , and the barons peers , being first summoned thereunto by the king 's writ . most men have considered the nobilitas major , or those who constituted the house of peers under a threefold relation . first , as made earls , or barons by creation , and an actual ceremony of a investure of robes , and a succeeding charter , and writ to attend in parliament when summoned . the charter comprehended some limitation how the honour should go ; or else some pension to the barons to support their dignity and title , of which you may see more examples in mr. selden's tit. of hon. part . cap. . such i conceive was that charter made by king stephen to mandevile earl of essex , and renewed again by maud the empress : the like was that of miles earl of hertford , granted by maud , and renewed by hen. ii. which charter only served to convey the third penny of the county . now these charters being usual as to earls , which was the highest degree at that time , and an actual ceremony being also used in the making b of knights , which was the lowest degree of honour ; i see no reason but to believe that the same ceremony of invetisture was used to barons which was the middle degree . some light is given to this by considering the charter granted to the lord iohn beauchamp of holt. where the words are ; ipsum iohannem in unum parium , & baronum regni nostri angliae praefecimus volentes quod idem johannes , & haeredes masculi de corpore suo exeuntes statum baronis obtineant , ac domini de beauchamp , & barones de kiddermister nuncupenter . in cujus rei testimonium , &c. here being in this charter no words of creation , but all in the praeterperfect tense ( we have promoted ) must refer to some act done before ; and this charter served only to limit how the estate should go : mr. seld. tit. hon. part . cap. . p. . i edit . in fol. i know reckons this as the first creation of a baron by patent , but doth not observe the words , nor his own subsequent . patents made to others where the words are in the present tense , and constituent of the honour granted , ( viz. ) praficimus , constituimus , creamus , we do create , promote , and appoint . neither can i imagine what right those ancient barons , of which we have yet some left who were so before rich. ii. have to come this day in robes , had not their ancestors been invested with them in their creation , and different from those of earls . now this as it was the most ancient , so was it the most honourable way of conferring honours ; so was it also the most noble , by which their blood was not only enobled , but also all other rights and priviledges competible to that degree were given unto them ; and certainly we must make some difference between one made a peer of the kingdom by charter , and one so called in ordinary speech , of which name , no man in the kingdom , but is in some sense , capable ; we being all peers to those of our own degree . now of these peers thus enobled by the invetisture of robes ; some were called to parliament by writ after the ceremony of invetisture had been performed , and had never any patent to limit the descent of the honour . such had their honour in fee-simple , and it went to the heirs general , of which we have many examples , where the sole daughter and heir of such a baron , hath not only conveyed the honour to her descendents , but enjoyed the title herself during life . amongst many , i will only instance in one ; charles longuevile , son and heir to susanna , heir general to the barony de grey of ruthin , left only one daughter named susanna , charles her father , was received in parliament in his robes in the latter end of king charles the first , his reign ; he dying , left the foresaid only daughter , who after his death , married sir henry yelverton of easton . manduit in northamptonshire baronet ; sir henry died , leaving sir charles yelverton baronet , his son and heir then a minor , susanna enjoyed the honour during her life ; and at her death , left charles , still under age , who immediately possessed the honour ; and at his full age , was called by writ , sate in his robes in parliament till he died , which happened soon after his age of twenty one , without any issue , leaving the honour to henry his brother , and heir , yet alive , and under age. see sir william dugdale's history of the baronage , title lord grey , first part , pag. , . the second way by which some have conceived barons were made , hath been by writ only , without any other formality , or ceremony whatsoever ; and of this opinion have been some heraulds , and have contended , that by the writ of summons , the person was enobled , and if his descendents were so called for three descents , the blood was enobled , i conceive this opinion to be erroneous : for it is against a maxime in law , that the king should pass any thing by implication , and as unreasonable to believe he might not have liberty to require the counsel of his subjects without conferring an honour upon them , he did not intend . besides it will hence follow , that during divers parliaments of edw. . almost all in edw. . and many in edw. . all the judges , king's serjeants , and many other were enobled , for they had the same writ the barons had , yet were never accounted such ; nay , were often after such summons omitted . the known case of mounthermer is very pertinent to our purpose , who having married the relict of the earl of gloster , who had a great part of the earldom in jointure , her husband was summoned as an earl during the minority of her son ; but after he came of age mounthermer was summoned as a c baron during his own life , and after wholly omitted in his descendents . if it be said that his summons enobled him , but in regard his descendents were not called , the blood was not enobled ; what will they then say to the case of radulphus de camois , who was summoned , and his son after him in edw. . yet in rich. . claus. memb. . in dors . thomas camois the grand-child , was chosen one of the knights for surrey , and discharged by the king 's writ , because he and his ancestors were baronets : and the said thomas was summoned , and served in that parliament , not as a baron , but as a barons peer , or baronet , which was an inferiour sort of honour , and signisied the same thing that tenants in cap. did in the time of king john. but that these sorts of peers were sometimes summoned , and sometimes omitted at the king's pleasure . the only difference being that which appeared when they came thither , the one appearing , ( viz. ) the inheritable barons in their robes , the others not , but in habits different from the barons . now that there was this difference , is made plain by those authorities shall be produced under the next head , which is , that there were a sort of persons called barons , who were so by tenure only , that is to say , who held of the king in cap. and had such a number of knights-fees , and upon that account were summoned as barons , or rather as barons peers ; mr. selden seems to say in his tit. hon. part . sect. . pag. . that all honorary barons of that time whereof he speaks , were for ought appears , barons only by tenure : the words are cautelous , and his expressions , as became a learned man , warily set down . first , honorary barons , ( viz. ) such as had the honorary name of barons , but not the blood ; for such i take his meaning to be , because he gives us no definition of honorary barons , nor why , if it be admitted , that barons had their beginning from the number of knight's fees , which they held , why earls had not the like beginning , who held of the king in cap. as well as the others . now that there was a clear distinction between barons enobled in blood , and those that held only in cap. the one we find called barones majores , the greater barons ; the other barones minores , lesser barons . the red book in the exchequer , or remembrancers office , attributed to gervasius , tilburiensis , speaks of it as an undoubted truth , quidam , &c. some hold of the king in cap. things belonging to the crown , to wit greater or lesser barons . quidam enim de rege tenent in capite quae ad coronam pertinent , barones , scil . majores , seu minores ; by which it appears they both held of the king in cap. yet were distinguished into greater or lesser . fitstephens in the life of thomas of becket , chap. . mentions , secundae dignitatis barones , barons of a second degree , matth. paris , anno , hath these words : summoneri faciemus , archiepiscopos , episcopos , abbates , comites , & majores barones regni sigillatim per literas nostras . et praeterea faciemus submoneri in generali per vicecomites , & ballivos nostros omnes alios qui in cap. tenent de nobis , ad certum diem . here we see two different sorts of barons , the one summoned by the king 's writ , the other by the sheriff . the first sort by writs sealed by the chancellor , the rest by writs to the sheriff ; yet both held in capite : but certainly , omnes qui de rege tenent in capite , must be understood with a reasonable restriction . for it will be very evident to any man who shall examine the inquisitions post mortem , remaining in the tower , that much land held per baroniam , was in the hands of private men , who were never reputed barons ; neither could these inquisitions be understood of tenures from mesne lords , and not from the king , because all tenures per baroniam , were tenures in capite , which must be from the king. besides , if the tenure of land made a baron , why were not the purchasers of those lands by the king's licence of alienation , ever after the stat. of quia emptores terrarum , called to parliament as barons ? the case of the earl of arundel , hen. . will not mend the matter , for his ancestor was created by writ , and the castle entailed upon him ; so that he was called to parliament not by having the land only , but by virtue of the creation of his ancestor , and the entail upon it . in so much , that i still conceive that the ancient nobility ( from whatsoever beginning it arose ) was made inheritable by creation , and investiture of robes ; upon which sometimes followed cnarters which directed how it should descend ; and the confusion in historians hath proceeded from their not distinguishing barons from barons peers , so called , not from their parity in honour , but in estate and tenure , but wanting investiture , were called , or left out , at the pleasure of the king. this distinction is clearly mentioned in the old modus tenendi parliamentorum , printed by mr. hakewell . summoneri debent omnes , & singuli comites , & barones , & eorum pares . all earls , and barons ought to be summoned , as also their peers . i know the authority of this treatise hath been questioned by some learned men , but by none with more violence and less reason than by mr. prin in his fourth part of his register of writs , p. . to which , easie answers may be given , if we consider the translators out of the saxon tongue , might easily translate words which they thought of an equivalent signification , by words in use at that time ; as wittena gemot . for parliament , and the like . others of as great judgment , have as strenuously defended the authority of it . sir edward cook in his jurisdiction of the court of parliament , strongly defends its antiquity , and mr. hakewell pag. . testifies to have seen an exemplification of it under the great seal of ireland , in the time of henry the fourth ; testifying the same to have been sent into ireland by henry the second , for a form of holding parliaments in that kingdom : so that we must either admit the great seal of ireland to be forged , or confess the modus as ancient as henry the second 's time . many admit that it was sent into ireland as a modus for that country , but was not so for england , which seems to me unreasonable , it not being likely we should give them a patern different from our own , who now observe most of the rules there given . daniel , anno , in the life of henry the first , will tell you that in his time , the word parliament began to be in use , after the convocation of his parliament at salisbury , in the th year of his reign . nay , much ancienter , even as old as canutus , ( if we believe the old book of sir edmundsbury ) who in the fifth year of his reign , summoned all his prelates , nobles and great men to his parliament , as you may see more fully , rights of the crown , p. . by all which of much more that might be added , we may see how dangerous it is to judg of books by the promiscuous use of words : i have made this short digression , to the end that what i shall say hereafter , may be made clearer . i shall now apply my self to the case of the clergy , and consider their right to sit in parliament . this right of theirs must grow since the conquest , from the tenure of their land in capite , sicut baroniam , and consequently , they cannot be reckoned but amongst the barons by tenure , and are not properly barons , but peers , no way enobled in blood , nor of longer continuance than the foundation upon which the tenure is built , continues . thus we see in the dissolution of monasteries , the tenure was extinguished . the same in bishopricks , as that of westminster , and others , where the corporation being dissolved , the tenure , as to them , was extinguished . i know very well they would not now be thought to sit ratione episcop . dignitatis , as bishops , but as barons . in that famous wrangle at northampton , touching becket , who should pronounce sentence against him , the bishops tell the lords , non sedemus hic episcopi , sed barones ; nos barones , & vos barones , pares hic sumus . fitst . cap. . col . . seld. tit. hon. part . cap. . pag. . we sit not here bishops , but barons . d we barons , and you barons are here peers , or equals . not meaning by these words , that they were otherwise peers than such as their tenure made them , which was only to hold in cap. sicut baroniam , or in the nature of a barony ; for although that tenere per baroniam , & sicut baroniam , perhaps are all one , neither of them imply a barony , but only the services of a barony , which the bishops , by their tenure , were bound to perform , as also the abbots . and i am the more confirmed in this opinion , because i do not find that any examination was made what their possessions were , nor of how many knights fees they consisted ; but were they more or less , the tenure was the same ; whereas 't is probable the possessions of some were above twenty knights fees , the rate of an earl , others less than thirteen , yet still the tenure and peerage was the same . neither is any record , or patent produced , nor i think can be , where any barony was annexed to their possessions . 't is evident that out of one bishoprick , others have been taken , as peterborough out of lincoln , oxford out of gloster ; yet these bishops came to parliament , and still under the same tenure and service . in edward the sixth's time , cranmer had his episcopal dignity during pleasure , was he then a baron at will ? we may safely conclude from the complaint of all historians of those times , that tenure in capite , and their services , which arose by it , was put upon them e as a burthen , not as an honour , but imposed upon them to make them know they were subjects , which they could hardly be brought to believe , having such dependance upon rome . yet was it not thought fit wholly to exclude them from all councils , and therefore this expedient was found out , that they should hold their lands by doing such services as barons did , and sit amongst them in parliament in the nature of barons , which they improved afterwards to the appellation of themselves by the name of barons , but never could to equal priviledges with those persons who were truly such . petrus blesensis , in his tractate de institutione episcopali , hath these words , which i have occasion to cite more at large towards the end of this treatise , pag. . quidam episcopi , regum munificentias , & eleemosynas antiquorum , abusivè baronias , & regalia vocant , & in occasione turpissimae servitutis se ipsos barones vocant . some bishops abusively call the bounties of princes , and the alms of their ancestors , baronies , and royalties ; and taking occasion from that base slavery ( he means certainly the slavery in performing those services put upon them by their tenure ) call themselves barons . this he much , and largely inveighs against , from all which , it may reasonably be collected that they gave themselves that title , rather than that it was given them by the king ; who yet sate in parliament together with the other barons , not as a distinct estate from them , but involved with them as part of a third estate , which was intirely represented in convocation . for it seems to me very clearly , that they never were a distinct estate in parliament ; if by parliament you understand that part of it which consisted of counts and barons ; yet were they the chief and principal part of a third estate in parliament in respect of the convocation , which began , continued , and ended with it ; and where their debates , gifts to the king , and other transactions bind only their own body . neither is it reasonable to believe them a third estate here , otherwise than they are so accounted in other parts of the world , to wit , a part of that body the clergy , who being a select portion , or lot of the lords , and embassadours of christ , look'd upon themselves as not accountable to any secular tribunal . neither is it material whether they sate mixt with the laity , as perhaps they have sometimes done , for this cannot alter their being a third estate , as clergy-men , let their votes be gathered together , or apart . indeed i cannot see how it is possible they should be a third estate in that house where they sit among the lords ; for besides their unwillingness to own that they sit as bishops , but as barons ; i would fain have any man tell me , how it comes to be so . dr. heylin will tell you that clerus was never taken for the bishops , distinct from the other clergy : by what title do they then claim it ? by any grant from the king that should be produced by usage or allowance ? that 's denied . nay , the impossibility is manifest : for i conceive by law , the king cannot make an estate , for if he could , he might make a fourth , a fifth , or a sixth estate , and require consent from them all to the making any law which would alter the frame of the government . mr. prin hath very well proved them to be only a third estate in convocation , from the manner of penning their grants there , ( to wit ) by the name of prelates , and clergy of the province of canterbury and york — orderly assembled in a provincial synod , or convocation — may be ratified , and confirmed in your highness's courn of parliament — with the assent of the lords spiritual and temporal , not prelates , and clergy , as in their grant : prin. fourth part of his kalender , p. , . to these i might add many more authorities caudrey's case cook part . p. . clerus & tota gens laicalis ; but these eare enough , and i take it a full answer to his several records urged to that purpose , and for explanation of the author of the letter , who when he saith they are a third estate of the kingdom , not of the parliament ; that is to say , not in that house of parliament where they sit mixt with the temporal lords . but should i admit them a third estate in the lords house , as this author , and others contend they are , and so a distinct estate from the lay-lords , what colour can they then have to judg a peer upon an impeachment for life , when themselves , tho they sit among them , are a distinct estate from them , and so no way their peers , which i take to be a very strong argument ad hominem . i have thus past his first assertion ; and given answer to his conceit of their being a third estate in the lords house ; if by it he mean an intire third estate , and not a part of it , as i said before . for when they act in convocation , they act with the rest of the clergy , as an intire third estate , can they , that is , the bishops in the lords house , be more than part of a third estate ; where they vote not as bishops , but as barons , as themselves would have it ? certainly , we must not shut out the convocation to represent the clergy : if then the bishops in convocation represent but a part of the clergy , how they should be an intire representative of them in another place , whilst both are in being , is to me a riddle . let us now come to his argumentative part . after he hath climbed a ladder of five steps , he comes at last to this conclusion : that to sit in iudgment with the lords is not against magna charta . what if this shall be granted him ? doth it thence follow , that they are such peers as are enabled to try those in capital cases who are enobled in blood , and have inheritable baronies in themselves by creation ? magna charta is a general charter , which directs the proceedings in the tryal of all men by their peers . who are peers to one another , is not there the question ; neither doth the author of the discourse of peerage make any other use of it . the ancient canons forbid them to meddle at all in secular affairs : if therefore the indulgence of kings have admitted their presence in parliaments in some cases , doth it thence follow , that they have right to be there in all cases , or to try peers for their lives , to whom they are no way equal ? the author proceeds , and , in the next place , insists upon the forms of their writs , which are of the same kind with those of the other barons , which being not limited nor restrained , neither ought their power so to be . the weakness of this argument is very apparent ; for , by this he may infer , that the judges and some others had the same right : for , mr. elsing in his modus , pag. . hath observed , that the writs were alike to the lords , to the judges , and some others , in diverse years of ed. . in most of ed. . and many of ed. . but the words of these writs , though general , were to be interpreted by the practise of the court , and not contrarily . again , there is a great deal of difference between giving counsel in difficult matters , according to their writ , and trying men for their lives ; an employment no way proper for messengers of peace , and preachers of glad tidings . lastly , the earls and barons are consiliarii nati , counsellors by their birth , and so have a natural right to give counsel in all affairs being once assembled in parliament ; and for that reason , upon the death of the king , the nobilitas major have all equal right to meet in council , in order to a successor , so have not the bishops ; nay , though privy counsellors , their commission ceasing , they have then no right to come into council with the other lords . in the next place he saith , men as certainly dye by bills of attainder , where the bishops have an undoubted right to vote in their legislative capacity , and therefore to vote in cases of blood is not incompatible with their function . to this i answer , the cases are very different , as well to the matter of the law as the reason of it . for first , custom or whoever gave them right to sit in the lords house , in the nature , or amongst the temporal barons , though ecclesiastical persons , did not restrain them as to their concurrence in the making new laws , yet very well might as to their judging in some laws already made : so that the one is agreeable to the laws of the kingdom , and the laws of parliament , and the other not so : and if any thing in that particular had been contrary to the holiness of their calling or their rules of living , it had been fit for them to have informed the king and lords , and not for them to take notice of it otherwise . nay , in that very case , when that bill shall come to be passed into a law , by the king , the lords spiritual ought to absent themselves , as it was held by mr. bagshaw , a reader of the middle-temple , in the time of arch-bishop laud , by whose power , he was then prohibited from farther proceedings in his said lectures . rush. hist. collect. part . pag. . secondly , the passing a new law , be it what it will , doth not immediately , but by consequence may concern blood. now the bishops , who are always supposed to incline to mercy rather than severity , may perpetually , with a good conscience , hinder the passing such a bill as shall punish a delinquent with death who had not capitally offended before . but , when once a man is capitally impeached for transgressing a known law , and issue joyned thereupon , 't is not now in their power , with a good conscience , to acquit the guilty , because they must there opine according to the proofs before them , which is a very strong argument why they might be permitted to be present in the one case , and not in the other . lastly , if this way of arguing were good , it would follow , that the commons ought to have equal power with the lords in all other cases , because they have with them an equal power in passing bills . the néxt section consists in blaming the insinuation of his adversary , who saith , their medling with secular affairs was against the apostles practise , though in a matter concerning the church ; mentions the rescript of honorius and theodosius , and so passeth that point . in which , it appears he insinuates no more than william the first ordained , who appointed that they should meddle with nothing but what concerned the rule of souls , and govern themselves according to the rules of the church , so that you see the canons of the church were considered in their admission to sit . what he saith in opposition to this , is , that it is a part of god's service to do justice and mercy , and to attend the publick affairs of the kingdom , when they shall be thereunto called : that the bishops now are not under the same circumstances the apostles were when the christian church was to be planted , and now when it is constituted : that the apostles travelled from place to place , which the bishops are not now bound to do : that the clergy are one , yea , the chiefest of the three estates , and therefore reasonable they should be concerned in the affairs which concern the whole nation ; and after that , produces examples out of the practise of other nations : ( which at best signifies nothing to ours ) neither is what he saith any way argumentative to his advantage , except he had first proved that he that first appointed them to preach the gospel , and attend the affairs of the church , did not think that employment enough to spend their whole time in . and although the apostles , who were messengers , did go about their errands to several places whither they were sent , it doth not appear that st. james , who was a bishop , and not an apostle , except we shall call him the thirteenth , ever parted from jerusalem , but attended the business of the church there . but , since this author hath thought fit to put us upon this question , let us examine it a little higher . 't will be undoubtedly agreed on all hands , that our saviour did not delegate to others a greater power than god had given him the exercise of to himself . but it is clear in the case of the young man , luke . . who would have had him command his brother to divide the inheritance with him ; man , who made me a judge , and a divider ? that is , none hath made me so , because his kingdom was not of this world ; that is , consisted not in secular things . the next place i shall remember , is ep. tim. chap. . vers . . no man that warreth intangleth himself with the affairs of this life , that he may please him that hath chosen him to be a souldier . hugo grotius upon this place will tell you , that this is a similitude taken from the roman law , which would not suffer any souldier to be employed in any affairs , but military , quotes the law and the practise ; tells you out of florus , that posthumius , a man of consular dignity , was punished for appointing his souldiers to assist him in his field . 't is true , the words are general , but being applyed to timothy , who was then employed in a spiritual course of life , they cannot think to please him who set them on work , if they be engaged in secular matters , which have not some immediate reference to the church : and , i believe no temporal prince would take it well that his ambassador should engage himself in the affairs of any other prince , without his particular commission . this sense is generally embraced , though in our question we exclude not all secular matters , but blood only . the third place i will mention , is the seventh and eightieth apostolick canons , 〈◊〉 , presbyter aut diaconus nequaquam seculares curas adsumat , sin aliter dejiciatur . let no bishop , presbyter , or deacon , at any hand take upon him the care of secular things ; and he that doth , let him be deposed . i suppose here are some testimonies more than a thousand years ancienter than any council of toledo , against their medling in blood : for , qui includit omne excludit nihil . if all secular employments be forbidden , then the medling in blood is not excluded . it cannot seem to me reasonable , that we should use those arguments as bishop davenant and others do against the usurpation of the pope , in things of this nature , which may with as much force be retorted upon our selves . i am not ignorant what is usually replyed by men of a contrary judgment , and hath been learnedly and candidly put together by the author of the honour of the lords spiritual asserted , who hath written with more clearness and equal reason , i think , to those of that side who have come after him . far be it from me to envy the honour of the clergy in their several degrees and orders , or to think the ambassadors of god should live basely or sordidly and not be used with all due respect among men . neither is it any way reasonable , that they who in an afflicted church lived upon the general contribution of the saints , should be put to such streights in a flourishing one : but all this is to be understood with that necessary limitation , that no employment should take them off from their main business , the care of the churches committed to their charge . if they can satisfie themselves that their spiritual work is not enough to take up their whole time , let them in god's name be engaged in secular offices : but i think if the greatest part of their power were not transferred to their chancellors and lay-officers , there would be time little enough left them for secular things . i remember to have read in a book called il nipotismo , ( the design whereof is to shew the corruption of the church of rome in the matter of their nephews ) that about years after christ , when the clergy began to appropriate lands to the use of the church , they began to grow proud , covetous , and negligent in their over-sight of the churches : to the same purpose you may peruse a book of father paoles de materie ecclesi●… . and truly , this is the general complaint of petrus blesensis ( an author our learned adversary makes some use of ) in many of his epistles and sermons , insomuch , that i wish there were not truth in that report , that upon the too great splendour of the churches , poison was sowed among them . certainly this kingdom hath given them a great share in the government , which hath not only allowed them the first rank in the estates of the nation , but hath by law made them appear to be so in the convocation , where they have both an upper and lower house ; where they give subsidies , make laws for the church , and where a part of them sit among the lords , not only to press the allowance of those laws by the civil power , but also to have their share in making new ones . this , one would think were enough to content them without desiring to have a judicial power in cases of blood , which i doubt not to prove is by law forbidden them . but , i fear the charging this desire upon them is rather an artifice of their enemies , who by assixing this calumny upon them , which indeed is not their design , labour to lessen them in the estimation of the world , and by that means bring into contempt both their persons and callings . many examples i confess are given , where christian emperours and princes have made use of the service of bishops as counsellors , chancellors , and chief justices , and the like ; but upon examination it will appear , that as to our own kingdom , the offices of these persons were much mistaken . the office of capitalis justiciarius angliae , was not to sit and judge causes among associates , as at this day , but was the chief officer of the nation , had the appellation of prorex ; and had power , in the absence of the king , to displace any officer of the cinque-ports , and to do any thing as vice-roy and protector of the kingdom ; of which , see at large sir henry spelman's glossary , in the word capitalis justiciarius . upon examination it will be manifest , that when they sate in any such places , their service rather was to direct the conscience , to make amicable ends of controversies , to preach peace to others , and pursue it themselves , till the subtilty of rome turned religion into policy , and destroyed the power of it . how far the edicts of princes were binding , is not my task to enquire , but only how far that of their not medling in blood was a part of the law and custom of this kingdom , and observed here . but , what i have said in this chapter , especially as to the baronies of bishops , i have delivered by way of proposal , not determination , and upon a clear answer of my reasons , shall be ready to retract any thing i have written . chap. ii. i come now to the examination of his second chapter , in which , the recognitions made at the parliament held at clarendon , come under examination , together with the protestation made r. . i call it a parliament , because i find it generally so esteemed by our best lawyers , and i think denyed to be so by very few . mr. selden calls it that great parliament at clarendon , tit. hon. part . . ch . . p. . the first edit . in fol. coo. . instit. ch . . p. . and in many other places . hoveden saith , there met clerus & populus angliae . where note , he makes clerus comprehend bishops , abbots , and all ecclesiastical persons , and populus both lords and commons , contrary to what dr. brady hath asserted , but very weakly proved . but before i enter into a more narrow examination of this statute , i think it not amiss to give a short account of the history of those times , from william the first , to the tenth year of hen. the second , when this meeting was , with relation only to the king and the church . it will not be denyed , that william the first disclaimed all title to the crown of england by conquest , and swore to observe the laws of edw. the confessor , which were our laws before : yet notwithstanding , it is generally agreed , that he erected tenures in capite , and baronies , and that amongst others he obliged the bishops who before held their lands in frankalmoign , to do service to his courts , and to hold their lands in cap. sicut baroniam , and not to make their so frequent appeals to rome , and journeys thither , without his license , being a thing contrary to the known laws of his kingdom ; which is made evident by sir edward cook in cawdryes case , and sir roger twysden in his vindication of the church of england , in point of schism . these were the servitutes ecclesiasticae , and the pessimae consuetudines , so much complained of by mat. paris and other monks of that age. but however , so it stood during the times of will. the first , will. the second , and hen. the first ; after whose death , stephen , without any right , ( and contrary to their oaths made to maud , daughter to henry the first then alive ) by the aid of the bishops gets into the throne , and by their power , was kept there till a composition was made with maud. in recompence of this their breach of oath , stephen frees them and the rest of the clergy , from answering in any other courts but ecclesiastical : by which , they now look'd upon themselves as free from the secular power , because they were answerable for no offences , but in their courts . in this state of things stephen dies , and hen. the second , son to maud , according to capitulation , is received to the crown ; who , after he had setled his affairs in normandy , resolves to do the like in england : but , fearing some opposition to his designs might arise from the clergy , he first calls together an assembly or council at westminster , in the ninth year of his reign ; where he propounds , that all such of the clergy as should be taken , and convicted for any heinous crime , should lose the priviledge of the church , and be delivered to the civil magistrate , to be punished for their offences , as other the kings subjects were . to this , the arch-bishop becket , with the rest of his brethren , refused to give their consent , as being against the liberties of the church , which were confirmed to them by king stephens charter . this answer put the king to a second question ; whether the arch-bishops and bishops would submit themselves to the laws and customs observed by them in the time of his grand-father , henry the first ? they answered equivocally , they would ; their order , the honour of god , and the holy church in all things saved : with which answer , the king was more enraged . but , the news of this breach coming to rome , the pope writes , and sends a messenger from rome , charges the arch-bishop to make peace with his lord the king , and to promise to observe his laws without exception . the arch-bishop thus humbled , repairs to the king at woodstock , and there promises to observe the king's laws so far forth as was required . upon this submission , the king , having before broken up his council at westminster , summons this parliament to meet at clarendon , in the tenth year of his reign , where he gives in charge , that they should call to mind , and put in execution and writing the laws of his grand-father , henry the first . of which , these following were the chief . first , that there should be no appeals to rome without the kings leave . that lay-men might handle cases of tithes . that no arch-bishop or bishop should excommunicate any person who held of the king in cap. or interdict any official of his without his leave , &c. the eleventh of them was at large what we have now under consideration ; which i shall repeat and translate as it ought to be , by and by . but , by this short relation i have made of the history of those times , it may appear plainly , that their yielding obedience to the known laws of the kingdom in matters of appeal , appearing and answering in the king's courts , ( though it were the ancient usage and custom of the realm ) was the thing that most vexed them , and not how far their presence was required in cases of blood , brought into parliament , in which they were contented to be limited by the usage of that court , and to afford or forbear their presence , according to that obligation which was incumbent upon them from the canons of the church , invigorated by the constant usage of the nation . if therefore , i can make it good , that the bishops had no right to be present in the debate , and handling matters of blood , and that that was the known law , and the sense of this act now before us , and of the subsequent protestation in . of r. . i shall think my self competently safe , though some seeming precedents and records should be brought against me : for , it is the law must be the measure and standard of our actions , and not always records ; the reasons whereof , are sometimes obscure , and the matter it self many times shortly rehearsed , and not always legal . i must confess , this author hath much laboured to fix a sense upon this article subservient to his purpose ; but the more he struggles the more he is intangled . 't is worth observation , that four or five , i suppose , different persons , have written in the defence of the bishops right to vote in capital causes in parliament ; and having all of them a necessity to say something to this law of clarendon , do all of them give different interpretations of the meaning of it : a great argument of a weak cause . the first , whose title is , the honour of the lords spiritual , &c. i presume being satisfied with the general sense which was put upon these constitutions from all times , from which it is always unsafe to vary , and perceiving that those illegal priviledges granted to them by king stephen , were , by the reviving the laws of henry the first , abolished , doth ingeniously confess in three places , pag. . at the end of the sixth chapter , and in the same page at the beginning of the seventh chap. that at clarendon their wings were indeed much clip'd , yet the priviledge of sitting and voting in parliament , is left intire to them ; and tho' they never of late voted in capital cases , yet they have ever made their proxies , as he hopes to make appear . in chapter the seventh he hath these words , we confess as before , for that they were spiritual persons , they were not to sit in capital causes and loss of limb ; but adds , that long before they had exercised this power . by which words , it appears , that in the judgment of that author , whatever their power and practice was before , yet that now by the laws of henry the first recognized , at this parliament at clarendon , that power was taken away , and not since practised . that they had such power before , he endeavours to prove out of compton and spelman , neither of which authors , make good any more , than that the bishop was assessor with the earl in the county-court ; which was only to advise him in point of conscience ; not much unlike the offices of our surrogates , who sit in consistory with the bishops chancellor , in whom we know resides all the power . that this is so , appears by the laws of edgar , put out by mr. lambert , who in his fifth chapter hath these words . centuri●… comit●…is quisque●…t antea praescribitur interesto — celeberrimus autem ex omni sa●…ia bis quotannis conventus agitor : cui cuidem illius diocesis episcopus & senator intersunto , quorum alter jura divina , alter humana populum edoceto . by which , we see 't was the office of the bishop to direct the people in divine laws , as it was of the senator or earl to teach them humane : of the same opinion is sir edward coo. instit. p. . stat circumspecte agatis . lastly , chap. . pag. . he mentions the council at westminster , that in regard they might not agitare judicium sanguinis , they had many times forborn to meddle in such matters . the whole chapter is concerning bills of attainder : now whether he meant that in such cases they did sometime absent themselves , let himself explain . this author not fore-seeing the advantage would be made of these constitutions , or else , hoping to help himself upon the power they had to make proxies , doth ingeniously confess the truth , but is deserted by all those of his side who follow him . the author of the rejoinder , p. . tells you , that the constitutions of clarendon permit the bishops to be present , and vote till it comes to loss of life or member , which is not till the passing of sentence upon the prisoner . i believed the loss of life and member was the execution , and if they may be there , and vote till then , they may be present as long as any other ; for when that is given , all go away : but , if his meaning be that they should go away when the sentence is to be pronounced , the precedent words will not bear that construction : so that according to him , this is rather an imping than clipping the wings of the bishops , as the former author affirmeth . beside , this exposition is contrary to the votes of the lords , who tell you , they must go away when their lordships proceed to voting guilty or not guilty , which is before the definitive sentence , which is always given in the presence of the prisoner , the other not . vide iournal of parl. pag. . maii , . in which , they explained a former vote , made by their lordships , maii , . in which , they had voted that the lords spiritual had right to stay in court in capital cases , till sentence or judgment of death came to be pronounced : by which , you see the house of lords have disowned that sense our late interpreters would put upon the words of this constitution , though themselves before had given colour to that interpretation . our third author , intituled , the rights of the bishops , fairly passeth over this law , only tells you , that a bishop pronounced sentence against becket in case of treason , as fitztephen , a grave author , saith ; and farther tells you , that though the prince may indulge many priviledges to his clergy , as this of not compelling them to vote in parliament in cases of blood , where by the canon law they are prohibited , yet that law , must yield to the law of the land , ( but how if the canon law be part of the law of the land , what 's then to be done ? ) which cannot devest the king of his right of using his subjects , clerks , or not , in any places or employments he shall think fit to employ them in ; or in which he may think them capable of doing him or the publick any service . this i confess is plain dealing , and i wish it were not too much the sense of some of our greatest clerks , that let the law be what it will , it cannot bind the king's hands from making use of any of his subjects in what he pleases , though the employment be forbidden by law. this is the meaning our third author gives of this constitution ; and much good may it do him . our last author , in his grand question , comes next to be examined , in which i shall be more large , because in him is concentred what the rest have said , and his cause defended with much learning , and variety of reading . he names the constitutions of clarendon , and the protestation in r. . as the two main laws against him . the constitutions of clarendon ( which were no more than a recognition of the ancient laws and customs of england , not made , but revived by hen. the first , and now confirmed by his grand-son hen. the second ) he considers as the most material , and is content this cause should stand or fall by them . he tells you , the constitution in debate is the eleventh in number ; of which , the words are , archiepiscopi episcopi , & universae personae regni qui de rege tenent in capite , habeant possessiones suas de rege , sicut baroniam , & inde respondeant justiciariis & ministris regis , & faciant omnes consuetudines regias : et ficut ceteri barones debeant interesse iudiciis curie regis quousque perveniatur ad diminutionem membrorum vel ad mortem . after the words , he gives us the translation of them , made by the author of the letter , in the following manner . the arch-bishops and bishops , and all the dignified clergy of the land , that hold of the king in capite , shall hold their possessions of the king , as a barony , and answer for their estates unto the king's justices and ministers , and shall observe and obey all the king's laws : and , together with the other barons , they are to be present at all judgments in the king's courts , till it comes to require either loss of life or member . but , pray sir , why did you not rather give us a translation of these words of your own ? if the author of the letter have made an imperfect translation , why did not you mend it ? i believe , if this author had found it would have advantaged his cause , some exceptions would have been taken to the translation . i shall by and by give the reader a full account of the true sense of the whole period ; but will first make appear the unreasonableness of the exposition he makes of the last clause of it . et sicut caeteri barones debent interesse judiciis curiae regis quousque perveniatur ad diminutionem membrorum , vel ad mortem . the meaning he conceives to be , that the bishops are required to be present in the king's courts as other barons are , till they come to give sentence , as to dismembring or loss of life . why he translates curiae regis in the plural number , the kings courts , which is in the singular the king's court , and in this place , hath always been understood of the high court of parliament , in which , the other barons had an interest to be present as judges , and in which sense , it is very often taken , as is made clear by mr. petit , in his learned discourse of the ancient rights of the commons of england . pref. pag. . out of gervasius dorobornensis . pag. . who speaking of the election of arch-bishop lanfrank , hath these words ; eligentibus eum senioribus ejusdem ecclesiae cum episcopis ac principibus clero & populo angliae in curia regis , in assumptione sanctae mariae : and another author saith , it was consensu & consilio omnium baronum suorum , omniumque episcoporum & abbatum totiusque populi angliae commisit ei dorobornensem ecclesiam . that this was a parliament , we have little reason to doubt , and that it was called curia regis . see also inter com . t. hill. e. . penes remem . in scacc. . & h. . mem . . . in dors . rot . claus . consideratum fuit in cur. nostra & toto parliamento nostro , &c. wherein , cur. regis , & totum parl. are but expressive of the same thing , and not two courts , as i think : i very well know , that curia regis had various acceptations ; sometime it signified that court of justice that at those times followed the king's person ; sometime it was taken for aula regis , where entertainments and feasts were made , as we read often in our historians ; but , i take it here to be understood of the high court of parliament , for the reasons before touched , and many others , if any shall seem to doubt of it . next , why doth he leave out judiciis , whereas the words are , the bishops , as the other barons , ought to be present judiciis curiae regis , in trials in the king's court , ( viz. the parliament ) he renders they are to be present in the king's courts . to help himself under the covert of an ill translation , savours not of that candour justly to be expected from so learned a person , and one that seeketh after truth , rather than victory ? but , since this author is a subtile and no loose writer , give me leave to guess at the reason of it . he saw plainly , that had he fairly rendred the words [ the bishops as other barons , have right to be present in all causes , sentences , or judgments in the king's court , or parliament , till the cause , sentence , or judgment come to concern life or member ; the word judiciis , in the plural number , must have referred to other judgments in other cases , and then the latter clause [ till judgment , or sentence came to concern life or member ] would have been clearly restrictive as to cases of blood ; for , to be present at the judgments of the court till judgment , is non-sense , except the words be applyed to different cases . now , this interpretation would have quite destroyed his main undertaking , who at last gives a sense of the words , not only coincident with that given by the author of the bishops rights , to which i have before spoken , but contrary to the votes of the lords in parliament ; who , though they seem to admit their presence in the hearing such a case , yet will not admit them to have any part or voice in the judging of it . beside , i must needs take notice , that 't is a strange translation of the words , quousque perveniatur , or , in judicio perveniatur ad diminutionem membrorum vel ad mortem . till they come to give sentence ; when the words more naturally import , till judgment may be fulfilled in the cutting off of member , or life ; which is execution . but , i shall anon give him a more proper translation of the words : in the mean time , will consider all his subterfuges and cunning evasions , by which he would give colour to his interpretation . first , from the occasion the author of the letter , pag. . had said . the prelates affected a kind of omnipotency . ( he conceives the author means in judicature ) and i conceive he made that supposition , because he judged it for his advantage to suppose so : not that the thing was true , or that the author of the letter gave him any cause to take up that fancy . their affectation of omnipotency was not to be freed from that part of the law of the land which was agreeable with the laws of the church , which they were content to submit to ; but their desire was , to be freed from those they thought were against them , to wit , to do service to the king , for their lands , to answer to his justices and ministers , to be subject to the secular power for any crimes they should commit . these were the things they stormed at , and were the ecclesiastical bondage and the wicked constitutions matt. paris , and other historians of his time so much exclaimed against , because they would have had all their affairs transacted in their own courts ; so that our author need not have spent ten pages , to prove what no body affirms . much of the contests between the king and clergy arose from the charter granted by k. stephen , anno . that all persons and causes ecclesiastical should appertain only to ecclesiastical judges ; which charter , whatever stir they made about it , according to our author's logick , was void : ( for maud the empress , daughter to henry the first , third son to william the first , and so right heir to the crown , was then alive , to whom the bishops and people had sworn obedience ; and therefore king stephen was as much an usurper as hen. the fourth . ) this charter was the latis offendiculi , the stumbling stone they could not escape , and the meer restoring now at clarendon the ancient laws and customs confirmed to the people by hen. . was what gave them the greatest disturbance ; not that they affected any omnipotency of judicature , at least in cases of blood : insomuch , that our author had no reason to pin a sense upon the words of the author of the letter , to which , he had no inducement from any words of that author . having done with the occasion , we come now to his second enforcement of his opinion , viz. the plain meaning of the words . first , he quarrels with the copy , the author of the letter follows , taken out of matt. paris and wendover , who notwithstanding , in mr. selden's opinion , have best preserved the meaning of this constitution . seld. tit . hon . part . pa. . . though i do not grant his vatican copy , following , as he saith , gerv. doroberniensis is better , yet for once i am content to follow his copy , and admit the words in judicio to be inserted , which are left out by matt. paris , yet i think necessarily implyed ; but shall never yield to his unwarrantable construction of them , which in conclusion amounts to this . that the bishops were bound to be in the kings courts in all judgments , till it came to sentence of loss of life and member , and then they might go out , in obedience to the canons of the church , if they pleased , to which they pretended themselves bound in conscience to give obedience ; and that for this reason , the pope marked this constitution with a hoc tolerandum , the others with hoc improbandum . i confess , i think the interpretation of these words contrary to their natural sense , and contrary to the opinion and practise of former times , who have always understood them to import , that the clergy ought to be present in all tryals in parliament , except in tryals of blood. but , before i proceed to make good the true sense and translation of these words , it will be necessary to explain the signification of some of them . first , quousque usque quo , dummodo , praeterquam , are often times indifferently taken , as signifying the same thing , and are limiting , restraining particles , and used as exceptions to something which went before , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 till what time , till when , so far forth , except when , or the like . secondly , iudicium signifies properly a tryal at law , a case , a suit , or process , and is not taken for a definitive sentence , except when it is delivered as the opinion of the court , resulting upon a precedent tryal had before others ; in which , he that pronounces sentence hath not , or very rarely , more than a directive power , and do's not give his own single opinion but the sense of others , in matters debated . actiones quarum causa in jus quisque vocatur quandoque dicuntur judicia . ut in l. in bon . fid . . de usuris l. . c. tit . . l. mora s. in bo . fid . theophilus refert in s. . de act. quas athenienses 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 dicebant & budaeus notat . in communi lingua graeca per 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 generali nomine dicebant litem , actionem , paenam , mulctam & judicium , to wit , the whole proceedings . iudicium est legitima disceptatio duorum , aut plurium coram judice cale . dict. calv. lex . juridcirca finem . to the same purpose . by these authorities and many more , 't is plain , that judicium , judgment , comprehends the whole proceedings in any cause , and not the sentence only . pervenio signifies to arrive at , or the accomplishment , or bounds of any thing ; as pervenire ad metam is to arrive at , or come to the goal . ovid speaking of the return made by the eccho , hath these words , verba refert aures non pervenientia nostras , words that arrived not at our ears , they came not to the terms or bounds designed . so pervenior , in the passive voice , must signifie to be arrived at , or accomplished in . that judicium in our case must be taken in the sense i have given , i shall evince from the general opinion of lawyers . i shall begin with magna charta : the words there are judicium parium , and understood of a tryal by his equals . the question which is asked the prisoners after their plea , is , not who shall give sentence upon thee ? but how wilt thou be tryed ? and they that give sentence are not those that try them in criminal cases : nay , their appealing to a tryal by them , is accounted a standing mute . the next authority shall be from the council at westminster , in the . year of hen. . no more than twelve years after the assize of clarendon , and as hoveden saith , taken out of the . of toledo , and summoned as gervas of canterbury saith ; in hoc consilio ad emendationem ecclesiae anglicanae , ex assensu domini regis & primorum omnium regni haec subscripta promulgata sunt capitula . amongst which , this is one . his qui in sacris ordinibus constituti sunt judicium sanguinis agitare non licet : unde prohibemus ne aut per se membrorum truncationes faciant , aut inferendas judicent . that such as were in holy orders should not agitate or meddle in tryals of blood as a thing unlawful : for which reason , they are prohibited from cutting off any member themselves , or from giving their opinions or judgments that such punishments ought to be inflicted . this synod we see was not only a meeting of the clergy , but with them of the primores regni , and the determinations promulgated by their assent and the assent of the king : for the lay-men did usually meet with the clergy in their councils , in those days . to which purpose , see a tractate of a late learned writer , in his iani angl. fac . nov . pag. . which came not to my hand till very lately . now , whether this agitation of the clergy , in matters of blood , had reference to the ordinary courts of justice , in which they might not be present , or to all in general , is not material , since it is only produced to shew the meaning of the word ; and certainly , if it be inclusive as to those courts , it is not exclusive to any other . and agitation in tryals being naturally before sentence , agitation in tryals must extend to preliminaries . let us now come to the constitutions of arch-bishop langton in linwood . 't is first found , lib. . tit . . ne clerici vel mon. fo . . ult . edit . praesenti statuimus decreto , &c. nec jurisdictiones exerceant saeculares , praesertim illas quibus judicium sanguinis est annexum . his quoque duximus adjungendum , ne scilicet judicium sanguinis in locis sacris tractetur , in ecclesia videlicet , vel in caemeterio . authoritate quoque concilii districtius inhibemus ne quis clericus beneficiatus , vel in sacris ordinibus constitutus literas pro paena sanguinis infligenda scribere , vel dictare praesumat , vel ubi judicium sanguinis tractatur , vel exercetur intersit . the sum of all which is , that no clergy-man should exercise jurisdiction in any cause to which sentence of blood was annexed . that no causes concerning blood should be held in churches or church-yards : lastly , that they should not be interessed where causes of blood were handled , nor should presume to write , or dictate such sentences to be inflicted . to the same purpose are the constit. of othobon . ne cler . advocat . tit . . p. . let him look upon his own authority out of hostiensis , protestatio in judicio is meant of a protestation in a suit , or process . i am sure these are testimonies more than enough , to shew the true meaning of judicium among lawyers , which is the only end for which i have produced them . i shall now come to the true translation of the words , but shall not follow mr. selden ; and after him , the author of the letter , in rendring universae personae regni , all the dignified clergy : nor shall i allow of his criticism of persona or personatus , because , for ought appears to me , some clergy-men , who were not dignified might , by license from the king , purchase lands held in capite sicut baroniam , and thereupon , think themselves exempt from this law. having thus far cleared the way , i come now to the true translation of the words themselves , which are , archiepiscopi episcopi , & universae personae regni , qui de rege tenent in capite habeant possessiones suas de rege sicut baroniam , & inde respondeant justiciariis , & ministris regis , & faciant omnes consuetudines regias . et sicut ceteri barones debent interesse judiciis curie regis , quousque perveniatur [ in judicio ] ad diminutionem membrorum vel ad mortem . in english. let the arch-bishops and bishops , and all persons whatsoever of the kingdom , who hold of the king in capite , have their possessions from the king in the nature of a barony ; and by reason thereof , let them answer the king's justices and ministers , and perform all royal customs . and in like manner , as the rest of the barons 't is their duty to be present at all debates , process , or proceedings in the king's court ( viz. the parliament ) till what time , so far forth , or except when in the tryal , debate , or process , the loss of life or member may fall out to be the upshot or conclusion of the case , or the matter put in issue . in plain english , in all cases where the issue or conclusion may fall out to be ended in loss of life , or member , they are by this law to be absent . now i hope upon issue joyn'd , if the impeachment be of a capital crime , the conclusion or upshot may happen to be found to concern life or member . and that this is the true sense and construction of the words , i dare appeal to any man , who is so far master of the language , as not to think fit to consound moods , tenses , and numbers , at pleasure , as this author seems to do , when he reads curiae regis the king's courts , which being in the singular number , resers only to the king 's great court , the parliament , the king's courts in the plural . perveniatur in the potential mood , when such a thing may be brought to pass , with pervenitur in the indicative mood , when such a thing is brought to pass , that is , as he erroneously translates , till sentence comes to be given . and the authorities before-cited evidently shew , that the writers of those ages understood the law in that sense . to which authorities , i shall now add the opinions of mr. selden , sir edward cook , mr. hakewell , and fitz-stephens , a writer of good esteem with our author . mr. selden , tit. hon. part . . ch . . p. . explaining these constitutions of clarendon , saith , that the meaning of this in question is , that the bishops were to sit in judgment with the rest of the barons in all cases , save in cases of blood. now , i hope , every man will admit 't is a case of blood before sentence , and that the barons sit in judgment when the matter comes to be treated of before them . sir edward coke , cap. de asportatis relig. cites the parliament of r. . where , by their own acknowledgment , they went out before any debate ; their presence being prohibited by the canon-law . mr. hakewel , in his mod. ten . pag. . hath these words ; therefore we see the presence of the bishops in parliament , in respect of their baronies , is , duousque perveniatur ad diminutionem , &c. for so , even unto our times , when question is had of the attainder of any peer , or other , in parliament the arch-bishops and bishops depart the house , and make their proctors . here you see they are to depart when question is had , &c. as to their making proctors i shall speak more fully hereafter , as also shall shew , that the canon law both by these constitutions and before them , was part of the consuetudines regni : yet this , by the way , appears plainly , that the desire of the cominons in r. . that they might make proctors , must have reference to the beginning , not the end of the tryal , when the naming them was useless . but let me not do him wrong ; for , pag. . he touches the sense i have given , but dislikes it ; viz. that the last clause is not to be understood of the sentence , but of the kind and quality of the cause : that is , they are to be present in the king's courts , till they come to a cause where life and member are concerned . this sense certainly is near the truth , but that he confounds the potential with the indicative mood . the words are , where life or member may be concerned , which he reads , are concerned , and so seems to refer them to the sentence which ought to be referred to the whole proceedings . in the last place , let us hear the sense his grave author fitz-stephens puts upon this last clause . after the appeal of the arch-bishop becket to rome , the king expostulates the matter with him ; asketh him why he would break his oath , so lately sworn at clarendon ? amongst which , hec una est ut episcopi omnibus ejus assint judiciis preterquam judicio sanguinis . that is , that the bishops should be present at all tryals , except when the tryal concerned blood ; where you see , he renders duousque by preterquam as indeed ●…sque quo , quousque , usque dum , praeterquam , have the same sense all restrictive . now fitz-stephen was undoubtedly at the parliament at clarendon , which was not above seven months before the meeting at northampton . fitz. ca. . col . . our author proceeds , and tells you , there is a great deal of difference between duousque perveniatur ad judicium mutilationis membrorum vel mortis , and quousque perveniatur in judicio , &c. i confess , i understand not this criticism , which however is not warranted by the authority of any copy ; neither can it be made capable of any good sense , except one not different to what i have given ; for if it were quousque perveniatur ad judicium , &c. i ask to what doth perveniatur refer ? i think most properly to curia regis . that is to say , 't is their duty to be present at all proceedings in parliament , until such a case may fall out where life or member may be concerned . for , we must not be permitted to fancy a sense of words , and then , contrary to all rule , wrest them to our own biass , and against the opinion of such as writ before us : neither are we to expect from these old monkish writers , such polite latin as tully writ , but take their meaning as others who liv'd nearer the time have done before us . so that i have done with this clause , when i have first told the reader , that i have translated debent interesse . 't is their duty to be present , because they would often take liberty to go away , or protest , or be troublesom upon several pretences : sometime the canons allowed them not when the law did ; sometime the liberty of the church was concerned , as appears by the statute de asportatis religiosorum , where they absented themselves . co. . inst. pag. . all these subterfuges were obviated by this statute , ( although perhaps not by them well observed ) which required their attendance in parliament in all causes where they were not prohibited by the received laws of the nation . now our author acknowledgeth , that the council of toledo was brought into england by lanfrank , in william the first his time ; which council , is put out in the second tome of the english councils , by sir will. dugdale and mr. spelman , as the work of sir henry his father . that council forbids their presence in cases of blood , which being , as he admits , received here as low as the conquest , made it a custom in henry the first his time , and an ancient custom in hen. the second , and now being allowed at the parliament at clarendon , to which they all swore , makes that custom or canon as much a part of the law of england , as any affirmative statute can , and so not to be repealed , except by as equal authority as that by which it first became a law , and was now affirmed as such . by what hath been hitherto said , i think it will appear competently plain to any unbiassed reader , that the word [ in judicio ] doth not refer , as he supposes , to that particular tryal then in court , as if it had respect to one period in the tryal , and left them at liberty to be present at all other parts of it ; but was restrictive to all tryals whatsoever which might have their conclusion in blood : and his allusion in the same page is as little solid . as suppose , saith he , charles the fifth had required the protestant princes to attend him to mass , as other princes did , only when the mass-bell tinckled they might withdraw ; would not any reasonable man believe by this that they were obliged to their attendance till then : so here the king commands their attendance till it comes to such a point ; therefore before it comes to such a point , their presence is plainly required by this constitution . this allusion or supposition doth no way answer our case ; except he had shewed us that there were different sorts of masses , in some whereof , the tinckling-bell sounded , in others not : and then charles the fifth had required their attendance at all masses , until such a mass might sall out in which the tinckling-bell was to sound ; here their absence would have been allowed during every part of such a mass. our case is the same ; some tryals there are in parliament which may concern life or member , others which cannot . now the statute saith , 't is their duty to be present in all tryals , until such a tryal happen in which life or member may be concerned . i hope here this restriction will have reference to the whole tryal , and not any particular period of it . i had not said this , the matter being sufficienttly cleared before , but out of apprehension , that some unwary reader might be misled by this author's subtilty , and believe there was weight where indeed there was none . but however , the words of petrus blesensis will give great light to the whole matter . this petrus blesensis was arch-deacon of b●…th , and the place cited is amongst his o●…ula , in the edition i have in quarto , and precedent to that other in folio . 't is in his tractate de institutione episcopali . pag. . ( or rather , y y for the pages are in my copy falsly numbred ; dedicated to the then bishop of worcester . the design of the whole tractate is to shew the duty of a bishop , and by the whole scope seems to be addressed to all bishops , and not to the english only . he lived in the time of hen. . for his . epistle is to pope alexander the third , from k. henry , about the rebellion of his son. the words are not in my edition , as the author recites them , principes sacerdotum & seniores populi . but , quidam principes sacerdotum , & seniores populi . not the chief priest and elders , but certain of the chief priests and elders of the people . by which , it seems to me , this could not be understood of an english parliament , because all the bishops had equal right to be present in parliament , and this is restrained to certain of them . secondly , i think seniores populi never comprehends abbots , priors , with lords and commons together : i know baronagium , clearus , & populus , are sometime so taken ; but i believe seniores populi never comprehends them all : so that our question being concerning their rights in parliament , if this be not meant of one , it will neither advantage nor prejudice me , but only shew how willing they were to break through all rubs when they could , in those times of their power , and the blindness of the people . the whole sentence by our author abridged to his purpose , is as followeth . illud coelestem exasperat iram , & plerisque discrimen aeternae damnationis accumulat quod quidam principes sacerdotum , & seniores populi , licet non dictent judicia sanguinis , eadem tamen tractant disputando , & disceptando de illis , seque ideo immunes à culpa reputant , quod mortis & truncationis membrorum decernentes , à pronunciatione duntaxat , & executione paenalis sententiae se absentent . sed quid hac simulatione perniciosius est ? nunquid definire , & discutere licitum est quod pronunciare non licet . in english. this doth exasperate the wrath of heaven , that certain of the chief priests ( or bishops ) and elders of the people , notwithstanding they do not dictate , or pronounce judgments of death , yet they handle them in their disputations , and discussions of the same ; yet notwithstanding think themselves free from guilt , because , though they decree the sentence of death , or loss of members , they only absent themselves at the pronunciation of the penal sentence . but what is more pernicious than this simulation ? is it lawful to discuss and determine what is unlawful to pronounce ? and in the whole treatise inveighs against the general neglect of the bishops in performing their duty , not confining himself to any place , and seems a prophetical description of the practise of the inquisition , afterward brought in by s. dominick . but if it were referred to the practise of some of the bishops and clergy of england , probably it may be meant of such as were made secular judges , or sate with the earls in the county court , where they perhaps were present at the discussion , though not at the sentence , which was left to be pronounced by the secular judge , till after the time of edw. . see edw. . c. . where it is ordained , that the justices appointed to take assizes , in every county where they do take as they be appointed assizes , shall remain together , if they be lay-men ; but if one of them be a clerk , then one of the most discreet knights of the shire , being associate to him that is a lay-man , by our writ shall deliver the goals of our shires . here we see their power , though justices , to meddle in capital cases was prohibited ; nay some records are in the tower , that when two have been commissioned as judges for the same circuit , the commission of the clerk has been restrained to common pleas ; that to the lay-man unlimited , see iani ang. facies nova . pag. . . shall we now believe , that what was prohibited to clerks in edward the first his time , was permitted to them in the high court of parliament in subsequent times ? i have given my reasons why i think seniores populi could not comprehend the abbots , priors , lords , and commons ; yet if any man will contend this was a parliament , then must seniores populi comprehend , amongst others , the commons and their proceedings to be in a legislative way , in which the commons could only meddle , and in which , we deny not the clergy to have their part ; so that this doubty precedent will no way serve our author's turn . his second instance to make good his assertion , is taken from the authority of will. fitz-stephen , a monk of canterbury , in mss. in sir rob. cotton's library , and some other private hands , in which he relates what happened to arch-bishop becket , in the contest between the king and him in the great council at northam ton , called soon after , becket's obstinate carriage at clarendon : in which relation , among others , that author hath these words . secunda die considentibus episcopis comitibus barenibus angliae omnibus norpluribus roffensis episcopus , & quidam alius nondum venerat . archiep. lesae majestatis coronae regiae arguitur ; quia ( se ) ut supra narratum est à rege citatus ro causa johannis ( to wit , iohn the marshal ) neque venerat neque idonee se excusasset . archiepiscopi depulsio nullum locum habuit . allegata tamen johannis supradicti injuria , & jurisdictione hujus causae propria , & curiae suae integritate ; rex exigit judicium . archiepiscopi nulla ratio est approbata . then after much debate who should do it , judgment was pronounced by the bishop of winchester , which ended in the confilcation of all his personal estate . the sum of what fitz-stephen saith ( which is cap. . col . . p. . in that copy i have seen ) is this , that when the bishops and barons of england and many of nor. normandy ( as mr. selden thinks ) were met together , the arch-bishop is there accused of treason , because having been cited by the king in the cause of one iohn , he appeared not , nor gave in a sufficient excuse . to let pass what is materially replyed by the author of the letter , to this authority , i shall make some observations of my own , not yet taken notice of . first , that this assembly held at northampon was not a parliament , but a great counsel summoned by the king soon after becket's stubborn carriage to his prince at clarendon , to be advised by them how to humble that proud man ; where it was lawful for him to use the counfel of any of his subjects , of normandy or others , as he thought good ; who certainly , in an english parliament could not be admitted amongst the natural english. secondly we hear nothing of the rest of the clergy nor the commons but of the bishops , earls and barons ; but that the commons had allways right to appear in parliament , is learnedly made good by mr. petit in his tractate of the ancient rights of the commons . in the next place , the relation of fitz-stephens is not only different from the relation of other historians , but in it self is subject to many exceptions : for first it is plain he was not accused of high treason in the case of john the marshal , as he saith , which appears , by the judgment of that council , which upon the whole matter reac'hd only a confiscation of his personal estate , which shews clearly the accusation was not in that case for treason , because they here punished him with a lesser punishment than was due to treason : now 't was not in their power to change the nature of the crime , but must have either found him guilty of treason , or have acquitted him . but the truth is , there was a second accusation by the king , about the same time , and in the same place , concerning accounts to the king of receits , during the vacancy of the sees of some bishopricks , when he was chancellor , to which he refused to give other answer , saying , he was not cited in that cause , and over and above , that he was fully discharged of all accounts whatsoever when he was made arch-bishop : but the heats and animosities occasioned hereupon , made him appeal to rome ; which being so immediately after , and contrary to his oath at clarendon , might be called by the name of treason in those days : yet it appears plainly , that an appeal to rome was not in those times look'd upon as a capital crime . to this purpose , see spelman's councils . tom. . fol. . concilium pan-britan . apud pipewell , congregatis illic archiepiscopis britanniae quibusdam . norman . galliae & hiberniae episcopis abat . &c. infra nominat . praesente etiam ipso ricardo rege , an. dom. . & ric. . the king having given the arch-bishoprick of york , gaufrido fratri suo quondam lincolniae electo . the arch. of canterb. calumniatus est consecrationem illius , & prohibuit ei ne ipse ab alio quam ab eo consecrationem seu sacerdotalem ordinem susciperet . super hoc appellant ad dom. papam . coram rege & universis episcopis , & clero & populo chartam willielmi regis bastardi in qua continebatur controversia quae olim vertebatur inter cantuariensem & eboracensem ecclesias protulit . here you see an appeal to rome , publickly made , and the appellant not questioned for treason or any other misdemeanour ; and this done in rich. . who was the son of hen. . but admit this appeal , or rather perjury , in that time had been a capital crime , his appeal here hindred the pronouncing any judgment : so that fitz-stephen is mistaken in the first point ; for he was neither accused nor condemned of treason in the cause of john the marshal . secondly , he tells you he was accused of treason , because being cited , he did neither appear , nor competently excuse himself , which must be understood to be meant by some other proctor or advocate ; for , if he did not appear , 't is impossible he should excuse himself any other way : for it is clear he was at northampton , ipsa die venimus northamptoniam , saith fitz-stephen , cap. . co . . that the court sate not till the second day after their coming , and he made an appearance on the third , is confessed by the same author , who a little before tells you , he sent quatuor milites to give his answer , and the king's exception was , that he did not answer in his proper person , which certainly by law he was not obliged to do , so that here was but a contempt of one day ; however , they were resolved to proceed for the arch-bishops depulsio , or answer for himself , took not place ; for so i take the meaning of depulsio to be . archiepiscopi ratio nulla est habita . whether you take ratio for an account , which probably he might give as to l. prerended to be due to john the marshal , or in any other sense , 't was not allowed . lastly , you have these words , archiepiscopus autem quia sententiae , vel recordationi curia regis non licet contradicere sustinuit , consilio episcoporum , ad acta , ad mitigandum , & honorandum regem , solenni , & manuum ipsius missione quasi concessionis judicii uti moris est ibi . the archbishop , by the counsel of the other bishops , because he might not contradict the sentence , and memorial of the kings court , submitted to their acts ; to the end that by his submission he might honour the king , and mitigate his anger ; and yielded to the judgment , and put in for his sureties , all the bishops , except london , of which , notice was taken . can any thing now be clearer than this , that he both appeared , submitted to the judgment , and put in sureties to perform it , and that here could not be any formal accusation of treason , whatsoever the counsellors might dispute among themselvs . so that fitz-stephen's relation , as to this matter , is not only contrary to the judgment of the court , which condemned him not for treason , and contradictory to himself , who making the relation as an historian of what was done in that case where himself was present , must be supposed to write what in truth was the matter of fact , and not what was the opinion or discourse of others ; except he had told us so . but this proud prelate being , as the king thought , not sufficiently humbled by the judgment aforesaid , nor by many other affronts put upon him by the king's officers , a new crime , as i touched before , is found out against him , for accounts , to the value of marks , to which he is required to answer , and to which , saith our questionist , he gave a dilatory answer ; so that the king requires him to stand to the judgment of the court : but the answer he gave was this , that the king knew well enough , that before his election to the see of canterbury , he was discharged ; and how the prince , the barons of the exchequer , and sir robert lucy , chief justice , gave him a discharge for all accounts and secular receipts from the king , and so free and clear , was chosen to the see , and would plead the same no more . was this now a dilatory answer , and not a clear discharge ? what doth any accountant in the exchequer do more ? neither could the court expect , being cited upon another business , he should bring his discharge in his pocket . but what if this accusation had been true ? was this treason ? if every cheater had been a traytor , the king would have had enow to hang ? but this storm went higher , for becket finding himself over-power'd by the king's party , and menacing words from them , comes in his archiepiscopal robes , with a cross in his hand , and appeals to rome ; for which , he was blamed and sharply rebuked by his old enemy the arch-bishop of york ; and as hoveden saith , by london and others . but , by his appeal he avoided all sentences could be pronounced against him , yet left his enemies and the king much incensed against him . gervase of canterbury tells you , col . . that the king sitting upon his throne , it seems in a hurry , for the words are euntes discernite , said , going forth , consider what this perjured and contumacious traytor ought to suffer itur , judicatur . they went out and gave their opinion , for this could be no legal judgment , because first it was out of the place where the council sate , and his appeal prevented all farther proceedings , as it was then held . this is the sum of the story , taken out of daniel's history upon the year . as he saith , particularly delivered according to the writers of those times : who those were he tells you in his preface ; hoveden , giraldus cambrensis , mat. paris , mat. westm. rishanger , and others . by this relation you may see the credit of this grave mss. author , who hath knit together so many mistakes , and different from the relation of others , of , or near the same time . but the bishop is now gone , though before his going the king expostulates the matter with him ; to whom he answered , that he was summoned in the cause of john , the marshal , and would answer to no other , having then made his appeal . neither , to speak my mind freely , can i see how he could be accused of treason ; for , who was the accuser ? the king could not , because by reason of the dignity of his person no averment could be made against him ; neither could any man be tryed but by his peers . now we hear of no articles exhibited , no jury summoned , nor no legal proceedings in case it had been a parliament : for , though mag. charta was not so perfect as in henry the third's time , yet all historians agree 't was granted in henry the first 's time ; of the chief points whereof , stephen langton , arch-bishop of canterbury , brought a copy into the parliament in king john's time ( a worthy prelate he was , though an italian ) though it were the law of the land before ; and though the council of the king might , in some misdemeanours , proceed arbitrarily , yet in treason they could not , as is well observed by mr. selden , priv. of bar. ca. . pa. . but they were in those cases to be tryed by their equals . co. . inst. pag. . tells you , 't was as ancient as william the first , gives you an example of roger , earl of hereford , so tryed in his time. but we have not yet done with fitz-stephens ; for , our author tells you , that the king , upon the proud answer of becket , charges the bishops , that together with the barons , by virtue of their allegiance , they would give judgment upon the arch-bishop . they excuse themselves . the king presseth them . fitz-steph . words are , rex responso archiep . accepto instat episcopis praecipiens , & obtestans per homagium , & fidelitatem sibi debitam & juratam ut simul cum baronibus de archiepiscopo sibi dictent sententiam , &c. this he translates , that the bishops , together with the barons , would give judgment upon the arch-bishop . this appears to be after his appeal , when the giving of judgment , or medling farther in the business , was refused : beside the undue translation of the words , which signifie no more but the desire of the king that they would tell him their opinion touching the arch-bishop , i wish he would give me any good authority where dictare regi sententiam ( for sibi here is the same ) can signifie giving judgment upon a criminal , as he translates them . i know very well , that dictare judicium may be taken to deliver any sentence leisurely . linw. lib. . ne cler. vel mon. where it is all one with dicere or suggerere sententiam . beside , no such sense can be affixed to these words ; for , the king's question refers to them all in general , but certainly the king did not mean they should all pronounce sentence , but only privately tell him their thoughts : yet from hence would our author infer , that this was a parliament , and that the bishops had power to give judgment in criminal cases , when he hath proved neither ; because in truth , this was only an attempt of the king 's to draw them to his party , having then intentions to send to rome about this matter . the words of the bishop of chichester , which he spake to becket after his appeal to rome , will do him as little service ; for they import no more , than that the interdict laid upon him and the rest from doing any thing against him during his absence , hindred them from being present at such proceedings against him as the king required from them . 't is not to be doubted , but the king would have pressed them to deliver their opinions , whither his appeal were treason or not : what their judgment would have been , no man knows . if it had been a parliament , then summons must have been sent out for his appearance , and proceedings by bill of attainder , in a legislative way , not arbitrary in cases capital . seld. pri . bar. cap. . pag. . as before noted . he closes this head of discourse with a pretended confutation of the author of the tractate of peerage , a book by some snarl'd at , but by none answered : but let us examine what they both say . the author of the discourse of peerage , tells you , pag. . and backs what he saith , by the authority of justice doddridge , sir edward cook , and mr. selden , that these were only certain recapitulations of the king's prerogative and the peoples right , then sought to be infringed by the pope and clergy . that these recapitulations were avite consuetudines , is confessed , and that that canon concerning blood is as ancient in england , as the conquest , our author acknowledgeth , that gervasius dorobernensis reckons this article among the laws then established , from all which the discourser of peerage might very well argue . that which was a custom in henry the first 's time , taken notice and allowed in henry the second's time , and of the beginning whereof there is no memorial extant , nor account to be given , ought reasonably to be esteemed as part of the ancient custom , which is the common law of the kingdom . all that the grand questionist thinks fit to reply to this , is , that it is little to his purpose , because this clause in question is not a limitation of their power , but a priviledge and indulgence for their absence . that this fancy is erroneous , i have before shewed from the natural sense of that clause , as also , that long before these constitutions they were both by their own canon law , and custom of the nation , prohibited from being present in cases and consultations of blood , and that themselves admitted not only the liberty but the obligation , by their constant obedience given to that law , and custom in absenting themselves in those cases , as the author of the letter hath asserted , and shall by me be farther cleared in my answer to his precedents . now , i do not think that this author believeth that these constitutions gave them a greater liberty than they had before ; but if it found them bound , that statute left them so , and was as all affirmative statutes are , though not introductory of a new law , yet are they corroborative of the old , and , in their oath , they swear obedience to this article as well as to the rest ; to wit , that they would , according to their duty , be present in all proceedings in parliament , with the rest of the barons , except in cases of blood , in which they tell us afterwards , that it was not lawful for them to be present at any hand ; so that upon their allowance , there was more than a liberty , for there was a law against them . beside , could this sense be allowed , it would no way serve to make good his main hypothesis , that they might be present till the definitive sentence came to be given : for , if the law were obligatory as to any part , why not to every part of it ? our aurhor is as little fortunate in his attempt to evade the authority of roger hoveden pag. . who saith , that 't was agreed in the synod at westminster , that no clergy-man should agitare iudicium sanguints . he tels you this was part of a canon agreed at toledo , which ricard , archbishop of canterbury thought fit to have received here , and , i think would inferr , that here was no more done then a proposal of this to be received , not that itw as so . but if we will believe gervas . dorbernensis , in h. fo . . an. . he will tel you , they went much farther . his words are , hoc concilio ad emendationem ecclesiae anglicanae assensu domini regis & primorum omnium regni haec promulgata sunt capitula . among which one is . his qui in sacris ordinibus constituti sunt judicium sanguinis agitare non licet , unde prohibemus ne aut perse membrorum truncationes faciant aut inferendas judicent . here is not only a proposition of the arch-bishop but an assent and promulgation of the same , by the king and chief of the kingdom . and , the true sense of that canon , which being so confirm'd , had the force of a law , is , that clergy-men should not agitare , or medle in any tryal of blood ; which certainly extends to preliminaries , but are prohibited to make amputations themselves , or give their opinion , or judgment that such amputations ought to be made by others . their presence at such trials was unlawfull ( non licet ) and their acting prohibited . so at last i have done with this clause ; and have shewd that it is not indulgent but restrictive ; that it was a custom in h. . time , sworn to at clarendon , published at westminster years after , and , by all this , made part of the law of the nation ; have answered all his subterfuges , and evasions , have shewed the interpretation i have given was always received . i expect now so much ingenuity in this author , that he will either yield to my sense , or give another , agreeable to the rules of grammar , and the proper signification of the words ; and not take the liberty to explain them at his pleasure , and confound voices , moods and numbers : insomuch , that this statute will remain testimonium irrefragabile still ; and i am sure , if he observes his due bounds he must give an interpretation equipollent to to what i have given . so hard it is for the greatest wits to maintain an ill cause . i come now to the consideration of the protestation made in the parliament held in . r. . which our author saith , much cleareth the whole business , especially the preface therof ; for the omission of which he blames the author of the letter . i shall give it you in english , which our author hath not thought fit to do , and by that means deprived many of his readers of means to make a true judgment of it . in the name of god , amen . for as much as by the law and custom of the kingdom of england , it belongs to the arch-bishop of canterbury , for the time being , as also to the rest of his suffragans , fellow-brethren , and fellow-bishops , with the abbots , priors , and other prelats whatever , who hold of the king by barony , as peers of the foresaid kingdom , to be personally present in the parliaments of the king whatsoever , and there , with the rest of the peers , and others that have right to be there present concerning the arduous affairs of the nation , and concerning other things there usualy to be treated of to consult treat , ordain , appoint and define , and other things to do , which there in time of parliament are prepared , or fitted to be done . in all and singular of which , we , william arch-bishop of canterbury primate of england , and legate apostolical for our selves , our suffragans our felow-bishops , and fellow-brethren , as also for the abbots priors and all the foresaid prelates , do protest , and every one of them doth protest , who either by himself , or his proctor shall be here present at this time publickly and expresly that we intend , and every one of us will in this present parliament , and others as peers of the fore-said kingdom after our accustomed manner , be present to consult , treat , ordain , and define , and all other things , ro exercise together with the rest that have right to be present in the same : the condition , state , and order of us , and every one of us , being still saved . but , for as much as in this present parliament , some matters are to be treated of , in which it is not lawful for us , or any of them , according to the decrees of the holy church , and the canons thereof , to be at any hand personally present . for which reason , we for our selves , and for every of them , do protest , and every one of them here doth also protest , that we intend not , nor will , ( because according to the law we cannot nor ought not ) be present in this present parliament whilst such matters are , or shall be treated of : but that we , and every one of them , will upon that occasion all together absent our selves , our right of peerage , and of theirs , as to our , and their being present in the said parliament , and as to our , and every of their exercising , and doing all and singular things , our , and their order in all things allways preserved . and we farther protest , and every one of them protesteth , that by reason of this our absence we do not intend , neither doth any one of them intend , or will , that the trials , or proceedings had , or to be had , in this present parliament , upon those aforesaid matters in which we cannot , nor ought not ( as is premised ) be present , as much as in us lyes , or any of them lyes , shall in times to come be any way impugned , weakened , or broken . he tells you , that this protestation , saving the legall formalities consists of three parts . first a declaration of their undoubted right as peers of the realm , by virtue of their baronies , to sit , and vote , in all debates in parliament . where by the way the words are de regni negotiis not omnibus , of the affairs of the kingdom , not all of them , and aliquibus may as well be understood as omnibus : and this appears soon after upon their own shewing ; for they tell you they intend to be present in this and all other parliaments , and presently after tell you it is not lawful for them to be present in this parliament while such matters were handled to intend to be present , and then tell you that 't is not lawful to be present in this parliament shews that their power was limited , and not universal : however upon this protestation they went out at the begining , and made no proctor ; for , they tell you , they ought not to be personally present at any hand where such affairs are or would be treated of , which certainly was before the definitive sentence ; so that the canon required their absence at preliminaries , according to the sense of all times till these new expounders came in place . i will not here dispute whether this protestation be an act of parliament : with submission to better judgments , i think it hard that what was intended as a protestation should by construction be advanced to an act , no more than his present majesties concessions , upon the desire of the lords and commons , in the case of some of the late traitors , should have the like construction ; and the entring into the roll by the clerk , was no more then entring into the lords journal now . but , since our author hath made his observations , let him give me leave also to make mine . first , this protestation is cunningly worded by their own direction , therefore their calling themselves peers of the realm doth not make them such in any new sense ; neither doth entring in their journal book do more than make it a record , and render them liable to punishment , if any thing unfit in it shall be taken notice of an example of this we have in the bishops protestation , . that all laws to be made in their forced absence should be void : which could not any way weaken them , or ours here , that they should be good , any ways strengthen those laws then made . the next thing observable is , that he saith , 't is their undoubted right , as peers of the realm , by virtue of their baronies , to sit and vote in all debates in parliament . in which assertion , he begs two things : first , that they sit there by vertue of their baronies , whereas he hath not proved they ever had any , except tenere sicut , or quasi per baroniam , or per servitium baroniae , be equivalent with esse baronem , which i cannot so easily admit , though they call themselves so , and in ordinary speech may be so called by others , that question having never been determined though admitted in pleading by counsel . ) the reasons of my doubts i have given in my first chapter , and shall submit them to more learned judgments . they say , here they sit as barons , but allow that they have no right to judge in those cases then in agitation : and notwithstanding , it should be true , that william the first divided the kingdom into counties and baronies , to hold of him in capite ; a county to contain twenty knights fees , a barony thirteen , or thereabout : it doth not appear that every bishop had thirteen knights fees , or that some of them had not above twenty , yet all of them held equally in capite , sicut baroniam , and sate there among the nobility , as associates to them . i shall farther observe , that their right to sit and vote there was more solito , as they had usually done , and this with a salvo , or saving to their state and order : so that except our author had first proved that 't was their usual manner to vote and judge in matters of blood ; and that this was agreeable to their state and order which themselves deny , he hath done nothing : for , they pretend not to any other right but what they usually enjoyed , and what was agreeable to their state and order . let now our author take what advantage he can from the preface to the protestation ; for the omission of which , he so much blames the pen-man of the letter . the second matter he affirms and attempts to prove , is , that their absenting themselves was merely in obedience to the canons of the church , and not out of respect to any other law. yet sir william baker's continuer , pag. . ult . edit . saith , their absence was not from their obedience to the canon-law only , but according to the practise of the kingdom to this day : by which it seems , he look'd upon it as the common practise for them to do so . for , he tells you , 't was impossible they should claim such a right by virtue of their baronies , or that the lords should allow such a protestation if there were any other law against them then in force : and that if this protestation were a law , the case was more strong on their side : for , then it declares they had that right they pretended to , by law. should i admit this for once ? doth it not also as solemnly declare , that in cases of blood they are barred by the canon-law , and so make that bar a part of the matter enacted . but for a fuller answer and discharge of what he urgeth , without repeating what i have said before , as to the protestation it self , let me put him in mind , what i doubt not he knows , that all arguments ab impossibili , or deductions ad impossibile , are the weakest ways of demonstration , and never used where any other can be brought , which at best , in this case , can only argue a neglect in the lords . but secondly , he may be advertised , that all protestations are entered according to the desire of the protestors , and not made an act of the house . lastly all this is but what they usually did , and hath not relation to any other matter than what was their custom , and was agreeable to their state and order , which was to absent themselves in cases of blood. his digression afterward for for two or three leaves , about the power of of the pope , or his legate to dispense with irregularity , which here he calls a penalty ; in another place , the sanction it self , together with the mystery of the canon-law , serves in my judgment to no other end , but to shew , the bishops were generally time-servers , and forced polity and religion to bend to their turns ; forgetting that nothing is profitable which is not first just. however , we do not hear of any dispensation granted here either by the pope or his legate : and i would be glad this author did let us know that his opinion is , that the pope or legate , have a legal power to to dispence with those canons established in councils , and received by a nation . i always did believe , that those that attributed to the pope a greater power then i do , did not look upon him under any other notion than as one trusted to keep , and not to break the canons . having thus cleared the protestation from his objections , let us examine the clear meaning of it . this author saith that the very reading it is sufficient to convince any man that the canons were the only cause of their absence . i will not deny but that it might him ; but do not believe it hath reason to force others to be of this mind : for , if two laws were against them , to wit , the canon-law and the common-law , confirmed in parliament , 't was not unusual for those sort of men to express which of them they had most mind to . but beside this , i find no absurdity to affirm they took notice of both , though more obscurely of the last : by a non licet to the one , by a de jure non possumns . to the other . 't is not lawful for us at any hand , by the first , viz. the canons , which are to us a greater law than any other . next , by the law of the land , de jure non possunius . not that in it self our presence in all cases were unlawful , if the canons were not in the way . but there is also another law which prohibits us from being present in those cases in which otherwise we might have thought it reasonable to have given our assistance , who are no such strict observers of the canons , when 't is for our advantage to break them . i might now proceed to the examination of his iast head ; how far the canon law is at this day binding . but , because i would not leave any thing untaken notice of , he thinks fit to make use of for the strengthening his cause , i shall speak something to what he farther urgeth . he tells you out of knighton , that this parliament was called parliamentum sine misericordiâ , and that many circumstances concurred , which might make the lords willing to admit of their protestation , because their business might proceed better against the king's ministers . he need not have urged inducements to perswade the lords to admit of their protestation , except he had first shewed they had power to have refused it . but by this inducement he insinuates , that the bishops would probably have obstructed justice against those wicked ministers about the king. what the accusation was , for which some of them were executed , i shall let you seek in the historians of those times , being unwilling to rake into that puddle any deeper . i shall therefore leave this parliament and the mysterious canons , as our author well calls them , and come to the anti-parliament to this , held in r. . where , as he saith , the king had a mind to undoe what was done in the parliament in r. . which intention , this author saith , he had kept in his mind ten years , by being willing to let the bishops be absent in . that he might have that pretence to question in this anti-parliament , the things then done . an undecent charge he lays upon the king , if it be well considered . the declaration , by help of the bishops , that the king's pardon granted in parliament , in . was revocable by the king , was the labour of his ministers in 〈◊〉 which those ministers prevailed in 〈◊〉 measure ; but their actions , with 〈◊〉 ●…cceeding murther of the d. of glo●… , the king's uncle , bred such a jealousie and distrust between the king and his people , that i may call it the first stone which left not rolling till it ended in the ruine of that poor prince , who continued not king much more than a year after , and was soon after the deprivation of his crown deprived of his life also . what art was used to make that parliament subservient to their ends , i need not tell you . one of the first attempts was ( what i touched before ) to make pardons granted by the king in parliament , revocable at his pleasure ; in this the clergy were very instrumental . after this , the commons come to do their parts , and they represent , that divers judgments had been undone heretofore , for that the clergy were not there present ; and therefore pray they might appoint some common proctor , with sufficient authority to that purpose . from hence he infers two things : first , that the commons thought their presence necessary , because judgments had been undone for want of it : therefore their concurrence in judgment was thought necessary to make a judgment valid . secondly , that they should therefore make a common proctor . this is strange logick : their presence was thought necessary , and judgments undone for want of it ; therefore , they ought to be present , i think , ought to have been the consequent : but the commons pray that in that respect they should make a proctor . i should think now , the true inference ought to have been , the bishops and clergy ought not to be personally present in cases of blood , yet because it is fit they should be represented , at least in some cases , let them nominate a common proctor , to be in their stead ; where their concurrence is necessary . this is sense , the other is contradictory . 't is evident by this petition of the commons , that matter of blood was to be treated of ; for there needed no proctor for any other use , since themselves might have been present . and i think it very clear by the year-book , in e. . that when issue was once joyned , 't was their duty to absent themselves . for , that book is , that the peer questioned may plead not guilty , and then the bishops to depart ; so that it is plain they were not to vote after issue joyned , in matters of blood. so hakewell , in his modus tenend . pag. . before cited , saith , that to our days , when question is had of the attainder of any peer , the bishops are to depart . now i take the law to be all one , what ●…ue is joyned in a capital accusation , so as there be any upon which the court may proceed to famination of the cause , and to judgment accordingly . as to our purpose in the case of the 〈◊〉 of danby , he pleads the king's pardon , the king's counsel , or the commons , demur . the matter then in issue upon the demurrer , is , whether the pardon is good in law ; upon which , the bishops , according to e. . are to go out ; because , if the pardon be found invalid , then must sentence of death be pronounced against the criminal : for , i take the law to be , that the pleading a pardon in bar upon an endictment or impeachment , is a confession that all the matters contain'd in the endictment or impeachment are true , and he shall never be admitted to plead not guilty afterward . but this by the way . our question is about the commons petition , that they would make a proctor , which being in matter of blood , the author of the letter saith , was the only time ; whether this was error temporis , as one saith , the error of that time , or an inconsiderate rash desire of the commons , as another , is not necessary to enquire : for , it doth not appear , that any capital judgments had been reversed by reason of their absence , so that their desire fails in the ground of it , if they meant of capital ones : for , the first judgment against the spencers was affirmed in ed. . and the reversal made ed. . was made null ; so that the commons it seems were ignorant in that , and might be unadvised in the rest , as they sometime have been . beside , if he consult sir edward coke in his instit. cap. de asportatis religiosor . pag. . he doth well excuse the commons in shewing that the bishops were present at the charge against the spencers in ed. . so that the commons might not know how far the bishops were conusant of the thing , and looking only on the out-side , were ignorant of the act in e. . for the discourser saith , there were no more . no , replyes the grand questionist , not in his study , but the commons might know of more , for we have not all the rolls . what then ? this at best is but a surmise , and the two judgments against the two spencers were enough to make their allegation true , that divers judgments had been reversed for that cause ; though it be not to excuse their ignorance in not knowing that the first judgment against them was revived by the statute of ed. . and it seems strange to me , that he that had so much reverence for the then house of commons , should have so little respect to the opinion of both houses now : for , the commons unanimously voted , that the bishops ought not to be present at any debate concerning the earl of danby , or the lords in the tower , by them impeached of treason . journ . of parl. pag. . and . the lords , about the same time , voted , that the bishops were to go out when their lordships proceeded to examine guilty , or not guilty . this author , with great confidence , and little respect , affirms , they have right to stay till the definitive sentence is to be given . but , let me now admit that it was reasonable in the house of commons to move that they might make a proctor , and that the bishops had also right to nominate one in capital cases , yet certainly , when they all absented themselves together , 't was in their choice whether they would make any or no ; and consequently , their omitting it , as in r. . could be no cause to reverse a judgment , as the commons alledged . the reason is , as i touched before , because they take notice of the matter in question , by hearing the accusation read , which is always done before they go away , which is enough to make any act good , and to be said to pass by their consent , because they voluntarily absent themselves , though with allowance of the lords , where their presence is not lawful . vid. co. . inst. de asport . relig. pag. . so that the reason of the house of commons was every way weak and unsound . in the next place , let me examine what the office of a proctor is , being made . it is plain by the imperial law , that a proctor is in the nature of an attorney , to appear , and make answer in the name of his client , to such things as the court shall think fit to demand ; but never , by that , or any other , had he power to over-rule or contradict what was the sense of the court. i have seen some ancient precedents of persons under the degree of noble men , made proctors by the bishops ; for which , consult mr. selden's privil . of the baron . pag. . hon. of the lords spir. pag. . els. mod. pag. . but in all cases i have met with , the ancient form runs thus . at the parliament at carlisle under edward the first , the words are , ad consentiendum quod tunc ibidem per dictos prelatos & proceres contigerit ordinari . another in edward the first 's time , in a parliament at westm. runs thus . ad comparendum & audiendum pro nobis in hoc parliamento tractanda & consentienda . so that their power was but to appear and hear for them what by others were to be treated , and consented to . accordingly mr. selden saith , that in attainders upon appeal , they made their proctors for assenting in parliament : i hear nothing of dissenting . seld. privil . bar. pag. . neither is it reasonable to believe ; the lords would suffer any commoner to sit , and vote among them as judges ; neither do we read of any place where such a proctor was to sit , having no right of his own to be there . if you will say he was to sit upon the bishops bench , and there to give his vote , you give the bishops power , by their simple deed , to give place and vote in parliament ; which is as much as the king can do by his letters patents , and by which , the patentee is enobled . neither is it just to think they could any way transfer a right for others to judge for them , where themselves were prohibited to be present or judge . it appears , that in the parliament in th . of henry the third , there were a hundred and twenty bishops , abbots , priors , and deans : 't is not like there were many fewer in richard the second , who was not long after him . can any one now think the lords would suffer thomas percy to dispose of a hundred and twenty votes ? it had been much safer to have let the clergy to have been personally present , than to unite in one man a power to over-ballance them all . i think it probable , for the reasons before given , that their proctor either sate among the mean officers , or that in those times the lords and commons sate together , and that this percy was one of those that served for his country . but against this is urged , that in edward the third's time there were distinct houses ; though before that time they might sit together . sir ed. coke , prin , and others , are of opinion , they sate together far in edward the third's time : why may not that be extended to his son richard the second , the exact time when they divided being not so exactly agreed upon ? i have before shewed out of mr. petit , rot. parl. henry the fifth , pars . n. . that the commonalty have ever been accounted a part of the parliament . i have also shewed out of cambden , selden , and others , that baronagium comprehended both lords and commons , and in all histories of those times you shall frequently meet with concilium baronum , baronagium , and the like . mr. selden tells you , tit. hon. part . chap. . no. . pag. . that the burgesses of some good towns , as well as the cinque-ports , which still retain the same name , were called barons . in the seventeenth of king john , dors . claus . memb . . baronib . germuthae gipswici norwici , &c. mat. paris , anno . pag. . speaking of the citizens of london , hath these words , ( being englished ) whom for the dignity of the city , and the ancient liberties of the same , we usually call barons . of this identity of names we can give no better account , than because they were usually joyned with the other barons in great councils , of which there were also two sorts . gervasius tilburiensis part . cap. . speaks of barones majores and mineres . fitz-steph . cap. . mentions secunde dignitatis barones . in the mag. char. of king iohn , mat. par. anno . mentions a summons to a common counsel of the greater barons by the king 's writ , and of other tenants in cap. which were barones minores by the sheriff , but all of them comprehended under the general name of barones or baronagium ; under which general name , all meeting who had any right to come , either as barons or free-holders , we have no reason to believe they did not all sit together in the same counsel , whereunto they were summoned under the same name . the old modus , put out in english by hakewell , with his seeming approbation of the book , saith , in his chapter concerning cases and judgments that are heard , that every degree might go by it self , and consider of it ; by which it appears , they then sate together . edw. . elsing . p. . and . saith , in two parliaments they went apart , and in one gave subsidies apart . the case is in edward . where the cause of summons being shew'd , the commons were willed to withdraw to their ancient place , and consult among themselves , proves no more than that they had a place to go to when 't was fit they should consult apart , not that they always did so ; no more than it doth that the prelates sate not among the lords , because they sometimes went apart , and had a place to go to as well as the commons . we know , that iacobi , when prince henry was created prince of wales , they all sate together in the court of requests , and may do again when the king pleaseth . i have now done with this rather curious than necessary question , which i had not touched upon , had not percy 's place in parliament given me occasion a little to search into it . yet i think it not amiss here to insert the prayer of the commons , and the form of the proxy , made by the clergy to sir thomas percy , in rich. . memb . . no. . as it is at large upon the record , that the reader may be able to give a rational judgment both what his power was , and how the clergy were represented by him . the commons first pray the king , that whereas divers judgments and ordinances before time , made in the time of his progenitors , had been recalled and made null because the estate of the clergy were not present , et pour ceo prierent au roy que pour surety de sa person , & salvation de son royaum les prelates , & le elergy ferroient un procurateur avet povoir sufficient pour consentir en leur nome , a toutes choses , & ordonances a justifier en cest present parlament , & que sur ceo chacun seigneur spirituel diront pleinment son avis . sur quoy le dicts seigneurs spirituels commetterent leur plein povoir generalment a un lay personne , & nomerent en especial thomas percy chevalier , & sur ceo baillerent au roy une schedule contenant leur povoir , la quelle nostre seigneur le roy receust & commanda ( le dit . mardy ) estre entre de record , en rolle de parlement de quelle cedule la form sensuit . nos thomas cantuariensis , & robertus ebor. archiepiscopi ac praelati , & clerici utriusque provinciae cantuar. & eborac . jure ecclesiarum earundem habentes jus inter essendi in singulis parlamentis domini nostri regis , & regni angl. pro tempore celebrandis , nec non tractandi , & expediendi in eisdem quantum ad singula in instanti parlamento pro statu & honore domini nostri regis nec non regaliae suae , ac quiete , & pace , & tranquillitate regni judicialiter justificand . venerabili viro domino thomae de percy mil. nostram plenarie committimus potestatem : ita ut singula per ipsum facta in praemissis perpetuis temporibus habeantur . it is observable in this prayer , the commons recite ordinances as well as judgments , to have been made null by reason of the bishops absence , and comprehended not judgments alone . now of what latitude ordinances were taken , whether temporary , or otherwise look'd upon as laws , is not very certain . secondly , they desire such a proctor as might have power to confent to such things as should be done . thirdly , they naming a lay-man who had no right of his own to sit there , and giving the king a schedule of their procuration , was enough to make their right be preserved to them without any explicite consent by their proctor , or perhaps his being so much as present at any debate . but i now proceed to observe how ready our author is to pick what advantage he can against the author of the discourse of peerage , from the words by him quoted out of the manuscript history written by the abbot of molros in scotland , where the king of england sent bishop fox , as i remember , to treat with the king of scotland , iames the fourth , then there , touching a match between the children of those two princes . 't is a book to be seen in some few hands , and writes of the parliament in r. . the author of the discourse , pag. . tells you , that that manuscript author blames the prelates much for the opinion they gave generally about the revocation of pardons : but in this , as in many other authorities that make against him , our author curtails the words , and cites no more than makes for his turn . the words at large are these : dederunt ergo locum judicio sanguinis in hoc facto . ita quod dubitabatur à pluribus si non incurrerent in poenam irregularitatis pro negotio memorato ; unde contigit quod propter istud minus peccatum inciderent in aliud majus peccatum consequentur , ut laicam personam constituerent procuratorem pro iisdem qui illorum vice consentirent ad judicium sanguinis dandum in isto parliamento si necesse foret & occasio emersisset . the prelates by this act of theirs gave allowance or countenance to tryals of blood ; insomuch , that it was doubted by many , whether they did not fall under the penalty of irregularity , by reason of the foresaid business : from whence it happened , that instead of that lesser offence they fell into a greater by consequence , in that they made a lay-man their proctor , who in their room might consent to a judgment of blood , to be given in that parliament , if it were needful , or occasion had happened . i have translated dare locum fudicio sanguinis , to give way or allowance to a judgment of blood ; because it appears by the subsequent words , he meant them so , the use the author of the discourse of peerage makes of these words , is to shew , that the canons were not the only cause that hindred their presence in ii rich. . for then , when they had no encouragement from the king or lords , then they ought not at any hand to be present in such cases : but here in . when they had any allowance or connivence as to the laws against them , then the canons were neglected altogether . his inference seems to me rational and good . oh! but saith the grand questionist , they were present in voting the pardon to the earl of arundel revocable . under his favour , i think he is mistaken , for the book warrants no such matter , only tells you , that they gave a general vote , that pardon 's granted in parliament were revocable by the king ; by consequence whereof , some of those who were pardoned in . were executed in . which votes , i hope might pass , though the parties concerned were not present , and this meaning the book seems to enforce : for , first that author saith , it was a doubt amongst many , whether that act did not make them incur the penalty of irregularity , which would have been none , had they personally by their votes , revoked the pardon granted to the earl of arundel . secondly , he saith by making a proctor in that case of blood , they committed a greater fault than the former ; but certainly , the making a lay proctor was not a greater fault than actual allowance , and personal voting in blood , which that author charges them with . lastly , they made a proctor at the beginning of the tryal , as is manifest , and agreed by all ; therefore the crime charged upon the clergy , could not but be before any proceedings against any of the criminals , except that preliminary vote which made them guilty of blood in that chronicler's sense . in conclusion , there was no act to revoke these pardons , but the king , it seems , caused execution to be done upon his own authority , and those general votes in which the clergy were present : so that after all this attempt , the authority of this mss is against him . but after all this , we have one help left , saith the author of the letter , for if this action in this parliament would do him any service , the whole parliament was repealed in i henry the fourth , and so no authority to be laid upon it . i , but replyes the grand questionist , the author of the letter admits that the three henries , fourth , fifth , and sixth , were usurpers , and therefore the repeal of that parliament void : i acknowledge the author of the letter saith so , but he is so to be understood as the law is now taken , not as it was then ; for , we see henry the fourh in parliament claimed the crown as his right , as being heir to iohn of gaunt , fourth son to edward the third ; whereas the title of mortimer who was by another parliament declared next heir , arose by his marriage with philippa , daughter and heir to lionel duke of clarence , who was the third son to edward the third : but it was never before determined , that the daughter of a third brother should be preferred in succession to the crown , to the son of a fourth . we see maud the empress , daughter to henry the first , could not be received queen , though she attempted , and sought for it , neither ever had we a queen since the conquest till that time . nor can i divine how long it might have remained a question , had not that controversie been determined by the happy union of both titles in henry the seventh , who married the daughter and heir of the house of york . the next question will be , how far laws made by an usurper generally received , and accepted by the people upon the resignation of the immediate precedent possessor shall be esteemed valid . i fear , if we make such laws void , we must find some new way to make many of ours good till henry the second . was not robert eldest son to william the first , alive till toward the latter end of the reign of henry the first , who about the eighth year after he was king , deprived him of his eyes ; after which , he lived a prisoner twenty six years ? william rufus had no better title than the acceptance of the people , and his composition with his brother robert , who resigned his title for marks per an . henry the first succeeds by title no better , till robert's miserable death , which happened in the thirty fifth year of his reign , and about a year before his death . after him , stephen steps into the throne , help'd by two powerful friends , the bishop of winchester the popes legate , his own brother , and the bishop of salisbury his great friend , and this in the life of maud , daughter to henry the first , and his own brother theobald , whose title , though bad , was better than stephen's , they being both grand-children to william the first , by adela his daughter , marryed to the earl of blois . but for this great favour , and their breach of oath to maud , he promised great immunities to the church , and amongst other , that clergy-men should not be bound to answer to secular courts . but by our author's logick , this concession was void , and the clergy had no reason to complain , because the old law was revived at clarendon . at last , to sodder all , a composition was made , that henry , maud's son , should have the crown after stephen's death ; which was performed by her consent , maud being then alive , who having strugled for the crown as much as she could , was at last contented with this composition , which was the only legal title king stephen had , and no more voluntary in maud than was that of richard the second . but at length maud dyes , and henry the second and his son richard the first , enjoyed the crown in their just rights . after their death , iohn comes upon the stage , in the life of arthur his elder brother's son , so that here we have another usurper ; after whose death , and the death of arthur , henry the third had a good title , whose descendents enjoy it to our time ; for the quarrels between york and lancaster were not about the line , but the persons ; insomuch , that till henry the third , the best title to the crown was the acceptance of the people , and particular compositions with those who had the greater right . come we nearer home , to the time of henry the seventh , who after the death of his mother , and his marriage with the daughter and heir of edward the fourth , was rightful king. his eldest daughter was marryed into scotland , from whom , our present king enjoys his crowns , upon an unquestionable title . we will now come to his son , henry the eighth : he had two daughters , mary and elizabeth , the first by katharine , his elder brother arthur his relict ; the second by anne of bullein , born in the life of his first repudiated wife queen katharine . mary was by act of parliament declared a bastard , as born within unlawful espousals : elizabeth after the disgrace of her mother , was served in the same kind , yet we see both of them successively enjoyed the crown by virtue of another act which entailed it upon them , with the approbation of the people ; whereas , otherwise the true right would have been in mary queen of scots , our present sovereigns great grand-mother . i might pursue this theme through france , in the case of hugh capet ; through spain , in the family of the d. of medina celi ; and at present in portugal , but i will not go out of our own kingdoms ; and have said enough to make it manifest , that laws may be made or repealed by such kings as are in possession , by composition or resignation , with the acceptance of the people , else our unwary author hath laid a foundation to overthrow or weaken , not only most of our laws , but most of the laws of europe . over and above all this , if the laws of henry the fourth , fifth , and sixth , were not good , why did not the nobility made in that time , get new charters of creation in edward the fourth's time ? nay , what became of the whole hierarchy ? many of the prelates and inferiour clergy , must of necessity be consecrated by those that were no bishops , and consequently , their consecration and orders by them conferred , were void , and all our subsequent clergy , who derive their authority from those who had no legal right , extinguished ; a thing , in my judgment , worth consideration to such as would avoid laws made by actual kings , though their just title might be disputed . his mentioning oliver rather deserves pity for his inadvertence , than any other answer : for , he cannot but know , out late king chose rather to loose his life than resign his power ; that he never had quiet possession , but a prince always strugling against him ; nor had he the acceptance of the people , or any thing but force to buoy him up , which after his death fail'd in his next descendent . by what i have said , it may appear to any equal judge , that the laws made henry . were good , notwithstanding his pretended usurpation . and as to the thing it self , that the bishops absence in cases of blood doth not make a judgment given , void , appears plainly by the case of the earl of salisbury , in h. . who petitions that a judgment given against the father , might be reversed , and assigns for error , that the bishops who were peers of the realm , were not present ; and upon full hearing and debate , it was adjudged no error . now i appeal to this author , whither he can think that my lord and his counsel were so stupid , as not to urge what they could think of for the advantage of the earl , and the clergy ; for whatsoever other faults might be laid to the charge of his parent , the cause appears to be turn'd upon that hinge : by all this we may well conclude , that the lords in that parliament did not hold the bishops such peers as ought to be allowed judges concerning the life and death of noble-men . this judgment our author hath not thought fit to take notice of , which might be equivalent to error temporis , for it was either ignorantia or neglectus rei . but he tells you , edward the fourth repealed all again , in which he is mistaken ; for , edward the fourth repealed nothing but what concerned the title between york and lancaster , with some charters to others . i come now to his third head or point , whether supposing that the bishops absented , as he contends , only upon the account of the canon-law in the times of popery , whether those laws do continue in force now since the reformation : he thinks they do not . in this i shall be very short , and against his reasons , which are rather surmises than other , i shall return direct authorities of judges , and lawyers in point . first , he saith the canon-law was grounded upon a superstitious fancy , that to be present in cases of blood brought upon them irregularity , and hath there a large digression upon the unreasonableness of the canon-law , in many particulars . i shall easily yield , that many of the rules brought upon the church by the papacy , are full of hypocrisie and self-ends , but do not think that our bishops did first forbear from bloody tryals about lanfranks time , as if this canon had been unknown in england till then , almost years after the first council of toledo , for sir henry spelman reckons that canon to be anno christi , . and william the first came in anno . and in this first council , this canon is cited : but it is more reasonably referred to the eleventh council of toledo , and the sixth canon , which expresly forbids their medling in blood ; 't will yet be about years before williams time. it is therefore more probable , that their forbearance in those cases proceeded not from any thing brought in by laufrank , but was received here long before , from their obedience to the apostolick canons , which did not only forbid their medling in blood , but in all secular employments ; and were carefully observed till constantine's time , who flourished in the year of christ . 't is likely enough , that the liberty then taken by the clergy was restrained in spain by that council . and if our author please to observe it , till they came to be corrupted by covetousness and ambition , their chiefest employment was to make peace between their neighbours , as chancellors and arbitrators , rather than as lawyers and judges . in earnest , whoever shall consider the intricacy of the laws of england , as they are called the common-law , will rather believe , when they sate as chief justices , if ever they did so , their seats were among others better versed in the common laws than themselves , and they sate rather to direct what was equal according to the rules of mercy than according to the rigorous balance of justice . this certainly was their office when they sate with the earl in the county-court . mr. lambert in his laws of edgar , cap. . hath these words : celeberrimus autem ex omni satrapiâ conventus bis quotannis agitor cui quidem illius diocesis episcopus , & aldermannus intersunto quorum alter jura divina , alter jura humana populum edoceto . here you see the bishops office was only to teach the people the divine law , as the earl or alderman did those of the land. his next suggestion is , rather a conjecture than a proof ; to wit , that this canon was never received , ( contrary to himself before ) or that if it were received it was in diminution of the king's prerogative , and so repealed by the statute of h. . cap. . he might as well have said , that all the ecclesiastical laws , as of tithes , marriages , probate of wills , and other faculties now exercised in the ecclesiastical courts , are against the king's prerogative , and therefore void . what success an attempt of that nature lately had , he may easily call to mind . but let me bring into his remembrance , what the statute made in the same parliament , h. . cap. . hath in the preamble of it . whereas his majesties realm recognizeth no superiour under god , but only his majesty , hath been , and is free from subjection to any mans laws , but only such as have been devised , made , and ordained within this realm for the weal of the same , or to such others as by the sufferance of the king and his progenitors the people of this realm have taken at their free liberty by their own consent , to be used among them , and have bound themselves by long custom to the observance of the same ; not as to the observance of the laws of any foreign prince , potentate , or prelate , but as the ancient and accustomed laws of the same by the said sufference , consents , and customs , and none otherwise . we see here , the sense of the whole parliament , that such laws as had been used and accustomed , should be look'd upon as the laws of the kingdom , and not of any foreign prince or prelate . now let him tell me , what laws were common to us with any foreign prelate , except the ecclesiastical and canon-law , which having been here used , are acknowledged a part of the laws of the land by usage and sufferance of the people . so that we have now a whole parliament , that they did not look upon these as against the kings prerogative , and so null as this author would have it ; but fully confirmed as part of the english law. agreeable with this is my lord coke in cawdrey's case , lib. . . b. it is , says he , resolved and enacted by authority of parliament , that all canons , constitutions , ordinances and synodals provincial , that have been by common use allowed , shall be of force , and not to be taken away , but by act of parliament . now himself confesses that the canons are against him ; then may i well conclude , that the law is against him , since all canons then in use , are part of the law at present . page . he tells you , the sanction of this law , which was irregularity , is now ceased , and that some of our most learned judges have declared , that is taken away by the reformation . first , i am to learn , that irregularity was the sanction of the law : i always understood , that the sanction of a law was the matter established by it , obedience to which , was required under the penalty of irregularity ; but i will not stand upon that , which if true , would open a door to disanul all laws made under a penalty , by pardoning that . but the fore-going statute of h. . cap. . clearly shews , that all canons accustomably used , are still in force ; who hath then taken off the penalty ? if no body , then their forbearance in cases of blood ought still to be observed in obedience to them . of this opinion were the parliament , both lords and commons , in the case of the earl of strafford ; whom this author is pleased to honour with the name of a cabal ; as also , the proclamation to call in my lord keeper finch , who was then fled ; both which , were done in the absence and after the bishops were withdrawn , and after william , bishop of lincoln , had given his opinion they ought so to do , and are taken notice of by the author of the letter , pag. , , . and by him very materially observed , that that proclamation against my lord finch , was drawn by the judges , by order of the lords temporal , after the old parliamentary way : from whence it is easie to infer , that it was the old parliamentary way , for the judges to draw up such proclamations , by command of the lords temporal , and that the clergy medled not in those matters . to all that hath been said to this purpose , he hath either given no answer , or what makes against him . he tells you , that my lord of canterbury was first named in commission for the tryal of the queen of scots . this signifies little ; for here he was only a commissioner , but no judge in parliament . secondly , that though the queen could not dispense with the law in general as to all individuals , yet to any one she might , and the express naming him a commissioner , might amount to a dispensation . thirdly , though the arch-bishop was named , yet he was not present at the tryal ; whose names you may see in cambden's annals , anno . and therefore the canon was observed : for , what other reason could be given for his refraining that service , but because by it he might have become irregular . i shall add one or two authorities more , and so conclude the point . arch-bishop abbot in king iames his time hunting in one of his own parks , shooting at a deer , by an unfortunate glance of his arrow , kill'd his keeper : much debate there was , whether this act had made him irregular ; and that it did so , was strongly argued by williams , bishop of lincoln , then lord keeper , who said , that by the canon-law then in force , he was ipso facto irregular . here you see the canon-law was then deemed in force , and irregularity to be by it contracted . at last , commissioners were appointed to examine the business , whose names you may see in rushworth , both divines , civilians , and common lawyers . after a full debate , they agreed he was not irregular ; for this was no crime , and therefore by law could not contract irregularity ; for , by law the arch-bishop was allowed to hunt : this accident being only chance medley , could not bring any guilt upon him . but there was not the least doubt made of the canons being in force , and that punishment might be inflicted upon the breakers of them . baker's chron. pag. . who being then a man of good age , made this relation upon his own knowledge . this may serve in answer to his reflection upon dr. oates , that he hath incurred irregularity by his discovery of the horrid plot , not yet fully examined , for this discovery was but his duty ; so far was it from being a crime , that it deserved , and hath already found some reward from his majesty . of the same opinion was arch-bishop laud , with the rest in the star-chamber , in the censure of dr. leighton ; where arch-bishop laud would not suffer any corporal punishment to be inflicted upon him until he was first degraded , nor his ears to be cropt in st. paul's church-yard , because the ground was consecrated ; now degradation and consecration of places , are the fruits of the canon-law . lastly , one madie was in the high commission court pas. car. . declared irregular , and deprived for the same , having first , as was alledged , preached after suspension . by all which it plainly appears , that irregularity may be incurred at this day ; and therefore those canons not against the king's prerogative , nor consequently , taken away by the act of hen. . but that irregularity may still be contracted by the breach of them . i have now done with his two first chapters , which contain the substance of his whole book , and have shewed ; first , that it is not clear that bishops were barons , otherwise than by appellation ; that they were never enobled in blood ; that no instrument can be produced what baronies were annexed to their several possessions , whose bishopricks have the title common to other noblemen ; as lincoln , carlisle , bath , worcester , york , and others , which is not usual , that one should be duke or earl , and another baron of the same place , beside the superfetation of baronies , by dividing one bishoprick into several baronies . but , that it is much more reasonable to believe that their tenure in cap. by baronage service , which was imposed upon them as a burthen , not an honour , might cause them to be called to parliament as barones minores , lesser barons , but not left out at the king's pleasure , as the lesser barons were , because they were to summon the clergy to convocation . secondly , i have made it apparent , that the convocation is properly the third estate in parliament , of which they constitute the upper house , and not other than a part of a third estate among the lords . thirdly , admitting they were a third estate in the lords house , entire as some think , there could be no colour for their tryal of a noble-man , who is a member of another estate . fourthly , the canons of the council of toledo , were not the first cause of their absenting themselves in cases of blood. fifthly , i have vindicated the parliament at clarendon from all his exceptions , and made it very plain by the natural construction of the words , as well as by the interpretation of his own author fitz-stephens , they are not to be present at any consultations or debates , where the end may be blood ; and that the proceedings in the council at northampton make fully against him ; as also , his fancy that the bishops had right to be present till the definitive sentence concerning blood was to be given , is against the opinion of both houses , in the last parliament . sixthly , i have shewed that the protestation made richard the second , if it were not a law , was a solemn confession by themselves , that the canon-law was against them , and further given great probability that there was in it respect had to the established law of the kingdom . seventhly , i prove that the canons are still in force , that they are a part of the law of england , and not to be annulled but by act of parliament , and that irregularity is not taken away by the reformation . lastly , i have given clear answers to all his pretended authorities and reasons urged in his second chapter , and shewed , that they are either not to the purpose , or misapplyed , or against him . i should now come to examine his precedents in his third chapter , and assert the manner of tryal of bishops by common juries , but that is fully done by the learned author of the discourse of peerage ; and for precedents , if there were any , as i think there are not yet , the law being against him , they would signifie little . yet , least he should think himself neglected , i shall in the next chapter take them into consideration . chap. iii. i will not be long in the examination of his precedents ; because , in my opinion , the lords in the last parliament have determined the controversie . for , our author contends , that the bishops have right to be present till the definitive sentence comes to be given , and longer if they please , for he sets them at liberty . now the lords in their explanatory votes , made may . . have declared , that the bishops have right to sit in court till the court proceed to the vote of guilty or not guilty . tho' this their lordships have now admitted be a liberty greater than , i think , their predecessors ever enjoyed , who in cases of blood went out at the beginning , yet this vote takes from them all power judicature as peers to the lords , for it gives them no liberty to pass any vote , but only allows them to sit as spectators , but reserves the judgment to themselves . i perceive this author is not willing to give much credit to the relation of brompton , touching what he reporteth of the king 's appealing earl god-win of the death of his brother . i will not concern my self in this matter , it being before the conquest , and a story in which the relaters much differ ; some say 't was at the table , others in council ( why not in both ? ) next his appeal is to the earls and barons . i wonder our author doth not say that the bishops were here meant by barons . for if there were then no barons , some others must be comprehended under that name ; and not long after , our author tells you , the bishops were comprehended under that name in the case of hamel . vid. leg. edvar . conf . cap. . & nono de decimis & apibus , where the name barons is used before the conquest . i will not give overmuch credit to this relation of brompton , the rather , because william of malmsbury looks upon it as a romance ; for he saith , rumigeruli spargunt , cronica tacent . yet perhaps brompton's authority may go hand in hand with fitz-stephen . but , admitting the story had some truth in it , his endeavour to prove the bishops present , is not unpleasant . he tells you , after the conversion of ethelbert , they were never absent in any councils of the nation that were publick , and that there was then no canon to be afraid of ; for the council of toledo was brought in by lanfrank some time after . first he assumes a negative , they were never absent ; which cannot be proved , except by one who had lived all those times . next he tells you , they had no canon to be afraid of : it seems they lived then without rule ; i do not believe this author would have them do so still . thirdly , he saith that council of toledo ( take the first or the eleventh , the last of them about five hundred years before ) was first brought in by lanfrank . i think the substance of that council was observed before , but not established as a canon till the synod at westminster , of which i have spoke before . the story of the arch-bishops condemning queen emma , might be as true as that other of godwin , and both romantick : but however , he tells you , the bishops did certainly sit in the county-courts at all judgments . what their office was in those courts , i have told you before out of the laws of alfred : as also you may find the same in sir henry spelman's gloss. verb. comes . pag. , . where he at large discourses of the causes to be tryed in those courts , and tells you they were only for the ease of the poor , and things of small value ; and that the great and powerful men had their tryals in the kings courts ; and more to the same purpose , which the reader may peruse if he see good : and in part are transcribed by the author of the letter . pag. , , . now let any man judge whether the opinion of sir henry spelman , or his conjecture of capitalia placita , and the legend of saint cuthbert , be of most credit . the author of the letter tells you , that no capital crimes were triable in the county-court . but our author tells us out of the laws of edw. the confes. set out by henry the first , mention is made of capitalia placita , cap. . the title of the chapter is , de capitalibus placitis . the words follow : in summis & capitalibus placitis unus hundredus , aut comitatus judicetur à duobus , non unus duos judicet . sic inter judices studia diversa sunt , ut alii sic alii ali●…er fuisse tendunt vincat sententia meliorum & cui justicia magis acquieverit . interesse comitatui debent episcopi comites , & caeterae potestates qui dei leges , & seculi negotia justâ consideratione diffiniant . recordatione curiae regis nulli negare licet alias licebit per intelligibiles homines placiti , & nemo de capitalibus placitis testimonio convincatur , &c. — unusquisque per pares suos judicandus est . in this obscure law there is nothing at all that sounds like a tryal in criminal matters , except our author will say , that in such cases no man shall be convicted by witnesses , when there is no other way to try matter of fact , except his own confession : for , the words are , that no man may be convicted by testimony . next , it is plain , summa , and capitalia placita are joyned together , one explaining the other ; so that i conceive nothing more is meant than considerable cases , where the matter in law was dubious to the judges , who were not one bishop , and one earl , but bishops , earls , and other great men , and the judgment was not to be given according to the major , but of the better opinion of such as were the judges . the records of the court were not to be denyed to any man , ( others it seems might ) by understanding men concerned in the cause . the meaning of the law i take to be , that cases of right might be tryed here of any value , but criminal cases were not medled withall . i remember not to have read any where , that capitalia placita had that signification our author suggests ; placita coronae , placita parliamentaria , and placita communia i have met with ; but capitalia placita , for placita capitalium criminum , is new to me . however the meaning of that be , yet the manuscript life of saint cuthbert , as to the thing it self , will help us out . he tells you ( it may be with as much truth as brompton ) that one hamel the son of earl godwin , being imprisoned by the earl of northumberland , his friends earnestly interceded with the earl , that he might not loose his head. here indeed we find a man imprisoned by an earl , application made to the earl in his behalf ; no mention of any bishop , any tryal , or any farther proceeding in the business : but the tryal , and the bishops presence at it , are both supplyed by our author , who hath proved neither , or produced greater proof than the authority of a loose legend , and that lame too : and yet upon this he triumphs , as if the point were clearly gained , when there is nothing of what he would have made good by him . is it not now a thousand pities , that so well sounding words , so well put together , should signifie nothing ? the next precedent our author takes into consideration , is that of nicholas segrave , cited by the author of the letter , pag. . by this author , pag. . which he would evade , by supposing the bishops might be comprehended under the name of magnates , or counsellors , and shews , that some of the bishops were probably then of his counsel . for a clear answer to these surmises , i shall give you shortly the whole case , as you shall find it at large , inter placita parlam . ed. . riley , pag. . nicholas segrave had summons by the sheriff , and the command of the king , to answer to such things as should be objected against him , and to hear , and stand to what the curia domini regis , to wit , the parliament , consideraret in praemissis . segrave upon this summons , venit in pleno parliamento in praesentiâ ipsius domini regis arch. cantuariensis , & plurimorum episcopor . comitum , baronum , & aliorum de a consilio regis tunc ibidem existentium . nicholas de warwick ( perhaps the king's atturney ) accuseth him of many and great crimes , which he offers to prove . segrave confesseth all , submits to the king de alto . & basso , et super hoc dom. rex volens habere avisamentum comitum baronem , magnatum & aliorum de consilio suo injunxit eisdem in homagio , fidelitate , & ligeantia quibus , ei tenentur quod ipsum fideliter consulerent qualis poena pro tali facto sic cognito fueri infligenda . the comites barones , magnates , &c. adjudge him worthy of death . after this , the king pardons him , and orders him to put in seven sureties , and to render himself a prisoner at the king's command , and to be accountable to the king for the issues of his land , held in his own or his wifes name : this , in short , is the case of segrave , in which it is very clear , that at the accusation the bishops were present , as of right they might be , but at the tryal they are omitted . now to suppose them comprehended under a general name , and out of order , who were particularly expressed when their presence was lawful , is both unusual and unreasonable : unusual , because it is against the rule of law , to comprehend the greater after the nomination of the lesser ; and so to take the bishops under the name of great men who are constantly first named , and were so here at the beginning . secondly , 't is unreasonable to make a different construction of the same words in different cases or laws : now we know that in the statute de asportatis religiosorum , the words are comites , barones , magnates , where we know the bishops were not comprehended under the name magnates , nor ought to be here ; and to suppose the contrary is against the current of all acts of parliament and records . by the magnates , and alii de consilio were meant the judges and other counsellors at law , whose advice the king required , as was very just and usual in those times . 't is likewise observable , that the word consilio is written with an ( s ) which shews , those counsellors he advised with were not necessarily members of parliament , for then the word would have been written with a ( c ) concilio . his remarkable precedent of the d'spencers , will stand him in as little stead ; in the reign of edward the second they were both condemned , and the exilium hugonis d'spencer is to be seen in the old natura brevium . those judgments were afterward reversed at york , in edward the second ; but in edward the third , the first judgments were affirmed , and so they were look'd upon as condemned persons , which continued ( though themselves were dead ) for above seventy years ; til by the prevailing party , in richard the second , that act was again called in question , as void , in regard the bishops were absent : and the bishops desired to make a proctor by the commons , which they accordingly did ; but at last , through their exorbitant proceedings , that whole parliament was repealed in henry the fourth . to this i have largely spoken before , to which i shall refer the reader , with this farther advertisement , that in troublesome times things are not always carryed as they ought to be ; wherefore , we are not always to look at what was , but what ought to have been done : neither are we to be governed by seeming precedents , such as sometimes , as in the case of ship-money , may be produced against law. i have before made it manifest , that the canons of the church long before lanfrank's time forbad clergy-men to meddle either in blood or secular employments ; neither is it reasonable to believe the laws of this land were different from the general rule incumbent upon all clergy-men to observe , especially when we see the immunities granted them by king stephen were so early recalled by henry the second , and the constitutions then made at clarendon , look'd upon as the ancient customs of the nation ; insomuch , that the discourser had very good reason to say 't was the common usage , which is the common law of england . pag. . our author comes to the examination of those records urged against him : and his exceptions in general are : first , that they are negative , the bishops were not present at tryals of blood , therefore they had no right to be present . secondly , they were sometimes absent when they were not prohibited , therefore their absence was voluntary . thirdly , they are sometimes comprehended under the name of peers , or grands , and therefore may be comprehended under those names when the name prelate is not expressed . if this author can be driven out of these holds , i shall believe he may fairly quit the field , without any dishonour . i shall begin with the tryal of roger mortimer , in edward the third , but we must fetch our judgment from what was done in edward the third ; where , upon the desire of roger wigmore , cousin , and heir of mortimer , that attainder was examined , and all the proceedings repeated ; and upon the whole matter , the king charges the earls and barons , the peers of the realm , that for as much as these things principally concerned him , and them , and all the people of his realm , that they would do such right and loyal judgment as was fit for such a person to have . the words upon the record are , le roy vous charge counts , barons , les pieres de son royaum que de si come cestes choses touchent principalment a luy , a vous , & a tout le peuple de son royaum que vous facies , au dit roger droit , & loial iugement come attient a un tel d'avoir . which said counts , barons , and peers of the realm , returned and gave their judgment , &c. the words are , the king charges you counts , barons , the peers of his realm , not as our author renders the words , earls , barons , and peers of the realm , as if peers were there distinct from earls and barons , when the words import no more than who were those peers , to wit , the earls and barons : therefore the author of the letter had reason to say the bishops were not there who were left out in the reference made by the king , whose words are , to the earls and barons , the peers of the realm . now if the question be asked who are those , must not the answer be , the earls and barons ? so that the bishops must be comprehended under the names of earls and barons , or not at all . from whence it will follow , that this negative is something more than a bare negative , we may at least call it negativum praegnans , a negative big with an affirmative : for it is first told , who were those peers . secondly , to whom those judgments belonged . chiefly to the king and them , and consequentially , to all the kingdom : and whatever the practise is now , i think it not hard , to prove , that anciently no judgment , or very rarely any by the lords in parliament , was complete in criminal cases , or execution done till it was ratified by the king ; yet , that i may render all possible right to the bishops the matter will bear , i would easily grant that ( if they were at all summoned to that parliament ) they might be present whilst the proceedings against mortimer were in reading , but went away when the lords proceeded to the consideration of what judgment was to be given against him , which was enough to give them knowledge of the matter in agitation , and as much as was requisite to make them parties , according to the opinion of my lord coke before cited . i said ( if they were summoned ) because in many ancient parliaments i cannot find they had any summons at all , as in hen. . ed. . ed. . ed. . ed. . and ed. . but after that were never omitted : so that 't is probable enough , that they were not summoned in ed. . who were left out in the sixth year of the same king. but , in this i will not be positive , because it may be the rolls have been lost . pag. . he takes a more exact view of the case of mortimer in ed. . and presseth strongly to have it allowed , that the judgment against mortimer , and some others , was by act of parliament , because the reversal of it in e. . was by act : and therefore , saith he , we may justly suppose , that the judgment against them was ratified in parliament : beside , some historians say , he was condemned iudicio parliamenti , and his own petition is , that the statute and judgment may be reversed and annulled ; and from this infers , that if the first judgment was by act of parliament , and the bishops not there , then they might not be present in their legislative right ; and if they were there , then this negative way of argument proves nothing , that is , they de facto were not there , therefore de jure they ought not to be there . this i confess is subtle , but not solid ; 't is all grounded upon no greater authority than supposition . first , the reversal was by act , therefore the judgment was so too ; this doth not follow , for many judgments in parliament may be reversed by act of parliament which were not so pronounced . his second conjecture hath as little weight , because some historians say it was by judgment in parliament , therefore by act , because it is not a parliament without the king , and lords , and commons ; for , except this be his argument , it is of no force at all ; for it might be , and doubtless was , by judgment in the lords house , which in ordinary speech was called judgment in parliament ; nay , how often doth himself infer the presence of the bishops from the words , full parliament , when the commons were not concerned , and indeed , meant no more than a full house . lastly , wigmore desiring the statute and judgment might be reversed , proves as little : for , every thing ordained that is statutum is not presently an act of parliament though every act be statutum . beside , i do not find statutum in the record , but only the word judgment used ; so that for ought appears from our author , the bishops might well be absent at the first judgment against mortimer , and not comprehended under the name of peers . they have less reason to think themselves included under the name of barons , if we well consider the words of petrus blesensis , who living in the time of hen. . well knew both what honour they had , and what they pretended then to : whose words are ; quidam episcopi regum munificientias , & eleemosynas antiquorum abusivè baronias , & regalia vocant , & in occasione turpissimae servitutis seipsos barones vocant . vereor ne de illis quereretur dominus & dicat : ipsi regnaverunt , & non ex me , principes extiterunt , & ego non cognovi scias te accepisse pastoris officium , & non baronis , &c. vacuum a secularibus oportet esse animum — modis omnibus cura ne secularibus te involvas ; pet. blesens , edit . ult . p. , . by this learned arch-deacon in his tractate de institutione episc. you may be satisfied that he did not believe that bishopricks which arose from the bounty of the king , or alms of the people , were ever erected into baronies by the king , but abusively or wrongfully so called by themselves , who being charged with the service by the king , had a mind to attribute to themselves the name , since they did the service . for , he saith , they did abusively or wrongfully call their possessions baronies , and royalties , and themselves barons , both blaming , and threating them from god for so doing , and involving themselves in secular matters . this author flourished in the time of hen. ii. ancient enough to know the truth , and how they were look't upon in those days . moreover , i do not find it can be made appear , except conjecturally , that they were ever present , where they were not first named . the honour of their function makes them be called before dukes and earls , and being by that reason pralati , le●… no man deprive them of their right , and by post-position make them post lati. lastly , this person being executed in edw. . as appears by the record in e. . cot. p. . without any accusation or answer , makes me believe , the bishops being men of piety , would not by their prefence countenance so illegal a thing , tho they had had right , without entring their protestation , manifesting their dislike of it ; neither do i believe their spirits so humble to suffer a post-position of their titles . but this whole matter , will i conceive , be better cleared , if i shall acquaint the reader with something more concerning this roger earl of march , than hath yet come to this learned person 's knowledg . in edw. . the very next year after the summary judgment was given against mortimer and matrevers , a commoner , at the complaint of the king , we find inter brevia baronibus direct , e. . m. . penes rememorat dom. regis in s●…cio ; that those judgments were per comites , barones , & alios pares regni , not a syllable of the prelates ; nor can the word alios take them in , since in the whole current of records , the prelates were never placed after earls and barons . and the alij pares , were either such as might be extraordinarily summoned ( an usual practice ) at that time , or they were the barons peers , viz. barones minores ; besides , the succeeding words clear the point . for there was in e. . an agreement , and concordia made by the lords and commons , that such proceedings should not for the future be drawn into example , to judg commoners to death upon summary articles , without any concurrence from them . now this concord was made by the temporal lords , not by the prelates , but per nos & pares praedictos nec non communitatem regni in eodem parliamento . now in e. . the reference was made to the earls , and barons ; the peers , to whom of right such judgments belonged , and no prelates comprehended , and here they are called pares praedicti . add to this , rot. parl. e. . numb . . le grant des graunts , where an aid was granted to the king , then in war with france . the record saith les countes & barouns esteantzen dit parlement granteront pour eiix & pour leur peers de la terre qui teignent per baronie la desme garb , la disme tuzon , la disme aignel de touts leur demaignes terres . now if the prelates were understood by the word peers in this place , then it must be granted that the earls and barons taxed the prelates , who always taxed themselves , and the inferiour clergy in convocation : but the succeeding words will clear the matter , which run thus in the same record : et pour ceo quil fu aviis as prelatez countes barouns & autres graunts que pour les ploite des besognes , &c. the record is touching a speedy supply to the king. here we see where the bishops were concerned , they were named , which shews they were no more comprehended under peers before , than under the word magnates in this clause . i could multiply records to this purpose , and am confident , no clear example can be given where they were necessarily comprehended after counts and barons . the next authority he quotes to weaken the authority of those he calls negative precedents , is the case of the murther of iohn imperiall , a publick minister sent from genoa . this case i conceive , is not truly stated by the author of the letter , and misapplied by the grand questionist . the point in question in the record was , what offence the murther of this publick minister was ? which matter was referred to the judges for their advice , who agreed that it was treason within the statute of e. . this their judgment was confirmed in parliament , whilst the doubt was in agitation among the judges , 't was not material who was there . but after they had given their sense , what was meant by this confirmation in parliament , is the next question : whether more were meant than an approving of the opinion given by the judges , by them drawn up in form ? and this may well be the meaning of that whole proceeding , which practice is usual in our days , but cannot be called a judgment in parliament , tho it might be their opinion . but if you will rather believe it to be by act of parliament , then must the commons be parties , of whom we hear no mention , nor any statute to that purpose extant that i can find ; and in that case the bishops might have been present if they would , and whether they were or not , is not material . vid. cot. . r. . n. . p. . yea in acts of parliament , when the sentence comes to be given , they are to withdraw , as it was held by mr. edward bagshaw , a learned reader of the middle temple , who for some opinions by him held touching the bishops , was by the power of arch-bishop laud suspended from proceeding in his reading . rushw. hist. coll. tom. . p. . the next precedent is in e. . which in conclusion , will do him as little service as the former . the author of the letter pag. , . tells us , that that parliament was summoned for redress of the breach of the law , and the peace of the kingdom ; and the record saith further , that 't was to consult touching lands in guienne , and the marriage of the king ; in which the bishops went away , and returned no more . i confess , i know no reason but they might have staid , it seems they thought otherwise , being in all likelihood privy to some actions to be treated there , wherein sentence of blood might be pronounced . but be their reason what you will , their words are these . et pour ceo que avisefust a les dits prelates qu'il nattient proprement a eux de counseiller de la gard de la paix , & de chastiment de tels malvois s'allerent mesmes les prelates . which words do not only import that they voluntarily went away , but that it did properly behove them not to be present in such matters , or to give counsel for the punishment of such crimes . the same word is used in hen. . cot. p. . where the king by the mouth of the arch-bishop of canterbury , declares that the commons in that case were only petitioners , and that all judgments belonged to him and the lords ; belonged , that is , the commons had no right thereto ; so here nattient proprement is that properly they had no right thereto . that all judgments belonged to the king and lords , is only an affirmation of the arch-bishop , but binds not the commons : see posthu . cottoni , p. . for i think it very plain , that anciently the commons , as well as the lords , had their share in judicature . i shall touch some records which the reader may consult at leisure ; rot. claus . . e. . m. . in the case of hugh audley and his wife margaret , the relict of pierce gaveston ; they petition'd to be restored to certain lands given to pierce , a nostre signure le roy , & son cons●…l prelatez , countes & barons del ' sa terre : the petition was brought into full parliament and debated , habito dilige●…i tractatu in pleno parliamento , tam per pr●…latos quam per comites , barones , & totam communitatem regni concorda●… , & consideratum ; 't was ordained , considered , and agreed , per praelatos , comites , & barones , & tot●…m communitatem regni , that all the king's grants to the said pierce , peter , and his wife ; should be revoked , and the deeds cancelled . et quod istud iudicrum intretur in rot. parliament , & in cancellari●… , & exinde ●…iur in scaccarium , & ad utrumque bancum , to be enrolled . nothing can be plainer than that this was a judgment , and no act of parliament , and that not concerning blood , the prelates concurred , and that probably both houses sate , and voted together as one body . i shall add one record more in a capital case , and that is entred , rot. patent . e. . pars prima me . . the case of adam orleton , or tarlton bishop of hereford , and after of worcester . this bishop was about e. . convicted of treason before sir henry staunton , and other justices . in e. . he petitions that the process and record , in which there was error , might be brought into parliament and examined , and he restored to his estate . praetextu hujus petitionis mandatum fuit ( by a writ ) galfrido de scroop ( who had the record ) quod venire faceret recordum , & processum praedicta quae sunt in custodiâ suâ in pleuo parliamenio , where after he had assigned several errors , the record concludes ; et quia videtur dom. regi praefatis comitibus , proceribus concilio dom. regis , & toti communitati regni convocatis ad parliamentum quod praedictum recordum & processus omnino erronea sunt rationibus praedictis concessum est quod eadem recorda , & processus adnullentur , &c. this was clearly a judgment in parliament , in which the commons were certainly present : and that it was not an act , appears plainly , for the record was certified , and errors assigned ; and 't is worth observation , that he did not assign for error , that he was before convicted by a common jury , but admitted it legal . next , i think the prelates were not parties to the reversal of the judgment given in e. . for it is coram praefatis comitibus proceribus , &c. though they were at the recital of the errors ; neither is it much material , for they might very well be parties to the examination of a judgment in a capital case ; for whether they concurred either in affirming , or reversing the record , that made them no parties to the first judgment , but is only a concurrence in opinion , that what before had been done by others , was well or ill done by them . i could cite many other records where the commons were present in parliamentary judgments , but let these suffice . but this may seem too large a digression , since i was upon the consideration of e. . in which i say , secondly , it doth not appear that this was an advice taken up by themselves ; for the words are not ( fust avise par eux ) or ils furent d'avis , it was thought fit by themselves , but are ( et pour ceo que avis feust a eux ) that is , because advice was given them by others to go away , they absented themselves probably in obedience to those laws which forbad their presence : and they returned no more , saith the author of the letter , p. . and the advice was given by the lords temporal only : no , saith the grand questionist , p. . the bishops and proctors of the clergy went only into another room to consult therein , which was usual in those times . i do not at all doubt but the members of parliament have several rooms to retire to upon occasion : but that in this case , they did go apart to consult , and give advice in this business , seems very unreasonable for any one to believe , because * they had but immediately before declared , that the consideration of such matters properly belonged not to them to meddle with , and accordingly withdrew : certainly no considerate man will think they went to consult about what they in the same breath said belonged not to them . besides , we see the return of the lords and commons , without any mention of the bishops , and the advice given by them by the mouth of sir henry beamont ( their speaker ) which advice was afterwards put into a law , and then the prelates might be present , tho they were not at giving the advice . for the record saith , it was enacted by the king , bishops , lords , and commons , which then became a law , to which the prelates might justly give their consent in their legislative capacity , whatever it concerned . where note , that sir robert cotton translates grands , commons , i think with good reason , though carp't at by mr. prin in the margine , for we heard nothing of them before , and soon after we find them named , and undoubtedly concerned in all proceedings before : see matth. paris p. . magnates , grands , comprehends counts , barons , knights , or any other considerable person , together with many others which would be endless to quote . having before shewed , that what our author calls negative precedents , were not simply so , and that the author of the letter had great reason to believe them absent where they were not named , and where the laws forbad their presence , especially having on his side the authorities of e. . numb . . of h. . numb . . where the temporal lords assume unto themselves the power of judging peers , which opinion is also made good by the late votes of the lords in parliament , may , . by the case of dr. leighton in the star-chamber car. . it is evident that the prelates were not look'd upon in the same sort that the temporal peers were ; for the information against him was for writing a scandalous book against the king , queen , peers , and prelates , where peers and prelates are contra-distinguished , and not taken synonymously , as may be gathered by the sentence , and being another body , were judged as peers to one another , not to the temporal lords . i come now to the consideration of what he saith pag. . he there alledges that many of those the author of the letter calls negative precedents , if they prove any thing , prove too much : for some of them admit they were not present when they might have been ; others , that they were present , when by his own rules , they should have been excluded , either therefore the general words where they are not mentioned , do not enforce their absence , or that they oughtto have been excluded at some other trials , where the author of the letter admits they were , or might have been present . the chief case he instanceth in , is that of michael de la pool chancellour of england , who was accused of many misdemeanours by the house of commons , and as ( i think he would infer ) such as thorp chief justice , was found guilty of , being capital : where the author of the letter saith , the bishops were not present , yet allows them to have been present in the case of this chancellour , a parallel case , as he saith , with that of thorp : either therefore , saith our author , they might have been present in the case of thorp , or they should have been absent in trial of pool . this is his argument , as near as i can gather out of his words , put together something obscurely . i need give no other answer to this , than to lay before you the words of the record . this accusation was exhibited by the commons in r. . against michael de la pool , lord chancellour , in full parliament , before the king , bishops and lords , and six articles were objected by them against him . the first was , that he purchased lands of the king of great value , whilst he was chancellour ; the other five , as the record saith , were only quarrels , and of little concern . to the first , and most considerable , the chancellour put in a fair answer ; the commons reply , and urge things to the utmost , and amongst other things , say , that whereas by the popes provisions , a person was recommended to the priory of st. anthonies ; he , the said chancellour , would not suffer him to be admitted till the grantee had contracted to pay to the chancellor , and his son l. yearly : and then parallel this with thorp's case , and would have had the chancellor in the same fault with thorp , for bribery as a judg , and consequently incur the same judgment . the chancellor replies , and shews great difference between the cases . upon the whole matter , judgment was given against him , pursuant to the accusation for misdemeanours only , in which the bishops were , and might be present ; and the parallelling it with thorp's case , was only in the management of the cause by the commons , and no part of the accusation . neither is it reasonable to believe that which our author asserts in the same page , that the prelates were free agents , and might withdraw at some times , and be present at others , as they saw cause . for beside that , this is contrary to the express law of clarendon , which expresly declares that 't is their duty to be present in all proceedings in curia regis , which in that place must be understood of the parliament , because they were to be present with the other lords , tho i know that curia regis , is sometimes taken in a more laxe sense ; for all the courts in westminster are the king's courts , and unto which they were to give obedience and attendance in cases not prohibited . i say , over and above , this act at clarendon , it seems to me very unreasonable to suppose , that such a body of men had liberty to give their attendance when they pleased , without leave of the house , or cause shewed why 't was fit they should be absent , or that the author of the letter meant more when he saith , they might have been present , than that they were not prohibited by the law of clarendon , which only had relation to matters of blood. but these men had other canons to go by , when they thought fit , as well as those of toledo , and 't is probable enough , that the rest of the noble-men , finding them most constant factors for the pope , were willing enough to let them be absent upon any colourable pretence when they desired it . is not one clear precedent against them in point of greater weight , than many dubious , and equivocal ones ; which cannot without great art , be wire-drawn to speak to their advantage ? let him consult the discourse of peerage , pag. . the case of the earl of northumberland , hen. . rot. processus cor dom. rege in parl. in hen. . this noble-man came into parliament , and confessed before the king and lords , that he had done against his allegiance , in gathering power and giving liveries ; this fact by the lords , was adjudged no treason , for which he gives thanks to the lords his judges , and a day after , the commons do the like , where the prelates are named , as our author affirms , and to which i shall speak by and by . but in hen. the same earl was in actual rebellion in the north , and his forces dispersed by the earl of westmarland ; but he , and the lord bardolf fled into scotland , the rest were most of them taken prisoners . this case came into parliament , where the king commands the lords temporal , peers of the realm , to advise what process to make , and what judgment to render against the earl of northumberland and lord bardolf . nothing can be plainer than that the king look'd upon the lords temporal as those peers who were proper to give judgment touching their fellow peers , who had fled from trial in a case of blood : the record goes on ; the said lords advised thereupon , and gave counsel to the king : then the said lords , peers of the realm , by assent of the king , order summoning the said lords to appear at a day given , or to stand convicted by award of the peers in parliament . the king farther demanded the opinion of the lords temporal touching the arch-bishop of york , who was in the same treason . the lords temporal , by the assent of the king , and by their authority , declared , and awarded the said earl , and lord , to stand convict of treason , for not appearing upon summons . 't is very clear , that this whole business was transacted by the lords temporal without the bishops , and with the concurrence of the king. 't is not to be believed that the bishops would have sate quiet , had they thought themselves wronged in these proceedings : see the discourse of peerage , pag. , . i think it hardly possible to find a more clear record in the point than this is . first , here were two noble lords defeated in actual rebellion , and fled from justice into scotland . the king upon this , would not so much as consult with his prelates , knowing them by law no proper counsellours against peers in matters of blood , applies himself to his lords temporal , they order proclamations by order of the king , enjoyning the said lords to appear at a day certain , or to stand convict ; they not appearing , are by award of the lords temporal convicted of treason ; and a year after , one is slain , the other mortally wounded at bramham-moor in york-shire . can any thing be more agreable to the practice at this day against men that fly from justice , and are convicted for non-appearance ? he must have a new way of reasoning , who considering that in e. . the earls and barons are declared those peers , to whom such judgments belong ; that in e. . the prelates declared , that in a case where blood might be , it belonged not to them to be present ; that in r. . the temporal lords were only concerned in a case where the accusation was treason , with many other cases , that in hen. . the lords are declared judges in such matters ; that in hen. . in a like trial or judgment , the temporal lords are all named , who were the judges ; that now in hen. . the temporal lords are again declared judges , and after all this , that the prelates should be deemed proper judges in cases of blood upon bare surmises , and no direct proof , seems to me to savour of a man wedded to an opinion which he resolves to maintain ; when at last , tho precedents confirm what the law is , 't is that must determine the controversy . this i say in relation to what mr. hunt objects . this precedent may in part , serve to give answer to those arguments drawn from the identity of names , to the identity of right . the bishops saith the grand questionist are sometimes comprehended under the name of grands , seigneurs , and peers ; therefore their right is equal to all others who enjoy those names : how he attempts to make this good , we shall see anon . but first , let him consider how weak a way of arguing this is ; we know nothing is more equivocal than names . many are called lords , who had once that name , as embassadors , chief justice , &c. or such whose fathers are dukes ; so earls eldest sons , yet are indeed but commoners : so baronagium comprehends all the whole parliament ; barons there are of the cinque-ports , of the exchequer , and of some chief towns , as i have noted before from mr. selden : so we are not to judg the right from the appellation , but govern the appellation by the right . the first precedent he urges is , pag. . where in e. . an act passed for trial by peers , cotton , numb . . 't is agreed unto by the king , and all the grands in full parliament , that tho the lords had tried some , who were not their peers , upon accusation by the king in a summary way against law , it should be so no more . if the bishops were here comprehended under the name of grands , so were the commons too , if it should be an act of parliament ; will he hence infer , that the commons have an equal right with the lords because they all are called grands ? who were esteemed grands or magnates , see matth. paris , in anno dom. . inhibitio ne qui magnates , viz. comes , baro , miles seu aliqua alia notabilis persona , &c. here you see under magnates , are taken earls , barons , knights , or any other person of rank . so milites comitatuum , and barones quinque portuum , are called magnates inter com . brevia de term . sctae . trin . sct. mich. an. . e. . penes rentem . dom. thesaurarij in scaccario ; he that desires more , let him consult mr. petyt's learned discourse of the ancient rights of the commons , pag. , . and in sundry other places . i think therefore i may safely conclude this point : that where grands are named alone , there not only the bishops , but the earls , barons , judges , and commons might be comprehended , but where the grands are mentioned after the earls , and barons , there the bishops who ought first to be named , shall never be taken in secondarily , and by implication . neither is it any thing to our question , whether it were for their honour to be absent in some cases , as he intimates , pag. . in the case of roger mortimer , but what the matter of fact was . pag. . he would comprehend the prelates among the peers , because in e. . n. . the words are , all the peers , counts and barons assembled in parliament , upon strict examination , do assent , and agree , that john mautrevers is guilty of the death of edmund earl of kent . here he would infer that the prelates were present at the examination of that capital crime , under the name of peers , because at that time , there were no dukes , nor others of superiour degree to earls ; but he doth not consider , that the word peers , in this place , doth only denote who those peers then mentioned were [ peers ] viz. earls and barons , not bishops , as before magnates , viz. comes , baro , miles , &c. as when we say a noble-man is to be tried by his peers , we understand only those that are truly so , and not others that sometimes may be called so ; this is much cleared by the record hen. . n. . the lords temporal by the assent of the king , adjudged thomas holland late earl of kent , iohn holland late earl of huntington , and others , traitors ; this judgment was after the parties were dead , and but the second successor after edward the third . why did not now the prelates come in and claim their right ? certainly they would have done it , but that they knew the law and practice was against them ; what else is material in this chapter , hath been taken notice of by the author of the letter , and others ; so that it needs no further examination : and i may safely conclude , that where the prelates are not named , they are not understood . now that in this case , the bishops could not be meant by the word peers , is very plain from the record it self : for the fore-named iohn mautrevers being not in hold , the said peers do pray our lord the king , that search should be made for him throughout the realm ; and a reward promised . now if the bishops were meant by the word peers alone , for earls and barons are named , witness the peers , earls and barons ; then by parity of reason the said peers should be meant only of the bishops , as if they alone had made the desire for the apprehension of the said matrevers , and the earls and barons had been unconcerned , which is absurd : see e. . mem. . n. . seld. baron . p. . our author concludes his third chapter with the case of henry hotspur , the eldest son of the earl of northumberland , who for having levied war with others against the king , was declared a traitor ( being before slain in battel ) by the king and lords in full parliament : this was upon friday the th of february ; upon the same friday , upon that case , and the petition of the earl father to henry , and examination of his cause by the lords as peers of parliament , to whom such judgment belonged ( for the king would then have referred the whole matter to the judges ) he was declared innocent of treason , or felony , but only finable for trespass at the king's pleasure : for which the said earl gave thanks to the king and lords , for their rightful judgment , and also at the same time purged upon his oath the arch-bishop of canterbury , the duke of york , and other lords , who were suspected to be of the confederacy with the said henry hotspur , alias percy . this was the work of friday the th of february ; on saturday the th , the commons give thanks to the lords spiritual and temporal for the rightful judgment they had given as peers of parliament , h. from n. , to n. . this is the whole case as to father and son. now whether the bishops were present at all these proceedings , and how far , is the question . the grand questionist contends they were present at the proceedings both against the father and the son ; at that against the son from the word , full parliament , which he seemeth to infer , must include the bishops ; and at that against the father , from the thanks made by the house of commons the next day after the acquittal of the earl. first , as to the son : it appears plainly by the historians of those times that he was slain in the fourth year of the king , in the life-time of the father , who soon after broke out into rebellion , so that at the time of henry's death he was only a commoner , and consequently not to receive any judgment in the lord's house alone , nor could he be made a traitor otherwise than by act of parliament ; so that the word full parliament , must either refer to some particular act of parliament made in his case , in which the bishops might be present , and the commons concur , or else the proceedings were wholly irregular and contrary to their own agreement , in e. . now from an illegal act , no right can be concluded . as to the earl himself , we find him suddenly after in open rebellion , defeated , and escaped into scotland with lord bardolf , and convicted of treason by the temporal lords , for not appearing upon summons , and all this within two years after . now can it be reasonable to think that the bishops were present at the acquittal of this very lord in h. . who were not present in h. . which was but two years after , nor were present at a like case in h. . n. . against the earl of holland , and others , which was not three years before ? neither can any weight be laid upon the thanks of the house of commons , which was only matter of complement , and performed at another time when the house was assembled upon other matters , but seeing them there , might extend their thanks to them also , who though they could not contribute , did nothing to hinder the clemency of the temporal lords towards the earl ; besides , at the same time it was accorded by the king , and lords , upon the desire of the commons , that certain ill officers about the king should be discharged , in which the bishops might be instrumental , and very well deserve the thanks of the commons , at which desire of the commons , they might assist , and be absent at the rest . the precedent of iohn lord talbot will not avail him ; he exhibited an accusation against the earl of ormond for certain treasons by him committed ; this accusation was in the marshalsea before the earl of bedford , constable of england . the king , to put an end to this matter , doth by act of parliament make an abolition , and discharge of the said accusation , and discovery . the words are , that the king by the advice and assent of the lords spiritual and temporal , and the commons , made an abolition of the said detection . whoever denied the bishops consent in a legislative way ? and had it been otherwise , the commons could not have been , i think , regularly concerned . . h. . n. . the precedent of the duke of suffolk in h. . i thought to have passed over , being a case as irregular in the proceedings , as unjust in those that put to death that unfortunate man. much art was used by the court to have preserved him from the envy of the people . a parliament assembled at westminster , after dismissed into london , then prorogued to leicester ; that dissolved , and another called at westminister , in which the duke appeared , which exasperated the commons against him . but upon the whole record it appears that no issue was joyned ; for after articles exhibited by the commons , and his denial of them , march , at the least of the eight first , and giving some answers to others on the th , he was sent for again , and the chancellour acquainted him , that he had not put himself upon his peerage , and now asketh him how he would be tried ; who instead of pleading , put himself upon the king's order , who caused him to be banished for five years . by all this it appears , here were no judicial proceedings , which could not be before issue joyned : so that although the bishops were present at the reading of the articles ; yet this can be no precedent to entitle them to be present in judicial proceedings in capital causes , for here were none at all in this case , and till issue joyned , the bishops are not bound to withdraw . neither ought it to seem strange that the viscount beaumont should make protestation in the name of the lords spiritual and temporal against these proceedings , which they finding to be extra-judicial in very many particulars , they did not know , i mean the bishops , as well as some of the lords , what construction might be made to their prejudice : for sometimes they met in one place , sometimes in another , and not always in the parliament-house , to consult of this business . besides , many things pass sub silentio , which being questioned , would not have been allowed : these observations being added to what hath been said by the author of the letter , seems to me a full answer to this precedent , in which the protestatio is only protestatio facti , not iuris . i have thus put an end to the examination of this third chapter , and fully considered all his arguments , and precedents , and come now to a view of his fourth and last chapter . chap. iv. in this chapter our author hath employed all his art to assert the peerage of the bishops , and that they make a third estate in parliament , in what sense they are called peers ; as also that the entire clergy , met in convocation , make a third estate , i have largely shewed before , and shall not now repeat . i admit they are sometimes called lords spiritual , tho not so before rich. ii. but prelates or the like , peers of the realm , peers in parliament . if by that appellation you would make them equals to the nobilitas major , i think they never were , yet have they many privtledges in respect of their seats and episcopal dignity in the lords house ; and , by reason of their most honourable profession , have all of them precedence to barons . i admit also that the clergy is really a third estate ; and that the bishops , in respect that they are the head of the clergy , may sometimes in ordinary discourse be called so , but are in truth never so exclusively to the rest of the clergy , they all making but one body , or third estate , fully represented in convocation , as i have sufficiently , i hope , made appear , pag. , , &c. of this discourse . as also that they had the appellation of barons and peers , not that they really were so , which must have enobled their blood , but in respect of their tenure in capite sicut baroniam , or , per servitium baroniae , and for the most part so called by themseves only . our author's suggestion , p. . that they sit in parliament in a double capacity , as it is new , so is it not solid . he saith , when they sit in the house in a judicial way , they sit only in the capacity of temporal barons ; and that this appears by the constitution of clarendon , where the king requires their attendance as his barons : but that in their legislative way , they have a farther capacity , as representing a third estate in parliament , i say this fancy is new ; for i do not believe any before him look'd upon them as representing a third estate in parliament : and not representing it , i know they have been said to sit in respect of their possessions , which are temporal in their own nature , but not so when given deo & ecclesiae ; but that they sate in any other quality than spiritual persons , i never heard , nor can conceive . methinks if they have a capacity to sit in the quality of temporal barons , they should also have a capacity to change their spiritual robes , and put on temporal . the constitutions of clarendon , he saith , require their attendance in judicature as his barons ; and from thence would infer they sit in the quality of temporal barons . but how doth this follow ? i hope they may sit as spiritual barons . but when all is done , this allegation of his is not sincere , for the words are , debent interesse judiciis curiae regis sicut caeteri barones ; or , cum caeteris baronibus ; that is to say , 't is their duty to be present in trials in the king's court with the other barons , or as the other barons are there present ; which words are far from inferring that they sit there in the quality of temporal barons ( no more than the judges ) rather that they sit not as barons at all , but only amongst them who are so . it is evident therefore that his first argument , drawn from the constitutions of clarendon , is not solid . his next suggestion , that they are a third estate in parliament ( if by parliament he mean their convention in convocation ) from the issuing out of writs to the guardian of the spiritualties in the vacancy of the episcopal see , i shall not contend with him ; only i think it from hence plain , that they have right to sit as members of the convocation properly , where , with the rest of the brethren , they make up a third estate , in which writs there is generally a clause of praemunientes added , to shew that other clerks are to be chosen to sit in convocation , for which reason the guardians in their vacancy have their writs directed to them , lest the convocation should not be full . now how this can prove them a third estate in the lords house , i should be glad this author would instruct me ? so that his conceit of their sitting there in a double capacity , is of no weight , and all his precedents cited to that purpose , might have been spared , which do not in the least measure prove that the bishops sit in the lords house as a third estate ; because clerks shall be chosen to sit in convocation , by writs directed to the guardians of the spiritualties , where there are no bishops , or when they are beyond sea , rather evinces the necessity of a convocation to meet in consultation as to ecclesiastical matters , which are only proper for their function . lastly , let it be observed that his quotations out of the author of the letter , pag. . as to doctor standish his case , are mistaken ; the author's words are , the judges said — the lords spiritual have no place in parliament by reason of their spiritualties ( in which respect , in truth their place is in convocation ) but by reason of their temporal possessions ; that is , holding their tempoporal possessions in nature of baronies . the scope of that book is to shew that a parliament might be held without them , who indeed were no barons , but had liberty to sit among them by an indulgence in respect of their possessions . and at last , i am perswaded our author will hardly be bound by that opinion ; for if that be true , how can they sit there as a third estate , if their right to sit there be only as temporal barons ? this authority is only from kelway , hen. . . see the case at large in burnet . our grand questionist goes on , and endeavours to prove , and clear that intricate matter ( as it hath been made ) touching the interest the clergy then had in parliaments , as well as convocations : but chiefly to prove , that all the interest they had in parliaments , was not meerly upon the account of their temporal baronies , which the bishops and many of the abbots then had ; this he saith , is the great , but common mistake of the author of the letter . 't is first to be observed , that he hath not proved , that to hold land by baron-service , and to be a baron , is all one , which by me is left doubtful , as appears by what is said in the first chapter of this treatise . neither see i any reason why tenere per baroniam , should make a baron more than tenere per militare servitium , should make a knight . secondly , that what he now saith , is only a pursuit of his precedent conceit , that the bishops sit in the lord's house in a double capacity , because , as he saith , there is a distinction made , even in parliament , between the several estates of the clergy and laity . how far this is argumentative , and how far his precedents warrant what he affirms , i shall examine by and by ; only in the mean time , would desire him to tell me , whether they could come to parliament at all without first receiving the king's writ ? and in the next place , whether the king 's writ imply any other capacity , than as spiritual persons , holding their possessions per servitium baroniae , and voting among the lords , in respect of their lands , which are in their own nature , temporal estates in the hands of spiritual persons , but by their dedication to god , made spiritual also ; which is as much as can be drawn from what mr. selden saith in the place quoted by our author , pag. . that they met as counsellors in the saxon's time in their wittena gemot , i will not deny , but whether by virtue of any writ , summons , or rather by general allowance as counsellors , or what other way , he cannot prove : records there are none , or very few ; and historians give but a dark account of those times , and things then one : but which way soever they then sate , certainly by william i. their right of sitting was much altered , the frame of things being in some measure altered also , in so much that they must now meet under such qualifications , and no other , as were by him allowed them , which by all men is agreed to be as tenants to the king in capite , for their possessions , which they held in the nature , and by the service of baronies . this being so , i see not what use he can make of the distinction made in parliament between the several estates of the clergy and laity . the question is not , whether the clergy and laity are distinct estates ? which no man ever denied : but , whether the bishops , distinct from the other clergy in convocation , be an entire third estate in the lord's house : that they are so , no man hath yet proved . his authority out of eadmerus , speaking of what was done in parliament in hen. . saith , it was done utriusque ordinis concordi curâ , & sollicitudine , by the unanimous care and trouble of both orders , ranks , or degrees : why must [ ordo ] signify an estate , rather than a degree or rank ? now i hope men of different degrees may sit together without being different estates . dukes , earls , marquesses , viscounts , barons , now sit together , yet may make but one estate . but let [ ordo ] signify that estate as he would have it , and as he thinks it doth ; why must it signify an intire estate ? or what doth it more import , than that it was done by the joint-consent of the lords and commons ? who might then sit together , and were not at any time left out , as is sufficiently proved by mr. petyt . matth. paris his clerus and populus , and the other cases by him there mentioned , comprehended the whole body of the clergy and laity met together in parliament , including as well the inferiour clergy as the superiour , sitting in their due ranks . all the rest of his precedents made use of by him , seem rather to enforce that the king is not a third estate , than that the bishops are more than a part of a third estate among the lords . but this point , whether the king be one estate or not in parliament ; and how an head can be considered as no part of the body , i leave to others to dispute , but must rest in this undeniable conclusion , that there can be no legal co-ordinate power however the case stands : for as in the body natural , nothing can be done without the concurrence of the head : so in the body politick , nothing can justly be done without the concurrence of the king in matters of publick concern in parliament , except their proceedings deviate from the ordinary rules of the known laws of england . i have put off the examination of the first part of his fourth chapter , that i might conclude this discourse with an answer to the matters he there alledgeth . he finds himself pressed with that strong argument , drawn as well from magna charta , as from divers precedents , that the bishops were not peers to noble-men , but were themselves tried by a common jury in matters capital ; and therefore were not of condition to try noble-men , who had in themselves inheritable noble blood. to this argument he opposes two things . first , that the matter of fact cannot be made out that a bishop hath always been tried by commoners . secondly , that if it could , it doth not overthrow their peerage in parliament . this second assertion i will easily grant , if by peerage in parliament , be no more meant than a community of appellation by reason of their sitting amongst the lords , and their precedence in place , with some other priviledges as to amerciaments , days of grace , and the like . but certainly if it can be cleared , that they have of right been tried by common juries , and that as well before , as after the time of henry the th : nay , that they have not look'd upon the lords in parliament as their peers , and proper judges : i may then rationally conclude that they are not peers in parliament to that end to try , or be tried by noble-men there . it is plain by all our law-books , that out of parliament no such priviledg belongs to them . for first , out of parliament , over and above the express authority of stanford , a judg in queen mary's time , sir edward coke , a great judg in our time , mr. selden a great lawyer , and antiquary ; mr. cambden , an herauld , great scholar , and historian ; all agree that bishops shall not be tried by noble-men , and that manner of triall hath never been put in use as to them . now if this be confessed to be the law out of parliament , let the author give me one example , that a man of right ought for a like offence to be tried by one sort of jury out of parliament , and another in it . the case of appeals , under which covert he endeavours to hide himself , i shall discuss anon . the priviledg they claimed as clerks , was common to all other clerks as well as to them , but there are many cases of clerks tried in secular courts , and the trial allowed to be good , to which purpose , see cook 's second instit. ; but never any exception of theirs allowed of , as if those trials were illegal . as to the case of bishops , and their trials by common juries , mr. selden is very clear , and gives many examples both before , and after hen. th's time , which are not so to be slighted , as this author seems to do . that of john de isle , the bishop of ely's brother , is full to the point ; where the bishop was arraigned , and upon question how he would be tried , stood upon his priviledg as clerk , that he was a member of the pope's , and therefore ought to be brought to his answer before his ordinary the arch-bishop of canterbury , who was there ready to demand him , affirming that he ought not to answer before a lay-judg ; this plea was rejected , and a day given to the bishop , and a jury impannelled , sworn , and tried , ( which shews he had his challenge ) . the jury bring in their verdict , and find that the bishop was not guilty of the fellony laid to the charge of john de isle his brother , and his companions ; but they find that after the felony committed , the said bishop knowing that these persons had committed felony , did receive and harbour them : upon which , a writ was directed to enquire what goods and chattels he had , and his person , upon request of the arch-bishop , delivered him to be kept as it behoved him to do . now let any man judg whether here were not in every respect a legal proceeding . the matter of fact tried by the verdict of twelve men : inquisition made concerning his goods , lands , and chattels , himself ( the crime being only receiving of felons ) delivered to the arch-bishop , either to make his purgation , or to be kept in due manner . was here now any willingness in the court to break the law ? as our author saith , pag. . or not rather a perfect observation of it . is not this perfectly agreeable to what dr. ridley , in his view of the civil and ecclesiastical laws , saith pag. . if a clerk be first arrested by a spiritual judg , and found guilty , he shall be degraded , and delivered over to the temporal power . but if he be first arrested by 〈◊〉 secular magistrate , and tried , and found guilty , he shall be delivered to the bishop to be deprived , and then delivered back to punishment . the precedent of thomas merks bishop of carlisle , our author allows to be against him : but asks whether one precedent before the time of hen. th , be sufficient to expound magna charta : for in this case , the immunities of the church were considered , and a declaration by them , that their priviledges extended not to treason . but for a full answer , i say first , that there are more precedents than one : but if there were not , would not one , with the constant opinion of all lawyers , and judges , be enough to prevail with a dis-interested man , to believe that the peers in magna charta , and the lex terrae , do not intend bishops to be such peers as are to receive their trial by noble-men ? but what exception can be taken to those cases after , and in the time of hen. th ? did he not continue the roman religion all his time ? was it more against his prerogative , than of any of his predecessors ? 't is clear enough that the proceedings before , as well as after , were according to law , notwithstanding the clamour of the clergy , as is plain by mr. selden . i shall now consider the case of adam de orlton , alias tarlton , bishop of hereford . all historians of those times , as well as other later ones , set sorth the violent proceedings of the clergy in that matter , who took him twice out of the hands of justice . but it appears by mr. selden , by the record hill. . e. . rot. . dors coram rege , that he was arraigned in the king's bench , and upon question how he would be tried , refuseth to answer there : day is given , and the indictment brought into the parliament , where he makes the same plea , that he is by the will of god , and the pope , bishop of hereford ; and that he ought not to answer before that court. here you see whatever the carriage of the clergy was , and what-ever judgment was given against him : his exceptions were as much against any trial in parliament by the lay-lords , as else-where . and that consequently the injury they conceived done to them , was , that they should be tried in any secular court whatsoever . this you may see in du fresnes glossary verbo ( par. ) the trial he required was , per episcopos pares suos , by the bishops his peers . this appears also by the complaint of the bishop of ely , that he was brought to be tried coram laico iudice , before a secular judg. by this our author's mistake may appear , who saith , pag. . that they look'd upon themselves out of parliament as having no peers in judgment but bishops ; when it is evident by the case of these bishops , that they made the same exception as to their trials before the lords in parliament , that they did before the secular judges out of it , and pretended they ought not to be tried before any lay-judges whatsoever . neither did they look upon themselves under the same condition that lay-men were ; but being a distinct body among themselves , thought it reasonable to be judged by themselves only , and in their own courts : an innovation the law never allowed , or gave any countenance unto . i confess , i cannot but wonder that any one person , of how great parts soever , should go about to contradict the opinion of very many learned judges , who have all asserted the contrary , to wit , that bishops ought to be tried by commoners ; and no one lawyer of any note , that i know of , hath hitherto maintained the contrary . methinks those of the long-robe should be tender in opposing the judgments of stanford , cook , doddridg , and selden , except their opinions were back'd by the authority of judges equal in ability and learning to those before named . having thus cleared the precedents urged by mr. selden , and others , from the exceptions of this author ; let us now see what is alledged by him to prove that it was not always so , but that sometimes they were tried by the noble-men as their peers in parliament . and to that purpose he propounds the case of stratford arch-bishop of canterbury , out of arch-bishop parker's antiq. ecclesiae britan. who tells you that stratford was at the king's suit accused of capital crimes in the exchequer , that he put himself upon his trial in parliament ; that a parliament was called , and he , after some opposition , admitted into the house ; and there , as our author saith , put himself upon the trial of his peers : this it seems is the relation of matth. parker . ( by the way , whom he meant by his peers , doth not yet appear ) whether the clergy only , or the lay-lords . but let us have recourse to the record , as it is abridged by sir robert cotton , e. . numb . . the same day the king came into st. edward's chamber , commonly called the chamber de pinct , ( the painted chamber ) before whom , all the lords and commons , the arch-bishop of canterbury humbled himself , and required his favour , which he granted . afterwards the arch-bishop desired that where he was defamed through the realm , he might be arraigned in open parliament before his peers : probably by his peers , he understood the bishops , as others had done , and not the lay-lords : besides , this seems to be a desire of his at a conference before the king and lords ; for it was in the painted chamber , whereas the commons usually sate in the great refectory , now called westminster-hall . let us observe the king's answer , which was , that he would attend the common affairs , and after hear others ; where we see the king did not grant his desire , but gave only a dilatory answer . lastly , it doth not appear that he was ever arraigned in parliament ; for the record saith , numb . . and it is to be remembred , that all things touching the arraignment of the arch-bishop of canterbury should remain with sir william de kedelsby , keeper of the privy-seal . by which it is evident , that these things were not then put into the hands of sir william de kedelsby , but to remain there , where probably they were before , and were only some papers relating to what was before done in the chequer ; for i find no arraignment recorded about that time . two yearsafter , viz. edw. . numb . . all the proceedings against the arch-bishop were cancelled by order from the king ; so that nothing appears to have been done against him to any purpose , either in parliament , or else-where . 't is true , there was a continuance of the parliament in o , from day to day , for a week , about the trial of noble-men , that they should not be put to answer , but in open parliament by their peers , to which purpose , there are named four bishops , four earls , and four barons as a committee to draw up the plot. these persons being in their device , assigned , as hereafter doth ensue . under the name of which peers , they bring in the chancellour , and treasurer , and such like officers , and that all estates should enjoy their liberties , e. . n. , , . here was indeed a matter concerning trials of noble-men had under consideration , but never reduced to any law , as the practice of subsequent times , and the late bill of the lords about trials , do enough manifest . but doth it not appear by this record , that the bishops , were not reckoned nobles of the land , when he finds the chancellour , and treasurer , and such like officers , attempted to be brought in at that time , and so not to have had any right before ? but saith our author , it after follows , that they may not lose their temporalities , lands , goods , and chattels . now none were capable to lose their temporalities but bishops , therefore this law must have respect to them , as well as other nobles of the land. the answer to this is very easy , that the clergy , who had then all power , did endeavour to bring in their fellows the other great officers , who were almost all church-men . simon langham arch-bishop of canterbury , was chancellour , william molso dean of st. martins le grand , receiver , and keeper of the kings treasure and jewels , with many others , as you may find baker , p. . these had temporalities to lose , and such officers , the church always hoped to have had of their own tribe ; but , as i said before , of this attempt came no other effect than to shew their aspiring thoughts . and whatever opinion the author of the iurisdiction of the house of peers , is of , as to the roll of edw. . i believe the law at this day will not be so taken , that a chancellour being no peer , shall be so tried by reason of his office. i am sure , my lord keeper bridgman being no peer , never voted in the house of lords , and the present lord chancellour , when he gives his vote , goes to his place as a baron . see hakewell , p. . ancient customs , how these great officers are placed in parliament when they are peers , and when not ; and certainly if their placing be different , their trials ought to be so too . neither can it seem reasonable to any considerate man , that a person , though such an officer , should not be capacited to give his vote as a baron , and yet by virtue of his office , should be tried by noble-men . therefore i must take leave to deny what he affirms , that they are peers by virtue of their office , or that they have right to be present in parliament in all cases of judicature , so as to concur in sentence with the nobles of the land , as our author affirms , pag. . the king may make whom he pleases chancellour , and the statute assigns his place , but he cannot vote there without the king's letters patents to that purpose , as i conceive : see old modus , hakewell , p. . i have in the first chapter of this treatise spoken largely to that point , and shewed in what sense a bishop may be called , peer of the realm . and pag. , and . have handled the matter of proxies , therefore may pass over the case of arch-bishop arundel , which our author proposes , pag. . to the case of william de la pool , i have spoken before , only shall here observe , that the submitting his cause to the king , was no waver of his peerage , for the matter never came to any formal issue ; consider th●… case of nicholas segrave in edw. . ridley , p. . who being accused of many crimes ; segrave being summoned thereunto , appears in full parliament , confesseth the fact , and submits to the king. this was no waver of any legal trial by his peers , nor any disrespect to the lords , who might otherwise have ordered the summoning a jury to try the fact , but by the king's pardon that labour was saved . the like may be taken notice of in that famous case between the earl of hereford and essex , against the earl of glovester and hertford , in edw. . riley p. . where , upon a very long pleading , the case in effect proves to be but this : the earl of hereford complains to the king , of great robberies , depredations , and murthers committed by the earl of glocester , in his lands in brecknock , after the king's inhibition . the king , for remedy of this , appoints the bishop of ely , william of valence his uncle , iohn mettingham , and robert hertford , to hear the complaints of the said earl , and also the answer of the said earl of glocester , and his servants , to the complaint of the earl of hereford , and to summon a jury for the trial of the same , and also commanded robert tiptoft , iusticiario suo de westwell , to be there present , and to summon the said delinquents to be before the said commissioners , and that enquiry should be made per sacramentum tam magnatnm , quam aliorum proborum hominum , & legalium de partibus walliae , & comitat glocest. they , that is , the magnates ( which it seems were noble-men ) excepted against the taking an oath , and said 't was unheard of , and that they would do nothing sine consideratione parium suorum . the jury give in their verdict against glocester , the parties all submit to the a king , who by the advice of arch-bishops , bishops , earls , barons , and the rest of those who were of his counsel , declare that the earl of glocester had forfeited his liberties , &c. the words are , videtur tam ipsi dom. regi quam caeteris praelatis , magnatibus , & reliquis de consilio ejus quoad comitem glocestriae quod libertas sua praedicta , viz. totum regale in terris suis praedictis de mergannon cum pertinentiis pro se , & haeredibus suis foris facta est ratione delicti praedicti , &c. in this record there are many things observable ; first , the bishop of ely here mentioned , was not a judg in this case between the two earls , but joyned in commission with others , who were empowered to summon a jury to enquire of the matter of fact , not to condemn either party , but was only in the nature of an inquest , or grand-jury , in order to a trial. . that noble-men [ magnates ] such as refused to take an oath , were returned of the jury . . that the verdict was given in to the commissioners , notwithstanding some of the jury were not sworn . . that the jury was summoned out of several counties , viz. glocestershire and wales . lastly , and that for which i have chiefly produced it , that this submission of both parties to the king was no waver of their peerage . neither doth it appear , that this award made by the king with the consent of those prelates , earls , &c. was made in parliament , tho it be inter placita parliamentaria , but only by such private counsellours as the king thought fit to make use of in that affair . that it was no parliamentary judgment ; is evident from these two reasons : first , the putting themselves to the reference of the king , was no putting themselves upon any trial by their peers , because that should have been done only by the earl of gloster , against whom the bill was found ; whereas here the reference is made by both , b and to the kingalone . next we find the king here was present with the rest , which was not usual ; if the lords had proceeded judicially wherever the matter was heard , whether in parliament , or else-where . besides , it is observable that the word consilium , is twice written with an [ s ] ; whereas , if it had been a parliament , the word would have been written with a [ c ] , as was generally observed by the writers of those times . in conclusion , this record makes nothing either to the bishops power of judging in criminal cases , or that submission of a matter to the king should be a waver of peerage , but was a making the king an arbitrator , for they knew the verdict was void , being not upon oath . i have before denied that such persons as sate in the lord's house by virtue of their office , had any right to be tried by noble-men , except they had an inheritable right of their own , as well as their office. i am not therefore concerned to examine as to predial feudal , or personal right , what is urged by our author , or any other , because i have throughout this discourse , maintained that no man can have any priviledg , or right of trial , but according to the nature of his peerage , which seems to me , not only reasonable , but within the plain meaning of magna charta : that the triers and party tried , ought to be of the same condition , and capable to undergo the same penalties in like case . that what the discourser hath said as to the regradation of their peerage when their office shall be taken away , means no more , than that officers shall no longer sit among the peers , not that they had any right of peerage during the continuance thereof , tho they were placed among them by a particular law , or usage . neither is our author's reason of any force , that because persons enobled in blood in a forreign country , shall not try a peer of england ; therefore the parity is not of blood , but of priviledg in parliament : for he cannot but know that all laws are originally made for the benefit of those who are born subject to them , or adopted into them by naturalization , and such shall have the full benefit of all things appliable to their english condition , as if they were natural born-subjects . others that are strangers , tho of equal , or greater quality , shall not enjoy the rights invested in the natives by their birth , but only the protection , and priviledge of the laws of that country where they are , during their abode there . another argument is drawn by our author from the proceedings in cases of appeal against a noble-man at the suit of the party : he argues thus . if in appeal of murther , or the like , at the suit of the party , a noble-man shall be tried by a jury of good free-holders , then their exemption from being always so tried , proceeds from their sitting in parliament , and not from nobility of blood , and therefore all those who have right to sit in that house , have right to the same priviledg : but the bishops have right to sit in the same house , and are called barons , therefore they ought to enjoy the same priviledge other barons have . this argument , how specious soever it may appear , is unconclusive in many respects . first , it doth not follow , that those that have priviledg to sit in the same house , have the same priviledges to all intents , and purposes . my lords the judges , and all justices of the peace , sit upon the same bench , and by the same commission , yet are not equal in all circumstances . nay ; my lords the bishops themselves , though they are of the same order and quality , yet are not equal in priviledges . i have before shewed that there were barones minores , who were not properly barons , but so called , and might be left out at the king's pleasure : but such as are enobled in blood may demand their writs , which the barones minores could not . and if now the bishops have that right ( which is not certain ) it is because they are to summon the clergy , without which the parliament would not be compleat as to the convocation . and were it not for that reason , the bishops might be now wholly left out , for they being only barons by tenure , cannot be in any other rank than were the barones minores , who were left out at the king's pleasure . i have before asserted , they hold their possessions , per servitium baroniae , as a burthen , not honour to them ; and their sitting among the lords was only indulged to the dignity of their function as bishops , they being indeed no more than commoners . neither secondly , doth it any way follow , that because peers in some cases shall be tried by a common jury , therefore those who are properly commoners , and only priviledged to sit among the lords , should participate of the same honour with them . to examine farther into the reason , why in all criminal cases at the suit of the king , the trial shall be by peers , not so in an appeal for the same crime , sir edw. coke will tell you , one reason is because the trial , if it ought to be so , must be before a lord steward , and no appeal can be brought before a lord steward , who is but only temporary , but ought to be brought before the judges in the king 's ordinary courts of justice . we are likewise further to consider , that inequality of persons , is not of the law of nature , but of human constitution ; and that the statute of magna charta , is but a confirmation of our ancient rights , in which all subjects were pares . but since it is apparent , that ever since magna charta , and perhaps long before , the trials at the suit of the party have been as they now are : we must look upon them as a branch of the common law of england , never taken away from the commoners ; but that the king , and noble-men , as to what concerned the crown , were contented to introduce that manner of trial as to the nobles , and long use and custom hath now made it to be received as the law of england ; yet the poor commoner never received that way of trial as to his own right , who look'd upon the verdict of twelve substantial men of his neighbourhood , as much better security for them and their heirs , than a trial upon honour : when upon their appeal it would always have been in the power of the king to name again the same lords for triers , which they had before , and by that means defeat them of the benefit of their appeal , to which the law gives so great respect , that upon an appeal brought , all proceedings at the king's suit should ( as has been taken for law ) stay till the appeal were determined , because a particular wrong to a private person in the murther of an husband , or very near relation , is of greater consideration to the party , than the general loss of a subject is to the king. i shall not pursue this author in his digression touching the ground , and reason of the trial by peers , since our question is not , what the law may be in other countries ; but what the practice of our own is , and of what sort of people those peers are to be composed . that is to say , whether the jury for the trial of bishops shall be composed of noble-men , or of commoners ? in this he confesseth that the lawyers , and those of them who have most searched into antiquity , are of a different opinion to what he maintains as to this particular . a shrewd objection i take it this is ! for every one ought to be credited in his own art , and 't is ten to one the generality of the lawyers are rather in the right , than strangers to the profession , or lawyers of a lower rank , than those great masters have been . but that he may say something , he tells you that mr. selden not only in that confused rapsody goes under his name , but in his more elaborate second edition of his titles of honour , admits the bishops to be peers , in which he hath corrected , and left out the false or doubtful passages of his first edition , and among the rest , that passage ; a bishop shall not be tried by peers in capital crimes . what then ? doth this omission supersede those precedents laid down by him in that rapsody , as he calls it , which was as much his as the other ? the leaving out that passage might be a neglect in the printer : i am sure , 't is no retractation of what he had said before . neither need i tell this author , how books come sometimes to be corrupted . secondly , he saith , some things have been affirmed about this matter with as great assurance as this is , which have not been the constant practice ; coke , he saith , is positive in his third instit. p. . that a bishop should not be tried by peers , and in the same page , that a noble-man cannot wave his trial by his peers , and put himself upon the trial of the country . and doth this author think the law to be otherwise ? yes , he saith in the record of . edw. . that thomas lord berkley put himself upon his country . i have a transcript of the record by me , which i received from my learned and worthy friend , mr. atwood of greys-inn ; but because it is in latine , and agrees with the abridgment by sir robert cotton , and review ed by mr. prin , i shall not transcribe except two or three lines . thomas de barkele miles venit coram domino rege in pleno parliamento suo , &c. cotton e. . numb . , . in a plea of the crown holden before the king this parliament . thomas of berkley knight , was arraigned for the death of edw. ii. for that the said king was committed to the keeping of the said thomas , and iohn mautrevers at the castle of thomas at berkley in glocestershire , where he was murthered . thomas pleads that he was sick at beudl●…y without the said castle , at the death of the said king , and put himself upon the trial of knights , ( named in the record ) by whom he was acquitted . here we have an arraignment of thomas de berkele knight in edw. . but none of thomas lord berkele as this author supposeth . in edw. . numb . . i find the same person at the request of the whole estate , discharged by the name of sir thomas berkley ; so that it seems plain , he was then no peer , and consequently no waver of peerage , in edw. . and in rich. . cot. p. . i find him summoned to parliament , not before edw. . when any noble man had the addition of miles , the name of his barony , was generally expressed ; and the word dominus annexed , iohn de beauchamp militi domino de beauchamp hen. . rob. de hungerford mil. dom. de moleyns , and many others ; insomuch that i am confident , that in e. . thomas de berkley had never been summoned , and so not inter barones majores . and the milites were tenants in capite . i have at last examined all the parts of this elaborate treatise , in which the author hath endeavoured with all art and industry imaginable , to support a declining cause . i have not to my knowledg , left any argument unconsidered , which hath been thought material by this writer to be urged in defence of that cause , the maintenance whereof he had undertaken . i have been longer i confess , in this discourse than at first i thought to have been , but this must be attributed to the subtilty of my adversary , who by learned digressions , and cunning insinuations , hath indeed clouded the truth , and rendered it less visible to the eyes of common readers . notwithstanding , what i have said , if this drudgery of being present as judges in criminal cases , or in the trials of noble-men in parliament , be the right of the lords spiritual in parliament : if the embassadours of christ , the messengers of peace , and the preachers of mercy and reconciliation to god in christ , have more mind to be executioners of god's strange work , than in what he delights ? if they delight rather to make wounds , than to bind them up , let them enjoy that burthen according to their desire . but their pretences to it hitherto , have been ineffectual , and of late , all power of judicature in cases of blood , hath been denied them in several parliaments by both houses . neither hath this author been yet so happy , as to have produced any one clear precedent , where they have been present at the trial , and have given votes for the acquittal , or condemnation of any noble-man brought to judgment in parliament in cases of blood : or that any of their order have been in such cases tried by noble-men , or indeed have desired to be so tried . certainly this nation , together with the most of other christians in europe , lived under the papal communion till the times of reformation ; and therefore the bishops here cannot reasonably be supposed to have enjoyed priviledges different , or greater than those enjoyed by their fellows in other places , where they had the greatest , as well power , as honour . but i think i may with confidence affirm they were no where allowed to sit inquisitors of blood , and not only to debate , but at their pleasure to give sentence in such cases as secular persons in secular courts . i very well remember that in the parliament begun here , , it was at the beginning thereof hotly debated in the lords house , whether any bishop might be so much as of a committee in any parliamentary examination in the case of my lord strafford , because it was a case of blood , in which , by law they ought not to meddle ; the debate was put off ; and the bishops were willing to absent themselves according to the opinion of one of their own body , and agreeable to the practice and usage of the kingdom , being only allowed by the lords to enter a protestation , saving their rights in that , and other cases . now this very question seems to me an over-ruling ours : for if it were then a question whether they might be of a committee in cases of blood , where the judges were often joyned with the lords , it can be no doubt , but that they ought not to be admitted to give their votes as judges in the like cases in their persons . reflections upon antidotum britannicum , and mr. hunt's late book and post-script , as far as concerns the controversy between doctor brady and the authorof jani anglorum facies nova , and of jus anglorum ab antiquo . london , printed anno . chap. i. the true and essential difference between the general council of the kingdom , and the curia regis , maintained against dr. brady , mr. w. and mr. hunt ; with a short account of some reasons why mr. hunt might have spared his censures upon them , who apply themselves to the study of antiquities . since dr. brady received a reply , two of my brethren of the gown , mr. w. and mr. hunt , both of greys-inn , have appeared in print , in behalf of the king's tenants in capite , and will needs have it that these ingrost the right of coming to parliament , as one calls it , or the magnum concilium , as the other , till of hen. . one professes that he never read what has been wrote upon this subject either by mr. petyt or me . the other slights it all , as a dispute not worth the cost and pains spent about it ; and grants many of dr. brady's hypotheses , but denies his consequences , and so allows him to be a good antiquary , but an ill logician . that there was a curia regis , or common council of the tenants in chief ( such especially as held of the king by knights service ) distinct from the great council of the nation , or parliament : in which curia , the king's tenants granted to the king auxilia , aids ; and did act many things in relation to their tenures : both agree with me directly against dr. brady , who will have it , that all the king's tenants by knights service never met in any council or court , but thereby it became the general council of the nation , or parliament . in which , since he is opposed by these two learned authors , agreeing with me , they have given so much credit to my notion , that they have prevented that further trouble ; which i might have given the inquisitive world upon that point . if i can free my self from the force of these gentlemens arguments , or objections upon those things wherein i differ from them , i think i need not fear the empty thunder of men of other professions ; but may look upon my notions as sufficiently established . both mr. w. and mr. hunt , are men of much longer standing , and greater natural and acquired parts , then i can pretend to ; yet if i have the good fortune to fall into the paths of ancient truth , no modern authorities ought to beat me out of them . they both will have it , that the tenants in chief were the only members of the curia regis , which was held for matters within the king 's ordinary power , and of the magnum concilium , or parliament , where the extraordinary power was exercised . against them both , before i examine their supposed grounds from authority , this obvious objection in reason may be urged . if all the tenants in capite by knights service , were obliged to attend in the curiâ , either by virtue of their tenure as a one takes it , or of general summons , as the b other , and the consent of none but such tenants were requisite for passing of laws in parliament , what reason can be assigned , why laws might not have been made in the curia , and so that have become a parliament when ever the king pleased to declare it so ? can a more particular summons , and notice of arduous affairs , which is mr. hunt's notion , lay a greater obligation upon them to be present , who , however , were bound to come ? and if they were bound to come , can absence be reasonably pleaded to free any from the obligation of what was then agreed on ? indeed dr. brady , who will have it that every full confluence of the tenants in chief by knights service to counsel , was a general council of the nation ; supposes that even before king john's charter , and while he thinks that they were to come to parliament ex more , without summons , if but a few appeared , it was no general council : which is an absurd supposal , unless there was before that a law in being , that they should not act without a certain number , as supposing that forty were to make a full house , as now 't is said to be with the commons ; for otherwise they who did appear , did , according to the general rule of making laws , bind them who were absent through their own default . but if we consider how contrary it was to the usage of those times , to make laws , or insert clauses , or words , idle or unnecessary , we shall not easily believe that they would , according to mr. hunt's supposal , have made provision for the particular summoning of those for arduous affairs , who were obliged to attend at the council without such summons . indeed i am aware that dr. brady hath charged me with putting such a sense upon king john's charter , as would imply a needless provision . the doctor tells us that by king john's charter the cause of summons was to be exprest , and from thence he would infer that it was a great council there intended ; for , saith he , such provision were needless if there had been but one cause for which they were to be summoned , which he urges as the consequence of my interpreting that summons there provided for , to have been only for raising such aids in the curia as could be imposed upon the king 's immediate tenants ; and none else . now admit that this had been to a parliament , and had taken in all manner of charges to be laid upon the subject , if the raising of taxes were the only work of a parliament , the providing that they should have notice when a tax had been required , would have been as impertinent ; and if the parliament had any other power , this provision had been as defective as he supposes 't was , according to my rendring , superfluous . for that summons mentioned in king john's charter , is restrained , and limited to the granting of aids , but there is not one word , or syllable of making , or enacting laws , which is the main business of parliaments , and therefore this must be intended of some inferiour counsel , and not of the general council of the kingdom . but if the charter be taken to be meant only of raising such aids as lay upon none but the king's tenants , if those aids branch themselves into escuage and tallage , here were two causes of summons , as the one or the other was required ; or if only such aid as escuage was within the provision , still the cause or the occasion of raising the escuage might be different ; and therefore the cause of summons more than one ; nay some might have been obliged to attend upon one cause of summons exprest , which were not upon another ; for if the king had an occasion of transporting an army beyond sea ; in that case only they that held by the service of going into forreign parts , together with such as were tied to general service , were obliged to attend , and liable to pay escuage , upon their default , to be taxed by them who were present according to the obligation of their tenure . if the tenure were to go into scotland or wales , they could not , by reason of their tenure , be compelled to go else-where , whereas the attendance at the king's court ex more , was what , i take it , lay upon every tenant in chief , holding by knights service , ratione tenurae , and was not superseded by king iohn's charter , but still they that were not present , were concluded , as to all acts of the king's court baron , either in criminal , or civil causes ; as much as in the court-baron of an inferiour lord , the suitors present may proceed to all judgments within the cognizance of their respective courts , where , through the common neglect of the suitors , the steward for the most part gives judgment by himself . mr. w. who was the first author of a lawyer that ran counter to me , makes a distinction between a parliament and a curia regis , which i conceive to be without any difference in relation to the several powers of the curia , and the great council of the nation , except that 't was less in that which is now called the parliament , than 't was in the curia ; for he says that to the curia the tenants were obliged to come ratione tenurae , but to the other they could not come but ex gratia regis . upon which 't is further observable : st , that he yields that the commons , others beside the tenants in chief , had as much right as the tenants in chief to come to the parliament before the th hen. . for he grants that they too came sometimes before that time ex gratia. dly , whereas he supposes that king iohn's charter of resignation was void , not being in magno concilio , though 't was in communi concilio faronum , he assignes no reason in the world for it's being void ; for admit that , to the commune concilium faronum , or curia , the tenants in capite came ratione tenurae , and to the general council of the kingdom ex gratia , which he subjoyns as the ground for avoiding that ignominious resignation , which he agrees with me , contrary to dr. brady , to have been made in the curia regis , and not in the general council of the kingdom ; does it follow that because they had no right to come to the general council , though they had to the curia , that therefore a resignation in the curia was not good ? nay , does it not follow , that because they had no right to come to the general council , therefore the king might exercise his absolute power in such a counsel as he should think fit to call , and might oblige the nation in any act of his done by such advice or consent ? nay rather , if there were a counsel where they might ex 〈◊〉 be present , which mr. w. makes the same with ratione tenurae , does it not follow that there would be less obligation upon them from any act done in the general council of the kingdom , where they had no right to be present , and so no consent of theirs could be urged to inforce the obligation , than from the determinations of that counsel where they were necessary members ? but mr. w. his grounds for his belief that the commons had no right to come to the general council of the kingdom before the th of hen. . are two . st , that in the th of hen. . only three were ordered to be representatives for every county , the year i take to have been mistaken by the printer ; for the settlement , and reformation of the government which he mentions , was in the th ; and that he means that settlement , and not one before in the d , is evident , by his citing si videatur communitati praelatorum & ●…ronum , which is in the record of the th , and not in any of the d , that i have seen . but 't is evident by the record that the three he mentions , were assigned for the electors of a standing counsel to the king , which was to act out of parliament as well as in , but with no authority in legislation ; besides , admit that they were intrusted with all the power of the counties , i cannot find any force in the argument , that because a representative was then agreed on , therefore they had no right to come before that time in their own persons . but indeed in the d of that king , there was a representive of the commons , who were in those times accounted only the citizens and burgesses ; this was pur espargner les costs des communs ; to spare the charges of the commous , which i use not to shew that all such came any otherwise than two for a place ; but that the settling a representative is an argument , that before that time they came in greater numbers . dly . his second argument is the authority of pollidore virgil , which proves wholly against him ; for it says that the populus rarely were consulted with before the time of hen. i. adeo ut ab henrico primo id institutum iure manasse di●…i possit . even he allows the right of the commons to be a constituent part of parliament , to have been an institution , or a settled right long before the th of hen. . no less than one hundred forty nine years . and in the case of godsoll , and others against sir christopher heydon , my lord cook affirmed that he had seen a record in the time of hen. i. of the commons degrees , and seats in parliament , his words are these , en ancient temps tout le parliament sea insimul , & le separation fuit par le desire del commons mes ●…ent obstant ils font forsque un mese , ieo aie veiw un record h. . de lour degrees , & seats . that the commons were members of the general councils of the kingdom in the time of hen. i , i think is very plain , when we find even at synods , assemblies for ecclesiastical affairs , nobilitas populusque minor , and laici tam divices , quam mediocres . but that they then had any order , and certain seats there , i cannot readily believe . and indeed we find that in the reign of king stephen , who immediately succeed hen. i. 't is spoke of as customary for the uulgus , or commons , which were infinita multituto plebis , to come as members of the great council , and to intermix themselves with men of the greatest quality , as 't is usual in crouds ; uulgo etiam confusè & permixtum , ut solct se ingerente . dly . mr. w. his third argument is , that where a record makes mention of arch-bishops , bishops , abbots , priors , barons , and all the commonalty of the kingdom or land , &c. it doth not from hence necessarily follow , that the commons were then present , for the word and may be taken exegetically , and expositive , and not introductive of any other persons ; and the word communitas , doth many times extend to the prelates , and barons , therefore it is said , si videatur communitati praelatorum & baronum . here lies the force of all the cavils upon the records , mentioning others besides tenants in capite , and mr. hunt insists upon the same in effect , with the very same instance . i shall here chiefly apply my self to mr. w. and i cannot but observe , that what i have here cited out of his book , either contains an assertion without any manner of proof offered , or else the latter part is used for the proof of the other ; but surely 't is an odd kind of proof that and may be used exegetically , because the word communitas may extend to several particulars , and as well to prelates , and barons as others , when particularly exprest along with it , which is no more than that the other words are exegetical , or expositive of communitas , not that com●…as , or and joyned with it , can be expositive of those other words . wherefore the assertion that and may be used exegetically stands naked by it self , without any colourable cover or support ; and i would gladly see at least some colour for the belief , that the conjunction and , was ever used as expositive , or exegetical of any word or words foregoing ; indeed when 't is husband and wife , they may notionally be the same in affections and desires , and become one flesh , as body and soul make one man : but i think no man will say that the wife is exegetical of the husband , and is no more than what was mentioned before when the husband was named , nor will any but such as believe the mortality of the soul , and that 't is nothing else but the temperament of the body , or its animal spirits , suppose the soul and body to be the same ; indeed if they were , the body ought to stand by it self , without mention of the soul with a distinctive and. till some one instance can be produced , in which mr. w. can make it out to the common reason of mankind , that and ought to be used otherwise than as introductive of something not expresly mentioned before , he must give me leave to think that in the matter of our dispute and is necessarily introductive of some other persons . but according to the rule of making and exegetical , where 't is expressed in the instance given in the record h. . si videatur communitati praelaturum & baronum , et must by plain consequence be exegetical of the praelati ; and so the barons were only the community of , or all , the praelates . i take it to be obvious that and of it self can never be expositive : the question then will be , what may or ought to be the exposition of words , which singly taken , are of more general , or more restrained senses , and how far they may or ought to be enlarged or restrained , according to their position , or according to the nature of the words which are used along with them . and in my opinion , it is contrary to the laws of interpretation , that a word used in a general sense , and as comprehending others , should explain those others particularly set down , as that communitas which here mr. w. would have taken in a general sense , as not confined to one order , should explain what is meant by praelates , peers , and barons , before particularized : on the other side , words of a particular explicit meaning , coming before or after , one of more general import , shall explain and restrain the general sense . thus praelatorum & baronum , either before or after communitar , restrain that word communitas to the community of the prelates and barons ; and i dare say , no one record can be shewn of the times , either before or after the th of hen. . which will warrant a contrary exposition of such words . and indeed there has no reason been pretended why communitas or populus , joyned to some orders of men expressed , should be the same with what went before , but what is a manifest begging of the question , and supposing that the commons were not present in the general councils at the times the records mention , and therefore that the word communitas or populus was superfluous , and referred to what was sufficiently exprest before , was comprehensive of the foregoing particulars , as mr. hunt will have it : this illogical petitio principij is a leaden vein which runs through all doctor brady's writings . but let us a little observe the pennings of records , which may give light to this matter ; you shall there find words of a restrained sense , following one of more general , to be exegetical or explanatory of the general , as the peers , earls , and barons ; there earls and barons denote what peers are meant , because there might have been bannerets , an inferiour order of peers . then you shall find words of a limited sense going before to be restrictive of a word following , which otherwise would have had a more general sense , as earls and barons [ the peers ] there the earls and barons are the only peers : but where 't is earls , barons and peers , there neither the first nor the last words can be expositive , because and severs them , and consequently makes them to be of different senses ; wherefore and is necessarily introductive of other persons ; and the word peers , which without and might have been a genus to the several species of earls and barons , must needs be an inferiour species under a genus not there mentioned . but still peers could not have explained the earls and barons , but earls and barons would be expositive of peers , which is more comprehensive in its signification . and thus where 't is communitas praelatorum & baronum , communitas is the genus to these two species , and the more particular words restrain the communitas to them ; wherefore 't is the whole body of the prelates and barons , and none else ; but where it is praelati , comites , barones , & populus , or & communitas , there the populus or communitas must be inferiour to the rest particularly mentioned , being there is a descent from the higher orders still to the lower ; if they begin at the bottom , they end with the highest , at least that which is added at the last , must be something distinct , or different from , or not paticularly exprest in what went before , which is enough for my purpose . i shall close this with a few more examples out of records . in a general council of the kingdom held in the fifth year of king iohn's reign , after he had married his second wife , having been divorced from the first : the new queen was solemnly crowned , unanimi consensu & concordi voluntate archiepiscoporum , episcoporum , comitum baronum , cleri , et populi totius regni . magna charta was confirmed in a general council of the kingdom , h. . years before the th of that king per common assent tout de le reaum ; and this in another record , is said to be per le roy , piers & commune de la terre . and the statute of westminster the first , eleven years after . h. . was ordained per passentments de archievesques , evesques , abbies , priors , countees , barons , et tout la comminalty de la terre illonques summonees . now what man of common sense can believe that the clerus & populus cotius regni , after the comites , & barones io. the commune de la terre , after the peers ; . hon. . and tout le eomminalty de la terre , after countees and barons , edw. . were no more than the prelates , earls and barons ; indeed there being no et between baronum and cleri , io. were it not for other records explanatory of the like , there might be some colour for mr. hunt's supposal that eleri & populi were only comprehensive of the orders foregoing , and might be in the same sense with communitas archiepiscoporum , episcoporum , comitum , & baronum . but for the penning of records , both mr. hunt and mr. w. know better , than to think the clerks in those times stuffed them with tautologies . mr. hunt's way of expressing the same notion , i shall soon consider more particularly . but admit that my interpretation of records is generally erroneous ; yet 't is manifest that the record which is cited and insisted on to warrant the contrary , shews that there were other persons at the general council of the kingdom besides prelates , earls and barons , and that these were such as are now called commons . the record was the form of peace agreed on in the th year of hen. . it says . haec est forma pacis a domino rege , & domino edwardo filio suo , praelatis & proceribus omnibus , & communitate regni angliae , communitèr & concorditèr approbata , &c. amongst other things 't was agreed , ad reformationem statûs regni angliae , that there should be chose in that parliament three men , who should have power from the king toname nine , that should be the king 's standing counsel ; and if any of the three displeased the community of the prelates and barons , or were by them thought unfitting for their office ; si videatur communitati praelatorum & baronum , one or more should be placed in his or their room , per concilium communitatis praelatorum & baronum ; and the record concludes , haec autem ordinatio facta fuit apud london de consensu voluntate & praecepto domini regis necnon praelatorum , baronum , acetiam communitatis tunc ibi presentium . upon this 't is observable : . that et communitas regni , in the beginning of the record , next after the praelates and all the peers , must necessarily be the commons of england , nor can et possibly be taken otherwise than as introductive of other persons besides the prelates and all the peers , before expresly mentioned ; for that the record concludes , as it were with an intention of preventing all manner of expositive cavils ; for , having declared that the ordinance then made , was by the consent , will , and authority of the king necnon , and as ▪ well of the prelates and barons ; it adds , ac etiam communitatis tune ibt presentium , which must necessarily be , and also of the commons then and there present , as well as the prelates and barons [ presentium ] being taking as relating to all that went before ; or and also of the community of them that were then and there present , that is , all that were present were parties to the ordinance ; if the first , then the commens also were there by name ; if the second , tho communuas be not taken as an appellative for the commons of england , yet that they were then and there present , is as evident from the record , since it shews that others were present besides the king , prelates , and all the peers , that those others were parties to the ordinance then made , and as they could not possibly be of an higher rank , than what were before exprest , but much less the same , being so manifestly distinguished with an and also , from what went before , they must needs have been inferiour , that is , commoners , unless there was another rank of men , that were neither lords nor commons , but between both : wherefore 't is a demonstration that there was then present and acting in a legislative capacity , a body of commons , over and above , or distinct from the prelates and all the peers or barons , above mentioned . . in this parliament h. . there was a particular matter referred by the king , and that in a full parliament of prelates , peers , or barons , and also the commons , to the disposition and management of the prelates and barons only ; and surely 't was no great thing for them to be empowered to remove , or put in electors of the king 's standing counsel , which was all that was referred to them , without consulting the commons upon every occasion . but i cannot discern the least consequence that because the word communitas , doth many times extend to the prelates and barons , which , as mr. w. rightly observes , it doth ; that therefore it must be limited to them , and extend no further , whatever words come between . and i would thank him that should satisfy my reason how it is possible it should be confin'd to them , when there comes and , or and also to extend it farther . if mr. hunt. had observed how distinctly all the orders of parliament are mentioned in this record , viz. praelati & proceres omnes , & communitas regni angliae , and again , praelati , barones , ac etiam communitas , and had further observed how full and clear the evidence is , that all of them together referred , or consented to the king 's referring the matter before taken notice of , to the earls and barons only , or to the community or generality of them , ( from whom another community , the communitas regni angliae then and there present , was sufficiently distinguish'd in other parts of the record ) and that that affair was to be managed per consilium praelatorum , & baronum , he would never have insisted upon this as demonstration that communitas regni angliae , after praelati & proceres omnes , nay , tho with an ac etiam , has no other sense than commune concilium regni , and was as a comprehensive term of those that made it , or was used exegetically , as mr. w. has it . if it had been praelati & proceres , commune concilium regni , or communitas regni , there , because there is no discretive and , or and also , the latter might be comprehensive of the former . but whatsoever may be said of the careless penning of records or histories anciently ; yet when there are numbers of records or histories expressing the parties present at general assemblies of the kingdom , some of the like penning with the aforesaid form of peace h. . some more express and particular , if possible ; shall all the clerks of parliament , and learned monks , or other old authors be taxed with heedless impertinencies , nay even want of understanding what they wrote ? eadmerus , who was a very corrrect writer , and lived in the time of which he wrote , tells us , that at one general convention , in the reign of hen. i. there were tota nobilitas cum populi numerositate ; at another , tho it was held only for ecclesistical affairs , there were nobilitas , populusque minor . the election of king stephen , as a grave prior of those times tells us , was a primoribus regni , cum favore cleri & populi , clericorum , & laicorum universitate . in that king's reign there was adunatum concilium cleri & populi , a general council of the clergy and laity together , which now one would say were a parliament and convocation united ; the members of this council follow , episcoporum ; atque abbatum , monachorum , & clericorum , pl●…bisque iufinita multitudo ; the authority for this is a legier book of the abby of ely , wrote as it should seem in the time of hen. i. these kind of books were generally kept with great exactness , and were in the nature of records . from the like authority we have it that archiepiscopi , episcopi , comites atque alij omnes , were consenting to the election of king iohn . but to mention a few undoubted records to this purpose . in the th of king iohn , there were precepts to all the sheriffs of england to summon in every county milites , who were to come with arms , barones without arms , and four knights for every shire , & quatuor discretos milites de comitatu , to a general council at oxford . in the th of hen. iii. besides the tenants in chief , two legales & discreti milites were required to come for every county , vice omutom & singulorum , to be chosen by the milites & alij de comitatu . and several records before the th of h. . describing the members of parliaments , mention besides the clergy , comites , barones , milites , liberi homines , some , & libere tenentes , others , & omnes de regno . now can there be the least colour to believe that all these were no more than the prelates and great barons , or only the greater and less nobility holding in chief , whatever dr. brady or others may obtrude upon the world ? that the commune concilium baronum , may sometimes be used in the same sense with commune consilium regni , affords no help to mr. hunt ; because where the expressions are too lax and general , barones shall be taken in it's utmost extent , and consequently shall comprehend ordinary free-holders , who were nobiles , & barones minores long before the th of hen. . but the question is , whether when records or histories make a distinction between barones , and others coming after , the distinction can be thought to be without any manner of difference , and so vain and idle , as that the porulus minor , or populi numerositas after nobilitas , is a term comprehensive of the nobility before mentioned ; or when there were primores regni cum clero & populo the chief of the kingdom with all the clergy and people , the word people , was but comprehensive of the primores , so that the primores were there together with themselves . but surely i need not run over all these instances , and many more produceable to convince even dr. brady , mr. hunt , and mr. w. of the absurdity of interpreting records after their manner . but mr. w. thinks to help out his record by an historian , and cites the additaments to matthew paris , mentioning the letter wrote to the pope in the case of adomar de valens , which begins thus : communitas procerum , magnatum , aliorumque regni angliae , and was subscribed by some earls and great men , and peter de monteforti vice totius communitatis ; this mr. w. says was in the name of the whole baronage , not the house of commons , or commonalty of england , there being mention of the universitas baronagij , but not universitas regni popularis . i take it to be manifest that all the question which can arise upon these words is not , as mr. w. puts it , whether symon montfort subscribed in the names of the barons only , or of the commons only : but whether some of the great barons having set their hands themselves , montfort , being the last man that subscribed , did not do it in the name of the rest of the great barons not subscribing , and of the commons too , as part of the baronage , or communitas of earls , barons and others . and i think nothing is more clear then that the commons were part of the community here intended . matthew paris tells us , that 't was ex parte regni & totius angliae universitate , and this he says was scriptum a farnagio , and that the commons were part of the kingdom at parliaments , and went under the denomination of the faronage at that very time , is evident beyond contradiction from record : for whereas the title of the writ expressing some matters agreed upon between the king and his people in that very parliament , is , pro rege , & faronagio an●…liae , the body of the writ runs , rex omnibus &c. cum pro negotiis nostris arduis regnum nostrum tangentibus proceres , & fideles regni nostri ad nos london in quindena pasche prox . praeterit faceremus convocari , &c. and another record explains , and reduces to a certainty the proceres & fideles and the faronage , and calls them hanshomes ( the high men , the prelates and great barons ) prodes homes ( the magnates and grands of the counties ) and the commune de reaum ( the commons of the cities and boroughs ) and with this his own instance out of matthew paris , exactly agrees , for there were the comites and proceres ( the great barons ) the magnates , or grands of the counties , and alij , who must needs be the commons of the cities and boroughs , as they were distinguished from the grands of the counties , even as late as the th e. . this may serve for a full and clear answer to dr. brady's exposition of the forementioned letter , whom both mr. hunt and mr. w. may thank for misleading them in this point ; and this sufficiently shews the vanity and falshood of the doctor 's assertion , that the commons as at this day known , are not to be found amongst the community of england in old historians , except he will place matthew paris amongst the moderns . this i think may suffice in answer to any thing wherein mr. w. his authority may be used against me . i cannot be so short in my observations upon mr. hunt , because he aims many blows at me in the dark , and may be thought in many places to have wounded my arguments , or the reputation of my endeavours , which he represents as impertinent , or like a contest de lanâ caprinâ . in opposition to my notion of the curia regis , he produces another , which he thinks he demonstrates , whereas mr. w. takes the curia to have been the only court where the tenants could pretend to come ex debito , or ratione tenurae . mr. hunt will have it that they , and they only , came both to the curia , and to parliament ex debito whatever others might sometimes have been called ex gratia : but then he thinks that he has found a sure means to distinguish which was a parliament , and which was a curia , by the nature of the summons . if it was to all tenants in chief by knights service generally , it made a curia : if the great barons had special summons , 't was a parliament in his judgment . to convince him of his mistakes in this and other matters , which he might have rectified , if he had not undervalued the study of english antiquities , will not be enough to him , unless i likewise shew how convenient it would have been for him , to have had more regard to some of those matters of fact within that learning , which i conceive , i have made good against dr. brady , and which mr. hunt has not yet vouchsafed to confute , otherwise than by an ipse dixit . first , wherefore i shall first shew him some mistakes which i am concerned to represent to him ; and that ( . ) as to the matter in issue , in relation to what our government was before the th of hen. . ( . ) as to the manner of summoning the parliament , or general council of the kingdom , and the curia , whereby he thinks he is able to distinguish the one from the other . secondly , i shall shew the erroniousness of some suppositions which may have contributed to mr. hunt's belief , that the tenants in chief were the only members of the parliament till the th hen. . or that tenants in capite only , constituted both the curia and the parliament , according to the fancied different summons . thirdly , i shall shew that he himself , in effect , grants that more than tenants in chief had right to come to the great council of the nation , in which the nation 's rights were involved . fourthly , that even according to his own notion of tenure in capite , all proprietors of land , as such , had , till the th of hen. . right to come to the general council of the kingdom . fiftly , that whereas he would set aside the question of what the government was till the th of hen. . as impertinent . ( . ) his own notion , by which he would supplant the labours of others , destroy's it self , while mine maintains what he aims at . ( . ) he puts such matter in issue for asserting the present government , as can never be maintained . ( . ) he yields so much of the fact against me , as sets aside the whole foundation of his postscript . and yet , admit he answers all objections against his postscript , the grounds which i go upon are of the most general use . ( . ) the first of his mistakes , which i cannot but animadvert on , seems to be wilfull ; for he renders the matter of late put in issue , as to what our government was before the th of hen. . to be whether the counties in all this time had their representatives in parliament by the formality of a choice ? and , as if our government was according to the concessions of them who have lately appeared in the defence of it , to take it's fate upon this issue , viz. whether our present house of commons , in the same form as it is now constituted , was not in being ever after the conquest ? and as if we should yeild , that otherwise it were no essential part of our government . i must confess , according to his insinuation , that whoever puts it upon this point , betrayeth the cause of the government , but he would do well to name the man who has done this disservice . this i must confess i have insisted upon , that proprietors of land , as such , without consideration of tenure , or collated dignity , have from the time of william the first , downwards to the th of h. . enjoyed a right of coming to the great councils of the kingdom , and could not be bound by any laws to which they had not consented either in person , or by representation , yielded to sometimes before , but not setled till the th of hen. . and mr. petyt hath satisfied mr. hunt himself , that the cities and boroughs were represented in parliament from time beyond the account of records or history . but this i desire may be considered , that admit there were no representation of the free-holders of the counties settled at any time within the reign of hen. iii , or in any other king's reignnow appearing ; and farther , that it cannot be shewn , that such free-holders ever came to the general councils of the kingdom in their own personal interest ; yet however , if it appear that such as are now represented by the knights of the respective shires , gave their votes to parliamentary proceedings , by such as they particularly appointed to that end before the th of hen. . the present constitution stands sufficiently established without the least imputation of novelty , or usurpation . and this were enough for my purpose : but since many arguments induce the belief that before the th of hen. . such ordinary free-holders often came to the general councils of the kindom without special election and representation , i should have given too great advantage to the underminers of common right , if i should have undertaken to prove that the counties , from the time of the reputed conquest downwards , always had their representatives by the formality of a choice , which mr. hunt , i thank him , would put upon me to prove . his second mistake , as to the manner of summoning the great council and the curia , wherein he thinks that there lies an essential difference between the two courts , is nearly conjoyned to the first , and if it were no mistake , would overthrow my notion : for if , as he holds , only tenants in chief made the general council , of the kingdom , as well as the curia , then my belief that others besides such tenants had right to come to the general council , would be groundless ; and it might be probable that the different summons might distinguish the courts . but whereas he fancies it to have been a distinctive mark , or certain diagnostick of a parliament , where the summons were personal to the bishops , earls , and the greater barons ; if he had been pleased to have taken the pains to consult the records , he would have found the summons to have been as personal to the wars , and consequently to the curia ( which besides other occasions for its sitting , was held at the place of rendezvous , to charge escuage upon the defaulters ) as 't was to the general council , which if i prove , i hope 't will be yielded that the essential difference of those two courts could not arise from the nature of the summons to the king's tenants , whether all were called in general , or some among the rest in particular , but from the persons summoned , whether only tenants in chief , or others besides them . in the th of hen. . which to be sure , was before the th there was an army to be sent against llewelin prince of wales , who committed hostilities against the english ; this 't is certain was no general council of the kingdom , being only a summons to the wars ; and yet the great barons had personal summons , as appears by the record . rex dilecto & fideli suo rogero de rigod comiti norff. mares . ang. salutem ; quia llewellinus filius griffini et cumplures rebelles nostri contra homagum suum & fidelitatem nobis debit am terras nostras & fidelium nostrorum in partibus walliae dudum ut nostis hostiliter sunt aggressi terras illas occupando & devastando in nostrum dedecus & in nostrum et praedict . fidelium nostrorum exheredationem manifestam vobis mandamus sub debito fidelitatis & homagij quibus nobis tenemini & sicut eaquae de nobis tenetis diligitis quod in festo beati petri ad vincula proximo futuro sitis apud wigorn cum equis & armis & cum servitio vestro nobis debito parati exinde nobiscum proficisci in expeditionem nostram contra praefatum llewellinum & complices suos rebelles nostros . et it a de contentis in hâc necessitate nostrâ ibim veniatis ut dictorum rebellium nostrorum versutia adeo patenter reprimatur quod nobis et vobiscedat ad honorem & exinde vobis ad grates teneamur speciales . teste rege apud westmin . o die maij. eodem modo mandatum est phil. basset , &c. and this gentleman ( if he had thought fit to have trusted mr. selden , without taking the impertinent pains as he terms it , of searching the records , might have known that about temporal barons had then their several writs . but this author finding a precept to a sheriff , quod summoneri facias archiepiscopos , episcopos , comites , barones , abbates , priores , milites , et liberos homines qui de nobis tenent in capite , &c. concludes that this must necessarily be a curia regis in distinction to a parliament , because of the general writ of summons : whereas a little insight into records would have acquainted him that the sheriff was obliged to summon all those by a general proclamation , and then to deliver the particular writs to the great barons amongst them ; this record doth not say how they were to be summoned ; but notwithstanding this , every one of those ranks of men might have been summoned particularly : but to prevent all mistakes , or evasion we have a record which explains that very instance which he insists upon , it being of that very time . rex vicecom . devon salutem praecipimus tibi quod in fide quâ nobis teneris visis literis istis scire facias omnibus de com. tuo qui de nobis tenent in capite per servitium militare vel per serjantiam & similiter illos qui terras norman . vel brittan . tenent de ballio domini regis iohannis patris nostri vel nostro quod sicut tenementa sua quae de nobis tenent diligunt sint apud winton . die clausi paschae parati cum equis et armis ad trasfretandum cum corpore nostro in pictaviam literas etiam ipsius certis personis directas in com. tuo mitti fac : t. r. apud windles o die februarij . here was notice given to all , or general summons , and particular writs also to be delivered to some of the tenants , and thus , for ought appears to the contrary , it always was . this alone were enough to shew that he has mistaken king john's charter , which he thinks has establish'd this difference ; but his own explication of it will make it more apparent . which i shall consider under this next head. chap. ii. some erroneous suppositions , which may have contributed to mr. hunt 's belief , that the tenants in chief , were the only members of the general council of the kingdom till h. . or that tenants in capite only , constituted both the curia , and the parliament , according to the imagined different summons , considered . all the grounds which mr. hunt can pretend for this , besides the matter of fact in relation to the summons which i have already examined , must be either ; . from the interpretation of king iohn's charter . . his notion of tenure in capite ; or , . the belief that william the first , made an absolute conquest of this nation . if king iohn's charter requires that the great tenants in chief should have particular summons to parliament , then indeed there would be a reason why , though all the tenants in chief were obliged to attend in the curia upon general notice , yet some might not be concluded by any act of legislation , unless they had notice of attendance to such end . but if he knew not what was meant by tenure in capite , 't is odds but he might mistake the sense of that part of king iohn's charter which relates to the tenants in chief . and if william the first did not make an absolute conquest , 't will be wonderful how those that derived from under his grant , should be the only persons interested in the government , exclusive of all others : but if he did make such a conquest , then a very little evidence would be enough to make one believe that none but tenants in chief were cives , or any part of the civil society . to take away all colour from his presumption ; i shall shew , i. that he gains no help from king iohn's charter . ii. that he mistakes the nature of tenure in capite . iii. that he would have done well , to have answered the objections against the supposed conquest , before he concluded for it . i. he can gain no help from king iohn's charter ; for his interpretation of it fights against its self . he himself acknowledges a difference between the curia regis , and parliament , and particularly that in the curia the suitors assess●…aids and escuage , to which purposes he will have it , that they were summoned by general writs ; and yet contends , that by king iohn's charter , the great tenants in capite , who were suitors at the curia , were to be summoned in particular de scutagiis assidendis , to assess escuage ; and that the council where this was assest , was a parliament , according to his imaginary distinctive mark. but let us observe his way of demonstrating his sense of this charter : he divides some of the clause , in dispute , into two parts , and leaves out ( as not material to the enquiry ) what particularly relates to the cities , ports , burroughs , and vill●…e ( townships or parishes ) in which alone , according to his own division , the liberties of sending burgesses to parliaments must have been confirmed and provided for ; and yet , notwithstanding such omission , will have it that the modus parliamenti in king john 's time , was in the said charter declared . his first division is this . nullum scutagium vel auxilium ponam in regno nostro , nisi per commune concilium regui nostri , nisi ad corpus nostrum redimendum , et ad primogenitúm filium nostrum militem faciendum , et ad primogenitam filiam nostram semel maritandam , et ad hoc non fiet nisi rationabilè auxilium . the charter has further , which is omitmited by him . simili modo fiat de civitate londinensi , & civitas londinensis habeat omnes antiquas libertates , & liberas consuetudines suas tam per terras , quàm per aquas : praeterea volumus & concedimus quod omnes aliae civitates , & burgi , & villae , & barones de quinque portubus , & omnes portus , habeant omnes libertates , & liberas consuetudines suas . here mr. hunt , to be sure , would have it divided ; since he begins the other part with et ad habendum commune concilium regni . wherefore 't is manifest , that even according to his rendring of this part of the charter , the modus of parliament is not declared ; the right of the burroughs amongst other places to come to the great council being only implied , under the rest of their liberties and free customs , whereas he himself confesses , that we have no history of the commencement of their right , and that it was an ancient establishment in the government before magna charta . as i had formerly urg'd in iani anglorum facies nova , and in ius anglorum ab antiquo . et ad habendum commune concilium de scutagiis assidendis aliter quam in tribus casibus praedictis , either ought to be read along with what relates to the cities , burroughs , ports , and parishes or townships , and so their right of coming to the commen council of the kingdom is provided for in an especial manner , as well as their other liberties , and free customs . or else , the right of the inhabitants of these places , the integral parts of the kingdom , to send , or come to the common , or general council of the kingdom , must have been included in the general provision for their liberties , and free customs , and no otherwise taken care of . and then h. the ds charter , being in nullo dissimilis , or the same in substance with this of king iohn ; and having no express provision for the manner of summoning the general council of the kingdom , and only leaving escuage to be raised , as 't was in the time of h. the d , it shews that escuage was to be raised in such a council so summoned , as is provided for in king iohn's charter , with which h. the ds agreed in substance : wherefore to say escuage should be raised , as 't was in the time of h. the d , was as much as to say , that for the assessing escuage the arch-bishops , bishops , abbots , earls , and all the great barons of the kingdom holding in chief , were to be summoned by special writs , the other tenants in chief by general ones , and for this they should have forty days notice . but let us see what is made of a contrary exposition . by the first commune concilium , mr. hunt conceives the curia regis was meant , and that out of that court the king would not impose escuage , or aid upon his tenants , except it were in those three cases of aid mentioned . but then , et ad habendum commune concilium regni aliter quam in tribus casibus praedictis & de scutagiis assidendis he conceives to be meant of parliament , and that all matters other than those three mentioned , aids , and escuage , which were due by tenure , should be done by that commune concilium , that is , his parliament . truly i know not how he will free himself from a contradiction upon this , when he makes et ad habendum commune concilium regni aliter quam in tribus casibus praedictis , et de scutagiis assidendis to be meant of a parliament , though before he had exempted escuage from the court of parliament and assigned it to the curia . and this shews clearly , that no other council but the curia regis is there mentioned , there being no provision , except what was contained under liberties , and free customs , for any other matters besides escuage , and aids , and these such as he confesses to have been due from the king's tenants , for where 't is nullum scutagium vel auxilium ponam in regno nostro , nisi per commune concilium regni nostri . by this commune concilium he owns the curia regis was meant . for the three aids excepted in the charter , to be sure there was no need of a council of tenants , they being incidents , and of course raised and returned into the exchequer , and the king expresly reserved unto himself a power of raising them without convening any council at all ; so that in short all the common council that can be here found by him is only a curia regis for the assessing of escuage , so that where 't is nullum scutagium vel auxilium , auxilium is confined to such as lay upon the tenants who were to be summoned to the curia , who were tenants by knights service only ; and therefore he rightly observes ( if he takes it of such as held not per servitium militare ) that the burgesses were not suitors to the curia regis , and where 't is commune concilium de auxiliis , & de scutagiis , if they ought to be joined together , the word scutagium brought in with an and is exegetical , and explanatory of the general word aid , and confines it to aid upon tenants by knights service : and it is certain that the matters excepted were incident to knights service as well as socage tenure . according to which , as london held in common socage , ●…ili modo fiat de civitate london , must be meant , that as escuage was raised in the common council of the tenants by knights service , in like manner tallage in london should be settled in its common council ; for according to mr. hunt , the city of london being a burrough , was no part of the curia regis , which he says is the commune concilium just before mentioned , wherefore simili modo fiat can have no other meaning ; being 't is manifest that their aid was to be raised in a common council . after all it must be agreed , that this charter is not carefully , and clearly penn'd , however here is enough to shew that it cannot possibly serve the contrary side . besides the uncontroulable evidence of what was the modus of general councils both before , and after the making of this charter , till the th of h. the d. but mr. hunt might well be out , in his interpretation of king john's provision about the tenants in capite , since . ii. he mistakes the nature of tenure in capite , which i shall evince by these three particulars . . in that he supposes that none of the tenants in chief were majores barones , but bishops , and earls . . that none were barones regni , but tenants in chief , and none barones regis , but such as were called of grace to parliament . . in imagining that if a tenant in ca●…te , granted out to never so many , all the grantees were tenants in capite , and owed the same entire service that the first grantee did . . his errours upon his first and second heads cannot be truly shown , unless they be fully transcribed in their full dimensions . when the conqueror ( says he ) did innovate his tenures in capite , and made all men of great estates barons , and by their tenures and estates members of parliament , we then had such laws , quas vulgus elegerit , and the nwe had materially our three estates , though not so well sized and sorted as since . we had then i say many great free-holders in every county that by their tenures were members of parliament , whereas now we have but two , and tho the people did not not chuse them , yet the men of that order , seem chosen once for all interpretatively by the people in their consent to the government . in this constitution , scarce any man that was fit to be chosen , but was without the peoples choice a member of parliament , as there now are more who are fit to be chosen than they can chuse , so that the barones minores were then instead of knights of the shire , and the barones majores , bishops and earls did then , as now , make the parliament . besides , barones majores and minores there , was at this time a distinction between the barones regis , and barones regni , which i will explain , to prevent any mistake that may grow thereupon : the barones regni , were barons by tenure , and made part of the government by the constitution of the first william , and so in process of time , called barones regni , because they had by continuance of that constitution , acquired a fixed right to that honour . but because of the frequent wars between the barons and the kings at that time , they did omit to summon , some who were barons by tenure , and now duly called barones regni , to parliament , and called others , that had no right to be called ratione tenurae , and those they called barones regis . this was ill taken by the lords , and was one of the occasions of their war with king iohn , upon which they obtained his charter for remedy , as follows . barones majores regni sigillatim summoneri faceret ; the truth of this as to the fact will appear by the history of those times ; and that this is the reason of this distinction of barones regis and barones regni , doth appear by the recited charter of king iohn , where the majores barones are called barones regni ; for the barons were more concerned for the losing of their honours , than they were at the communication of the like honour to others , and with reason , though all honours are lessened by the numbers of those that participate of them . the inconveniency and mischiefs of this constitution were very great , and very sensible , by making the government to consist of one order , there was no third to moderate and hold the ballance . i shall not here enlarge upon his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , of the conquest , nor upon his conjecture of one of the occasions of the barons wars , nor yet upon his notion of three estates materially the same when but one order , and by the same reason , if all were in one , by virtue of ▪ his spiritual and temporal power , and he had by a conquest all the property of the nation , here the government was materially the same , with lords spiritual and temporal , and commons in his belly , as when he had disgorged , and scattered abroad the property and power . but to the purpose of the above-mentioned heads . . whereas he will have it , that only bishops and earls were majores barones , it appears manifestly to the contrary from the words of king iohn's charter , which he mistakes , submoneri faciemus archiepiscopos , episcopos , abbates , comites & majores barones regni , sigillatim . here are majores barones regni , after bishops and earls : and i need not here remind him of the vanity of the notion of making majores barones exegetical , or comprehensive of what went before . 't is certain if bishops were majores barones as well as earls , here are others intended also ; and why are not such as held whole baronies , as some did , great barons ? besides , you shall find numbers of barons to have received particular summons , even to the wars , according to the provision in king iohn's charter for summoning the majores barones sigillatim . i will give him some names , and see whether he makes earls of them all . three bassets . william de harecourt . roger de somerey . iohn forreigner , extraneus . richard de grey . ern. de bosco , &c. but if all these were earls , what thinks he of the nine hundred and odd , who received special summons , de veniendo ad regem cum equis & armis usque berwicam super twedam in the th of edw. . . whereas he will have it that the barones regni were barons by tenure , and the barones regis by call to parliament , he might have known that every baro regis was a baron of the kingdom , but every baron of the kingdom was not baro regis , in a strict sense . wherefore accordingly king iohn's charter confines the special summons , which as , i say , was to the curia regis , to such great barons of the kingdom as held in capite . there being after majores barones regni in a different provision , et omnes alios qui de nobis tenent in capite . wherefore when all the barons of the kingdom were summoned , it took in the majores and minores , both those that held in capite and otherwise . but when they are used distinctly , 't is wholly contrary to his supposition ; for the barones regis were properly , and strictly , they who held immediately of the king , as all manner of authorities warrant . indeed i am almost ashamed here to bring proof of a thing so evident : but he may please to observe that thanus and baro were always of the same acceptation . thanus regis was strictly , he who held lands of the king by any kind of tenure ; and so was baro regis ; tho somtimes appropriated to him that held by knights service , and an ordinary thane was no more than an honest free-holder by any sort of tenure , as appears by dooms-day-book it self . but i conceive the difference between baro regni and regis , is sufficiently shewn in this following authority . in the d of hen. . benedictus abbas , tells us the king summoned magnum concilium de statutis regni sui coram episcopis , comitibus , & baronibus terrae , & coram eis per concilium comitum , et baronum , militum , et hominum suorum ; he made the fam'd assize at northampton . here are barones terrae , or regni , and barones , milites , et homines sui . here either all the barones regni were barones regis , or sui : and then his distinction between baro regni and baro regis falls to the ground ; there being no difference ; or else there is that very difference i stand upon , viz. that the barones regni were comprehensive of all sorts of barons , the barones regis were the king's tenants in capite . amongst which , there were knights at least : and the homines sui , i take it were his great officers and justices . these made a select council , acting in parliament , and out of it , either in a full body , or contracted by agreement , as i could easily shew . but the tenants in capite , were the king 's ordinary council , and therefore manifestly the assize there was drawn up and advised by them in full parliament , with the consent of all the barons of the kingdom : under which , in those ancient times omnes quodamodo ordines regni continebantur , as mr. cambden observes . but 't is observable , that here 't is homines sui , or regis , to shew that the justices and others , who came not upon the account of free-hold , but as the king's servants , were not to be termed barones sui . a few years before this , there was a summons for an assembly at this very place ; and 't was manifestly no more than a curia regis . . whereas there were the barones terrae at the last above named , to this were summoned only tenants in capite . . whereas then they were to exercise a legislative power , de statutis regni ; this was only for a judicial power , such as tenants in capite exercised by themselves , for 't was only upon the case of becket . . whereas the former was called , magnum concilium de statutis regni , this magnum concilium , as some call it , was but curia regis : barones curiae regis adjudicaverunt eum esse in misericordia : as hoveden informs us . now the question is , whether those tenants in capite , the barones curiae , were barones regis ; which that they were , i think is very obvious , they being , by reason of holding of the king , obliged to attend at his court : and that these were the king's barons , or barons of his court , or owing suit , and service there , must needs be synonimous . but utterly to silence this gentleman , he grants that hen. i. was crown'd in an extraordinary convention of the people ; that is more than tenants in chief consented to that change in the succession . now that very king's charter , says 't was communi concilio baronum regni ; when among these he comes to mention such as held of him in chief , he calls them his barons , emphatically ( not but that all were his barons in a remote sense ) si aliquis baronum meorum , vel comitum , sive aliorum qui de me tenent mortuus fuerit , haeres suus non redimat terram suam sicut faciebat tempore fratris mei . this relief , it seems , in his brother's time was uncertain , and immoderate , and was by him reduced to the old standard , as 't was in canutus his time , as appears by the comparison of the laws of both . the earls relief was eight horses , four with furniture , four without , besides arms , and a certain quantity of gold. the thanus regis primarius , as in king canutus his law , or qui ei proximus , as in henry the st , paid for hereot or relief , which there were synonimous , four horses , two with furniture , two without , &c. the mediocris thanus paid one horse with furniture , and other things more or less , according to the custom of the places under different laws . here was thanus , or baro regis primarius , the same with baro major , and thanus mediocris , or baro minor , one of the alij qui de nobis tenent in capite mentioned in king john's charter : and surely no man will say that this relief was not payable because of tenure in capite . by the th of king john , it had become customary for the relief to be paid in money ; as appears by his charter . siquis comitum vel baronum nostrorum , sive aliorum tenentium de nobis in capite per servitium militare mortuus fuerit & relevium debeat , habeat hareditatem suam per antiquum relevium , scilicet haeres vel haeredes comitis de baroniâ comitis integrâ per centum libras , haeres vel haeredes militis de integro feudo , militis per centum solidos ad plus , et qui minus debuerit minus , vel secundum antiquam consuetudinem feudorum . here baro noster was manifestly the same with thanus regis in the older laws ; and baro de baroniá integrâ , with thanus primarius , or qui ei proximus . the mediocris thanus regis was the miles , or libere tenens , one holding in chief by knights service , by whatsoever proportion of a knights fee. and by this time i think 't is evident , that they whom mr. hunt supposes to have been the only barones regni , were in a strict sense the barones regis , and but part of the barons of the kingdom . . whereas he imagines that if a tenant in capite by knights service granted out to never so many , they all owed the same entire and indivisible service to the king , and were his tenants in capite ; in this he must needs have been mistaken : but that i may not seem to misrepresent his sense , i shall transcribe his words , and then endeavour to bring them out of their clouds . the feudal baronage , says he , was as large and as numerous as the tenures by knights service in chief , which were capable of being multiplied several ways , for every part of the fee , however divided , the services reserved upon that fee that were entire and indivisible , were to be performed by the several proprietors of the several parts of the divided fee. in this paragraph there are three postulata . . that tenure by knights service in chief , was tenure by barony . . that every tenure by knights service had some entire indivisible service incident to it . . that this entire indivisible service was multiply'd to the benefit of the king , upon the tenants aliening any part of the fee. the two first i agree to his hands ; but dispute the third , i conceive with good reason : for upon the first view 't is evident , that if the grantee of the king's tenant in chief by knights service would ( before the statute of quia emptores terrarum ) have been a tenant in chief , by reason of the entire and indivisible service incident to the tenure of his land , by the same reason the grantees of land held of the king in chief by socage or other free tenure would have been tenants in capite , because of fealty , which is as indivisible an incident to all other free tenures , as homage or any thing else belonging to knights service . and by consequence upon this notion , since the king , even before the pretended conquest , had ratione coronae , the supream signiory of all the land of the kingdom , as the mirror shews : all the land of the kingdom would have been held of the king immediately before the statute of quia emptores terrarum . and then to be sure ever after , since that provided that lands shall be held as the feoffor held over , which by this opinion must always have been of the king immediately . but i mnst needs say , this errour of mr. hunt's is the most excusable of any i meet with in his book , because the great lord cook leads him the way . for he tells us , and refers to the mirror for proof , that by the laws and ordinances of ancient kings , and especially of king alfred , it appeareth that the first kings of this realin had all the lands of england in demesne , and les grandes , mannors & royalties , they reserved to themselves : and of the remnant they for the defence of the realm , enfeoft the barons of the realm with such jurisdiction as the court baron now hath , and instituted the free-holders to be judges of the court baron . then he tells us in his second institutes , that till the statute of . e. . whereby 't is provided that alienations of lands made by tenants , which held of h. . or of other kings before him , to hold of themselves , should stand in force , saving to the king his prerogative of the time of his great grand-father , his father , and his own : it was doubted , whether the king's tenant , might have given part of the tenancy to hold of himself . which is in effect the same with mr. hunt's notion of all the tenants holding of the king in chief . . but 't is obvious that by what the lord cook said of the laws of king alfred and others ; whereby he supposes tenures were erected not only of the king , but of his grantees , who had their court barons : his opinion was that the king's tenant might have granted out to hold of himself , for otherwise how could he have had his court of tenants ? . whereas he supposes that the laws of king alfred , shew that the kings had all the lands in demesne , there is but one law of king alfred , mentioned in the mirror , and that is for the great councils assembling at london twice a year , or oftner , if need be ; not any thing of tenures . . but amongst the establishments made per cel estate per plusors royes , by several kings in parliament , the mirror says , assentus fuist que les choses suivant serrent appendant aux roys & al droit de la corone , soveraigne jurisdiction , la soveraign signory , &c. come franchises , treasnre trove , &c. then it goes on ceux droits retiendrent les primers roys & delremnant de la terre enfefferont les countees , barons , &c. here 't is plain that no more than the rights aforesaid , amongst which chief cities , chief ports , and great mannors were named , not all the lands , were retained by the first kings : and tho they are said to have infeoff'd others of the rest of the land to hold of them , yet that does not necessarily imply that they had all in them before : nay , the mirror shews the contrary ; for it says , that after god pleased to abate the british nobility , who used force rather than law , he left the realm to the most humble and simple of all the adjacent countries , the saxons , who came to conquer it from almain , de la quel gent il y eurent iesque quarant soveraigns que touts soy tiendrent a companions . amongst these forty princes , being equal and independent , here was no king , till they came to make a choice . and so the mirror tells us they did , having felt the smart of their competitions . then eslierent de eux un roy a reigner sur eux & governer le people de dieu & a maintainer & defendre les persons & les biens en quiet per les rules de droit . this shews they did not resign their properties to the king , for they chose him to defend them , yet it seems they consented to take grants from the king by such services as were in common agreed upon : and though they were principally from him , as head of the body politick , yet any man that observes the forms of the saxon kings grants , will not think it a vain imagination , that such as i speak of , should have been with universal consent . . but i cannot find any warrant to question the tenants power at the common law to grant out to hold of himself . and i am sure there is an express resolution for it in dyer , the words are thus in english ; a man seized of a mannor in fee , held of the king in capite , before the statute of quia emptores enfeoffs j. s. of part of the demeans in fee , without saying more : the feofee enfeoffs another to hold of the feoffor and his heirs by s. and d. rent for all services . the land clearly is not held in capite . and the first mesnalty is not held of the feoffor as of the mannor by knights service . the statute of e. . mentioned before by the lord cook , is not in the least contrary to this : for whereas before magna charta , the king's tenant might have alien'd as he pleas'd , and magna charta's provision ( quod nullus liber homo det de caetero amplius alicui , vel vendat alicui de terrâ suâ , quàm ut de residuo terrae suae possit sufficienter fieri domino feodi servitium ei debitum , quod pertinet ad feodum illud ) interpretatively gave a fine to the king when his tenant alien'd ; which was not due before that great charter was made ; the statute . e. . gave the king fines for alienations made in the time of any king , even before the making of the charter . the lord cook cites an answer to a petition in parliament , . e. . rex non vult aliquem medium , which is no more than that he would not grant his tenant who then petition'd , licence to alien : however he had not forfeited his land if he had alien'd , but the king might have entred and seized the land in the name of distress for a reasonable fine for the trespass : which the lord cook takes for the better opinion . and if the land were forfeited , to be sure the indivisible service could not have been multiplied , as mr. hunt imagines . 't is certain , that tho at the common law the king , or any other lord , might have distrained for his services , reserved upon the original grant , in the lands of any inferiour grantee as well as in the lands of his immediate tenants ; yet there was this inconvenience , that the wardships and marriages were not so considerable when the lands were parcell'd out , and the lands of the immediate tenant , ( who only was to be in ward , or to be married by the first grantor ) were of less value . therefore was that provision by magna charta , by the interpretation of which , the king was to have fines upon alienations . but tho the inconvenience of tenants aliening to hold of themselves , was taken away by the statute of quia emptores terrarum , edw. . which gave tenants free power to alien their lands ; and provided that the alienees should hold of the alienors immediate lords with an apportionment of services : yet licences of alienation being of settled prerogative , were not taken away from the king , he not being named in the statute . by that statute indeed , if a tenant in capite aliened with licence , the alience became tenant in capite ; for the statute divided the signiory . but how it could be at the common law in any other case than that of copartners , who are but as one heir , and plac'd in the same relation to the lord , i cannot imagine . i find in the statute of ireland this of copartners is mentioned as the law of england . in regno nostro angliae talis est lex & consuetudo , quod siquis tenuerit de nobis in capite , & habuerit filias heredes , ipso patre defuncto , antecessores nostri habuerunt , & semper nos habuimus , & cepimus homagium de omnibus hujusmodi filiabus , & singulae earum tenerent de nobis in capite in hoc casu . which shews that the case of copartners ( being a single instance of the continuance of the same immediate service , notwithstanding the division of the fee , ) was an exception out of a general rule . but i dare say , no body that understands any thing of the feudal law , as it has been received in this or other nations , will be of mr. hunt's opinion in this particular . dly , mr. h. would have done well to have answered the objections against the supposed conquest before he concluded for it ; and i shall take it for granted , 't is a question heartily begg'd , 'till i find an answer to these arguments in ius anglorum ab antiquo . . that the histories of those times prove undeniably , that william the first came in upon terms , which he swore to at his coronation , and solemnly confirmed afterwards . this indeed was a conquest in the language of those times , as 't was distinguish'd from an hereditary right , but no otherwise . thus in king iohn's time , a man pleads , that his father had such a thing de conquest●… suo , viz. by his own purchase or acquisition . . that dooms-day-book it self demonstrates that men enjoyed their lands under their old titles , and those laws of st. edw. which the histories assure us were confirmed by compact with william the first , without particular confirmation of their estates . . that we have later records of the allowance of titles derived from before the norman acquisition , nay , even of the whole palatinate of chester , the title to which was laid only in descent , even after king william's confirmation . . that ancient historians , and dooms-day-book confirm the opinion of that judg in edw. iii. time , who informs us that william the first , disseized only them that were in arms against him , and forfeited by opposing that title which the nation received . till mr. hunt has answered these arguments amongst others in ius anglorum ab antiquo ; i hope he will not be angry that some are so critical that they will not call the first william , conqueror ; especially since conquestor and conquestus cannot now be reduced to their old peaceable signification . and therefore are by no means to be admitted , unless we take the sense of the judicious lord clarendon , who rebukes mr. hobbs for insisting upon william the first his title by conquest , as being what he himself renounced and abdicated , if he ever had it . if mr. hobbs says that unhappy great man , had taken the pains , and known where to have been informed of the proceedings and transactions of william the conqueror , he would have found cause to believe that that great king did ever dexterously endeavour from the time that he was assured that his possession would not be disturbed , to divest himself of the title of a conqueror , and made his legal claim to what he had got by the will of edward the confessor , whose name was precious to the nation , and who was known to have a great friendship for that prince , who had now recovered what had been his . and he knew so well the ill consequence which must attend the very imagination that the nation had lost its propriety , that he made haste to grant them an assurance that they should still enjoy all the benefits and priviledges which were due to them by their own laws and customs : by which they should be still governed as they were during that king's whole reign , who had enough of the unquestionable demesnes , and lands belonging to the crown , of which he was then possest without a rival , and belonging to those great men ; who had perish'd with their posterity in the battel with harold , to distribute to those who had born such shares , and run such hazards in his prosperous adventure . and those laws and customs , which were before the conquest , are the same which the nation and kingdom have been since governed by to this day ; with the addition of those statutes and acts of parliament , which are the laws of the successive kings , with which they have gratified their subjects , in providing such new security for them , and advantages to the publique , as upon the experience and observation of the ages and times when they were made , contributed to the honour and glory of the king , as well as happiness of the people . many of which are but the copies and transcripts of ancient land-marks , making the characters more plain and legible , of what had been practised and understood in the preceding ages , and the observations thereof are of the same profit and convenience to the king and people . and upon mr. hobbs his supposition , that william the first , at his reception had dispens'd with the subjection of the ecclesiasticks , by the oath he took not to infringe the liberty of the church : the lord clarendon has to the same purpose with the former , or rather as evidence that there was no colour of a conquest , these words : they who know any thing of that time , know that the oath he took , was the same , and without any alteration , that all the former kings , since the crown had rested on a single head , had taken , which was at his coronation , after the bishops and the barons had taken their oath to be his true and faithful subjects : the arch-bishop who crowned him , presented that oath to him which he was to take himself , which he willingly did , to defend the holy church of god , and the rectors of the same ; to govern the universal people subject to him , justly to establish equal laws , and to see them justly executed . nor was he more wary in any thing , than , as hath been said before , that the people might imagine that he pretended any other title to the government than by the confessor ; tho it is true , that he did by degrees introduce many of the norman customs , which were found very useful or convenient , and agreeable enough , if not the same , with what had been formerly practised . and the common reproach of the laws being from time to time put into french , carries no weight with it : for there was before that time so rude a collection of the laws , and in languages so forriegn to that of the nation , british , saxon , danish and latine , almost as unintelligible as either of the other , that if they had been all digested into the english , that was then spoken , we should very little better have understood it , than we do the french , in which the laws were afterwards rendred . and it is no wonder since a reduction into order was necessary , that the king who , was to look to the execution , took care to have them in that language which himself best understood , and from whence issued no inconvenience , the former remaining still in the language in which they had been written . chap. iii. that mr. hunt himself in effect grants , that more than tenants in chief had right to come to the great council of the nation in which the nation 's rights were involved . i do not deny , ( says he ) but upon a change in the succession to the crown , there might have been in this time extraordinary conventions of the people , to declare their universal assent for better assuring such successors , discountenancing the real prince , and preserving the peace , as in the case of william the second , henry the first , king stephen , and king john , &c. with an assent of such an assembly as this ; at least king john should only ( if so ) have made his kingdom tributary to the pope . . here he grants that sometimes more than tenants in capite assembled at council . . that to some purposes such assemblies were needful , not only to quiet the minds of the people , but to transfer over a national right . for , he says , if ever there were extraordinary conventions , which he owns to have been in some cases , then king john could have made the kingdom tributary only in such a council , viz. an extraordinary convention . wherefore government being , as he says , rei publicae communis sponsio , he grants , that the government here , was not absolutely in the king and his tenants in chief : for if it had , they might have disposed of all the nation 's rights . wherefore in effect , he yields , that the men of that order were not chosen once for all interpretatively by the people in their consent to the government . but further , if he yields us those authorities which shew that the people of the land , the free-holders , used to assemble for the declaring their assent to the supream governour , with what colour can he set aside those authorities which mention assemblies to other purposes in as general terms ? if an ordinary free-holder was under the word populus at an election to the crown , or recognition of a title ; how comes the signification to be restrained at other times ? will not vulgus , plebs , populus minor , laici mediocres , and the like , denote more than tenants in capite , as well at one publick assembly in the some king's reign , as at another ? unless a prior law be shewn , which excludes the commons from one council , but admits them to the other ? but i cannot find any thing more in this supposition than a downright begging the question . indeed if william the first made a conquest of england ; so as that he divided out all the lands of the kingdom to be held of him in chief : and the alienees of tenants in chief still held immediately of the king ; neither of which will readily be proved : then indeed , but not till then , the populus minor at the councils would be taken for the tenants in chief only . but the admittance that the presence or consent of more than tenants in chief , was at any time needful to any act of rightful civil power , wholly destroys the supposition of a conquest ; unless we can believe that the conquer'd ought to give laws to the conqueror ; or that , notwithstanding any kind of establishment , the dernier resort , and supremacy of power , is always in the people . which is a notion that would unsetle all governments , making them precarious . whereas he himself tells us , no government can be legally , or by any lawful power chang'd , but must remain for ever , once establish'd . chap. iv. that even according to mr. hunt's notion of tenure in capite , all proprietors of land , as such , had till the th of h. . right to come to parliament . this , though never so strange , i think will be granted me , that he does , if he makes all the free-holders of the kingdom tenants in capite per baroniam . he supposes , that the whole kingdom was upon the matter turn'd into one great mannor by william the first ( all men made his tenants ) and that all the great possessions ( by which he must mean the mannors , of which others held ) were made baronies . now this , feudal baronage , he says , was capable of being multiplied several ways : for every part of the fee , however divided , the services reserved upon that fee , that were entire and indivisible , were to be performed by the several proprietors of the several parts of the divided fee. since he uses this as a proof of the multiplication of baronies , according to the argument , baron-service was indivisible . thus every proprietor , as he had part of the divided fee , was part of the baronage , and consequently , if all the baronage both spiritual and temporal de jure , ought to have summons now to parliament , without respect to estate or tenure , there would be a great many pretenders . but to be sure , when all the baronage were summoned antiently , these inferior tenants came , by his own rule , as owing the service of barons , and so ratione tenurae , were barones regni . but the baronage of england having been always , in his opinion , the lords spiritual , and temporal ; and nobility having been foudal , or because of the feud , the burgesses , being all , according to him , till about the time of h. . under tenure by baronage , were as good lords as the best ; and why were not honest free-holders so too , as well as traders , most of them , then 't is likely , mechanicks ? chap. v. whereas he would set aside the questions of what the government was , till th of h. . as impertinent . ( . ) his own notion , by which he would supplant the labours of others , destroys it self , while mine maintains what he aims at . ( . ) he puts such matter in issue for asserting the present government , as can never be maintained . ( . ) he yeilds so much of the fact against me as sets aside the whole foundation of his postscript . and yet admit he answers all objections against his postscript , the grounds which i go upon are of the most general use. for preventing the worlds being troubl'd with impertinent labours , and to divert those that thus employ themselves to undertakings more useful to the publick , & advantagious to themselves , he thought fit to tell us , that the parliament was always materially the same . but we are at a loss to know what he means , by materially the same . for 't is manifest , that according to his notion , if the government were from the time of our dispute always in one , it would have been materially the same , as 't is now , and yet he will not allow the legislative power to be in one here . every government , says he , is the representative of the people in what they are to be governed by it , by their consent to it , in the first erecting thereof , they do trust their governours with the rule and order of their lives and estates for the common-weal . this seems to be his meaning of materially the same , as 't is brought to shew that 't is not needful , in order to the maintaining the present right of the commons , to shew , that the counties in all this time had their representatives in parliament , by the formality of a choice . which no man , that i know of , has of late laboured to prove . but if this be his meaning of materially the same , then all governments are materially the same ; whereas they may be so formally , as founded in the consent of the people , which he presupposes . but if william the first was an absolute conqueror , as he all along yeilds to dr. brady , where was the consent of the people to his government ? and how can a government by consent , now of constituent parts , different from what he thinks ours was at the first erection by the conquest , be either materially or formally the same with such a government by conquest ? but we must seek further for his meaning in materially the same . he tells us , the parliament and the curia regis , were materially the same , that is , as one would think there , consisted of the same members , the only difference being laid to be in the nature of the summons . and yet he tells us , that the ancient burroughs sent members to parliament , but that such were not suitors to the curia regis : how then were these materially the same ? thus 't is plain that he has laid no manner of foundation for our government by king , lords , and commons , or by king , and three states ( which he takes to have been the e●…entials of our government from the conquest ) but what himself undermines . whereas what i go upon prevents all manner of pretences for unhinging of it , and is the same in effect with what the great fortescue observed in the time of h. . et in omnibus nationum harum , & regum earum temporibus , regnum illud eisdem quibus jam regiter consuetudinibus continuè regulatum est , quae si non optimae extitissent , aliqui illorum justitiâ , ratione , vel affectione concitati eas mut assent . indeed this assertion , of that famous chancellor , has been much exploded by those , who think that the altering of some laws , or customs , is a change of the government ; and therefore say , that he was greatly mistaken , because many old customs have been abolish'd : whereas he certainly meant it of the fundamental constitution . which , as far as ever i could learn , was , and is , that every proprietor ( of land especially ) should in the general council of the kingdom , consent to the making those laws under which they were to live. in the time of the confessor , as appears in the transcript of his laws , there was a folcmote , or general assembly of the people of all the counties of england , which was to be held once a year on the kalends of may , to treat of all matters of state and publick concern : the very law for such assembly was received and confirmed in the th of william the first . so that then by law , and of right , whatever was the fact , the people of all the counties of england , that is , all the members of the county courts , the free-holders , were to meet in a great council , or parliament , as we now call it . admit that this is to be taken of every county respectively , ( which were to make as many distinct governments as counties ) : still the * adunatio conciliorum , or , calling † together of the counties and hundreds , as often as there was need , which h. the ●…st promis'd by his charter , would come to the same thing . and that all the members of the several county courts , were members of the great or general council , and came accordingly if they pleased . not to mention the several authorities by me formerly insisted on , i conceive may appear by comparing two authors of undoubted credit and sufficient antiquity , who shew what the great council was in the time of henry the second . in the of henry the second , that king held his easter court baron at windsor , as bromton shews us , rer tenuit curiam suam in solemnitate paschali . thither indeed were flock't most of the nobility , fere omnes regni anglae episcopii , & magnates . but this being a curia de more , or an ordinary court , which no more than tenants in chief were obliged to take notice of , nothing of universal obligation could then be establish'd : wherefore from hence the king went to london , where , as that historian says , de coronatione filij sui henrici majores & regui sui statutis magnum celebravit concilium . gervasius , who lived in that very time , acquaints us particularly with the summons , and appearance thereupon , convenerunt die statuto ex mandato regis ad londoniam totius angliae episcopi , abbates , comites , barones , vice-comites , praepositi , aldermanni , cum fide-iussoribus suis. there assembled at london , according to the king's summons , the bishops , abbots , sheriffs , the heads of hundreds , and of tythings , with all the frank-pledges throughout england ; unless the fide-jussores answer to the manucaptores , of which immediately . if this take not in all the free-holders of england , i know not what will ; for he that was within no free-pledge , or was no fide-jussor , was either an out-law , or not his own man , but his that was to be answerable for him : but every master of a family , or * free-holder , that was within the protection of the laws , was one of the frank-pledges . and indeed bronton tells us in express terms , that all the libere sui regni tenentes all the free-holders of the kingdom were there , for they all swore allegiance to the young king , as well as to the father . omnes comites , barones , & liberos regni sui tenentes devenire homines novi regis filij sui sibique super reliquias sanctorum ligeantias & fidelitates jurare , fidelitate semper nihilominus suâ salvâ . but if the fidejussores mentioned in gervasius were no more than the manucaptores , which used to answer for the appearance of them that were chose to represent the counties , cities , and boroughs in parliament , then here is positive proof of such representation of the commons as was in the times of edw. i. edw. ii. and so downwards . yet 't is not improbable that the pledges , or manucaptors for the knights , citizens and burgesses chose to parliament , were introduced long after this time instead of the fidejussors , or frank-pledges , when that admirable ancient polity about frank-pledges became impracticable , and was discontinued or broken through the general corruption of manners , which rendred it impossible for whole neighbourhoods to answer for one another , and through the pride and ambition of some who thought themselves above that law. and when the numbers of frank-pledges , ( had that happy combination still been maintained ) would through the vast multiplication of proprietors have been too great to assemble together upon any occasion requiring counsel and serious debates . there is one difficulty which arises upon the examining this point of antiquity ; that is , since we rarely meet with authorities , tho some there be , which particularly describe such as citizens and burgesses as summoned to , or present at the general councils of the kingdom , what shall we think of them . to which i am bold to say , that even citizens and burgesses might have come under the consideration of free-holders , inter liberos regni tenentes , or , barones , baronagium , barnagium , or the like . for either they were ; . corporations by charter ; or , . corporations by prescription . and i think it will be probable at least , that property in land , the continuance of which in any family made nobility , was the occasion of the priviledges of them all . and in such respect the freemen there were numbred amongst the nobles , tho afterwards when trade prevailed amongst them , the generality of them might be but quasi optimates , and yet by custom , they obtained the name of barones , as in london , warwick , the five ports , &c. and probably upon the account of the first erection . but that i may not talk wholly at random , i shall offer a scheme of the ancient polity , in relation to them which at least will not be disproved . for the first , the corporations by charter , they were of two kinds . ( . ) such as were incorporated by the king. ( . ) such as were incorporated by the subject . . of those that were incorporated by the king there were cities , that is , boroughs , which had a bishop's see , or else boroughs only . but the episcopal see , making the only difference , they fall not here under any different consideration . i conceive that though to these at the time of the incorporation , the king granted several franchises , as markets , fairs , and the like : yet he gave no right of sending members to parliament , to them who had it not before : but of them that were so incorporated , some were minores tenentes in capite , inferiour . tenants in chief , such as by king john's charter were ( where not incorporated ) to be summoned in general to the commune concilium , or curia regis . many of these for the sake of such immunities as belonged to free boroughs , consented to be incorporated : and thereupon they being one entire body , naturally fell into a representation , and answered together by their head-boroughs , or any other that they chose , as one tenant . st. albans i take it was of this kind , the burgesses of which pleaded , that they held the said vill of the king in capite , & ipsi sicut caeteri burgenses regni ad parliamenta regis cum ea summoneri contigerit per duos comburgenses suos venire debeant prout totis retroactis temporibus venire consueverunt pro omnibus servitus regi faciendis , quae quidem servitia iidem burgenses & antecessores sui burgenses villae praedictae tam tempore domini edwardi nuper regis angliae patris regis & progenitorum , quam tempore regis nunc semper ante instans . parliamentum ut p●…ittatur 〈◊〉 nomina quorum burgonsium sic praedictâ villâ ad parliamenta regis ve●…entium in rotulis cancellariae semper irrotulata fuerunt . i before had occasion to examine dr. brady's interpretation of the answer to the ●…ea ; here the plea it self comes to be considered : and whereas he renders p●…o o●…us servitus , in lieu of all services , i conceive the sense to be no more than thus : that they held of the king in chief , and that as other burgesses of the kingdom , they were to be represented at the king's parliaments , when they happened to be summoned by two of their fellow-burgesses , as ever since they were incorporated , they had used to come , for the performing of any of their services . and that they had not forfeited their charter , nor ought their corporation to be dissolved , for that they had duly performed all their services . and for proof that , to parliament especially , they had all along come by representation , they appeal to the rolls of chancery . certainly , no man , before the doctor , thought that the coming to parliament excused any rent or other service , which was incumbent upon them . but thus much is obvious from this , that here were minores barones , tenants in chief ( whose tenure must have been created by charter ) who were fallen into a representation : and that this was upon the account of property in land , which occasioned their services , and their being united as one tenant . but besides these , there were tenants of honours or manors in the king's hands , or in the subjects , which were incorporated by the king's charter , and sent their representatives to parliament . i shall instance only in a corporation holding of a subject , but incorporated by the king's charter . king john by his charter to william brewer , who in all likelihood was lord of the mannor of brugwater or bridgwater , grants that brugwater should be a free burrough , and that it should have markets and fairs . and of edward the first , when the first roll of burgesses begins , we find burgesses for bridgwater entred amongst the rest . and 't is observable , that there is not to be found any charter giving them the priviledg of sending burgesses , nor could such a priviledg arise by implication . wherefore they must necessarily have come upon the account of their property in land , with no other alteration than that their divided interests were all conjoyn'd in one . . but besides these , there were some incorporated by subjects . of those who incorporated them , some had regalia themselves , as the counts palatine of chester : one of which leofrick , brother to the confessor , in his life-time , incorporated coventry under the prior and monks of chester . whereupon the burghers of coventry were represented in the general councils of the kingdom as one entire body . we find that it sent burgesses to parliament edw. . and from its first corporation must needs have done so , according to its plea which was allowed edw. . for it pleads that it was neither civitas , burgus , nor dominicum regis . that therefore it ought not to be taxt or taliated as such , but was to be charged only when the whole county was charged , or in the like proportion : and they pray that the taxors and collectors may not be suffered to distrain amongst them , otherwise than it had been , totis retroactis temporibus in all times past , since they became one body ; that is , that ever since they were a body , they us'd not to be taxt as the king's demesnes , whether cities , boroughs , or manors ( which might be out of parliament , and even when there was a parliament , they bore the heaviest burthens ) : but as the county , as to the way of charging , or at least as to the proportion , but they having been at parliament e. . which was but eight years before by representatives of their own , not of the county in general , it shews how they had been taxt , totis retroactis temporibus . but besides the charters of counts palatine erecting corporations , there were others granted by some , who were particularly impowered to that purpose , or however they might have been confirmed by the king afterwards . but i shall give an example of a corporation raised by virtne of such a power given by the king , and confirmed afterwards . thurstinus dei gratiâ sciatis me dedisse , & concessisse , & concilio capituli eborac & beverlac & concilio meorum faronum meâ cartâ confirmasse hominibus de beverlaco omnes libertates iisdem legibus quibus ulli de eborac habent in suâ civitate , praeterea enim non lateat vos quòd dominus h. rex noster concessit nobis potestatem faciendi de bonâ voluntate suâ , & sua chartâ confirmavit statuta nostra & leges nostras juxta formam burgensium de eborac . &c. h. rex angliae , &c. sciatis me concessisse , & dedisse , & hâc chartâ mea confirmasse hominibus de beverlaco liberum burgagium secundum libertates , leges , & consuetudines burgens . de eboraco , & suam gildam mercatorum cum placitis suis , & feloneo & cum omnibus liberis consuetudinibus , & libertatibus suis , cum omnibus rebus sicut , thurstinus archiepiscopus ea iis dedit , &c. there is another confirmation by king henry of the charter by thurstan , and also william arch-bishop of york , to the same free-borough : and also another of king richard , wherein he mentions the confirmation of the bishop's charters by his grand-father . tenentes de villâ beverlaci in auxiliis , tam regi , quam primogenitoribus , cum communitate praedict comitatus semper hactenus & non cum communitate civitatum & burgorum taxari & contribuere consuevisse . i need not go to prove that these came by reason of their property in land , they being either the kings tenants , or the tenants of subjects . and whatever priviledges their interest might prevail with them to suffer to traders amongst them , 't is certain they were granted to the free-holders . . but then there were corporations by prescription , where since now all the free-men chuse , it may seem more difficult to prove that they came upon the account of property in land. many of these received charters in confirmation of their priviledges , yet , if they were taken away , would remain good corporations at the common law. i may instance in london ; of which there is this memorable passage in the confessors laws . debet etiam in london quae caput est regni & legum semper curia domini regis singulis septimanis die lunae hustingis sedere & teneri . and amongst other things quae huc usque consuetudines suas unâ semper inviolabilitate conservat . king john's charter provides for the ancient liberties , and free customs of the city of london in particular , and of all other cities , burroughs , vills and ports , and some charters of other kings may seem more like new grants than confirmations of the old priviledges : but thus much is certain , that those cities , boroughs , and vills which had their liberties , and free customs confirm'd by magna charta . h. . which was in the same terms as to that part with king john's , were cities , burroughs , and vills at the common law. and that we may frame an idea of these , we must have recourse to the old saxon laws . by them it should seem that there was a greater equality amongst the masters of families , than afterwards , and the law of frank-pledges was well suited to such equality ; when no man was above giving that security to the government , upon which st. edward's law says , est quaedam summa & maxima securitas , per quam omnes statu firmissimo sustinentur ut unusquisque stabiliet se sub fidejussionis securitate . and as every city , or burrough was a vill , that being the genus to both as well as an inferior species , the law provided quod de omnibus villis sub decimali fidejussione debebant esse universi , of these vills they that had special priviledges , markets , fairs , and the like , were free burroughs . and as the vills , so the burroughs at the common law were made up of a certain number of free-men , whose property might extend far into the counties . these at first were under tythings . afterwards as in the time of h. . property falling into more hands within the same tract of land or precinct , we find them answering for one another by twentys , the headburrough was aldermannus , or praepositus villae , or burgi . every one of these as a fidejussor , i take it , came anciently to the general council of the kingdom in his own person if he pleas'd : but very frequently they might intrust their aldermannus , or headburrough , to answer for them . but the franck-pledges discontinuing , they might accustom themselves to electing of members , sometimes one , sometimes more , upon every summons to parliament ; and thereupon in every burrough at the common law , the elections are by all the free-men , which answer to the franck-pledges formerly , except that 't is likely of old all the franck-pledges were very considerable free-holders . but still these burroughs could not take in all the free-holders , nor yet the vills , as anciently , consisting of clusters of inhabitants . but if any man grew wealthy , he loved to live by himself in some castle , or large seat which he might build abroad in the country . such look'd upon themselves to be too great to give sureties for their good behaviour , as those that liv'd in clusters did : and by the time of edw. the first chivalers and their children , ( and i take it , every considerable free-holder , was a chivaler or gentleman , ) were exempted from the law of franck-pledges . doubtless every one of these , as the possessionati in poland , came to the general councils in person . as the lands were further improved , and a free increase of natures stores made men luxurious , great men put themselves into straits , and were often obliged to sell their inheritances , and to manumit their servants , or release servile tenures , and the off-spring of these who themselves were cheorls or pesants , were , according to the saxon law , which probably enough continued long after the norman's acquisition , enobled , or became gentlemen by the descent of five hides of land to the third or fourth generation . thus , together with the divisions of lands amongst the several children of great proprietors , and subdivisions downwards , as the families branch'd out , the numbers of free-holders became by king iohn's time little less than infinite , tota regni nobilitas quasi sub numero non cadebat . and this sort of nobility , for the most part to be sure , look'd upon themselves to be above citizens , or burgers , and scorn'd to be within frank-pledges , and be bound with sureties to their good behaviour . ( which dr. brady tells us ( and rightly enough , if he speak of the time of edw. . ) was only for the ordinary free-men , or the bulk and multitude of the free-men , or small free-holders . ) all that look'd upon themselves as gentlemen , at the least , were without any manner of representation ; and wherever they were interested , appeared in person , and sometimes in very disorderly multitudes . some sensible of the inconvenience of it , and expence and trouble to themselves , of their free choice became incorporated by charter as aforesaid , being either the kings tenants , or some inferiour lords , or it may be the tenants of several mannors joining together , and their coming to parliament , or as the burrough of st. alban's pleads , pro omnibus serviciis faciendis , was a consequent upon their incorporation . free-hold , i take it was the occasion of all this , though afterwards traders might be admitted to priviledges amongst them . the traders and free-holders within cities or boroughs sent their delegates ; whilst here , as in poland , the possessionati , men living upon their lands in the counties , came to the general councils in their own persons . thus it was here till the th of h. the d , as i think the authorities formerly insisted on by mr. petyt in behalf of the citizens , and burgesses , and by me for the possessionati in the counties , sufficiently warrant . wherefore the alteration which was made in the government in the th of h. the d. if any were then made , was the calling out some of these proprietors , earones comitatus , to come in their own persons , and putting a representation upon the rest , which was most likely to be done by the perswasion and influence of the king , though with the consent of the people ; and therefore i must say , 't is most probable that what is by mr. cambden's author transmitted to us , as done a little before the death of h. the d , must have been some years af-the th , and the kings victory at evesham over the great barons , whom he curb'd by the less , the commons ; which prevail'd on his side , by whose assistance he depriv'd many great men of a judicial power in parliament , and of the right to special summons , while the commons had their power preserved in their representatives , they were all interested in the legislature as before . but all the great barons had not their former interest in the supream judicature , and yet this variation in respect of the great lords , was no change of the outward frame of the government , but only a diminution of the priviledges of some particular men. and though the bringing in representations , where no representations were before , altered the frame , and appearance of the government ; yet it did not the constitution and fundamental interest of proprietors of land , with whom the ballance of power has ever been in this nation ; the foundation is and was the same , like the same soul animating the same body , when 't is greater , and when by reason of tumults and seditions , as we may call them , in the spirits , 't is wasted from its corpulency , and thereby often brought to a more assured state of health than ever before . this more healthful state in a contracted body of proprietors of land , i yeild to have been setled in the reign of h. the d. it happening that there were writs to that purpose , just in the th 't is concluded that then it was first begun ; whereas by the same argument 't was in the th , when two for every county were summoned to parliament vice omnium & singulorum . but if i should confine my self to authorities within the time of the first edward , immediate successor to h. the d , i doubt not but there were enough to satisfy any unbyass'd reader , that the commons , such as are now represented by knights , citizens and burgesses , had before the th of h. the d , shares or votes in making of laws for the government of the kingdom , and had communication in affairs of state , otherwise then as represented by the tenants in capite , notwithstanding dr. brady's affirmation to the contrary . in the th of e. . the earls , barons , knights , and others of the kingdom , which others was then , and afterwards , meant of the commons of the cities and boroughs , gave a subsidy , sicut aliàs nobis & progenitoribus nostris regibus angliae . and sure hen. the d could be but one progenitor , so that the farones minores , the free-holders of land , ( which ever since the th , or some other year of hen. the ds reign , were represented by the knights of the counties , ( who were not in those times to be sure confined to knights by tenure or dubbing ) and the commons of cities , and burroughs , at the least from within the reign of king john , to whom hen. the d. immediately succeeded , were members of parliament , being parties to grants there made . and omitting the prescription of the burrough of st. albanes from within the time of the progenitors of edward the first , to use but one authority not mentioned in either of my tracts . in the of e. . the knights , citizens , and burgesses had been summoned to the parliament at westminster ; nobiscum de diversis negotiis nos & populum regni specialiter tangentibus tractatur : and writs issued out for their reasonable expences , prout aliis consuevit in casu consimili . . upon which 't is observable , that de quibusdam arduis , which is now in use in the writs of summons , ought not to be restrained to a few great matters , but extends to divers , according to the different natures of matters brought before , or appearing to them . . that the commons had not only an assent without power of dissenting ; but they were to treat as well as the peers . ( . ) that their coming was not a new thing then , as if begun but years ago , in the th of h. . but it was of custom , and legal prescription , so far that it laid an obligation upon the subject to contribute to these expences ; and surely an usage of years would not be a sufficient charge in law. . that though there is no evidence that representations for counties were settled before the th of hen. . yet the freeholders were often at parliament by representation , and thence there was ground in reason to occasion the custom that they should bear the charges of them that they chose : nay , if there were no actual choice , there was tacit consent , ( from which custom may arise ) that those who were willing , and at leisure to be at council , should answer for , and have contributions from the rest . but let both dr. brady and mr. hunt consider the precedents above mentioned , of coventry , and bridgwater , which did not hold of the king , and yet sent burgesses to parliament ; and let them give a categorical answer , whether they believe that the majores barones regni , and omnes alij holding in capite , mentioned in king john's charter , made the parliament till the th of h. . this i think may be enough to satisfy any reasonable man , that the government was the same before the th of h. . that 't was after , and that it had not its rise from rebellion , nor yet from conquest , or usurpation ; but from a consent binding on both sides . and thus i have shewn ( which mr. hunt does not ) that our government exactly answers his rule or idea of a lawful government , which he says , is the representative of the people in what they are to be governed by it , and by their consent to it●… , in the first erecting thereof they do trust their governours with the rule and order of their lives and estates , &c. but , . he puts such matter in issue , for asserting the present government , as can never be maintained . that william the first made no conquest of england , and that the interest of the commons in parliament did not begin by rebellion in the th of h. . have been thought good mediums to settle the foundations of our government . mr. hunt indeed looks upon all labours to this purpose as impertinent : but this he says is certain , that whatever thing of government is introduced by the consent of the prince , and that aleration assented to and embraced , avow'd , and own'd by every man of the community , by actions , and other open declarations of a full consent ; and this continued for centuries of years , and in all that time applauded , and found agreeable to the interest of the prince , and people , and the old government abolish'd and impracticable , the very matter of it ceasing , and it become a thing impossible , as well as not desirable to restore it . i say , whatever constitution is thus introduced , and establish'd , is as unmoveable as unalterable , ( or no government is ) as if it had been ever so . wherefore , to shew that our government was so introduced and establish'd , that it ought not to be altered , according to him , we must prove every one of these following particulars . . that admitting a conquest , and that the commons came into parliament . by rebelling against the heir of the conqueror ; yet theywere introduced by the legal consent of the prince . . that this constitution was assented to , and embraced , avowid , and own'd by every man in the community , by actions , and other open declarations of a full consent . . that for centuries of years this has constantly been applauded , and found agreeable to the interest of prince and people . . that though there were a conquest , yet the right of conquest is abolished . . that the exercise of a government according to such a right , is become impracticable , impossible , and not desirable by any . . that the very matter of it ceases . i may well without further inlarging , conclude this head with his own words . if our government must take its fate upon such issues as these , i am sure we shall not long hold it . dly . but then he yields so much of the fact put in issue by me , as sets aside the foundation of his whole post-script ; and yet admit he answers all objections against his post-script , the grounds which i go upon are of the most general use. that there was an absolute conquest of the nation by william the first , and that he admitted none to any shares in the government , but such as derived their interest from his bounty , is contended for by many , tanquam pro aris & focis . and tho the history of king william the first his entring upon the government , is very strong against them , and may be the first thing considerable : yet from the supposition that the tenants in chief , such as were the suitors at the curia , made the parliament , where the absolute government of the nation was plac'd , they very strongly may infer a conquest . whereas the proof of the difference of the curia regis , and the concilium pambritannicum , or parliament , shews that all the pretence of conquest is out of doors , and consequently the government is such , as now it is by free consent on all sides ; not founded on usurpation upon the rights of any , nor is there the least pretence of unsettling what , as the great fortescue observes , has not chang'd with the people , or rulers . admit a conquest , and the inheritance which every one claims in the laws will be maintainable only as a naked right , and naked rights are thin and metaphysical notions , which few are masters or judges of . but conquest , or no conquest , a government derived from the pleasure of one , or consented to by all , are questions which any ordinary capacity is able to judg of , when the testimonies rely'd on by both sides are laid before them . and though matters depending upon testimony , are not capable of demonstration , so far as they depend upon that ; yet where testimonies are made use of for the laying a foundation , upon which some metaphysical notions of right are built ; it is possible to demonstrate that the testimonies will not serve the purpose for which they are brought , but are clearly on the otherside . and it that be done , it wholly silences the dispute , better than mr. hunt's scheme of probabilities , or his metaphysical , nay , or physical notions of the right of fatherhood . if therefore it be shewn that there is not the least shadow for pretence of a conquest , or that only such as derived what they had from the bounty of the prince , were interested in the government and legislature , certainly the whole frame of consequences built upon such supposition easily falls to the ground . i appeal to the world , whether what mr. hunt thought fit to say for the preventing the world's being troubled with such impertinent labours , and to divert those that thus employ themselves to undertakings more useful to the publick , can be of such a general use and satisfaction , as the destroying those foundations which are laid for a government not known to our laws , nor own'd in our so well constituted , and so ancient frame , the admittance of which , would root up the very foundations . he says our government was always materially the same . when according to him 't was neither materially nor formally the same it is now . whereas this labour which he explodes , shews that 't was always both materially and formally the same , and therefore unalterable . if there were a conquest , that conquest establish'd a government , or it did not . if it establish'd a government , then , according to him , no following consent , even of the conqueror , can divest him of any part of that right which was given by the conquest . for upon the bishops account , he tells us , they cannot be detruded from that place they bear in the constitution of the government , for that no government can be legally , or by any lawful power , changed , but must remain for ever , once establish'd ; and it can be no less than treason of state to attempt a change : no authority in the world is competent to make any alteration . if it be said , this is contrary to the post-script , which affirms , that nothing can be the concerns of men united in any polity , but may be govern'd and ordered by the laws of their legislature for their good ; at least this shews how in matters of notion , and naked rights , great wits may not only differ from others , but from themselves . but let us give the argument raised from conquest , its full weight , and see whether mr. hunt maintains our present establishment upon clearer grounds than they do who search antiquity about the point . the absolute power and government of the nation , was by the right of conquest setled in william the first and his heirs : this being so , could not be parted with . for it must be either voluntarily , or by compulsion : for the first , sir robert filmer will tell you , no man can bind himself in a matter depending of his own will , there can be no obligation which taketh state from the meer will of him that bindeth himself . if by compulsion , then they will tell you for the same causes that a private man may be relieved from his unjust and unreasonable promise , as that it was so grievous ; or , for he was by deceit or fraud circumvented , or induced thereunto by terrour or force , or just fear , or by some great hurt ; even for the same causes the prince or princes may be restor'd in that which toucheth the diminishing of his or their majesty . if it be said , that this would as well hold in relation to the peoples parting with that right which was once in them : they will tell you that no government can be exercised but monarchy ; that no other government is owned by god almighty , in the new , or old testament , but monarchy : that while god's people were without a king in israel , there was confusion , and anarchy . if adam was no monarch , at least god himself was , and 't was a theocracy . and therefore admit paternal power was not monarchical , yet a man might as well seize upon a people without a government , as upon a piece of land unoccupied . and when once he became conqueror , he was let into a divine right of ordering arbitrarily all things within that district , and could not depart from it . and though every monarch was not absolute , ( for the jewish kings were not ) yet every monarch by conquest must needs be so , being received without any conditions , or limitations . now mr. hunt himself , going chiefly to shew that paternal power was not , as such , absolute , does not answer this hypothesis , and the examination of it depends upon such searches into the bottom of things and the shewing them naked in their metaphysical existences , that very few men can judg of the controversy , at least not so many , as may , of the meaning of writers and records carefully compared together , and in many places freed from all possible ambiguity ; but still the more ambiguous they are , the more evidently will they overthrow all those pretences upon which these notions are built . for if the records and histories give such doubtful responses , as mr. hunt imagines , then indeed we must look only to the present government . whereas if dr. brady , and his friends , could shew those ancient authorities to be plainly on their side , they would have many that would improve their notion of the house of commons their beginning by rebellion , into an argument that they ought to be cast off as usurpers upon the divine right of the conqueror . or at least , yeild but that one point of the conquest , they will tell you agreeably to mr. hunt's assertion , that a government by conquest is unalterable by any lawful power ; and , as that is wholly different from a government by consent , whatever implies , or admits of the consent of subjects to the passing any law , is contrary to the fundamentals of the government , and is like a superstructure of hay and stubble , whi●…h ought to be consumed . others will tell you that the most free concessions of a conquering prince , or one claiming under that title , and not departing with his dominion , can no more oblige himself or his successors in any thing that may restrain his soveraign will and pleasure , than a man can depart with the freedom of his will. and the most seeming restraints can be no more than temporary provisions , or ordinary methods of ruling , which the prince as he found occasion might remove , notwithstanding the strictest clauses of perpetuity , they being of like interpretation with such passages as related to the continuance of the jewish law , or oeconomy , which was to have no place in the new heavens , and new earth . but if they should yeild that all grants and charters , &c. are binding to the prince who made them ; yet sir robert filmer tells us expresly ; the laws , ordinances , letters , patents , priviledges , and grants of princes , have no force but during their life , if they be not ratified by the express consent , or at least by the sufferance of the prince following , who had knowledg thereof . these notions have more favourers perhaps , than there are men of judgment or honesty enough to shew the weakness of them . nor has mr. hunt , that i know of , directly encountred them with his two-edg'd weapon ; but if the supposed fact which they are built upon , be prov'd to be no more than supposition , all the most specious superstructures are but castles in the air , which vanish like smoak . ¶ inter communia brevia de termino michaelis , anno . edw●… . ex pacte eorundem hominum . regi est ostensum quod cum uilla praedicta civitas , burgus , seu dominicum regis , non erictat , ut homin●… uill●… predicte tanquam cives , burgenses , seu tenentes de domino regis in al●…quibus auxilus , 〈◊〉 seu contributionil us regi , seu progenitoril us suis concessis taxari consueberunt , seu talliari , sed tantum cum communitate co●… war : taxatores tamen & collectores xxx & xx in 〈◊〉 praedicto homines praedictos tanquam burgenses tarari & xxx de bonis & rebus suis ad opus regis levare nituntur , in ipsorum hominum ●…ampnum nori medicum , & gravamen , & depa●…perationem manifem . et quià rex non vult quod iidem homines indebi è pregraventur in lâc parte ●…andat 〈◊〉 quod scruta●… . rotulis & memorandis de consimilil us ●…enibus factis in uill●… prae●…â tam tempore regis , quam proge●…orum suorum praedictorum , & si eis constare poterit evidenter quod praedicta willa de covent●… , non si●… civitas , burgus , aut manerium de antiquo dominico corone regis , ut praedictum est , & quod dicti homines simul cum aliis extra civitates burgos , & maneria praedicta manentes ad hu●…usmodi prestationem regi faciendam ●…ari debeant , & semper ha●…enus ta●…ri con●…ueverunt , tunc ipsos homines ad prestationem regi ratione praedictae concessionis de xxx regi ratione faciendum per praedictos tatatores & collectores distringi non permittant , aliter quam totis temporibus retroactis in hujusmodi casu fieri consuevit . teste rege apud lancetost . . die octobris , . finis . errata . page . line . in marg. read true way . p. . l. . r. bannerets . ib. l. . r. banneret . p. . l. . r. st. p. . l. . r. ingenuously , so p. . l. . p. . l. after the word barony add in the margine , viz. ecclesiastical persons . p. . or . t l. . r. done . p. . v l. . r. counsel . so l. . ib. p. . x l. . r. permixtim , p. . x l. . r. de tout le , &c. p. . l. . r. taken . other literal mistakes the reader is desired to correct with his pen. a table of the principal contents . the number of the page being often mistaken , through the printers false counting to one another , the reader is desired , where the figures are wrong , to observe the letter which begins the sheet . a page . abby of molross , o , absence of the bishops , not merely from the canon-law , , n , adam de orlton's case , r , t agitare judicium sanguinis prohibited , h , and n , allusion made by the questionist not solid , appeal to rome no capital crime antiently m appeal of earl godwin , q appeals in trial , v , , appellation ought to be governed by the right , s apostles their rule , p. , how far their practice to be urged for example now , apostolick canons against clergy-men their medling in secular affairs , p , arch-bishop stratford's case , t , , arundel earl , his case , o assemby at northampton , no parliament , p. , , . matters carried there in great heat , and no iudgment of treason given , m , attainders what they are , , augustine st. his opinion , , b. barons , how made enobled in blood , and how made , , to barons by blood and by tenure , different , , , barones majores who , , z , barones minores who , , barons peer who , , , , barones regis who , , z , to barones regni who , ibid. baronagium , and how comprehensive , , p , , y , s becket not impeached of treason , from to , and from to n berkeley , sir tho. his case , , , v blesensis his words marked , , , , , , r bishops , whether they sit in parliament by vertue of any baronies , p. , , and how , &c. t , or bishops not barons , , , , , , bishops , how they sate with the earls , , , , p bishops service and tenure a burthen , , , their tenure offects not their persons , bishops if a third estate , not capable to try a peer , bishops the form of their writs no argument of their power , , , when present , always exprest that they were , bishops medling in secular affairs forbidden , , , p . their opposition to the king at clarendon , and from what cause , bishops power clipt at clarendon , , o when to go away in criminal cases , , , even in acts of parliament , r bishops absence not merely from the canons , , , n , , , n o bishops protestation , p. , , , translated and explained , , , and n to bishops not reckoned nobles , t , or not called lords till the time of rich. ii. bishop of norwich his case , bishop of carlile tried by a common iury , t so bishop of ely , , ibid. bishops absence no error , bishops had no right to be present in the debate , and handling matters of blood , bishops not comprehended under the name of peers or grands , if put after earls and barons , , , to , bishops , if others named , always named where they are present , , , , and that before others , r bishops not peers to temporal lords , , to , s bishops sit in respect of temporal possessions yet in the quality of spiritual persons , t or , and s bishops cannot sit in a double capacity , s , , & t bishops contended to be tried by their own order , t , or , whence their pretence of immunity proceeded bishops to be tried by common iuries t to bishops their equivocation , bishops messengers of peace , v bishops chief employment to make peace in civil affairs , antiently counsellours not iudges , p. , , their refusing to give advice about keeping the peace , , , , and r bishops but part of a third estate , , to , and , , , s bishops in france never sit in that chamber of parliament , which tries capital cases , bishops never absent not prov'd , q bishops no where allowed to sit inquisitors of blood , v bishops not summoned to parliament several times q bishops a question , whether they might be even of a committee in matters of blood , v boeges de bayon's case , , brady dr. his assertions and fancies condemned pref. to the d part , and p. in marg. v , x , a a , , , , burroughs and burgesses , z , c. cambridg earl , canons forbidding of clergy-men to meddle in capital causes still in force , , , and p , to canons concerning blood as anciently in england , as the conquest and part of the common law , n , capitalis justiciarius angliae , what office , , capitalia placita , what , q. , , chancellour when no peer , how tried , t , charter of king john , the author's interpretation of it asserted against dr. brady , x , , against mr. hunt , z , to clarendon the meeting there a parliament , clarendon , and the parliament there considered , , , & clarendon earl , his arguments against the pretended conquest , a a , to chivaler who , b b clergy subjected to baron-service , , clergy their power in primitive-times , their power in other nations , clerus never taken for the bishops alone , commons and commonalty of the kingdom , where records and histories manifestly shew their presence at parliament before hen. ●… x , to y ●… commons their vote in danby's case , o , commons sometimes meant by grands , r , s , & , d part , anciently had their share in judicature , r , , commons always members of parliament , o s●… together with the lords in the times of hen. i : and king stephen , x and long afterwards , o , , mr. w's grounds for the belief , that they had no right to come to parliament till h. . answered , and turned against him , x , to y ; so mr. hunt's p. , , , y , and to a a commons their petition , r. . p. . and o , community of names no argument of right , s concordia e. . , r conquest disclaimed by william the first , , a a , no conquest , , to a a wherefore the point of conquest examined and what improvement , is made of the admittance of it , to constitutions of clarendon expounded , and the bishops wings clipt there , , to convocation of the clergy , , , , , s corporations , an account of them , and of their ancient interest in parliament , , to , d part coventry , its first representation in parliament , b b crimes some that did laedere majestatem regiam not capital , , in marg ▪ curia regis , of various acceptation , curia regis how far mr. w. and mr. hunt agree with the author against dr. brady , as to its being distinct from the general council of the nation v objection against them where their notion of it differs from the authors , particular objections against mr. w's notion of it , , & x mr. hunt's mistake about it , to y d. danby's plea , o demeasn , the kings of england never had all the lands of the kingdom in demeasn , d part , p. , to dictare sententiam , how understood , n doctor oates vndicated , p doctor standish his case , , & s e. earls and barons are the peers of the realm , , , , r. earls and barons consiliarij nati , earl of arundel's case o earl of hereford and glocester their case , t , v earl godwin his appeal , q earl of northumberland , , , & r , earl of salisbury , kent , huntington , their case , ellis william's case , errors none by the bishops absence , estate bishops , but part of a d estate , to exegetical where words used exegetically , x explication of several words , quosque judicium pervenior , , exposition of words according to the standing , , to , , x , to y and q , f. ferrer's sir ralph's case , fitstephen's authority examined , fortescu●… his authority , b b form of writs no proof of right franck-pledges at a great council of the kingdom , and who within them , b b , , , , g. gentlemen how became so , c c glocester earl , and hereford their case , t , and v godwin earl his appeal , q gomentez and weston their cases , grants , where the bishops not comprehended under that word , itsextent , , s , , government the same before h. . as since , d part , , to gurney thomas h. haxy thomas his case ; henry hotspur's case , s , , huntington's earl case , , s hunt mr. the censure of his book , pref. to the second treatise , his wrong translation of non licet , in mar . his mistakes y , &c. reasons why he might have spared his censures , y , i. impeachment when by the commons , the lords obliged to to try a commoner , interesse ubi judicium sanguinis tractatur vel exercetur prohibited , john imperial's case , , r irregularity , p , , judicial power in capital cases denied the bishops in the northern kingdoms . judicial power denied them here by canon , common and statute law , vid. bishops absence not meerly from the canons . judgments in which the bishops had share , judicium a word of various acceptations , judgments alledged to be void for the absence of the bishops , , , o judgments in parliament and the curia regis how reconciled , general pref. v fin . k. kent earl , s king cannot make an estate , , king stephen's grants reversed at clarendon , , king rich. ii. undecently reflected on , o l. lawyers confessedly differ from the questionist as to the trial of bishops , t , and v laws made upon a dubious title good , , p to laws concerning the matter and manner of their making , , lay-men used to meet with the clergy in their councils , lee sir john's case , legislative power in capital matters allowed to bishops , yet no judicial power inferred , gen. pref. , , , and even that an abuse crept in since hen. viii . london a corporation at the common law b b lord latimer , lions , richard , &c. lords of parliament lords temporal expresly named in the record as sole iudges , , , and r , s m. manucaptors , b b march earl , mautraver's case , , , , s , , ibid. modus tenendi parl. its antiquity , molross the abby its case , and the authority of that book answered , g , mortimer sir iohn's case whether judg'd by act of parliament , , to , r mortimer roger's case , and r n. names equivocal no good argument from thence , p nevel lord , nobilitas major , how made , bishops no part of such nobility , s northumberland earl , r , , , o. oats dr. vindicated , p objections from reason against mr. w. and mr. hunt , where they differ from the autthor's notion of the curia regis , d part , , ocle william , old-castle sir john , old modus its antiquity , omnipotency and the bishop's affectation of it , in what sense understood by lord h. orlton's case , r p. pardons made revocable at pleasure , o parliament when the word first in use , parliament at clarendon , peace , of the bishops refusing to give counsel about it , , , r , percy henry's case , peers of the realm who , , pessimae consuetudines what , , petrus blessensis his testimony , , , , , , r plain dealing , plea of the earl of danby , o pool william duke of suffolk , , t pool michael's case , , , r presidents urged against lord hollis make for him proctors or proxies why the bishops desire to make them , concerning their making them , , , , , b , , , proprietors of land as such , their interest in the great council of the kingdom , y , and b b , to protestations of the lord hollis his sincerity , protestation made by the bishops , , r , , , , , , , and o , to protestations in the names of the lords spiritual and temporal , , protomartyr , q. question concerning the bishops stated , , r. recapitulation of arguments against the bishops being iudges in case of blood , n again more fully . p , . q . s rickhil , sir william's case . reflections upon r. the d . undecent . o regradation of peers . v s. salisbury earl's case . sautree william's case . scheme of the government as it anciently stood , and now stands . b b to scripture against the bishops their medling in secular affairs . scroop lord. segrave's case . , , and q , . t seniores populi , who meant by them . , sinister ends in the parliament , r. . o spencer's their case . o , . and q standish his case . and s statute . ed. ist. c. . and . ed. . forbidding churchmen to take cognizance of matters of blood. , , . and statute of clarendon a binding law and only affirmative of the old law. statute of westminster anno , forbidding all persons in holy orders judicium sanguinis agitare . , , stephen bishop of london tryed by a common iury. stephen king his charter to the clergy . stratford arch-bishop his case . t succession to the crown . to p suffolk duke his case . , . s , t. talbot lord his case . s temporal lords sole iudges of peers . r . s tenants in capite more than they members of parliament before th h. d. yeilded in effect by mr. hunt. to . d. part. tenure in capite created . a a tenure in capite mr. hunt's mistakes about it . to a a tenure by barony inferred no more than a minor baron . thorp sir william . titles vid. succession to the crown . treason declared by the iudges in parliament . r trial of bishops by a common iury. , t , trials in appeals and the reason thereof v , , u. utriusque ordinis consensus explained . t , w. waver of peerage . t , westminster the council there forbiding churchmen to meddle in matters of blood , , notes, typically marginal, from the original text notes for div a -e cicero de senectute . ult . edit . tom . . f. . jani angl. facies nova , p. . habet rex curiam suam in concilio suo in parliamentis suis ubi terminatae sunt dubitationes judiciorum , & novis injuriis emersis nova constituuntur remedia , & unicuique justitia prout meruerit , retribuetur ibidem , fleta lib. . cap. . the passage relating to the constituting new remedies must needs here relate to the power of the magnum concilium , or curia in making ordinances . vid. jus angl. ab antiquo . addit . p. . ib. p. . jan. angl. p. , , . jan. angl. &c. p. . ib. p. . ib. p. . mr. hunt's argument , p. . vid. p. . & to . vid. p. to , & to . dr. stillingfleet says , the king insisted on the receiving the ancient customes of clarendon . answer to cressy's apol. p. . this received over all the western church . burnet's history of the reformation . f. . mr. hunt's arg p. . jan. angl. facies nova , à p. . to . vid. p. , , , &c. notes for div a -e page . page . page . pag. , and pag. , &c. page . page . notes for div a -e gr. qu. p. . seld. tit. hon . p. . i edit fol. edw. . seld. tit. hon. pag. . mat par. p . ult . ed. ad id temporis . mr. hunt thinks that the tenure made them barons , and that tenure and barronies were coincident . seld tit. hon. p. . and . a this i take to be the only true of enobling any body as to the nobilitas major . seld. tit. hon. par . . cap. . cir . finem . vid. els 〈◊〉 p. . b see mr. seld. jans angl. facies altera ult . edit . p. . seld. tit. hon. pag. . dugd. baron . c query , whether this summons gave him other title than a minor baron . edw. . rich. . rich. . vid. cot. post. ●…ls . edit . pag. . seld. tit. hon. pag. . part . c. . fitstep . c. . matth. paris , anno . hakewell pag. . p●…in . , &c. seld. tit. hon. part . p. cook 's iuris . of courts . hakew. mod. p. . dan. cron. anno . rights of the crown , p. . cook 's preface to his th report sets it out at large . fitst . cap. , col . . seld. tit. hon. cap. . pag. . d n. b. their calling themselves barons , did not make them such who were at first summoned ratione episcopalis dignitatis . e vid. rot. fin. . h. . me . . . e. . funivals c. . e. . nevils c. pet. blesens . yy . . edit . in quarto , or some lines before , see after p. , and p. . b ] wrongfully or contrary to the true use . kelway , fol. . saith , that the convocation is not a part of the higher house , neither the bishops any part of it , but sit there as they have temporal baronies . but he doth not say the convocation is not one estate , or part of the parliament , which however , is but the opinion of a serjeant at law. dr. heylin's stumbling-block . prin. fourth p. kal. p. , . gr. q. p. 〈◊〉 . gr. q. p. . els. p. 〈◊〉 . gr. q. p. . hist. coll. part . . pag. . gr. q. p. . vid. dan. p. . . baker p. . & . gr. q. p. . n. b. here he makes the whole clergy to be one of the three estates . il nipotismo de roma . p. . pad . paolo de materie ecclesiastiche . our bishops rights . pag. . spel. glos. verb. cap. justic. co. . inst. p. . seld. tit . hon . part . p. . what dr. bradies fancy is in that particular , let him make good , if he can . coo. cawdreys case . twysden's vind. of schism . in a parliament held at oxford , anno . he grants by his charter , under his hand , that all persons and causes ecclesiastical , should appertain only to ecclesiastical judges . hon. of the lords . p. . laws of edg. ch . . coo. mag. cha. p. . rejoin . p. . jour . of ●…arl p. . bishops rights . p. . . gr. q. p. . gr. q. p. . petit ▪ pr. p. . ger. dorob . p. . 〈◊〉 e. . gr. q. p. . gr. q. p. . seld. tit . hon . p. . gr. q. p. . hoveden f. . ger. dorob . fo . . an. . non licet ought not to be translated , it is not convenient as mr. hunt would have it , and never hath that signification but when a law intervenes , which makes it as well unlawful as inconvenient ; for , every law makes the breach of it inconvenient . linw. lib. . tit . . ne qui cler. vid. treat . of the nobil . pag. . supposed to be by doddridg . seld. tit . hon . p . cook inst. pag. . hakewell mod pa. . adsint . fitz. cap. . col . . co. ma. ch. p. . gr. q. p. . gr. q. p. . that edition in q●… 〈◊〉 〈◊〉 . 〈◊〉 certainly the best , the latter ones being printed from that copy . pet. bl●…n . y y . the critically learned mr. hunt , in his undigested lump , instead of a methodical discourse , pag. ●… . endeavours to cure the ignorance of his readers , by telling them , that by principes sacerdotum & seniores populi , the bishops are only meant ; who from the dignity and worthiness of their order , are called seniores , a note of dignity , in all countries . he should have done well to have added q●…m principes sacerdotum , & s●…es populi , as the first and best edition of petrus blesensis hath it . that senior is a name of honour , he might have learn'd at school : but that the chief priests and the elders often m●…ned in scripture were the same ●…ns , he hath taught no body nor learnt himself ; and certainly the addition of populus will do him little service . but this author would be an excellent man , were he as good at proving as propounding . vide before p. . and after p. . mortes & truncationes melius ut videtur . ian. angl. fa. nov . pag. . . n. b. nothing urged by mr. hurt , p. . does prove that meeting a parliament , but such a council as was free for the king to call , of such persons as he pleased . i am sure here are neither abbots nor commons summoned . i presume this author never read fitz-stephens , whose words are considentibus , not consulentibus episcopis . we have seen such a concilium magnum at york , called by king charles the first . arguitur i conceive doth more properly ●…gnifie to induce or argue a thing to be so , as well as to blame or accuse , and is more properly applyed to arguments or disceptations . fitz. cap. . col . . n. b. in those times , treason in common speech was a general name for all offences the king thought did ledere majestatem regiam , till afterward the matter was better explained in e. . vid. jani anglor . facies nova , p. . fitz. cap. . co . . these milites i conceive might be such as held in capite , and were sometime called baronets or barones minores . curia regis was here the kings council then summoned . manuum depressio , i take to be submission . gr. q. p. . mat. paris anno . pa. . seld. pr. bar. cap. . pag. . gr. q. p. . cook inst. . seld. ubi supra . gr. q. p. gr. q. p. . ger. dor. an. . legis vigorem habeat quicquid de consilio & de consensu magn. & reipubl . communi sponsione authoritate regis sive principis praecedente juste fuerit definitum & approbatum . vid bracton lib. . cap. . gr. q. p. . n. b. who were these others ? gr. q. p. . mr. hunt tells you , p. . that if this be a law it is a law only for that case . 't is true , the protestation , as such , was personal to them but the canons i hope that put them upon a non licet and de jure non possumus were not personal also ; for here is a prohibition , both by the canon , common and statute law. gr. q. p. . gr. q. p. , , &c. gr. q. p. . gr. q. p. . gr. q. p. . gr. q. p. . gr. q. p. . 〈◊〉 e . ●… . h. . no. . inter petit conn●… , and many others . co. inst. pag. . iourn . of parl. pag. . and . co. . inst. pag. . seld. priv. bar. p. . hon. of bishops , p. . els. mod. p. . seld. pr. o●… bar. p. . petit's anc . rights . p. . prin's calender . p. . and . coo. . inst. cap. . p. . vid. rot. claus. e. . m. . dorso . audley's case judic . per prelatos comites barones , & totam communitatem regni . yet no act. vid. hic p. . vid. etiam rot. parl. . ed. . n. . & . cottoni posth . f. . eliz. burgh's case . seld. tit . hon . p. . ger. tilb. fitz. mat. paris . whether this was meant of a parliament or other council , not material to this point , the reason being the same as to meeting upon summons to the one or t'other . hakewell . pa. . r. . memb . . n. b. 't is plain , by clergy here was more meant than the bishops only ; for the abbots were reckoned as part of the clergy , i suppose . gr. q. p. . sir william dromond 's life of iames the fourth . pag. . ult . edit . in octavo . discourse . pag. . gr. q. p. . gr. q. p. . see sir hen. wotton's interest of the princes of christend . this question touched upon . gr. q. p. . spel. coun. tom . . p. . con. tol. can. . lamb. laws edgar . cap. . gr. q. p. . see the provisos in the acts. h. . cap. . co. lib. . b. gr. q. p. . gr. q. p. . whitgift was then arch-bishop . cambd. an. anno . and baker , . rush. hist. col. part p. . baker . pag. . gr. q. p. . rush. hist. coll. part . pag. . rush. com . . app. p. . gr. q. p. . journ . of parl. pag. . vid. hakewell mod . p. . gr. q. p. . quaere what that word then meant . gr. q. p. . gr. q. p. . spel. gloss. word comes . p. . . gr. q. p. . gr. q. p. . lett. . p. . gr. q. p. . pla. parl. ed. . a this consilium regis i take to be that steddy counsel that always attended the king at his parliament , though perhaps not always members . see coo. . rep. arch. cant. case . divers cases to that purpose . gr. q. p. . gr. q. p. . gr. q. p. . gr. q. p. . see before p. . in the edition in quarto . pet. bles. 〈◊〉 . edit . p. . col . , . in fol. idem p. . col . . cot. p. . e. . m. . rot. parl. . e. . n. . e . ubi supra . n. b. cotton abridg. counts and barons by lords , as 〈◊〉 often does . gr. qu. p. . gr. qu. p. . cot. p. . rot. claus. e. . m. . pro episc. hereford . gr. qu. p. . * n. b. the king 's going to the holy land was then in debate , touching which , the bishops might well consult . matth. paris p. . magnates comprehendit comes , baro , miles , seu aliqua alia notabiles persona : vid. mr. petyt , p. , , . n. b. the abridger often translates counts and barons in the record by the name of lords , only because when the bishops were meant lords spiritual , or some word equivalent was expressed . rush. hist. col. part . p. . gr. qu. p. . n. b. though there were no particular impeachment against weston and gomenes by the commons , yet the general one being the delivering forts and castles , was treason ; at the examination of which , the prelates ought to be absent . vid. gr. qu. p. . gr. qu. p. . rot. proces in parl. gr. qu. p. . gr. qu. p. . see before p. . the records there cited , matth. paris anno . rot. cl . . e. . m. . in dorso . edw. . gr. qu , p. . see before p. . n. b. the iudgment may well be given after the parties are dead , an hundred examples may be given , where their bones have bin burned , their bodies hanged , &c. contrary to what mr. hunt thinks . h. . n. edw. . h. . n. . to . gr. qu. p. . h. . n. . viz. the fact was not by their advice , which they desired to have entred . gr. qu. p. . gr. qu : p. . gr. qu. p. . h. . p. . grand quest. p. . vid. dier fol. . cromp. jurisd . courts , p. . grand quest. p. . stanf lib. . cap. . cook. d instit. ●…ol . . seld. priv. of bar. p. . and others . gr. q. p. . gr. qu p. . ridley , p. . gr. qu. p. . walling . p. . baker p. ●… dan. p. an . seld. pri . bar. p. . gr. qu. p. . gr. qu. p. . . e. . n. gr. qu. p. . gr. qu : p. . edw : : a n. b. the submission of the matter to the k. without any exception by the lords , makes the king sole iudg , and so the case can no longer go on in any parliamentary way . b the reason i conceive why the reference to the king , was made by them both , was because no proceedings could be in parliament , in regard the v●… ▪ dict was n●… returned upon oath , and so in it self null : disc. of peerage , p. . gr. qu. p. . gr. qu. p. . gr. qu. p. . gr qu. p. ●… . gr. qu. p. . gr. qu. p. . cook inst p. . e . n. , . milites . e. . n. . cotton . notes for div a -e antid . brittan . p. . mr. hunt , p. . hunt , p. . & . dr. brady against jani angl. &c. p. . c : . a ant. brit. p. . b mr hunt , p. . mr. hunt , p. . the king 's ordi●…ry setl●…d n●… established court , was a different shing from the confluence of ba●…ons and tenents in capite at those thre great feasts , which were set and appointed times for great and general councils if there were an appearance sufficient . brady against jani anglorum , &c. pag. . dr brady against jani angl. p. . vid. . instit. f. : b : escuage nest . q. penalty pu●… non se sans de service de chivaler , bruertons c. . rep. f. . a. ant. brit. p. ibid. p. . ant. brit. p. anti brit. p. . rot. pat. . h. . infra p. . rot. pat. . h . the original record is not now to be found , but i have seen an abridgment of it , done by mr. selden . mr. w. his second argument considered . pol. vir. lib. . fol. . h. . rolls fol. . ead. lib. . f. . spelm. co●…c . vol. . f. . cron. eliense . vid. jus angl. p. . hist. norm . gest . a stepho rege f. : . antid . brit. p. . mr. w. his third agument fully answered . anti. brit. p. . this the hinge of the controversy as to the fact ; whether the commons of england were introduced into parliament , or had any share or votes in making of laws for the government of the kingdom , or had any communication in affairs of state , otherwise than as represented by the tenants in capite , before the th of hen. . vid. dr. brady a-against mr. petyt , p. , . mr. hunt , p. . rot. parl. . e. . n. . les piers counts & barons . counts & barons les piers , e. . rot. parl. rot. cart. . ●…o . m . n. . rot. sat. . e. . n. . rot. iarl . e. . a. . d. sta. westm. . e . . . iusti. . rot. pat. h. . pa●…s unica m. . d. rot. pat. h. . pars unica in . n. . vid. jan. angl. facies nova p. . both mr w. and mr. hunt argue this may : vid. mr. h. p. . mr. hunt , p. . eademrus , f. . vid. ian. angl. facies 〈◊〉 , p. . ●…ad . f. . ricard hagustaldens●… ; f. . cronice●… eliense . e●… vet . regist . in archivis cant. arch. vid ian. angl. &c. p. . claus. . jo p. . m. . vid. ian. &c. p. . rot. claus. . h. . m . c. . ian. angl. &c. p. . rot. claus. . h. . m. . d. magna charta . h. . mr. hunt p. . vid. jus angl. ab antiquo c. . eadm . supra . rich. hagulst . ant. brit. p. . matth. paris addit . f. . matth. pr●…is , fol. . ibid. rot. pat. . h. . m. . rot. pat. h. m. . stat. st. p e. . dr. brady against mr. petyt , p. . dr. brady against mr. petyt , p. . mr. hunt , p. . mr. hunt , p ●… . mistakes . mr. hunt , p. . ibid. p. . mr. hunt , p. . mr. hunt , p. , & . vid. jus anglorum ab antiquo , addit . p. , to . mr. hunt , p. . see escuage taxt at such a a military assembly , inter com. de termin . s●… . mich. ●… . h. . r. . ●…id . ian. ang. p . rot. claus. . h. . m. . do so . page . seld. tit. hon. fol. . mr. hunt , p. . rot. claus. h. . pars . m. . notes for div a -e p. . p. . contradictio in terminis . p. . pag. . mr. hunt , p. . so dr. brady consesses out of mat. paris against jan. ang. &c. p. : , ; . vid. jus ang. p . et de scutagiis assidendis submoneri faciemus , &c. king john's charter . mr. hunt. p. . page . vid. jan. ang. facies nova throughout . page . mr. hunt , p. . page . mr. hunt , p. : claus. . h. . m. . d. claus. . e. . m. d. mr. hunt 〈◊〉 p. . vid. jus ang. ab antiquo , p. . benedictus abbas sub effigie , iulij a. . f. . in bib. cot. cam : ordines angl. p. . quarto . vid. jan. ang. facies nova , p. . tit. of hon. f. . hoveden , f. . mr. hunt , p. . magna charta , h. . spelman's glos. tit. here●…tum . spelm. glos. tit. heriot . magna charta johannis rs. p. , & . after the statute of qua emptores entire services , a●… fealty , h●…rsots , and the like , might ●…e multiolyed to the lord , upon the tenants parcelling out the lands , but not before . vid. talbot's c . r. f. a. so bruerton's c. . rep. f . & . inst. f. . a. mirror . p. . inst. f. . the author of antid : brit. builds much upon this authority . antid . p. . inst. f. . inst. ibid. mirror p. . ibid. p. . vid. spelman 's councils , vol. . f. . rex non potuit distrahere patrimonium regni sine assensu procerum . dyer 〈◊〉 . eliz. f. . b. magna charta cap. . inst. f. . instit. f. . instit. f. . h. . tit. prerog . stat. de hibernia inst. f. . a. vid. jus ang. p. , to , & p. . mr. petyt's preface , p. . so ro●… . de temp . r's jo. lord hales his collections in lincolns-inn , lib. jus angl. p. to . ibid. p. , to . addit . p. . jus angl. p. , to . mr. hunt , p. . survey of the leviathan , p. . survey of the lev. p. . notes for div a -e mr. hunt , p. . page . ibid. pag. . supra p. . mr. hunt p. . notes for div a -e ibid. p. . page . page . page . page . page . page , & . notes for div a -e page . vid. postscript p. . mr. hunt , p. . page . page . fortescue de laudibus legum ang. p. . b. vocatio & congregatio populorum & gentium omnium qui ibi omnes convenire debent , & universi qui sub protectione & pace domini regis degunt & consistunt in regno praedicto , & ibi providere debent indemnitatibus coronae regni hujus per commune concilium & ibi providendum est ad insolentiam malefactorum reprimendam , &c. leges sanct. ed. de grove . vid ius angl. ab antiq. cap. . dr. brady says , the controversy is concerning matter of fact only . against jan. angl. facies nova . p. . * sym. dunel . f. . anno . so mat. west . f. . . h. . † ego enim quando voluero faciam ea satis summoneri propter mea dominica necessaria ad voluntatem meam ian. angl. p. . spelm. glos. tit . hund. vid. additions to ius angl. ab antiquo a p. . ●…d p. . brompton , f. . brompton , an. . gervasii crobica , f. . this explanation is warranted by st. edward●… 〈◊〉 habent etiam aldermanni in civitatibus & in burgis clausis & murae val lat●… , & in castellis eandem dignitatem & potestacem , & modum qualem habent praepositi hundredorum & wapentachiorum . vid. spel. glos. tit. aldermannus . * jus angl. ab antiq . p. . bromptor , f. ●… . ex blundel brev. penes rem . r's in socio , . e. . north nomina duorum mil. johannes doyley de stoke miles willus murdake miles manucaptores johannis doyley mil. ris. bird de stoke wiliiel . ellis de eadem . many more of like nature . francus , plegius seu fidejussor spelm. glos. tit. franc. pl. so nono h. . milites & libere tenentes & omnes de reg. magna charta cap. . inst. f. . spelm. glos. tit. lib. hom . ad nobiles 〈◊〉 lim s●…tabunt 〈◊〉 〈◊〉 a majoribus ortos omniuo liberis . vid. can●…den's ordines angl. f. . inst. f. ●… . b. rot. parl. . e. . n. . dr. brady against mr. petyt , p. . so if summoned to attend the justices in eire , or the like . pro burgensibus de brugwater ut sit liber burgus per chartam regis johan . factam wi. br. cart. . ed. . m. . n. ●… . cart. . e. . m. . n. . vid. prin. regist. of writs . inter coima de term . st. mich. an. . edw. . vid. part of it enforc't jan. angl. p. . vid. at the end this inserted at large . ¶ vid. prin's regist. charta antiqua r. n. . hen. i. carta ant'q . r. n. . ibid. n. . rich. i. inter bre. dir . baron de term. s. trin. ed . penes rem . d. thes. this like coventry . leges sanct. ed. de heretachiis . habeat omnis dominus familiam inplegio suo l. canuti . c. . l. sanct. ed. de friborgis . vid. jus ang. ab antiquo , p. , , . l. de friborg . aldermannus novemdecimorum in the laws of h. . spelm. glos. tit. aldermannus . britton e. . p. . b. vid. stat. west . . c. . . e. . the coroner to be des plus loialz & plus sages chivalers . vid. etiam ian. ang. facies nova p. . & . et si cheorlman●… romoveatur ut habeat quinque hidas terrae , &c. et si filius filii ejus hoc assequatur ut tantum terrae habeat postea est qui nascetur ex cis sithercunde generationis , &c. leges aldestani bromton f. . matth. paris edit . tig. f. . dr. brady's glos p. . vid. supra . vid. jan. ang. facies nova p. . jan. ang. &c. p. . additions to jus ang. p. . vid. mr. selden obj. against this answered . jan. ang. a p. . ad . rot. claus. . h. . m . & . jani angl. &c. p. dr. brady against mr. petyt . p. . & . rot. pat. . ed. . n. . jus ang. p. . stat. stap. . ed. . rot. parl. . edw. . n. ●… . see that record vindicated from dr. brady's misconstruction , jus ang. ab antiq . p. , , . rot claus. . e. . m. . dorso . mr. hunt , p. . contrary to dr. brady , against mr. petyt , p. . page . page . pag. , . page . supra p. . mr. hunt , p. . page . page . mr. hunt , p. . page . post-scrip , p. this is begg'd throughout mr. hobbs's pernicious dialogue between a philosopher and student of the common laws of england . power of kings , f. . patriarcha p. . mr. hunt , p. . p. . supra . vid. power of kings , f. . notes for div a -e inter record penes re●… d●… thes in sceio remanen pro hominibus ville de coventre . some considerations upon the question, whether the parliament is dissolved by it's prorogation for months? approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing h estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) some considerations upon the question, whether the parliament is dissolved by it's prorogation for months? carey, nicholas. holles, denzil holles, baron, - . p. s.n.], [london? : . "the two statutes upon which this question depends are: . edvv. cap. , item it is accorded, that a parliament shall be holden every year once, and more often if need be, . edvv. cap. , item for maintenance of the said articles and statutes, and redress of divers mischiefs and grievances which daily happen, a parliament shall be holden every year, as another time vvas ordained by another statute. "this tract has been attributed to nicholas carey and also to lord holles, but there is no evidence that it was written by either of them. (see journals of the house of lords, march, .)." cf. bm and halkett & laing ( nd ed.). reproduction of original in huntington library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng england and wales. -- parliament. great britain -- history -- charles ii, - . - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - jonathan blaney sampled and proofread - aptara rekeyed and resubmitted - jonathan blaney sampled and proofread - jonathan blaney text and markup reviewed and edited - pfs batch review (qc) and xml conversion some considerations upon the question , whether the parliament is dissolved by it's prorogation for months ? the two statutes upon which this question depends are , . edvv. . cap. . item it is accorded , that a parliament shall be holden every year once , and more often if need be . . edvv. . cap. . item for maintenance of the said articles and statutes , and redress of divers mischiefs and grievances vvhich daily happen , a parliament shall be holden every year . as another time vvas ordained by another statute . printed in the year , . some considerations upon the question , whether the parliament is dissolved by its prorogation for months ? the two statutes upon which this question depends are edvv. . cap . item it is accorded that a parliament shall be holden every year once , and more often if need be . and , . edvv. . cap. . item for maintainance of the said articles , &c. a parliament shall be holden every year , &c. i. the first point in this case is , whether these tvvo statutes are still in force and not repealed ? they are not repealed by the act that repeals the triennal act : that being no way contrary or inconsistent with the two former laws , and therefore doth not derogate from them . if we have not a parliament every year the king neglects the two former statutes . but if we have not a parliament in three years the king neglects not only them , but the last statute of his own making . there is a rule in law , that if laws and statutes seem to be contrary , the one to the other , yet if by interpretation they may stand together , they ought so to do . in this case there is not so much as a seeming contrariety . rol. rep. part . . fol. . so likewise , fol. . if a statute extend in words to repeal another statute , yet if the intent of it was not to repeal it , it shall not be repealed . and it is evident , there was no intention to prejudice or weaken these laws , both by his majesties speech , made the of march , to the parliament ; as also sir edvvard turners speech ( then speaker of the house of commons ) made the of may , at the conclusion of that session . the offence taken was at the manner and means in and by which the act of king charles the first did appoint a parliament to be assembled . and not only the title of this act declares they intended a repeal , but of one act , viz. that of king charles the first , ) but also the very act it self mentions and allows these statutes of edv. to be laws in force , and approves them . but if there were as there is not any colour that these statutes are hereby repealed , yet it is plain that the statute of the th . of car. . cap. . ( which should make the repeal ) is not to take place till after the determination of this parliament . the words are , that hereafter the sitting and holding of parliaments shall not be intermitted or discontinued above three years , but that vvithin three years from and after the determination of this present parliament , &c. your majesty , &c. do issue out your writs , &c. here the enacting part of this clause doth not take place till after the determination of this present parliament . and the word ( hereafter ) in the begining of the clause , has clearly reference to that time ; and with what grammer or sence doth this redition ( but that , &c. ) otherwise correspond to the preceding words , which will be plainer , if you suppose it penn'd , but that vvithin three years from and after the end of tvventy years , next ensuing ; shall not in that case the word , hereafter , refer to the end of twenty years , and if this parliament survive this progogation there may not be much odds in point of time , whether of the two wayes the clause had been penn'd . that the kings of england have not duely nor constantly observed these statutes ever since their making , doth not render them of less force ; for the kings omissions to fulfil a law , or his personal offences , can never be drawn into question judicially , because the king is not under any compulsion , nor accountable to any court , and is so far , and in such respect solutus legibus ; but all acts of the king contrary to law , are adjudged to be in deceit of the king , and the law voids and nullifiies all such acts , hobart . page . ii. the next point is , whether the king is bound by these statutes , and vvhether it is in his povver to suspend , supersede or dispence vvith them . the king is the only person that can be meant or bound ; for he it is that is to summon or ●●ld parliaments , and therefore the statutes intend to oblige him , or else they intend nothing , and the laws for parliaments , that secure our religion , properties , and liberties , are become onely advices and counsels to the prince , with no obligation further then the princes present thoughts of their expedience . it is a rule in law , when a thing is ordained that implies any act to be done proper only to the king , the king shall be bound by a general act. case of warren and smith . rolls , . rep. fol . these statutes are in pursuance of the common law , and the king cannot dispence with the common law. the mirror of justice , a very ancient and authentique book saith , cap. . sect. . that it vvas a lavv in king alfred's time , that parliaments should be holden tvvice a year . and all our antient histories testify that f●rmerly parliaments were held at the three great festivals every year . co. lit. . . it is a general rule in law , that the king cannot dispence with any statute made pro bono publico , cook rep. . . in the case of ecclesiastical persons , the judges in parliament declare , that the king being the head of the common-wealth , cannot be an instrument to defeat an act of parliament made pro bono publico . plow . com. , . . co. rep . . the king cannot dispence with , but is bound by statutes made concerning courts of judicature . stat. . r. . ca. . . r. . cap. . & . h. . c. . made for restraining the jurisdiction of the court of admiralty . king j●mes , by his letters pattents granted to the admiralty larger authority and judicature than those statutes did allow , with a clause of non obstante to those statutes , the common-law-courts grounding themselves u●on those statutes granted prohibitions contrary to the letters pattens , and thereupon the said admiral complained to the king and all the judges then gave their opinions , that those statutes did oblige the king , and that the king could not by his letters pattents go contrary to those statutes . co. jurisdiction of courts fol. . , . the subjects have the same right in the courts of judicature , as they have in the laws , and the same right to the laws as they have to their estates . the statute . edvv. . chap. . commands the justices that they shall not delay doing right in any point notwithstanding any command by greator privy seal , and the statute of . edvv. . cap. . is to the same purpose . fitzherbert hath a writ upon these statutes requiring the judges to proceed notwithstanding any such command , nat. brev. . that those laws of ed. . for annual parliaments are pro bono publico , and of the greatest concern to the nation , besides they are made concerning the highest court of judicature , of the dernier resort , and which regulates and keeps all the rest in order , needs not a proof to any reasonable man nay , the kings in parliament have very often own'd it . one of these statutes viz. . ed. . is express in this case ; for that statute begins with the confirmation of magna charta , and charta de forresta , has three other articles for remedy and redress of mischiefs by the kings officers and purveyors ; so comes to an article for relief of the subject by original writ out of the court of chancery ; and then for mainteinance of the said articles and statutes , and redress of mischiefs and grievances which daily happen , this article that a parliament shall be holden once a year , was enacted . and this atticle was held of that consequence , that in the next parliament following , . ed. . cap. . magna charta , and charta de forresta , are confirmed with the word especially to the acts of the preceding parliament ; as if they thought those charters would be rendred ineffectual to them , if they were not secured by annual parliaments . the king may as well discharge magna charta , as these statutes that are made for the maintenance of magna charta . reason will tell us , if we consider the nature and business of parliaments , that we ought to be secured of them within a time certain , and the law has prescribed this of a year and no other to be that certain time . the parliament rolls ed. . no. . and the . r. . n. . are both express in the case , and that because the parliament is the only court wherein the subjects can recover their right without the fear of delay , or the oppression of great men. and how could they answer any of those ends , if the time prescribed by the lavv , be not punctually observed ▪ an absolute and direct law , and not sub modo , as under forfeiture of such a sum , or such a penalty , cannot be dispensed with by the king , but all his acts against it are nullities , nay this reason and rule is extended to common persons and cases ; that when a statute prohibits a thing to be done , it makes a nullity of any thing done against it , if there be not a penalty limitted in the statute for the breach of it . our king in his answer to the house of commons of the of feb. declares , that he doth not pretend to the right of suspending any laws wherein the properties , rights and liberties of any of his subjects are concerned . and all our properties , rights and liberties are bound up in those laws of annual parliaments . but this fancy of dispensation , cannot take place with any man that considers the first of these two statutes , viz. that a parliament shall be held every year once , or more often if need be . where the king is left only judge of the need of a parliament oftner than once a year ▪ but whether the king see need or no , it is absolutely , positively and peremptorily ordeined , that a parliament shall be holden once a year . and to make any other interpretation of the said law , is to suppose that the parliament did by that act change the common-law , which gave us a right to annual frequent parliaments . and deliver it wholly into the will and pleasure of the king . and so the next statute of . ed. . is to be reduced to this sence , viz. for maintenance of the said articles and statutes an redress of divers mischiefs and grievances which daily happen , a parliament shall be holden every year , or once in years , as the king please . but admit the last words of the statute of the th ed. . ( if need be ) runs to the whole sentence , yet according to this sence , the king is obliged to call a parliament within the year if there be need , and a prorogation for mouths puts it out of his power to call them what ever need there may be . neither will the preamble of the statute of the . eltz. chap. . help the matter , it would be very hard , that a preamble of an act of parliament should repeal or enervate statutes of that consequence , especially when the enacting part hath not a word to that purpose : but in truth this preamble is far from an allowance , for it is a complaint of parliaments not being so often holden as in antient time , whereby the subjects of this realm are greatly hindred and delayed of justice . it is worth the considering , how the king should have more power by the law to deprive us of constant annual parliaments , than he had to deprive us of the four terms in the year , or the four quarterly sessions of the peace . in johnsons and norton's case , it is there said , that the king cannot adjourn the courts of westminster-hall intermitting a term , and that to do so vvould be a breach of magna charta , ( nulli negabimus , nulli deferrimus justitiam . ) and is it not as high a breach of the great charter to intermit the greatest court of judicature beyond the time appointed by law ? it is very true the king is trusted with the time when they shall sit , so it be within the year , for that is positively prescribed by the law ; so also is the king trusted with the granting commissions to the judges and justices of the peace , which he may as legally omit and frustrate those laws , as omit the appointing a time within the year by his writ for the parliament to meet . and it is evident , that it was the opinion of that great king , edvv. . that the lavv of the realm is such , that upon mischifs and dammages vvhich happen to the realm , the king ought and is bound by his oath , vvith the accord of his people in parliament , thereof to make remedy and lavv . and in truth there is great reason that the king should be more especially obliged by his oath to the laws of parliaments , that being of highest concern . but to conclude this point with an argument to the capacity of such as do fancy the king can dispence with laws of so great moment and concern . those worthies must allow that where the king can dispence he is not intended to dispence , without a clause of non obstante to the statute he doth dispence with . and there is no such clause in the record of prorogation . iii. if these statutes do oblige the king , the next point is , whether this prorogation be contrary to those tvvo statutes of edw. . and vvhat the consequences are thereupon ? the statutes are , that a parliament shall be holden every year . this prorogation being for above twelve months , intermitts a whole year , for the statutes say , there shall be a parliament holden once every year , or oftner ; and the prorogation saith , there shall be no parliament holden for months , then next to come . it is a foolish fancy to imagine that the statutes are sufficiently answered , since a parliament was holden in . and another parliament shall be holden in ; for in all cases where the law speaks of a year , or a year and a day , it is understood and reckoned for twelve calendar months , to take its relation and date from the subject matter that the act treats of ; if otherwise , the sence of the statute will be , that a parliament shall be holden once in two years . and it is plain that in richard the second 's time it was not so understood : for his first parliament dissolved the th of november , his next parliament began the of october following , where the chancellour gives us the reason for summoning the parliament then , that the king would keep well his covenant in holding annual parliaments . cottons abridg. fol. . if this intermitting a parliament for above an year , be not contrary to these statutes , what can be ? there is no difference to be made of any measure of time beyond a year , and there is no bounds to the time of a prorogation if it may exceed that , it may be as well for ten or twenty years , and yet the judges said in harrison's case , that in every statute there is some bounds set that must be kept . lex & consuetudo parliamenti are dear in this case of annual parliaments , neither will the single uncontested president , passed sub silentio , the th of eliz. alter the law and custom of parliaments ; there the parliament was prorogu'd from the second of october , quinto eliz. to the th of october , sexto eliz. being a year and three dayes , and let it be granted that this prorogation for fifteen months , is as good and valid in law as that : if they are both illegal , the one cannot support the other , no more than her commiting of wentvvorth and another member in october following , in that very parliament , for what they said in the house , shall take away the liberty and freedom of speech the members in either house enjoy by law and custom of parliament . in the case of tythes , twenty years payment will not prejudice him that can afterwards prove a modus decimandi ; in this case we have the common-law and several statutes to prove a modus . the law-books tell us , that silent and sleeping presidents , never drawn into question , shall not alter what is established by law and reason . our annual parliaments are established to us by common-law , statute-law , and the reason even of the government it self . neither can the laws that were made in that parliament be at all weakned by it now ; their validity depends not upon the lawfulness of that parliament , wherein they were made , but upon the distance of time since their making ▪ during all which they have been received without contradiction , and incorporated into our laws . time and general reception , and multitude of interests involved , creates an authority to that which fresh and earlier pursuit would have rendred invalid , as also highly criminal in those that made it . 't were a very hard case if one single act of the crowns , contrary to law , because not observed or contested , should be of force to repeal and set aside the common-law , several statute-laws , and the constant course and usuage in all ages . but if there be any use to be made of this president , it is that it shews us the opinion of that time , that a parliament in every year of the kings reign did comply with the old statutes , but this will do no service in the present case , for as our prorogation is contrived , the year of this kings reign is without a parliament , whereas queen elizabeth's prorogation began the second of october , in the fifth year of her reign , and ended the th of october in the sixth year of her reign . the reason of the government in other cases , as all courts of judicature which are setled by law , and can meet without the kings particular commission , as the courts in westminster-hall , the sessions of the peace , the county-courts , the hundred-courts , the court-leets , &c. are either fixed to a day certain for their beginning , or limitted within a time certain , and all within a year . those that cannot begin without the kings particular commission , ought , ex debito justitiae , to be granted whenever the subject desires it ; especially if there be no other remedy for the subject . so also parliaments are limited within a time certain , which is within a year , for therein the law is positive , but as to the particular day and place , and the duration of their sitting , which could not be so well reduced into a fixed and positive law , they were trusted with the king , as the proper subject of his prerogative . by all this it will appear , that a prorogation for more than a year , is contrary not only to these two statutes , but also to the reason of the government , the law and custom of the parliament , and the common-law it self , and therefore illegal in all and every respect : and an illegal act of the king is void and null in law . my lord hobart speaks very fully to this case , hob. pag. . upon a lapse devolved to the bishop , and at last to the king. where he saith thus . a lapse is an act and office of trust reposed by lavv in the king , the end of vvhich trust is to provide the church of a rector , and therefore tho the king may suffer the church to stand void ( vvhich yet is culpa ) yet he cannot bind himself that he vvill not fill the church , for that vvere injuria , & malum in se , and therefore shall be judged in lavv in deceit of the king. for , eadem mens presumitur regis , quae est juris & esse debet . when it is said , that the prorogation is void and null in law , it is only to be understood that it is so far void and null , as it is contrary to law ; for , the prorogation doth two things ; first , it puts off the parliament and all business before them , and determins the authority they at that time have , and this part of a prorogation can never be illegall , for the king can dismisse a parliament and determine their authority at his own pleasure . secondly , it appointed a time when they shall meet again , and their authority revive . now this part of a prorogation is bounded by the law , which says , a parliament shall be holden once a year , and therefore , if the appointment to meet again be not within a year , it is as if there had been no appointment at all ; and such a prorogation is only a dismission of a parliment and a determination , not a reviveing of their authority . to all this there are some objections which ought to be considered . object . the king might have dissolved this parliament and called a nevv vvithin the year , and therefore these statutes might have been observed notvvithstanding the prorogation . ansv. this is a clear confession of the invalidity of the prorogation , since it is allowed those statutes will not be pursued unless the prorogation be annull'd , and the parliament that subsists by it , dissolved : neither doth the kings power to remedy it by another act , support the validity of this ; for then no act of the kings , though never so much against law , but may be as well justified , he having power left in him to remedy it . if he thinks fit , which is an excellent way of rendering our law arbitrary , and the power of the crown absolute . object . the king hath frequently by shorter prorogations and adjournments intermitted parliaments for several years , vvhich is the same as if he had prorogued them at once for so long time . ans. the case is directly different between these two , the shorter prorogation being within the letter of the law , and those above a year directly contrary , t is very true it is as much a part of the statute , that mischeifs and grievances , should be redressed at the parliament , as that a parliament should be holden ; yet nevertheless , though a king hereafter or in times past , has or shall , de facto , by short prorogations , evade the force and intent of those laws against his duty and oath , that does not argue or prove , that therefore he may , de jure , make a prorogation above a year , which is to repeal those laws : the wisdom of the law doth in such cases put the king to renewing his acts , and to bring them under a fresh consideration , year book . h. . as in the case of pretections , where the kings protections for a year stand good , though several times repeated , yet one and the same protection for more than a year is utterly void . so the king can grant an exception to one single person from serving in juries , and so to as many single persons as he shall find cause , and such exceptions shall be good in law , but the kings charter to exempt all in such a county is void , because of the inconveniencies that ensue in such a case . the kings prerogative extends only for the good of the people , never to their prejudice or great inconveniencies . in like case , the judges have a power to give a day to the parties pleading before them from one term to another , and may renew the giving of a day from term to term , as often as they see cause , but they cannot give a day during life , or for tearm of years , the reason is , that this power or lesser prerogative is intrusted with them for the better dispatch , and not for the overthrow of justice . besides the parliament doth really assemble and sit at the time of every adjournment or prorogation , and the length or duration of their sitting doth not at all concern the state of this question ▪ they may as well say , the king need never call a parliament , because he can by law annually hold a parliament for two or three days , and then end them , not having suffered them to do any of the business of the nation . which is to argue from the kings power abused , which power ought to be exercised for the protection and better execution of the laws , to a nullity of the law it self . to conclude this point , it is no argument to say , the king is trusted , you have no remedy against him , you cannot compel him , for that is the very reason why all illegall acts of the king are null and void ▪ . cok. . where there is a contrariety between the law and the kings single act , so as they cannot stand together , the kings act cannot over-rule and make void the law but the law makes void the kings act ; all the kings acts are under the power , operation and construction of the law , and the law makes them either valid or void , according as they correspond or not with it , d , st. . . iv. since the prorogation cannot revive or continue the parliament unto the th . day of feb. . being in that particular contrary to law , and so void and null : the next point will be . whether the parliament be still sitting , and hath been so ever since the prorogation ? to clear this point , it would be worth the asking , if the parliament should pass acts in february or march next , to what day should they relate ? must the members be allowed their priviledges and their 〈◊〉 during this time ? and a thousand more such like questions would arise . but it is clear that a parliament prorogued is a parliament not dissolved , but continued over to another day ; and when the prorogation is legal ▪ there is a parliament continuing , but not sitting . to express the matter clearer , it will not be un-useful , either to the clearing this point or the better understanding the whole question in general , to explain the law of parliaments in this place . if a parliament meet , though afterward they be prorogued or dissolved before they make any act , yet this in law , while it was sitting , was a parliament holden . the judgements that are affirmed or reversed in such parliaments are good in law , and so are all other their proceedings , and wages shall be paid . a writ of error then brought , would have been returnable at presens parliamentum , and in pleading it is usually said , ad parliamentum incoat . such a day , & ab inde per prorogationem continuat . &c. next , that a session of parliament in law so called , is when there is an act passed , and takes in all that time , that is , from the time of the meeting either by summons or prorogation , until the time the parliament is prorogued or dissolved , for during all that time , they are in law looked upon as sitting , and all that sitting is called a session . next , if a parliament be summoned and meet , and then be prorogued either before or after any acts passed , that this is a parliament continued . therefore 't is parliamett . continuat . per diversas prorogatione usque ad such a day , & tunc tent . therefore parliament and session of parliament are different things ; every parliament must be before it can make an act , therefore it must be and must have continance before it can make a session , and all the while that it hath continuance it is a parliament in being but when it is prorog'd it cannot be said to be a parliament sitting , or that t is then holden , but by the prorogation is put off from sitting , or being holden , but continued . hence you may observe the mistake of the judges in huttons rep. fol. . in not distinguishing between parliament and session of parliament . next , in this case , de facto , there was no sitting , but all departed , and the king hath summon'd them by his proclamation , to assemble upon the th of feb. so the king doth not know they are now sitting . and though this prorogation for the causes abovementioned , be not a legal prorogation , and consequently not sufficient to perform the kings will to continue the parliament , and cause them to meet again on the th of february , yet the kings pleasure hereby declared shall be so far effectual , as that they shall not be sitting in the mean time . for though the king mistakes the law , yet his acts are not void in those parts of them that are agreeable to law. it would be a contradiction in law to say , that a parliament cannot sit but by the good pleasure of the king , and yet be sitting contrary to his pleasure and will declared . v. if the prorogation be void as to the continuing and reviving of the parliament and the parliament be not sitting , the next point is , whether it can subsist sine die ? there is no president since the beginning of parliaments , of any parliament that was once sine die , that ever came together again . so that lex & consuetudo parliamenti is against it ; and if we break through that , a parliament may be any thing , every thing , nothing as the king please , and no man is wise enough to forsee what inconveniencies and mischiefs may thereby break in upon us . whosoever will puruse the rolls and records of parliament , shall find them very exact and curious in seting down the days and places from which and to which they were adjourned or prorogued ; and if a continuance to a day certain be not so necessary that the king cannot dispence therewith , why should the parliament meet meerely to prorogue , as they have done in all times ? why besides the prorogation are there alwayes commissions to continue them over ? and you shall find in the record of . e. . num. . . the king and both houses of parliament , though they had the assistance of littleton and hussy : yet utterly ignorant of this point of learning , a parliament sine die ; they could find no other expedient , but prorogation or adjourning the parliament to a certain day , or enabling the king by a special act of parliament to call them ( upon . dayes notice ) soo●●r . and that with so much caution and legall formalitie , that in the very record of the prorogation , there is a salvo for that act , of parl ▪ and the act it self recited in engilsh , ( for so acts began then to be ) and in hac verba , at the end of the latine record . in this president there are several things remarkable , that they understood not a prorogation or adjornment sine die , to be legal , that if a praliament be prorogued or adjourn'd to a certain day , the king cannot call them sooner ▪ that , dayes noties , being lex et con suetudo parliamenti ▪ the king cannot legally give them lesse notice unl●ss h● be enabled by specall act ▪ of parliament . all ●●●rts and commissions of like nature when all their procedings refer to the first day , and are pro hac vice , viz ▪ court of high stevvard of england . assizes , nisi prius , oyer and terminer . goal-delivery , &c. if they rise without adjorning , they are determined , bro. comis . . iones , . . leo. pag. . for these courts have not certain days and times , like terms to sit , but only a day to assemble , their commission day , and then continne on by adjournment , the reason of law requires as much , if not more exactness in the highest court of parliament , than in any of the inferiour courts ; and the consequences that will ensue on a contrary way of proceeding , will be very fatal . the parliament is like those other courts , they are dissolved by discontinuance , or by being put sine die , and the reason they are dissolved by the death of the king , is because they are thereby discontinued . the statute of the . of e. . ch. . provides in many cases therein particularly expressed , that the death of the king shall not be a discontinuance ; but the case of the parliament and those other courts and commission are not comprized in that statute . so that in those cases , the death of the king remains to be a discontinuance . and further , the writs of summons impower the members to act only in the parliament therein appointed to meet such a day , and also their power from the people as they are representatives , relates only to the parl ▪ summoned by such a writ , on such a day , and all things in law relate to that day , and if there be not a legal continuation from that day , to another certain day , their power by virtue of those wrirts expire . claus. ann . . h. . pt . . the king by writs tested octob. . . h. . summons a parliament to meet the third of december following ; but after judging that day inconvenient , because of christmas , by new writts tested . nov. . h. . he makes a new summons . this new summons did really make a new parliament , for it made a new election ; the king having once issued out his writs , could not support or continue that parliament , but by their assembling and meeting together , and being prorogued or adjourned to the day he intended , which being at that time inconvenient , he was forced to issue out new writs , and cause the people to make new elections . dyer . so that the opinion , that when a new parliament is summon'd , a new day may be appointed without their meeting , was not known to be law in that age. neither doth the president of . eliz. prove any thing to that purpose , for in that case the parliament did meet the d of january , and did also appoint the tryers and receivers of petitions , and was prorogued by the queens commission to the following . if we should once depart from lex & consuetudo parliamenti , let this following instance amongst many be considered ; a king , or a protector , in the infancy of a king , shall prorogue a parliament sine die , and when they are all dispersed to their several habitations , he shall in three dayes notice summon lords , and commoners , well principled , well paid , and near at hand for his purpose , he may in few days change the religion , subvert the rights and properries of the nation , and enslave the people by authority of parliament , or the protector ( such as he may be ) may alter the succession , destroy our priuce , and place himself in his room . but to all this will be said , the law and custom of parliaments require days notice , which secures us from such a mischief . it is replyed , that there is no stronger law and custom for the dayes , notice than there is against prorogations above a year , or parliaments , sine die , and if the kings prerogative can extend to the more essential parts , it may to the circumstance of the time of notice : the king that notwithstanding our old stautes supported by the law and custom of parliaments , can prorogue a parliament to a time never so remote , or , sine die , ( that is , to no time ) which is farther distant if he pleaseth , and hath no end but with his life , can by the same prerogative make the time of notice as short as he please , that being piescribed by no statute , and only depending upon the law and custom of parliaments , and has been invaded by a more dangerous president than any other point of the law and custom of parliament has been . hen. . the first day he came to the crown , summons a parliament by writ to the sherffe , returnable the . day ; he durst not venture upon a parliament discontinued , and so disolved by the resignation of ri. . though they assembled but the same day that his writtes went out for a new , and notwithstanding they were such men as he planly approved of , yet new writs of sumons and a new return of the sherifs was thought essential at that time . to all this is objected that ano. . of e. . the parliament was dismised the . of march without limiting any day certain , and it doth appear , that an order was made in pleno parliamento on the . of april following , so that the same parliament dismissed , sine die . was recalled and sat again , ryley , . . . to this is answered that this record will not be of validity to change our laws , and constant practice of parliaments ever since they were setled . the original book in the tower ( of which ) riley , is a copy ) was but extracts out of the close rolls , and some parliament rolls since lost , and a mistake in trancscribing the date of the record may very easily happen for that the former leave given was a disolution is eviedent , becase the members of the house of commons tooke out there writ for wages , whith in those times , was never taken out till after the parliament was dissolved . and , if to be dismissed , sine die , be a disolution , the question is gained ; and is matters not much , whether this be an order of the prelats and temporal lords , with advise and assistance of the privie council and judges , for these were all ordered in the dismision to stay behind and attend . and the words , in pleno parliamento , might be inserted , to distinguish it from an act of the privie council alone ; which is the more probable , both because the nature of the order is such , as the kings counsel alone could have made , and the distance of time from the th , of march , to the th . of april , was too short for a recealing of the members ; and too long to suppose them to have continued of themselves neer the court , and within call or whether the king did call the same parliament after a dissolution , which the same king had don in the , year of his raign , and his son ed. . did in the ninth year of his : both which were upon a pretence to advise with him , and we have no lawes extent of their making ; for this does but argue ; that the 〈…〉 parliaments were not yet fully settled , haveing suffered lately in the end of h. . time a great alteration , and this vigorus and might prince edvv. st . was attemping to extend his prerogative , so that we have other presidents of a like nature , as the summoning of one knight for every county , and one citizen and one burgess for every city and burrough . but both these , and the former prsidedents , have been long since condemned and fully settled on the peoples side , this latter . ed. . num. , . confirmed . e. , n. . and the former the . e. . numb . . item prie lee commune que pleite establier per statute in ceste present parliament que chescun ann soit tenus un parliament de faire correccions en royalme des errors & fauxetees ; si null y soynt troves & que les chevaliers des countees pur celles parliaments , soyent eslus per commune election de les meilleur gents des dit countees , et nemy certifie per le viscount soul sans diu election sur certeine peine . res. endroite diu parliament chescun anne il y dyent estatutes & ordinances faits les quex soyent dament gardes & tenus et quant al article del election des chevalier qui vendroient a parliament le roy voit quils soynt eslus per commune assent de tout le countee . this record is worth the observing ; it has not only setled the point , that our kings could not have the same parliament after dissolution , or being sent home returned again upon his summons , or writs to the sheriffs , but settles that the people of england ought not only to have a parliament every year , but a new choise . to conclude this objection , let it be considered how weak a proof the date of this order is in so great a point , to prove a parliament recalled after a dismission sine die , would require journals of their sitting , writs by which they were summon'd , or for wages , or acts which were allowed to be in force , and of such a nature , as none but a parliament could do ; none of which are in this case . vi. if the prorogation be void , the parliament not sitting , nor can subsist sine die , then the last point is , that it must be dissolved . it will be hard to find a president of a parliament that was neither sitting , adjourn'd , prorogu'd , or dissolv'd ; this is none of the three former , and therefore must be the latter , viz. dissolved . if the parliament be not sitting nor can subsist , sine die , and the prorogation be null and void , then what shall bring them together again the of february ? it is very true the king has issued his proclamation for that purpose , but proclamations are acts of grace , to notify and promulgate to the subjects , the laws that are , that they may be kept and observed ; but they cannot alter the law , or any proceedings in law. vvhen was there a parliament prorogued by proclamation ? was not that always done by commission ? and a proclamation served only to give the people notice o● the kings pleasure , to order their occasions accordingly . in the beginning of the late troubles , the king by proclamation adjourned the courts at westminster to oxford , without any writ of adjournment ; and since the return of his majesty , in an affize brought by sir edvvard heath , against mr. pagit for the office of custos brevium , of the court of kings bench ; it was declared in the court of kings bench , that those courts at oxford were coram non judice , and all their proceedings void , and nothing hath been legal of their proceedings ever since . at the time of the chatham invasion , the parliament stood prorogued to the tenth of october , whereupon the king issued out a proclamation to summon them to meet the th day of iuly , at their meeting the king told them , that he had summon'd them vvhen he vvas under an exigence , vverein he thought not fit to rely on less counsel than theirs . and the truth is they were universally looked upon as a council not a parliament . and my lord keeper in his speech on the th of ostob. told them , it vvas a doubt by grave and vvisemen , vvhether or no they could sit and act as a parliament before that day . object . but notvvithst●nding it appcars by vvhat is said , that this parliament is neither sitting or progogued , neither can it subsist , sine die , or by proclamation , yet there are some vvill tell us , that it is the king's prerogative alone to prorogue or dissolve parliaments , and they vvill urge the opinion of chief justice lee , that a parliament cannet be dissolved or determined but ly matter of record , and that by the king alone . hutton rep. fol. . ans. to this may be said , that no man or number of men ( except the king ) can by matter of record dissolve a parliament : it is the right and prerogative of the king alone to do that . but there are several other wayes by which a parliament may naturally or violently come to its end , to make the expression plainer , let this instance be offer'd ; no man hath authority to kill any of the kings subjects without a lawful commission derived from him ; yet any of his subjects may die naturaly or be killed violently , and though the person that did it be liable to punishment yet the subject is not alive . the death of the king or the resignation of his crown , are known and confessed to be the natural , death of the parliament as well as of those other courts , as also the return of the king from a forreign country into england determines a parliament summon'd by his lieutenant in his absence , as appeares expresely by the act of parliament . h. . ch. . the duke of gloucester , the kings uncle , told richard the second of another way . if the king shall 〈◊〉 absent himself from his parliament then sitting for the space of dayes . histor. angli . fol. . if a parliament should continue as long as this , and the king should issue no writs to fill their vacant places , it is more than probable , that would prove a natural dissolution . if the gunpower treason had taken effect , or any such like wicked or sad accident should happen it would prove a violent dissolution of the parliament ; so that cheif justice lee in in huttons rep. fo. . was as much out in point of law , that a parliament cannot be dissolved but by the king and by matter of record , as he was in good sence when he spoke of discontinuance of parliaments by matter of record : primo mariae , was a great question , whether the parliament then summoned was not void ? because h. . c. . and . h : . c. . did unite and annex the title or stile of supremum caput eccleseae anglicanae , to the crown , and this title or stile was omitted in the then writs of summons : some of the judges and queens council thought this was not a necessary part of the queens stile , others thought otherwise , but it was admitted of all hands that supposing the statutes of henry the eighth had extended to have made this a necessary part of the queens stile , the force of the same statutes had made void the parliament ; so that it appeares evidently by this that it was their opinion , that a parliament might be dissolved by the force of former statutes , though the kings express pleasure for the dissolving of it did not otherwise appear upon record . decimo . sept . car. . was an act made that the parliament should not be dissolved , prorogued , or adjorned , but by their own consent by act of parliament : here the kings 〈◊〉 of dissolving parliaments is limited by an act , so that it is plainly subjected to former statutes . the trienal act it self , is an instance beyond exception , this parliament which repealed it , admitted it to have been a binding law , else what need it to have been repealed ? by this act the kings prerogative was limitted both in calling and dissolving parliaments . ex abundanti it might be said , that acts of parliament can bind , limit , restrain and govern the descent and inheritance of the crown it self , and all rights and titles thereunto . this was practised in henry the eighth's time , and in the thirteenth of eliz. the affirming , holding , or maintaining the contrary was made treason during her life , and after her decease , forfeiture of all goods and chattels . neither is there any form of words necessary for the king to use in the dissolving the parliament : if he bids them go home ; if he tells them he hath no further use of them ; or if he say , they may be gone . so also if he prorogue them for a thousand years , it cannot be thought other than a dissolution : the same would be if he prorogued them for a hundred or tvventy years , or any time above a year , which is the boundary the law hath set ; for if you exceed that , what shall the time be ; or who shall have the authority to appoint it ? finis . notes, typically marginal, from the original text notes for div a -e cook , . rep. slades case . leonard . p. . . . crook . eliz. . cook . rep. fol. , fully the case . co. . rep. fol. . dyer , . the speech of denzell holles, esquire delivered at the lords barr, wednesday, the th of iune vpon the impeachment of the earles of north-hampton, devon-shire, monmouth, and dover, and of the lords rich, andever, grey of ruthen, coventry and capell, for their contempt in departing from the parliament, and not returning upon summons. holles, denzil holles, baron, - . this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (wing h a). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing h a estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) the speech of denzell holles, esquire delivered at the lords barr, wednesday, the th of iune vpon the impeachment of the earles of north-hampton, devon-shire, monmouth, and dover, and of the lords rich, andever, grey of ruthen, coventry and capell, for their contempt in departing from the parliament, and not returning upon summons. holles, denzil holles, baron, - . [ ], p. printed for thomas vnderhill ..., london : . reproduction of original in harvard university libraries. eng great britain -- history -- charles i, - . a r (wing h a). civilwar no the speech of denzell holles esquire. delivered at the lords barr, wednesday the th. of iune. vpon the impeachment of the earles of north- holles, denzil holles, baron c the rate of defects per , words puts this text in the c category of texts with between and defects per , words. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - judith siefring sampled and proofread - judith siefring text and markup reviewed and edited - pfs batch review (qc) and xml conversion the speech of denzell holles esquire . delivered at the lords barr , wednesday the th . of iune . vpon the impeachment of the earles of north-hampton , devon-shire , monmouth , and dover , and of the lords rich , andever , grey of ruthen coventry and capell , for their contempt in departing from the parliament , and not returning upon summons . ordered that this speech shall be forthwith printed , and that none shall print it , but who m. holles shall appoint . h. elsynge cler. parl d. com. i appoint that none shall print this but thomas vnderhill . denzell holles . london , printed for thomas vnderhill at the signe of the bible in wood-street , ● . the speech of denzell holles esquire , delivered at the lords barr , wednesday the th , of iune . upon the impeachment , &c. my lords , by the command of the knights , citizens and burgesses of the house of commons , i come hither unto your lord●p● in the behalfe of the parliament , or rather in the behalfe of the whole kingdome , labouring with much distraction , many feares , great apprehensions of evill and mischiefe intended against it , and now hatching and preparing by that malignant party , which thirsts after the destruction of religion , laws and liberty , all which are foulded up , cherished , and preserved in the carefull bosome of the parliament . my lords , the parliament is the foundation and basis of government , and consequently of the peace and happinesse of the kingdome . as it creates the law by which we are ruled and governed in peace and quietnesse , so it preserves the law in power and authority : it watches over our religion , that it be not supplanted and changed by superstitious innovations ; the truth and substance of it eaten up with formality , vaine pompe , and unnecessary ceremonies ; the grosse errors of popery and arminianisme imposed upon us , as the doctrine of our church ; a way opened to all licentiousnesse ; and occasion hereby taken to oppresse and persecute all religious and conscientious men that shall oppose these proceedings ( as hath been used of late . ) it is the conservative of the rights and liberties of the subject , and the corrective of injustice and oppression ; whereby equall right is distributed to all , and every man hath that benefit and protection of justice , which is due unto him . it is that , by which alone , common necessities can be provided for , and publike feares prevented : so that i may say , not onely the peace , and happinesse , and well-being , but the very being of this kingdome , can have no other bottome to stand upon , but the parliament , it being the foundation upon which the whole frame of the common-wealth is built . therefore those who would destroy the building , apply themselves to undermine the foundation , if they can take away parliaments , or but weaken the power and authority of parliament , which is all one ( for if it once have no power , it will soone have no being ) they know then all will be at their mercy , nothing will stand in their way to oppose them , but a floud of violence will run over , and cover the whole surface of the kingdome ; and carry away all , both present enjoyment , and future hope of religion , liberty , and whatsoever else is precious and deare unto us . and accordingly , it hath ever been the policie of evill counsellors ( who are the greatest enemies we have in the world , or can have ) to strike at parliaments , keepe off parliaments , breake parliaments , or divide parliaments , by making factions , casting in diversions , and obstructions , to hinder and interrupt proceedings of parliament : all against the parliament . your lordpps have had experience of this truth this parliament ; a succession of designes upon it : first to awe it , and take away the freedome of it by the terrour of an army ; then to bring force against it , actually to assault it , and with the sword cut in sunder this onely band , which tyes and knits up king and people , the people among themselves , and the whole frame of this government in one firme , and i hope indissoluble knot of peace and vnity . god diverted those designes , did blow upon them ; presently another is set upon , which was , to obstruct and hinder our proceedings , that in the meane time the flame of rebellion might consume the kingdome of ireland , and distempers , distractions , and jealousies be fomented here at home , to teare out the bowels of this kingdome , the parliament being disabled from helping it , by occasion of so many diversions , so much businesse cut out unto it , many obstructions and difficulties , especially that great one , from which all the rest receive countenance and support , his majesties absenting himselfe , not concurring with us , and so with-drawing both his presence and influence , by which meanes such remedies could not be applyed , as were necessary , and what was done , was done with infinite trouble to the parliament , and excessive charge to the subject , double , trebble , what otherwise would have served the turne : so the subject is grieved and oppressed with charge , and the blame of all is laid upon the parliament , and the parliament unjustly said to be the cause of all those evils , which the authors of them had made so great , and so confirmed and secured by the frequent interruptions of the parliament , that they could not suddenly , nor easily be suppressed or removed . well , but by gods infinite blessing the parliament was in a faire possibility to wade through this likewise ; and though the night had been blacke and stormy , some day began to appeare : miraculously our armes have prospered in ireland , and god be praised , the malevolent practises of these vipers at home , as they appeared , were in some sort mastered ; and the parliament began to act and operate towards the setling of the great affaires both of church and state , and providing for the defence and safety of this kingdome , against either forrain invasion , or any stirring of the disaffected party among themselves . then three wayes are together assayed for the weakening and invalidating the proceeding and power of the parliament , and making way for the utter subversion of it . one , force is gathered together at yorke , under pretence of a guard for his majesties person , to make an opposition against the parliament , and by a strong hand to support and protect delinquents , so as no order of parliament can be obeyed , but on the other side is sleighted and scorned , to make the parliament of no reputation , to be but imago parliamenti , a meere shadow , without substance , without efficacy . an other , to send out in his majesties name , and as declarations and messages from him , bitter invectives against the parliament , to perplexe it , and engage it in the expence of time to answer them : and besides , cunningly to insinuate and infuse into the people by false colors and glosses , a disopinion and dislike of the parliament , and if it be possible , to stir up their spirits to rise against it , though to the ruine of themselves , their wives and children . the third plot is , the members are drawne away , and perswaded to forsake their duty and attendance here , and goe downe to yorke ; thereby to blemish the actions of both houses , as done by a few , and an inconsiderable number , and rather a party , then a parliament , and perhaps , to raise and set up an anti-parliament there . my lords , this is now the great designe , whereby they hope by little and little , the parliament shall even bleed to death and moulder to nothing , the members dropping away , one after another . a desperate and dangerous practise , and as your lordships well observed ( when you were pleased to communicate this businesse to us ) an effect of the evill councels now prevailing , and tending to the dissolution of the parliament , of this parliament , which under god must be the preserver of three kingdoms , and keep them firme and loyall to their king , subject to his crown , save them from being turned into a chaos of disorder and confusion , and made a spectacle of misery and desolation . this parliament , which is the last hope of the long oppressed , and in other countries even almost wholy destroyed protestant religion : this parliament which is the only meanes to continue us to be a nation of freemen and not slaves , to be owners of any thing : that we may call our wives , children , our estates , nay our bodies our owne : in a word , which must stand in the gapp to prevent an in let , an inundation of all misery and confusion . my lords , this parliament they desire to destroy , but i hope it will destroy the destroyers , and be a wall of fire to consume them , as it is a wall of brasse to us , to defend king and kingdom , us , and all we have . your lordships wisely fore-saw this mischiefe , and as wisely have indeavoured to prevent it , by making your orders , to keepe your members here , as that of the th . of aprill , and severall other orders enjoyning them all to attend ; thereby restraining them from repayring to yorke , where the clouds were observed to gather so fast , and threaten a storme , and such preparations to be made against the parliament , that it necessitated both house to passe a vote : that the king seduced by wicked councell , intended to make warre against the parliament , and all who shall serve or assist in such warres are declared to bee traitors , which vote pa●● the th . of may : so setting a marke upon that place , and their opinion concerning th●se who should at this time resort thither . yet now , in such a coniuncture of time , when the kingdome had never more need of a parliament , and the parliament never more need of all the helpe and assistance of the best indeavour and advise of every member , the safety and even being of three kingdomes depending upon it ; after such orders and commands of your lordships house to the contrary ; such a vote of both houses : and expressely against their duty , being called th●ther by writ under the great seale , which is the kings greatest and highest command , and not controulable nor to be disperced with by any other command from him whatsoever ; and called , to treat and consult de arduis regni , the great urging and pressing a faires of the kingdome , never more urgent , never more pressing ; notwithstanding all this , these lords , the earles of northampton , devonshire , dover , mounmouth , and the lords rich , andever , grey , coventry and capell have left their stations , withdrawne themselves and are gone to yorke , and being summoned to appeare by an order of the ●● . of may , instead of obedience , returne a refusall , by a slighting and scornefull letter , which hath bin so adjudged , both by your lordships and the house of commons . my lords , the house of commons hath likewise upon the consideration and debate of this businesse , finding it so much to concerne the safety of the kingdome , and the very being of the parliament , passed this vote , that the departing of these nine lords from the parliament , without leave , after such time as both houses had declared , that the king seduced by wicked counsell intended to make warre against the parliament , and their still continuing at yorke , notwithstanding their summons and command , is a high affront and contempt of both houses , and that the said lords therin , did as much as in them lay , that the service of parliament might be deserted , and are iustly suspected to promote a warre against the parliament . and the house in further prosecution of their duty in this particular , and in pursuance of their protestation , which obliges them to indeavour to bring to condigne punishment all such high offenders against , not only the priviledges , but the very essence of parliament , have sent me up to impeach these lords , and desire that speedy and exemplary justice may be done upon them . and accordingly , i doe here in the name of the knights , citizens and burgesses of the commons house assembled in parliament , and in the name of all the commons of england , impeach spencer earle of northampton , william earle of devonshire , henry earle of dover , henry earle of mounmouth , charles lord hovvard of charlton , robert lord rich , charles lord grey of ruthen , thomas lord coventry , and arthur lord capell , for these high crimes and misdemeanours following , viz. for that , contrary to their duty , they being peeres of the realme , and summoned by writ to attend the parliament , and contrary to an order of the house of peeres of the th . of aprill last , and severall other orders requiring the attendance of the members of that house , and after a vote past in both houses the● th . of may last , that the king seduced by wicked councell , intended to make warre against the parliament , and that whosoever served or assisted him in that warr , was adjudged a traitor , did notwithstanding afterwards in the same month of may , contemptuously , having notice of the said votes and orders , with draw themselves from the said house of peeres , and repaire to the city of yorke where the preparations of the said warre were , and yet are ▪ in contrivance and agitation , they knowing of such preparations : and being by an order of the th . of may duly summoned by the house of peeres , to make their appearance before that house upon the . day of june last past , they refused to appeare , and returned a scornefull . answer by a letter under their hands , directed to the speaker of the lords house and remaining there upon record . for which crimes and misdemeanors to the interruption of the proceedings of parliament , and great affaires of the kingdome , and tending to the dissolution of the parliament , and disturbance of the peace of the kingdome , i am commanded in the name of the said commons , to demand of your lordships , that the said lords may be forthwith put to their answer , and receive speedy and exemplary punishment , according to their demerits . the commons saving to themselves liberty at all times hereafter , exhibit any other or further impeachment or accusation against the said lords or any of them . finis . the lord holles his vindication of himself and of his son sir francis holles from some foul aspersions cast upon them by mr. justice ellis in some depositions of his taken in the high court of chancery. holles, denzil holles, baron, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) the lord holles his vindication of himself and of his son sir francis holles from some foul aspersions cast upon them by mr. justice ellis in some depositions of his taken in the high court of chancery. holles, denzil holles, baron, - . p. 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ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng holles, denzil holles, -- baron, - . great britain -- history -- restoration, - . great britain -- politics and government -- - . - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion the lord holles his vindication of himself and of his son sir francis holles , from some foul aspersions cast upon them by mr. justice ellis , in some depositions of his taken in the high court of chancery . london , printed in the year , . the lord holles his vindication of himself and his son sir francis holles , from some foul aspersions cast upon them by mr. iustice ellis , in some depositions of his taken in the high court of chancery . having seen some depositions of mr. justice ellis taken in chancery , in a cause there depending , between sir francis holles and sir robert carr , concerning a portion due ( but denied to be paid ) by the said sir robert , to the said sir francis , who had married his sister ; in which the said justice is pleased to say things very much reflecting , both upon sir francis , and upon me his father ; where there are great mistakes , and much said by him as upon hear-say ; which though insignificant as to be matter of proof and evidence , yet serving much to make a noise , and possess standers-by , who shall hear his depositions read , with a prejudice and ill opinion of us , as if we were really guilty of those foul things which are there said of us ; i shall therefore do that right to my self , my son , and to truth , as to make some observations upon those depositions , to discover the very great improbability ( to say no more ) of what is there delivered : my method shall be , first to set down the interrogatory , and his deposition verbatim ; then to shew briefly , where in it he hath varied from truth by his own mistake , and where upon hear-say from another body . the interrogatory is thus : do you believe , or have you heard that the said sir francis holles had preconveyed those lands so to be setled for an additional iointure as aforesaid to other persons , to other uses , so to frustrate the said settlement ? or what discourse have you at any time had with sir francis holles about the premises ? and whether did not the said sir francis holles confess to you , that he had so preconveyed the said lands , that were so to be setled for an additional iointure as aforesaid ? declare , &c. the deposition follows : to the th interrogatory this deponent saith , that after the said deed was so executed by the said complainant , the said lady carr came to him this deponent , and acquainted him that the said complainant had made some settlement and conveyances of his estate , he had so made to his wife for an additional iointure , after his said marriage , and before the sealing of the said deed for an additional iointure , on purpose to avoid the said iointure , and that the said iointure was worth nothing ; at which he this deponent was much surprized , and did take himself concerned in it , for that he this deponent had drawn , or caused his man to draw the said iointure ; and perswaded the said lady carr , that she should have no apprehensions , that the complainant would do any such thing ; and that he this deponent did conceive , that he the said complainant had a good estate in himself , when he this deponent saw the said deeds : but the said lady carr did insist upon it , that it was true , that he the complainant had done such an act ; and that not many days before he sealed the said iointure , he had conveyed away his estate to others : whereupon he this deponent took an occasion to acquaint the complainant with what he had heard , who to the best of this deponents remembrance did acknowledge the same . but this deponent well remembreth , that upon that discourse with the complainant , he this deponent was well satisfied , that some short time before the said complainant sealed the said conveyance of an additional iointure , he had conveyed over his estate therein to some other person or persons , whereat this deponent was much troubled . this concerns only my son , who hath in his answer upon oath to sir robert carr's bill in chancery , said positively he made no such preconveyances ; the words of his answer are these : this defendant denies that before his sealing and executing the deeds of lease and release in his former answer mentioned , he had made or granted any estate or conveyance of or in the lands or hereditaments therein mentioned , or any part thereof , to any person or persons whatsoever : nor doth this defendant remember or believe he ever declared or confessed , he made or granted any estate or conveyance thereof precedent to the said deeds of lease and release ; nor had he any reason so to do , for that this defendant at the time of his sealing the said deeds of lease and release , was seized of such estate in the said premises , as that he had ( as he conceived and was advised by counsel ) good right and power to convey the same , as by the deeds of lease and release was mentioned and intended . now , if there never was any such thing done by him , certainly he could not acknowledge that he had done such a thing as is set forth in the deposition : it is true , mr. justice ellis something qualifies his assertion by putting in these words , that to the best of his remembrance he did acknowledge it . but he must give me leave to remember him , that a man of his gravity , who hath the honour to be one of the twelve judges of westminster-hall , ( whose words even doubtfully spoken are of great weight , and do sway much to lead other mens opinions and judgments to a concurrence with his , even with what he enclines to believe ) should not utter any thing tending so much to the disparagement of another , give such a wound to the honour and reputation of a gentleman , as this accusation ( if true ) would do to my son , but upon a very great certitude : for , i say , if this were true , that my son had done such an act , so unworthy of himself , so unbecoming an honest man , much less a gentleman , i would never own him more for my son , but should think him fitter for a goal or a bridewell , and there to end his days , than to come into any honest company ; and truly i look upon it as such an injury done him , as that it passeth almost all reparation . and mr. justice ellis goes something further , and saith , he well remembers that , which is , that upon that discourse he was well satisfied there were such preconveyances , and that he was much troubled at it . and saying what he said before , i do not much wonder that he saith this ; for i see he is resolved to lead others into a belief that there were such preconveyances , whether there were any or no ; and i am most confident , so as i durst almost swear it , as much as i would swear , for any thing that i do not of my own knowledge certainly know , that there never were any such preconveyances , nor never any such discourse , or ground for such a discourse . for , first , my son hath denyed it upon his oath , and i never observed but that he was one who made a conscience of his ways , and conscience of an oath . but admit him to be a knave , and that it had been true , that he had done such an unworthy fraudulent act , in all reason he would not have been so weak , as to have acknowledged it in his discourse to one , who he knew came to pump it out of him , or have given him any ground to be satisfied that it was so , and that he had so played the knave : such works of darkness use not to be owned and avowed , since it is the secrecy of them that they owe their being unto , and which renders them advantageous to their contrivers . therefore it is not probable my son would make such a confession to him : and if mr. justice ellis did but gather it from circumstances , and by inferences upon what was said , he should have done well to have declared those circumstances , and have expressed in his deposition the particulars of that discourse , upon which he grounded his being so satisfied ; which certainly he could not but have remembred , ( if there had been any ) as well as that he was so satisfied upon it . and me-thinks he should have asked the lady carr , what ground she had to say so , before he had gone any further , especially so far as to speak with my son about it , which he could not but think would be to him a very disobliging discourse taxing him with , and questioning him about such a piece of knavery ; of which yet nothing appeared , and of which there was no sign , no vestigium , but in the lady carr's fancy ; and ( it seems ) a desire in mr. justice ellis to have it so believed by others , whether true or not true . but i may ask , did mr. justice ellis do the part of a faithful friend to the lady carr , and sir robert carr , for whom he saith he was entrusted , as their learned counsel , to draw their writings , and take care that good assurances should be made , and all things well settled ? that he should know , or but believe , or fear , there was such double-dealing used towards his clients and friends , such a fraud and cheat put upon them , instead of an additional jointure to a daughter of their family , and he be silent so long , and say nothing of it , whereby it might be put into some way , to discover all that foul play , and prevent the mischief and inconvenience which must of necessity have come of it ; for that wife of my son 's , whose portion they would now not pay , lived with him several years , and a daughter he had by her lived about a twelve month after the mother ; and all that time mr. justice ellis said not one word of this , nor i know not of how long after , not until his examination in this cause in chancery : and to say the truth , i have reason to believe , that both his satisfaction and his trouble ( which he speaks of ) began but when sir robert carr took up the resolution to keep back his sisters portion ; and that he had no thought before , that ever there had been such discourse between my son and him , or any thing like it , to cause either his satisfaction , or his trouble . and so i come to his next deposition . the interrogatories were the th , th , and th : the th ; did you at the instance of dame mary carr prepare a draught in pursitance of the said settlement , to tender to the lord holles , and the plantiff sir francis , and what was done therein , and whether was the same accepted or no ? declare , &c. th , do you know that the lord holles did refuse to appoint his own counsel , to draw a book in pursuance of the said articles of agreement ; and was there ever any settlement made according to the said articles ? declare , &c. th ; do you know , or have you heard that the said lord holles did ever deliver a copy or draught of such settlement to the said dame mary carr , or to her counsel for that purpose appointed ? declare , &c. his deposition to those interrogatorics more immediately concerns me , it runs thus : to the th , th , and th interrogatories , this deponent saith that he doth well remember , that the said lady carr was often with him this deponent , to prepare a conveyance for to make a settlement , according to the said articles of agreement upon the said marriage ; and did very much complain she could not get the said lord holles to do it ; and did often importune him this deponent to draw a book to that purpose : whereupon this deponent told her , that he could not well draw a book without sight of the said lord holles his writings , which she could not procure . but this deponent remembreth , at the said lady carr's importunity , he this deponent did draw , or cause to be drawn , a rough draught of a paper book with blanks , to the effect of the said articles , the said lady carr often telling him this deponent , that she had the money for the portion ready if she could but have the assurances performed . and this deponent had often discourse with sir william constantine , the said lord holles his counsel , who did except against something in the said articles , and said they were not reasonable ; whereupon this deponent told him , that they were drawn by the said lord holles himself with his own hand , and that they were not to make articles , but to draw assurances , according to the articles already made , and desired him the said sir william , that if he did not like the said draught , which he this deponent had drawn , that he the said sir william would draw a book himself ; and if there were any thing in the said articles unreasonable , ( so as the substance and effect of them might be performed ) he this deponent would perswade the lady carr to agree to them . but this deponent did not perceive that the said sir william constantine was willing to do it . and this deponent saith that afterwards the said lord holles was with him this deponent , and did complain of the said articles , and said it was never his intention such settlement should be made ; whereupon this deponent told his lordship , that he this deponent could not , nor had any power to make any new articles ; but if any thing were unreasonable or hard upon him in them , he this deponent would do his endeavour to perswade the lady carr to have them rectified ; but this deponent doth not know that ever any conveyances were made and executed according to the said articles , or otherwise , or any tendred by the lord holles or his counsel , although the said lady carr did often desire , and was very importunate to have had the same done and perfected . the matter of this is far from truth ; yet it may be true , that the lady carr told him so ; but that good lady would sometimes mistake , and i am sure she did so now , if she said any such thing to mr. justice ellis , as he saith she did : for upon the faith of a christian it is not true , that she did press me to perfect those assurances , and as little true that i ever refused it , or was backward to do my part in it . so far from it , that it was still desired and pressed on by me ; and it stuck at her , and those of her side , who would never perform what was in the first place their part to do , which was to secure the portion . for which purpose , she was tied by the articles to get a fine levied of her husband and son , of certain lands there specified , in the michaelmas term following after the marriage of her daughter , which was about the latter end of august . this was not done . and my engagement for setling the jointure , was to do it some three months after that fine levied : for this i was to do but in six months after the marriage , which time did not expire till about the end of february . so then the portion not seemed , as i was not at all bound , so it had been a very imprudent thing in me to have setled land for a jointure gratis , without any hopes of ever seeing a portion , which by their dealing i had cause to apprehend might be their intention , or at least to put us to trouble to recover it . for though mr. justice ellis is pleased to say , that the lady carr told him the portion was ready ; she nor he never told us so : it is what we never heard of , neither my son nor i , and i am confident no man nor woman did ever hear so , but the justice himself ; and sure we were most concerned to have had the notice given to us : nay , the justice , who by his own saying was intrusted with the care of procuring those settlements to be made , and seeing all things performed , that were requisite thereunto , was bound in duty and conscience to have signified so much to us , as that which would have removed the sole obstacle , and brought the business to a happy conclusion ; or at least it would have justified to all the world the sincerity of their proceedings , and laid open past all denial the tergiversation and insincerity which they met with from us . i am sure that with much ado , after long waiting , and several sollicitations of mine , being then upon my journey into france , i got a meeting at my house in westminster with the lady carr's agents , a counseller at law one mr. cox , and some others whom she employed ; and all the writings on my part were there ready , and were examined and approved by them , and i began to seal , and had sealed one or two ; and i had acknowledged a fine of the land in pursuance of the articles , and i delivered it to them : and as i was sealing , i asked what order they had for the portion ; to which mr. cox answered , he had none at all ; whereupon i replyed , i would then settle no jointure , till i had satisfaction in that particular , and accordingly stopped my hand from further sealing , and there it rested . soon after that i went into france , where i continued near three years ; whilst i was there , i received a desire from sir robert carr , that i would write to some of my friends in the house of peers ( the parliament then sitting ) for their favour and assistance to him in passing a bill to settle his estate , and enable him to pay some debts , and particularly to discharge and pay his sisters portion : accordingly i did write to several lords , to the earl of arlington by name for one , who was then principal secretary , is yet alive , and can witness if this be true that i say . my last treating about this business , or rather i may say my last endeavour to have treated , was when i went once to have visited the lady carr at her house in lincolns-inn-fields , with an intention to have moved her , that she would at last perfect things relating to it . and i stayed near an hour in a low parlour , spake to several of the servants to acquaint her with my being there , but could have no answer ; so i came away , and i never went to see her more , nor never had any more to do with her . by these passages it appears no portion was ready , whatever the lady said to mr. justice ellis ; and whether she said it or no , i durst almost positively affirm , he could not believe it was so ; for he , who knew that family so well , and the necessities , difficulties , and distractions which it laboured under , by reason of the distemper of sir robert carr the father , the opposition of the lady to her husband , and to all that he did , their drawing several ways , sometimes the one prevailing , sometimes the other , one undoing what the other did ; he , i say , who knew all this , could not but know that six thousand pounds , was a sum not to be there so easily gotten together , and that he was not presently to believe it to be so because that lady said it . indeed i have heard she had a sute in chancery with her counsellor mr. cox , about some money that she had put into his hands ; which money , she in her answer to my son's bill in chancery , saith was for the payment of this portion ; but how likely this is to be true , that it was for that use , let any man judge . cox , as i have heare , confessed only two thousand pounds , and that it was in trust for one mr. fleetwood , a gentleman whom she then much respected ; and besides this was in , or , several years after all treating about either portion or jointure , or any thing else relating to her daughters marriage , was absolutely broken off and laid aside , and her daughter then dead , of whom , or of any thing concerning her , she then certainly had no thought at all ; so as this is but a meer fancy , that it seems she then pleased her self with , when she was sued by my son , of which he nor none of his friends had ever heard before , whom ( as i have already said ) she should chiefly have acquainted with it . yet this deposition of mr. justice ellis even so framed , but upon a hear-say , may have its operation , and perhaps much to my disadvantage ; for though the justice speak it but upon the lady carr's credit , who should tell him such things , that i refused to perform covenants , and that the portion was ready , but i would do nothing of that i ought to do ; yet this coming from him , and being vented and published by him , a person of that weight and authority , who bears such a figure as he doth , will make an impression upon some mens minds , as if i were in truth such a man as i am there deciphered to be . therefore i have cause to complain of his readiness upon so slight a ground to utter things so much to my disparagement ; and which he could not but know to be no legal evidence in the behalf of sir robert carr , who had produced him for a witness , and shews more a good will and a desire he had to please him , than that it could be any real service to him , for the carrying on of his cause . he goes on and tells a story , first of a discourse between him and sir william constantine , then of one between him and me ; what sir william constantine said to him i do not know . i do not remember that ever i employed sir william constantine to treat with him about that business ; nay , if i were to die at this present , i would take it upon my death , that i cannot call to mind , that ever i knew that serjeant ellis ( for so i think he was then ) was employed , or made use of , in any part of all that negotiation between the lady carr and me ; so i may very well say , that i do not believe it to be true , that i ever was with him to complain of the articles , and that i should say it was never my intention , that such a settlement should be made . and i do verily believe he goes upon a mistake , confounding another business with this : for i do acknowledge , i was with him about a marriage propounded for the earl of lincoln , which was long after that of my son 's ; and i am very confident it was upon that occasion , the first time that ever i was at his chamber , or ever had to do with him ; for i do very well remember , that when i went to speak with him about that business of the earl of lincolns , i did not know where his chamber was till it was shewed me ; which could not have been , if ever i had been there before . but be it how it will , that he was employed or not employed in that business , and that i was or was not with him about it , it matters not much ; i wish he had dealt more clearly in his testiony , and not have spoken in the clouds , laid a general charge , which makes a sound , as if it signified some great mattter ; that i should complain of the articles , and say , i never intended to make a settlement according to them , though the articles were of mine own drawing , as he saith ; which if true , i had been certainly a very unworthy man , not fit for that common dealing which is between man and man , one upon whose promises , nay covenants and engagements no man could put trust nor confidence ; and for such a man he endeavours to make me to pass ; and therefore tells not , wherein i was unsatisfied , or what the particular was which i complained of . for it is true , i did complain of one particular , ( yet i think not to him , for as i say ) i do not believe i ever spake with him in all that business ) nor was it of the articles i complained ; but this i complained of , that the lady carr would have something to be done by me , which was not in the articles , as i supposed : it was concerning three leases which i held for lives , one from the earl of salisbury , the other two from the bishop of salisbury : i had articled , that after my decease my son should have them , and was willing to yeeld to any thing , whereby they might be secured to my son , that it should not be in my power to dispose of them from him : but nothing would serve the lady carr , but that i should presently assign them over to him ; which i could not give way to for two respects : one was a little point of honour ; for two of these leases being of two mannors , i could not afterwards keep courts , nor grant estates in my own name , but must do it in my sons : the other was a real inconvenience , that when any of my lives should die , it would not be in my power to renue my estate , without having him present to join with me , or rather to be himself the taker of it in his own name , who lived not with me , might be an hundred miles off , when an occasion of renewing should present it self , and i by that means might lose the opportunity , which would have been a great prejudice unto me , and even to my son and his wife . to whom those leases were to come after me . this i did not conceive at all to be the sense and meaning of the articles ; which on the other side i did conceive would have been fully pursued and performed by what i proposed , and what i was willing and ready to do : and therefore mr. justice ellis would not tell the particular , what it was that i complained of , which would have carried with it its own justification , but laps it up in general terms , to make me appear a falsifier of my word , and of my covenants . this i think was not so fair , and seems to me to argue rather a desire in him to do me a mischief , and serve a turn , than to give a full and clear testimony to the truth . one thing more i must observe , which i cannot let pass without some remarque upon it , he saith , the articles were of mine own drawing , and makes use of that circumstance to aggravate my ill dealing , that i should go against my own act , and have the impudence my self to proclaim it , and say i never intended the settlement should be made according to the articles which my self had drawn . which had been a folly in me even beyond the knavery , for few that play the knaves will be so very fools , as to say they intended it . but in truth mr. justice ellis hath ill luck to mistake in all he hath deposed from the beginning to the end ; for this is as true of my drawing the articles , as all the rest which i have before spoken to : it was sir orlando bridgman that drew them , or caused them to be drawn : all the hand that i had in them , was to insert the name of sir robert carr the father , whom they would have left out , saying he was mad , and that the lady managed all , both the person and estate of her husband being committed to her , and governed by her in the nature of his guardian , so that it was not at all needful ( as they said ) to make him a party ; yet i desired he should be made a party , and therefore put in his name in several places , where i conceived it necessary . and one passage more i find there written with my own hand ; it was to have pounds of the portion laid out in land to be setled upon my daughter in law for an addition to her jointure ; and further to declare how the remainder of the whole estate should go in case of no issue . this is all i did as to the drawing of the articles : but i do not say , nor did i ever think , that i was the less bound by them , because i did not make them my self , for i did agree to them , and was still ready to have performed them , if the lady carr would have performed her part concerning the portion , which ( as i have said before ) was at least to have been secured in the first place . however i was resolved still to take care of her daughter , and do all that i was bound to do , or indeed could do ( whether bound to it or no ) for her good , after she was once married into my family , who i must say did deserve it , and proved a very excellent good woman ; though before she did come into my family , that is , before i knew her , and was acquainted with her , i was not at all desirous my son should marry there . it was sir edward rossiter that first proposed the match , who did manage the treaty of it and perfect it ; and if my son would have been ruled by me , and followed my advice , he had not been married before he had received his portion , and then all the trouble that hath since followed would have been prevented ; but this is not much to the purpose : to return then to mr. justice ellis his deposition and so make an end . in his conclusion of it , he goes beyond all that he hath said before , he saith , he did not know that any conveyances were made by me according to the articles , although the lady carr did often desire the same , and was very importunate 〈…〉 to have it done and perfected . here he seems positively to swear , that the lady carr did often desire it , and was importunate with me to have it done . i would fain hope , that there was some mistake in the examiner writing down his deposition , and that he omitted what he had fully expressed in the former part of it , which was , that the lady carr had told him so ; and so indeed he may swear truth , though she did not say true ; for i am sure the thing is very false , if there be any truth in me : it was i still that desired her and importuned her , and not she me , i was still ready but she would do nothing . and upon the whole matter i must say , that i am as much wronged by mr. justice ellis in his deposition throughout , as a man can be ; yet as a christian i will say , god forgive him , and i do ; though he hath done me all this wrong ; which is a better conclusion of my remarques , than his of his deposition . finis . desires propounded to the honourable house of commons from denzill holles, esq; sir philip stapleton, sir william lewis, sir john clotworthy, sir william waller, sir john maynard, knights, major generall massey, john glynne esquire, recorder of london, walter long, esq; col. edward harley, and anthony nicoll, esq; members of the honourable house of commons. vvho stand impeached by his excellency sir tho. fairfax, and the army under his command. also their demurrer to the charge: and the votes of the house, giving them leave to goe beyond the seas, and to absent themselves for six moneths: and mr. speaker to grant them passes. this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (thomason e _ ). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing d thomason e _ estc r this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (thomason tracts ; :e [ ]) desires propounded to the honourable house of commons from denzill holles, esq; sir philip stapleton, sir william lewis, sir john clotworthy, sir william waller, sir john maynard, knights, major generall massey, john glynne esquire, recorder of london, walter long, esq; col. edward harley, and anthony nicoll, esq; members of the honourable house of commons. vvho stand impeached by his excellency sir tho. fairfax, and the army under his command. also their demurrer to the charge: and the votes of the house, giving them leave to goe beyond the seas, and to absent themselves for six moneths: and mr. speaker to grant them passes. holles, denzil holles, baron, - . england and wales. parliament. house of commons. [ ], p. by robert ibbitson, printed at london : . annotation on thomason copy: "july ". reproduction of the original in the british library. eng holles, denzil holles, -- baron, - -- early works to . england and wales. -- parliament. -- house of commons -- early works to . england and wales. -- army -- early works to . impeachments -- england -- early works to . great britain -- history -- civil war, - -- early works to . a r (thomason e _ ). civilwar no desires propounded to the honourable house of commons: from denzill holles, esq; sir philip stapleton, sir william lewis, sir john clotwort holles, denzil holles, baron a this text has no known defects that were recorded as gap elements at the time of transcription. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - scott lepisto sampled and proofread - scott lepisto text and markup reviewed and edited - pfs batch review (qc) and xml conversion desires propounded to the honourable house of commons from denzill holles esq sir philip stapleton , sir william lewis , sir john clotworthy , sir william waller , sir john maynard , knights , major generall massey , john glynne esquire , recorder of london , walter long , esq col. edward harley , and anthony nicoll , esq members of the honourable house of commons . vvho stand impeached by his excellency sir tho. fairfax , and the army under his command . also their demurrer to the charge : and the votes of the house , giving them leave to goe beyond the seas , and to absent themselves for six moneths : and mr. speaker to grant them passes . printed at london by robert ibbitson . . desires propounded to the honorable house of commons from denzill holles esquire , sir philip stapleton , sir william lewis sir john clotworthy , sir william waller , sir john maynard , knights , major generall massey , john glynne esq recorder of london , walter long esq col. edw. harley , and anthony nicoll , esq members of the honourable house of commons . who stand impeached by his excellency sir thomas fairfax , and the army under his command . june . . denzill hollis esquire , sir philip stapleton , sir william lewis , sir john clotworthy , sir william waller , sir john maynard , knights , major generall massey , iohn glynne esquire , recorder of london , walter long esquire , col. edward harley , and anthony nicoll esquire , members of the honourable house of commons , all of them present in their own persons , presented a paper to the house of commons , in answer to the particular charge or impeachment in the name of his excellency sir thomas fairfax , and the army under his command , against them , which answer is a demurre to the said charge , and impeachment ; which paper being delivered in by them , the house received it . july . . resolved upon the question by the commons assembled in parliament , that the answer of denzill holles esquire , sir philip stapleton , sir william waller , sir iohn maynard knight , major generall massey , iohn glynne esquire , recorder of london , walter long esquire , col edward harley , and anthony nicoll esquire , members of the honourable house of commons , in answer to the particular charge or impeachment , in the name of his excellency sir thomas fairfax , and the army under his command , against them , be read in the house , ( which was read accordingly . ) july . . mr. greene , a member of the house of commons , acquainted the speaker , that he had a message to deliver to the house , of desires from denzill holles esq sir philip stapleton , sir william lewis , sir iohn clotworthy , sir william waller , sir iohn maynard , knights , major generall massey , iohn glynne esq recorder of london , walter long esq col. edw. harley , and anthony nicoll esq members of the honourable house of commons , impeached by his excellency sir thomas fairfax , and the army . july . . resolved upon the question , by the commons assembled in parliament , that the desires of denzill holles esq sir philip stapleton , sir william lewis , sir iohn clotworthy , sir william vvaller , sir iohn maynard knights , major generall massie , john glynne , esquire , recorder of london , walter long , esquire , col. edward harley , and anthony nicoll , esquire , members of the honourable house of commons , be made to this house . july . mr. greene acquainted the house that he was desired , by denzill holles esquire , sir phillip stapleton , sir vvilliam lewis . sir john clotworthy , sir vvilliam vvaller , sir john maynard , knights , major generall massie , john glynne esquire , recorder of london , vvalter long esquire , col , edward harley , and anthony nicholl esquire , members of the honourable house of commons . to represent their desires to the house of commons . the desires of denzill holles esquire , sir philip stapleton , sir vvilliam lewis , sir john clotworthy . sir vvilliam waller , sir john maynard knights , major generall massie , john glynne , esquire , recorder of london , walter long , esquire , col. edward harley . and anthony nicoll , esquire , members of the honourable house of commons , moved in their behalfe in the house of commons on tuesday july . . whereas his excellency sir thomas fairfax , and the army doe declare , that the proceedings of the house upon particulars and proofes to make good the charge will probably take up much time , and the present affaires of the kingdome in relation to those great matters proposed by them , do ( as they say ) require a speedy consideration and that they propound that those greater and more generall matters of the kingdome be first considered of , and settled . and in regard that it is supposed that the absence of these members will make way for the present more quiet proceedings , to settle the perplexed affaires of the kingdome . that they are so farre from making any interruption or disturbance to the proceeding upon , or settlement of the generall affaires of the kingdome , that they desire . that they may have leave to absent themselves from the house for the space of six moneths to go about their own particular businesses . that they may have liberty , or so many of them as shall desire it , to goe beyond the seas , and have passes granted them during that space of time . that by that time the said six moneths shall be expired , they conceive that the great and weighty affaires , tending to the peace and settlement of the kingdome , will be over , and the house judge it seasonable to call them to a tryall . july . . resolved upon the question , by the commons assembled in parliament , that leave be given to denzill holles esq sir philip stapleton , &c. for the space of six moneths , to be absent from the house , and to goe into the countrey , to follow their necessary occasions of businesse , as they shall thinke fit . resolved upon the question by the commons assembled in parliament . that denzill holles , sir philip stapleton , &c. or any of them , have leave to goe beyond the seas , provided that they return to the parliament within the space of six moneths after this present ; to attend the house upon the businesse concerning the charge brought into this house ( from sir thomas fairfax and the army ) against them . resolved upon the question by the commons assembled in parliament . that mr. speaker grant warrants to denzill holles esq sir philip stapleton , &c. or any of them that shall desire it , to goe beyond the seas , and to return within six moneths after this present time . finis . an exact and true relation of the dangerous and bloudy fight, betweene his majesties armie, and the parliaments forces, neere kyneton in the countie of warwick, the of this instant october sent in a letter to iohn pym, esquire, a member of the house of commons : which letter was signed by : denzell hollis, ph. stapleton, tho. ballard, william balfour, io., meldrum, charles pym, who were then present. this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (wing e a). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing e a estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) an exact and true relation of the dangerous and bloudy fight, betweene his majesties armie, and the parliaments forces, neere kyneton in the countie of warwick, the of this instant october sent in a letter to iohn pym, esquire, a member of the house of commons : which letter was signed by : denzell hollis, ph. stapleton, tho. ballard, william balfour, io., meldrum, charles pym, who were then present. holles, denzil holles, baron, - . pym, charles, sir, d. ca. . stapleton, philip, sir, - . ballard, thomas, lieutenant colonel to the lord grandison. balfour, william, sir, d. . meldrum, john, sir, d. . p. printed for francis wright, london : . reproduction of original in the university of illinois (urbana-champaign campus). library. eng kineton (warwickshire) -- history, military. great britain -- history -- civil war, - . a r (wing e a). civilwar no an exact and true relation of the dangerous and bloudy fight, betweene his majesties armie, and the parliaments forces, neere kyneton in the [no entry] d the rate of defects per , words puts this text in the d category of texts with between and defects per , words. - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion an exact and true relation of the dangerous and bloudy fight , betweene his majesties armie , and the parliaments forces , neere kyneton in the countie of warwick , the of this instant october . sent in a letter to iohn pym esquire , a member of the house of commons . which letter was signed by denzell hollis , ph. stapleton , tho. ballard , william balfour , io. meldrum , charles pym . who were then present . ordered that this relation be forthwith printed and published . h. elsynge , cler. parl. d. dom. london , printed for francis wright . . sir , we should doe our army a great deale of wrong , and not discharge our duty of thankfulnesse towards god , if wee tooke not the first occasion to declare his goodnesse , in giving so great a blessing as hee hath now done to the resolute and unwearied endeavours of our souldiers , fighting for him in the maintenance of his truth , and for themselves and their countrey , in defence of their liberties , and the priviledges of ●arliament . this makes us give you now a narration of a blessed victory which god hath given us upon the army of the cavaliers , and of those evill persons , who upon sunday , the . of this instant , ingaged his majesty in a dangerous and bloody fight against his faithfull subjects , in the army raised by authority of parliament , for the preservation of his crowne and kingdome ; wee marched from worcester , wednesday the . upon intelligence that the army was moved from shrewesbury , and bridgenorth , and bending southward ; our train of artillery was so unready , through want of draught horses , and through our omission of monsieur du boys , that we were forced to leave it behind to follow us , and with it the regiments of colonell hambden , and colonell grantham ; and staying for it , wee could advance no further then to a little market-towne , called kyneton in warwickeshire , sixe miles from warwicke , whither we came the saturday night , with . regiments of foot , . troops of horse , and about . dragoones , in all about ten thousand men ; there we intended to rest the sabbath day , and the rather , that our artillery , and the forces left with it , might come up to us . in the morning , when we were going to church , we had newes brought us , that the enemy was two miles from us , upon a high hill , called edge-hill ; whereupon wee presently marched forth into a great broad field under that hill , called the vale of the red horse , and made a stand some halfe a mile from the foot of the hill , and there drew into battalia ▪ where we saw their forces come downe the hill , and draw likewise into battell in the bottome a great broad company : their forces appeared to be much greater then we could possibly have conceived them to be ; by the confession of the prisoners wee have taken , they that say least , say fourteene thousand , which is the earle of lindsey's relation , who was their generall ; but others say , eighteen thousand , and above . horse and dragoones : the wind was much for their advantage , and they endeavoured to get it more , which to prevent , we were inforced to draw out our left wing to a great breadth , and by that meanes , before the battell was done , gained it wholly from them : in our right wing were three regiments of horse , the lord generals commanded by sir philip stapleto , sir william balfore , and the lord fieldings , sir iohn meldrums brigado had the van , colonel essex was in the middle , and colonell bullard with the lord generalls regiment , his owne , the lord brookes , and colonell hollis in the reare : in the left wing were . troops of horse , commanded by sir iames ramsey , their commissary generall . in this posture wee stood , when th'other army advanced towards us , the strength of their horse were on their right wing , opposit to our left wing ; in their left wing they had but ten troops , but their foot which appeared to us , divided into nine great bodies , came up all in front , and after some playing with the canon on both sides , that part of it which was on their left , and towards our right wing , came on very gallantly to the charge , and were as gallantly received , and charged by sir philip stapletons and sir william balfore's regiments of horse , assisted with the lord roberts and sir william constables regiments of foot , who did it so home thrice together , that they forced all the musquetiers of two of their best regiments to run in and shrowd themselves within their pikes , not daring to shoot a shot , and so stood : when our reare came up , and then charging all together , especially that part of our rear which was plac'd upon the right , and so next unto them , which was the lord generals regiment , and the lord brooks , led on by colonell ballard , who commanded that brigado , forced that stand of pikes , and wholly broke those two regiments , and slew and took almost every man of them : the earle of lindsey , his son the lord willoughby , and some other persons of note are prisoners , sir edmund varney , who carried the kings standard , was slain by a gentleman of the lord generals troop of horse , who did much other good service that day , and the standard taken , which was afterwards by the lord generall himself delivered unto his secretary m. chamber● , with an intention to send it back the next day unto his majesty ; but the secretary after he had carried it long in his hand , suffred it to be taken away by some of our troopers , and as yet we cannot learn where it is : the other two regiments of our rear ▪ col. hollis , and col. ballard charged those which were before them , and then the whole body of the kings foot , except two other regiments ran away ▪ by this time it grew so late and dark , and to say the truth , our ammunition at this present was all spent , that we contented our selves to make good the field , and gave them leave to retire up the hil in the night : but before we come to this , we will give you an account of what passed in the other parts of our army , before our reare came up to charge . our battell at the very first wholly disbanded and ran away , without ever striking stroke or so much as being charged by the enemy , though col. essex himselfe , and others that commanded those regiments , in chief did as much as men could doe to stay them ; but col. essex being forsaken by his whole brigado , went himself into the van , where both by his direction and his owne execution he did most gallant service , till he received a shot in the thigh , of which he is since dead : now for our rear , thus it was , before it ▪ towards the out side of it stood our left wing of horse , advanced a little forward to the top of a hill , where they stood in a battalia lined with commanded muskettiers , out of col. hollis regiment , and out of col. ballards ; but upon the first charge of the enemy they wheeled about ▪ abandoned their muskettiers , and came running down with the enemies horse at their heels , and amongst them pell mell , just upon col. hollis his regiment , and brake through it , though col. hollis himselfe , when he saw them come running towards him , went and planted himselfe just in the way , and did what possibly he could doe to make them stand , and at last prevailed with troops to wheele a little about and rally ; but the rest of our horse of that wing , and the enemies horse with them , brake through , and ran to kineton , where most of the enemy left pursuing them , and fell to plundring of our waggons , by which many of us have received very great losse , and by name , your servants that now write to you : notwithstanding their breaking through col. hollis his regiment , it was not dismayed , but together with the other regiments of that brigado marched up the hill , and so made all the haste they could to come up to fight , & got the wind of the enemy , and came on ( if we may say it ourselves , but we must do the souldiers right ) most gallantly , and charged the enemy , who were then in fight with our van , and the right wing of our horse ; and as was said before , helpt to defeat the two regiments forementioned , and made all the rest run , but two other regiments which retired orderly , and at last made a stand , and having the assistance of canon , and a ditch before them , held us play very handsomely : and by this time it grew so darke , and our powder and bullet so spent , that it was not held fit we should advance upon them ; but there we stood in very good order , drew up all our forces both horse and foot , and so stood all the night upon that place where the enemy before the fight had drawne into battalia , till toward morning that the enemy was gon , and retired up the hil : and then we returned also to a warmer place near kineton , where we had quartered the night before , for we were almost starved with cold in that bitter night , our army being in extreme want of victuals . and about or of the clock drew out againe into battalia , and so stood or hours , till the enemy was cleane gone from the hill , and then we drew again into our quarter , and there have lain this night , and purpose this day , god willing , after we have buried our dead , to march to warwick to refresh our army , wch is exceedingly wearied with so many nights watching , & so long a fight which held from noon till dark night : two particulars must not be omitted , one of sir wi. balfore , who in the beginning of the day broke a regiment of foot which had green colors , beat them to their canon , where they threw down their armes and ran away , he laid his hand upon the canon , and called for nails to nail them up , especially the two biggest which were demy-canon , but finding none , he cut the ropes belonging to them , and his troopers killed the canoneers : then he pursued the flyers halfe a mile upon execution , and after returned to sir philip stapleton , who in the mean time was charging of the red regiment , where the kings standard was , and had charged it home to push of pike with his single troope ; and they then , together with the helpe of some of the foot of our rear , utterly broke it , as you had it before : the other particular was of sir phil. stapleton , who , when five troops of the enemies horse returned from pursuit of our left wing , and from plundering some of our waggons and passed by the out side of our rear upon the left hand , went and charged them with his troop and made them run ; but they finding a gap in the hedge got away , and returned to the rest of their broken troops , where they fallyed and made up a kinde of body again ▪ if we had time we could relate unto you many more observable passages , but what you have here shal serve you til we meet ▪ this only wil we say , some of both sides did extreamly well , & others did as ill , and deserve to be hanged for deserting & betraying as much as lay in them their party , but god alone is to be praised who fought with us , & for us , & made it his own work to give the victory unto his servants : we have lost of note ▪ onely colonell essex , and we feare the lord saint-iohn wha● was dangerously wounded ; we here send you a george , found in the field by a common souldier , and bought of him for twenty shillings by one captane ski●●er ; we have promised him he shall have it againe ; we onely send it you as one of our trophees that you may see it : we beleeve you will heare of very many of great quality slain on the other side ; the kings foot are either slain , or most of them run away , and are now very weak , and should have been pursued by us , but that we must of pure necessity refresh our men for three or four dayes , and then we shall , god willing , addresse our selves to finish the work . in the mean time t is very requisite , letters from the committee should be writ into the countryes , which are southern , to stir them up that they may rise and cut them off , or assist us at least against them ; which hoping you will forthwith do ; we rest , your faithfull and humble servants . denzell hollis : ph. stapleton : tho. ballard : william balfore : io: meldrum : charles pym . our lord generall went last night to warwick , and is there very well , and had he been with us , we should not have presumed to have given you the first advertisement . his excellence did gallantly adventure himselfe that day in the from against the enemy , exposing himselfe to more danger then we could have wished . finis . notes, typically marginal, from the original text notes for div a e- these two regiments were led by sir io. meldrum , and were of his brigado . a true relation of the unjust accusation of certain french gentlemen (charged with a robbery of which they are most innocent) and the proceedings upon it, with their tryal and acquittance in the court of kings bench in easter term last published by denzell lord holles. holles, denzil holles, baron, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : or : ) a true relation of the unjust accusation of certain french gentlemen (charged with a robbery of which they are most innocent) and the proceedings upon it, with their tryal and acquittance in the court of kings bench in easter term last published by denzell lord holles. holles, denzil holles, baron, - . [ ], p. printed by j. darby for richard chiswel, london : . this item is found as wing h on reel : and as t on reel : . wing number t cancelled in wing (cd-rom, ). reproduction of original in the harvard university library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng thieves -- england. great britain -- history -- restoration, - -- sources. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - jonathan blaney sampled and proofread - jonathan blaney text and markup reviewed and edited - pfs batch review (qc) and xml conversion a true relation of the unjust accusation of certain french gentlemen , ( charged with a robbery , of which they were most innocent ) and the proceedings upon it , with their tryal and acquittance in the court of kings bench , in easter term last . published by denzell lord holles , partly for a further manifestation of their innocency , ( of which , as he is informed , many do yet doubt ) and partly for his own vindication , in regard of some passages at that tryal , which seemed very strongly to reflect upon him . london , printed by j. darby , for richard chiswel , at the two angels and crown in little-britain , . conceiving my self under some necessity , not onely to make known the innocency of a couple of young gentlemen of the french nation , whom a curiosity of seeing other countries besides their own had brought into england , and who , by a great deal of art and malice , had been drawn into danger by a robbery laid to their charge , of which they were as free as the child new born ; and also to vindicate my self of some blemish , which was endeavoured to be cast upon me at the tryal of those gentlemen in the kings bench , as if something had been done by me , not fair nor justifiable , in the carriage of that business , and some harsh usage which i received in court : these considerations have induced me to make publick the whole proceeding from the beginning to the end . but by the way , let me answer one thing which may be objected , why i have staid so long to set out this narrative , it being now almost a twelve month since these transactions were , which gave the occasion for it ? to which i say , that it was still my desire , before i made it publick in print , to be judicially cleared in my reputation ; and before i did apply my self to any higher power either king or parliament to be so cleared , to do my self first that right , to declare the truth of all passages , whereby the clearness of my proceedings might appear , i still being in the same capacity , and upon the same level , as i was , when those indignities were put upon me , and when such a disguise was put upon the whole business as the truth could not appear , that was , to give a full and true account of all in an ordinary court of justice , which i would have done then in the kings bench , but could not be suffered , and for which i knew i should have an opportunity , when those gentlemen should bring their action against the persons who had so falsly and malitiously accused them , as they have since done in the court of common pleas , and there i did them and my self that right , to lay open the whole matter , with which the court and jury were so well satisfied , that they had a verdict for four hundred pounds dammages against them ; and after that , i immediately made my complaint in the house of lords for what concerned my self , where i have received that justice , which hath abundantly satisfied me , ( my honour being the only thing dear unto me , which before had been blemished , and was there cleared ) and now i come to present it all to the publick view , and shall do it as succinctly as i may , with all candor and sincerity . these two gentlemen , one , a youth of about years of age , called valentine simon chevalier de hoeville ( that is , knight of hoeville , according to the french stile , he being destinated ( it seems ) by his parents to be a knight of malta , when they use to give them the appellation of knights , even while very young before their going thither to take upon them the vow and the habit : ) the other , his name is adrian lampriere sr des mezieres , young also , but nineteen years old , and of a good family in normandy as well as the other , both of them neighbours to my wife , and to her estate in those parts . these two young men , younger brothers , but with money in their purses , came hither , not to rob upon the high-way , but to see fashions , and have seen one with a witness not very well to be liked by them : they landed at ratcliff , the second or third of november ; and having a recommendation to lodge at master sedgewick's house , a barber , in the strand , they came thither , and there they continued , till forced to lie in a prison against their wills. though they were neighbours , and their parents of acquaintance and friends to my wife , yet she heard not of them , till they were made to cry to her out of the goal of hartford ; they excused it afterwards that they would not see her , till they had put themselves into black clothes , as most wore at that time . they kept in their lodgings , and scarce ever went out , but to their dinners and suppers at an ordinary ( as several credible witnesses made it out at their tryal ) from the day of their coming to london , until the thursday sennight after , which was the th of november . that day , they and three others of their countreymen ( whom they had fallen acquainted with here ) agreed to go see a merchant about barnet , with whom they had some business ; missing of him , they resolved to go see hatfield house . one of their company onely spake english , whose name was beauuais , themselves not one word , and the other two as little . for this journey they hired horses , in two or three places , from several persons , the best horse not worth above three pounds . these horses were brought to their lodgings upon the thursday morning , their landlord's wife passing her word for them . one of the company had no boots , a young youth , whose father is a rich merchant in paris , his name boutandon ; he lay in long-acre , and took horse there ; and it is said , they had much adoe to get him upon his horse , having scarce ever been upon one before , and boots it is certain he had none at all , nor they say never had any : and not a pistol among all five . in this equipage they began their voyage , how like to be high-way men , let any man judge , especially having no language , nor no knowledge of the countrey , or of one foot of the way in it , and horses that could scarce go out of a way when they were in it . they came to hatfield upon the market day , went into the market , saw hatfield house , and coming back to their inn , the town did rise upon them , and apprehended them for thieves , that had robbed four butchers , whose names were robert simons , robert bellingham , edward lawrence , and solomon grace , upon totternol hill in bedfordshire the monday before , being the eighth of november , between three and four of the clock in the afternoon . those butchers among the rest came , and viewed them , and having seen them , one or two of them ( as i have been told ) were very doubtful of accusing them ; solomon grace by name , saying ( as one murrel a chirurgion who did then reside in hatfield , and was present , hath assured me ) that he would not for the world say , they were the men that did the robbery : onely two of the butchers said , they thought they were them , and going into the stable , said , they thought they knew one of the horses . they kept them there all the thursday , trying to get the money from them which the butchers had lost , about pound , upon which condition , they said they would let them go , and not carry them before a justice . but they refusing it , they then upon the friday morning carried them before sir francis butler : he examined them , and heard the accusation of the four butchers , without giving them their oath ; and upon the bare saying of three of them , one , that those men were like those he saw upon the road , the other two , that they did believe them to be those that robbed them : he made his mittimus , and sent them to the goal at hartford , whither they were compelled to walk on foot : and when they came thither , were presently put into irons , and laid in a low damp room , with scarce any light to it , no bed , and only straw to lie upon ; and so they lay from friday the twelfth of november , till the sunday fortnight after , seventeen dayes , more like dogs then persons of any quality : and no body at london had known what had become of them , if that murrel , whom i named before , hearing them tell where they lodged in london , had not of himself come and given notice at that house , that their guests were in hartford goal . the examination and the mittimus follow verbatim . the examination of solomon grace , drover ; robert simmons , robert bellingham , and edward lawrence , butchers , all of the parish of edmondton in the county of middlesex , taken before me , one of the justices of peace for the county of hartford , upon the th of november , . solomon grace saith , that he riding on the road near totternol , saw five young men afoot , with their horses in their hands ; he suspecting them , made haste from them ; and being got at a good distance , stayed to let his horse drink , b●● seeing them coming towards him , he galloped away , and heard one of them say , farewel old man ; and looking about , saw them all turn back towards totternol hill , which was about a mile distance from him ; and saith , that the persons apprehended are very like those he saw upon the road. robert simmons saith , that on monday , being the eighth of november , . about three or four of the cl ck in the afternoon , upon totternol hill , in the parish of totternol , he was robbed , and had pounds taken from him , and believes the persons now apprehended , are the men which robbed him . robert bellingham , as to time and place , agreeth with robert simmons , and further saith , that he and robert simmons , and edward lawrence , riding together , espied five men coming towards them , which they judged to be thieves , and therefore putting spurs to their horses , thought to escape them by riding , but two of them overtaking him , one of the two clapt a pistol to his breast ; they searched him , and finding no money , they took his bridle and his girdle , and the other three pursued robert simmons , and he verily believes that the black man , which calls himself adrian lamperiere , is the man that pulled the bridle off his horse . edward lawrence saith , he was in company with robert simmons and robert bellingham , on the forementioned day , time , and place , and saw the five men , which they suspected to be thieves , but being well horsed , escaped . the examination of paul bovey , adrian lamperier , iohn boudandon , valentine chivalier , and guinet chateuneuf , all french men , taken before me , one of his majesties justices of the peace for the county of hertford , upon the th day of november . paul bovey saith , that he is a servant to one of my lord chamberlains sons , mr. edward montacute , but that he lodgeth at mr. munduglas his house , in george lane in kings-street , westminster . he saith he came to hatfield upon the th of november . with four of his friends , to see the earl of salisburies house , and that on monday before , he and one of his friends dined at the scottish ordinary in bedfordbury , and on tuesday they all five dined in the same place . adrian lamperier saith , that he came into england the second of this instant , and that he lodgeth at one sedgwick's a barbers , over against the maypole in the strand . john boudandon saith , he came into england the th of august last , and lodgeth in long-acre , at a semstress house over against the castle ; and that he tradeth in merchandize . valentine chevalier lodgeth with adrian lamperier , and came into england with him . guinet chateauneuf lodgeth with paul bouey , which monsieur bouey hired all the five horses , upon which they rode to hatfield . sedgwick past his word for three of the horses , who lives in the strand over against the may-pole ; and all but bouey affirm , they were not out of london since they came thither , until the fore-mentioned th of november . the mittimus . to the keeper of his majesties gaol for the county of hertford . i herewithall send you the bodies of paul bouey , adrian de lamperier , john boutandon , valentine chevalier , and guinet chateauneuf , brought this day before me , and charged with the felonious taking away twenty seven pounds from robert simmons of edmondton , and rifling robert bellingham upon totternol-hill , on the th day of this instant november , between three and four of the clock in the afternoon : these are therefore on the behalf of our sovereign lord the king , to command you to receive the forenamed paul bouey , adrian lamperier , john boutandon , valentine chevalier , and guinet chateauneuf , and them safely to keep in your gaole until they shall be thence delivered by due order of law : hereof fail not . given under my hand and seal at hatfield-woodhall this th of november , in the th year of his majesties reign . francis boteler . mr. sedgwick their landlord presently sent his son to hertford to them , and with him their servant , whom they had left in london ; and that servant they sent back , with a letter to my wife , to let her know who , and where they were : with which she acquainted me upon the monday-morning , i being at that time sick in bed . whereupon i sent for sedgwick , who came to me immediately , and brought with him the men of whom they had hired the horses , and his son , and ( as i remember ) a servant of his . he gave me an account of those gentlemen , assuring me they had not been out of london from the time of their coming thither , till that thursday ; and that he believed them to be very honest men , they having carried themselves very civilly in his house : and however , that he would take his oath , they had not committed any robbery upon monday the th of november , for he knew they were all that day in london ; which his son and servant likewise affirmed ; and the men of whom the horses were hired , said , they had them but that thursday . and he offered himself to be bayl for them , but said he could not possibly go thither to bayl them till the wednesday ; upon which day i sent one with him to joyn in the bayl ; they first went to sir francis boteler , the justice that had committed them , told him who those gentlemen were whom he had committed ; that they were persons known unto me so far , as that i would answer for them , being very well assured that they were not guilty of that robbery , as having not stirred out of london all that day on which the robbery was done in bedfordshire , at thirty miles distance from thence , nor had been out of london from the time of their arrival thither out of france , till the day before he committed them to hertford-gaol , which was three dayes after the robbery , when they went from london to see hatfield-house ; and that therefore i had sent them to him , to be their bayl : but all this would not prevail with sir francis boteler , who bade them go to some other justice , saying , it was not fit for him who had sent them to prison , to take bayl for them to let them out . he was then desired , they might not lie in irons : but he would not meddle with that neither , saying , he left that to the gaoler , who knew how to keep them . so they left him , and went to seek some other justice at hertford , and when they came thither , they found a letter there from mr. justice morton , that then they could not be bayled . the letter was directed to the gaoler of hertford as follows . sir , there being information given to my lord chief iustice and my self , that there are five high-way robbers apprehended in hertfordshire , and committed to the goal , i am desired by my lord chief iustice to require you to look carefully to them , that they do not escape out of your custody , and to iron them well : and withall to write up unto us by what names they are committed to you , and what their true names are , if you have or can discover the same ; because we are informed , that they refuse to declare what their true names are ; and the return thereof you are to send by this bearer , and to be very careful that they may not escape , or be bayled without our special order : and this we require you to perform at your utmost peril . chancery-lane , nov. . . postscript ▪ i pray you , that the bearers hereof be admitted to view the prisoners , and to confer with them . so sedgwick , and he that went with him to bayl them , returned next day to london , re infecta , brought me copies of the examination , mittimus , and of judge mortons letter : with which i presently went to serjeants-inn to the judge , and discoursing the matter with him , made it appear they could not be thieves : so he said , they should be bayled , but that he must speak first with the chief-justice , because the letter had been written by his advice , and he would give me an account of it the next day in the lords house : he came accordingly , and then told me the case was altered , since he had seen me , for that the butchers had now been with the lord chief-justice , and positively charged them with the robbery upon their oaths , so as now they were not baylable . i replied , i thought it strange , that first a justice of peace should send men to prison without any oath against them , of so much as suspition , keep them so long in irons , so hardly used ; and after several dayes lying so , their accusers to be sent for to swear to their accusation , when they had not done it before ; so to make good a posteriore , what upon their commitment before was not good . ( for certainly their imprisonment , and all the duress they had suffered , without an accusation upon oath , and to refuse bayling them , was unjust and illegal : ) and i said ; the king should be acquainted with it : which he was , and the chief-justice was sent for , and i commanded by his majesty to attend at the same time , which was the monday after in the morning : when we came thither , the chief-justice telling the king they were highway-men , and i affirming they were not , and that i would undertake for them body for body : his majesty said , they should then be bayled , and commanded the chief-justice accordingly to do it , who said he would ; but yet was it a whole week after , ere i could get them brought to the kings-bench bar to be bayled ; for just that day sennight after , upon the monday , they were brought thither , and there i entered into a recognizance of two thousand pounds for their appearance at the next assizes at bedford : and all that week they had lain in irons in their nasty hole at hertford : nay , i am credibly inform'd , that when they were brought to the side-barr in westminster-hall in the morning before the court sate , the chief-justice was angry , because they had not irons on ; which was a very great severity to poor young gentlemen , strangers , whom the king had commanded to be bayled , and whom ( if i may say it without vanity ) a peer of the realm had undertaken for , in the presence of his majesty . at bedford lent-assizes they appeared , and were indicted , but their tryal was by the king's command removed by certiorari into the king's-bench . and the first day of easter term they appeared there : whither i went not my self with them , because the small-pox was in my house , which made me keep within doors , but i sent my son , bade him do my service to my lord chief-justice , tell him the occasion why i came not , and that he was there to perform what was to be done for the bayling of those gentlemen : now it seems the use is upon such a kind of bayl , after an indictment upon a certiorari , to require four persons to answer for the prisoner body for body : so my son offered himself , and mr. sedgwick the landlord to these gentlemen , ( a substantial man , worth at least two or three thousand pounds ) and two other men , french-men , but house-keepers , and that live in a good fashion , to be the bayl : the chief-justice asked those two , what estate they had , and if they would swear , that all their debts paid , they were worth three hundred pounds , which they refusing to do , he put them by , and would not accept of them for bayl ; which i am told is not usual to be requied of such kind of bayl , that undertake body for body for a prisoners being forthcoming . well bayled they were not , but to prison they went , and there they continued until their tryal upon wednesday the th of may , at which i was present in court. that day they were brought to the barr , and the four butchers came , their accusers , and were sworn in court , of whom three charged them with the robbery ; and solomon grace was one of the three , who had refused to swear against them , when they were first seized on at hatfield , and afterwards at london when the lord chief-justice sent for him ; and i am very certain that he said afterwards in my house in my hearing , and of several of my servants , that he had not sworn against them , nor would for all the world ; ( the occasion of his coming to my house i shall hereafter relate : ) the fourth man , edward lawrence said , he saw the five thieves at a distance , but he rode for it and escaped , and could not say it was those five men at the barr. a fift man was produced , one george pettiford , who said that he rode in company with beauuais within half a mile of totternel-hill about two of the clock in the afternoon that day that the robbery was , but could not say any thing to the robbery : the butchers said also , that two of the horses which they rode upon , when they robbed them , viz. that which adrian lampriere had , a bay with a white face and white feet , and that which beauuais had , a gray , were taken with them at hatfield ; where , upon the hue and cry all the five men were apprehended . simmons said further , that beauuais was the man , that took his money from him : and bellingham said , that the black man , ( who was adrian lampriere ) when he overtook him , held a pistol to his breast , and swore to him dam-me what money hast thou about thee ? and then rifled him , and finding nothing , took his girdle , and pulled his bridle off his horses head . and the same bellingham some-while after being again asked and put to it , to repeat what lampriere said , and in what language he spake , when he came to him ; he then answered , that he said dam-me , and jabberd to him , but he knew not well what he said : so would not stand to what he had positively said before of lamprieres asking him , what money he had in his purse : and i dare affirm that at that time mr. lampriere could not have spoken so much english to have gotten thereby all the money in england ; of which one pinson ( that teacheth strangers the english tongue ; whom he hath since had to teach him ) will take his oath . this was the charge . then the prisoners being required to answer to it , mr. lampriere began to give an account of himself , what he was , and what had brought him into this kingdom ; that he was a gentleman , and came not hither to robb upon the high-way : that his friends would rather wish him a thousand times dead , than to be branded with such an infamy ; and so was going on , when the chief-justice interrupted him , and bad him speak particularly to the matters of his charge ; ( and certainly what he was saying was much to the purpose , to shew in the first place the improbability of his being guilty of such a fact , by being a gentleman , a stranger in this country , and whose friends would detest him if he had committed that fact ; ) he then only named some persons , and desired they might be heard , to prove , that he could not be guilty of that robbery , for that he was in london all that monday the th of november , when the robbery was committed upon totternol-hill in bedford shire . and first , one mr. richard compton , an ancient gentleman , and ( as i am informed ) a justice of peace in his country , was produced , who said , that he lodged in the same house with the two gentlemen at the barr , at mr. sedgewick's the barber , that he saw them there , and spake with them the saturday , understanding french a little , and saw them and spake with them the monday , which was the th of november , first in the morning , and then at two of the clock in the afternoon , and again at five of the clock the same evening : ( so then if he said true , it was impossible they should be that day robbing at totternoll-hill ; and a grave person of that quality affirming a thing in such a solemn assembly , in a court of justice is certainly more to be believed , then those butchers , even upon their oathes , who as it appears cared no more to hang men with taking a false oath , then to have knockt one of their calves in the head , and accordingly it seems the jury did believe him , ) he said further , that he saw them also the wednesday , and thought he saw their horses on thursday , which they rode on to hatfield . the chief-justice asked him , how he came to take so good notice of his seeing them the monday ? he answered , that when he heard they were taken as highway-men , and to have done a robbery such a day , he had recollected his memory , how he had seen them at times all that day in london , and had set it down in a paper , with the day of the month , and pointing to the two gentlemen at the barr , to shew he meant them , the chief-justice bad him name them , he said , he knew not their names , which the chief-justice presently laid hold on , and asked him , how then he could give such a testimony of them ? he answered , that they had told him their names , but he had forgotten them , and called them still only monsieurs . next thomas doughty , an antient man likewise , a sollicitor , was called : he said , he saw those two gentlemen in mr. sedgwick's house , saturday the th of november , and the monday being the th at three of the clock in the afternoon ( just the hour of the robbery ) and saw them also there the tuesday , and the wednesday ; the chief-justice asked him , how he came to take so much notice of them ? he answered , that he followed business for mr. sedgewick , and so had occasion to come often to the house , where he saw them . then mr. sedgewick was heard , who said , that those two gentlemen , viz. mr. lampriere , and the chevali er , came to his house the d of november , being then newly arrived out of france , and recommended by some body , that had told them there were some in it that spake french ; and that from the time of their coming to london , till the thursday sennight that they went to hatfield , they had not been out of his house above two hours at a time , and then only to their dinners and suppers at an ordinary in swan-alley : and that particularly upon monday the th of november , they were in his house all the morning till about eleven a clock , and then went out to dinner to the ordinary , and came back about one or two , and staid within till supper time , and then went to the ordinary , and came back after supper : the chief-justice asked him , where they dined upon the sunday before , he said they dined with him at his house : and that the tuesday and wednesday following they were within both forenoon and afternoon , only going out to their meals : that thursday they took horse at his door to go to barnet , with a resolution to see hatfield-house before their return . mris sedgwick ( his wife ) said , that those two french-gentlemen came to their house upon the d day of november about ten of the clock in the forenoon , brought thither by a waterman , to whom ( they having no english money ) she gave a crown for them : that they went out to dinner to the ordinary , and afterwards came back , and lay upon their beds , and she saw them no more till the next day , when she changed some french gold for them ; that from the d to the th of november that they went to barnet , they were not above two hours at a time out of doors : that mr. beauuais went with them , because he spake english : that they said if they found not their merchant at barnet , they would go to hatfield : that she passed her word for their horses ; and not seeing them come home again on thursday , she much wondred at it , and on friday in the evening one came to tell them , they were in hertford gaol : that they sent letters to the lord holles , who knew them : that three of them took horse at their door about nine or ten of the clock in the forenoon , and were to meet the two others in drury-lane : and that the horses were so bad , as they said it would be a shame to be seen upon them . i must note here that upon the naming of me , and mentioning the letter , that should be written to me , the chief-justice seemed to be moved , and said some thing which i did not well hear , whereupon i stood up , and said , my lord , i shall give you an account how i came to be concerned , and so began to tell , that they were gentlemen , neighbours to my wife in normandy , who came over hither to see the country , and falling into this misfortune , writ a letter to my wife to acquaint her with it , not to me , ( which was a mistake in the witness ; ) and so was going on to relate what i knew of the business ; but his lordship was pleased in a very angry peremptory manner to interrupt me , first asking if i was to give evidence , then bidding me forbear , and saying i must not interrupt the court. i replied , that i hoped it was not to interrupt the court ; nor to do them any wrong to inform them as as much as was possible of all passages , that they might the better understand the whole truth of the business : he answered again very angrily , my lord , you wrong not the court , but you wrong your self : and it is not the first time you have been observed to appear too much for strangers . so i was snubb'd , and sate down again . but i must say , it was a language , i had not been used to , nor i think any of my condition , that have the honour to serve the king in the quality i do of a privy-counseller . then sedgwick the son was called , who said he knew those two , viz. mr. lampriere , and the chevalier , that they came to lodge at their house , the d of november , and their continued till the th . that the day before they went their journy all five met at their shop ; and that in the morning , three of them ( their two lodgers and beauvais ) took horse there , and said they should meet the other two in their way , and so go to barnet : that upon monday the th of november , he saw the two ( the chevalier and the other ) at home about ten of the clock , and again about two in the afternoon ; and that they staid within till the evening ; and the same account he gives of them for tuesday and wednesday . his sister mary sedgwick confirms what was said of their assiduous and constant being at home ; only adds this , that upon monday morning the th she carried up a landress to them to their chamber , and that the little man , meaning the chevalier , was in his bed about ten or eleven of the clock : and that every day after until thursday she saw them in her shop , she keeping a sempstress shop . philip lemmon a poulterer saith , that as he was watering his horse in the white-hart yard upon the wednesday , mr. lampriere , the chevalier , and beauvais coming by , beauvais asked him , if he had any horses to let ? and he said , he had but one : so they went , and he with them , to one hooper , who had but one neither , and asked s. for his hire , and they proffered half a crown : he said that his horse was a bay , with a white face and four white feet , hoopers was a little gray nag , and that there was a gray mare besides hired of another man : and said , that one capt. hill had hired his horse on the monday before to go to brickhill , and kept him till the wednesday : it is to be noted , that this was the horse , which the butchers swore , lampriere had under him when he robbed them , whereas it appears by this mans testimony , that one captain hill had him that day , and full two days after , for he brought him back to london but the wednesday , the day before these gentlemen hired him . mary hooper , wife to him that let out one of the horses , saith , that she sent the little gray nagg on thursday morning to mr. sedgwick's house , and that on the wednesday before she saw those three men with her husband hiring that horse of him : and note , that this was the other horse , which the butchers swore that beauvais ridd upon when he robbed them ; whereas it appears , that none of them had this horse till three dayes after that robbery , when they went to hatfield , nor was it beauvais who had himthen , but mr. lampriere ; so they swore falsly , for it appears , neither he nor the horse were there . william wood master of the victualling-house in swan-alley , witnessed , that mr. lampriere and the chevalier dined and supped at his house monday the th of november . the chief-justice asked him , how he came to take notice , that they were there just that day ? he answered , that there was a writing sealed between two persons at his house that day , and he had since looked upon the date of it , and found it to be the th of november , and he very well remembred that those two gentlemen were then present . the chief-justice then asked him , where they dined upon the sunday ? he said , at his house . whereupon mr. sedgwick was presently called , and asked again , where the gentlemen dined on sunday ? and he ( as he had done before ) said , at his house . of this the chief-justice took notice , shewing how the witnesses contradicted one another , which he said took off their whole testimony ( or some words to that effect ; and by the way let me say , that i would not be understood to take upon me to repeat still the very identical words that were spoken by any , but i am very confident , that i do not vary a tittle from the sense of what every one said . ) the same wood also testified that they had dined and supped at his house the tuesday , and the wednesday following ; so as it appears , they continued still in london until the thursday . then charles walrond came into the court and confessed , that himself , du-val , ashenhurst , cassels , and mac-guy were the five men that committed that robbery upon the butchers at totternol-hill upon monday the th of november ; that they robbed them about the middle of the hill ; that himself rode upon a brown gelding . that it was ashenhurst that took the money from the butcher , about l. odd money : the chief-justice then stopt him , and said , that he knew he would say what ever he was bid to say ; and then asked him , if he had been indicted for this robbery ? he said , no ; and the chief-justice replyed , now sirrah you have confest enough , and you shall be indicted , or you may be indicted , one of the two i am sure he said , but which i will not positively affirm . he had said in the account he gave , that one of the butchers breaking from them and galloping away , he followed him over some plowed-lands ; and the butcher affirming it was stubble he rode over , the chief-justice made a great matter of it , insinuating , as if walrond had said false , and that he was not there at all , but meerly took this robbery upon himself at my sollicitation , upon hope of his pardon ; yet another of the butchers confessed there was both plowed-land and stubble : and what was it material which it was ? it had been no wonder , if neither could have told ; and that both had been mistaken : for hardly doth either he that rides away from a thief as fast as his horse will carry him , and sufficiently frighted withal , or the thief that rides as fast after him to overtake him , mind the ground they ride over . then sir george charnock was called in to testifie what du-val and mac-guy had confessed concerning this robbery : but first i must tell , how the butchers ( and bellingham chiefly ) had a little before given information , that they had been sent for up to london by the lord holles his warrant , and carried to du val at newgate , where du-val , mac-guy , and they were examined by two men , who pretended themselves to be justices of peace , and who after they had examined du-val , carried him to mac-guy , but first went in themselves , and staid with him half an hour , and when they came into the room they took him aside again , and spake with him in private a good space , acquainting him ( as bellingham said he conceived ) with what du-val had confessed , and promising him his pardon ; and that then mac-guy said the same things with du-val , and took the robbery upon him , as du-val had done before : i must note , that upon bellingham's saying they were sent for by me , i stood up and said , that it was done by the king 's express command . the chief-justice asked , who were those justices , and what were their names ? and used some expression to this sense , that those justices deserv'd to be sent to the gaol themselves ; and withal cast his looks upon me , and by his gesture and countenance seemed to mark out me , as the setter and contriver of a foul practice , to send those justices thither to make those condemned persons own the robbery , and acquit the french-men ; so as all the standers-by took notice of it , and looked upon me , as well as did the judge ; yet i sate still and would not say any thing in the court to vindicate my self , because i would not give any interruption to their proceedings , as the chief-justice had before told me that i did , and i believed he might again have said the same . but truly if i had done any unworthy thing even to have saved their lives , or had any design of suborning , or in any unfitting way perswading any body to do or speak for them , or had contributed any thing to the effecting of such a design ▪ i should abhor my self for it . and after i shall have gone through with all the witnesses , i shall then give an account , and a very true one , of all my transactions in that business : and will now go on with the testimony of sir goarge charnock . he said , that himself and mr. andrew blackwell counsellor at law , and mr. william sedgwick , and one of his majesties messengers , were sent by me , together with bellingham and other the prosecutors , to du-val to newgate just before his going to execution : that they found him in a room , which was not very dark , and yet had also a candle in it , so as du-val , and the butchers mighteasily discern one another , and he asked them whether they knew one another ? du-val confessed that he and his camerades had committed the robbery upon those men , and named walrond , ashenhurst , cassels , and mac-guy to have been those that were then with him at that robbery ; that bellingham thereupon swore , by god he was not the person that robbed them : and du-val upon that said , friend be cautious how you swear and prosecute innocent persons ; for men of your profession , butchers , care not what you swear against any man ; and instanced in a robbery in surry committed by him , and others , upon some butchers , which they had charged peremptorily upon other persons that were innocent . and then said further to bellingham , you may remember it was i , by the same token , that you fled from me over the plowed-lands , and my horse tired , so , as i left following you , and walked back with my horse in my hand ; and sir george charnock said , that he then asked bellingham what he said to that , and that bellingham was startled at it , and confessed it to be true , that he did ride away from them towards layton . and so was going on with his testimony , when the chief-justice interrupted him , and required him to answer a question which he would propose , which was , to know how long he had been with mac-guy before the butchers saw him ? to which he answered , that he desired his lordship he might first give a full account of what du-val had confessed , and that then he would tell all that had passed with mac-guy : but his lordship would not suffer him , but said , pray you sir george go on no further , but answer this question . whereupon he told him , that he was a little while with mac-guy , but not alone , for mr. blackwell and young sedgwick were there as well as he , and that he asked mac-guy if he was one of the persons which had committed such a robbery ? and he denyed it ; whereupon he sent for the butchers into the room , and desired them to look upon mac-guy , and see if they knew him ; which they said they did not . the chief-justice then asked him , if he took not mac-guy aside the d time ? he said he did , but mr. blackwell and young sedgwick still present , and that it was only to make him discharge his conscience and tell the truth , which he conceived it to be his duty to do , and so was going on to relate all passages ; but the chief-justice stopt him , and with much sharpness reproved him , saying , sir george you have gone too far , and have done too much already : here hath been a foul contrivance , it would be examined by what authority you have done it : and would hear him no further , nor suffer him to read du-val and mac-guy's examinations which he had in his hand and shewed unto him , notwithstanding that both sir george and my self had just before told him , that all had been done by the kings express command . then the masters mate of the ship , iohn burdick , who brought over the two gentlemen into england , was called : he said , that he took in those two gentlemen viz. mr. hoeville and mr. lampriere , and one servant of theirs aboard his ship at roven , upon the th of october ; that he landed them at ratcliff upon the third of november ; that they went into london that day , and came back and lay that night on shore in ratcliff , and the next day they went again to london , and came no more ; and he sent a seaman along with them to carry their things : the chief-justice then asked him , if he was sure , that he landed them the d of november ? he answered yes , for that he had set it down in writing and had it ready in his hand to shew . then sedgwick the father was presently called , and asked again , what day those two came to his house ? he said ( as before ) the second of november : and sharp reflections were made upon this faltering in his testimony , as if the stress of the matter had lain in this , whether the second or third of november was the day of their landing ? which no man will say could signifie any thing , to prove , whether or no they had been robbing upon totternol-hill the eighth . and so ended the tryal of those two gentlemen , hoeville and lampriere : then paul beauvais was called upon to answer for himself ; and he desired only that his witnesses might be heard , to prove his being in london the day of the robbery . and first sir steven fox was called , who being in court , affirmed upon his salvation , that he saw beauvais at a french play that very day from three of the clock in the afternoon untill seven ; ( note , this was the very time of the robbery . ) the chief-justice asked him , how he came to take notice that it was that very day ? of which sir stephen gave this account , that his wife and himself , and his daughter , and a gentlewoman that waited on his daughter , were that monday at the french play , and his daughter sitting before him in the box , looked over into the pit , and saw beauvais there , and turned back to him , saying , father , paul beauvais is not gone into france , i see him here : whereupon he said he looked over also into the pit , and did see him there ; and saw him also , and spoke to him at the end of the play , about seven of the clock : he said also , that he was then to go into france to his mother , and that he thought him gone : and for his taking such particular notice of him , and his being there that very day , monday the eighth of november , ( for that was asked of him as well as of others ) he gave this reason , that hearing so presently after , within four dayes , that beauvais was taken with some others , and committed to hertford gaol for a robbery done that day , he easily recollected himself and remembred his being that day at the french play : and this upon his salvation he declared to be true . his wife the lady fox , and their daughter , and the waiting-gentlewoman confirmed all that sir stephen had said . then one mac-don ( as i remember his name , who in beauvais's examination at hatfield is called mr. munduglas ; but whether mistaken there or here , or in both i know not ) a scotch-man , at whose house beauvais lodged , was called , who said that beauvais , and guinet the other prisoner with him , were at his house the said monday , and after dinner they went into holburn ( as themselves said ) to a barber there . and that barber he came and said , that they were at his house about two of the clock in the afternoon that day , and that guinet cut his ( the said barber 's ) hair , and afterwards that they went both of them from his house , and said they would go to a play. i must not omit one passage more upon the testimony given by a woman ( whose name i have forgot ) produced on the behalf of the prisoners , she saying she had upon the wednesday hired out a gray mare to carry one of them to hatfield , and the butchers having said that one of the thieves that robbed them the monday before on totternol-hill was upon a gray mare : the chief-justice ( to shew the colour was the same , and that so it might be thought to be the same mare ) would have the woman repeat it again , and therefore asked her , what colour her gray mare was of ? which having moved some laughter , he put it of with a jest , mentioning the old saying , that the gray mare is the better horse . and so the examination of witnesses for the prisoners ended ; for the judges said , there was not evidence against the other two prisoners , viz. guinet and boutandon , wherefore there was no need of hearing any more witnesses on their parts . and then calling the jury , the chief-justice applied himself to them , and to the summing up of the evidence , which had been given pro and con , for the prisoners and against them . in which to be short , i shall only say , that he insisted much upon the contradictions which he said he had observed in the evidence brought on the prisoners behalves , the witnesses thwarting and contradicting one another , which took off much from the credit of their testimony , and that three men had positively charged them with that robbery upon their oaths ; only he acknowledged something to have been said materially by sir stephen fox for the clearing of beauvais , and so would have differenced his case from that of the two young gentlemen whom i had appeared for , and bayled ; and what ground there was for it , let any indifferent man judge , that reades this narrative : but so he left it to the jury . the jury then went together from the bar , and after some two hours stay returned , and delivered in their verdict , not guilty : upon which mr. justice morton ( as i am informed , for i was then gone out of the court , ) said to them , gentlemen you have done well ; and if i had been of the jury , i should have done the same thing that you have done . and so the tryal ended . and now i shall give an account what hand i had in taking the confessions of du-val and mac-guy , and likewise of walrond . i was from the beginning as certain , as i could be of any thing that i had not seen with my own eyes , that the two french gentlemen were most innocent of the robbery which was laid to their charge : and i did verily believe , that du-val , who likewise was a french-man ( but spake as good english as any natural-born english-man ) had done the feat , and that the butchers might be deceived , taking one french-man for another , and really think themselves in the right , accusing those they did , and so be guilty of false swearing without knowing it : wherefore when du-val was apprehended , i did within a day or two after , take a gentleman with me , ( one mr. hull of dorsetshire ) and went to newgate to speak with him ; and when i came thither , i did send for him into the hall , which was full of people as it could hold , come out of curiosity it seems to see him , though i knew none of them except mr. charles bartue brother to the earl of linsey , who with twenty more heard all i said to du-val , and i doubt not but he will testifie the truth of what i here say , which is this , that when du-val came to me , i said this to him , mr. du-val , i am sorry that you have brought your self into this bad condition , it hath been your own fault ; and the best counsel i or any man can give you , is , to make your peace with god almighty , and make way for his mercy ; and one good help to it will be , to do all the good you can before you dye , that is , by preventing mischief as much as in you lies , discovering those persons who have joyned with you in committing of robberies , that they may be apprehended , and rob no longer ; and confessing the robberies that have been done by you , that innocent persons may not suffer for them : then i asked him if he had not done that robbery at totternol-hill , for which some country-men of his were questioned ? he then stood still a good while , with his head down , and his finger upon his mouth , musing , and said at last , that he was within three miles of the place where those french-men were apprehended , at the time of their apprehension . but i prest him again to speak to the robbery : and then he denyed it , and said he was not there : to which i replyed but this , i have no more to say to you ; god forbid you should take it upon your self if you be not guilty . this i will be deposed was the summe of all i said to him ; and so i came away , and thought no more of it , till two dayes before his execution , that one of the two french-gentlemen came and told me , that now du-val had cleared them , and confessed , that he and others had committed that robbery ; and i asked him to whom he had confessed it ; to an englishman or a french-man ? he said , to an english-man : i asked him then , if that english-man would tell me so much ? he answered , that he thought he would , and that he would bring him to me ; which i desired might be the next morning : accordingly he did bring him to me the next morning , and that man did tell me , that du-val had confessed to him , that he and four others , whom he named to him , had committed that robbery at totternol-hill ; those four he said were mac-guy , ashenhurst , cassels , and walrond : i asked him , if du-val would declare so much to any other person that should be sent to him ? he answered , that he was confident he would , for he had not revealed it to him in confession ; which made me believe him to be a romish priest ; but i took no notice of that , only said , that it would be worth the while ; and that perhaps i should use some means that his examination should be taken before he suffered . it was upon a councel-day , and i was then going to councel , where i acquainted the king with what had been told me that morning , and said besides , that i thought it would be very well , if that the butchers that had accused those french-men were sent for to be confronted with du-val before he dyed ; things might be set right , innocent persons might be freed , and the butchers themselves be disabused , that they should not , by mistaking one french-man for another , persist in their false oathes . his majesty answered , i think it will be very well , let them be sent for , and accordingly bade me call mr. secretary trevor to him , who was in the room , to whom he gave order to send for the butchers . after the rising of the councel i returned home ; and soon after one of the messengers of the chamber came to me from mr. secretary to know the place of the abode of those butchers , mr. secretary having forgot it ; and the messenger , after i had informed him of it , went his way . that afternoon sir george charnock came to my house , ( as he used to do many times ) and i told him what i heard that du-val had confessed , and what was done upon it , and asked him , if he could be at leasure to go to newgate to hear what du-val and the butchers would say one to another ? he said he would . and then considering whom i should joyn with him , i pitch'd upon mr. blackwell , a counsellor at law , who being an acquaintance of mr. sedgwicks , and using much to his house , had been with me once or twice for the business of those two french-gentlemen , i sent to him to desire him , that he would give himself the trouble of that employment , and he accepted of it . these two were utterly unknown the one to the other , and had never seen one another before ; so it had been a very weak part in me to have together engaged them in a foul contrivance , nor is it likely they would have trusted one another to have together undertaken it . that night very late , as i was going to bed , one of my servants came and told me , that the messeng er was come with the butchers , and said that mr. secretary had given him order to bring them to me : whereupon i sent for them all into my chamber , and asked them if they were the men that were robbed at totternol-hill ? they said they were ; and i told them , that it seems it was du-val that robbed them . bellingham ( who was the forward man ) presently said , no , he would swear it was those frenchmen that were taken at hatfield : i bad him take heed how he did swear , for if it was not they , he would be forsworn ; but he stood to it , that they were the men : then i asked the rest , what they said to it ? simmons , who was the man robbed , was nothing so positive as bellingham ; lawrence said , he could not swear who it was , for he rode away before they came so near as that he could discern them to know them again ; solomon grace , said these words , my lord , i have not sworn against them , nor will for the world ; they used me well whoever they were , for i rode with them a good way , and had fourscore pounds about me , and they meddled not with me , but when they left me and rode back , they bade me farewel . ( yet did this man at their tryal swear as lustily as bellingham himself ; but how he came to do so , let them give an account who perswaded him , and no question they will do it one day . ) i said only this to them , well friends , it is the king's pleasure you should see du-val , and he you , therefore if you will be here to morrow morning betimes , i shall send some with you who shall bring you to him ; and i bade my servants , who were in the room , have them down to the buttery and make them drink , where discoursing again of the business , solomon grace , in the presence of three or four of my servants ( who will be deposed of it ) said again the same thing that he had said to me in my chamber , that he had not sworn against them , nor would for the world. bellingham still obstinate , and in such a rage , as my servants afterwards told me , that he would taste neither beer nor wine . in the morning , sir george charnock and mr. blackwell , and with them mr. sedgwick's son came to my house , where they met the butchers and the messenger , and all together went to newgate : and sir george charnock and his company came back at noon , and gave me an account of their negotiation , which was this ; they told me they were first with du-val and examined him , who had fully confessed the robbery , and told the butchers of many particulars , which the butchers themselves had acknowledged true , yet would not be convinced ; but that one of them especially ( which was bellingham ) still persisted , saying , that the other men did the robbery . what du-val said , they had put down in writing , and they three had signed it ; but du-val being presently to be carried out to execution , they said , they had not put him to sign it . they afterwards asked if mac-guy was still in prison ? and because du-val had named him to have been one of the company , they would examine him , and went up to him ; and first it seems they three went up by themselves ( which yet i do protest i knew not , till i heard it said at the tryal in the king's-bench , though i do not understand that they did ill in so doing , to see what temper he was in , being a condemned man , before they would bring the butchers to him ) they do all three say , that they did not acquaint him with any of the particulars that du-val had declared , till he had acknowledged himself an actor in the robbery , confessed the whole business , and of himself told them many of the same passages which du-val had told before , he not knowing what du-val had said . it seems he was unwilling at the first to confess any thing , and said , he did not know the butchers : and they said the like that they knew not him ; but upon their pressing him a second time to discharge his conscience , he then confessed all , which they took in writing , and he put his hand to it . both their confessions ( du-vals and his ) i shewed to his majesty , and they are inserted here verbatim . the examination and confession of du-val , prisoner in newgate , taken by sir george charnock knight , mr. andrew blackwel , and william sedgwick , immediatly before his execution , being the th of ianuary / , in the presence of solomon grace , robert simmons , robert bellingham and edward lawrence , all of the parish of edmondton in the county of middlesex , butchers ; concerning a robbery committed on them at totternol in the county of bedford , by the foresaid du-val , with walrond , ashenhurst , cassels , and mac-guy . when and where the said du-val confessed and said , that the said robbery was committed by him and his above-named companions ; and more particularly , that solomon grace aforesaid being shewen unto him , did ride with them about a mile , till coming to two little houses at the bottom of the hill , they left the said solomon grace watring his horse , and returned up the hill , where they met with the other three butchers , one whereof fled upon the plowed-lands , whom the said du-val pursued upon a little gray nag , but could not overtake him , because of the weakness of his horse , which he was forced to lead in his hand afterwards at least the space of twelve-score : in the mean while ashenhurst robbed simmons of twenty seven pounds , or thereabouts , part whereof was in odd money : and that from the other nothing was taken , but a girdle , and the bridle pulled off his horses head : which circumstances of the action the aforesaid simmons and bellingham did then acknowledge to be true . and he further confesseth , that after this robbery committed as aforesaid , he did perceive one of the two persons that were robbed , to ride hard towards layton , which by the acknowledgment of bellingham was himself . and the said du-val at the time of his confession aforesaid did advise the afore-named butchers , to be cautious how they prosecuted innocent persons ; declaring , that men of their trade did not care how they swore against any man : for , a robbery was committed by him on some other butchers , and they had peremptorily changed it upon another person . and in the conclusion of his confession he put on his perriwig , affirming , that he was present at the robbery in the same perriwig so tyed up , and asked bellingham if he knew him now ? signed by us , g. charnock . andr. blackwell . william sedgwick . the examination and confession of patrick mac-guy , prisoner in newgate , taken by sir george charnock knight , mr. andrew blackwell gent. and william sedgwick citizen , the th of ianuary / , concerning a robbery committed by him , with the aforesaid du-val , walrond , ashenhurst , and cassels , in the parish of totternol in the county of bedford . patrick mac-guy confesseth , and saith , that he was with the aforesaid du-val , walrond , ashenhurst and cassels , at totternol-hill in the foresaid county , where they met with three persons , one whereof they robbed of about twenty seven pounds , of which twenty one pounds odd money was in a wallet , which was taken by ashenhurst , and had in it about thirty or forty shillings in ninepences and thirteen-pence-half-pennies : the other which he took out of his pocket ashenhurst never discovered . one man made his escape , and the other had nothing taken from him . the time of the day , about three of the clock in the afternoon . that bellingham had a green rugg upon his saddle : which be the said bellingham confesseth . simmons likewise confesseth , that there was odd money in the sum , but remembers not the quantity ; and that likewise in the wallet there was twenty pounds odd money ; and that above five pounds was taken out of his pocket . mac-guy further declares , that an old man kept them company about a mile to the foot of the hill , where he watered his horse ; and that they bid him good night old man : which circumstance solomon grace and the other three acknowledged to be true , they being acquainted with it when the said grace came to them . and the said mac-guy declared , he never was in other robbery , but this and my lord grandison's . he asked bellingham if he did not remember , that he told them , that he was a poor grasier , and had no money ? and bellingham at first replied , no , he remembred no such thing ; but recollecting himself , told them , he said , he was a poor man , and had no money . signed by us , g. charnock . andr. blackwell . william sedgwick . signed , patrick magee . i appeal now to every mans conscience that shall read these confessions , if it can be believed , that any other , but these men that knew all these particulars , could be guilty of this robbery ; and if it was possible that sir george charnock should have put all this into mac-guy's mouth , who did not only say the same things that du-val had said , but enlarged and confirmed them with many other circumstances , which the butchers themselves confessed and acknowledged to be true , and which sir george charnock could not know : as the money taken , to have been , some in a wallet , some in simmons pocket , and that the broken money was part of that in the wallet : this du-val had not specified , yet it is a great confirmation of what he had said : then one man to escape , which was lawrence . that bellingham had a green rugg upon his saddle , which bellingham could not deny , but acknowledged to be true . that solomon grace watering his horse at the foot of the hill , they should say to him , good night old man , which du-val had not said : so to tell what bellingham said to them , which he acknowledged so far , as to confess , that he said , he was a poor man , and had no money , though not that he was a poor grasier , as mac-guy had said : which was no great mistake . certainly none but they that were present and did the fact , could discover these particularities . i shall now give an account of my transactions with mr. walrond , whom i thought fit to examine , after i had seen what the other two had said : and therefore went to the gate-house , and spake with him there in the kitchin , where the lady broughton , ( who hath the keeping of the prison ) and the turn-key were present , and heard all i said to him ; i asked him , if he knew any thing of the robbery commited such a day at totternol-hil : of which i desired him but to tell me the truth ? his answer to me was this , my lord , no body as yet hath come against me to accuse me , so i have not been indicted ; and if i should accuse my self , i might bring my self into trouble , and i have not yet my pardon , which i hope i shall obtain of the kings mercy . i replied , mr. walrond , this i will promise you , that whatsoever you say to me shall not rise in judgment against you , it shall do you no hurt i do assure you ; i desire but to know the truth : for some persons are accused of that robbery , who i know are very innocent : ( and whether or no i told him so much , as that du-val had confessed it , i do protest i do not remember , they may be asked that were present , the lady and the turn-key ( i have not spoken to them since , nor will i ) but i think i did not ; however if i had , i know not that any thing would have been amiss in it , if in general i had told him , that du-val had confessed it : ) his answer to me was , my lord i will cast my self upon you and tell you all , and then did confess to me the whole matter , and told me many particulars . then indeed i did say to him , that he had done well , and had told me but what i knew before , for both du-val and mac-guy had confessed the same things ; and as to his pardon i did again assure him , that it should be no prejudice to it , happily it might be an advantage , for that i would endeavour all i could to help it forward : he afterwards at my desire put down in writing what he had said ; and i did move his majesty for his pardon , and got it passed for him , which i did for two ends ; one out of charity , he had no money to pay for it , and he deserved it for the discovery which he had made of that knot of thieves du-val and his companions , some of whom were taken , and the knot thereby broken by his means : the other end was , that he might be rectus in curia , and appear a competent witness , to discover the truth of that robbery ; but he was so terrified at the tryal with being threatned and told he had now confessed enough to be endicted for it , and perplexed with questions , that he knew not almost what he said , and left an impression ( i verily believe ) with most of the standers-by , that he was gained by me to take this robbery upon him , meerly to save the french men at the bar , himself not at all guilty of it . but how undeservedly that could be imputed to me , let my greatest enemy be judge , if this my narrative be true , as i take the god of truth to witness , that it is true , i mean for matter of fact , and for what i relate here , as said or done by me , and for my intention , that it was just and honest , without any trick or design , and all above-board , meerly to preserve innocency , and that in strangers , that wanted language , friends , and all other support and help to make their innocency appear . i have always heard , that the judge should be of counsel with the prisoner ; and that is one reason given , why he needs no other counsel , and that the law allows him none ; for the judge upon the bench ought to help him with his advice and direction , that he run not into any inconvenience , by his ignorance of the law , and of the forms of proceeding , and to take care that he be not circumvented and ruined by the malice , art , and cunning of his prosecutors , or by the weakness and simplicity of such witnesses , as are produced to justifie and clear his innocency , who many times have not wit nor elocution to tell their tale so , as to make his innocency and the truth to appear . and certainly it is the duty of a judge , and justice is as much concerned , to preserve and deliver an innocent person , that is falsly accused and unjustly prosecuted , as to condemn and punish one that is really criminous ; and that of the two is the more acceptable , and well-pleasing both to god and man. these two gentlemen were strangers , that understood not the language , either what was said to them by their judges , or against them by their accusers , or for them by their witnesses ; and they had an interpreter given them , a young student that was there in court , who did need an interpreter himself : for no body understood a word he said , scarce when he spake english , he spake so low and unintelligibly , so as they were never the nearer to understand any thing that passed , though so much concerning them , even their lives ; nor was there any care taken that they should understand any thing , the interpreter not once bid to ask them a question upon what was urged against them , to know what they would say to it . and commonly a judge will call for the examination taken upon the first commitment of a felon , and begin there ; but not a word of that , for that examination would not have been authentick , not being taken upon oath , nor they positively charged by those butchers , who only said , one of them , that they were like the men whom he saw upon the road ; simmons , that he believed they were the men that robbed him ; and bellingham himself no more but this , that he verily believed adrian lampriere was the man that pulled the bridle off his horse-head : this was well known to be no sufficient ground for the justice to send them to gaol , clap irons upon them , and put them into a room without light , with a little straw to lie upon , more like dogs , then men , especially gentlemen and strangers : nay , the second examination was not produced neither , that which the lord chief-justice took himself four or five dayes after , when he sent for those butchers to london : for though two of them indeed had there taken their oaths , and charged them positively , yet solomon grace , who at this tryal in the kings-bench swore as stoutly as any , would not swear then . and another particular i observed , that the butchers said in their evidence , that these men were taken upon the hue & cry at hatfield ; and it is very usual for a judge upon a bench , when felons are apprehended upon such a warrant , and brought to their tryal , to call for that warrant , to see the description there given of the persons pursued and apprehended upon it , whether or no it agrees with the prisoners at the bar , which gives a great light to discover if they be the men , and probably would have shewed that these were not ; nothing of this neither , but with what intention neglected , i judge not . it is certain that the prisoners were far from receiving any favour , the younger of the gentlemen , mr. hoeville , who understood not any thing of all was done or said against him , and i believe not apprehending of what concernment it was to him , out of a childish innocency hid his face and smiled a little , to see such a stir about him ; the chief-justice espyed it , and fell upon him severely for it , telling him he must not laugh there , and put the poor youth past laughing , who yet understood not what he said , only saw he was angry . the other gentleman , mr. lampriere , when he was asked , what he had to say for himself , to what the butchers had laid to his charge ( which yet was not interpreted and made known to him , nor did he at all know what it was , and yet was now to speak to it for his life ) began in his language in french , to give some account of himself ; the chief-justice stopt him , and would not let him go on , but bade him answer to the particulars , and yet took no care to let him know what they were ; which was a great disheartning to him . and usually when any man , that is not known , is suspected of a crime and tryed for it , the judge will in the first place inform himself what the man is , and whence , and of what conversation of life , and learn all particulars that concern him , as much as is possible ; which will be a great leading to his judgment of him , and of the matters that are brought against him ; but here neither the prisoner could be permitted to give an account of himself , nor no body else must do it for him . and i think there was as much reason now to proceed with circumspection , and to hear and examine , and well weigh all , for and against those prisoners , as for any that had been tryed at that bar of a great while ; there were persons of quality appeared in their behalfs , undertook largely for them ; that they were not men to do such an act , being of good families in their own country , strangers , newly arrived here to see this country , no wayes in need of money , bringing with them sufficient to defray the charge of their travels , so most unlikely they should begin here with robbing upon the high-way : but further , there were those of good credit , that did affirm upon their credits , some upon their salvation , and all of them ready to be deposed , that they could not be guilty of that fact , for that they saw them , and spake to them here in london that day , and in that instant of time , that the robbery was committed above thirty miles off in bedfordshire ; so there was an impossibility of their being guilty of it . and who accused them ? three mean fellows , of no very good lives nor conversation ; and they butchers , of no commendable occupation to have to do with mens lives , either as jury-men or accusers ; and one of these as bold an impudent fellow as ever i saw with my eyes , that is bellingham : and more than all this , it was well known , that even his majesty himself had a strong perswasion of their innocency , and was desirous that all just favour should be shewed unto them , and had himself done all towards it depending upon him , and the rather because they were strangers , who were newly come into his kingdom , and so had put themselves under his protection ; and his majesty had well considered the consequence , both as to the reputation abroad of his royal justice and good government , and likewise for the safety and freedom of of his subjects in forreign parts , who must have expected the same measure there . certainly , all this laid together , me-thinks should have made one cautious how he entertained a prejudicate opinion against them , and not to take advantage upon any mistake , especially in circumstances not at all material , as whether the gentlemen landed and came to london the second , or the third of november ? where they dined the sunday before the day of the robbery ? whether it was plowed-land , or stubble that the butcher rode over , when he ran away from the thieves , and they followed ? and because there was some disagreement in these particulars , which signified nothing to prove them either innocent or guilty , yet this was blown up to such a magnitude of contradiction , that the whole testimony of those witnesses must be overthrown by it . to say the truth , there was not the least colour of guilt upon them . therefore it is well , that their tryal received so fair an issue , answerable to their innocency ; and that they were at last delivered from the unjust and malicious prosecution of those butchers : for had that malice prevailed , and innocency been oppressed ; and strangers , who by the law of nations are to receive favour and protection , in lieu thereof had found here ▪ injustice and undeserved ruine , what would have followed upon it ? our government , and our administration of justice would have been a reproach and a hissing to forreign nations , and especially to our neighbours of france , who would have hated and derided us for it , and perhaps have made the next english-man , that should come amongst them , pay for this piece of injustice shewed to their country-men : and what evil more might have ensued , how many unconcerned innocent persons have smarted for it , no man knows . but this i know , that even these two gentlemen , however they may have seemed mean and despicable here , oppressed as they were , and persecuted in a strange country , and put to a vast charge and expence , have yet friends and kindred in their own country , who have courage enough to resent , and very likely it is that they would have resented such an injury done to their kinsmen here , and would have revenged it upon the next of the english whom they had found in france ; and as one mischief brings on another , who can tell but it might have brought on a national quarrel at last ? but god be thanked , there is now no cause to apprehend these ill consequences ; justice hath prevailed , innocency hath found protection , and all machinations and contrivances against both justice and innocency , have been defeated , and the parties wronged have received some reparation for the injuries , which were then offered unto them . for those gentlemen have since brought their action against the butchers for their unjust and malicious prosecution of them , and have recovered four hundred pounds dammages in the court of common-pleas before the lord chief-justice vaughan : and i have made my complaint to the house of peers of the lord chief-justice keeling his ( as i thought ) unfitting expressions and carriage in relation to me , particularly for laying to my charge a foule contrivance in the carriage of this business , ( as i then understood it , and i do believe all that heard him when those words were uttered by him ; but he hath since denied that he meant it of me , so i am satisfied : ) and their lordships have called him before them , and after hearing us both , have adjudged him to make me a satisfaction , ( which he hath accordingly made ) as is expressed in their order of friday the th of march , entred upon record in their journal-book , with which i shall conclude . the record is as followeth : dié veneris , decimo martii , . this day the lord holles produced several witnesses to be examined concerning his complaint ( in his petition ) of several indignities put upon him by the lord chief-iustice of the court of kings-bench , at the tryal of some french-gentlemen in the said court of kings-bench , who were there falsly accused of a robbery by four butchers in easter-term last ; after the hearing of which witnesses , the lord chief-iustice made his defence , and denyed , that he intended any thing against the lord holles , when he spake those words at the said tryal , [ that it was a foule contrivance &c. ] as in the petition is set forth : to which defence the lord holles made a short reply , and then voluntarily withdrew himself , and the lord-chief-iustice withdrew himself also . upon which the house took the whole matter into serious consideration , and ordered , that the lord chief-iustice should be called to his place as a iudge , and openly ( in the presence of the lord holles ) the lord-keeper should let him know , that this house is not satisfied with his carriage towards the lord holles in this business , and therfore hath ordered , that he should make this acknowledgment , which is to be read by the clerk , as followeth , that he did not mean it of the lord holles when he spake those words , [ that it was a foul contrivance ] and that he is sorry that by his behaviour or expressions he gave any occasion to interpret those words otherwise ; and asks the pardon of this house , and of the lord holles . then the lord chief-iustice of the court of king's-bench was called to his place ( the lord holles being also present ) the lord-keeper performed the directions of the house , and the lord chief-iustice read the acknowledgment abovesaid , onely changing the style into the first person . john browne , cleric . parliamentorum . and this being the true state of the whole business , i do appeal to all mankind to judge , if there was any colour of truth in that accusation of the french-gentlemen by these butchers , if in the least degree they were deserving such a prosecution , and much less the thing aimed at by that prosecution , the taking away of their lives ; and if i , by endeavouring ( as i did ) their assistance and preservation , deserved any blame either for the matter or manner of it . finis . a letter to monsieur van. b---- de m---- at amsterdam, written anno holles, denzil holles, baron, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) a letter to monsieur van. b---- de m---- at amsterdam, written anno holles, denzil holles, baron, - . beuningen, koenraad van, - . p. s.n., [london? : ?] letter written by denzil holles. cf. nuc pre- . caption title. reproduction of original in huntington library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng treaty of breda ( ) great britain -- politics and government -- - . - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - john latta sampled and proofread - john latta text and markup reviewed and edited - pfs batch review (qc) and xml conversion a letter to monsieur van. b — de m — at amsterdam , written anno. . dear sir , the great conclusion solomon made from all those wise reflections of his , upon things under the sun is , fear god and keep his commandments , for this is the whole of man , his whole business and his whole excellency , and therefore you and i shall always agree , that our first and great duty is the love and service of our great lord : and the second is like unto it , the love and service of our country , but as the circumstances of our times are , these things can hardly be separated or distinguished , but are included one in the other , so that he which serves his country must needs at the same time serve god. now the present mischiefs that are upon our country , do not ( as to their second causes ) arise meerly out of the common spring of boundless and restless ambition , but an implacable malice to the protestant interest , hath had a principal hand in the effects europe is now groaning under , and indeed the danger is common to us both , and doth not less threaten england then holland , though more remotely . for the french king , in growing to so great a naval strength , may be reasonably apprehended to have his eye upon england , when he shall have subjugated the spanish netherlands , which it may be he meant when he said upon some occasion , that hereafter he would bring his men to a place where there were neither gates nor bars ; success makes men bold as well against god , as their enemies , and the spirits of the greatest and wisest men are not always so guarded , but that in their gayeties their future intentions drop out of their mouthes , and wicked men do not only express their natures in their wicked sayings , by which men may take warning of them , but they live after their deaths in those sayings . but i will at this time discourse to you a little more particularly . there are but two very strong kingdoms in europe , france and england , and the reason of their strength is , that they are great in territories , and of one piece and compacted , in respect of which europe may be considered in three parts , france , england , and the princes and states confederated against france , which being a strength made up of many pieces and different interests , will always be found too weak to be opposed against the uniform force of one great kingdom , for which reason the league will come naturally so dissolve it self , and fall in pieces , unless england cast the ballance , whose interest it is so to do , and that roundly ; for neutrality in this case is both foolish and dangerous , as being against all reason of state , and in such case , he that obligeth none , disobligeth all , and the conqueror will be sure to pursue his revenge against the rival prince . i know there are three characters in hystory ascribed to the french , the first was given to the gauls their predecessors by iulius caesar , that in the beginning of a fight they were more than men and afterward less then women , and however it be true the present french inherit the same genius , yet by discipline which hath a wonderful force in all things , we see they have brought even their infantry for the most part to fight well , so that by their actions they have justly acquired the reputation of a very war like nation . the second character is that they are a people , light , inconstant and faithless . . that they are of an aspiring genius , which is so much the more dangerous to europe , as the object they have ●●●t upon is great , and that is no less than to erect an universal monarchy in europe , a thing that can never be brought to pass ; yet for all the observation we make of other men , we dayly commit the same errors , to this we may add , that the course of the present french king is full of rapid violence and high ambition , and ambition will make men wade through a world of blood in the pursuit of vain ends ; yet this i must say , that if two or three such kings should immediatly succeed one another in france ; they would in reason swallow europe , if at the same time one weak and insufficient prince should succeed another in england ; but the ballance of the world is kept up , not only by strong nations joyning with the weaker against stronger than they , but by an interchangeable distribution in succession of strong and weak princes in the same kingdome , through the promiscuous dispensation of divine providence , which is irresistable , for he must leave all his work to the man that shall be after him , and who knows whether he shall be a wise man or a fool , what a wise man gets a fool looses . now on the other side , our country-men , who are of a middle genius between the french and your country-men , are as warlike as any , but grave , plain , and honest . i know that our country-men will be always ready to say , that england is now as strong as ever it was , and that we have always been an overmatch to france , we have made two conquests of france , one in the time of edward the d. and another in the time of h. the th , but i answer , the strength of a kingdom is either proper or comparative , proper , respecting their selves , or comparative , respecting their neighbors . now if it should be granted , ( which is not true ) that england is now as strong as in former times , yet if france ( which is true ) be three times as strong as they were formerly , than england must needs be three times weaker comparatively ; england being so far from holding proportion to france in its growth , that is is much weaker now than it was years ago . and this among other things may shew you the weakness of our councils , in sitting still while the french make themselves masters of the spanish netherlands , and then as to its proper strength we must come to distinguish , for he that does not distinguish well can never judge well ; i say then the people are strong but the government is weak , from whence this consequence may be drawn , that a people may be weak under one form of administration , and strong under another , to prove which , there will need no other instance then the regiment of these three last kings , and that of the parliament interposed in the middle of them , but this will more clearly appear to you when we come to discourse of the government it self . there is no kingdome in story that i remember , in and about which so much blood hath been shed as england , except sicily , and the manner of the english hath always been to fight in small armies , without regarding the number of their enemies , who were sometimes ( as in the first conquest of france abovenamed ) above six to one ; and yet the english have not oftner been brought to contend against forreign force , then they have carried away the victory , if not in every battle , yet in the issue of the war. therefore when matchiavil labors to overthrow the common doctrine in the politicks , that money is the sinews of war , which he says is not true ; i think it is true as to england , as well as in the roman common-wealth , but in holland where you have a small territory , and your foundation is trade , money , and industry ; which produceth no martial genius in the natives , nor permits leasure , and where your armies consist of mercenaries , which will ever be found much weaker than the native militia , there money may be the sinews of war. the union of england and scotland is a mighty accession of strength to england , for besides that scotland was always a dangerous back-door to england , that mischief is not only removed , but such a member added , as by reason of vicinity naturally compounds one entire body of a great kingdom ; and this strength would better have appeared if it had at any time since the union , fallen under a prince of a martial genius , as in time to come it will fall under a vigorous administration . but to make what i said to you above more clear , that the government of england is weak , i will a little discourse of the nature of it . england then is a government compounded and mixt of the three principal kinds of government , a king , who is a sovereign , qualified and limited prince , and the three estates , who are the lords spiritual and temporal compounding the aristocratical part of the government ; and the commons in parliament with an absolute delegated power , making the democratical part ; the legislative authority is in the king , and the three estates , the power of leavying money in the commons , and the executive power in the king , but to be administred by ministers sworn and qualified , which is the reason of those two grand maximes in the law of england ; first , that the king of england is always a minor ; and secondly , that he can do no wrong . now the foundation this government was first built and stood upon , was the ballance of lands , and england being a kingdome of territory not of trade , it always was , and ever will be true , that the ballance of lands is the ballance of government ; and this maxim of the ballance is to the politicks , what the compass is to navigators , the circulation of blood to physitians , guns to an army , and printing to learning . the proportion this ballance held in the government , was formerly in the king , church , and nobility above two thirds , and in the whole people not one third : so that if we divide the times of this government into two general parts ( as it naturally divides it self ) from the norman conquest to the time of henry the th . and from henry the th to the present time ; then i say , in the first part of it , the strength of the government lay in the middle , or aristocratical part as it ought to do , for a king must be supported either by a nobility or an army , and by this means the two extreams which are the king and people ( of which extreams a government can never be compounded to live long ) were secured by the middle , for the nobility not only supported the throne , but shadowed the people from the tyranny of the princes . and to give you a clear evidence of the truth of this , both that the strength of the government was in the aristocratical part , and that they kept the ballance between the king and the people , i need only observe that all the civil wars that we ever had in england in those times , were ever made against the princes by the nobility , for their encroachments upon the people , and they always prevailed against them . but henry the th . who was a dark and suspicious prince , and an entertainer of fortune by the day rather than of any great fore-sight ( as my lord bacon observes of him ) observing upon his coming to the crown , how great an over-ballance the nobility had been to the prince , made way by laws , and other means for the nobility to make alienations of their lands , and so in seeking to cure one mischief he procured a far greater , which though it did not shew it self presently , yet in short time after it began to shake the foundations of the throne . and from this time the lands began to come into the hands of the people , and the times that followed served well to increase this beginning ; for henry the th . dissolving abbies , and monasteries , all those lands which were very great came by degrees into the hands of the people , so that the greatest part of the lands of the antient nobility , and great part of the lands of the church were in the hands of the people , who now held above two thirds of the whole lands of england . and rherefore this consequence will be clear , that the strength of the government is now in the democratical part , and to confirm this to you by example . there hath been one civil war in england , since henry the seventh , who made that war ? the barons ? no , the people made it ; then it is clear not anly that the people are the strongest part , but that they are able to make war with the king , nobility , and church ; also if there should be another civil war in england , it would not only be by the people , but whosoever be the beginners of it , the people will prevail , as far as human reason can foresee . but now least you should think the compliance of this parliament with the king , a contradiction to what hath been said , i will discourse it to you before we go farther touching them . this parliament was chosen in the year , and came in with a change of government ; now in all changes of government , there is a violent concussion of the whole body , and the people always pass from one extream to another , without being able to stay in the middle ; england therefore was then in a sick distempered condition , now it hath recovered its just temper , and is restored to health , ( as strong bodies will work out the poyson they take by degrees . ) now this parliament represented the humors and distempers of the times wherein they were chosen , and consequently their actions were violent , and they did many things afterward to be repented of , and no doubt had they done what they have done , to a designing and parsimonious prince , he might have taken the advantage of their hearts to have undone england ; for what with that great revenue , and all those most mighty aids they have given him , he might have made so great a bank , and annexed so great a revenue of lands to the crown , that he might have maintained an army , over-ballanced the nobility , and have reigned without parliaments , and so have brought england into the same condition with france , but these times are over , and not like to return ; i am without all doubt therefore , that the profuseness , and inadvertency of the king hath saved england from falling into destruction under this parliament . and as this parliament represented the sickly times , in which they were chosen , when the pople of england were in a kind of delirium or dotage ; so a new parliament would represent a people restored to their wits , cured of the evil , and steadily pursuing the great interest of the common-wealth . wherefore our court has got a new maxime , never heard of in the world before , and which is their grand arcanum of state , and that is , that the king and this parliament must never part ; for if they do , the government is dissolved : a maxim they will keep to , and was first beaten into their heads by clarendon and monk , but the true reason of that maxime , is , because they never dare call a parliament to represent the present state of england , having enough to do with the present , who were it not for the daily fomentations of court e●●edients , would even themselves revert back to the english interest . in former times we had two grand maxims in our government , one was that we should always keep the ballance of christendom equal and steddy , england only having the natural advantage to do that , and this grew up with us from the norman conquest , for above six hundred years since , the other was , that we should always make our selves the head and protection of the protestant interest , a maxim that we took from the reformation , and which we shew'd the world in queen elizabeths time , how we have kept to these two maxims of entring into a league , to subvert and destroy the protestant religion , and to break the bonds , and remove the land-marks of states and kingdoms will sufficiently declare to you . and now we have a maxime , which i am sure cannot last longer than the king lives ; for the death of the king is the death of the parliament , one thing you may observe by the way , that vigorous times bring forth strong maxims , but the principal use we are to make is this , if according to our maxim , that the king and this parliament must never part , and they must dye together ; then this government seems to be calculated only for the kings life , as the government of the protector cromwel was for his , and must a little time after suffer a dissolution . and indeed , in such a mixt government as ours is , where one of the extreams comes so far to over-ballance the other ; i cannot see but the government must dye , as it is in natural bodies , when one humour is over all the rest in to great disproportion . in every sound and healthful government , there is a steadiness of proceeding by good means to good ends , which is called conduct , but in a sickly state , as many emergencies arise , so new medicines and expedients must be applyed , and such a government may be called a government of expedients , and such a one is ours , and the great art and cunning in this session of parliament , to bring it to such an issue as is expected , is but an expedient , and expedients never hold , they only serve a turne ; cunning and tricks in states-men , argue them to be mountebanks in the politicks , and weak governments must always have a care of evil accidents and occasions , when there are causes of their dissolution . the ravishment of lucretia was not the cause of the introducing a common-wealth in rome , it was only the occasion ; if any notable occasion fall out in england , as the death of the king , insurrection , or arming of papists , invasion by the french , or such like that shall give the people opportunity to arme , the government is gone . now if you should ask what are the causes of this weakness of the government of england , i answer principally two , . the change of the ballance as i have shewed you before . . a succession of three weak princes together , where two sufficient princes succeed together , they do great things , but where two or three weak princes succeed one another , the government can hardly stand , and indeed if a weak prince immediately succeed a wise , he may do well enough , for the virtue of the wise princes government , runs through the veins of that of the foolish , and so it comes to pass , that it is a great while before the defects of his government come to discover themselves ; and i say that we never before ( for above six hundred years ) had a succession of three , either sufficient or weak princes together , and therefore i make no doubt to affirm , that if the government of the parliament had not been interposed in the middle ( as i said before ) the government must have sunk ere now ; for save what they did , we have not taken one true stop , nor struck one true stroke since queen elizabeth . it is a great truth no doubt , that foolish princes ever had , and ever will have foolish councellors , for matchiavil concluded well , when he said , that the wisdom of the prince , never takes beginning from the wisdom of his council , but the wisdom of the council always from the wisdom of the prince . but if you should ask me now whether the k. of england will effectually assist you since the parliament hath not only addressed him so to do , but has promised him sufficient supplys for the doing thereof . i answer , no , the reasons whereof are not to be rendered by way of ratiocination , there being little of reason in any thing we either do or say . . the k. will not , the will is the mistriss of the love , and a man is either good or bad , as his will is , there is an antipathy between the genius of our court , and the genius of holland . . we are wholly addicted to the french humour and interest , we cannot forbear expressing our joys upon any victory of theirs . . the d. of york who does , and every day will weigh more and more , and is in the way of all those good intentions the k. might otherwise have , is a papist , and so far from affecting you , that he hath little esteem for his own countrymen , in his nature affecting none but french and irish , with whom he seems to have a sympathy of genius , and how strangely strong wills , and misplaced affections may transporr men of weak judgments is easie for you to apprehend . . our ministers of state are against you . now to end this long letter , what conclusion shall we draw from all these premises . i doubt not but your prudence will instruct you to make a far better than any i can offer , however i will say something , if it be but to occasion you to think , the parliament and people of england have a mighty affection to your state ; these are the shapes of our court and our people , in the best manner i can present them to you , and if i mistake not , your state can never in time to come be better secured against shaking , than by the friendship of england . the parliament would send over an army sufficient to engage the french , and pay them to , as i have ground to think . wherefore in my poor opinion , the natural result might be , that the states should by an effectual declaration remonstrate to the world , the growing greatness of france , and all the mischievous consequences it draws after it , and to call upon england as the head of all protestant states for their assistance , to which the late address , and the measures the court shall take thereupon will naturally tend , only the time of such declaration cannot well be determined ; and for this the states have a president yet fresh in memory , when they publickly offered to the state their differences with the court of england , which gave the parliament occasion to recognize the matter , and what an admirable and speedy effect that produced , cannot yet be forgotten . finis . master hollis his speech in parliament concerning the articles of high treason against himselfe, the lord kymbolton, sir arthur haslerigg, mast. pym, master hampden, master strewd, exhibited by his majesty on wednesday the fift of ianuary . speech in parliament concerning the articles of high treason against himselfe holles, denzil holles, baron, - . this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (wing h ). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing h estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; :e , no ) master hollis his speech in parliament concerning the articles of high treason against himselfe, the lord kymbolton, sir arthur haslerigg, mast. pym, master hampden, master strewd, exhibited by his majesty on wednesday the fift of ianuary . speech in parliament concerning the articles of high treason against himselfe holles, denzil holles, baron, - . [ ], p. printed for francis coules and thomas banks, london : [i.e. ] reproduction of original in thomason collection, british library. eng hampden, john, - . hesilrige, arthur, -- sir, d. . manchester, edward montagu, -- earl of, - . pym, john, - , -- defendant. strode, william, or - . great britain -- history -- charles i, - . a r (wing h ). civilwar no master hollis his speech in parliament, concerning the articles of high treason against himselfe, the lord kymbolton, sir arthur haslerigg, holles, denzil holles, baron a this text has no known defects that were recorded as gap elements at the time of transcription. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion master hollis his speech in parliament , concerning the articles of high treason against himselfe , the lord kymbolton , sir arthur haslerigg , mast. pym , master hampden , master strowd , exhibited by his majesty , on wednesday the fift of iannary . london printed for francis coules and thomas banks , . master hollis his speech . master speaker , that man is no true christian , nor legall subject that cannot willingly submit himselfe , to undergoe either the displeasure of his soveraigne , or any other trouble or affliction imposed upon him in the defence of true religion and the lawes of this countrey . master speaker , my selfe with the rest of those gentlemen accused , desires under favour of this honourable house , to speake something concerning these articles of our accusation ; master speaker , treason is the heynousest crime , that can bee alledged against any subject ; the name of a traitor must needs be odious to all true protestants and obedient subjects ; you know the sentence master speaker , of sacred writ rebellion is as the sinne of witchcraft , and obedience is better then sacrifice , what can be more acceptable to god then reall performance of his precepts and commandements , what can be a truer signe of faithfull and willing subjection to a prince then cheerfull submitting to his royall commands ; ever by suffering punishment for refusing the same , if against our religion and countrey , or performance of the same , although to the hazarding of our lives and fortunes , give me leave , i beseech you , to adde something in my defence in cleering of my selfe touching those articles exhibited against mee , to those learned speeches of the other gentlemen already made concerning the same , which i hope is sufficient to cleere us all ; yet notwithstanding i desire to speak something onely touching my selfe . i hope this honourable house hath taken sufficient notice of the manner of my carriage in all businesses whatsoever the which i have had the honour to be one imployed in the same . it is a strange thing as i conceive under favour that any member elected and admitted in a free parliament , and in the same altogether agreeing , both in debates and votes with the whole councels of state should be accused , not onely as an ill-affected person to his king and countrey , but as a traitor to the same . if members of a parliament freely called by his majesties royall power and authority , freely chosen by the severall counties , cities and boroughes of his majesties kingdome ; and met together onely to consult , and consider of such things that have beene disordered in the common-wealth , as well in church as state , to rectifie and set in a right frame the distempers of the same ; to redresse and releeve the manifold pressions and tyrannies exercised in this kingdom , by wicked and pernitious persons , to bring to deserved punishment , such miscreants and caitiffes , troublers of the israel of god , procurers of discontent and dis-affection betweene a king and his liege-people , innovators of true religion . if these members , master speaker , may be reputed and taken , nay charged and affirmed to be the betrayers of their king and native countrey , then can i not discerne that there can be any safety or security in parliamentary proceedings , which concerne master speaker , is not agreeable to the tenent and rules of divine scripture which possitively concludeth , that in the multitude of counsellors there is peace , if peace may be expected from a multitude of senators , wise and learned men ; then i must conclude peace and security is to bee hoped for , from the proceeding counsels and consultations of this great and numerous assembly of judicious and learned persons , contracted from all parts of his majesties kingdome into one intire body . master speaker , can treachery or disloyalty bee once thought or conceived to be in the hearts of any of these , who are intrusted by their whole countrey , who have put themselves and all theirs , their judgements and wisdome , who are resolved even with the losse of their lives and fortunes , to defend and maintaine such statutes and lawes , as by them shall be enacted and made , with the royall assent and confirmation of their soveraigne ; for their good & tranquility in the common affaires of the state , for the defence and maintemance of the true religion ; and their just rights and priviledges ; can these i say master speaker , be suspected to be the betrayers and destroyers of the lawes of the kingdome , of the liberties of the subjects , of religion and the true doctrine and discipline thereof . master speaker , i do verily beleeve that his sacred majesty of himselfe hath no thought or any way conceves any such opinion of any of the members of this house , i rather thinke it is onely through the informations of ill minded persons , buzzing in his majesties eares our secret aymes and evill intentions against his majesty , and his kingdome ; but rather ( as it hath bin made apparent to all men , ( to prevent dangers , and the malitious designes , of the adversaries , enemies of the state , that have set themselves withall the force and power that might be , to bring to confusion and utter destruction his majesty and all his realms , on which he hath right full dominions to place themselves in power and authority , in the same to make such constitutions and ordinances , as to themselves shall seeme meete ; to establish and set up such false and erroneous worshipping of almighty god in his church , as they according to theire owne inventions , thinke most sutables to their owne fancies and desires , because wee endeavour master speaker , to nullifie and bring to naught these their malignant and unlawfull practices against god and his christ , against his sacred majesty and the whole state , against all the wholesome lawes made by the same for the government thereof in righteousnesse and holy obedience to god their prince and their countrey , therefore do they worke and endeavour what in them lyes to cast aspersions upon our good proceedings against themselves and other evill and perverse spirits leaning on them , and altogether devoted to their cause , to insence and provoke as much as they can his royall majesty against us & our indevours , so that i confidently beleeve unlesse we proceed with speed unannimously with one consent as well of the lords as our selves , to bring to triall , and judgement , these evill doers , these molesters , troublers , and hinderours of our happy prosecution in finishing and bringing to a blessed end our good designes , we must not expect any conclusion or confirmation of any law or act , tending to the perpetuall settlement of true religion , or of this kingdome in that blessed state of peace and unity amongst our selves ; traffique and society with forraigne princes and states ; that fame honour and glory of the king of this land , and all those dominions under his jurisdiction and royall subjection , as formerly we have enjoyed . and thus much master speaker , of that which i had to say concerning these articles , humbly desiring i may have speedy triall upon the same , and as i shall be found guilty or innocent , i willingly shall submit my selfe and actions to the sentence and judgement of this great and high court of parliament . finis . the long parliament dissolved holles, denzil holles, baron, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing h estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) the long parliament dissolved holles, denzil holles, baron, - . , [ ] p. s.n.], [london : . attributed to lord holles. cf. bm, dnb, halkett & laing. place of publication from wing. reproduction of original in duke university library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng england and wales. -- parliament. great britain -- politics and government -- - . - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - andrew kuster sampled and proofread - andrew kuster text and markup reviewed and edited - pfs batch review (qc) and xml conversion the long parliament dissolved . deut. . . cursed be he that removeth his neighbours land-mark : and all the people shall say , amen . printed in the year , . the long parliament dissolved . wisdom saith , there is as vvell a time to speak , as a time to be silent ; and though wise men are often hardly put to it , to know the proper seasons of the one or the other : yet where necessity hath left no choice , but absolutely imposeth one upon us , there can be no srait upon the judgment . and would to god it could not be made most demonstrable that such a necessity we are under at this time . for no less than the lavvs , and with them the lives , liberties and properties of every english-man is at stake ; and we , with all other our fellow english-men , are under the highest obligation to break our guilty silence , or with our tongues in our mouthes , see all our antient rights raped from us and our posterity for ever ; and our living child of liberty and property , slily stolen from our sides , and a dead one of vassalage and misery laid in its room . wherefore on our own behalf , and the behalfes of all other the people of england , we crave leave to speak . as reason differenceth men from bruits , so lavvs ( which are but the results of reason ) doth difference free-men from slaves : for it is lavv only which makes and secures our liberties and properties , that neither they nor we , are governed as beasts by will and pleasure ; but lays such a restrant upon the government , as that it cannot do to us , or any thing that is ours , ad libitum , but must govern as the lavv directs . hence was it that the wisdom of our ancestors laid out itself more , to legally secure our lives , liberties and fortunes from all wrongs from the government , than from the private injuries of one man to another : for they knew that occasional and temporary lavvs would easily be made to restrain these , if they did ; but to secure the other , make sure provision of frequent parliaments : for they had so glorious a value of , and kindness for our english liberty , that they would not trust the guardianship thereof to any under heaven , but to the people themselves . and therefore that they might have a continued assurance and a perpetual satisfaction that their liberties should continue in statu quo , it was ordained , that for the maintenance of the said liberties , and remedy of mischiefs and grievances that daily happen , a parliament should be held once every year , . edw. . cap. 't is true , some of our kings have omitted the holding of parliaments for a longer time than a year , and the people have silently waited , and born that omission . and in like manner so have we , notwithstanding his majesties coronation oath , and his many most solemn and oft repeated promises for the keeping of the lavvs ; and yet continuing a parliament of the prodigious length of or years , till they were not the representatives of the one half of the people of england : yet , we say , we held our peace . and though we know , that all the people of england have equal right to be represented , and could make it demonstrable , that a parliament of that length can never be the representative of half the people ; for all from years of age to , which are the major part of the people of england , both in number and vigor , and the flower and strength of the kingdom , and that are only able to defend it from any enemies or invasions , were never represented in this parliament ; and that the major part of those that were represented , never so much as thought or intended that the trust they gave , should be continued to such a monstrous duration for the gentry of england , who think themselves born to have their share in ruling as well as being ruled , judge it a very hard thing upon them , that they should be secluded from their hopes of having the honour to serve their king and country in parliament ( the greatest schole of knovvledge and improvement in the kingdom ) be bound to walk in the hall , or like laquies , wait in the lobby all their lives long , and see persons hold the seats , as if they had each of them a pattent for his place ; whereas if we had annual parliaments according to law , there might gentlemen have served in parliament since the kings restoration , which had been a great accomplishment to the kingdom ; and that there being at least gentlemen in the kingdom , and many of them of as good brains , families and fortunes as any in the house , should be debarr'd from that highest trust and honour , and should be forced to dance attendance all their dayes on only , would have provoked any nation in the world to have spoke but we . and yet for all this we were silent and resolved to wait with patience : for we considered , though we had not what we ought to have , yet it was but still a sin of omission , and did think with our selves , that some circumstances of affairs abroad , and the poverty and discontent of the people at home , would at last reduce things into their old and proper order , and that we should at length see parliaments in their antient legal channel again , and both king and people reaping the fruits and blessings , that would flow from thence . but in stead thereof , to our great amazement , all on the suddain , we found our selves plunged into a far greater extremity than ever ; for whereas before parliaments were only omitted or continued longer than the law intended , but now by the last prorogation , the king hath positively ordered that a parliament shall not be held within the time appointed by law : so that the matter is come to this narrow issue , that either this prorogation is null , and the parliament as an end , or , all our laws are of no effect . and therefore we appeal to mankind in general , and more particularly to every member of the late parliament , whether we are not reduced to an unavoidable necessity of breaking our silence . for , our law ( viz. ) . edvv. . cap. . . ed. . cap. . . edvv. . no. . . ed. . no. — . rich. . no. . do positively appoint the meeting of a parliament once vvithin a year . but directly contrary to all these statutes , this last prorogation doth order the parliament not to meet within a year , but some months after . and therefore either this prorogation is null and void in law , and consequently the sitting and acting as a parliament is at an end , or else by your sitting and acting , you will admit and justify , that a particular order of the king is to be obeyed , tho contrary to an act of parliament , of what importance soever ; and thereby at once subvert the whole government of england by law. the dreadful consequences whereof would fill any true english-man with indignation to consider . for if a particular order of the king is to be obeyed contrary to all those laws , made for holding parliaments for the maintenance of all the laws of the kingdom , and remedy of mischiefs and grievances which daily happen , then another particular order of the kings , contrary to magna charta ; and another order of the kings , contrary to the petition of right ; and another particular order of the kings , contrary to the statute de tallagio non concedendo , must also be obeyed . so that then the king may by his particular order take away any mans life , liberty or estate , when ever he pleaseth : and our condition is changed from that of freemen , to be worse than that of villaines : for tho the lord had the power over his villaines goods and liberty , yet he had not a power over the life of his villaine , that the law secured to him . but of the kings particular order contrary to law , must be obeyed , we have nothing to secure our very lives unto us . for if our lives , liberties and estates have their security from the lavvs only , and the lavvs have their maintenance from parliaments , then if a particular order of the kings , concerning the sitting of parliaments must be obeyed contrary to all these acts , made for holding of parliaments , the king when ever he pleaseth may take away both the laws which should secure us , and parliaments which should secure our laws , and then in what a condition we shall be left , ( we conceive ) both you and we may easily judge ; for now if any threatens to take away our lives arbitrarily , and without the legal judgement of our peers , or our liberties without shewing cause in law , we can answer magna charta will not suffer you . if any threaten to violate our properties , we can now answer the petition of right will not suffer you . if any attempt to raise money without consent in parliament , we can yet say no , the law de tallagio non concedendo will not permit you . but if the kings particular order contrary to these laws must give supercedias to them , and be obeyed by us , what have we to answer then ? for you throw the whole people of england on their knees to beg for their lives , and for what part of their liberties and propeties will and pleasure will please to spare them . the lavvs are the banks and fence of our lives , and all that we can call ours , so that no man can wrong us , neither in our persons nor our properties , but we can strait run to them for right , but if contrary to lavv , an order of the kings , that breaks down these banks and bounds , and like an inundation overflows all our freedom , must be obeyed , what end will there be of our miseries ? where will it stop ? or who , or what can stop it ? now t is injustice in any person whilest our lavvs govern us , to take any thing that is ours illegally from us , but if the kings order against our lavvs must be obeyed , 't will be mercy that any thing of ours is left us . nay to say truth , then all is his , and we have nothing that we can call ours , for 't is lavv alone that makes property . nor are our written lavvs and statutes only subverted , but the common lavv may also by the same rule : for if an order of the king must be obeyed , against acts of parliament of the highest importance , and most universal concern , then also may his order be obeyed against the common lavv ; and then whereas by the common lavv every member of parliament is to have days summons before the meeting of parliament , that he may have time sufficient to prepare himself to come up and attend the discharge of his duty , that there may be a full assembly , and nothing done upon the catch , nor by a party ; the kings order contrary to this law may restrain the dayes to , , , days , nay hours if he please ; and it may be easily supposed , he cannot want a quorum of each house of his own servants and officers who may dispatch what lavvs soever he pleaseth , though to the total alteration of the government , before any from the country can come up to hinder it . and not only the statute and common lavv , but lex & consuetudo parliamenti , the laws and customs of parliament , is likewise subverted . for whereas by that law and custom of parliament members and a speaker makes a house , this or any succeeding kings , may be the same power , order that , nay , or any less number shall make a house , and then a parliament may be packt with ease at pleasure . and the law and custom of parliament allowes freedom of debate , and indemnisies every member that speaks his mind , from any other judgement but that of their own bar ( from which freedom it hath the denomination of parliament ) but if a private order of the king or his successors must be obeyed , the members of either house may be brought to answer for their freedom of speech at the kings-bench-bar and from thence at a worse place , and they have no law left nor custom of parliament to relieve them . we might instance in many other laws and customs of parliament , by which extraordinary priviledges are given to the whole parliament , and to every member thereof in particular , but that would rather be sit a volumn than such a discourse : wherefore we will shut up this point with this conclusion : that if you do admit that the kings order , contrary to lavv , must be obeyed , you do admit , that the king and his successors , may hold parliaments only vvhen they please , and when they do hold them , may make them do vvhat they please ▪ nay , that they may vvith or vvithout parliaments make lavvs , or make their particular orders and proclamations go for lavvs ▪ raise money , and do to parliaments , and all the people of england , to their lives , to their liberties , in to their estates , vvhatsoever either the kings themselves , their ministers , or the vvorst of evil counsellors can desire . an admission so impudent that the french tyranny came in more modestly than this . for the french king introduced his absolute rule by courtship , he pray'd a lavv to order him to raise money but till their next meeting , and that neither but if there vvere occasion . which the parliament by inadvertency granted and have never met since . but he did not issue out an order contrary to the laws , and bare-fac'd impose his will upon them : for tho they were french-men they could never endure that : and shall english-men ▪ not by inadvertency , but upon deliberation patiently suffer the self same yoak to be put upon them , on worser tearms ? this we say not , gentlemen , by way of acknowledgement that you are in a legal capacity now , to do us either good or hurt , for your day is done , and your power-expired , but that you may not like a snuffe , smell ill after you are out . for the only reason why we more particularly direct our selves to you , is , because of the character you have born , that therefore you should not so much as seem to give prerogative the upper hand of the law , that however you lived , yet all may say and witness for you , that you dyec . well and made a worthy end. for , it is now no time to flatter you , and therefore we deal truly with you ; things are at their issue , and either you are dead or our laws are so : but our laws , we are sure are living , and we trust will live to all generations , though there are some gentlemen of your assembly , so desirous of longer life , that they labour mightily to perswade the world , that the laws we mention for annual parliaments , are repealed : but if they are , 't is this prorogation hath repealed them : forthey were declared to be in force when the triennal act was made , in caroli primi ; and so they are in the statute for repealing that triennal act , in caroli secundi , in these notable words . and because by the ancient lavvs and statutes of this reals made in the reign of king edw. . parliaments are to be held very often , &c. and how this act should title the● the antient lavvs and statues of this realm , and say , that by them parliaments are to be held very often , if they were repealed and were no laws and statutes of the realm , is wondrous strange . for if they were no laws and statutes , then certainly parliaments are not to be held very often , nor at all by them ; but that law affirms , they are the antient laws and statutes of the realm , and such laws and statutes that parliaments are to be held by them : so that you see these laws were declared in force , even by your se●ves in the sixteenth year of his majesties reign , and we are sure there hath been no new parliament since to repeal them , however we hope the whole nation will strictly observe every man among you ▪ that to sit a little longer yet , would sacrifice to this prorogation , the very best laws ( and in there all the laws and liberties ) of england . therefore let not any delude you with such little pittiful objections , that you your selves are ashamed to acknowledge for your own ; and urge them only as other mens opinions for these sorry doses will never do , no nor the highest cordial they can propose , your voting your selves alive : for miracles are ceased , and if they were not , raising a dead parliament to life again , is beyond the power of any mortal , and one of those works that ceaseth for ever . 't is very strange to see how these gentlemen wriggle about , and like drowning persons catch at every straw to save them . yesterday they urged these laws were repealed , and now they see they can do no good there , to day they acknowledge that they are in force , and apply all their wit to prove that the laws may stand , and this prorogation too : for say they , those laws do appoint , we shall have a parliament once a year , and so we shall have for all this prorogation ; for we had a parliament in , and we shall have a parliament in ; this is a very fine account : but according to this computation there may be , , or months as well as in a year : but he is a very novice in our law , that knows not , that whereever a year , every year , vvithin a year , yearly , or once a year , is mentioned in any statute , it is to be understood tvvelve months only , and not one day more or less : as may be seen in the statutes of usury , recusancy , conformity , appeals for murder , and all other statutes , wherein a year is expressed . and it is more repugnant to reason to understand by a year in these statutes more than tvvelve months , than in any of the former ; for the following words , and more often , if need be . and the urging the reason of their frequency ; for the maintenance of the lavvs , and the remedying of grievances and mischiefs vvhich daily happen , do plainly shew , that the laws do not intend that parliaments should alwayes be intermitted for so long as tvvelve months , but never longer . but these gentlemen would rather alter out very language , and the common acceptation of words , than cease to be a parliament . and therefore this last prorogations is null in law , in ordering a parliaments shall not be held till fifteen months , contrary to the laws that order , a parliament shall be held once every year , and if the prorogation be null , you are null'd therewith . now do not think to salve your authority by your own vote , for we and all men must tell you , that no parliament that is not an●ocedently so , can make it self a parliament by vote , and nothing can be the cause of it self . vvell but now since neither the laws are recealed to make room for this prorogation , nor the prorogation and the laws are able to stand both together , these gentlemen hunt to find out a third expedient , and say , that if the prorogation be null , because of its illegal length of time , yet they are not thereby dissolved but only dismissed sine die , and to be recalled by the kings proclamation ; a subterfuge as vain as either of the former , and altogether as unable to answer the ends of those that urge it ; for if the kings prorogation was null in law , because it ordered the meeting of the parliament at a day of such an undue length as was contrary to the law , then how can a proclamation , ordering their meeting on the same day , make it good in law ? for the only thing illegal in the prorogation was the length of time ( for it s not to be doubted but his majesty may prorogue parliaments , so it be not contrary to law ) and to think that a proclamation for meeting at the same time ( or indeed at any time ) can cure the illegality of the prorogation , is but an absurd opinion , et uno absurd dato , mille sequuntur . and therefore we affirm , that a prorogation or dismission sine die , was one of the antient forms of dissolving parliaments , for a parliament so dismissed , never sat again , nor was it ever done in any other case . and good reason , for otherwise all our laws would be utterly eluded : for if the laws appoint a parliament shall be holden once even year , and a prorogation comes and sayes no ; a parliament shall not be held till a year and a quarter , and after you see this prorogation null and void in law , you can slide your selves from under the proroga●ion ( and are content that there should be a nullity ) and shelter your selves under a sine die , and urge that on your behalf : we say ▪ could you do this . our laws were of no avail but meer cyphers only . and therefore we say first , that it is not really so ▪ for you were prorogued to a certain day , and not sine die ; and if the law make that day ( to which you are prorogued ) as impossible ever to come , as the thirtieth of february , we cannot help that ; but it is the only day upon which your being stands , and if by the law that day can never come , then by the same law you can never come . but were it so , yet still it were but as broad as long , for a prorogation sine die , is nothing but a dissolution neither , for there is no other sine die in nature but that : so that look which way you will , whether on the prorogation of the fifteenth of february , or a dismission sine die , the law shews you nothing but death ; and you love to be members of parliament a great deal better than we , if you will adventure your lives and fortunes , to sit after the lavv hath put a dissolution on you . edvvard the fourth held a parliament the eighth day of april , in the thirteenth year of his reign , which he prorogued to the sixth of october following , but being desirous to call them sooner , if the urgency of his affaires should require it , no other expedient could be found to enable the king to do it , but by a special act of parliament to adjorn them to that time , and yet if occasion did require to summon them sooner , which act was made with that caution and legal formality , that in the very record of that prorogation there is a salvo for the act of parliament , and the act it self recited , in haec verba , an the record . rot ▪ parl. ▪ edw. . cap. item , codem octavo die ap●ilis , post gratiasreditas ex parte dicto , domini regis , & ejus mandato per venerabilem p●●re , willm . bathon . & wellen , episcopum cancellarium praefact is dominis & omnibus tunc ibidem presentibus , de eorum bonis diligentiis & laboribus circa ea quo sibi ex parte regis injunct a fuerunt exhibitis & oftend . idem cancellarius ex mandato ejusdem dom. regis ulterius declaravit qualiter idem dominus rex , sacrum tempus quadragesimate tunc instans & fere praeteritum , ad sacrum festum paschae , tune quasi in proxinie existens , quamque , necessarium atque placabile esset , tam dominis quam communibus , dicto parliament to intendentibus ad suas libertates existere , aliasque causas urgentes , ipsum dominum regem & regnum suum angliae concernentes , debitae discussionis libramine , ponderans parliamentum suum predictum , usque sextum diem octobris tunc proximum futurum , ad idem palatium apud westminster , quo tunc erat tentam , tunc ibide●●te●end . ●ensuit prorogand . & adjornand . & illud realiter sic prorogavit & adjornavit , omnibus & singulis quorum intersuir firmiter injungendo quod ad dictum sextum diem octobris apud dict palacium westmin . excusation quaerunque , cessante personaliter convenient in negotiis dicti parliamenti processurus . — salva semper praefato domino regi conditione in quodam actu authoritate dicti parliamenti super hujusmodi prorogatione & adjornatione edito contenta : cujus quidem actus tenor de vero in verbum hic subsequenter inseritur , viz. formsmuch as the king intendeth to prorogue and adjourn this his present parliament to this his palace of westminster , unto the sixth day of october next coming , then , there to be holden . it is ordained by the authority of this present parliament , that all-be-it any such prorogation and adjournment be had , yet if for any urgent cause moving his highness , it shall be thought to the same behoveful , to reasume , reassemble , and have appearance of this his said parliament , at any time or place , within this his kingdom , asore the said fixth day of october , that then at his pleasure he may direct his several writs to the sheriffe or sheriffes of every shire of this his realm to make open proclamation in every shire-town , that all lords spirituall and temporal , being lords of parliament , and all knights of shires , citizens of cities , and burgesses of broughs returned in this present parliament , personally appear at such day and place , as in the same writs of proclamation shall be specified : so alwayes that every of the said writs be made out twenty days or more before the said day of appearance limited by the same : and that such appearance at that day and place , to be limited by the said writs , be taken and had of like force and effect , as if the same king had prorogued and adjourned this his said parliament unto the same day and place . and that then the said prorogation and adjournment to be had to the said palace of westminister unto the said sixth day of october to be void and of none effect . and in this instance , there are these two things observable . first , how careful our ancestors were in all their concessious to their king ; that they did no : damage their laws ▪ and thereby hurt the people , who had entrusted them . and next . that that was a very learned age and had the assistance of littleton and hussey two as great lawyers as any one time hath produced . and certainly all this trouble , care and pains , both to king and parliament might have been saved , if either that age or those learned men could have found out the expedient of a parliament prorogued or adjourned , sine die , but there was none . and t is well that there is not ; for if the king by prorogation , sine die , may hold a parliament but in fifteen months , then by a prorogation sine die , he may not hold them if he please but in fifteen year , nay not hold them ( if he please ) but in fifteen year , nay but in twice or thrice fifteen if he will. and on the other hand . if the king by a prorogation sine die , may hold a parliament , then he may call them in together again in or dayes , when all the country members are returned to their homes , and none can attend by reason of the suddennesse thereof , but such as the king may hope for any thing from ( as we have already intimated ) : so infinite are the mischiefs that would attend a sine die prorogation , that , god be thanked , our laws and ancestors would never abide it ( in any other sencethan we have said ) and therefore do not think the people of england will ever do that indignity to their lavvs ! that dishonour to the finger of god , which by so stupendious and over-ruling a providence hath dissolved you ! or that dis-service to their own interest , as ever to acknowledge you any more for their representative . sine die , being thus unable to help in this matter , these gentlemen are forced to return again to the prorogation , as seeing a uecessity to stand or fall by it , and either to make that good , or to be totally routed , and therefore their last labour spends it self in tumbling the records , to find out presidents , as if presidents could prevail against law , and 't is boasted by them ( with mighty joy ) that they have at last found out one president in q. eliz reign , wherein a parliament was prorogued for three dayes more than a year . but we say , this is no president at all , but only one illegal fact , and that there is but one in nigh years : and prorogations make very little for the honour of those that urge it . but if this were a president , what would it avail , since it is directly contrary to so many known lavvs ▪ for if a president can make an illegal thing lawful , there is no wickedness under the sun , but may bring a president to warrant it . and therefore the greatest sages of the law have alwayes asserted , that the lavv is the met-vvand and standard of presidents ; and that all presidents against the lavv , vvere to be rejected as vvicked and unvvarantable , or else you give presidents the mastery over the lavv ; nay null the lavv , and set up a new rule of our practice . we have presidents , and very an●ient presidents to that that this kingdom was of the romish profession ; what is it therefore warrantable for us to follow those presidents contrary to law and turn papists ▪ we have a president that king john , contrary to law , resign'd the realm of england to the pope , is it therefore lawful for any other king of england to do the same ? vve have also a president that queen eliz. ( from whence your president is fetch'd ) contrary to law ▪ imprisoned some members of the house of commons for speaking their mind in parliament , is it therefore ever the more lawful for the king and his successors to violate your priviledges ? vvherefore unless the presidents be lawful , it is not lawful to follow your presidents , unless you your selves would be made presidents to future ages . and therefore it was well said by the lord chief justice brampston , we are not to stand upon presidents , but upon the lavvs , and the presidents look either the one vvay or the other , they are to be brought back unto she lavv. and the lord justice vaughan tells you thus ; though presidents have been so often that they may be called by the name of usuage , yet that , if usuage hath been against the obvious meaning of an act of parliament , in the vulgar and common acceptation of the word , then is it rather an oppression of those concerned , than an exposition of the act. vvherefore unless you will stand upon record as the oppressors of all the people of england ( for no less than all the people of england are concerned herein ) you can never admit of any president against the obvious meaning of not one act alone , but so many acts of parliament , and that not in a wrested sence , but in the plain vulgar and common acceptation of the word . your duty lying thus manifestly before you , there is nothing worthy a man that can obstruct you . for it is only the single fear , that the people will not choose you again , that canmake you deny it , and to deceive any , in thetrusts they have given you , because you doubt they will credit you no more , is but an odd kind of honesty , neither does the policy thereof look over strong , for to be sure your betraying your trusts , in opposing the laws and the interest of the people , is never the way to be chosen again . but on the contrary , your stout and faithful standing for , and defending them , is an infallible way to have your trusts renewed . and to think to keep it against the peoples will , is a weakness too great for any man , that would be reckoned more than once removed . — pray remember your elder brother , the former long parliament , they would sit against the peoples desire , and yet , though they had a special act of parliament for their sitting , and an army to back that act , yet you see when the peoples minds were turned against them , do they and their army what they could , the people never left till they had unroosted them ; they took such vengeance on them , as cost many of them their lives , their , liberties , and the fortunes of almost all of them : all which it is possible might have been saved , had they observed their season , and instead of imposing themselves , let the people have had their yearly representatives ; for lack of which , the dissatisfaction and revenge of the people was engaged against them , so that it was engaged against them , so that it was themselves that first pull'd dowin ruine upon their own heads . for by their long sitting , they wearied the roundhead , as you have done the cavalire , and the worst omen that befa●ls a government , is , when its friend falls from it , and look what was the reason that turned the gentlemen that were on the parliament side against them ▪ and you will find the self-fame reason turneth your old friend against you ; for as they stomack'd it then , to see a few of themselves , perpetuating their own rule to the exclusion of all others so do we now . and if the nation would not endure that parliament ( though they had a law for their sitting , because of their strange and unwonted length , can you think the same people will abide your longer sitting in express and utter defiance of all the laws of the kingdom ? and shall it be told to future generations , that england chose a parliament in sixty one , who after they had sate fifteen years , and were by an illegal prorogation , legally dissolved , yet out of a wretched unconscionable desire to sit yet longer ; betrayed the people that chose them ▪ and sate upon a prerogative account , contrary to the knovvn laws of the kingdom . nor let any man think it strange that we account it treason for you to sit and act contrary to our laws : for if in the first parliament of richard the second , grimes and weston , for lack of courage only , were adjudged guilty of treason for suarendring the places committed to their trust ; how much more you ? if you turn renegadoes to the people that entrusted you ? and as much as in you lies surrender , not a little pittifull castle or two , but all the legal defence the people of england have for their lives , liberties and properties at once . ne●ther let the vain perswasion delude you that no president can be found that one english parliament hath hang'd up another , ( though peradventure even that may be proved a mistake ) for an unpresidented crime calls for an unpresidented punishment , and if you shall be so wicked to do the one ( or rather endeavour to do , for now you are no longer a parliament ) what ground of confidence you can have that none will be found so worthy to do the other , we cannot understand , and do faithfully promise ( if your unworthyness do provoke us to it ) that we will use our honest and uttermost endeavours whenever a new parliament shall be called ) to choose such as may convince you of your mistake . the old and infallible observation , that parliaments are the pulse of the people , shall loose its esteem , or you will find that this your presumption was overfond , however it argues but a bad mind to 〈◊〉 because it believes it shall not be punished . but all grand offenders against the law ever were of that belief , but it hath faild them very oft , for andrevv horn in his mirror of justice , tell us , that alfred hanged darling . segnor , cadvvine , cole and judges more for judging contrary to law : and yet all those false judgements were but in particular and private cases and concernments , not upon the laws themselves . and our histories of later times say , that sir w. thorp , chief justice of the kings bench , in the reign of edvv. . for receiving but one poor hundred pounds in bribes , was for that alone , adjudged to be hang'd , and all his lands and goods forfeited , and this reason rendred for his condemnation , becruse thereby , as much as in him lay , he had broken the kings oath made unto the people , vvhich the king had entrusted him vvithall . and in the th year of richard the second , the lord chief justice trisilian was hanged drawn end quartered , for giving his judgement that the king might act contrary to one particular statute . and black the kings council , and uske the unde-sheriff of middlesex , with more persons of quality were also hagng'd for but assisting in that case . and in the first year of hen. . empson and dadley ( notwithstanding they were two of the kings privy council ) were hang'd for procuring and executing an act of parliament , contrary to the fundamental laws of the kingdom , and to the great vexation of the people . and in the of hen. . cardinal woolsey was accounted guilty of high treasor . for endeavouring to sublert the common laws of the land and to introduce the civil law in its stead . divers later instances might be given , but that it is not prudence to follow truth too close at the heels , neither will it be necessary to name more , if these are well considered ; for if the lord chief justice thorp , for receiving the bribery of a hundred pounds was adjudged to be hanged , as one that had made the king break his oath to the people , how much more guilty are they of making the king break his coronation oath , that perswad him to actagainst al the laws for holding parliaments which he is sworn to maintain ? and if the lord chief justice tresilian was hanged , drawn and quartered , for advising the king to act contrary to one statute only , what do they deserve that advise the king to act not only against one statute , but against all thess antient laws and statutes of the realm ! and if blake the kings council , but for assisting in the matter , and drawing up inditements by the kings command , contrary to law , though it is likely he pleaded the kings order for it , his duty to do it , and that it was but pro forma , what he did , yet if he was hang'd , drawn and quarterd for that , what justice is due to them that assist in the total destruction of all the laws of the nation ▪ and if uske ( the under-sheriffe , whose office t is to execute the laws ) for but in deavouring to aid tresilian , blake and their accomplices , against one single statute , was also with more hang'd drawn and quartered , what punishment do they deserve , that ayd and endeavour the subversion of no less than all the laws of the kingdom ? nay , if empson and dudley tho they had an act of parliament on their side , yet that act being against the known laws of the land , were hang'd as traitors for putting that statute in execution , and if woolsey was accounted guilty of high treason for endeavouring to exchange the laws of england for the civil laws ? how great must be your condemnation , and of how much sorer punishment must you be judged worthy if you shall but endeavour to sit and act as a parliament upon this prorogation ? for you have not only no law to plead , as dudley and empson had , but are directly contrary to all our laws , of every kind : and you will thereby not onely atempt to exchange our lawes , as woolsey did , but to put us into a state of no law at all . having thus faithfully discharged our duty , and layd yours before you , that through no inadvertency you may be surprised we have done . not at all doubting the issue thereof ; for , if it be his majesties honour and true intrest to keep the lawes , he hath so solemnly sworn and protested to do , as assuredly it is ; we have no reason to doubt him , and if those worthy patriots in the lords house whose names can never be mentioned , with that honor , they deserve from the people did desire to addrese to his majesty fifteen months agoe for the parliaments dissolution , and since , all the resons that moved them thereto at that time , do still continue , and that this main reason is now also added that this parliament can sit and act no more as a parliament without the total subversion of the laws , and the very constitution of the government of england we have no reason to doubt the lords . and if the commons shall but consider from whence and for what end they received their trust we have no cause at all to doubt them neither , for certainely among them as well as among the lords , are a greater number of persons of honor wisdom and fortune , then of those that are indigent of all , and that will think with themselves , that if not above halfe the people of england are represented by them , and that two thirds of that halfe that are represented are weary of their siting and desirous of their dissolution , and that . parts of do believe they can never more legaly sit as a parliament , and that sixth seem doubtful ; and since that worthy part of the commons , can get nothing to themselves in particular by sitting , and that if , , or years hence , they should by another parliament be found to have usurped the legislative power of england , to the ruine of our lawes , and the destructon of the people , they would be sure to answer it , with no less then their lives and fortunes ; and since if they should presume to fit so many person of quality , are resolved not to pay any taxes , or obey any other of their acts without first trying their validity by due process of law. and what pleasure or aduantage his majesty can take , or they themselvs can have , in their sitting as a perliament , when their very jurisdiction is like to be questioned in all the courts of england ? and whether it be likely that english juries should find against their neighbours and therin against themselves , to uphold a parliament that hath so many yeares imposed it self upon them , contrary to their desire , and that novv is legally dissovled , we leave to themselves to judge . finis . notes, typically marginal, from the original text notes for div a -e rot. parl. . edv. . no ▪ . a speech made by the honourable denzel hollis esquire at that time, when the judges had their charge, concerning sir randol grew . holles, denzil holles, baron, - . this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (wing h ). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing h estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; :e , no ) a speech made by the honourable denzel hollis esquire at that time, when the judges had their charge, concerning sir randol grew . holles, denzil holles, baron, - . [ ] p. printed by e. g. for l. blaikelocke ..., london : . reproduction of original in thomason collection, british library. eng crew, randolph, -- sir, - . great britain -- history -- charles i, - -- sources. a r (wing h ). civilwar no a speech made by the honourable denzel hollis esquire; at that time (when the judges had their charge) concerning sir randol crew. holles, denzil holles, baron b the rate of defects per , words puts this text in the b category of texts with fewer than defects per , words. - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion a speech made by the honourable denzel hollis esquire ; at that time ( when the judges had their charge ) concerning sir randol grew . london , printed by e. g. for l. blaikelocke , and are to be sold at his shop next temple barre , in fleet-street . . when the charge went up against the judges , i was appointed to carry up the desire of the house concerning , s. r. c. my lords , these gentlemen have represented unto your lordships the sad object of justice perverted , liberty oppressed , of judgement turned into wormewood , the lawes which should be the barres of our gates , to protect us , keepe us , and all that is ours in safety , made weake and impotent , to betray us into the hands of violence , instead of props to support us , become broken reeds to deceive us , and runne into our sides when we leane upon them , even so many snares to entrap and entangle us . and all this by the perfidiousnesse of those , who are entrusted with our lawes , who call themselves the guardians and the interpreters of the law , but by their accursed glosses have confounded the text , and made it speake another language , and another sence , then ever our ancestors the law-makers intended . our ancestors made lawes to keepe themselves , their posterity after them in the possession of their estates ; these judges could make the law it selfe rob us and despoileus of our estates . were we invaded and persecuted at any time for pretended crimes , or rather because they were free from crime ? and did we put our selves upon a legall defence , and shelter our selves under the buckler of the law , use those lawfull weapons , which justice and truth and the common right of the subject did put into our hands ; would this availe us ? no , these judges would make the law wrest our weapons from us , disarme us , take away all our defence , expunge our answers , even binde us hand and foot , and so expose us naked & bound , to the mercilessenesse of our oppressors ; were our persons forced and imprisoned by an act of power , would the law relieve us , when we appealed unto it ? no , it would joyne hands with violence , and adde bitternesse to our sorrow ; these iudges would not heare us when we did cry , no importunity could get a habeas corpus ; nay , our cryes would displease them , and they would beat us for crying , and overdoe the unjust iudge in the gospell , with whom yet importunity could prevaile ? my lords , the commons of england finding themselves in this lamentable condition , by the wickednesse of these iudges ; it is no wonder that we complaine of them ; it is no wonder , if the knights , citizens , and burgesses assembled in parliament , have sent up some of their members to stand upon mount ebal to curse these iudges ; to denounce a curse upon them who have removed our land-markes , have taken away the bound stones of the propriety of the subject , have left no meum & tuum , but he that had most might , had most right , and the law was sure to be of his side . it hath beene the part of these gentlemen who have spoken before me , to pray for justice upon those men , who would not doe justice to others . my lords , i come upon an other errand , and yet for justice too , for there is justice upon mount gerezim , as well as upon mount ebal . it is as great a point of iustice to give a blessing , a reward , where it is due , as punishment where punishment is due : for reward and punishment , praemium & poena , be the two legges that iustice walkes on , and reward is her right legge , the more noble and the more glorious supporter of that sacred and divine body , that which god himselfe the fountaine of justice doth more delight in . tardior ad poenas deus est , ad praemia velox , punishment is good , as phisick in the consequence , reward as wholesome and nourishing food , in the essence ; the one we do , because we must do it as necessary , the other , because we love to do it as being pleasing and delightfull . your lordships then , i doubt not , will as willingly joyne with the commons , in doing good to a good iudge , as in punishing of the bad . my lords , we honour them and reckon them martyrs for the common-wealth , who suffer any thing by desending the common right of the subject , when they will not part with their own goods contrary to law ; when indeed their private interest goes along with it , or rather before it , and the publique concernement seemes to come but in a second place , such were those many , whom these iudges have oppressed ; yet these men we magnifie and judge worthy of praise and reward . but what honour then is he worthy of , who meerely , for the publick , hath suffered himselfe to be divested and deprived of his particular , such a iudge as would lose his place , rather then do that which his conscience told him was prejudiciall to the common-wealth : is not he worthy of double honour ? and this did that worthy reverend iudge , the chiefe iudge of england at that time , sir randol crew , because he would not by subscribing countenance the loane in the first yeare of the king , contrary to his oath and conscience , he drew upon himselfe the displeasure of some great persons about his majestie , who put on that project , which was afterwards condemned by the petition of right , in the parliament of tertio as unjust and unlawfull , and by that meanes he lost his place of chiefe iustice of the kings bench , and hath these fourteene yeares by keeping his innocency lost the profit of that office , which upon a just calculation in so long a revolution of time , amounts to ● or thereabouts . he kept his innocency when others let theirs go , when himselfe and the common-wealth were alike deserted , which raises his merit to a higher pitch ; for to be honest when every body else is honest , when honesty is in fashion , and is trump , as i may say , is nothing so meritorious ; but to stand alone in the breach , to owne honesty when others dare not do it , cannot be sufficiently applauded , nor sufficiently rewarded . and that did this good old man do : in a time of generall desertion he preserved himselfe pure and untainted . temporibusque malis ausus is esse bonus . my lords , the house of commons are therefore sutors unto your lordships , to joyne with them in the representation of this good mans case unto his majestie , and humbly to beseech his majestie to be so good and gracious unto him , as to give him such honour ( the quality of this case considered ) as may be a noble marke of soveraigne grace and favour , to remaine to him and his posterity , and may be in some measure a proportionable compensation for the great losse he hath with so much patience and resolution sustained . finis . a grave and learned speech or an apology delivered by denzill hollis esq; in a full answer to the charge against him, from his excellency sir thomas fairfax and the army: for the clearing of himselfe in every particular crime charged against him in the papers. holles, denzil holles, baron, - . this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (thomason e _ ). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing h thomason e _ estc r this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (thomason tracts ; :e [ ]) a grave and learned speech or an apology delivered by denzill hollis esq; in a full answer to the charge against him, from his excellency sir thomas fairfax and the army: for the clearing of himselfe in every particular crime charged against him in the papers. holles, denzil holles, baron, - . [ ], p. s.n.], [london : printed in the yeare. . place of publication from wing. annotation on thomason copy: "july th". reproduction of the original in the british library. eng holles, denzil holles, -- baron, - . england and wales. -- parliament -- expulsions -- early works to . impeachments -- england -- early works to . great britain -- history -- civil war, - -- early works to . a r (thomason e _ ). civilwar no a grave and learned speech or an apology delivered by denzill hollis esq;: in a full answer to the charge against him, from his excellency holles, denzil holles, baron c the rate of defects per , words puts this text in the c category of texts with between and defects per , words. - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion a grave and learned speech or an apology delivered by denzill hollis esq in a full answer to the charge against him , from his excellency sir thomas fairfax and the army : for the clearing of himselfe in every particular crime charged against him in the papers . printed in the yeare . . a grave and learned speech , or an apology delivered by denzill holles esq &c. mr. speaker : it is my unhappinesse to stand accused by a charge against me , in which i doubt not ( and so the rest of the gentlemen under this mis-fortune with me ) to give a satisfactory accompt of innocency therein : and for that which concerns my self , i shall give this answer to it : i cannot undertake to charge my memory ( at this time ) to give particular and positive answers to those passages at oxford , which received a full debate in the house of commons two yeares since ; i doe not finde any new matter in this charge , save what i have ( together with mr. _____ who was a commissioner with me there ) then gave accompt of , when we were accused by the lord savill ; and this house was so fully satisfied ( after a full debate held severall daies thereon , that it was resolved upon the question , july . . ( by this house ) that the matter of the report should be totally and finally laid aside . and for the truth hereof , to manifest my innocency , and discover the malice of the lord savill , who was then my accuser , i shall refer my selfe to the papers which concerne my then examinations , and the resolutions of the house thereon . and thus much i am informed since concerning his lordship , that he hath been much troubled at what he then did ; and ( to testifie his remorse for the injury he then did unto master _____ and my selfe ) his lordship sent a person of honour , not long since , to me , to give me assurance thereof , further declaring from him , that when his composition was made with the parliament , and was passed by both houses , he would then discover unto me how that whole businesse was laid against me , and who they were that laid it ; which when i knew , i should see i had no cause to be so angry with him , and therefore i was desired by a peere of the re●lme , ( who came from him not to be against him in setting the fine for his composition ; telling me that his lordship durst not discover it before , but when his composition was passed , he would let me know the particulars , the le●st inckling whereof ( to come from him to their knowledge , in whom he was in danger ) might prove his ruine . yet i can assure you ( to speak it without vanity ) i ( knowing my own innocency ) passed by it , never so much as sending to the lord savill about it , nor doing his lordship any dis-service for his former malice against me . and as for the letter sent from the earl of lindsey to me , containing ( as i am charged ) some secret designe . it is true , i received a paper from him , after which it was my unhappinesse to fall sick , which made me to forget it for some time ; yet so soone as it came to my minde , i did acquaint the house with it ; the contents of it was ( in a line or two , very short ) a recommendation of the bearer , the lord savill : i had then the words fresh in my minde , and did then repeate them in the house , at which time the house was so far satisfied therein , that this house resolved upon the question , july . . that the receiving of that note , in the manner as i did , was no holding of intelligence with the enemy . and for the paper it self , i do not know what became of it , or whether i burnt it , as perhaps i might . now for that part of the charge which chargeth me that the earle of lindsey moved for a passe to go to oxford , and that the king should say , that i did him better service in the parliament , then i could do there ; that was reported to this house from the examinations of what the lord savill informed against me ; and , as i said then , so now , i know nothing of it , i am confident it is false ; the earl of lindsey , nor any body else , had never motion to any such desire from me , nor had i ever any such thoughts . as for what i am charged in the second article , with sending severall messages to the earl of dorset and the lord digby , or to joyne with any in drawing up propositions , and sending them privately to his majesty ; it is all false and untrue , in all and in every part of it . to that in the third article : i must acknowledge that ( by the lady carlisles favour ) i have often waited upon her , both at her lodgings in whitehall , and elsewhere , but never with any disaffested persons , to hold correspondency with the queene , to put conditions upon the parliament , to bring in the king upon any termes , by our plotting against the parliament , or to do any other thing in prosecution of such evill designes ; but only to shew that respect which is due to a lady of such honour . and i conceive it is well knowne to this house , that i have been alwayes so farre from having a great power upon the treasure of this kingdome , to maintaine the queenes party , assure her pention , or undertake to doe more for the king then the army would doe , that i have had as little to doe with money businesses as any ; i have not growne great by the ruines of others by these sad times , nor preferred my selfe nor friends to higher fortunes then otherwise we could have aspired unto . and that i should send unto the queene , to advise her to send the prince into scotland , to come into this kingdome in the head of an army , or invite the scots , or joyne with any other for inviting the scots , or any other forreigne forces to enter this kingdome , it is utterly false , and a meere invention of malice against me ; nor doe i know of any meanes used to cause or encourage any officers or souldiers to gather together tumultuously at westminster , to affright and assault the members of parliament ; for my part i am clear of any such thing . and for obstructing of petitions ( as i am charged in the first article ) when petitioners came to the parliament for redresse of publike grievances ; i have onely delivered my opinion in this house , when seditious petitions have been read ; and for major tuleday , and nicholas tew , they affronted the committee , and tew endeavoured to raise a tumult in the court of requests , to the danger and disturbance of the committee , who committed them both untill the next morning , which was approved by this house , yet ( upon my motion in his behalfe ) this house was pleased to bayle major tuleday , and shortly after mr. tew was discharged . as for that which is laid upon me in the eight article , concerning the drawing up of the declaration , it was done in this house , the house allowing it , and it passed both houses , and therefore it seemes strange to me that any should question that which was made an act of both houses of parliament ; i drew it up indeed ( though very unwilling to take that tax upon me ) as neare as i could according to the sence of the house , in obedience to a generall call upon me for it , being exceedingly prest and urged to doe it , as you well know . and for the reliefe of ireland , it was alwaies my indeavour to promote it , desiring that an intire body might have gone out of the army . it is true , some forces for ireland were commanded back from bromsgrove in worcestershire to reading , which was ordered by the committee that they might receive their pay safe . the officers then representing to the committee the great necessities of the souldiers , and that they did not know how to convey it into vvorcestershire in safety , in regard that it must passe through the quarters of the army , who had expressed great displeasure to those forces which were drawne off for ireland ; and the committee was the rather induced to doe it , because they knew the monies which was sent to oxford for disbanding a regiment there quartered , was seized on , which feare caused the calling back of those to reading , and not upon any designe whatsoever . and whereas by the . article i am charged with those gentlemen , to obstruct articles against the lord inchiquen , and for calling back the lord lisle , that his command might be committed to the lord inchiquen , i was ( alwayes so farre from keeping off proceedings upon those articles , that i furthered it all i could , and severall times moved it in the house , being very desirous to have all cleared concerning the lord inchiquen , whom i beleeve to be a man of honour and fidelity . and for that the lord lisles time of government in ireland was expired ( which was but to continue one yeare in that command ; ) the parliament being pleased to dispose of the affaires of ireland in an other way ; i went in the severall debates thereon ( in the house ) according to my judgement and conscience , not respecting any particular person , but the common good ; and for the writing of a letter to put out all those who favoured independants , i never knew of any such thing done . and whereas i am charged by my power and countenance to obstruct justice in the cause between alderman langham and captaine limery , it is very untrue . i confesse , that my selfe , and sir philip stapleton ( who is accused with me ) being one afternoone in the court of requests , we heard that the house of lords were then to sit , we went to aske the occasion thereof , and meeting with the earle of rutland in the lobby , his lordship told us , that it was about a great cause depending between langham and limery , and we had some discourse about it , but i did not understand that the merit of the cause was at all in question , onely the entertaining of it upon an appeale , concerning which i said , that it was my opinion , that it was the common justice of the kingdome , and not to be denyed to any : this was all that passed between us , as some of master limeries counsell then present ( who heard it spoken ) can testifie . and for the whole charge delivered into this house against me from the army , i have had a strict scruteny over my conscience , and have made enquiry upon every branch thereof into my past actions and intentions , and cannot finde that i have deserved such a returne from any who pretend to be friends to the parliament , and peace of the church and kingdome . finis . a speech of the honorable denzell hollis (second son to the right honorable john earle of clare deceased) and brother to the now earle of clare, at the delivery of the protestation to the lords of the upper house of parliament, may wherein is set forth the reasons that moved the house of commons to make the said protestation o [ie. to] gether with a short narration of the severall grievances of the kingdome. holles, denzil holles, baron, - . this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (wing h ). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing h estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) a speech of the honorable denzell hollis (second son to the right honorable john earle of clare deceased) and brother to the now earle of clare, at the delivery of the protestation to the lords of the upper house of parliament, may wherein is set forth the reasons that moved the house of commons to make the said protestation o [ie. to] gether with a short narration of the severall grievances of the kingdome. holles, denzil holles, baron, - . [ ], p. printed by b.a. and t.f. for iohn hammond, london : . reproduction of original in the university of illinois (urbana-champaign campus). library. eng great britain -- history -- charles i, - . a r (wing h ). civilwar no a speech of the honorable denzell hollis (second son to the right honorable john earle of clare deceased) and brother to the now earle of cl holles, denzil holles, baron f the rate of defects per , words puts this text in the f category of texts with or more defects per , words. - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - judith siefring sampled and proofread - judith siefring text and markup reviewed and edited - pfs batch review (qc) and xml conversion a speech of the honorable denzell hollis , ( second son to the right honorable john earle of clare deceased ) and brother to the now earle of clare . at the dellvery of the protestation to the lords of the upper house of parliament , . may . wherein is set forth the reasons that moved the house of commons to make the said protestation . ●o gether with a short narration of the severall grievances of the kingdome . london , printed by b. a. and t. f. for iohn hammond , . a speech at a conference of both houses in the painted chamber , may , . . my lords : the knights , citizens , and burgesses of the house of commons , having taken into consideration , the present estate and condition of this kingdome , they find it surrounded with variety of pernitious , and destructive designes , practises , and plots , against the well after he had fought a good fight , & overcome all his enemies , or as the shocke of wheat which commeth in due season to fill our granaries with corne , uphold our lives with the staffe of bread . for parliaments are our panis quotidianus , our true bread , all other wayes are but quelques choses , which yeeld no true nourishment , nor breed good bloud . this very parliament which hath sate so long , hath but beat the ayre , and striven against the streame , i may truely say , the wind and tide hath still bin against us . the same ill counsels which first raised the storme , and almost shipwrack't the common-wealth they still continue , they blow strong like the east wind , that brought the locusts over the land . these counsels crosse our designes , cast difficulties in our way , hinder our proceedings , and make all that we doe to bee fruitlesse & ineffectuall . they make us not to be masters of our businesse , & so not masters of mony , which hath bin the great busines of this parliament , that we might pay the armies according to our promises and engagement . for , my lords , our not effecting of the good things , which we had undertaken for the good of the common weale hath wounded our reputation , and taken off , from our credit . is it not time then ( my lords ) that wee should unite and concentrate our selves , in regard of the antiperistasis of hurtfull and malicious intentions and practises against us . my lords . it is most agreeable to nature , and i am sure most agreeable to reason , in respect of the present conjuncture of our affaires : for one maine engine , by which our enemies worke our mischiefe is by infusing an opinion and beliefe into the world , that we are not united among our selves , but like sampsons foxes , we draw severall wayes , and tend to severall ends . to defeat then the counsell of these achitophels which would involve us , our religion , our being , our lawes , our liberties , all that can be neare and deare unto an honest soule in one universall and generall desolation , to defeate i say , the counsell of such achitophells , the knights , citizens , and burgesses of the house of commons , knowing themselves to be specially entrusted with the preservation of the whole , and in their consciences perswaded that ye dangers are so imminent , that they will admit of no delay , have thought fit to declare their united affections by entring into an association amongst themselves , and by making a solemne protestation and vowe unto their god , that they will unanimously endeavour to oppose and prevent the counsels , and the counsellours , which have brought upon us all these miseries , and the feares of greater . to prevent the ends , and bring the authors of them to condigne punishment , and thereby discharge themselves both before god and man . the protestation your lordships shall have read unto you ; together with the grounds and reasons which have induced the house of commons to make it , which are prefixed before it by way of preamble . then the protestation was read by master maynard . and thereupon concluded his message to this effect , that the house of commons had commanded him to present unto their lordships this protestation , that every member in that house had made it , no one refusing it , and that they sent it to your lordships , with assurance of your lordships concurrence in the same zeale and affection for the publique safety : that it is their desire your lordships should likewise make the same protestation , which we humbly leave to your lordships wisedomes , and there made an end of the conference . finis . a letter of a gentleman to his friend, shewing that the bishops are not to be judges in parliament in cases capital holles, denzil holles, baron, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing h estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) a letter of a gentleman to his friend, shewing that the bishops are not to be judges in parliament in cases capital holles, denzil holles, baron, - . [ ], p. s.n.], [london? : . attributed to denzil hollis holles. cf. blc. page is torn in filmed copy. pages -end photographed from cambridge university library copy and inserted at end. reproduction of original in union theological seminary library, new york. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng england and wales. -- parliament. -- house of lords. church of england -- bishops -- temporal power. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - john latta sampled and proofread - john latta text and markup reviewed and edited - pfs batch review (qc) and xml conversion a letter of a gentleman to his friend , shewing that the bishops are not to be judges in parliament in cases capital . printed in the year , . sir , since you desire that i would let you know my opinion whether or no the bishops may be present and vote judicially in capital cases which come to be judged in parliament , either in giving the judgment itself , or in resolving and determining of any circumstance preparatory and leading to that judgment , i must tell you that this is now become vexata quaestio : the two houses of parliament having therein been of different opinions , the house of peers declaring , that the lords spiritual have a right to stay and sit in court , till the court proceeds to the vote of guilty or not guilty , and the house of commons on the other side insisting , that they ought not to have any vote in the proceedings upon the impeached lords . and this difference between the houses having been the unhappy occasion of proroguing the parliament , may seem to lay an obligation upon every good english man , ( if to me your satisfaction were not in the case ) as to wish and pray heartily , that these differences may be well composed , that no more remora's may be to obstruct the proceedings of parliament , but that the two houses may joyn with his majesty to settle this distracted kingdom , and agree upon , then apply , all necessary remedies ( and strong ones they must be ) for the prevention of those mischiefs , which the enemies of the protestant religion and of this government had been long contriving and plotting against us , and were now well nigh the atchieving and putting in execution , if god of his infinite mercy had not looked upon us , as this i say ought to be every mans wish and prayer , so it cannot but incite every man to satisfie himself and others , where the right is , and what he ought to have in his wishes : for that right may prevail , is the natural wish of every good man , but good men many times differ in their apprehensions what is right . therefore it deserves a strict inquiry into the practice of the parliaments of former times in such matters , and well to consider upon what ground the prelates were prohibited having votes there in cases of blood : for that is the question now before us , what was done heretofore , and what is now to be done in parliament , that is to say in their judicial way upon tryals , not in their legislative capacity passing acts of attainder , in which i know that bishops have born a part , but that is not now the question . nor do i meddle with the general question , how far forth clergy-men in orders are forbidden having any thing to do with secular matters : nor what in that particular the imperial law requires , as that rescript of the emperours honorius and theodosius , which enacts , that clergy-men shall have no communion with publick functions , or things appertaining to the court ; or the decree of iustinian , that bishops should not take upon them so much as the oversight of an orphan , nor the proving of wills , saying it was a filthy thing crept in among them , which appertained to the master of his revenue : nor what our common law of england seems to allow or disallow , having provided a special writ in the register upon occasion of a master of an hospital , being it seems a clergy-man , and chosen an officer in a mannor to which that hospital did belong , saying it was contra legem & consuetudinem regni , & non consonum , it was contrary to the law and custom of the kingdom , and not agreeable to reason , that he who had cure of souls , and should spend his time in prayer and church-duties should be made to attend upon secular employments . i meddle not neither with what seems to be the divine law , as having been the practice of the apostles , and by them declared to be grounded upon reason , and to be but what in reason ought to be , which was this , that they should not leave the word of god and serve tables , though that was a church-office : and yet they say , it is not reason we should do that , for their work was the ministry of the word and prayer , much less then were they to be employed in secular affairs . none of this i say is my business , my task is only to inquire , what the law of parliament is in this particular , and what is so , is the law of the land. and my method shall be , to run through all the parliaments that are upon the rolls in the tower , and take notice of all the tryals there recorded , as well in cases capital as in those that were not so , and shew the difference in the parliamentary proceedings upon them , how the bishops and prelates did commonly joyn with the temporal lords in judging such as were not capital ( and not yet always so , when the crimes were of a bigger magnitude ) but never but once when the accusation was for a capital crime , which was in the duke of suffolks case , . h. . when the whole proceeding was so irregular and unparliamentary , as it is to be wondered at , but certainly never to be followed , it is like the bird in the poet , rara avis in terris , nigroque simillima cygno , as shall be shewed more particularly , when i take it up in its order , as it is mentioned upon the rolls . and so i come to my narrative . . e. . roger mortimer earl of march , sir simon bereford , and others were accused and tryed in parliament : and the roll of that parliament is so defaced , as it cannot be read ; but . e. . roger of wigmore cosin and heir of that earl of march desires that attainder may be examined ; and by the whole proceedings there repeated , it appears , none of the prelates were present , the words are dont le dit sr. le roi vous charge countes , barons , les piers de son roialme , que de si come cestes choses touchent principalement , a lui a vous & a tout le people de son roialme que vous faciez au dit roger droit & loial iuggement come affiert a un tiel daver . therefore our said lord the king charges you , who are earls , barons the peers of the realm , that as these things chiefly concern him and you and all the people of the kingdom , so you give upon the said roger a right and legal iudgment , as it belongs to such a one to have : then follows les queux countes , barons & piers les articles par eux examinez revindrent , &c. which earls , barons and peers , having examined the articles returned , &c. and gave the judgment , which was , that they should suffer death : the bishops cannot be understood to be comprized here under the general name of peers , since the barons are first in rank , and besides they cannot pretend to be peers of the realm . . e. . the parliament was declared to be called for the redress of the breach of the laws and of the peace of the kingdom . et pur ce que a vis feust a les ditz prelatz quil ne attenoit pas proprement a eux de conseiler du garde de la pees , ne de chastiement des tielx malueis , si alexent mesmes les prelatz , &c. and because the prelates were of opinion that it belonged not properly to them to give counsel about keeping the peace nor punishing such evils , they went away by themselves , and they returned no more . et les ditz countes , barones & autres grantz per eux mesmes . and the said earls , barons and other great ones went by themselves , and these return , and by the mouth of the lord beaumont declare their opinions , what was to be done , commissioners to be appointed in every county of the best men ( des plus grantz ) they to be gardeins de mesme le comte , guardians or conservators of the county . these commissions afterwards brought into parliament , were read and approved by nostre sr. le roi , les countes , barons , & autres grantz , our lord the king , the earls , barons , and other great ones , no bishops , so much as to hear the commissions read , because they were to enquire into all crimes , as well capital as other , the prelates must have no hand in it . in the same parliament sir iohn grey and sir will de la zouch had quarrelled in the kings presence , sir iohn had mis mein au cotel laid his hand upon his sword , they had been imprisoned , and the business brought into parliament , le roi chargea de par la bouche le dit mr. geffrey le scrope toutzles countes , barons & autre grantz en les foies & ligeances queulx ils devoient au roi de lui conseiller ce quil devoit faire de si grand excesse fait en sa presance . the king by the mouth of sir geffrey scrope charged all the earls , barons , and other great ones in their faith and allegiance , which they ow him , to give him counsel , what he ought to do upon such an exorbitancy committed in his presence ; they go and consider of it , acquit zouch , judge grey to prison : here were no bishops neither , to judge so much as of a battery . . e. . the proceedings and judgment of death against sir will. de thorp chief justice , for bribery , were brought into parliament , which the king caused to be read overtement devaut les grantz de parlement pur saver ent lour avys , & examine sur ceo chescun aprez autre si sembla a eux toutz , &c. to be read openly before the grantz , the great men , of parliament to have their advice upon it , and being all asked one after another , it seemed to them all , that they were very just , et sur ceo il fut accorde par les grantz de mesme le parlement , que si nul autre tiel cas aveigne que nostre sr. le roi preigne lui des grantz que lui plairra , pur per lour bon a vis faire ceo que pleise a sa roiale seignurie , vpon this it was agreed by those grantz , those great men , of the parliament , that if any such other case should happen , our lord the king might take any one of those grantz those great men , whom he should please , to do by their good advice what he should think good . it cannot be understood any bishops were here under the name of grantz , and to be of the number of those whom the king should take to assist and advise him in such other judgments of death for the time to come , if occasion were , which could be no employment for bishops , being to give judgments of death . . e. . sir iohn de lee steward of the kings house charged with several misdemeanors , the record saith , et apres manger vindrent les prelats , dues , countes , barons , & ascuns des cōes & illoeques feust fait venir mr. iohn de lee , &c. and after they had eaten , the prelats , dukes , earls , barons and some of the commons came , and sir john de lee was fetcht thither , &c. the business was there heard , and he was sent to prison . here the prelats were present , for the crime was not capital . . e. . several persons are accused even by the commons for misdemeanors , and the bishops present at their trials and judgments , as richard lyons , who had been farmer of the customs ; the lord latimer , who was the kings chamberlain , for oppression in several places in britain and in england , he was by the bishops and lords adjudged to be imprisoned , and put to fine and ransom ; and then the commons desired , he might lose all his offices , and no longer be of the kings council , which the king granted . ( yet after this , . e. . at the request of the commons themselves , he was restored to all , and declared innocent , which i take notice of by the way . ) at this parlament of . william ellis of yarmouth , as privy and accessary to the misdemeanors of lyons ; iohn peach of london , for getting a monopoly of sweet wines ; the lord iohn nevil , a privy counsellor , for buying some debts due by the king at easie prizes , to make advantage to himself : at all these trials the bishops were present , and no body says but they might . . r. . william de weston and iohn de gomenitz were tried for surrendring towns and castles in flanders to the kings enemies ; they had put in their answers , friday nov. . saturday they are brought to the parlament , and sir richard le scrope , steward of the kings house , a commandement de seigneurs avant-ditz , by the command of the lords aforesaid , told them , that the foresaid lords , ( and the record tells you who those lords were , ) cest assavoir , to wit , the duke of lancaster , the earls of cambridge , march , arundel , warwick , stafford , suffolk , salisbury and northumberland , and the lord nevil , lord clifford , & plusours autres seigneurs , barons & bannerettes esteants au dit parlement savoient assemblez & avisez , many other lords , barons and bannerets being in the said parliament had met and advised upon it , from the time they had put in their answers , and found they were not satisfactory ; and then gave sentence , saying , that those lords had adjudged them to death : first weston was called , and this said to him , and then gomenitz : here was none of the prelats named , and it cannot be imagined they should be under the general expression & autres seignieurs , barons & bannerettes , and other lords , barons and bannerets , after the naming of two barons , for if there had been bishops , they would have been named before them . observe likewise , that no bishops were present from the time that the prisoners answers came in , to have vote , and determine concerning any part of their answer , pardon or whatever they had pleaded . in the same parliament , and the very next thing upon the roll is the case of alice perrers , accused for breach of an ordinance made e. . against womens medling with state affairs , there the record saith , that she was , fait venir devant les prelats & les seignieurs du parlement pour y respondre , made to come before the prelats and the lords of the parliament to make answer ; and then follows , et sur ceo par commandement des prelats & seignieurs le dit mr. richard le scrope , rehercea l'ordonance , and then by the command of the prelates and lords , the said sir richard le scrope rehearsed the ordinance . and then she was heard to the particulars with which she was charged , and at last was adjudged to be banished , and forfeit her estate . observe in the trial of weston and gomenitz , that only those temporal lords there named , had met and considered of the answers put in by them , as preparatory for the trial and judgment , and no bishop present there : and here in the trial of alice perrers , which followed immediately after , it is particularly expressed , that they were present , and did vote and judge as far forth as the lords temporal . r. . the two merchants that had killed iohn imperial , a publick minister sent from genoa , an act of parliament passed to make it treason , the bishops had no vote in the passing of this act ; the record saith , fait a remembrer que cest darrein ait issint faite si fust fait par les iustices en presence du roy , & des seigneurs temporelz en ce parlement , memorandum , that this last act so made was drawn by the iudges in the presence of the king and the lords temporal in this parliament . they were not so much as present when the judges were in the preparing of it . r. . sir ralph de ferrers arrested by the duke of lancaster upon suspicion of treason , for holding intelligence with the french , brought into parliament , and there tried ; semblast as seigneurs du parlement que le dit mr. rauf estoit innocent : it seemed to the lords of the parliament that sir ralph was innocent . can any man think the bishops were there , and comprised under the general expression of les seigneurs du parlement ? when they were present , it is always particularly expressed , as in alice perrers case , r. . and all those questioned and punished for misdemeanors e. . the lord latimer and lyosn , &c. alice perrers was fait venir devant les prelats & seigneurs du parlement , was made to come before the prelates and lords of parliament ; they were judged by the bishops and lords , the record saith . r. . the bishop of norwich , who had undertaken an expedition into france and not performed the conditions , was charged with several miscarriages and misdemeanours in his employment , and one crime capital , which was betraying graveling to the french for franks in gold , of which yet he cleared himself : yet that being in for one of his charges , none of the bishops were present at his trial , but michael de la pool gave this judgment at the last , le roi nostre sr. a bien entendu ce que vous a vez dit , & ent a eu bone deliberation avec les srs. temporalz & semble au roi & as srs. temporalz avant-ditz , que vos responses ne sont rien a propos , parquoy del assent des countes , barons & autres srs. temporelz en cest parlement est assentuz & accordez que vous soiez en la merci le roy , & mis a fin & a raunceon , our lord the king hath well heard what you have said , and hath with his lords temporal well considered of it , and it seems to him , and to the lords temporal aforesaid , that your answers are nothing to the purpose , therefore by the consent of the earls , barons , and other lords temporal in this parlement , it is agreed that you shall be at the kings mercy , and put to fine and ransom . the chancellor likewise gave judgment in the same way that parliament on sir william de elmham , sir thomas trivet , and others for giving up holds and fortresses , and taking money for them . r. . michael de la pool lord chancellor was accused by the commons for several misdemeanors devant le roi , prelatz & seigneurs , before the king , prelates , and lords . here the prelates are judges of misdemeanors together with the other lords . . r. . the five lords appellants , the duke of gloucester , earls of derby , arundel , worcester , and earl marshal making their protestations , that what they attempted touching their appeals was for the honour of god , safety of the king , the realm , and their own lives , the archbishop of canterbury for himself and the whole clergy of his province entred a protestation , and the bishops of durham and carlisle did the like ; that they absented themselves from parliament , in regard such matters were to be there agitated , but with a salvo to their right : which some will have to be understood of a right to be present even when those matters were in agitation , and that it was only upon some prudential consideration that they did withdraw : but this could no ways be their meaning , but they protested their having a right to sit and vote in parliament upon all other occasions in the general , though upon that occasion they might not be present . the words of their protestation make it evident : nos willielmus cant. archi-episcopus pro nobis & suffraganeis coepiscopis , &c. protestamur quod intendimus & intendi volumus in hoc presenti parlemento & aliis interesse , consulere , tractare , statuere , & definire , &c. ac cetera exercere cum ceteris jus interessendi habentibus in omnibus in eisdem statu & ordine nostro semper salvis : uerum quia in presenti parliamento agitur de nonnullis materiis in quibus non licet nobis alicui eorum juxta sacrorum canonum instituta quomodolibet personaliter interesse , eo propter potestamur quod non intendimus nec volumus sicuti de iure non possumus nec debemus , dum de hujusmodi materiis agitur vel agetur quomodolibet interesse , sed nos penitus absentare , &c. we william archbishop of canterbury for our selves , our suffragans and fellow bishops protest , that we do intend , and will be thought so to do , to be present in this and other parliaments to consult , treat of , and determine , &c. and do other things together with others , who have right to be here , in all matters , our state and order always saved unto us entire in the same . but because in this parliament some matters will be agitated , at any one of which by the institutions of the holy canon law we cannot be personally present , we do therefore protest , that we intend not , nor will not , as by the law we ought not , nor can we in in any sort be present , whilst any of those matters are in debate , or coming into debate : but we will absent our selves altogether , &c. it is plain by the record , that what they will have to be salvum to them is their sitting and acting consulere , & tractare , & statuere , to consult , treat of , and determine in that and all other parliaments , when such matters are not in question : but for such matters they say , non licet alicui eorum personaliter interesse , and de jure non possumus nec debemus interesse ▪ it is not lawful to be present in person at any of them , and rightly we cannot , nor ought not to be present . can it then be thought they should lay claim to any right , to what they say non licet de jure non possumus nec debemus , it is not lawful , and by right we cannot , nor ought not ? and to say , their meaning was , that by the law of the land or custom of parliament they might , and that it was only the canon law which hindred them , can have little colour , for the canon law was to them above all laws , and what was forbidden by that law they could not have a thought , that it could in any sort be lawful for them to challenge , as their right , upon any account . it is further observable here , that they profess quod de jure non possumus nec debemus , dum de hujusmodi materiis agitur vel agetur quomodolibet interesse , that is , all the time that such matters are in agitation ; there is no exception of preliminaries , and preparatories , and of being present and having vote during all the debate , till the pronouncing of sentence , for it is dum de hujusmodi materiis agitur vel agetur , the whole time from the beginning to the ending , and when such businesses are to come on , that is , when they are going upon them , and when they begin . and then consider the close of this record , quelle protestation leve en plein parlement , al instance & priere du dit ercevesque & les autres prelatz susditz , est enrolle , ycy en rolle du parlement per commandement du roy , & assent des seigneurs temporelz & comunes , which protestation being read in full parliament , at the instant desire of the archbishop and other the prelates aforesaid , is entred upon the parliament roll , by the kings command , with the assent of the lords temporal and commons . which is all the formality of passing laws in parliament , that was used in those times , which was only to have it entred in the roll or journal book , that such a thing was agreed upon by the king and the two houses , then it was drawn into the form of a law afterwards by the justices and kings council , when the parliament was risen . so as whatever was the law before , if it were only the canon law , it is now come to be the law and rule of parliament , and the law of the land ; but in truth it was so before , and was always so . . r. . thomas haxey clerk had preferred a bill in the house of commons for regulating the outragious expences of the kings house , particularly of bishops and ladies , de la multitude d' evesques & lour meignee & aussi de plusours dames & lour meignee qui demeurnt en l hostel du roy , & sont a ses coustages , of the many bishops , and their company , and also of many ladies and their company , that live in the kings house , and at his charge . the king being exceedingly moved at this , some bishops and lords were sent to the commons to let them know it , and to enquire who had made that complaint ; the commons delivered the bill , and his name who had exhibited it . haxey was for this tried and adjudged a traitor , and condemned to death for it . which judgment by the way was most unjust , and would not only have shaken , but wholly destroyed the very foundation of parliament , deterring all men from representing there , and seeking redress of any grievance publick or private , had it continued in force and unquestioned , but . h. . it was complained of as erroneous and encontre droit , & la course qui avoit este devant en parlementz , against right , and the course of parliaments ; and therefore nostre sr. le roi del a viz , & assent de toutz les srs. spirituelx & temporelx ad ordeignez & adjuggez , que le dit iuggement soit du tout cassez , reversez , repellez , adnullez & tenuz de nul force n'effect , our lord the king by the advice and consent of all the lords spiritual and temporal hath ordained and adjudged that the said iudgment be wholly quashed , reversed , repealed , made null , and held to be of no force nor effect . so this judgment is damned with bell , book and candle ( one may say ) and at this the lords spiritual were present , and had vote , but not at the trial and condemnation of haxey , as appears by the record , which saith , fait a remembrer que mosquerdi aprez la chandelure maintenant aprez le iugement rendu devers thomas haxey clere●que fust ajuggez eu parlement a la mort come traitour vindrent devant le roy en parlement ovek grand humilite l' ercevesque de cantirbirs & toutz les autres preiatz ▪ & luy prierent de sa grace avoir pitie & merci du dit thomas & de remitter l' execution , memorandum , that the wednesday after candlemas day immediately after that iudgment was given upon thomas haxey clerk , who was in parliament judged to die as a traitor , the archbishop of canterbury and all the other prelates came with great humility before the king in the parliament , and besought his grace to have pity and compassion on the said thomas , and to remit his execution , which the king granted . so we see , that after the judgment given in parliament , the bishops immediately came into the parliament , to beg for his pardon , which shews they were not there before . . r. . the commons impeached thomas arundel archbishop of canterbury of high treason , and desired he should be put into safe custody ; it was answered , that because it touched si haut personne , so high a person , the king would be advised . afterwards they come and pray that judgment may be given according to their impeachment and accusation of him , sur quoy nostre dit sr. le roy , & toutz le srs. temporelz , & mr. thomas le percy eiant poair sufficient de les prelatz & clergie du roialme d' engleterre come piert de record en le dit parlement adjuggerent & declarerent cest article conuz per le dit ercevesque pur traison , & le dit ercevesque pur traitour , & sur ce est agarde quil soit banni & ses temporaltees seisis en main le roy , whereupon our said lord the king , and all the temporal lords , and sir thomas le percy being sufficiently empowered from the prelates and clergy of the kingdom of england as appears upon record in parliament , judged and declared this article acknowledged by the said archbishop to be treason , and the said archbishop to be a traitor , and thereupon awarded him to be banished and his temporalties to be seised into the kings hands : here the bishops were not present in person , but sir thomas le percy , as their procurator and proctor authorised by them , may be said to represent them ; and so he did , but yet it shews that the bishops as bishops and clergy men could not be there in their persons , and that rather than they should be there present such an unusual thing should be admitted , as that one layman , who else was no peer nor had place in the house of peers to vote there , should be chosen by them , to have all their proxies put together and united in him ; to be disposed of by him as he should think good . for it was never done , but in this one parliament , there never was in no parliament before or after such a procuratorship or proxy given . and in this parliament of . r. . it was thrice done , first here to sir thomas percy , then the parliament being adjourned to shrewsbury , it was there given , it seems by vote only , to william le scrope earl of wilts , for the words are sur ce les ditz prelatz & clergie nomerent & ordenerent en parlement per bouche william le scrope conte de wilts , commettant & donant a luy pleine poair aussi avant & en manere come feust comys a mr. thomas le percy per devant , hereupon the said prelates and clergy named and appointed in parliament by word of mouth william le scrope earl of wilts , and gave him the same power , as full and in the same manner , as before had been granted unto sir thomas le percy . now , percy had it by commission enrolled ; which happily was to make it more authentick , because he was but a commoner . the third time it was done , was in the business between the two dukes of hereford and norfolk , when by this parliament sitting then at shrewsbury , that whole matter was referred to the king , to be by him determined by the advice of certain lords and commoners there named , and to them were joyned the earls of worcester and wilts procurators for the clergy . this i must say argues a great unanimity in the voting of the prelates , which it seems hath ever been , but i must say it was most unparliamentary , never practiced , but in that one parliament of the . r. . which whole parliament is repealed , and all it did nulled , and made void by act of parliament . h. . so as it cannot be urged as a precedent to infer any thing upon it , nor can it make any thing to prove a right in the bishops of being personally present in matters of that nature , but rather in my opinion strongly the contrary : and one thing more would be observed , which is , that it seems by the record , that the whole clergy of england joyned in making this proctor , and not only the prelates , who were members of the house of peers , which seems very strange . but more than all this , whatever was done this parliament signifies nothing , the whole parliament stands repealed by . h. . and all done in it declared null and void . . h. . the commons had desired that sir william rikhill , ( who had been a judge in the common pleas , and had been sent by r. . to calais to take the confession of the duke of glocester , who soon after was there murthered ) might be put to answer upon what account he did it : he was under arrest for it ; and was brought into parliament before the king and the two houses , the lords spiritual and temporal , and the commons then assembled together : the whole matter was examined , the conclusion was , saith the record , sur ceo chascun sr temporel esteant en plein parlement examine severalment sur la response du dit william , dit quil avoit fait loyalnent & quil ny avoit en luy aucun coupe , hereupon every lord temporal being in full parliament severally asked concerning the answer of the said william , said he had carried himself loyally , and that he had committed no fault . there was no charge , no impeachment against him , so the bishops might be , and were present at his examination , as the commons also were , but they must have no hand in giving any judgment upon it , because it might have been a preparatory to an accusation and an impeachment , if he had not given so good satisfaction , as it seems he did in the account he gave of his employment . that parliament iohn hall a servant of the duke of norfolk's , who had helped to murther the duke of glocester at calais was tried before the king and the lords temporal : the record saith , il sembla au roy & a toutz les srs. temporels quil avoit deservi davoir si dure mort come la ley luy pourroit donner , et sur ceo toutz les srs. temporelz per assent du roy adjuggerent quil seroit treinez del tower-hill jusques a les fourkes de tyburn , &c. it seemed to the king and to all the temporal lords that he deserved as cruel a death as the law could inflict : and hereupon all the temporal lords with the assent of the king gave iudgment that he should be drawn from tower-hill to the gallows at tyburn , &c. there to be hanged , &c. h . the first writ de haeretico comburendo was agreed upon only by the lords temporal , it was in the case of william santre , ( our st. stephen , the protomartyr of england , ) the record is , item cest mesquerdy un brief fust fait as meir & uiscountz de londres per advis des srs. temporelx en parlement de faire execution de william sautre , item this wednesday a writ was framed , by the advice of the lords temporal in parliament , directed to the mayor and sheriffs of london for the execution of william sautre . i doubt not but the bishops and clergy of those times were the chief promoters of this , though not appearing to be actors in it : which yet would not have been a direct condemnation of him , as his judges , nor any thing to be determined by them tending to his conviction , but only an advice given to the king to make it his act under the broad seal to order his execution ; yet they then were not to have a hand even in a matter of this nature . the same parliament the earls of kent , huntington , and salisbury , the lord le despencer , and sir ralph lumley , who for levying war against the king had been taken and executed , were by the lords temporal declared and adjudged traitors , and their estates to be forfeited , the names of the lords that made this declaration , and gave this judgment are there set down , the prince of wales the first , and the lord le scroope the last , five and twenty in all ; not a bishop amongst them , so much as to declare and judge it a treason , though the persons who had committed it were dead before : so as it seems they must not have a hand neither in the antecedent , what is preliminary and preparatory to the death of a man , nor in the consequent , what is to be done after , so far from being the judges to try or condemn him . . h. . the earl of northumberland had petitioned the king for his pardon for having , contrary to his allegiance , gathered forces , and given liveries : the king gave this petition to the judges , to have their opinion of it ; the lords protested against it , and said , that the judgment belonged to them , and retained the business , et puis leve & entendue la petition les srs. come piers du parlement , a queux tielz iugement . apperteinnent de droit , adjuggerent , que ceo que fust fait per le conte nestoit pas trahison mes trespas tant seulement . sur quoy le dit conte molt humblement remercia le roy & les ditz srs. ses piers de lour droiturel iugement . and then the petition being read and understood , the lords as peers of parliament , to whom such iudgments do of right appertain , did give their iudgment , that what the earl had done , was no treason , but only a trespass , whereupon the said earl did most humbly thank the king and the said lords his peers for their righteous iudgment . now the bishops could not be said to be his peers , which shews they were not there . h. . a judgment was given much like to that in the h. . the king commanded the lords temporal to deliver their advice concerning the earl of northumberland and the lord bardolph , who had been killed at bramham more in yorkshire by the sheriff of the county , who therewith the posse comitatus encountred them in the field ; there were proceedings against them in the court of chivalry after their deaths , upon certain articles of treason there exhibited against them . these articles were brought into parliament , upon reading of which those lords temporal adjudged their crime to be treason . h. . the commons , baillerent une petition , delivered a petition , directed al honorable prince le duc de bedford gardein d' engleterre , & as tres sages srs. de cest present parlement , to the honourable prince the duke of bedford gardian of england , and to the most wise lords of this present parliament , that sir iohn oldcastle might be brought before them , who was indicted and outlawed in the kings bench for treason , and excommunicated by the archbishop of canterbury for heresie ; and that due execution might be done upon him according to their discretion by authority of parliament . pur quoy agarde est per les srs. avant ditz del assent de le dit gardein & a la priere susdit , que le dit john come traitor au roy & a son royalme so it amesnez a la tour de londres & dilloeques soit treinez parmi la cite de londres as novelles fourches en la paroche de st. giles & illoeques soit penduz & ars pendant , wherefore it is adjudged by the lords aforesaid , with the assent of the said gardian upon the foresaid request , that the said john , as a traitor to the king and his realm , be carried to the tower of london , and thence drawn through the city of london to the new gallows in st. giles parish , and there to be hanged , and burnt hanging . the question is now , if it shall be understood , that under the general expression of les srs. de cest present parlement the bishops were comprized ; and so to have been parties in this judgment , and i conceive not , first , because i observe that generally throughout all the records and journals of parliament almost in all transactions , but especially and constantly i find it so in matters of judicature , where they were present , it is always mentioned and expressed so , at that the lords spiritual and temporal , or that the prelats , and earls , and barons did so and so , as it was in the cases before mention ed of sir iohn lee , richard lyons , the lord latimer , and the rest , accused of misdemeanours ; and my other reason is , that in this particular case of sir iohn oldcastle i find the clergy had done their parts with him before , declaring him an heretick , and turning him over to the secular power , as the words of the excommunication run , where after having expressed a great tenderness of the desperate condition of his soul , and much bewailed his obdurateness , they do condemn him for a heretick , relinquentes eum ex nunc tanquam hereticum iudicio seculari , leaving him from thence forward as an heretick to the secular iudgment . so certainly those good men , i mean those popish bishops , would have no more to do with him as to his farther execution , that the world might see they were not men of bloud . . h. . sir iohn mortimer had been committed to the tower upon suspicion of treason against henry the fifth , and made an escape out of prison , being taken again he was indicted of treason at guild-hall : the indictment by the kings command was returned into chancery , then brought into parliament by the bishop of durham lord chancellour , and by him , coram humfrido duce gloucestriae ( who in the kings absence was commissionated to call and hold that parliament ) ac aliis dominis temporalibus in eodem parliamento tune existentibus fuit liberatum , was delivered to humfry duke of glocester , and other the lords temporal being then in parliament to be by them affirmed , as it was , and sir iohn mortimer then brought before them , and adjudged by them to be drawn , hanged , and quartered : et super hoc viso & plenius intellecto indictamento per dictum ducem de avisamento dictorum dominorum temporalium , ac ad requisitionem totius communitatis in presenti parliamento existentium auctoritate istius parliamenti ordinatum est & statutum , &c. quod ipse usque ad turrim ducatur , &c. and hereupon the said indictment being seen and well understood , it was by the said duke , by the advice of the said lords temporal , at the prayer of the whole commonalty in this present parliament , and by the authority thereof ordered and decreed , &c. that he should be led to the tower , and from thence drawn to tyburn , and there executed . we see here the bishops did not offer to advise so much as concerning the indictment , if it should be admitted of and received by the parliament , though a bishop , being lord chancellor was by vertue of his office to bring it out of the chancery , and present it to the house , as he did , and there left it . h. . is the sole single president of bishops being present , and not only so , but acting and bearing a principal part in a judicial proceeding in parliament in a case that was in it self capital , though strangely shuffled off , and justice wholly eluded . ianuary . william de la pole duke of suffolk preferred a petition to the king , complaining how he was defamed , as if he were other than a true man to the king and the realm , and desiring that any man would say wherein , that he might give his answer thereunto . munday . the commons sent some of their fellows to the chancellour , who was archbishop of york and a cardinal , praying him , that whereas the duke of suffolk had that same day in his own declaration confessed , that there was a very heavy rumour and noise of infamy upon him , he would let the king know it , that he might be committed to ward after the course of law in eschewing of inconveniencies that may sue thereupon hereafter ( they are the words of the record . ) the next day tuesday , the chancellour acquainted the king and the lords with it , and asked the lords what should be done upon the commons request . the judges were asked what the law was in this matter ; the chief justice answered for the rest , that in these general terms of slander and infamy many things may be understood which deserve not imprisonment , but he desired more time to consider of it with his fellows : the lords staid not for their return , but all of them from the lowest to the highest were of one opinioa , that he should not be committed to ward till the specialty of the matter were declared . wednesday the . the chancellour and other lords were sent down by the kings commandment to the house of commons , and the speaker declared unto them , that seeing special matter was required , they had daily information from several parts of england , that the realm was sold to the kings adversary of france by the duke of suffolk , and that he had fortified wallingford castle to be a place of refuge unto them , and this the commons do think is special matter of suspicion of treason laid to his charge , for which he ought to be committed , and therefore it was the desire of the commons that he might be so , upon which desire he was sent to the tower. the seventh of february the chancellour again and several lords both spiritual and temporal were by the kings command sent again to the house of commons , and the speaker william tresham gave them a bill containing several articles of high treason against the said duke , which bill he in their names desired , ut in presenti parliamento inactitaretur , to be inrolled in parliament , and the duke upon it to be proceeded against . the twelfth of february this bill was read in the house of lords , and it was thought fit by all the lords , that the justices should have a copy of it , and report their advice what should be done , but the king would have it respited , till he was otherwise advised . the seventh of march next following it was thought fit by the most part of the lords , that the duke should then come to his answer . the ninth of march the lords were again sent down to the commons at their request , and another bill was delivered to them containing certain articles of misprisions and horrible offences committed by the duke , which they desired might be enacted in this high court of parliament , ( so is the expression ) and he to be proceeded against . the same day the duke of suffolk was brought from the tower , by vertue of the kings writ , into the presence of the king and the lords spiritual and temporal in the parliament chamber , both the bills of the articles were read unto him , of which he desired copies ; which was granted : and to be nearer at hand to give in his answer , and come to his trial , the king by the advice of the lords committed him to the ward of three persons , esquires , to be kept in a tower within the kings palace of westminster . the thirteenth of march he was sent for to come before the king and the lords spiritual and temporal , to answer to his charge , which he did , denying all of treason laid unto him , and excusing the rest . the fourteenth the chief justice rehearsed to the lords by the kings commandment , what had passed the day before , and asked them what advice they would give , which they put off till munday the sixteenth , and that day nothing was done . then tuesday the seventeenth the king sent for all the lords spiritual and temporal , who were in town , into his innest chamber with a gabel window over a cloyster within the palace of westminster : the lords are all named , viz. the two archbishops , the duke of buckingham , thirteen bishops , six earls , two viscounts , two abbots , the prior of st. iohn , and nineteen barons , who being assembled , the king sent for the duke of suffolk , who came , and was upon his knees all the time the chancellour spake unto him , who by the kings commandment remembred what passed at his trial , and particularly , that he had not then put himself upon his peerage , and asked him now what he had more to say . the duke said , that , not departing from his answers and declarations , he did wholly submit himself to the kings rule and governance to do with him as he list . whereupon the chancellour ( who , as i said before , was archbishop of york , and a cardinal ) by the kings commandment said unto him , sir , i conceive that you ▪ not departing from your answers and declarations in the matters aforesaid , not putting you upon your peerage submit you wholly to the kings rule and governance , wherefore the king commandeth me to say to you , that as touching the great and horrible things in the first bill comprised , the king boldeth you neither declared nor changed ; and as touching the second bill touching misprisions , which be not criminal , the king by force of your submission , by his own advice , and not reporting him to the advice of his lords , nor by way of iudgment , for he is not in place of iudgment , putteth you to his rule and governance , that is to say , that you before the first of may shall absent your self out of the realm of england unto the end of five years , but you may abide in the realm of france , or in any other lordships or places being under his obeissance , and you shall not bear malice to any man for any thing done to you in this parliamont . and forthwith the viscount beaument on the behalf of the said lords spiritual and temporal , and by their advice , assent , and desire , recited , said , and declared to the kings highness . that this that was so decreed and done by his excellency concerning the person of the said duke , proceeded not by their advice and counsel , but was done by the kings own demeanance and rule , therefore they besought the king that this their saying might be enacted in the parliament roll , for their more declaration hereafter , with this pretestation that it should not be , nor turn in prejudice nor derogation of them , their heirs , ne of their successors in time coming , but that they may have and enjoy their liberties and freedom as largely as ever their ancestors or predecessors had and enjoyed before this time . i have been the more large in this account , which i have given of this trial , marking out every step of the proceedings in it , that whosoever reads it may see how irregular and extravagant it was from the beginning to the end , from the commons first desiring that the duke of suffolk should be committed upon so sleight a ground as his complaining in the house of lords , that he was ill spoken of , and defamed , to the close of all , the judgment given by the king by the mouth of the chancellour for his banishment , in regard he had not put himself upon his peerage , which yet the chancellour said the king did not do as his judge , for that he was not in the place of judgment . and it was an odd thing and unusual , that some prelates and some lords should be sent down to the house of commons to receive the articles of this impeachment . all this was such a hodge-podge of a trial , as no man can tell what to make of it , nor can it be of any signification to be a president and a rule of proceeding in matters of that nature in parliament . but admit it had been never so regular , it is but one single president of bishops and prelates acting in a judicial capacity in a capital cause in parliament , against multitudes excluding them ; it was once so , and never but once : and can that be thought sufficient to alter and change the constant course and practice of parliaments , which hath been otherwise ? had it been questioned then , and upon a debate and mature consideration , been so resolved at that time , this had signified something : but it was done and no exception taken , which they call a passing sub silentio , and more , it was never done but once . but sir edward coke goes further , and saith , that two or three presidents are nothing , if forty be contrary , and it is so here ; he tells you too , when it is that they signifie nothing ; that is , quand les presidents passe sans challenge del partie ou debate des iustices , when they be not challenged by the party concerned , or not considered of , and debated by the iudges , as neither of them was here done , it is in slades case in the . reports . it is a rule in law , a facto ad jus non valet argumentum , but it may withal be said , and truly , a saepe facto ad jus contra semel factum valet argumentum . upon the whole matter , one may boldly affirm , that this president of h. . is no ground for the bishops to build their claim upon , of having a right to sit and vote in parliament in capital causes . h. . is the earl of devonshire's case , the record runs thus . be hit remembred that where the . day of march the said year of this present parliament , thomas earl of devonshire upon an indictment of high treason , by him supposed to be done against the kings honourable estate and person , afore humfrey duke of bucks , steward of england for that time assigned , and of the same treason by his peers the noble lords of this royaume of england being in this said present parliament , was acquitted of all things contained in the same indictment . now i suppose no man will say , that the bishops were either his peers , or lords of the realm . h. . the lord stanley was accused by the commons for being in confederacy with the duke of york , and they desire he may be committed to prison ; the answer is , the king will be advised ; which is all was done : and this is the last president of any impeachment , or of any person questioned in parliament in a judicial way , that is upon the rolls in the tower. and i do not remember that i have read or heard of any trial in parliament in a judicial way since that time till the e. of straffords in our memory , whose trial was compleated in that way , but he was attainted and condemned by the legislative power ; during all the trial , from the beginning to the end , the bishops were never present at any part of it : and it yet appears upon the journal book of the house of peers , though many passages be razed , but this is not , that upon the . of march . upon a report brought in by the lord privy seal of something concerning that business , and a debate arising upon it , the bishops withdrew , it being in agitatione cause sanguinis . it is true , there was in that same parliament the february before an impeachment of high treason brought up from the house of commons against the lord keeper finch , but it never came to trial , for he fairly ran away , and got beyond sea , whereupon by the order of the lords temporal , a proclamation was issued forth for him to appear the . of march following : the words of the proclamation are , rex , uice-comiti , &c. cum communitas regni nostri anglie in presenti parliament . iohannem dominum finch de fordich nuper custodem magni sigilli anglie de alta proditione accusaverit & impetierit , cumque per dominos temporales in eodem parliamento de assensu & advisamento nostris ordinatum existit , quod proclamatio per totum regnum nostrum anglie publice fiat , qd . idem iohannes dominus finch in propria persona sua compareat , & se reddat coram nobis & prefatis dominis , decimo die martii proxime futuro ad respondendum & standum recto coram nobis & prefatis dominis ex hoc parte : nos volentes &c. the king to the sheriff , &c. whereas our commons of this our kingdom of england have in this parliament accused and impeached john lord finch of fordich , late lord keeper of the great seal of england , of high treason , and whereas the lords temporal have in the same parliament with our consent and advice ordered a proclamation to be published throughout our whole kingdom of england , that john lord finch do personally appear and yield up himself to us and the foresaid lords , upon the . of march next following , to answer for his treason , and stand to the iudgment of us , and the foresaid lords in that behalf ; we willing that the order have its due effect , do command and strictly enjoyn you , that upon the receipt of these presents , you do in all cities , market towns , and such other places within your bayliwick , as to you shall seem expedient , cause in our name to be publickly proclaimed , that john lord finch do appear in person and render himself before us , and the foresaid lords in this present parliament , upon the . of march aforesaid , to answer for the treason aforesaid , and stand to the iudgment of us and the foresaid lords in that behalf , according to the tenor of the foresaid order . this was the proclamation , ordered to be made onely by the temporal lords , and no bishops present , yet was it no part of the trial , but meerly a course taken to have him in court , that he might be tried . but because it looked towards a trial , the bishops must have no hand in it . and it is further observable in this president , that the kings learned counsel was ordered to draw up this proclamation according to the antient parliamentary way , which shews that it was the ancient parliamentary way , that only the lords temporal should be interested in such proceedings , and have the ordering of them , and not at all the bishops . and i can give you an ancient president out of the placita parliamentaria in the of ed. . nicolas de segrave being with the king in an expedition into scotland , had a quarrel with iohn de crumbwell , left the kings army , and went to fight with crumbwell in france : he was for this by the kings command at his return summoned to appear in parliament , which he did , uenit in pleno parliamento in presentia ipsius domini regis , archiepiscopi cantuariensis & plurimorum episcoporum , comitum , baronum & aliorum de consilio domini regis tunc ibidem existentium , he came into the parliament before the king , the archbishop of canterbury , and many other bishops , earls , barons , and others of the kings counsel there present . the business is opened before them by nicolas de warwick , who charged him with leaving the king amongst his enemies , and doing what in him lay to expose him unto their power ; whether the bishops continued in parliament to hear this , appears not by the record , but it appears clearly , that they were not to meddle in it , not so much as to advise upon it , for it follows , et super hoc dominus rex volens habere avisiamentum comitum ▪ baronum , magnatum & aliorum de consilio suo , injunxit eisdem in homagio , fidelitate & ligiancia quibus ei tenentur , quod ipsum fideliter consulerent qualis poena , pro tali facto sic cognito fuerit infligenda . qui omnes habito super hoc diligenti tractatu & avisiamento consideratis & intellectis omnibus in dicto facto contentis , & per predictum nicolaum plene & expresse cognitis dicunt , quod hujusmodi meretur penam amissionis vite , the king willing to have the advice of the earls , barons , and other great men of his counsel , injoyned them upon the homage , fidelity , and allegeance which they owe him , to give him faithful counsel , what punishment was to be inflicted upon such a crime so confessed , who all upon a serious debate and advising upon the matter , and well weighing all the particulars of it , and what was by the said nicolas expresly acknowledged , do say , that such a man deserved to lose his life , but the king pardoned him afterwards . still you see bishops are not so much as advised withal in a case of life and death . this we see hath been the usage in parliament all along , since the journals and records can give us any light of what was there done . and out of history i can go further , and cite you an ancienter president than all these : in edward the confessors time , who in a parliament convened in london , as brompton relates it in his chronicle , col. . upon earl godwin's appearing there , who was said to have formerly murthered alfred the kings brother , presently cried out , proditor godwine ego te appello de morte alfredi fratis mei , quem proditionaliter occidisti , cui godwinus se excusando respondit , domine mi rex salva reverentia & gratia vestra , pace & dominatione , fratrem vestrum nunquam prodidi nec occidi , unde super hoc pono me in consideratione curie vestre . tunc dixit rex , carissimi domini comites & barones terre qui estis homines mei legii hic congregati , & appellum meum responsumque godwini audistis , volo quod inter nos rectum judicium decernatis , & debitam justiciam faciatis , comitibus vero & baronibus super hoc ad invicem tractantibus , &c. thou traitor godwin , i do accuse thee of the death of my brother alfred , whom thou didst treacherously kill ; whom godwin answered , excusing himself , my king , with reverence to your grace , and to your government , and with your good leave i have not used treachery to your brother , nor have i killed him , and of this i refer my self to the iudgment of your court. then the king said , dear lords , earls , and barons of the land , who are my liege people here assembled , you have heard my appeal , and godwins answer , i will have you to decree righteous iudgment betwixt us , and to do that iustice which ought to be done . and the earls and barons debating this among themselves , some were of one opinion , some of another , and at last they agreed to offer the king a great sum of money , and to beseech him that he would take off his displeasure from earl godwin , and pardon him . the historian adds , quorum considerationi rex contradicere nolens , quicquid judicaverant per omnia ratificavit , whose opinion the king not willing to contradict , agreed to , and ratified all that they had done : here we see it was only ad comites & barones that he appealed , and they were only to judge of it , and no bishops nor prelates . but some i hear alledge a president in h. . of archbishop becket , who was at a great council solemne consilium at northampton accused of treason , and other misdemeanors , where bishops were his judges , as well as temporal lords . this they fetch out of mr. seldens titles of honour , who cites for it a manuscript made by a monk , called stephanides , or fitz-stephen , and there it is said , that the archbishop was accused lese majestatis regie corone , quia est a rege citatus in causa johannis neque venerat , neque idonee se excusasset , accused of treason because being summoned by the king in the cause of one john le mareschal , and he neither came himself , nor sent a sufficient excuse , and that for it he was sentenced to forfeit all his movables , and that the lords and the bishops could not agree upon pronouncing the judgment , they putting it off from one to the other , and that at last the king commanded the bishop of winchester to do it : this is what that manuscript saith . but none of the ancient historians of those times say any thing of his being accused of treason . and which makes it the more unlikely , is , that it was soon after that solemn ratification of the constitutions of clarendon , which all both bishops and lords , had sworn to observe for ever , declaring them then to be the law of the land , and to be consuetudines & libertates antecessorum suorum , the customs and priviledges of their ancestors , ( which makes me say , it was rather a declaring what was the law before , than making a new law ; though what was then done , was sufficient to make it a law , if it had not been so before : ) and one of these constitutions was , that the prelates of the church should not interesse judiciis curie regis , be present at the iudgments given in the kings courts , when loss of members or life was in question . this great council or parliament was in february at clarendon , and the other at northampton was in october following ; so it is not likely they should so soon forget , and do contrary to what they had bound themselves to so lately by a solemn oath publickly in open parliament : and i think one may modestly affirm , that it was a mistake in the writer of that manuscript to say , that the archbishop was then charged with treason : gervasius dorobernensis saith , he was charged with two things ; one , not doing justice in his ecclesiastical court to one iohn , ( who was iohn the mareschal , that complained of the archbishops detaining some land from him ; ) the other , that being sent for by the king upon occasion of mareschals complaint , he came not : the first he excused , laying the fault upon mareschal himself for abusing the court , bringing veterum cantuum codicillum , and old song-book , to swear upon , and refusing to swear super evangelium , ut moris est , upon the evangelists , as the custom is , whereby he said he did curiam suam infamare , defame his court. the other he answered , proving by two sufficient witnesses , per duos legales viros , that it was sickness hindred him , and not any contempt . this is the account which gervasius gives , and saith not a word of any treason ; neither doth matthew paris , nor roger hoveden , who both of them give a relation of that proceeding at northampton against the archbishop . and to say the truth , it would be a strange high treason , only not to come being sent for by the king , though there had been no sickness in the case , at most it could have been but a high contempt , and punishable by fine and imprisonment , or the like ; and probable it is , that fitz-stephen , who was a creature of the archbishops , might represent it so , only to draw more odium upon the king for his severity against the bishop , even to an injustice , when in truth there was no such thing . however we may look upon it , as but a weak president for the bishops to lay any weight upon to prove their right to sit , and vote , and judge in a capital cause , causa sanguinis , being at the best but out of a blind manuscript of an author justly suspected of great partiality , against the tenour of all the ancient writers that give an account of the same business . but we must go a step further to clear this matter in question , for it seems some of the bishops do say , that though they will have no part in the condemnation and pronouncing judgment upon a criminal person , as to loss of life or member , yet they may and will vote and judge in such things as are but preliminary and preparatory to that condemnation , and yet think they have no hand in bloud , though they have a hand in doing that , which will infallibly cause the taking away of of a mans life , and shedding of his blood , so they would divide two things which in truth have so near a relation and dependency the one upon the other , as they are only separated by a little time coming between ; one thing to be done first , and that being done , the other must necessarily follow , and be done presently after : and they doing the former , may be well said to do the latter ; and if any law prohibit them from having to do with the latter , the same law doth and must prohibit them medling with the former . it is a rule in logick , causa causae est causa causati . if the judgments of the bishops determine one thing , which is the necessary cause of any other thing , their judgment may be said , and really it doth determine the other thing . as take for example the particular case upon which this question hath been moved , the earl of danbyes pardon , of the validity or invalidity whereof they will be judges : it is hoped they will be just judges , and incline neither way , but according to the merits of the cause before them , so what their judgment will be till they have heard all , themselves cannot tell . now , if by their judgment the pardon be determined to be invalid and illegal , and that carry with it a conviction of the crime of which he stands impeached ( as some will have it to do , saying , that the taking of a pardon implies a guilt , and is in law a confession of the crime pardoned ) and so his condemnation must necessarily follow even for treason , the impeachment being so , doth not their judgment subject him to that condemnation ? how then can they say , we will have no part in condemning him ? is not this something like the frier in chaucer , that would have , of a capon the liver , of a pig the head , yet would that nothing for him should be dead : so they forsooth will take upon them to judge his pardon to be no pardon , which brings on infallibly his condemnation , and yet say with that frier , god forbid he should die for us , that we should have any hand in his bloud : but certainly this will not pass for currant either in foro iudicii , or foro conscientiae , to excuse them from being actors in his condemnation . to evade this , some say the bishops may be present , and hear what will be said pro and con concerning this pardon , and those only shall deliver their opinions and judgments of it , who are satisfied of the validity and legality of it , but those amongst them who are of another mind , shall withdraw and give no vote , and then it cannot be said that any of them have a hand in condemning him . but how this will sute with the office of a judge let any man judge , whose duty it is to condemn the guilty , as well as to acquit the innocent , and who ought to do the one or the other in every business that comes before him , as he finds ground for it upon hearing the allegations , and proofs : and besides , it is most unparliamentary , for in parliament all who are at the debate of a business , ought to give their vote to the question one way or other , according to their sense of it , and as they in their consciences think it just . but to break thorough all at once they will have it , that it is only by the canon law that this restraint is upon them , and that the forbearance of their predecessors being papists , and so subject to that law , was only in that respect ; which law being of no force at present , and taken away by act of parliament , they are now at liberty , though in modesty they think sit sometimes to withdraw , but have a right to continue sitting , if they please . to which in answer i shall say , that i will not deny but that the canon law might give the first rise , and a beginning to such an usage , and no law could be of greater force to introduce and establish such a thing , as being that to which only the clergy of those times would be subject , conceiving themselves to be above , and not bound by any other : but it is most clear , that it came afterwards to receive a civil sanction , and to have not only the stamp of the authority of parliament set upon it by the continual practice there , and we know that consuetudo parliamenti est lex parliamenti , the custom of parliament is the law of parliament : but that two several times there have been particular and express confirmations , and ratifications of it in parliament , which makes it a statute law of the land , as much as any other can be , which we have in our printed statute books . the first time was at a great council , which was then their parliament , at clarendon about the of h. . where were made that which they call the constitutions of clarendon , which were not new things then first made , but a recapitulation of some things that had been in use and practice in former times . matthew paris and gervasius dorobornensis recite them at large , other ancient historians more succinctly : there were of them sixteen in number : matthew paris gives the best account of them , and of the whole proceeding in that affair . he tells you , how the archbishops , bishops , abbots , priors , earls , barons , and other great ones aliis proceribus being present , facta est recognitio , sive recordatio partis consuetudinum & libertatum antecessorum suorum , a recapitulation or a rehearsal was made of the liberties and customs of their ancestors in the time of h. . and of other kings ; so it was not a new law , and but then enacted , but it was indeed a declaration of what was the law before , yet then more solemnly enjoyned , in regno observari & ab omnibus teneri , to be in the kingdom observed and kept by all men : and this in regard of differences oft times arising between the kings justices and the clergy , propter dissensiones & discordias saepe emergentes inter clerum , & iusticiarios domini regis , that popish clergy being still apt enough to encroach upon the civil power , which made it the more necessary to revive and re-establish the old law and custom of the kingdom . sixteen articles were then agreed upon , one of which , the eleventh , runs thus , archiepiscopi , episcopi , & universe persone regni , qui de rege tenent in capite habeant possessiones suas de rege , sicut baroniam , & inde respondeant iusticiariis & ministris regis , & sequantur , & faciant omnes consuetudines regias . et sicut ceteri barones , debent interesse iudiciis curie regis , quousque perveniatur ad diminutionem membrorum vel ad mortem ; the archbishops , bishops , and all the dignified clergy of the land , that hold of the king in capite , shall hold their possessions from the king , as a barony , and answer for their estates unto the kings iustices and ministers , and shall observe and obey all the kings laws . and together with the other barons they are to be present at all iudgments in the kings courts , till it come to require either loss of member or life . and this article as well as the rest they are sworn to observe . see how the author expresseth it , hanc recognitionem sive recordationem de consuetudinibus & libertatibus iniquis archiepiscopi , episcopi , abbates , priores , & clerus cum comitibus , baronibus , & proceribus , cunctis juraverunt , & firmiter in verbo veritatis promiserunt viva voce tenendas & observandas domino regi & heredibus suis , bona fide , & absque malo ingenio in perpetuum , this recognition or recordation of these wicked customs and liberties did the archbishops , bishops , abbots , priors , and the whole clergy , together with the earls , barons , and all the great men swear to , and firmly promise upon the word of truth , by word of mouth , that they should be kept and observed to the king and his heirs in true faith without any evil meaning for ever . now , can there be a more solemn establishing , and a stronger confirmation of any law to have it inviolably observed and obeyed by the whole nation that this we find here ? where besides the authority of the parliament , ( for these great councils were the parliaments of those times ) there is an oath , which is the greatest obligation that mankind is capable of , making even god a party to it , to see it obeyed , and punish the transgressors . and from whom have we the testimony of these transactions to assure us of the matter of fact ? from matthew paris a monk , one that would not be partial for the lords temporal in relating matters to give them more power in judicature , and less to the lords spiritual , than of right belonged to each , and looking upon this exclusion of the prelats from the power of judging in such cases , to be some diminution of their omnipotency , which they were so ambitious of , he therefore ranks it amongst the consuetudines iniquas the wicked customs of the former times . so we have here testimonium irrefragabile an irrefragable and invincible testimony , upon which we may build our faith , and have a certain assurance that there was really such an usage in ancient times , and that it was then in that . year of h. . again ratified and confirmed , since these monks have so recorded it , and transmitted it to posterity . the second time time that this received a confirmation in parliament was the of r. . which i mentioned before , when the arch-bishop of canterbury and the other bishops upon their withdrawing then from the parliament in regard matters of bloud were to be there agitated , and determined , in quibus non licet alicui eorum personaliter interesse , as they say , in which it was not lawful for any of them to be present in person , did therefore enter a protestation with a salvo to their right of sitting and voting in that and all other parliaments , when such matters were not in question : which protestation of theirs was at their desire enrolled in full parliament ( as the record saith ) par commandment du roy , & assent des seigneurs temporelz & communes , by the kings command with the assent of the lords temporal and commons . so indeed it was here a perfect and compleat act of parliament , and if it had not been a law be-before , would than have been made one . but it was a law before , and this needed not , to make it more a law than it was before ; yet certainly what was here done must be of some signification , and add some weight , that it may be said at least , that it seems to enforce some greater compliance with it , and to heighten the offence of such as will not conform to it . and by the way , let me desire to be well understood what i mean by saying , this would make it a law if it was not one before , i do not mean the protestation would be a law , for a protestation modo & forma cannot be a law , but the subject matter of it was then enacted ; which did consist of two particulars , the one , that the prelates had a right and a priviledge to sit and vote in parliament in all other businesses ; the other , that they had no right , nor was it lawful for them to be present in parliament when such businesses were in question : which one would think they might look upon as a right and priviledge , to be exempt from being obliged to attend in such cases , cases of bloud : as the lords temporal , who are peers of the realm , challenge it to be their right and priviledge not to be returned in juries upon the trial of commoners . though , to speak the truth , i doubt those prelates did not much desire this priviledge , but the salvo to their right of sitting in all parliaments to have been what they aimed at most in their protestation , and which they would have to be enrolled , but the one could not be without the other ; and upon no terms would they admit the least scruple should be of their right to sit in parliament , which their withdrawing at that time might seem else to call in some question as they thought , and therefore they would make that protestation ; for that popish clergy was very ambitious , and loved to have the rule over all persons and things ; we see it by matthew paris how he branded those constitutions of clarendon with terming them consuetudines iniquas , and the archbishop becket himself after he had sworn to them , repented him of it , and enjoyned a severe penance to himself , and suspended himself from the office of the altar for several months , till he had the popes absolution . this makes me doubt if the clergy was of another mind in richard the seconds time , and if they could not have been well enough contented to have continued sitting as judges in all cases , if the canon law had not debarred them , but that being they would make that protestation , consisting , as i say , of those two parts , both which being so approved of by the parliament , and there enrolled , became then , and so continue to be , the law of the kingdom : for in those times all laws were so made : only the substance of the law was agreed upon in parliament by king , lords , and commons , and entred in the journal book ; and the kings justices did afterwards draw it up into form , and then publish it to be the known standing law of the kingdom . but that was not needful here , because it was not a new thing , that did then receive its first being . neither , i say , was it new before in henry the seconds time , it appearing by what was then transacted , that it was in usage in henry the firsts time , only it was ratified in that great council of clarendon under henry the second with a little more solemnity , and the addition of an oath for the better observance of it . and we may carry it yet a little higher to edward the confessors days , as appears by his appeal against earl godwin in a great council , which was their parliament , and how long it had been the use and practice before that , god knows . in e. th . time it was the declared law of the land , you have it in the year-book of e. . term. pas. n. . the words are , quant un sr. est endite ceo serra maunde en le parliament & la le seneschal d' engleterre le mettra a respondre & il dira de rien culpable , & se sera trie per pares suos , donque les seigniors espirituelx , que ne poient consent al mort de home , ferront un procurator en le parliament & donque le seneschal doit examiner primes le pluis puisne seignior que est , sil soit culpable , & issint separatim a toues les seigniors queux sont la , &c. when a lord is indicted it shall be returned into parliament , and there the steward of england shall put him to answer , and he shall say , not guilty , and this shall be tried by his peers , and then the lords spiritual , who may not consent to the death of any man , shall make their procurator in parliament , and then the lord steward shall ask the youngest lord , if he be guilty , and so severally all the lords that are there , &c. this i alledge to shew that even by the law of the land , the bishops cannot be judges in a case capital ; it is true here is mention made of their making a proctor , which was error temporis , the errour of those times , grounded upon what was so lately done , ( as they looked upon it ) though irregularly done in the last parliament of r. . whom they considered as their last lawful king ; and in truth he was so , the three henries that came between being but usurpers ; and therefore they had , it seems , a deference for what was then done , though as i have already said , it was never done before , nor is it in truth a thing very practicable and not at all parliamentary , to have one man , or two men ( as we see it was also done that parliament , ) represent the whole bench of bishops . and more than all this ( as i have already observed , which it seems , was not then thought of ) that whole parliament of r. . stands repealed , and all that was done in it declared by a subsequent act of parliament to be null and void . but this is but by the way ; my intent in quoting this book case , is onely to shew that the bishops were not excluded judging in capital cases by the canon law alone , but that the law of the land did likewise confirm it , and the courts of westminster did so conceive of it . so i think i may well conclude , and with some confidence affirm , that bishops now are not to be judges to sit and vote in parliament in any trial , or part of a trial , that is , in any circumstance , which doth any ways lead or conduce to such a trial of any capital offender , but the whole judgment is singly and wholly in the lords temporal , and to them onely such judgments do belong , as was challenged by them in the case of the earl of northumberland , h. . and is so declared to be in several other cases upon the rolls of parliament . and having thus delivered you my opinion , and my grounds for that opinion , i submit it to your judgment and rest , sir , your humble servant . postscript . sir , as i was closing my letter , two papers were brought me , one in written hand , the other printed , which maintain an opinion clean contrary to mine ; i shall tell you what they say , and give my answer to it , then leave it to you to determine , who is in the right . the written paper , to prove their right of judicature in all cases , none excepted , declares bishops to be peers of the land , and a third estate in parliament , and therefore are not to be excluded from being judges in all cases , as well capital as other . to prove them peers of the land he urges statute law , and common law ; for the statute law , he alledges the of ed. . c. . and the of h. . c. . first , for the statute law , let me tell you , it is not every expression obiter upon the by , that is in the preamble of a statute ( as this is of bishops to be called peers in these statutes ) that makes a thing pass for law , except it be by way of declaration , declaring it to be a law , or reciting it as a law before made : and then i shall shew you how these two particular statutes run , and what they are . that of the e. . it is true , hath in the preamble , that the prelates had prayed the king that their temporalties thenceforth might not be seised upon for such contempts , sith they were peers of the land , that is , by their own sayings they were peers , for so it was only , the statute doth not make them so . the record is , that among the petitions of the clergy , one is come ercevesques & evesques tiegnent lour temporaltees du roi en chief & pertant sont pieres de la terre , come sont autres countees & barons , quil vous pleise a eux graunter que nul iustice pur soul contemptz puisse desoremes lour temporaltees faire prendre , &c. seeing archbishops and bishops hold their temporalties of the king in capite , and therefore are peers of the land as are other earls and barons , that you will be pleased to grant unto them , that no iudge may henceforward for meer contempts cause their temporalties to be seised : the answer is , that the law is so , and cannot be changed , but the king is willing that in such cases a reasonable fine may be taken . so you see they indeed call themselves peers , which the king takes no notice of in his answer , but speaks to the matter of their petition ; and even in his answer intimates , that they are not in the same condition with earls and barons , for he saith the law is so for them , that is , that they should forfeit their temporalties for such contempts , which no man will say was the law for earls and barons to forfeit their lands for any contempt , but well were they liable perhaps to pay a good fine for it : so then i may say that those bishops were a little mistaken , to affirm that they were peers of the land just as other earls and barons are . the other statute is of the h. . and is only concerning ireland , it saith , that by a statute in ireland , no irishman was to be preferred to any dignity in the church , and yet some were made archbishops and bishops , and they make their collations to irish clerks , then follows , and whereas they are said to be peers of the parliament in the same land , they bring with them irish servants to parliaments and councils , who give intelligence to the irish rebels . that statute is now confirmed ; and what this makes to prove the english bishops peers of the land , i see not , nor i think no body else can , at most it can but declare them to be peers of the parliament of ireland , and it is too , even for those irish bishops , but that they are so said to be , that is , said to be peers , not that they are so . but to prove that they are not peers of england , i think we have a better law , even magna charta it self ; it saith , that every man who is tried at the kings sute must be tried by his peers : now , if a bishop be tried for any capital offence , he is tried by the commoners , and that is the common law of the land , it hath ever been so , never otherwise ; then must commoners be his peers , and he and commoners must be pares . the great charter of englands liberties magna charta declares them so : a temporal lord , duke , earl , or baron cannot be judge in the case of a bishop , except it be in parliament , where the temporal lords be the sole judges , and those to whom judgment doth properly belong : nor on the other side can any bishop be their judge , how then can they be said to be pares , fellow peers ? for my part i see not . then for their being a third estate in parliament ( for which that writer alledges mr. seldens authority ) is a thing so contrary to reason , as i can no ways yield to it . first , let me lay this foundation , that i do acknowledge the subjects of england to be divided into three estates , the nobility , the clergy , and the commonalty ; these are the several estates of the kingdom , and the bishops are part , and the chief part of one of these , viz. the clergy : and sometimes these three estates have joyned in some transactions , as h. . in the ratification of a peace with the king of france , charles the sixth , who had desired it should be so , he having had it ratified in france by the three estates there ; the record saith , uolensque idem serenissimus dominus noster pro parte sua dictam pacem & omnia & singula contenta in ea modo consimili per ipsum & tres status regni sui jurari , firmari & roborari , prout ex dicte pacis tenore astringitur & obligatur , dictam pacem bene & fideliter in omnibus se observanturum in verbo regio , & ad sancta evangelia per ipsum corporaliter tacta juravit & promisit , ac dictos tres status , viz. prelatos & clerum , nobiles & magnates , nec non communitates dicti regni sui secundo maii ad palatium suum westminst . ad majora firmitatem & robur pacis predicte fecit congregari , quibus quidem tribus statibus per cancellarium suum tenorem dicte pacis & singulos articulos ejusdem seriose exponi fecit , &c. the king willing for his part , that the said peace , and all the particulars of it should in like manner be sworn to , confirmed , and ratified by him and the three estates of his kingdom , according as he was obliged by the tenour of it to do , did swear and promise , laying his hand upon the holy evangelists , in the word of a king , that he would well and faithfully observe and keep it in every circumstance ; and the said three estates , to wit , the prelates and clergy for one , the nobles and great men for another , and the commons for the third , he caused to come before him the second of may at his palace of westminster for the better confirmation and strengthening of the peace , to which three estates he caused his chancellour to declare what the peace was , and every article thereof &c. here indeed the prelates , and all the clergy together with them , are declared to be one of the three estates of the kingdom , which is to be understood as they are assembled in the convocation , where all are present in their persons , or their representatives , but this is no part of the parliament , nor is it any ways entrusted with the legislative power , though it assemble in parliament time . and in h. . the very same case hapned again , and the three estates of the kingdom joyned with the king in the ratification of a peace with france in the same manner . but the three estates of parliament are clean another thing , each must have a negative voice to all that passeth there . if the major part of the house of commons be against any thing there proposed , there is an end of it , it is rejected . it is the same in the house of lords , and the bishops are intermingled with the temporal lords in making up that majority , as part of that majority : whereas were they one of the estates , reason would they should vote by themselves , separately from the other l ds , which would make another estate ; but they do not only not vote apart by themselves the whole body of them together , but even that body is divided and separated within it self , one part from another . for the two archbishops give their votes after all the nobility have given theirs , and the rest of the bishops between the barons and the viscounts , so that the barons excepted , all the rest of the peers , dukes , marquesses , earls , and viscounts divide the archbishops from the bishops : if then they be an estate , it is an estate within an estate , like a nest of boxes one within another , which how agreeable it is to reason , let any man judge . besides , would it be for the honour of the house of lords , that two estates must be put together to keep the ballance even with the house of commons , who are but one estate , and that their two should signifie no more than that one ? and most clearly it would be a great disparagement to the peerage of the kingdom , the temporal lords , and would make them to be a poor estate , that another estate must be joyned to them , to make up their negative voice , and set them upon even ground with the house of commons . but this is further to be said , were the bishops one of the three estates , a parliament could not be held without them , no law , no act of parliament could be made , if the major part of the bench of bishops did not agree to it ; but we know it to be otherwise in point of fact . parliaments have sate without a bishop , and acts of parliament have been made the bishops dissenting , and our law-books say it may be so in point of law : that it hath been so , bishop iewel acknowledges it in his defence of the apology of the church of england , p. . he bids you read the statutes of ed. . and you will find , that in a parliament solemnly holden by him at st. edmunds bury the archbishops and bishops were quite shut forth ; and yet the parliament held on , and good and wholsom laws were there enacted , the record saying , habito rex cum suis baronibus parliamento , & clero excluso , &c. the king holding a parliament with his barons , and excluding the clergy , &c. crompton hath this likewise in his book of courts under the title , parliament , p. . b. so certainly that king did not believe his clergy to be a third estate of his parliament , or he would never have left them out : for it must necessarily have followed that his parliament would have been lame and imperfect : but doubtless he knew the law to be , as all the judges of england said it was in henry the eighths time when the question was , as the title of the book case runs in keilways reports , p. . b. lou supreme iurisdiction perteigne al roy ou al pape , to whom the supreme iurisdiction belongs to the king or the pope ? for that hath still been in competition between the crown and that clergy , i mean the popish clergy . it is in dr. standishes case , h. . p. . b. les iustices disoient que nostre sr. le roy poit assez bien tener son parlement per luy & ses temporal seigniors & per ses commons , tout sans les spirituals seigniors , car les spiritual seigniors nont ascunt place en le parlement chamber per reason de lour spiritualtie , meis solement per reason de lour temporal possessions , the iudges said , that our lord the king might well enough hold his parliament by himself and the lords temporal and his commons , wholly without lords spiritual , for the lords spiritual have no place in parliament by reason of their spiritualty , but by reason of their temporal possessions ; that is , holding their lands , their temporal possessions in nature of baronies , sicut baroniam , as it is in the constitutions of clarendon , not that they were truly and really barons , enobled in bloud , but by their tenure of such land dignified to sit in parliament , and do the king service there , as the temporal lords by their tenure were bound to do . for this was the policy of william the first , he divided all the lands that escheated to him by his conquest into so many knights fees , and so many knights fees he erected into a barony , the temporalties of bishops likewise , and so of many abbots and priors he erected into baronies , all to hold of him in capite , and upon account of those baronies both the temporal lords and the spiritual lords , not only bishops , but also those abbots and priors had of right place in parliament , and were bound to serve him there : now , i would ask if they all holding by one tenure , and by that tenure sitting in parliament could possibly be imagined to be two different estates ? certainly , they could not be then two different estates , for they were all feodal barons ; and what hath since hapned to make a difference ? the change hath been only this ; the temporal lords holding so by their tenure grew so numerous , that king iohn put them into two ranks , of barones majores , and barones minores , and only the majores had writs of summons to come to parliament . afterwards in richard the seconds time barons were created by patent , and so had place and vote in parliament . i ask now , if it be probable , nay , if it be possible , that this should alter the constitution of parliament , that that house which before consisted but of one of the estates , should now be divided into two estates . they are still qualified to be members of parliament as before , a baron sate as a baron , an earl as an earl ; being made by patent , or by writ , or by holding such a proportion of land , alters not the case as to their sitting in parliament , for it is being of such a degree , which makes them peers of parliament , how they rose to that degree is not material . and what should make the lords spiritual , who have received no change in their being called to be members of that house , to be now an estate by themselves , which they were not before ? i profess i see not the least colour of reason to think there should be any change , but as they were in the beginning , so they are still , no other than fellow members of that house with the temporal lords , and together make up one house . but this is also to be considered , that if the bishops were a third estate of parliament , not only the parliament could not be held without them , but nothing could pass in parliament , that at least the major part of them should not assent to : but so far from that , not only what we find in the journals of former times , but daily experience tells us , that acts have passed not only when the major part of that bench was against them , but many times when the whole bench was strongly of another mind . r. . the bishops upon occasion of the statute of provisors enter a protestation against whatsoever should be done in derogation or restriction of the power of their holy father the pope , saying they were sworn to his holiness , and to the court of rome : these were likely to make a good third estate of an english parliament : and is it not then a wonder that any engiish man should desire to bring popery in again , for bishops to controule both king and parliament ? would it not set even monarchy it self one degree lower ? sure it would : but this is by the way . consider further , that if they had had such a power of being a third estate in the days of queen elizabeth , those good acts for a reformation in religion had never pased , and the reformation had never been . eliz. the bill for restoring the first fruits and tenths to the imperial crown of england , which passed february . the bill for restoring the supremacy to the crown , and repealing divers acts made to the contrary , which passed march . the bill giving authority to the queen upon avoidance of a bishoprick to take some part of the temporalties into her hands , recompensing the same with impropriate parsonages , which passed april . all the bishops present were against the passing of these bills . and before that , in edward the sixths time , they were against the bill for priests to marry , which passed feb. . e. . so the bill for ordering ecclesiastical ministers , giving power to six prelates , and six other men , learned in the laws , to set down the form and manner of their consecration , which passed ian. . e. . the bill for nominating thirty two persons to peruse the ecclesiastical laws , which passed ian. . the bill for abolishing and putting away divers superstitious books , as legends , missals , processionals , and the like , and taking away images out of churches and chappels , which passed also that parliament . all these good bills the bishops were against , yet they passed into laws , and were the foundation of our reformation , which , had they been a third estate , had never been laid , for those bills had not passed . but you will say perhaps , that we need not fear such mischiefs and inconvenience from our protestant bishops , and i grant it , nor do i urge these things with any such apprehension ; i only shew you what the popish bishops did then , and that if they had been a third estate , such mischiefs would have followed upon it , and thence to infer , that they were not in those times so accounted , and that our protestant bishops cannot then pretend to it now , they then , and these now having place and vote in parliament upon the same terms . but then we have good authority to inform us which are truly the three estates : king iames seems to make it clear in a speech he made at the prorogation of the parliament in the year . the words are these , as for the thing it self ( that is , the parliament ) it is composed of a head and a body , the head is the king , the body are the members of the parliament ; this body again is subdivided into two parts , the vpper and the lower house . the vpper house compounded partly of nobility , temporal men , who are heritable counsellours to the high court of parliament by the honour of their creation and lands ; and partly of bishops , spiritual men , who are likewise by the virtue of their place and dignity counsellours , life renters , or advitam of this court. the other house is composed of knights for the shires and gentry , and burgesses for the towns. but because the number would be infinite for all the gentlemen and burgesses to be present at every parliament , therefore a certain number is selected and chosen out of the great body , serving only for that parliament , where their persons are the representation of that body . you see that wise king makes the body to consist of two parts , the upper house , or the house of lords to be one of those parts , consisting of lords temporal , and lords spiritual , who together make one part ; and the house of commons another part : it is true , he calls neither of them an estate , but most certain he cannot be thought to understand the spiritual lords to be an estate by themselves , making them to be but a part of one of the parts of that body : for by the same reason he may be said to make the house of commons consist of two estates , saying , it is composed of knights of the shires , and burgesses for the towns. but king charles the first is plainer in his expressions , in his answer to the nineteen propositions sent to him from the two houses , iune . . he tells them , that neither one estate should transact what is proper for two , nor two what is proper for three . and in that same answer he saith a little after , it is most unreasonable that two estates proposing something to the third , the third should be bound to take no advice whether it were fit to pass , but from those two , who did propose it . nothing can be clearer than this , to shew what the opinion of that good king was concerning the three estates in parliament . and h. . n. . it is so declared by the house of commons even to the king himself , and to the lords , that the three estates of parliament are the king , the lords spiritual and temporal , and the commons , who should all be at an vnity among themselves , and therefore hearing there were some differences between the lords , they humbly prayed the king to compose them . and stephen gardiner bishop of winchester , sometime lord chancellor , an ancient parliament-man in henry the eighths time , who well understood the constitution of parliaments , in his letter to the lord protector in edward the sixths time , which letter is in the second volume of the book of martyrs , printed in . p. . doth acknowledge it , and saith , that the three estates make a law , and compares the three estates in parliament to the three christian vertues , faith , hope , and charity , and saith , that it were the same absurdity and untruth to say the higher house and the lower house exclude the king in the office of making laws , as it would be in religion to say , that faith excludeth charity in the office of justification . here you have the testimony of a bishop : i confess , a popish bishop , as you may see by his application of this simile , to make charity ( that is , works of charity ) to have a part in justification . but i meddle not with his divinity : as to that which he saith of the estates in parliament , he is in the right , and he was one that knew well enough what was due to the order of bishops , even to the full extent of it , and would not have shortned it the breadth of one hair , yet he makes them not an estate by themselves , but as joyned with the lords temporal . then for the common law , you have finch in his book of law dedicated to king iames , the first chapter of the second book , p. . who saith the very same thing in very plain terms : his words are these , lassemblie de ceux trois estates c ' est assavoir , roy , nobilitie , & commons , qui sont le corps del realme , est appel une parlement , & lour decree un act de parlement , car sans touts troys ( come si soit fait per roy & seigniors , mes rien parle del commons ) nest ascun act de parlement , the assembly of the three estates , that is to say , king , nobles , and commons , who are the body of the realm , is called a parliament , and their decree is an act of parliament , for without all three ( as if it were done by the king and lords , and no mention of the commons ) it is no act of parliament . can any thing be plainer ? you see now with how little appearance of truth the writer of that paper takes upon him to declare bishops to be either peers of the land , or one of the three estates , and what ill topicks he hath chosen to prove them to have right of judicature in all cases criminal and capital , for that is his assertion upon it . for what he cites out of some year-books , that in some pleadings their counsel calls them peers , will not make them so ; nay , should the judges themselves stile them peers , as perhaps they might complement the potent clergy of those days , it could not alter the law of the land , which makes commoners their peers , seeing they are to be tried by commoners . as for matter of fact , to prove that they have judged in capital cases , he cites the protestation in the eleventh of r. . and then their making their procurator , and so judging by proxy in the of r. . to which i need say nothing in this postscript , having so largely in my letter treated of it . then he gives many precedents of their voting in bills of attainder , which is all not to the purpose , for that is not in question . acts of attainder are laws , and every freeman is supposed to give his consent to every law , either by his representative , or in person if a member of parliament ; and bishops being members may i think claim to do it personally . so i have done with the paper , and come to the printed book , stiled , the honours of the lords spiritual asserted ; and six chapters are taken up in blazoning their honour , which no body endeavours to take from them , nor do i think it to be any part or degree of honour , to judge men to death . it is certainly an employment which in my opinion no body will envy to any that hath it . then for those great places which the bishops enjoyed here in england , mentioned in the fifth chapter , i no ways wonder at it ; we know , that popish clergy had ambition enough to covet to have the whole rule , and in those blind and superstitious times power enough to obtain what they had a mind to , both prince and people in a manner awed by them ; who yet sometimes would complain , and break out a little , as scholars sometimes rise against their school-masters . so e. . the two houses joyn , countes , barones & communes , and represent to the king , how the government of the kingdom had been a long time in the hands of the clergy , per ent grant mischiefs & dammages sont avenuz en temps passe & pluis purroit eschier en temps avenir al disherison de la coronne , & grant prejudice du royalme , whereby great mischiefs and damages have happened in times past , and more may fall out in time to come , to the disherison of the crown , and great prejudice to the realm ; and therefore they humbly pray the king , that he would employ laymen . so r. . the commons complain , that the king kept so many bishops about him in his court , and advanced them and their followers . therefore you see it was not always pleasing to the kingdom : but all this is by the by ; though that author takes a great deal of pains to enlarge himself upon this subject , which is not at all to our purpose , nor deciding the point in question one way or other . in his two last chapters , the seventh and the eighth only , he toucheth upon it . he first gives this for a rule , that it was the common usage and right of the bishops in ancient times to sit and vote in parliament in all cases , as well criminal as otherwise , either by themselves or their proxies . as for their proxies , as i have already said , it was never done but in one parliament , which parliament is repealed , and all that was done in it , of no signification . and besides , as i have already told you in my letter , if that parliament had not been repealed , yet that unparliamentary nonsensical action of the whole bench of bishops , and all the clergy with them , empowering one man , as they did sir thomas percy , to give one vote for them all , shews the manifest indispensable unlawfulness of their being personally present , that rather than that should be , such an irrational unprecedented thing should be admitted of ; which is my answer to all that he saith , and to the precedent that he quotes out of the of r. . now let us examine what he saith of their being in person present at such trials . he quotes bromptons chronicle , reciting among the laws of king athelstan this concerning bishops , i will cite brompton's words right as they are , episcopo jure pertinet omnem rectitudinem promovere dei , viz. & seculi , it appertains of right to a bishop , to promote that which is right both concerning god and the world. a little after he saith , debet etiam sedulo pacem & concordiam operari cum seculi iudicibus , he ought likewise diligently together with the secular iudges to promote peace and concord . after he saith , debent episcopi cum seculi iudicibus interesse iudiciis ne permittant si possint , ut aliqua pravitatum germina pullulaverint , the bishops ought to be present in iudgments with the secular iudges , not to suffer any buds of wickedness to sprout if they can hinder it . then he tells you what they must do in their judgings , see that every man have right , that rich men do not oppress poor men , nor masters their servants , and the like , and to look to weights and measures , that there be no cozening nor cheating , but that they may live like christians . here is nothing of judging a capital crime ; far from it . his next authority is out of sir henry spelmans glossary upon the word comes ; there it is , comes presidebat foro comitatus , non solus , sed adjunctus episcopo , hic ut jus divinum , alter ut humanum diceret , alterque alteri auxilio esset & consilio , presertim episcopus comiti ; nam in hunc illi animadvertere sepe licuit , & errantem cohibere , the earl did preside in the county court , not alone , but joyned with the bishop : he , to deliver what was gods law ; the other , what was mans law : and that the one should help and counsel the other ; especially the bishop to do it to the earl , for it was lawful for him sometimes to reprove the other , and to reduce him , bring him into order if he went astray . he leaves out what the bishops work was , he omits that clause , episcopus ut jus divinum diceret , for this was not to try capital crimes : but sir henry spelman tells us further , that that court had cognisance but of petty matters , de causis magnatum & potentiorum non cognovit comes , nam he ad aulam regiam deferende , pauperum tantum & minus potentum judicabat . hinc & legibus nostris hodie prohibetur debili aut injuriarum actiones in comitatu intendere , si rei litigate valor non sit minor solidis , the earl hath not cognisance of great mens business , for such matters are to be brought into the kings courts , he only judges poor mens causes . hence it is , that by our law actions for debt and trespasses are not to be commenced in the county court , if it be for above the value of shillings . judge now i pray you , what all this makes to prove that bishops have right to judge of treason , felony , and those transcendent crimes which deserve death . he then quotes mr. selden , and makes him say , in his introduction to his treatise of the priviledges of the barons of england , that omnes praelati & magnates had this priviledge till the prelates lost it by the parliament of car. . i find no such thing there , he saith , that the prelacy had heretofore the first place in the summons , but that they had then lost it . and this i observe further , that mr. selden makes the whole upper house to be but one estate whether the bishops be there or no ; it was one estate formerly when the bishops had the priviledge of sitting there , and when they had the first place in the summons , and it was one estate then in mr. seldens time when they had lost that priviledge , but our assertor in the printed paper would take no notice of this . now i come to his precedents , he first begins with their proxies , and cites many parliaments where bishops gave proxies , which no man denies , and they do it still , only they give their proxies now only to bishops like themselves who are members of the house , not to such as are no members , as it seems they did then : but giving proxies to represent the whole bench of bishops , or any one bishop in any judgment of death , except in that one parliament of r. . i utterly deny . indeed he tells us of the . h. . and h. . that they did it it there in those parliaments , but i dare say he cannot find it there , i am sure i cannot , and i do verily believe he never looked there , but that he takes it upon trust out of the margin of pag. . of mr. seldens book of the priviledges of the baronage , where indeed there is such a quotation , but misplaced by the printer , having reference to what is said at the end of the paragraph , of thomas earl of salisbury , h. . endeavouring to reverse the attainder of his father , iohn earl of salisbury , who was attainted h. . and not at all concerning what is said of proxies in the first part of the paragraph , as our assertor would here apply it . then he cites a precedent or two to make out that bishops were personally present at the giving of some judgments of death , which if they be truly related , he saith something , but i believe they will be found to be of as little weight , as all he said before : his first is among the pleas of the crown , r. . of the impeachment , as he calls it , of the earl of arundel , and others , by the lords appellants , the earls of rutland , kent , huntington , and others . he saith the earl of arundel being brought to the bar by the lord nevil , constable of the tower , that the articles exhibited against him by the lords appellants were read , to which he only pleaded two pardons , which pardons not allowed , the lords appellants demanded judgment against him : whereupon the lord steward , by the assent of the king , bishops , and lords , adjudged the said earl guilty , and convict of all the articles , and thereby a traitor to the king and realm , and that he should be therefore hanged , drawn and quartered . this our assertor saith , who quotes sir robert cottons collections for it , and there indeed it is so , but methinks one should not venture to quote a record upon any mans allegation , without consulting the record it self , and that i am sure he hath not done , for it saith expresly , that it was only the lords temporal and sir thomas percy , proctor for the prelats , that gave that judgment . the words of the record are , sur quoy le dit duc de lancaster per commandement du roy & toutz les srs. temporels & mr. thomas percy aiant poair sufficiant des prelatz & clergie du roialme d'engleterre come piert de record en le dit parlement per assent du roy agarderent le dit counte d' arundel coupable & convict de toutz les pointz dount il est appellez , & per taunt luy ajuggerent traitour au roy & au roialme , & quil soit treinez , penduz decollez & quarterez , whereupon the said duke of lancaster by the kings command , and all the lords temporal , and sir thomas percy being sufficiently empowered by the bishops and clergy of the kingdom of england , as appears upon record in the said parliament , did by the kings assent declare the said earl of arundel guilty and convict of all the points of which he was accused , and therefore did adjudge him a traitor to the king and realm , and that he should be drawn , hanged , his head cut off , and body quartered . you see the bishops were none of them present , but theit procurator was , to which in my letter i have largely spoken , and need not repeat it here . he urges also a precedent in this same parliament , of the commons by the mouth of their speaker sir iohn bussy , praying the king , that for that divers iudgments were heretofore undone for that the clergy were not present , that the clergy would appoint some to be their common proctor , with sufficient authority thereunto . i have already shewed , that this whole parliament was repealed , for the extravagant things that were done in it , of which this was one : and therefore nothing that was then done can signifie any thing to be a leading case any ways to be followed . and this as little as any , except it could be made appear , which i am confident it cannot , that some judgment had been reversed upon that account because the prelates were not present , and had not given their assent to it . indeed h. . thomas montacute , earl of salisbury , attempted it , brought his writ of error to reverse the judgment given h. against his father , iohn earl of salisbury , and did assign that for an error as the record saith , item error de ceo que le dit john susdit count dust forfaire terres & tenements sans assent des prelates , qui sont piers en parlement les queux ne furent mye faits parties as declaration & iuggementz avandits , item , an error in this , that the foresaid earl john should forfeit lands and tenements the prelates not assenting , who are peers of parliament , yet were not at all made parties to the abovesaid declaration and iudgments . but this was adjudged to be no error , and the condemnation of his father to have been just and legal : and i am very confident that this is the only precedent of such an attempt , and yet it makes a stronger argument against it , that it was endeavoured , and rejected , for now it is a judged case . and besides , as i have already observed , this desire of the commons , of their making a proctor shews what the opinion of those times was , that the bishops could not be personally present at such judgments , which is all that is now in question between us . his next precedent is h. . when rich. earl of cambridge , and others were tried for treason for levying war against the king , the bishops then personally sitting in parliament , as he saith , and he bids us see the record in the tower , which i dare say he had not done himself , for then he would have found it contrary to what he asserts , that richard earl of cambridge , and henry lord scroope with him were not tried nor condemned in parliament as he saith they were , but by a special commission directed to the duke of clarence , and other their peers , earls , and barons at southampton , and were there condemned and executed ; but the whole proceedings against them were afterwards brought into parliament at the desire of the commons , and were there at their desire likewise ratified and confirmed , and the bishops then were and might be present , for i look upon it as an act of parliament , yet not attainting them , but confirming their attainder , for they were convicted , condemned , and attainted before at southampton . his last chapter of precedents from h. . to the eliz. is only of bills of attainder , and so acknowledged by him , and therefore nothing to the purpose . as i have said before those bills are laws , though private laws , whereto every freeman of england doth consent either in person or represented ; and bishops are or should be all present at the passing of them , for then they act as members of the house of lords in their legislative capacity : but for their being judges in any trial of life and death , or part of a trial , when the house proceeds in a judicial way , i see no reason by all that hath been said on the other side , to change my opinion , that they ought not . sir , you see what is said on both sides , be you judge , who is in the right . finis . memoirs of denzil lord holles, baron of ifield in sussex, from the year to holles, denzil holles, baron, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing h estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) memoirs of denzil lord holles, baron of ifield in sussex, from the year to holles, denzil holles, baron, - . toland, john, - . xv, [ ], , [ ] p. : port. printed for tim. goodwin ..., london : . "epistle dedicatory" dated th of february, . edited by john toland from papers written during the winter of - . cf. dnb. errata: p. [ ] ( nd group). advertisement: p. 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such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng great britain -- history -- civil war, - . - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - emma (leeson) huber sampled and proofread - emma (leeson) huber text and markup reviewed and edited - pfs batch review (qc) and xml conversion memoirs of denzil lord holles . the right hon ble . denzel baron holles of ifield . aetat . . anc. . ob. . memoirs of denzil lord holles , baron of ifield in sussex , from the year , to . london , printed for tim. goodwin at the queen's head against st. dunstan's church in fleetstreet . m. dc.xc.ix . to his grace john duke of newcastle , &c. may it please your grace ; when the following papers of the famous lord holles , your great uncle , happen'd to fall into my hands , i could not long deliberat whether they deserv'd a public view , and therefore intended to get them printed without any further ceremony ; for the large share he had in the transactions of those times will as much engage others to read these memoirs , as the defence he was oblig'd to make for himself are a sufficient reason for his writing them . but when i understood that your grace ( out of the love you bear to virtuous actions , and your piety towards so near a relation ) did order a stately monument to be erected at dorchester for this illustrious person , i was of opinion , that as well for that reason , as because in his life-time he entertain'd an extraordinary affection and esteem for you , your name should in like manner be inscrib'd on this monument which he has left of himself to posterity . the justice of the thing , and the sincerity of my intentions , must be all my apology to your grace for this presumtion : for the public ( of whom you deserv'd so well , and particularly in appearing early , like your noble ancestors , for the liberty of these nations ) will acknowledg it an obligation ; nor , if any thing should chance to be amiss , can i doubt but an easy pardon will be granted to one who is , tho unknown , my lord , with so profound a respect , your grace's most humble servant . march . . the publisher to the reader . such as really desire to know the naked truth , and propose for their chiefest aim the common good ( which are certainly the best , tho not the greatest part of mankind ) have ever exprest a desire in their writings of seeing the memoirs of all parties made public , as the most effectual means of framing a true general history : for in those places where nothing is licens'd to appear but what visibly tends to the advantage of one side , there can be no sincere representation of affairs , the basest cowards must pass for the bravest heroes , the worst of villains for the greatest saints , the most ignorant and vicious for men of learning and virtue , and the enemies of their country for its preservers and friends . without consulting therefore the particular interest or reputation of any faction , but only the benefit of england in general , these memoirs of the great lord holles are communicated to the world , that by comparing them with those of ludlow , and such as appear'd before , or will be publish'd hereafter relating to the same times , they may afford mutual light to each other ; and , after distinguishing the personal resentments or privat biasses of every one of 'em , the truth wherein they are all found to agree ( tho drest by them in different garbs ) may by som impartial and skilful hand be related with more candor , clearness , and uniformity . what figure our author made in the parliament and in the wars , at home and abroad , in his privat and public capacities , is generally known , and needs not therefore be mention'd in this place . the account he gives of himself in the following papers is confirm'd by many living witnesses , as well as in the greatest part by other vvriters of the same transactions . but whether the vehemence of his stile , the barbarous usage he receiv'd , his concern for the presbyterian party , and his displeasure at the king's misfortunes ( to whom he was then an adherent and a friend ) have not guided his pencil to draw the lines of cromwel's face too strong , and the shadows too many , i refer to the judgment of the disinterested reader , desiring him to allow all that is reasonably due to one in these or the like circumstances . this caution iustice has oblig'd me to insert : for as to that tyrannical usurper of the supreme administration , who prov'd so ungrateful to the commonwealth , so treacherous to the king , and so fatal toboth , i think him bad enough painted in his own true colours , without standing in need of exaggerating rhetoric to make him look more odious or deform'd . i should write something here likewise with relation to general fairfax , but that the properest place for it seems to be in a preface to his own memorial , which is in good hands , and , it 's hop'd , may be shortly expos'd to public view . how far soever king charles the first 's enemies in england may look on themselves disoblig'd , or any of his friends neglected by my lord holles , the scots are surely beholding to him ; for in his long panegyric on that nation , he has said more in their behalf than their own historians have ever been able to offer . but in this and other matters of the like nature we shall not anticipate the readers curiosity or iudgment : i shall therefore only acquaint him , that tho this piece be entitul'd memorials from the history it contains , yet in substance it is an apology for that party who took up arms , not to destroy the king , or alter the constitution , but to restore the last , and oblige the former to rule according to law. to the unparallel'd couple , mr. oliver st. iohn his majesty's sollicitor general , and mr. oliver cromwel the parliament's lieutenant general , the two grand designers of the ruin of three kingdoms . gentlemen , as you have been principal in ministring the matter of this discourse , and giving me the leisure of making it , by banishing me from my country and business , so is it reason i should particularly address it to you. you will find in it some representation of the grosser lines of your features , those outward and notorious enormities that make you remarkable , and your pictures easie to be known ; which cannot be expected here so fully to the life as i could wish . he only can do that , whose eye and hand have been with you in your secret counsels , who has seen you at your meetings , your sabbaths , where you have laid by your assumed shapes ( with which you cozen'd the world ) and resumed your own ; imparting each to other , and both of you to your fellow witches , the bottom of your designs , the policy of your actings , the turns of your contrivances , all your falshoods , cozenings , villanies , and cruelties , with your full intentions to ruin the three kingdoms . all i will say to you is no more than what st. peter said to simon the sorcerer , repent therefore of this your wickedness , and pray god , if perhaps the thoughts of your hearts may be forgiven you. and if you have not grace to pray for your selves ( as it may be you have not ) i have the charity to do it for you , but not faith enough to trust you. so i remain , i thank god , not in your power , and as little at your service . denzil holles . at st. mere eglide in normandy , this th of february , . s. v. errata . page . line . read cromwel . p. . l. . r. written . p. . l. . r. publick . p. . l. . dele comma . l. . r. many in . p. . l. . f. the r. their . p. , l. . l. as to say . p. . l. . dele not . memoirs of denzil lord hollis . . the wisest of men saw it to be a great evil , that servants should ride on horses , and princes walk as servants on the earth : an evil now both seen and felt in our unhappy kingdom . the meanest of men , the basest and vilest of the nation , the lowest of the people have got the power into their hands ; trampled upon the crown ; baffled and misused the parliament ; violated the laws ; destroyed or supprest the nobility and gentry of the kingdom ; oppress'd the liberties of the people in general ; broke in sunder all bands and tyes of religion , conscience , duty , loyalty , faith , common honesty , and good manners ; cast off all fear of god and man ; and now lord it over the persons and estates of all sorts and ranks of men from the king on his throne , to the beggar in his cottage : making their will their law ; their power their rule ; their hairbrain'd giddy phanatical humour , and the setting up of a babel of confusion , the end of all their actions . but how this misery is befallen us , the kingdom brought so low , and so unworthily , unhappily , inconsiderately deliver'd over into such base and ignoble hands , the parliament abused , betrayed , and now become in show and in name the instrument of their tyranny , but in truth it self made nothing ; and ( if the presence of the right speaker be so essential to the being and acting of a parliament , and so necessary , that sir edward cook says in his institutes the house cannot sit without him ) then is there clearly at this present no parliament but an assembly of men , acted and moved by the art and malice of some few sitting among them , by the means of an army , which those few , those vipers of the parliament , that have eaten out the bowels of their parent and destroyed her , raised ( that is , abused the parliament , making them raise it ) under colour of necessity for the preservation of the parliament and kingdom ; when in truth it was out of a design to make themselves masters of both , that neither of them might ever enjoy peace and liberty more , to blast our hopes , nip all the fair blossoms of reformation , dash in sunder all our preparations and endeavours for the establishing of a happy peace ; and so a glorious promising morning became a day of darkness , a day of treading down and perplexity : this , i say , will be worth the enquiry , and perhaps be no difficult thing to discover , and make so plain , that he who runs may read . . yet i would not be conceived to attribute so much of wisdom and foresight to these men , as to believe they had laid this whole design , with the several circumstances and steps of proceeding from the beginning ; which not the devil himself was so politick and foreknowing as to have done . but i am perswaded that they had it in their general aim , and laid it as a foundation for all their superstructures , to do as much mischief as they could , make the disorder as great , the change as universal as was possible , and still to improve all opportunities , and occasions ex re natâ , putting on for more as they prevailed in any thing , till at last even beyond what either they could hope , or we could fear , their design was brought to this perfection , as will appear by the sequel of this discourse . . when in the beginning of this parliament , in the year . after some progress in a parliamentary way to the relieving of many of our grievances , and reforming many abuses both in church and state ( for which we were not sufficiently thankful ) it pleased god , in his just judgment , for the punishment of our sins , to send a spirit of division between the king and the parliament , and things grew to that height , as both of them appealed to the sword to plead their cause , and decide their quarrel ; the members of parliament , who then engaged , declared themselves to desire nothing but the settlement of the kingdom , in the honour and greatness of the king , and in the happiness and safety of the people : and whensoever that could be obtained , to lay down the sword , and submit again to the king's scepter of peace more willingly than ever they resisted his force and power . this i am sure was the ultimate end of many , i may say , of the chiefest of those who at that time appeared : upon which principle they first moved , and from which they never departed ; which made them at that time resolve to put their lives into their hands , and offer them a sacrifice to the welfare and happiness of their prince and country . i say prince as well as country , tho he perhaps look'd on them as his greatest enemies ; but they consider'd him as their prince , whom nature , duty , the command of god , and the laws of men , obliged them to reverence , and to love as the head and father of the people ; whose greatness consisted in his people's , and his people 's in his ; and therefore neither could be great , nor happy , one without the other , which made those faithful ones put them both in the same ballance , and rather adventure his displeasure by promoting the publick cause , than ( as they thought ) his ruin by deserting it . . whilst these men acted in the simplicity of their hearts , there was another generation of men , which , like the frozen snake that lay in their bosoms , seemed to desire but the same things with them , and that the same should have contented them , when it was nothing so ; but they had further designs , to destroy and cut off not a few , to make the land an aceldama , ruin the king , and as many of the nobility and gentry as they could , alter the government , have no order in the church , nor power in the state over them . this was the venom they harbour'd , which at first they were not warm enough to put forth : but it soon appeared by some evident symtoms , which discovered it to discerning eyes , though many were very long abused . for as the devil can transform himself into an angel of light ; so they pretended zeal in religion , and to be publick spirits , as if none were so holy and self-denying as they : and so insinuated themselves into the good opinion of men ; and , being bold and forward , got into all imployments , engrossed the whole managing of the war ( that is , the directive part of it , not the fighting ) whilst others , who meant plainly , and honestly , went into their several countries , desirous to see the business soon at an end ; and , either by shewing the sword , to have kept it in on both sides , or else , if god had otherwise determin'd that some blood must be drawn , to adventure their own for speedy stopping the issue of it in the kingdom . . this was the first step of those unworthy mens getting into power . when other gentlemen of the house of commons unluckily left it upon these occasions , they then undertook the business , put themselves and their creatures into all committees , persons most of them before only known by their faces , and esteemed for their silence and modesty . but they soon grew bold and impudent , domineering not only over the rest of the house , but much more over others abroad , and by their pride and insolency contracting envy and hatred to the parliament . . by this means they had power over all the money of the kingdom , pleasured and recompensed whom they would , which were none , be sure , but their creatures , or such as would be theirs ; and so made many proselytes both within doors and without , increasing their party exceedingly , which made them carry the business of the house as they would themselves : and made it easie to them , in all debates concerning applications for peace , to drive us to extremities , demanding unreasonable things , laying upon the king the conditions of naash , to thrust out his right eye for a reproach ; or , as the devil did to our saviour , to have him fall down and worship them , lay his honour at their feet , his life at their mercy ; while they , upon all occasions , revile and reproach him , give countenance and encouragement to all the bitter , scurrilous and unseemly expressions against him , impeach the queen , give her the usage ( both in words and actions ) one would not have done to the meanest handmaid of the kingdom , tho the wife , daughter , and sister of a king , the mother of our prince , who is to sit upon the throne , if these men hinder him not ▪ and all this , to make the distance wide , the wound deep , that there might be no closing , no binding up . then was there nothing but expelling members out of the house on the least information . if any of those whelps did but bark against any one , and could but say he was busie in the country , nothing but sequestring , impeaching of treason , turning men and their families , turning wife and children to starve : so many committees and sub-committees of examinations , sequestrations , fifth and twentieth part , &c. made in city and country , and some of the most factious , busy , beggarly men put in , as fittest tools for such masters to work by , to rake men to the bones , and take all advantages to ruin them . . this was a great breaking of heart to all honest men , especially to those in the house , who being present and eye-witnesses of the management of affairs , easily discovered the drift of these persons , and opposed it all they could : which made those blood-suckers conceive a mortal hatred against them , and in truth against all gentlemen , as those who had too great an interest , and too large a stake of their own in the kingdom , to ingage with them in their design of perpetuating the war to an absolute confusion . . this made them look with a jealous eye upon my lord of essex , who was general of the army , finding him not fit for their turn , as too desirous of peace , and of maintaining monarchy ; and therefore they resolve to lay him aside , beginning to draw supplies from him , neither providing recruits , nor furnishing him with money or arms , ( except sometimes for a pinch , when the necessity of their own preservation required it ) clogging him all they could , countenancing and supporting who ever did oppose him : in the mean time carrying on the business of the house in a wild madness , making ordinances , like draco's laws , written in blood , that no man could be safe whom they had a mind to destroy , and their mind was to destroy all they could , by making so many desperate , to render things more irreconcileable , and cut off all hopes of peace , which they were resolved to put by upon any terms , per fas aut nefas , if not by art and cunning , rather to use force than fail , and where the fox's skin would not reach , to take the lion's ; as to give one instance for all . . the house of lords in the summer after the beginning of our troubles in , having resolv'd to deliver themselves and the kingdom from this aegyptian slavery , had prepared a message to the king , with overtures for an accommodation , and sent it down to the house of commons on a saturday , where the major part seemed to be of the same mind , and after a long dispute and much opposition prevail'd to take it into consideration , made an entrance into it , agreed to some particulars , and it growing late , adjourned the further debate till monday morning ; against which time these firebrands had set the city in a flame , as if there were a resolution to betray all to the king ; and thereupon brought down a rabble of their party , some thousands to the house of commons door , who gave out threatning speeches , and named among themselves ( but so as they might be heard ) some members of the house , whom they said they lookt upon as enemies , and would pull out of the house ; which did so terrifie many honest timorous men , and gave that boldness to the others , as contrary to all order they resumed the question that was settled on saturday for going on with the business , and at last carried it by some voices to have it laid aside : which was the highest strain of insolency , the greatest violation of the authority and freedom ( the two essential ingredients ) of a parliament that before that time was ever known . since , i confess , the army has far outstrip'd it . . this made some persons cast about how a stop might be given to such violent proceedings , and to have other counsels admitted , which probably would give some allay to those sharp and implacable spirits : it appearing to be altogether impossible ever to obtain a peace , whilst they were rulers , who phaeton like , were able to set the whole world on fire . it was therefore proposed that our brethren of scotland might be called in , who were known to be a wise people , lovers of order , firm to monarchy : who had twice before gone through the misfortune of taking up arms , and wisely had laid them down ; still contenting themselves with that which was necessary for their security , avoiding extremities . their wisdom and moderation , as was presumed , might then have delivered us from that precipice of misery and confusion , into which our charioteers were hurrying us amain . . but these men would none of it at that time ; they hoped to be able to carry on the work themselves , and meant to divide all the spoil : which they had done if it had not pleased god to give them that check in the west , when their army there was beaten through sir arthur haslerig's default , one of their invincible champions . first , his ignorant foolhardiness , afterwards his baseness and cowardise , who then found himself to be mortal ( for before he thought himself invincible , and absolutely stick-free and shot-free , having had the good fortune to be in a gallant regiment , under sir william balfore , at kenton-field , and so not to run away ) but , as himself did afterwards relate it , wink and strike , and bear down all before him . this made him so absolute a souldier , as he thought christendom had not his fellow , and therefore would not be govern'd by his commander in chief , in that western brigade , a gallant and discreet gentleman ; but would charge contrary to order , without sense or reason : and , finding that resistance which he did not expect , ran away as basely with all the horse , leaving the foot engaged . presently afterwards the town of bristol was lost by the like gallantry and good soldiery of another of their champions , who for it was condemned to die by a council of war , and pardoned by my lord of essex , who was well requited for it afterwards both by this gentleman and his father . . then our masters , finding themselves to be mortal too , began to be afraid ; and now the scots must be called in . so in all hast they send to them to come and help , with open cry , save us , or we perish . they promise any thing , offer any thing , do any thing for the present that the scots would have them do : the honour of england not thought of , liberty of conscience and the godly party not mentioned : but all that was heard was the covenant , uniformity in church-government , uniting the nations , never to make peace without them , and a solemn treaty for all this closed there , and presently ratified by the parliament here . . but they meant afterwards to be even with them , to perform nothing of what was de futuro to be done , to serve their turns by them , to make them instrumental for their deliverance at that plunge , and then pick quarrels with them and send them home again with scorn and discontent , which they have since sufficiently laboured to do , and went far towards it , and to the engaging of the two kingdoms in blood ; if some persons had not interposed with more ingenuous and more moderate counsels , to the happy success of whose endeavours the piety , honesty , and moderation of the scots themselves did very much contribute , concurring with them , and cooperating in all things which might promote a peace , as shall be afterwards shewed in its due place : for this is but by the way . . those creatures of theirs whom they sent commissioners into scotland for that business , represented the state of affairs to that parliament clear otherwise than it was , endearing their own party to them as the only sincere publick spirited men , who desired such a reformation as was agreeable to their government , and such a peace as might be a joint safety and security to both kingdoms , giving characters of all others as malignants , ill affected , averse to the scotish nation , opposers of a good understanding between the kingdoms , and of their mutual assistance of each other . . with which prejudice of us the scots were strongly possessed , at their coming in about ianuary , . and were in england some time before they were disabused . they were first made believe nothing should be done without them , or their advice and consent . to that purpose a committee of the two kingdoms must be appointed for uniting the councils , to order and direct the prosecution of the war , and for communicating and transacting all affairs between the kingdoms : in packing whereof , and keeping out some persons whom our masters did disaffect , they used such juggling , as never was heard of before in parliament , and none but such hocus-pocus's could have the face to have done . . well , they carried it , and to work they go , bearing it very fair to the scots , till they were got aloft again , and that with their help they had recovered and cleared the north , obtained that great victory at marston-moor , in iuly , which without them they had never done . and however lieutenant general cromwel had the impudence and boldness to assume much of the honour of it to himself , or rather , herod like , to suffer others to magnifie him and adore him for it ( for i can scarce believe he should be so impudent to give it out himself , so conscious as he must be of his own base cowardliness ) those who did the principal service that day , were major general lesley , who commanded the scots horse , major general crawford who was major general to the earl of manchester's brigade , and sir thomas fairfax , who , under his father , commanded the northern brigade . but my friend comwel had neither part nor lot in the business : for i have several times heard it from crawford's own mouth ( and i think i shall not be mistaken if i say cromwel himself has heard it from him ; for he once said it aloud in westminster-hall , when cromwel past by him , with a design he might hear him ) that when the whole army at marston-moor was in a fair possibility to be utterly routed , and a great part of it running , he saw the body of horse of that brigade standing still , and to his seeming doubtful which way to charge , backward or forward , when he came up to them in a great passion , reviling them with the name of poltroons and cowards , and asked them if they would stand still and see the day lost ? whereupon cromwel shewed himself , and in a pitiful voice said , major general , what shall i do ? he ( begging pardon for what he said , not knowing he was there , towards whom he knew his distance as to his superiour officer ) told him , sir , if you charge not all is lost ; cromwel answered , he was wounded , and was not able to charge ( his great wound being a little burn in the neck by the accidental going off behind him of one of his soldiers pistols ) then crawford desired him to go off the field , and sending one away with him ( who very readily followed wholesom advice ) led them on himself , which was not the duty of his place , and as little for cromwel's honor , as it proved to be much for the advancement of his and his parties pernicious designs . this i have but by relation , yet i easily believe it upon the credit of the reporter , who was a man of honor , that was not ashamed nor afraid to publish it in all places . besides , i have heard a parallel story of his valour from another person ( colonel dalbier ) not inferiour , neither in quality nor reputation , to major general crawford , who told me , that when basing-house was storm'd , cromwel , instead of leading on his men , stood a good distance off , out of gun-shot behind a hedg . and something i can deliver of him upon my own knowledg , which makes passage for the easier belief of both these relations , and assures me that that man is as errand a coward , as he is notoriously perfidious , ambitious , and hypocritical . this was his base keeping out of the field at keinton battel ; where he with his troop of horse came not in , impudently and ridiculously affirming , the day after , that he had been all that day seeking the army and place of fight , tho his quarters were but at a village near hand , whence he could not find his way , nor be directed by his ear , when the ordnance was heard , as i have been credibly informed , or miles off ▪ so that certainly he is far from the man he is taken for . . that day's work at marston-moor turned the scales , and raised again the fortune of the parliament , which till that day had very much declined : and these men ( who all this while stalked under the sides of the parliament , and did but pretend the business of reformation , and the peoples liberties , thereby to break the power of the king first , that afterwards they might , either by artifice or force , lay as low the authority of parliament , unless it would betray its truth , and yield to be instrumental to them ) did , after this , begin to put out their horns , appear in their colours , and , as they warmed more and more , to spit out their venom against monarchy , against nobility and gentry , against that reformation with which they had formerly held forth to the scots , against the very covenant , their vows and declarations wherewith they had abused god and the world. . then did cromwel declare himself to the lord of manchester , and indeed reveal'd the whole design . first , his rancor against the scots , as that he would as soon draw his sword against them as against any of the king's party . then his hatred of the nobility and house of peers , wishing there was never a lord in england , and saying , he loved such and such because they loved not lords , and that it would not be well till he was but mr. montague . thirdly , his intentions to hinder peace , and that therefore he desired none to be of that army , but such as were of the independent judgment , to interpose if a peace were like to be made which agreed not with their humours . all this remains upon record in both houses , being the earl of manchester's charge against him . and let any one judg if this be not the very plot which was then laid and since practised . has not every particular been attempted by them ? have they not fully compleated that which was chiefly aimed at ? as that which will , and must certainly ( if not prevented ) bring on all the rest the hindering of peace , that no ease nor quietness might be restored to the kingdom . for when the parliament was ready to disband the only army then left , and so to free the subject from all payments and taxes , that every one might return to his vocation , and all differences between king and parliament might be ended and reconciled in a parliamentary way ; then did the cadmean brood turn their swords against their fellow subjects , and their masters the parliament , which by open force they assault , make void , and unvote what they had voted concerning their disbanding , put by all thoughts of peace , and throw back the kingdom , which was entring into the desired haven of peace and happiness , into the deep seas of storms and misery and confusion , where i beseech god it perish not : but of all this anon . . things were not yet ripe ; tho the serpent's eggs were laid by him in the earl of manchester's bosom , it was not time to hatch the cockatrice . therefore when it was by the earl made known to the houses , their party in the house of commons did ( more solito ) with all the violence and injustice in the world smother and suppress it , quarrelling that the lords had infring'd their privileges , in desiring that might be examined by a committee in both houses , saying , the lords ought not to meddle in it , because it concern'd a commoner ; whereas nothing was more ordinary throughout the whole proceeding of this parliament in all their inquisitions . yet by that means this was then stifled , the breach of privilege referr'd to a committee of the house of commons , and there the business died . . after this the scots saw how they were cheated , and it came to be , though not an open breach , yet a great coldness between them , a withdrawing of confidence , of familiarity , of counsels . and the scots then found that the other party had been misrepresented , being the men who , in truth , did agree with them in principles and in design : which was only to reform , not to alter ; to regulate , and so to save , not to destroy . that they still carried about with them the sense of their allegiance and duty to the person of the king , whom they did desire to see reinvested into his throne and kingly government , with such a power , and in such a way , as might be good both for him and the people , that thereby confusion , misery , and that disorder which the poet describes to have been in the first chaos , and which we now see ( not in a fiction , but really feel and smart under ) might be avoided . . by little and little the scots and these latter came to a better understanding ; at last they discover the horrid practices and the whole design of the others , who , in the mean time , drove it on , iehu like , violently bearing down , and destroying all that opposed them ; for some opposition they found . they saw there was a strong party in the house against them , between whom and the soldiers who were under command of my lord of essex , there was a good correspondency ; and these two , together with the scots , were as a threefold cord not to be broken by them : therefore they would untwist it , and so destroy them one after another . . the earl of essex must be the first who they found would not bow , and therefore must break ; for many applications had been made to see if he would stoop to their lure . great offers , large promises , all the glory of the kingdom should be his , if he would but worship them , be ( as they termed it ) true to the godly party : but he was true to his principles . therefore they do what they can to make him odious , not paying his army , to make it a burden to the country , and infamous ; not giving him means of acting by supplies and provisions , so to be looked upon as a drone or worse , or putting him upon such actions as should break him , so to make him come off with dishonour . . as when he was about oxford in the summer , he on one side of the river , and sir william waller with his brigade on the other ; the king having then but a small force within the town , and either not provided for a siege , or not willing to be shut in with a light body of horse , and i think some mounted men , held them play and distracted them , being sometimes on the one side , sometimes on the other ; which was easie for him to do , going through the town , as he saw occasion , by the conveniency of the gates : it being then known that he waited but his opportunity and advantage to slip by , or break through , our grand masters ordered my lord of essex , with a heavy body of an army and a great train of artillery , to attend his majesties motion , and sir william waller to go into the west , which they conceived would be an easie task at that time to reduce the king's party brought low , and so not able to send any forces into those parts for their relief and encouragement . . this they knew would absolutely break my lord of essex , who must harass his army to follow a light and moving body ; and if the king , which was probable enough , should chance to give him the slip , and get from him into the west , then was he ruin'd in his reputation , and liable to a question , and perhaps a further prosecution . it proved that his majesty did get by them , and passed by sir william waller's quarters on the other side , who , as soon as he knew it , marched after him , and gave notice to my lord of essex thereof ; so as before he knew any thing , sir william waller was got a days march before after the king. then was it impossible for him to overtake them ; and , being so much nearer the west , sir william waller engaged in the other service , he , upon the advice of his council of war , resolved to bend that way , yet not to make such speed , but that he should receive other orders from our governors above , that he might comply with them . accordingly he gave that account to the parliament and committee of the two kingdoms , with his desire of their directions . they were so mad to see themselves defeated of their plot , that they would not for many days return him any answer at all ; his disobedience was blown up , and trumpeted about by them and their agents : some of whom did not stick to say , it were better my lord of essex and his whole army were lost and ruined , than the parliament not obeyed , and , that by their consents , he nor his army should be look'd after or cared for more : a maxim they have forgotten now in the case of sir thomas fairfax and his army's , not disobedience but open rebellion ; but they were as good as their words then , and did most maliciously , wilfully , and treacherously ( as to the parliaments cause , which they seemed to be zealous in ) suffer general and army to be lost , and the whole west left further out of the parliaments reach than before . . sir arthur haslerig posted up to london , breathing out nothing but ruin and destruction to the earl of essex , spoke it out in the hearing of several persons , that he would ruin him , or be ruined himself . his malice and violence was so great at the committee of the two kingdoms , where he and his party were prevalent , that a report was thence brought down to the house of commons , by which sir william waller was taken off from following the king , and by that means the king was left at liberty to bend his whole force for the west after my lord of essex , which he presently did . at last they left my lord of essex at liberty to proceed in that western expedition , but with a resolution to let him perish . he takes in weymouth and some other towns , goes on as far as cornwal , whither the king's forces follow him at the heels , cut off all provision from him , press upon him exceedingly , and put him to very great streights . he engaged in a country inclosed with deep ditches and strong fences , that he could neither break through , nor march away ; but sends letter upon letter , messenger upon messenger to the parliament , representing his condition , and how easie it was with a small force sent upon the back of the king's army , if but only a good party of horse , to stop their provisions , and turn the tables , streighten them and free him , than which certainly nothing had been more easie , and would have saved the kingdom a mass of treasure , and thousands of good mens lives , which the continuance of the war after that time did cost . . but our masters did not desire then to see the war at an end ; they had not the sword in those hands they would have it for to break the king's forces , well knowing they must then have had a peace , and such a peace as had carried with it an establishment of the king's government , a keeping up the nobility and gentry ; all things must have returned into their proper channel , and ( the security of the parliament and kingdom being provided for ) the law of the land must have taken place , their arbitrary empire been at an end , and their design wholly defeated . . therefore my lord of essex must not be relieved , but sacrificed to their ambition , the king's army must be yet preserved , to give them a colour to new model theirs , and put the power into the base hands of their creatures which should keep the kingdom in a perpetual bondage ; and tho they ended the war with the king , yet never made peace , but continued to grind the faces and break the backs of the people with taxes and free-quarter , to maintain an army when no enemy was left ; in a word , they govern by the sword , the height of all misery and slavery that any land can undergo . . my lord of essex and his army were by this means broken in cornwal in the latter end of that summer , and the king seemed to gain a great advantage , recover a great deal of strength ; but to nip that , they soon provided force sufficient , it suiting with their ends , that his majesty should seem strong , but not be so . therefore the soldiers of that army which had lost their arms in cornwal are presently armed again , and two other armies joined to them , the earl of manchester's and sir w. w aller's , who gave the king's forces a ruffle at dennington , gaining some of the works : yet , when the king came with the remainder of his strength , they did not think it convenient to put it to the trial of a day , but suffered him to march away , when it had been a most easie thing to have prevented it : and even there , in all likelyhood , have made an end of the business , which was that they feared ; and sir arthur haslerig could come up to london , and into the house of commons , all in beaten buff , cross girt with sword and pistols as if he had been killing his thousands , when 't is more probable , if there was any danger , that he had been crying under a hedg , as he did at cherrington fight , bellowing out , ah wo is me , all is lost ! we are all undone ! insomuch that a great officer , a scotch-man , finding him in that tune , wished him to go off the field , and not stand gudding there ( a scotch term for crying ) to dishearten the soldiers : but in the house of commons he feared nothing , none so fierce and valiant , without fear or wit ; and there , like a great soldier in that habit , gave a relation of what had pass'd , highly extolling the gallantry and conduct of all the commanders , the valour of the soldiers , that no mortal men could do more , that the best soldiers in the world could not have hinder'd the king's marching off , and that it had been no wisdom to have adventur'd to fight , for that the king would be king still , and would soon have had another army , tho they had gotten the better , but if he had beaten them , they had been utterly lost . this served the turn for that time , to cast a mist before the peoples eyes , and stop their mouths . yet within very few weeks after , this worthy knight forgot all he had said : for it is by cromwel laid as a crime to the earl of manchester's charge ( whom they then meant to lay aside ) that he was the cause they sought not with the king , and sir arthur is a principal witness to make it good . but on the other side , the earl of manchester returns the bill , charging cromwel , that it was his not obeying orders , who being commanded as lieutenant general of the horse , to be ready at such a place by such an hour early in the morning , came not till the afternoon , and by many particulars makes it clear to have been only his fault . . and to say the truth , they could not else have carried on their design of new modelling their army , of which then there had been no need , and preventing a peace which they feared might else have followed . for if the king had been too sore prest at that time , it was in their apprehensions probably he might have laid hold upon the propositions for peace , which were then ready , and sent to him to oxford immediately after . . therefore now they set upon their great work , projected long before , and which cromwel had broken to my lord of manchester in the time of his greatness with him , when he thought him to be one of their own , that was to have an army composed of those of the independent judgment , to interpose if there were like to be a peace ; only their presumption and impudence was swell'd to be so much higher , as now , they would have no other army but of them . because they saw the danger was over ; there being no enemy to take the field against them , but such an one as they had willingly set up and given time and means to get together : so as there would be no great need of fighting , that part having been acted by others ; for they were never good at it , but excellent to assume the praise and reap the benefit , when others had done the work . . therefore the whole force of the kingdom must be theirs , in the hands of their creatures ; all the noblemen and gentlemen who had engaged in the beginning , and born the heat of the day , must be laid by , all these gallant officers who had done the parliament the best service , indeed all , must be cashier'd : the earl of essex , the earl of manchester , sir philip stapleton , sir william waller , and the rest must be reduced , cast by as old almanacks , in truth not fitted to their meridian . . for this feat the juggle of a self-denying ordinance is found out , whereby it is ordained , that no member of either house shall bear any office martial or civil ; which strikes them all out of employment and cromwel too , but for him they will soon find a starting-hole . . then there must be one body of an army composed of so many thousand horse and foot out of the several armies , which were to be reduced ( as i remember some or thousand , which number they have since doubled or trebled for the ease of the kingdom ) the officers to be named by the house , and a committee appointed under the specious name of a committee of reformation for this work , by which they tear in sunder all their forces , discontent all their best officers and soldiers , utterly disjoynt the whole frame of the martial part of their affairs , and , i dare say , put the king's party in greater hopes of being able to make it good by the sword , and less to apprehend the consequence of not making a peace at that time , than the gaining of a battel would have done : nor in truth could it have any other operation with rational men. . so to work they go , and find difficulties enough . the soldiers bore an affection to their old officers , which made them unwilling to be reduced : money there was not to give any reasonable satisfaction out of their arrears to those who were to be cashier'd : but a fortnights pay was ordered , where many months were owing . yet such was the obedience of those officers ( gallant men , old soldiers most of them ) to the authority of parliament ( so unlike to the late rebellious carriage and insolency of our new model , as shall be hereafter shewed ) that they submit to it , are content to sit down themselves , and ( which is more ) use their interest to perswade the soldiers to a conformity . some of the horse who had served under my lord of essex were a little stiff , and made some shew of standing out in hertfordshire , which our violent bloody new modellers would have made advantage of presently to have faln on them , and put them to the sword ; but the parliament followed more moderate counsels , endeavouring to gain them through fair means , by sending down some of their old officers to dispose them to a submission , which employment they declined not , but went and prevailed : to which my lord of essex himself contributed very much , an example that this present young general sir thomas fairfax would not follow when his army was to be disbanded . . yet such was the wickedness and desperate madness of those men , who thirsted after nothing but blood , mischief and confusion , that at the very same time when the parliament was going a gentle way , mr. st. iohn the king's solicitor ( one who i think has as much of the blood of this kingdom to answer for , and has dipp'd as deep in all cunning pernicious counsels , as any one man alive ) wrote a letter under-hand to the committee of hertfordshire ( which is yet extant ) that they should raise the country and fall upon these men , to put all into blood , contrary to the desire and endeavour of the parliament . a villany never to be forgotten nor forgiven in any man , much less a man of law , who should better know what price the law sets upon the life of every subject , much more of many together , and of a whole county , which , if he had been obeyed , had run a great hazard . . but i wonder not at this or any other such passage from him , who could have the face to say in his argument against my lord of strafford , that some persons were not to have law given them , but be knockt on the head , no matter how : tho he knows it , or should know it , to be against the laws both of god and man , that any should be put to death before a legal conviction , however he may have practised the contrary since the beginning of these unhappy troubles : his composition being , it seems , like that monster emperor's lutum sanguine maceratum . and to less than an emperor i would not parallel him , whose vast thoughts have carried him above king and parliament , to frame , new mould , alter , and destroy as he thinks good . this mixture in his nature makes his actings so fierce and cruel . i appeal to all who have seen and observ'd him this whole parliament , if , on all occasions , his opinion did not still conclude in severiorem partem ; if he ever stopt where there was any way to it before he came to blood , or to the destruction of estate and fortune : but let him pass . . to return to our business : those soldiers were by these means perswaded , and the new army framed , colonels and other new officers appointed , and for a commander in chief sir thomas fairfax is found out ; one , as sir arthur haslerig said , as if he had been hew'd out of the block for them , sit for their turns to do whatever they will have him , without considering or being able to judg whether honourable or honest . in the passing his commission they made the first plain discovery of their intentions concerning the person of the king : for with a great deal of violence and earnestness they prest it , and carried it , that the care of the preservation of his person should be lest out , and that this army should go out in the name of the parliament alone , and not of king and parliament , as it was before under my lord of essex , who otherwise would not have medled with it . but this general made no bones , took it , and thanked them , resolved ( as it seems ) to do whatsoever those his masters should bid him : for i 'm sure he has , at their command , led his army since against the parliament , which he seemed to adore above all things upon earth . . the next work was how again to get in my friend cromwel ; for he was to have the power , sir thomas fairfax only the name of general ; he to be the figure , the other the cypher . this was so gross and diametrically against the letter of the self-denying ordinance , that it put them to some trouble how to bring it about . for this cromwel's soldiers , forsooth , must mutiny , and say they will have their cromwel or they will not stir . hereupon he must be sent down ; no word then of cutting or hewing , or of forcing them to a submission , as in the case of the earl of essex's soldiers ; but they must have their wills . yet for these very men had cromwel undertaken before , when upon debate the inconveniency was objected which might follow by discontenting the common soldiers , who would hardly be drawn to leave their old officers and go under new , he could say , that his soldiers had learn'd to obey the parliament , to go or stay , fight or lay by the sword upon their command ; which i know prevail'd with a great many to give their vote with that ordinance . . by this trick a little beginning was made towards the breach of it , which was soon made greater . for they caused a report to be spread , that the king was bending with his forces towards the isle of ely , but none could save but cromwel , who must be sent in all haste for that service , and an order of dispensation is made for a very few months , two or three ( i remember not well wh●ther ) but with such protestations of that party , that this was only for that exigency , and that for the world they would not have the ordinance impeached , as mr. sollicitor said ; and that if no body would move for the calling him home at the expiration of that time , he would . but all this was to gull the house . mr. sollicitor had forgot his protestation , and before that was out there is another order for more months , and so renewed from time to time , that at last this great commander is riveted in the army , and so fast riveted , as after all his orders of continuance were at an end , he would keep his command still , which he has done for several months , and dos yet , notwithstanding that ordinance , without any order at all of the house for it . . there , now they have the sword where they would have it , and resolve with it to cut all knots they cannot untie ; yet they desire to keep that resolution behind the curtain as long as they could , and would be thought very obedient to the parliament , hoping they should be always able to have it carried there according to their mind ; and partly by the awe of their power , partly by hopes of reward and advantage , still to have the major vote . which was easie for them , having both sword and purse , and withal an impudence and boldness to reward all those who would sell their consciences . for all such members of the house , and others were sure to be prefer'd , have large gifts given them out of the commonwealth's money , arrears paid , offices confer'd upon them , countenanced and protected against all complaints and prosecutions , had they done never so unworthy , unjust , horrid actions , to the oppression of the subject , and dishonour of the parliament . all others discountenanc'd , oppos'd , inquisitions set upon them , question'd , imprison'd upon the least occasion , colours of crimes many times for doing real good service , and no favour nor justice for them : only that the world might see which was the way to rise , and which to be sure to meet with contrary winds and storms , and so to make all men at least to hold candles to these visible saints . . but a party in the house still troubled them , which saw their juglings , their under hand dealings , suspected their designs , found what they drove at , and countermin'd them , oppos'd them , sometimes crost and defeated their practices , always vext them , and did , in a great measure , divert and keep off evil , tho the stream was so strong they could not attain and effect the good they desir'd . . this knot must be broken , and some of the persons removed , who are represented to the kingdom by these men and their agents , as those who were rotten at heart , not faithful to the parliament , holding correspondence and intelligence with the king. this was upon generals , only to prepare mens minds to make passage for an approbation of any attempts to their prejudice , and give credit to such lies and false accusations as they should be able to set on foot : and all means are us'd to procure witnesses to testifie any thing against them , prisoners examin'd and encourag'd to say something , any scandalous desperate rogues receiv'd and hearken'd to , spies set to watch them , their goings out and comings in , what places they went to , what persons they visited or that visited them . some of their agents consest they have been two years together watching about some of our houses , yet it pleased god to protect the innocent , and , notwithstanding all these endeavours , it was never in their power to do any great mischief in this base unworthy way . . they came nearest to their mark , when they had gotten the lord savil , a known infamous impostor , to accuse me with keeping correspondence with my lord digby ( of which he said he had notice given him by a letter in cypher from the dutchess of buckingham ) and for what i did and said at oxford , when i was amongst others sent thither to present propositions to the king , where they had a sit instrument to act for them , and say and swear any thing they would have him , who was at that very time employed by some of their principal ones , to truck and drive a treaty underhand with some great persons at oxford . for the chief among them had always grace to try more ways then one to the wood , and commonly not to row the way they look'd , willing enough to have made a good bargain for themselves at court , and then have left their whelps , their zealots , to have mended themselves as they could , perhaps not despairing but to have perswaded them it was for their good , and the advancement of their catholick cause , so to have quieted them , and some little thing should have been done for their satisfaction . i did with my own eyes see letters , and so did several persons , members of both houses , some yet alive , some dead , witten by savil to divers of great quality at oxford , one to l. d. some to others , with only one letter for their names , where intelligence was given of the proceedings and intentions of the parliament and their army , many propositions made in the name of that party and their undertakings , and in the close my lord savil to be lord treasurer , mr. solicitor to be lord keeper , and others of their faction to have several offices of honourand trust. these letters were seen likewise by my lord willoughby and mr. whitlock , who are yet alive , and can testifie it , and by the earl of essex , sir philip stapleton , and sir christopher wray , who are dead . some of them were written by savil's own hand , some copy'd out by a person of honour , who was employ'd by him , and is yet alive to make it good : and when they play'd this game themselves , and pretended , forsooth , a designupon oxford , and to have the king's army in the west deliver'd to them ( which was all but collusion and deceit , to abuse the world , and colour their correspondencies ) then did they make savil play the villain and accuse me , whom they prosecuted with that height of malice and violence , with so much injustice and partiality , especially that man of law mr. sollicitor , who tho mr. whitlock had not only consented to , but joined in , and advised all that i had done at oxford , and that savil himself had laid it equally upon us both in his information ( it seems either not so wicked as his setters on , or not fully instructed by them ) yet such was the justice of that man , as he would needs sever our cases , and was not a shamed not only so to declare his judgment , but press'd it and sollicited it , that the proceedings might be singly against me : whereby the eyes of many indifferent persons , members of the house , were open'd , and their spirits rais'd to an indignation , insomuch that in spight of the sollicitor and his party , i was acquitted by the house . . this made them bethink themselves , begin to mistrust the house , and doubt if they should be able to carry things as formerly : and thereupon resolve on a course , which some amongst them had formerly still oppos'd or declin'd , as mr. sollicitor by name , which was to have the vacant places of those they had thrust out filled up by a new election , issuing out writs for it under their new great seal . this they hoped would alter the constitution of the house , and give them infallibly a majority of votes . accordingly in the long summer vacation of the year , when very many of the members were gone into their several countries , they fall upon that point of recruiting the house ; and notwithstanding the thinness thereof , and its being surprised with that debate , their creatures most of them there ( as they were always sure of some fifty voices , persons whose only employment was there to drudg and carry on their masters work , having thereby a greatness far above the sphere they had formerly mov'd in ; whereas the others were gentlemen , who had estates which requir'd their looking after and all of them some vocations , either for their particular business or pleasure , which made them less diligent , and many of them , as at other times , so then away ) yet they carried it but by three voices . . then to work they go to canvass for elections in all places , for the bringing in of such as should be wholly theirs . first , they did all they could to stop writs from going any whither but where they were sure to have fit men chosen for their turns , and many an unjust thing was done by them in that kind : sometimes denying writs , sometimes delaying till they had prepared all things , and made it , as they thought , cock-sure : many times committee-men in the country , such as were their creatures , appearing grossly , and bandying to carry elections for them ; sometimes they did it fairly by the power of the army , causing soldiers to be sent and quarter'd in the towns where elections were to be , awing and terrifying , sometimes abusing and offering violence to the electors . and when these undue elections were complain'd of , and question'd at the committee of privileges , there appeared such palpable partiality , so much injustice , such delays and tricks to vex parties grieved and their witnesses , such countenancing and defending those who had done the wrong , as it dishearten'd every body , and made many even sit down and give over prosecution . . notwithstanding all this , and that by this means some persons unduly chosen were brought in , yet it prov'd , that far the greater part of those new members deceiv'd the expectation of these men. for tho they came into the house with as much prejudice as was possible against the other moderate party , who had always been represented to them as persons ill affected , not faithful to the parliament , obstructing all businesses that were for the good of the kingdom , having self-ends and ambitious designs of their own ; when they came to sit in the house themselves , to see with their own eyes the carriage of things , understand the ways and drift both of the one and the other party , discern the tricks and violent proceedings of the one , and plainness and reality of the other ; that all these aimed at was but to get a good peace , see the government settled both in church and state , and make no advantages to themselves , have no share , nor desir'd none of the moneys , look after no offices nor preserments ; in a word , not seek themselves but the pulick ; and those on the other side hinder and oppose the settling of the government , and keep things in a distraction and confusion , not willing to put up the sword , but continue the burdens and pressures of the country , countenance the insolencies of soldiers , bear them out in their abusing of ministers , and other honest men , who were for church-government , keep up factions and drive on interests in the house , put themselves , their kindred and friends into all places of power and profit , share and divide among them the common-wealth's money , by gifts and rewards , and paying pretended arrears ; in a word , seek the ruin of the kingdom , and the advancement of themselves and their party ; this made them change their minds , and many of them to confess and acknowledg they had been abused . . but this was not the work of one day : some time passed before they could make these clear discoveries and disabuse themselves ; our grand impostors kept them a good while at gaze , with putting jealousies into their heads against the scots , as if the scots had a design of making good their footing in this kingdom , and that we who were of the other party from them did carry on the scotch interest , and design'd to betray the rights and liberties of england ; with which engine they batter'd a long time , and made no small impression in many mens minds . . for the next step they meant to make , was to fall foul with the scots , and engage the kingdoms one against another in blood , which was the return they would give the scots , as a reward of the good service they had done them , coming to their help in time of need , when they were so low , so despairing of carrying on their work , and effecting what they had projected to themselves , as that the chief of them a little before were ready to run away , ships prepared , good store of treasure which they had shark'd , pack'd up to carry with them , or return'd beyond sea by bills of exchange , and all things in a readiness for their remove , so well were they resolved to hazard , and ( if need were ) sacrifice themselves for their country , tho they would be thought to be the only patriots ; but they had certainly left it in the lurch , if first my lord of essex had not done that memorable piece of service in relieving glocester ( which was so gallantly defended by major general massey ) and fighting the great battel of newbury . and a little before that the kingdom of scotland engaging in the cause , sent in their army to their assistance . my lord of essex , as has been shewed already , had his reward ; he was cashier'd , and so was major general massey , who since likewise is turn'd out of the house ( being one of the eleven members ) and voted to be impeached of high treason . and next the scots must have theirs . the quarrelling with them , and endeavouring to destroy their army , is what i must now speak of , as the subject of the next act in this tragedy . the first endeavour is to break the scotish army , by not paying it , which before , whilst they had need of it , or hopes that the kingdom of scotland might cooperate to the working of their designs , they could be careful to do their utmost to satisfie , and to provide for it fitting accommodations . but now they can let many months pass without sending them any money , or taking any care for their supply , or so much as affording them good words . one of these two effects they thought this would certainly produce , either the soldiers to run away , perhaps mutiny , so the army disband and fall to pieces , or else live upon free-quarters , so by oppressing the country to become odious , and the people rise against them . nor were they wanting to give all encouragement so to do ; emissaries were sent out , and agents employ'd in all places to stir up and imbitter mens spirits . many complaints were , by their procurements , sent up to the parliament , and all means used to get hands to those complaints , and strange things were suggested , vast sums to be levy'd by them , so many thousand pounds a week to be levy'd upon a county , unheard of insolencies to be committed , robbing , killing , ravishing , riots , all manner of villanies . this would come up with open cry , make a great noise , be received and heighten'd in the house of commons with railing speeches , bitter invectives , blown over the city and kingdom to the disadvantage and reproach not only of the army , but the nation ; in a word , all done that could be imagin'd to set man , woman and child , and even the very stones against them . the commissioners of scotland that were in london would many times send in their papers to the houses of parliament , to shew the falshoods of those reports , and desire that committees might be sent down to join with theirs to examine these things ; pressing that it ought to be so done by the treaty between the two kingdoms , and that there should always be a committee of both kingdoms with the army to govern it , to provide what was sit for the soldiers , and prevent both disorders and misunderstandings : but it was not that which our masters desir'd , and therefore they would send none . . the members of the house who dislik'd those courses , and saw the endeavours that were us'd to cause a breach between the two nations , did yet desire , that if those relations were true , it might so appear , and be represented not only to the general of the army , and to that part of the committee of estates of scotland which was in england ( both those with the parliament and those with the army ) but even to the kingdom of scotland , that there might be redress , the offenders punish'd , and the kingdom of england righted and satisfy'd : if false , that the raisers and contrivers of those reports might be punish'd , and the kingdom of scotland repaired , which was the way to keep peace between the nations . and so sometimes they prevail'd , and got it order'd for an examination , but never any thing could be made of it . only at a market-town in yorkshire there had been a riot , and some men killed ; for which a council of war had passed on the offenders , and some ( as i remember ) were executed , some cashier'd . and for the raising those great sums of money , it is true , money they did raise , or else their soldiers must have starv'd : but for that exorbitancy of raising so many thousand pounds a week upon one county , it was a scandal and false lye , grounded upon notable cheat and collusion . for the scots drawing their quarters near together , which they did , as well for the better governing of their army , as for the safety of it , knowing they had many back-friends , this made them lie heavy upon places , and exact the more money and provisions from those several townships . then did these men who were employed to blow the coals , and put all into a flame ( if possible ) between the country and the scots , take the highest rate that was set upon any one of these towns , and make a computation what it would come to upon the whole county at that proportion , which sum they inform'd to be the charge upon that county for the payment of the scotish army ; and this must be made a great business and past for a truth , as if the scots had rais'd so much money , when in truth there was no such thing . . yet let me not be thought to excuse and justifie all that the soldiers of that army have done upon the country , and not to pity with a very tender sense , the deep sufferings of those northern parts , the scotish army lying so long upon them on free-quarter . i must be very ignorant of the carriage of an unpaid army , if i did not believe that many disorders were committed , many a poor country-man exceedingly oppress'd and abus'd by the unruly soldiers , and more by half taken and spoiled by them , than would have sufficed for their pay and entertainment , if it had been orderly raised and provided by the authority and care of the state which was to pay them . and so should i likewise have very small bowels towards my country , england in general , and particularly those poor counties , in one of which i receiv'd my being , if i did not grieve and mourn from the bottom of my soul for the sad condition which did then overspread them , the poverty to which they are reduced , the ruin of so many houses and families , the land lying in many places an uninhabited wilderness , all over a face of misery and desolation . but then the more i am raised to an indignation against them who were the cause of this , those who had rather suffer not one county or two , but all the counties in england , and two kingdoms besides to perish and ruin , than they to fail of their ends. so must all the north be made a sacrifice to their malice and revenge upon the scotish nation , and rather than not enforce the scots to oppress those parts , hoping at last they would fall one upon another , they will suffer the country to endure any misery ; and not only so , but impudently and perfidiously wrest and misinterpret the treaty themselves had made , and so put a great scorn thereon , to give greater provocations to the scots : and thus they make themselves ridiculous and infamous to the world , and to all posterity , by a gross and palpable collusion . . for when the commissioners of scotland and the general of the army did so often and earnestly move for pay for the soldiers , representing that on the monthly pay which was condition'd for and promised , they have not of so many months received any thing , and that it was impossible to observe that discipline in the army which was requisite for the ease of the county , because the soldiers were unpaid , they had the face to say , that by the treaty the scots could not receive their pay at present , because there was a clause , that if any part thereof were behind , they should be allowed interest for forbearance ( which interest was not to be presently paid neither , but afterwards when the peace was setled and the kingdom more able ) upon which these conscionable logicians infer'd , that allowing interest nothing could be demanded . so that which the scots gave way to out of friendliness and confidence , to shew they would not exact upon our necessities , if at any time through the great occasions of expence we were not able to give them their full pay , is now made use of , and ungratefully turned upon them , to defer the payment of any part : and this only to affront them , and make them desperate . . and as they deal with the army , so did they with the state and kingdom of scotland , by putting neglects and indignities upon their ministers , raising jealousies of them and of the whole nation . for this they had their robert wright , and their unknown knight to give intelligence of correspondencies held by them with the queen , of undertaking to do great matters for the king , treaties with france , strange designs and practices against the parliament , and every foot letters of information from some well-wishers abroad to mr. sollicitor , or sir henry mildmay , or some other of that gang , upon this strain . then this is whisper'd about , and these letters go from hand to hand , and told as a secret in every bodies ears , to make people afraid and mistrust even their own shadows , as if all were in danger . sometimes the house must be acquainted with some of these things , or some person or other brought to the bar to make some relation , as sir thomas hanmore . then the doors are shut , long winded speeches made to set out our dangers , and great expectations rais'd of strange discoveries , and all but a parturiunt montes . yet this serves to make a noise , and they had instruments abroad to improve it , and many hones well meaning men were cozen'd and stood at gaze , knew not what to think of their brethren of scotland , nor yet of the members of either house , and desir'd to have things more fairly carry'd towards them ; and as they had had experience of their faithfulness formerly so could they not be brought by such artifices to have an ill opinion of them without better grounds for it , and therefore differ'd in the entertainment they gave to those alarms , judging them false and causeless , accordingly expressing themselves , diverting and breaking the desperate thrusts which these men made , and were therefore decry'd as scotish , malignant , and prejudged in all they did or said . . the malice against the scots rests not here , it carries them to discover and manifest slighting and neglecting , and ( that not sufficiently provoking ) a violent injuring and affronting of them . first , they vouchsafe not to answer the papers they put into the house , some not at all , none presently ( as formerly they were wont to do ) nor in any convenient time : but make them wait days , and weeks , and months , for a return to what the commissioners present from the kingdom of scotland , or from themselves in the name of that kingdom . . the committee of the two kingdoms is now no more in esteem , than ( as they say ) a saint without a holiday : that which before did manage all the great business , which was looked upon with so much reverence , even as a sacred thing , pray'd for in the churches like the lords in the council , had all the `trust , all the power , not only in matters of war , which were wholly left to them by the ordinance of their constitution ; but all other business of consequence , as framing propositions for peace , and all addresses to his majesty , all negotiations with foreign states , whatsoever did in any high degree concern the parliament or kingdom , was still referred to them , and what they did , passed for law , was seldom or never alter'd in the house . but now the tide was turn'd , they had nothing to do . sir thomas fairfax was discharg'd of his subordination to them , and left to himself , to do as he saw cause with his army . they of the committee , who were of that faction , seldom or never came to it ; so that the commissioners of scotland , and the other members of it , did come and attend three or four days one after another , sometimes oftner , to no purpose , and no committee could sit for want of a number : nay , they prevail'd so far , as now to vilifie and shew their neglect or jealousie of the scotish commissioners . they would sometimes get business referred to the members of both houses that were of that committee , with their exclusion . . to provoke them yet more , they break through the law of nations , which in all places in the world give protection to publick ministers employed by any prince or state , so as neither their servants or goods , and especially not their letters , which are of greater consequence , and more immediately concern the honour and interest both of their masters and them , ought to be in any sort touch'd or stop'd ; yet the packets of the commissioners of scotland must be intercepted , and their letters broke open . this done several times in a secret and private manner , the letters suppressed and never heard of more , which was a great wrong and injury to that kingdom ; yet cannot be said to be an affront , because it was not avowed . but they have likewise done it openly and avowedly in a most inselent way : once they set a captain , one massey , at the guards by london , knowing the commissioners were sending an express into scotland ; and this captain ( who deserves to be made an example for it , and his masters too who set him to work ) stops the gentleman who was sent with the packet , takes the very letters they had written to the committee of estates , reads them , and keeps the messenger prisoner upon the guard , which was the highest affront , the greatest violation of the publick faith , the greatest scandal to all princes , states , and even societies of men , the basest unworthiest dealing with a nation , to whom we were engag'd by amity , league , covenant , common interest , and all bonds of gratitude for the good we had receiv'd from them , that ever was heard of , or read in any story , or i think ever will be again . yet was this fellow , by the power and interest of these men , protected in the house of commons : so far from being punish'd , when the scotish commissioners made their complaint , that when the lords had committed him for it , they made the house set him at liberty , and quarrel with the lords for breaking their privileges , in committing one who was under examination of their committee : for they had refer'd the business to a committee , in truth not to do the kingdom of scotland any right in punishing the offender , but affront it the more in protecting him . . one would think now these had bid fair for an absolute breach with scotland , but they are not satisfy'd yet ; one thing more they will do which they are confident will do the feat . it is this ; at the coming in of the scots , they had born them in hand , they desir'd nothing but the uniting of the nations : that therefore they would never make peace without their advice and consent ; and that as they desir'd a conjunction of forces and counsels for prosecution of the war , so whensoever a peace was made , they desir'd a conjunction of counsels and interests for the preservation thereof , that so the kingdoms , interwoven one with another , might be a mutual strength and security one to another . therefore in framing the propositions for peace presented to the king at oxford , and treated on at vxbridg , which was done at the committee of the two kingdoms , they make it one proposition , that some commissioners from scotland should be joined with ours in the power of the militia of this kingdom , and converse some of ours with theirs in their kingdom , and so bring it to the house . where my self , and many more , who truly desir'd the joyning of the nations in love and good understanding to perpetuity , opposed it , fearing that joining them in that power would prove a dividing of affection , which should be best set , and so preserved by keeping several their several interests . but those carry'd it , and what we fear'd prov'd true : it being afterward made an occasion of great endeavours to set the two kingdoms farther asunder , and certainly was first done by them out of that design . . for now when the propositions were to be sent again to the king to newcastle , that party took their rise upon that proposition to have them all review'd , and changed almost all in them that look'd towards the scots , and gave themselves liberty , as they had a large field , to shew the inconveniencies of admitting another kingdom to share power in this . and much was done and said reflecting upon scotland , and against all such intermixtures . then those who shewed their dislike of it before , and would not have had it done when it was to do , being now done , did not desire at that time to have it undone , in truth , unwilling there should be any altering of the propositions at all ; not knowing where these men would stop , if once they began to change any part : and therefore offer'd this consideration , that though before it had been no wrong or unkindness to our brethren not to have admitted them to such a copartnership , which they apprehended would prove rather a prejudice than otherwise , but being now in , they thought it might be ill taken to thrust them out , and argue a jealousie and change of affection , according to the rule , turpius ejicitur quam non admittitur , &c. but for that very reason were these men the more earnest for it , that it might be ill taken , that it might argue a jealousie , that the scots might see by it , that the countenance , of the parliament was not to them as before , and that the ligament being untied , by which the two kingdoms did seem to be bound up together , they might fall in sunder , and the breach be the greater . o the wickedness of these men , that thirsted after nothing but to see the two kingdoms weltering in that blood which they must let out of one another's veins ! but that does the more commend the goodness , piety , wisdom , and moderation of our brethren of scotland , which prevented it ; for notwithstanding all these provocations , all these injuries and affronts , they were stedfast , they were unmoveable in their resolutions to promote the peace of england . they said they came in to help it , they will not be made instruments to destroy it : they had bound themselves in a covenant before god , and in a treaty with their brethren of england , to endeavour by all good ways and means a happy settlement and reformation both in church and state : the art and malice of their enemies , and the enemies of peace , shall not engage them to become in any sort an occasion of hindering it . therefore they deny themselves , they renounce their own interest , they quit all pretensions , and agree with the parliament in those alterations , aand thereby defeat the expectation of those who hop'd to see , not only the propositions of peace laid aside upon that occasion , but that scotland should have born the blame , both of not making peace with the king , and also of all the miseries which must have followed upon both kingdoms by a rupture and breach between ' em . . when they saw they could not by art and underhand-dealing compass this breach , that neither the scots would be provoked to declare against the parliament , and so the war begin on that side ; nor could they engage the northern counties to fall upon them : if either of which had taken , they had still kept themselves behind the curtain , and hid the arm which had thrown the stone ; they had seem'd , alas , innocent well-meaning men , and yet the mischief befallen which they had contriv'd . but rather than fail they will throw of the vizard , and come downright with open face , to the executing their design . they set on their teazers , as haslerig , mildmay , martin , and many others , to move , that sir thomas fairfax might go down with his army to protect those northern counties , and relieve them from the oppression of the scots , a pretty way of protection and giving ease , to send an army into a country . we see how this army eases the country now , to the breaking both of their backs and hearts . but , could they have gotten a vote for this , their work had been done , and we should soon have heard of mischief and felt it : the animosity between those two armies had instantly put them and the kingdoms into blood , for which , no question , sir thomas fairfax had his instructions , but the house would never give way to it , tho with earnestness prest many times by that party . and when they saw they could not prevail , the presumptions are very strong , that they would have had the army to have march'd thither without the parliament's order : for the scots had an alarm of the army 's moving towards them , and their commissioners so inform'd the house , with a protestation against it , upon which there was a stop , with a denial and disavowment of their having any such intention . yet certainly there was an attempt , and it is said , orders out for part of the army to move that way ; but god be thanked it went no further , for that would have been a sad business . . before i go off this matter , i must do that right to col. pointz , who commanded the northern forces , as to attribute to his care and vigilancy , and his discreet ordering of his business , a great part of our happiness , that all that mischief was prevented which was so earnestly endeavour'd to be pull'd on us , by engaging the country and scotish army in quarrel and bloodshed ; and that was his crime with these men to be for it , since so unjustly put out of his command , after they had stir'd up the unruly rabble of the agitators , to take him by violence out of his house at york , being as absolutely in his command as fairfax was in his : meerly doing it by an act of power , force , and violence , breaking through all rules of justice , equity , and honesty , bringing him a prisoner to the army , not suffering him so much as to put on his clothes , or speak to his wife , or any friend , but use him as if he had been the greatest traytor in the world , when sir thomas fairfax could not pretend to the least jurisdiction over him , not any thing could be laid to his charge . such is their hatred of every honest man , who stands in their way to their pernicious designs . . their next hope was , that the scotish army would not go out of the kingdom at the desire of the parliament ; so bloody noses would be upon that occasion : and i must give them their due , there was no failure in them , to do all that was possible to have kept them in still only to quarrel with them , but with a seeming to desire nothing so much as their going . very forward they were to get the vote of the parliament that they should be gone ; but to inable them to go they would not help , rather hinder , and hang on all the weights they could . to say the truth , they had some ground to believe , first , that they would not go , secondly , that they could not , if they would ; for the scots had a colour , if not just reason to have refus'd . . by the covenant and treaty , the two kingdoms had bound themselves before god and one to another , as one intire body , to prosecute the cause ( these are the very words of the declaration of both houses to the state of the united provinces , which declaration mr. sollicitor himself penn'd , therefore they must hold it canonical ) and that neither kingdom should lay down arms till the ends mention'd in the covenant and treaty were obtain'd . if then in this cause the forces of both kingdoms made but one intire body , the scots had a good plea , why will you send us away and disband us wholly ? this proceeding is not equal , the body must suffer , and cannot act as an intire body if one whole member be cut off ; or if there be no more need of acting , if the ends be obtain'd for which the body was constituted , and therefore you send us away , then why do you keep up your own army , the other part of this body ? this had certainly been strong reason , which mr. sollicitor would have been puzled to answer . . besides , the scots had cause enough to have their jealousie prompt them , that it was not safe for them to depart with their army , lay by their swords , and leave standing in this kingdom so great a force , which they knew to be so ill affected to them , and might act to their prejudice ; and the king being in their power , perhaps force both him and the parliament to a peace disadvantageous to scotland , and differing from those grounds upon which , by the kingdom of england , they were engag'd in this quarrel : or else make no peace at all , but interpose ( as cromwel to the earl of manchester ) to hinder it , and themselves govern by the sword , not only to the prejudice of scotland , but also ruin of england . one may swear there was ground enough for such a fear ; for since it hath prov'd so to purpose . but according to the old rule , they who mean well themselves , are not suspicious of others . the scots had no thoughts but of setling a peace , laying down of arms , calling the people , and all things to revert into their old channel ; therefore they were willing to be gone and return into their own country , in confidence that after their departure , the army under sir thomas fairfax should likewise presently be disbanded , since there was no more need of any army at all , so they were willing to go . . but then the question was if they would go or not , and how the soldiers would be dispos'd to march out , who had not been paid of so many months , insomuch as the scotish commissioners gave in an account of some l. arrears . here our gallants hop'd they had them upon the hip , and should surely give them a fall . then they thrust on some of their little northern beagles , as mr. blaxton , and others , to inform what high sums they had rais'd upon the country ; upon which they conclude the scotish army was in their debt , and therefore they would come to an account with them , which had been a sure way to have kept them in the kingdom five or six months longer . but to help that , our just pay-masters said the army should march away , and some persons be left behind to see all accounts adjusted : which had requir'd very good rhetorick to have made it justice , especially to have appear'd so to the scotish soldiers : for to have sent them away without money , and then ask the country-man what the soldiers had taken , when he might say what he thought ● good , the soldier not there to answer for himself ▪ and yet his pay to be thereby determin'd , would have been but hard measure . but the rhetorick had been , sir thomas fairfax to have gone down with his army , which should have made it just , and easie , and every thing ; for this was it they desir'd to bring it to , as it was often mov'd and press'd by them . . at last the well-wishers to peace with much ado prevail'd in the house , and it was carry'd to offer the scots a gross sum for all , so to part fair , and avoid the delay and disputes of an account , to which they presently agreed . then the question was what sum. here again we had a strong debate : for our incendiaries hung by every twig , sticking fast to their principles to dissatisfie the scots , and break with them ( if possible ) upon any point ; pretending the poverty of the kingdom , and the great sums the scots had rais'd , and therefore they would give but l. which they knew was all one with a hundred shillings , as to the satisfying of the soldiers for marching away . in the end , after many debates in the house , and passages to and again with the scotch commissioners , the lowest sum that could be agreed unto by the commissioners was l. two in hand , and the other two after some time , with a protestation of theirs , that the army would not be satisfy'd with less , nor inabled to march , which was motive enough for these men to deny it ; for if they could have wrought the dissatisfaction of the army , so as to have refus'd to go , it was where they would have it . whereupon 't was oppos'd by them with all the power they had , but in the end the better part , that is the moderate party , who were the peace-makers , those that labour'd to keep things even and fair between the two kingdoms , carry'd it : and the sum was voted , and all things agreed upon , tho with difficulty ( for they fought it out and lost it by inches ) then the scots declar'd they would march out by such a day . . yet had our boutefeus one hope left , which was to quarrel at last about the person of the king ▪ believing the scots would certainly have taken his majesty with them into scotland . this they knew had been ground sufficient , and would have engag'd all england against them , giving a confirmation to all the jealousies formerly rais'd , and occasion'd a thousand more : and had certainly more advantag'd the designs of those who thirsted after the destruction of the king first , the scots next , and then all such as desir'd peace within this kingdom , and have made them a smoother way to their damnable ends , the altering of the government , and bringing in a confusion both in church and state , than any thing that could have happen'd : and the two kingdoms had been together in blood , the author of the mischief undiscover'd , mask'd over with the glorious pretences of zealously vindicating the honesty and interest of england , and every breach of covenant and treaty in this cause , which made them with so much peremptoriness and incivility , and in truth injustice ▪ demand that the scots would deliver up his majesty , who had an equal interest in his royal person with the kindom of england , he being equally king of both , and an equal interest in the closing and binding up the unhappy differences which were between him and both his kingdoms , they having been engag'd in that quarrel at the entreaty of england , and made up together with an intire body with england ( as is before shewed ) for the prosecution of it . therefore they had no more reason to trust us with the king than we had them ; and as much were they concern'd in all that related to his majesty's person , so as they had ground enough to have disputed it , and out of that hope was it press'd by the others . but the wisdom of the scotish nation foresaw the inconveniencies which must have necessarily follow'd , had they been positive at that time , how they had plaid their enemies game to their own ruin , and even ruin to his majesty . therefore they made for him the best conditions they could , that is for the safety and honour of his person , and to avoid greater mischiefs , were necessitated to leave him in england , and so march away . which they did in february . . here then the very mouth of iniquity was stopt , malice it self had nothing to say to give the least blemish to the faithfulness and reality of the kingdom of scotland , the clearness of their proceedings , their zeal for peace , without self-seeking and self-ends , to make advantage of the miseries and misfortunes of england . this gave such a reputation to them , and to those that appear'd for them ( that is , so far for them , as to endeavour the doing of them right , and prevent the practices of those who sought all means of doing them wrong ) and gave such a blow to the other violent party , so broke their power , and lessen'd their authority in the parliament , as it made way for obtaining those resolutions which were presently taken for disbanding sir thomas fairfax's army . till when , by the fomenting jealousies against the scots , and against all moderate and well affected persons , as if their designs were to betray the cause , deliver over the honour , and interest , and strength of england , into the hands of the scots , they prevail'd so far , generally upon the affection of the people , and especially upon many well-meaning ( but not so well discerning ) persons , members of parliament , as they were able to suppress all good motions tending towards peace , all endeavours of smoothing those rugged ways that their violence had put all things in , and to swell up that independent army , like the spleen in the body by the concourse of all ill humours , to the ruin and consumption of the body it self : and yet other forces cashier'd , as major general massey's brigade , which had done all the service in the west , of which those drones robb'd the sweet , getting the honour and advantage of it to themselves . that tho that army was compos'd for the most part of factious sectaries , except some few gallant men that were scatter'd here and there amongst them , as colonel greves , colonel thomas sheffield , sir robert pye , colonel herbert , colonel butler , quarter-master general fincher , and other officers of quality , and gentlemen of the life-guard , who had formerly serv'd under my l●●d of essex , and sir william waller , and in other parts of the kingdom , to whom they did the honour of letting them perform all the action which that army had to do , and who every one of them afterward left it , when it left its obedience to the parliament and fidelity to the kingdom , and that they grew to be not only an unnecessary grievous burden in respect of charge , but also a let and hinderance to the setling all government both civil and ecclesiastical , neither submitting themselves to order of parliament , nor permitting others where they could hinder it ; but giving countenance to all disorders , especially in the church , as breaking open the church doors , doing most unseemly barbarous things , indeed not fit to be related either to modest or christian ears , and in time of divine service interrupting ministers as they were preaching , miscalling , reviling them , sometimes pulling them down by violence , beating and abusing them , getting into the pulpits themselves , and venting either ridiculous or scandalous things , false and pernicious doctrins , countenancing and publishing seditious pamphlets ( for which they had a press that follow'd the army ) decrying both king and parliament and all authority , infusing a rebellious spirit into the people , under the pretence of liberty and freedom . all this notwithstanding while the scotish army was in the kingdom . such things were whisper'd , such jealousies and fears rais'd , as these inconveniencies were not only dispens'd with , but the army supported and cherish'd as if they had been tutelary gods , those who must have protected and deliver'd us from all danger , and all that the parliament and kingdom could do , little enough to feed and maintain them , tho an excrescence that drew away the whole nourishment of the body , and starv'd it . . but afterwards when the kingdom saw how they had been abus'd , made to fear where no fear was , and were come to themselves , they soon grew to feel the weight of that which lay upon them , and seek for ease . then city and country could petition the parliament for disbanding the army , complain of their intolerable disorders and irregularities , and the parliament was well dispos'd for it , who now likewise discover'd the art and malice of the independent party , a spirit they had rais'd which they would gladly lay , and consider'd , that as such an army was dangerous , so none at all was needful , that ireland wanted what we had too much of , soldiers . . besides , they well saw that whilst that army stood , they should never be able to relieve ireland to any purpose , the stock of the kingdom was swallow'd up in their maintenance ; and tho for the space of a whole year there had not been an enemy in the field , nor town possess'd by any to find them employment , yet they recruited daily , all care being taken for sending them pay , arms , provision , clothes , with all other necessaries , as if they were every day upon hard and dangerous service , when they did nothing but trouble and oppress the country ● so as notwithstanding their glorious pretences of fighting for conscience , not pay , sacrificing themselves to god and the kingdom 's cause , none of them would stir to help the poor protestants in that kingdom , but even hinder'd what they could all others from going . . which appear'd by colonel hammond's capitulation , being design'd for the service of dublin , who tho he were but an ensign to sir simon harcourt in the begining of those wars , now a colonel of the new model , stood upon his pantoufles , that he would not be oblig'd for longer than two or three months , have all his pay before hand , victuals for six months tho he would stay but two , be absolute commander of all the forces there , have a proportion of money over and above for contingent occasions put into what hands he would appoint , a fleet of ships to transport him , wait upon him , and be at his disposing , not to stir without his leave , in truth he must be admiral and general ; such terms as no prince or foreign state that had but given an assistance could have stood upon higher . this was the obedient conscientious army ; but most men were satisfy'd if it was not disbanded ireland must be lost , and england undone . . the parliament therefore taking into their consideration the necessity of relieving that dying kingdom , after long debate , and much opposition from all that party , came at last to a resolution in may , and vote , that a certain proportion of foot and horse should forthwith be transported into ireland ( as i remember seven regiments of foot , of which four i am certain were to be taken out of the army ) they further vote , that no foot should be continu'd in england , but those that were to be for the necessary defence of the garisons , and that about five thousand horse and dragoons should remain under pay in this kingdom , for quieting and preventing any stir or trouble , either within or from abroad , to interrupt proceedings till a settlement of affairs : peoples minds after such commotions being , like the sea after a storm , unquiet for some time tho the wind be abated . those men would have had a far greater number , and press'd it earnestly , saying , we laid by our strength that all might be deliver'd back into the king's hands ; and tho even this proportion seem'd very great to discreet and moderate men , yet they pitch'd upon it , partly to stop the mouths of these railers , and give satisfaction to all indifferent persons , who look'd not so far into business , and were apt enough to be misled into jealousies and suspicions , and partly because they well hop'd it would be but for some short time that this charge should be continu'd upon the kingdom . . here then is the ax first laid to the root of this broad spreading tree , the army ; a dismal cypress , the shadow and dropping whereof were so pernicious as to darken all the comfortable beams of our sun-shine of peace , and suffer no good thing to prosper near it ; this vext the children of darkness , who now must cast about , shake heaven and earth , raise all the black spirits of hell , confound sea and land , and all the elements , rather than permit this to take place . . the parliament goes on with this work , refers it to the committee of lords and commons at derby-house , to see those votes concerning ireland put in execution . the eleven members were almost all of them of that committee , who may say hinc illae lacrimae . for doing their parts , together with the rest , in discharge of the duty and trust which lay upon them to take care of that poor kingdom , and discovering the designs of the army to frustrate all the good designs of the parliament , they incur the mortal hatred of the party and army which have driven them from their homes , and country , and city of london , without the privity or consent of the house of parliament . the earl of warwick , the lord dacres , sir william waller , sir iohn clotworthy , major general massey , and mr. salloway , are the persons employ'd . these labour to dispose officers and soldiers to a compliance with the necessities of ireland ; but at the very first were receiv'd with a mutinous acclamation amongst the officers whom they had call'd together , some of them crying out , one and all , and the whole company disturb'd and distemper'd . so as finding it not convenient to deal with them together in a body , they desir'd , that such as had a sense of the miserable condition of that kingdom , and a will to ingage for the relief of it , would repair to them to their lodgings , which very many did , colonels and lieutenant colonels , and other officers , and undertook for themselves , and a very considerable number of their soldiers , about , or , casting themselves wholly upon the parliament for their conditions . the rest of the officers and soldiers of the army doing all that was possible to obstruct the service , decrying the employment , railing upon , misusing , threatning , and thereby discourage those who engag'd , calling them deserters of the army and of their general , and by great offers and assurance of better conditions to stay with them keeping of others . . and at that very time did some of the officers meet and prepare a petition , together with a representation , in the name of the whole army , that before disbanding there might be an act of indemnity with the king 's royal assent to it ; that auditors might speedily repair to the army to cas● up their accounts for their service from the beginning ; that none who had serv'd voluntarily in that army should be compel'd to go out of the kingdom ; that till disbanded , money might be sent down for their supply . this was a fair beginning of the godly army's taking care for ireland , and of those good officers proceedings , so obedient to the parliament , as meerly for that they had been made choice of and put into the rooms of far better men than themselves ; now forsooth , when the parliament would have some of them go for ireland , they will put the whole army into a mutiny . . for an army , or any part of it , to join in a petition , tho but for pay , when their superiors ( that authority which they are to obey ) require any duty to be perform'd , or service to be done by them , as the present relieving of ireland was , this , i think , by the rules of war , has in all armies been held a mutiny , and the authors , at least , punish'd with death . here to be sure it shall mutiny to purpose , and not disband according to the resolutions of parliament ; they put them not only to petition in this mutinous way , but to desire impossibilities , as tacitus says , non ut assequerentur sed causam seditioni , not to rest satisfy'd with former ordinances , and the general care taken for all who had serv'd in these unhappy wars , but to demand a particular act of indemnity with his majesty's approbation , not that they car'd for him , or meant ever to see him again in power to enact any thing , which their proceedings since have made clear to all mens understandings ( though some discern'd it very well to be their principle and their drift from the beginning ) but they knew this would take up time , could not possibly be so soon done , and would elude all endeavours of disbanding . so for auditors to go and cast up their accounts was the work of many months , and a strange demand for this godly obedient army to make , who , by their own sayings , were not mercenary , but had taken up arms in judgment and conscience , and out of love and duty to the parliament , not for their pay. their other demand is as good , and is as much as to say , as that the parliament should send none of them for ireland , they who were the parliaments army , who , as mr. cromwel made us believe , would go with a word to any part of the world , whither the parliament would please to send them ; and therefore the other armies and major general massey's forces must be cashier'd ( those who certainly would have gone ) to make way for their entertainment . these now who had receiv'd the pay of the kingdom so long , the sole army , which , like pharaoh's lean kine , had eaten all the rest , and had the sword of the parliament singly and wholly in their hands , stand upon terms , and will not be compell'd to go , that is , will not go ; for they know none is compell'd for ireland , nor was there any thought of it , since many were willing to ingage in that war who were not so in this ; but this was enough to possess the army with a prejudice against the imployment , and against the intentions and proceedings of parliament . . this petition and other of their practices so interrupted the business , that our commissioners at their return inform'd both houses of it , who yet were so tender of conceiving or expressing any great dislike of the contrivers and promoters of the petition for obstructing the service of ireland , and distempering the army , and that those who had but been drawn in it should not find themselves lessen'd in their good opinion , who resolv'd to pass by all , and punish none , except such as should mutinously persist in the promoting of it . they sent likewise up for some of the officers that had more notoriously appear'd therein , and in discouraging and abusing them who offer'd themselves in the irish service : whose miscarriage , though it was very gross , and the answers of some of them at the house of commons bar mere collusion and equivocation ( as by name lieutenant colonel pride's , who being charg'd with causing the petition to be read at the head of his regiment , deny'd it stoutly , because , it seems , it was but at the head of every company , the regiment not being drawn up together ) notwithstanding all this , the house willing to bury what was past , and hoping it would have gain'd them to a better obedience for the future , sent them down again , rather with respect than otherwise , acquiescing with their denyal . and this very act of clemency was turn'd against them ; and afterwards when the army came to do their work barefac'd , no longer to excuse but justifie that petition , nay , make the parliament criminous for questioning it , they upbraided the house with sending up for the officers from their charge , when they had nothing to say to them . . the necessity of disbanding more and more appearing , it hastens the resolutions for it ; whereupon it was order'd , that officers and soldiers should have six weeks pay of their arrears , and so be disbanded , those that would be taken in for ireland to have six weeks more advance . the parliament at first pitch'd upon no greater sum , it being the highest that had yet been given to any . major general massey's brigade , which had been much longer without pay , and had done better service , had no more . the other armies under my lord of essex , and sir william waller , which had likewise done more work , the chief and main of it all , as having had a stronger force to grapple with , and yet had receiv'd less wages , were put off with a fortnights pay. this made the parliament think this proportion sufficient ; yet afterwards they of themselves increas'd it to two months , which was more than any had before . supposing then there would be no question of a compliance , they proceed to perfect what was further necessary for the supply of ireland , and safety of england . . for england they appointed what regiments of horse and dragoons shall stand , settle the garisons , name sir thomas fairfax general of all the forces under pay , which was sufficient honour for him for the service he had done ; and shew'd that they had no meaning to dismiss those with reproach who had serv'd them , as they were falsely scandaliz'd . . for ireland , they make serjeant major general skippon commander in chief , with the title of field marshal , and major general massey lieutenant general of the horse ; recommended it to the care of the committee at derby house , to prepare all things necessary for the forwarding of that service , and draw off such of the army as were willing to go : for the distempers there continu'd , those who had declar'd themselves being affronted , discourag'd , and many of them debaucht from that service . . this was faithfully perform'd by the committee ( that is , by part of it ) for some of them , as the sollicitor , cromwel , sir arthur haslerig , and those of that gang would not attend , but the others did . and if i may speak it without vanity , it being one of the great crimes with which the eleven members stand charg'd , by their care and industry , they put the whole business into such a way , not only doing their best endeavours to have sent over the forces that should have gone out of the army , but sending over others also , as colonel iones , and those regiments which went to dublin , and supplying the best they could my lord inchiqueen , and those forces which were there before , with such necessaries as they could provide , that by the blessing of god the foundation was laid for all the good which has since befallen that kingdom , and for the great advantages which those gallant men have gotten upon the rebels , notwithstanding the little assistance they have since receiv'd , having , in truth , been rather hinder'd than helpt ; for every body knows the malice which is born them by that party which now bears sway , what discouragements my lord inchiqueen has labour'd under , and the small regard had of colonel iones . yet they have subsisted , and not only preserv'd but advanc'd very much the english interest , with honour to themselves , and shame to these unworthy men who are so little sensible of the conditions of the poor protestants there , preferring their particular revenge and prosecution of their damnable end before all that is of honour and justice , and either of duty to god and their country , or compassion to their distressed brethren . . the officers in the mean time play their parts below in the army , they had already engag'd the soldiers to stand upon pay , an act of indemnity , and some other immunities , plausible things to make them all of a piece , enter into a kind of a league and combination one with another , and so become fit to receive any other impression , and unite upon it . therefore now they go a step further , to incense them against the parliament , misrepresenting all passages and proceedings to them , as if the intention were to force them for ireland , and therefore starve them or dismiss them with shame , and expose them to question and trouble for what they had done in the wars ; so engaging them to persist upon their demands in that petition , and ask reparation of the parliament for wrong done them by the commissioners sent down for the business of ireland , and other members of the house , whom they had characteriz'd to be enemies to the army , whereby they put them into such a distemper , as all thoughts of duty and obedience were cast off , nothing so odious as the parliament , nothing would satisfie but revenge . . when they had wrought the feat , sir thomas fairfax himself came to london upon pretence of taking physick ; cromwel , ireton , fleetwood , rainsborough , who were members of the house of commons as well as principal officers of the army , keep the house , that the soldiers might be left to themselves to fire the more , run up to extremes , and put themselves into a posture to carry on their work of rebellion with a high and violent hand , which had been so handsomly done : for either they must have appear'd in it and join'd with the soldiers , which had been too gross , or have stop'd it in the beginning , crush'd the serpent in the egg , which had been most easie , but was contrary to their design . so now they give the business time to foment , and the rebellion to grow to some head , that afterwards when they should come amongst them ( for they could not but expect the parliament would send them down ) they might seem to be carry'd with the violence , and to give some way for preventing greater inconveniences , and to keep them from extremities till the monster was form'd , and got to that strength as to protect it self and them , when they might without danger declare for it , which they afterwards did . in the mean time disclaiming it , blaming the soldiers at that distance ( as cromwel did openly in the house , protesting , for his part , he would stick to the parliament ) whilst underhand they sent them encouragements and directions ; for nothing was done there , but by advice and countenance from london , where the whole business was so laid , the rebellion resolv'd upon , and the officers that were in town so deeply engag'd , that when the full time was come for putting things in execution , my friend cromwel , who had been sent down by the parliament to do good offices , was come up again without doing any , and he who had made those solemn publick protestations with some great imprecations on himself if he fail'd in his performance , did , notwithstanding , privily convey thence his goods ( which many of the independents likewise did , leaving city and parliament as mark'd out for destruction ) and then without leave of the house ( after some members missing him and fearing him gone , had mov'd to have him sent for ; whereupon he being , as it seems , not yet gone , and having notice of it , came and shew'd himself a little in the house ) did steal away that evening , i may say run away post down to the army , and presently join in the subscription of a rebellious letter , whereof i shall speak anon . but let him take heed those imprecations fall not upon him , which many times god remembers , and takes men at their word , meeting with them in their dissembling wishes , when themselves least think of them , perhaps have forgot that ever they made them . this by the way . . for the present the thing pitch'd upon was to set up a kind of council ( like the supreme council of the irish rebels , but that those were most of them persons of birth and degree , these ex faece populi ) under the name of agitators . two ( as i take it ) were chosen out of every regiment , at first , i think , but common soldiers ( tho afterwards some officers were added ) to transact this business . these now , forsooth , seem to acknowledg no officer , but to rule and dispose of all things as they think good . they take into consideration what is fit to be done , what not , and give their orders accordingly , examine and censure the orders and votes of parliament , receive all complaints , give the redress , send out their warrants and commands , write their letters , exercise a general power over all , set up a new form of government in the army , and in the end are instrumental to their masters to possess themselves of his majesty's person , subdue parliament , city , and kingdom , and be reveng'd upon all those who had formerly given any disturbance to the carrying on of their design , till such time as the work was done which they had set them to do . but then mr. cromwel and his officers could give a stop to their proceedings . and when the agitators thought to do as formerly , and finish'd what they were made to believ●● should be the catastrophe of their tragedy , which was the destruction of the king , and alteration of the government , counsels not being at that time so dispos'd , nor the time ripe for the execution , they soon found their locks were cut , and ( the influence of their superiors ceasing ) their strength fail'd , so as they brought but confusion to themselves ; three of the chief were condemn'd to die for mutiny , but cromwel being a merciful prince would take but one , who was shot to death , the rest reduced to subjection and obedience , their council table dissolv'd , and their castles in the air vanish'd to smoak . but these things fell out long after , for a time they triumph , act all , drive on the design ; cromwel and his fellows standing behind the curtain , laught in their sleeves , and pleas'd themselves to see the game which they had packt , play so well . . the first act of these new rulers , was a letter sent to their three principal officers , who were then in london , and innocent persons , god knows , knew nothing of all this , sir thomas fairfax , lieutenant general cromwel , and serjeant major general skippon . for this last , to do him right , i think that at that time he was innocent indeed ; but afterwards i must avow it , he , together with the help of mr. marshal a min●●●er , contributed more to the success of their villanies , betraying the parliament and city into their hands , than all that cromwel , the sollicitor , ireton , and the rest of the crew did or could do , and no question will be sufficiently rewarded for it by them ; for they are good at it to pay dear out of the publick store for any man's conscience that will be sold , and may be useful to them . . this letter was an exclamation against the parliament , false and untrue complaints of wrongs done to the soldiers at assizes in the counties , a protestation against the irish expedition , calling it a design to break the army , declaring if any of these three commanders should engage , their averseness to it ( tho one of them , skippon , was by the parliament appointed , and had accepted it ) in plain english saying they would not disband , nor receive any other propositions from the parliament till their expectations were satisfy'd . three of the agitators brought it , and skippon acquainted the house with it ; they were sent for , and carry'd themselves at the bar in a slighting braving manner , refusing to answer such questions as the speaker , by order of the house , ask'd them ; saying they were employ'd by the army , and could not without leave from thence discover any thing . many the house resenting this high affront , were earnest to have them severely punish'd ; but that party stood as stifly for them , insomuch that the worthy burgess of newcastle , mr. warmworth , stood up and said he would have them committed indeed , but it should be to the best inn of the town , and good sack and sugar provided them , which was as ridiculous , as 't was a bold and insolent scorn put upon the parliament ; at last even mr. skippon himself excused them , said they were honest men , and wisht they might not be too severely dealt with : whereupon the house flatted , let them go without punishment , and by tameness encreas'd their madness and presumption . where as had they serv'd them as mr. cromwel after wards did their fellows , hang'd one of them ( they all well deserving it ) it might probably have given a stop to their career , and prevented a great deal of mischief , which has since befallen the kingdom by their means . . all that we did ( whether it was fate or design i know not , but it prov'd our ruin ) was to command down to the army the officers that were members of the house , such as were in town , and the general himself . i say , i know not if there were a design in it ; because afterwards upon just such another occasion , we sent sir henry vane the younger , mr. scawen , and some others , which i am sure was a thing laid ; and this wrought the same effect as that did , even put them together the better to contrive and lay their business , joining the counsels of the officers to the actings of the agitators , so to hatch that horrid rebellion which soon after broke out , to the utter ruin ( if god's hand of mercy interpose not ) of parliament and kingdom . they were sent to allay the distempers , and to prevent inconveniencies , but how they discharg'd that trust will soon appear . . instead of discountenancing , reproving , and suppressing that disposition to mutiny , that standing upon terms with the parliament , those meetings and consultations by which the ill humour was nourish'd , and instead of perswading them to a fitting obedience and submission , and laying the regiments farther asunder to lessen and abate the contagion , they gave them occasion to encrease their distempers and vent them , by asking them what they will have , calling the officers together , and sending them to their several regiments to be inform'd of their designs ; and by drawing them together already so indispos'd and inflam'd , inflame them the more . a strange way of quieting an army that was in a way to rebellion , and had begun to set up a new government amongst themselves by their agitators , which sped accordingly , and produced the effect that they desir'd , a representation of grievances , in which the whole army now join'd and engag'd , except some few gallant men , both officers and soldiers , who detested those proceedings . . this representation is brought up to the house by lieutenant general cromwel , and colonel fleetwood , who had the faces to say ( just as the representation begins ) that the army was quiet and free from any visible distemper , which was only to amuse us . but then it expostulates with the parliament the making of the foremention'd declaration , sending for up and questioning those persons who had been complain'd of for obstructing the service of ireland , justifies them , taxes the commissioners of parliament , and other members of the house , for doing ill offices to the army , stands upon all the particulars of the first petition . . the house was very much dissatisfy'd with these proceedings , and if ever it deny'd it self , did it then : for it was willing to give the army satisfaction in all things possible , to free the kingdom of that burden , even dispensing with their own honours . . they pass several ordinances for indemnity , freeing from pressing the relief of maim'd soldiers , widows , and orphans , with such alterations and amendments as the army desir'd . concerning the proposition of pay upon disbanding , which was eight weeks , they conceiv'd it could not be inlarg'd , in regard of the great present expence to which they were necessitated for the supply of ireland ; that the two hundred thousand pounds , which for those two occasions were then borrow'd of the city of london , would scarce serve . . therefore upon these terms both houses concluded the disbanding , begin with the foot , and appoint to every regiment , as they lay quarter'd , a rendevous at some town near , where they were to lay down their arms , receive their money , and have passes to their several homes . those that would engage for ireland to march to some other place near hand , there to receive advance-money and further orders . . the several ordinances and orders were sent to sir thomas fairfax , who then had his head quarters at bury ; and two lords and four commoners were appointed commissioners to repair to the several places appointed for disbanding , with money , and directions to see the service perform'd , and assist sir thomas fairfax in it , who was desir'd to issue out his orders for the regiments drawing to those places . . then it was refer'd to a committee of the army to put into a way , the stating of the accounts , both of officers and soldiers ; and where more than two months appear'd to be due , the commission officer was to receive his debenter from the committee and treasurer of the army , it being appointed where he should be paid . the inferior officer and common soldier was to have his security upon the excise . let any man now judg if the army had any cause to complain , if all was not done that with any colour of reason and modesty could be expected . . our commissioners , who were the earl of warwick , the lord de la ware , sir gilbert gerard , mr. grinston , and two others , went to chelmsford the first of iune , the rendevous appointed for the general 's regiment , whither the lieutenant colonel came , lieutenant colonel iackson , an honest and gallant man , with a resolution to conform to the order of parliament ; but a command comes from the general to the regiment to march another way for drawing the quarter near together . . for upon the th of may , when the votes were sending down for disbanding , sir thomas fairfax had call'd a council of war of the factious officers ( the honest officers who were for submitting to the parliament , and a quiet disbanding , having before been most of them abus'd , and forc'd away by the violence of the soldiers and commands of the agitators , he conniving at it ) where they resolve upon an humble advice to his excellency , that since their grievances were not at all satisfy'd , and jealousies were very great , it would not be safe to disband , but rather draw the army into a close posture ( there being a great propensity in the soldiers to a general rendevous ) and then resume the consideration of their grievances , and of the votes for disbanding , suspending , for the present any proceedings upon these votes ; which advice his excellency follows . so the parliament commands to disband , sir thomas to march away , and draw to a rendevous : fit he should be obey'd . . at the very same time colonel rainsborough dos the like with his regiment which was at petersfield in hampshire , design'd for iersey , and so far upon the way , himself being attending the house of commons , of which he was a member , and pretending to prepare for that employment which had been entrusted to him ; but in truth to give his soldiers opportunity to mutiny , as the rest of the army did ; who , to give them more time for it , would not presently acquaint the house with the intelligence he had receiv'd of their disorder , but having it in the morning kept it to himself till towards the evening , even denying his knowledg of any such thing , when sir william lewis inform'd the house of it , and about five or six a clock in the afternoon ( the house then by accident sitting , as these deportments of the army gave them cause sufficient ) spoke of it , said they were in a great distemper , resolv'd not to march to the sea side , but return to oxford ; whereupon being sent down to quiet them , and reduce them to obedience , he went immediately , but put himself at the head of them , and instead of taking care for iersey , march'd to oxford first , so to the army ; and none more violent in the rebellion than he : for which good service , and joyning with the agitators in their highest exorbitancies for the destruction of the king and altering of government , and particularly in a petition for taking away the house of lords , the house of commons since made him vice admiral . and the lords , to the eternizing the honour for their gentle tame dispositions , consented . . but one thing was yet wanting ( as they thought ) for the carrying on their design , and amusing the poor people of england with an expectation of their settling a peace , so to make them sit still and look on , whilst they trampled upon parliament , city and kingdom , which was to be possest of the king's p●rson , and make the world believe they would bring him up to his parliament , and set him on his throne . for this it seems a meeting was appointed at lieutenant general cromwel's , upon the thirtieth of may , where it is resolv'd , that cornet ioyce should , with a party of horse , go to holmby and seize upon his majesty , which is presently executed , and given out , that others had the like design , which they had prevented . at first it must seem only to be the act of mr. ioyce , cromwel protested he knew nothing of it ( tho he was the man appointed it to be done , as appears by what has been recited , taken out of some of their own authors , one that calls himself sirrah niho , and others ) sir thomas fairfax writes a letter to the house , professes the same for himself as in the presence of god , with a large undertaking for the rest of his officers , and the body of the army . and perhaps he said true , i would fain be so charitable as to believe it ; nor indeed do i think the good man is privy to all their plots , he must have no more than what they are pleas'd to carve and chew for him , but must swallow all , and own them when they come abroad . here then they have the king , ioyce drives away the guards , forc'd colonel greaves to fly , whom else they threaten'd to kill , for no man's life must stand in their way ( murder being no sin in the visible saints ) carries away his majesty and the commissioners that attend him prisoners , and immediately sends up a letter to certifie what he had done , with directions it should be deliver'd to cromwel , and he absent , to sir arthur haslerig , or colonel fleetwood , which was given to colonel fleetwood , as one lieutenant markham inform'd the house , saying , the messenger that brought it told him so : nor did sir arthur haslerig make a clear answer when he was ask'd concerning it in the house , colonel fleetwood being at that time gone to the army , so as he could not be examin'd . . by this trick they hope to catch the people , and so find no resistance to their traiterous proceedings ; yet they will not trust only to jugling , they will play a sure game , and have power in their hands to go through the work , and make their way if it will not be given . therefore the army must be put into a posture for it , they have the soldiers already , they must have artillery and ammunition ; so at the same meeting cromwel likewise appoints ioyce ( as the same authors relate ) to repair to oxford , secure that garison , the magazine and train of artillery which had there lain many months , the army having had nothing to do , and so no use for it , which therefore the parliament had then order'd to be remov'd and brought back to the tower , the place where all stores are kept . but those who were sent down by the parliament for that purpose , were by these mutineers beaten and wounded , the magazine and train kept away by force , and besides , some or l. in money taken from them , which they had carry'd down for disbanding of the regiment there in garison . and now they think they have all in their own hands , the fish is catcht , they may throw away the net. they begin thereforre to appear in their own colours ; cromwel , ireton , with the rest of the cabal , and sir thomas fairfax in the last place ( who , tho he be general , is not to lead , but will be sure to follow close ) may not lay aside their innocency and their ignorance ( for all this while they knew nothing ) and put themselves in the head of the agitators , own all they have done , and at triploe heath , near cambridg , appoint a general rendevous , there to declare themselves , and avowedly enter into the confederacy . . at this rendevous was fram'd that solemn engagement , wherein , they say , they look upon the resolutions of the parliament for their disbanding , as proceeding from malicious and mischievous principles and intentions , and not without carnal and bloody purposes . that therefore they are resolv'd not to appear at the places thereto appointed , and then declare , agree , and promise to and with each other , that till they have such satisfaction in all their grievances , and such security for the future as shall be agreed on at a council , consisting of the general officers , with two commission officers and two soldiers to be chosen for each regiment , they will not disband or divide , nor suffer themselves to be disbanded or divided . and this is one result of that meeting of the godly obedient army , this the fruit of the new model , and of all the great undertakings of that man of god ( as his disciples call'd him ) lieutenant general cromwel in their behalf . . they likewise frame there another submissive business , which they call'd an humble . representation of the dissatisfaction of the army , in relation to the late resolution for so sudden disbanding , where they are more large in their humble cudgeling of the parliament , and do it to that purpose , with a scorn of all that had been offer'd to their satisfaction , say , the private soldiers will not regard what is behind of pay after disbanding , implying all must be had , require further security for the officers arrears , as forest lands , and the revenues of cathedrals , quarrel with the ordinances past for indemnity , exemption form pressing , &c. expostulate about the declaration against their seditious petition yet standing in force , demand reparation for questioning their mutinous officers , and will have it against those members of the house who had done but their duty , and discharg'd their consciences in that particular , declare plainly , that tho all their grievances were duly consider'd , it were nothing except those persons were censur'd , calling them men of desperate principles , incendiaries , that must not continue to be their judges , that is , must not sit in parliament , and much more of this nature , which in contempt they send up to the house . these are they that fight for privilege of parliament , who have made a covenant with god and man so to do , and well they perform it ; those they mislike must be thrust out by head and shoulders , and such as remain , if they be not obedient to them , shall be serv'd with the same sauce : and this is to make a free parliament . was there ever a more perfidious breach of duty , did rebellion it self ever outdo it , can any man think ? yet let us go a little further with them , and we shall see greater abominations than these . . all this while they seem'd to desire only things concerning themselves , tho very unfittingly and wickedly , both for matter and manner ; yet not to meddle with any thing else concerning settling the business of the kingdom , which in many messages and declarations they still protested against , saying ( as sir thomas fairfax wrote up from cambridg ) that whatever was suggested or suspected , they would leave all such matters to the wisdom of the parliament . but now tempora mutantur , they have power in their hands , and the kingdom shall feel it ; the parliament shall not only give them what they will have , but do what they will have done , or smart for it . they make the world believe they will set the king on his throne and in his rights , the people in their liberties , the parliament in its duty , and a golden age is like to follow . . to this end they march up in a hostile way towards london , bring his majesty along with them from royston . sir thomas fairfax , cromwel , ireton , and the rest of the officers , write a letter to the lord mayor , aldermen , and common council , telling them , that the sum of what they have desir'd of the parliament , is a satisfaction to their demands as soldiers , a reparation upon those that have improv'd advantages ( as they falsely say ) by false suggestions and misrepresentations to the destruction of the army , and endeavour'd to engage the kingdom in a new war. that the things they insist upon as english men , are a settlement of the peace of the kingdom , and of the liberties of the subject , which they say they have as much right to demand as their money , or other common interest of soldiers , and that the honest people of england are full of the sense of ruin and misery , should they disband before . that for the obtaining of these things , they are drawing near the city , and declare , that if the city appear not against them , nor provoke them , they will give no offence ; but if they do , they call god to witness they are free , and have wash'd off the ruin which will befal it : that they will lose all rather than not be righted of the men they aim at , therefore desire , that like fellow subjects and brethren , the citizens would follicite the parliament in their behaf . . here they first take upon them openly to intermeddle with the business of the kingdom , contrary to all the former declarations and protestations ; but their words nor yet their vows were ever any rule to know their meaning by : as hammond told the king concerning cromwel , so is it with all those visible saints , have they promis'd , vow'd , sworn never so much , call'd god and man to witness , if the condition of their catholick cause so alter , that what they have so promis'd and sworn be no longer expedient for them , a pretended enthusiasm , a new light shall give a dispensation , and they will do clean contrary , yet all out of tenderness of conscience ; well , they are now in strength and power , and will make use of it to turn all upside down . . the poor parliament all this while is sitting upon addle eggs , take a great deal of pains , like children , to build castles of cards , a puff from their faithful army blows it all down . it is true , that at first , upon return of their commissioners , who were sent down to disband , and had brought them an account of the scorn put upon them , how instead of the regiments coming to the rendevous appointed , a command from sir thomas fairfax fetch'd them clear another away ; how the train of artillery was seiz'd upon at oxford , the money which should have disbanded a regiment taken away by force , and the servants whom they had employ'd , beaten and wounded ; this did with good reason startle them ; many of the members express'd a sharp and severe sense of it ; the house was taking vigorous and honourable resolutions , tho oppos'd with might and main by all the independent party , who prevail'd but little , being now a known engag'd faction , till serjeant major general skippon stood up , a presbyterian , one who had seem'd to dislike those factious ways before his last going down to the army , who was nominated commander in chief for the irish expedition , had receiv'd a gift of a thousand pounds by way of encouragement to go , but now was willing enough to stay at home with it ; he , forsooth , in a grave way , with a doleful countenance , and lamentable voice , makes a long speech to exhort to moderation , and to bear with the infirmities of a zealous conscientious army which had done so much good service . therefore it was his opinion we should humble our selves before god , appoint a day of fasting , and do those things which the army desir'd , give them their full pay , alter the ordinance according as they propos'd , and he was perswaded in his conscience they would then be satisfy'd ; however they were not to be provok'd , for they were a form'd body which would be upon us before we were aware . this knockt us on the head , especially his last argument , a demonstration 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; so it is , they are strong , they will fall upon you ; timorous men , as he knew many of those were he had to deal with , could make no reply to it . . but had he done his duty , given warning of those preparations and intentions sooner , when he was below with the army so long , and could not choose but discern it , the house would not have been so surpris'd , would have provided against it in time , but now fear took away the use of reason . they look'd upon the army as even at their doors , hannibal ad portas , and all of them children of anak , armed giants not to be resisted . . whereas in truth there was no such cause of fear . as they in the army had more cause carrying about them so much guilt , as i am confident they had as great a share of apprehension . but they presum'd upon their agents among us , they knew we had them with us both in parliament and city who would betray us , possess'd with the like evil spirit as ahab's prophets were ; we should prevail , otherwise we were not in so despicable a condition . the parliament had not yet utterly lost their reputation , the image of authority was not wholly defaced in them , they had a stock intire and untoucht of l. provided for disbanding the army , and service of ireland , multitude of officers and gallant soldiers about the town , who had always fought gallantly , and obey'd readily , had little reason to be in love with the army which had unhors'd them , so it is likely would have engag'd chearfully and done good service . the city was high in the opinion of the people for courage and resolution , firmness to the parliament , zeal in the cause , hatred of independency , dislike of the army , and a purse to make all good , give sinews and strength to that side with which they should close , and had particularly presented many petitions to the house for those very things which they were doing , and the army only came to undo ; which were in order to a peace , restoring the king , settling the government both in church and state , and giving ease and quietness to the kingdom , so as they were in truth already engag'd with us , and waited but a summons to declare themselves , when by this unfortunate man's interposition at that time ( to whom chiefly and to his chaplain marshal , we must attribute all the evil that has since befallen king and kingdom ) all was dasht ; instead of a generous resistance to the insolencies of perfidious servants , vindicating the honour of the parliament , discharging the trust that lay upon them to preserve a poor people from being ruin'd and inslav'd to a rebellious army , they deliver up themselves and kingdom to the will of their enemies , prostitute all to the lust of heady and violent men , suffer mr. cromwel to saddle , ride , switch , and spur them at his pleasure . . for we instantly fell as low as dirt , vote the common soldier his full pay , the officers a month more ( that is in all three months ) upon disbanding or engaging for ireland , take all our ordinances in pieces , change and alter them according to their minds , and ( which is worst of all ) expunge our declaration against that mutinous petition , cry peccavimus to save a whipping , but all would not do . . in so much that when our commissioners were sent down to the army at triplo heath , to give an account of our dutiful complyance , they would not vouchsafe to hear them , but when they offer'd to read the votes , cry out , justice , justice , a note that cromwel and ireton had taught them to sing , being done by their directions , as some of their own disciples falling our with them , have since discover'd ; which was by mr. scawen , who was one of those were sent , reported back to the house , in such a gastly fearful manner ( only to terrifie us and make us more supple ) he saying , the army was so strong , so unanimous , so resolv'd , as the poor presbyterians hearts fell an inch lower , and the independents made themselves merry with it . then forsooth the houses must send down members to abide with the army as with a power independent , or a third estate , improve all advantages and opportunities , to give good impressions of the actions and intentions of the poor parliament , and , like benhadad's servants , catch at any thing of comfort which might fall ; these were sir henry vane the younger , serjeant major general skippon , mr. scawen , and mr. povey . . in the mean time the army is marching , draws nearer and nearer to the city , where , as well as in the parliament , men were between hopes and fears ; looking upon what was done sufficient to appease them , what then offer'd , what they always intended for doing right to the army ; and in truth to all persons , they could not but hope as well . but seeing the postures and proceedings of the other side , there was more cause of fear , till at last that letter came to the city of which i spoke before , which satisfy'd our doubtings ; and when the citizens who were sent from the common council brought it to the parliament , the horror and indignation of such an impiety , so great a presumption , so manifest a rebellion , awaken'd us to see our danger , and master'd those fears which had been given us to awe us from resistance , so as both houses and city resolv'd to put themselves in a posture of defence , appointed a committee of lords and commons to go into the city , call the committee of the militia of london to them , and jointly and severally do what was necessary for our common safety . . the committee went and did their parts , but they found ioab's hand every where ; the army had so plaid absalom , pretending an intention to settle peace immediately , correct the exorbitances with which the people had been oppress'd and abus'd , restore the king , with such other plausible things ; and their agents had so industriously improv'd their interests , some false brothers in the city , as alderman foulks , and alderman gibbs , so cunningly wrought upon mens minds , sometimes upon their fears , setting out the strength and power of the army , which threaten'd nothing but ruin ; sometimes upon their hopes and desires of peace , gilding over their proceedings , as all done in order to it ; sometimes upon the dislike of the present condition , assuring them all taxes and payments would by this means be taken off ; sometimes upon their credulity , making them believe , that those persons whom the army had in their eyes to remove , were not so well affected to the publick , but had particular ends and designs of their own , to arm reformadoes , and set up the power of another sword to rule and govern by , so to continue the miseries and burdens of the people : by which falshoods and juglings , those two chiefly , like iannes and iambres , had generally bewitcht the city , and lull'd it into a security , withstanding those who had no other thought than to deliver their brethren and themselves from that subjection and vassalage to which they were then design'd , and are since brought . as the citizens resolv'd not to stir , but look'd on to see what this army would do ; some few did appear , rather to make objection and hinder the business than help it ; and tho many good orders were made for putting the city into a posture to defend it self , none were obey'd : so on all hands the poor parliament , and kingdom , and city it self were betray'd , and left to the mercy of the army , whose mercy we shall soon see was cruelty it self , injustice , oppression , violence , and rebellion in the highest degree . . they now thunder upon us with remonstrances , declarations , letters , and messages every day , commanding one day one thing , next day another , making us vote and unvote , do and undo ; and when they had made us do some ugly thing , jeer us , and say , our doing justifies their desiring it , as they serv'd us concerning all we had granted for pay , expunging our declaration , passing the ordinances for indemnity against pressing , and the like . they tell us in their representation of the th of iune , that our resuming the consideration of these things , as to their further satisfaction , dos much justifie their desires and proceedings so far ; and therefore they then proceed further , and say , they desire full and equal satisfaction , not only for themselves , but for all the soldiery throughout the kingdom , who have concurr'd or will concur with them ; so ingage all against the parliament , and contract such a debt as has broken the back of the commonwealth , and now say they are not a mercenary army to serve the arbitrary power of the state , but that they took up arms in judgment and conscience ( notwithstanding they have receiv'd more pay than all the armies in the kingdom , and yet liv'd most of spoil and free quarter ) therefore they are resolv'd to assert and vindicate the power and rights of the kingdom , and say , that what they do is short of the proceedings of other nations , to things of a higher nature than as yet they had pretended to , instancing in the netherlands and scotland . for the present they require , that the houses be purg'd , those who have appear'd against them not to be theirs and the kingdom 's judges , whose names they say they will speedily give in ; they tell the parliament what kind of men they will have preferr'd to power and trust in the commonwealth ; then ( which was a crime some six weeks before , to move in parliament and in a parliamentary way , so as that sagacious gentleman mr gurden , stood up in a rage , and said it smelt of oxford , and it was much decryed by all the crew , but is now of publick merit , and very pious , coming from their masters the army ) they will have a determinate period of time set to this parliament , some provision to be made for the continuance of future parliaments . and when his majesty shall have given his concurrence to these and all other things that shall be propos'd for the liberties of the people , the militia , and peace of the kingdom , then his rights and of his posterity to be consider'd . they will have the rights of the people clear'd for freedom of petitioning , and such as are imprison'd for pretended misdemeanours to be speedily try'd , and have reparations if they have suffer'd wrongfully ; the power given to committees , and deputy lieutenants to be taken into consideration . the kingdom to be publickly satisfy'd in point of accounts , and after publick justice done upon some of the excepted persons , that there be an act of oblivion . then they conclude that these things done , tho there be many other particulars , yet ( which certainly was merely out of their great goodness and grace , like that of the modest spaniard with his no quiero mas ) they will ask no more , but leave the rest to the wisdom and justice of the parliament ; and this they say they find to be the concurrent sense of the people , by their petitions presented to the general , wherein ( as in all the rest ) they play the arrant impostors and mountebanks , being as impudent , false , cunning , bloody , proud , and ambitious as the devil himself , their grand master . they will have us believe the sense of the people joyn'd with them , and that they petition'd for these things ; when their own fellow witches have since discover'd how cromwel himself drew those petitions , sent them about into the countries , had his agents to promote them with mellifluous enamouring promises ( as the expression is ) so got some independents to subscribe them , and perhaps some few more that they had cozen'd ; which serv'd the turn , and made their wise general engage himself with them , saying , that what he wanted in expression of his devotion to their service , should be supply'd in action , as mr. iohn lawmind informs in his putney projects . . the parliament is now brought to a fine pass , made a notable free parliament , but we must believe it to be so , because cromwel's army says it , and speed as well as our first parents believing the serpent , that told them eating the apple would make them as gods , wise , and happy . the army on the other side triumphs , drives on like iehu , bears down all before it , carries about the king as a prisoner to shew him , and make that use of him , which the philistines would have done with the ark , prevail against all opposition ; and truly that and their power together did make them prevail . . their next work is , charging eleven persons , members of the house of commons , particularly by name , but with general things ; for particulars they were not provided with , as their friend iohn lawmind says , who uses these words , the particular matter of their charge was to seek after they had in general charg'd them : and another of their disciples , sirrah nico ▪ says , that cromwel confess'd at colebrook , he had nothing against sir iohn maynard , yet he must be put in amongst the rest , only because he was a busie man against him and his faction ; so you see these thieves falling out some truth comes to light . . with this general charge there comes another paper from his excellency and the army under his command , requiring the members impeach'd may be forthwith suspended sitting in the house , and a months pay to be immediately sent down to the army for a present supply ; and of these things to know the resolution by the next thursday at the furthest , which was within two days . they require further ▪ that the officers who had deserted the army ( as they call'd it , but in truth who had left them for their rebellion , and engag'd for ireland ) should have no more of their arrears paid them till the army was first satisfy'd : and to be sure the parliament should have none to defend them , they command them to raise no new forces within the kingdom , nor invite , nor admit any from other parts ; the reason , or at least the colour for this was , because the committee of safety , at such a time as in obedience to the order of parliament they had endeavour'd to have put the city in a condition to defend the parliament and it self , had consider'd of raising some force , but never any thing was put in execution , nor one man listed : and tho the parliament and city did assure them there was no proceeding in it , which they might then very likely believe , and in good manners have acquiesc'd , yet such was either their fear , by reason of guilt , or their scorn of the parliament , and petulancy to shew how they slighted what they said or declar'd , as they would not believe them , but threap them down that there was listing still , and quarrel with them about it , to such a height were they then grown , and others to that tameness . . this pass'd about the th of iune . the hou●e took these things into consideration , obey'd in all but that concerning the members ; wherein they came to a resolution , that upon such a general charge they could not in justice proceed against them , nor suspend them , therefore desire to know what they could charge them with in particular . they further consider'd how unhandsome it was , the king should be so hurry'd up and down with the army , and that if he were at some of his own houses near london , application might be made to him jointly by them and the scotish commissioners , in order to peace ; whereupon , tho it was mightily oppos'd by the independent party , yet they voted his majesty should be desir'd to come to his mannor house at richmond . . here the scholars had broken out a little into rebellion against their schoolmasters the army , and soon they were lash'd for it . for on the d of june comes a ratling lesson , a remonstrance from his excellency , full of sharp and scoffing expressions , and ends with a lusty menace , tells them , the voting of the king to richmond is but in pursuance of the former design upon him at holmby , and to put his majesty within the reach of those men , who had already listed considerable numbers of horse and foot about london ; therefore wishes them , as they tender the welfare of the kingdom , and the avoiding of jealousies and other inconveniencies in the army , to resume again the consideration of that business , and not propose any place for him nearer london than they would have the head quarters of the army : then to ingratiate themselves with the king and his party , and make him willing to stay with them ( till their design was ripe to dispose of him otherwise , as it was afterwards ) they take notice of some scandalous information , by the procurement forsooth of eleven members and others of their party , as if his majesty were kept a prisoner among them , which they say is most false and contrary to their principles ( as has appear'd since by what sir thomas fairfax commanded to be done to the king in the isle of wight , upon his majesty's answer to the four bills , without order of parliament , like a great prince , ex mero motu & certa scientia , tho it was afterwards approv'd of and justify'd ex parte post ) but as yet they are harmless saints and good subjects , all for the king. therefore they take occasion to declare there , that they desire a just freedom for his majesty and those of his party , and profess they do not see how there can be a firm peace , without a due consideration of and provision for the rights of himself , his royal family and late partakers . o ye hypocrites , then with honey for him in their mouths , and war in their hearts ! . for the expunging of the declaration , they say , they acknowledg the justice of the house in it , but should rather have been satisfy'd with the parliaments declaring how and by whom they had been misinform'd and surpriz'd , and that it is an apparent dishonour to them to pass such a declaration , and soon after without alteration in the pretended ground and cause of it ( for shame of the world ) to expunge it : i confess they say true in this , but the old proverb is , true jests are bitter jests . . then for the members , they insist to have them forthwith suspended upon the general charge , saying , they would willingly proceed to particulars , if they might be encourag'd by the justice of the house for suspending them for what it self knows , as having been done there , which they say they cannot prove without breaking the privileges of parliament : therefore they advise a necessary expedient for prevention of the like for the future , that in the house of commons dissenting members may enter their dissent , as they do in the house of peers , with a protestation , and say , they offer these things from their good wishes to the privileges of parliament , to render them more lasting by being more innocent . . was ever parliament so abus'd ? first , they must , because the army will have it so , give a judgment upon persons before they know any fault by them , only to encougrage their accusers to tell the fault , for which that judgment is already given ; first punish , then enquire ; hallifax law , and army justice . and this no less than of suspension , where not only the parties themselves have a mark of ignominy put upon 'em , are dispossest of the execution of that trust which their country has reposed in them , but the places they serve for , towns and counties are punish'd , depriv'd of their representatives in parliament , and consequently of their suffrages there which they give by them . then what must this be for ? even for what was done and said in the house ( for so it is laid ) contrary to all proceedings and privileges of parliament , which will have no man question'd for that afterwards ; upon this ground , that if he had done amiss , the house would at that time have checkt it ; and they not finding fault then , for any other to do it , must needs reflect upon their wisdom and integrity , as if they approv'd of what was ill , or could not discern it . and lastly , for my young masters to jeer them with their good wishes to have their privileges less nocent , and then dare to propound so great an alteration in the very fundamental constitution of the house of commons , where the minor part is involv'd in the major , and both make but one intire agent in all they do , where there is no particularizing of persons , not any one member to be so much as nam'd , where all is acted as by one man , that which must bind the whole kingdom to be establish'd by the united consent of it , there to make such a rent and division as to introduce dissenting protestations , only to foment faction and parties , and by troubling the fountain , to corrupt all the streams , is the most transcending presumption that ever was heard of . . but that which in my opinion carry'd most of injustice in it self , and dishonour to the parliament , was the requiring them to discharge and disperse those , who upon their orders of invitation and encouragement to engage for ireland , had left the army , quitted the advantages they might have had in joining in that rebellion , and wholly cast themselves upon the parliament , as sir robert pye's men , colonel graves's , colonel butlers , captain farmers , lieutenat colonel iacksons , the captain , and many of the soldiers of the life-guard , and others quarter'd in kent and surry , the greater part of the two regiments under colonel herbert and colonel kempson , quarter'd about worcester and evesham ; these honest , gallant , faithful , stout men , both officers and soldiers , for their obedience to the parliament , zeal to ireland , must be abus'd and ruin'd , the parliament it self made to eat its own words , break its faith , deceive them who trusted it , deliver them up , make them anathema's : for what ? because the army says they are deserters , and raisers of a new war , but in truth , for complying with their commands , refusing to join in a rebellion against them , being willing to adventure their lives against the rebels of ireland . . never was such a violence and scorn put upon a single person , or any society of men , much less a parliament , to make it act its own shame and confusion , except by that italian , who to be reveng'd on his enemy , got him at advantage , bad him deny jesus christ , and acknowledg him his saviour , or he should die presently , which the wretch doing to save his life , he then stabs him to the heart , and says , go thy ways , i am now reveng'd upon body and soul. so the army threaten'd the parliament , if all these things foremention'd were not done ( and likewise the poor reformadoes put out of the city , who had offer'd themselves , and were ready to run all dangers for theirs and the city's preservation ) and done by the next thursday night , that then they should be forc'd to take such a course extraordinary , as god should enable them and direct them to . . and when the parliament had done it ( as they did all but suspending their members ) had retracted that vote concerning the king's coming to richmond ( which the lords did first at mr. marshal's earnest sollicitation , as i have heard , who at that time could not have prevail'd so with the house of commons ) prostituting their honours , renouncing whatever would be of strength and safety to them , casting themselves down naked , helpless and hopeless , at the proud feet of their domineering masters , it is all to no purpose , it dos but encourage those merciless men to trample the more upon them , like the task-masters of egypt , double the tale of their bricks . . for this was a resolution taken , nothing should satisfie , nay not be accepted with a good look , a smile , whilst the eleven members sat in the house ; while mordecai stood in the gate and bowed not , proud haman cannot be pleas'd , therefore he must die : the eleven members must out . the house of commons will not do it , mr. ioyce and his agitators shall . for this sir thomas fairfax takes up his quarter at vxbridg , some of his forces advance within three or four miles of westminster , he sends his warrants for provisions into the very suburbs , a party of horse is commanded to be ready at a rendevouze , to march up to the parliament , then here is the case of the eleven members ; stay , a violence shall be offer'd upon the house , the members pull'd out by the ears , and then actum est de parliamento , i may say de parliamentis , farewel this and all parliaments . . those gentlemen therefore think it best , rather than a breach should be made upon their occasion , that through their sides the parliament should be stuck to the very heart , and die for ever , to make it their own act of forbearing the house . and therefore they told the house , they saw they were in that condition they could neither protect them nor themselves ; that if they would not do as achish did to david , who bid him be gone because the princes of the philistins lov'd him not , yet that they would at their humble suit and desire be pleas'd to give them leave to withdraw , and to such as desir'd it , passes to go beyond sea , which at last they did agree to , tho truly i must say , unwillingly ; but which all said , they look'd upon it as a good service done to the house for preventing greater inconveniences . . upon this they forbore , and staid , i think , a week or better , expecting if the army would send in a particular charge against all or any of them ; which not doing , but instead of that writing up a letter to commend their modesty , they then petition'd the house , that they would send to the army to know what particulars they laid to their charge , and prefix them some convenient time to do it in : which the house did , giving them about a week . and one would have thought a short day might have serv'd . that accusing members in such a manner , with such a noise , as if they had been so criminous , that as mr. sollicitor said by his beasts of prey , which were not to have law given them , but be knockt in the head , so they were not worthy of justice , nor of privilege of parliament , nor of common humanity , much less to be us'd with some respect , like gentlemen who had so long , and some of them serv'd their country so often in parliament , and more faithfully than ever any of the army party did , or will do there or any where else . but all bonds of duty and civil society must be broken through to come at their destruction ; they must needs have known some notorious things by them which might readily be produc'd . but it seems they were not so provided , the particular matter of their charge was yet to seek ( as their fellow mr. iohn lawmind says ) they were then hunting out for articles , sending about for witnesses to testifie any thing , promise , bribe , threaten , but all would not do : several persons came to me , informing how they had been sollicited to inform against me ; one lewis told me they had been tampering with him ; one westcomb acquainted me how one pain had been sent for by rushworth his excellency's excellent secretary , to the same purpose , who lodg'd him in his chamber , gave him an angel the first time ; that he went thesecond time , and this westcomb with him , and then had a horse given him worth ten pounds , and the promise of some place in the army , for which it is presum'd he did some acceptable service . it seems these saints were put hard to it ; well , the first day pass'd and no charge came in , they desir'd longer time , and promis'd it should be ready by such a day , and i think the day after it did come : and if i be not very partial to my self , as in this i believe i am not , after all this travelling of the mountains , out comes ridiculus mus. . i will not repeat all the particulars here , they are in print and our answer to them , which i hope satisfies all men ; besides another answer we put into the house , more upon the formality of a legal plea , which it seems satisfy'd them , for they never proceeded further , nor did the army prosecute , but the house order'd the speaker to give us passes according to our desires . . i will but make this observation upon some of them , that they and their party acted those very things which they laid to our charge ; and what was false as to us , was really true in them . . one thing was holding a correspondency with the king and his party , which of all men they ought not to have objected , doing what they did even at that very time ; for suppose it never so great a crime , it ill becomes the devil to find fault with the collier for being black : they treat with his majesty , have some of his servants present at their councils of war to debate and prepare things , frame proposals for settling the whole business of the kingdom ; and if their own writers , prophets of their own , tell true , capitulate for honours and preferments , cromwel to have a blew ribbon , be an earl , his son to be of the bed-chamber to the prince , ireton some great officer in ireland . now admit all true they said of us , was it to be compar'd to this ? is it not a decimo sexto to their folio , a mole-hill to their mountain ? and i desire it may be taken notice of , that in all the charge there is not a word of the plot to fetch the king from holmby , bring him to london , or put him at the head of the army , which they made the groundwork of all their villanies , pretending some of us ( in truth underhand , and in their pamphlets naming me ) to have had such an intention ; and that what they did was by way of prevention . is it likely this would have been omitted if there had been the least colour of truth for it ? but truth was what they ever least look'd after in all their speeches and actions , caring only to serve a turn , gain an advantage by cozening the world , and then cast about how to make it good by power , or amuse men with some new cheat , that the last might be forgotten . . they accuse us of infringing , and endeavouring to overthrow the liberties and rights of the subject in arbitrary and oppressive ways , and by indirect and corrupt practices to delay and obstruct justice . these are the words in their general charge . now i appeal to all men , and even to their own consciences , who say this , whether of the two , they or their party , or we in the house of commons , upon all occasions , were for violence , oppression , and ruin , to destroy all that came before them , sequester estates , impose great fines , imprison , starve , sometimes take away life , make men offenders for a word , take all advantages , wrest and strain up to the height of all their penal ordinances ; and who they were that had the hand in making all those penal ordinances , so severe for sequestrations , so high for compositions , so insnaring and bloody for making new treasons , and little things to be capital crimes ; that no man almost was safe , free from question , and few or none question'd but sure to be destroy'd . how many ministers wre pull'd out of their livings for very small faults ? how many persons made delinquents , their estates torn in pieces , themselves , their wives and children turn'd to beggery , and ready to starve for no great offences , at least that for which they did not deserve so severe a punishment ? what committees were set up ? that of haberdashers hall , to pill and poll men , put them to an oath as ill as that ex officio to make them discover their estates , and expose themselves to their merciless carving out a fifth and twentieth part , which was the undoing of many , even fetching in some of the members of the house to whom they had a displeasure , and generally all men who had crossd or oppos'd them in any thing : that of goldsmiths hall , to impose fines to the ruin of many of the best families of england : that of sequestrations , where the very intention of the houses was perverted , that committee being first propos'd and made only for great and notorious offenders , but afterwards came to be worse than any spanish inquisition , few escaping that were ever question'd ; i dare say serjeant wild the chairman , and mr. nicklis the lawyer , and some few more bloodhounds , who always attended there , never gave their votes for the freeing of scarce any one person ; and then the delay there is worse than the condemnation , making suitors wait one , two years , and commonly be sequester'd at last . the committee of examinations where mr. miles corbet kept his justice seat , which was worth something to his clerk , if not to him , what a continual horse fair it was ? even like dooms-day it self , to judg persons of all sorts and sexes . . did not that faction put on all these things ? did not we still oppose , hinder it all we could ? how earnestly and how often have we mov'd the putting down those committees ? that of sequestration , that of haberdashers hall. those in the counties sometimes got orders of the house for that purpose , brought in ordinances , and still by some art or other of theirs put by when it was thought in a manner settled , so as the government might have return'd to sheriffs , justices of peace , grand juries , and other ministers of justice in that subordination which the law had establish'd . was any preserv'd and deliver'd out of his trouble , that we or some of us had not a hand in it ? were we not call'd the moderate party ? branded with that title ( for they held it a crime ) were we not said to favour malignants ? when in truth we had respect to the parliament , that it should not be made the instrument of those mens lusts , and contract that odium which only could ruin it , and upon which this very party , being themselves the cause of it , took the advantage to master and subdue it , they in the beginning of their rebellion exclaiming against the parliament for those things , and therewith possessing the country , which themselves and their faction made it do . who but they drew all business into the parliament , especially when themselves or their friends were any thing concern'd ? and had they not an art of delaying men , and making them attend when they could not mischief them by dispatching the business ? were any more violent in an arbitrary way of proceeding than they ? nay , were any so but they ? could a mayor , or officer , or a burgess for parliament be chosen almost in any town of england , but with their leaves and according to their likings ? and on the other side , did not we press to have all things left to the law of the land , and to the antient and ordinary course ? yet they accuse us to be the troublers of israel , and themselves would be thought to be the restorers , just as the wolf in the fable charg'd the lamb with troubling the waters . . they charge us beside with having a great power upon the treasure of the kingdom , disposing of the publick monies , inriching our selves , and say in many of their declarations , that we would embroil the land in a new war , that we might not be called to an account for them . o the impudence ! they know that themselves only and their creatures had power over the monies , and medled in money matters , well licking their fingers ; for they know they shar'd and divided amongst themselves all the fat of the land , the treasure , the offices , the king's revenue , the revenue of the church , the estates of so great a part of the nobility and gentry , whom they had made delinquents , and we , not one of us had any thing to do in all this ; mr. recorder i think only was of the committee of the king's revenue , but very seldom came thither . and did not they make use of the price in their hands ? and did they not like charitable persons begin at home , give gifts and offices to all their own party , to some upon mere grace , as the thousands to mr. blaxton , a thousand pound to mr. pury ( besides a good office ) as much to mr. hodges of glocestershire , to alderman pennington , who had conceal'd three thousand pounds of sir iohn pennington's which he had in his hands , for which , by their ordinance , he should have forfeited the treble , and had he been a friend to the eleven members should not have been spar'd ; they did not only forgive him that , but gave him that three thousand pounds , and three thousand pounds more , which was upon the city's turning him out of their militia , and presently made him be put in again . the speaker had money given him , i know not how much , l. at one time ( as i remember ) was made master of the rolls , chancellor of the dutchy , and a good while keeper ; mr. sollicitor was , besides his being sollicitor , the king's attorny , and about two years one of the lord keepers , got infinitely by the pardons upon compositions , which was a device only to fill his coffers , and had a thousand pounds given him at the expiration of his commission for the great seal . so had all his fellow commissioners , mr. brown , mr. prideaux , and serjeant wild , each their thousand pound besides the profits of the seal ; mr. prideaux also made himself post-master of england , being but the chairman of a sub-committee to the grand-committee of grievances , where my lord of warwick and burlamachi were contesting about the place , which was there represented as a publick grievance , tho my lord of warwick's grant prov'd not to be so ; but this worthy gentleman being one of the committee , and in the chair , who was to hear both , and report their cases to the grand committee , from whence it was to come to the house , finding it a convenient employment , worth some , or l. per annum , eas'd them of it , took it himself , and has kept it ever since . mr. serjeant wild was trusted with some money by the lady thornborough's father for the use of his daughter , and took occasion upon her going to oxford , pretending she had got possession of his estate , to get a fair ordinance of both houses to have that money given to himself ; but sure found some good law for it , as he did for hanging of captain burley ; and being excellent at it , no question would find law to hang the eleven members , were there a whole dozen of them , and me highest for writing this , which he would prove to be a greater treason than any in the statute of the th of edward the d ; and when i come within his power , i will forgive it him , let him hang as many , and get as much of the commonwealths money as he can in the mean time . but i will say this for him , the elders of iezreel that found a law to put naboth to death , were but fools to him . then how many of their small prophets were prefer'd , that man of conscience alderman hoil , that worthy lawyer mr. nicklis , sir william allison , mr. love , mr. lenthal the speaker's son , these two made six clerks ; mr. lisle , master of st. cross's , mr. miles corbet , colonel white , a colonel that never was in the field with his regiment , mr. allen the goldsmith ; all of them , and i know not how many more , in places of great profit , some in the courts of westminster , others made treasurers of their armies , as allen and white ; the latter also made clerk of the assizes in the northern circuit , worth or l. per annum . cromwel has l. per annum , sir peter wentworth a gentleman's estate for half the value , settled likewise by ordinance , tho the gentleman ( whose delinquency was perhaps aggravated , because he would not sell him that land which he had long desir'd , like naboth's vineyard ) offer'd to pay the money to the state as the fine for his composition , which by the rules of their own proceedings could not in justice have been deny'd him . i remember we put by the ordinance two or three times , but i hear it is since past , which makes me mention it here . . to some for reparation of losses . so mr. cornelius holland , who had some inferiour place in the prince's houshold ( which certainly he was not born to , the height of his ambition reaching no further in the beginning than to be sir henry vane's man ) was in recompence set over the king's children , above my lady of dorset , and had the managing of their houshold some three or four years ; then they gave him the king's pastures in buckinghamshire for twenty one years , worth to him de claro some or l. per annum . sir william strickland for the burning of his house in yorkshire , has a gentleman's estate in kent of a good value . mr. henry herbert had l. given him out of my lord of worcester's woods , and sir iohn winter's . the lord say , in lieu of the mastership of the wards , which by his power since the beginning of this parliament he had wrested from the lord cottington , had l. and for part of the money ( i think l. of it ) had hanworth house , with the lands about it , which was worth , as they say , l. colonel fleetwood was by way of sequestration put into the remembrancers place of the court of wards , which his brother held , and by going to oxford lost it ; upon the putting down of the court he had l. recompense : multitudes there are more of this kind . . to some for pretended arrears ; as to sir arthur haslerig l. who had earn'd it well at the devizes and cherrington . to the lord fairfax , sir william constable , sir william brereton , great sums . to colonel thompson l. for his wooden leg , which nothing but a cannon could have helpt him to , for he would never come within musket shot . to colonel purefoy and his son colonel boswel , some l. each ; and so to many more . . to some to buy their voices , make them proselytes . to mr. weston , son to the earl of portland , the reviving an arrear of a pension which was his ladies , and if i be not deceiv'd , had been discontinu'd for many years : the debenter , as i remember , was l. to the lord grey of groby ( who had before been zealous for my lord of essex , as he had good reason for the respects he had receiv'd from him ) a considerable sum , which i well remember not , to be paid him out of such discoveries of delinquents estates as he should make ; whereupon he and his terriers were long attending the committee of examinations , in the prosecution still of some game or other , till his sum was made up . to mr. scawen , one who formerly had not very well lik'd of their ways , l. how many of the lords that could not be heard before , nor their petitions scarce vouchsafed to be read , when they tackt about and voted with them , were then presently consider'd , and good proportions allow'd them ; nay , they were so impudent as some of them would not stick to give it for a reason openly in the house , why they would not grant their desires , that they took notice how they gave their votes : mr. gourden is the man i have heard say so several times ; this was an excellent way to make a free parliament , for the members to be honest and discharge their consciences . . then for accounts ; i would fain know what accounts they have pass'd : let any man peruse my lord fairfax's and sir william constable's , i hear they are strange ones for the great sums they have finger'd : and i am sure the committee of accounts did complain , that their sub-committees were beaten in staffordshire , where mr. purefoy and mr. boswel should have acted , and would not . . upon the whole matter , i would have our accusers say so much by one of us : i confess , i am sorry to discover this of them , it being much against my nature , but i am forc'd to it for my vindication . i may say with the apostle , they have compell'd me , and not only so to recriminate , but even to glory a little in some thing . have any of us ever refus'd to account , who were liable to it ? sir william lewis did account for the monys he receiv'd , being governor of portsmouth , so fairly and satisfactorily , as that the committee of accounts made a special report of it to the house , to be ( as they said ) an example to others for his care and just dealing in managing the states monies which came to his hands . major general massey i am sure was sollicitous to perfect his accounts , which if or no he had done before they drove him away i know not . sir william waller and colonel long finish'd theirs . sir philip stapleton never touch'd but his personal pay , yet did account , and had but forty shillings a day , being lieutenant general of the horse under my lord of essex , who was generalissimo , when sir arthur haslerig had five pounds for commanding the horse under sir william waller , a place inferior to his , and had been at no charge , having liv'd still upon sir william waller , and gotten well all along the imployment . sir william waller had his arrears after his subordinate officer ; sir arthur had led the way , who broke the ice for his general and all the rest . sir philip stapleton had also his , a very small one for so eminent an officer , in regard his allowance was no greater ; it came to about l. having left the benefit of his whole estate during all the wars , which haslerig did not , if his neighbours in leicestershire say true , that his grounds have continu'd full stock'd all this while , better than ever they were before , so safe and well protected ( as i have heard ) that his neighbours when there was danger , would send their cattel thither ; i confess , i understand not the mystery . . here is all concerning matters of accounts and arrears of the eleven members , the rest medled not with any of the states monies , some of them have refus'd to receive what the house had given them upon much juster grounds than all the pretences of the others that had so much . i my self for my sufferings after the parliament d. car. which continu'd many years , cost me some thousands of pounds , and prejudic'd me more , had five thousand pounds given me by the house for my reparation . i refus'd it , and said , i would not receive a penny till the publick debts were paid . let any of them say so much . i desire who ever shall chance to read this , to pardon me this folly , i do not mean for not taking the money , but seeming to boast of it . i must again repeat the apostle's words , i am become a fool in glorying , but they have compel'd me . it is true , i had paid for a fine impos'd in the king's bench , which i laid down in ready money out of my purse , a thousand marks : this in the time of these troubles , when my whole estate was kept from me in the west , that for three years or thereabouts i receiv'd thence not one farthing , was reimburs'd to me . . now i appeal to the world , whether our accusers , or we the poor eleven members , so decry'd , so oppress'd , were the more guilty , who they were , who had gotten , cozen'd , oppress'd , were indeed the traitors . if he did not say as truly as he did wittily , if they had not had more men than matter against us , they had been the traitors themselves , which many of their own disciples have upon the matter confess'd and publish'd , saying , they were to seek for matter ; only we were a beam in their eyes : and their great apostle lilburn himself says , the great aim was but to pull down those who stood in the way of their preferment . . here is our crime , i will ask pardon of god for my failings , even in the performance of all these duties , where i serv'd my country best , but not of the parliament from whence i desire no favour . let them put upon me the severest disquisition , either concerning those things then charg'd , or the great . treason since committed , of endeavouring to defend my self , the parliament , the city , from a rebellious , unjust , oppressing army , which against all laws of god and man , came to force us , for which i stand voted to be impeach'd of treason , and am outed the house , of which i shall treat presently . . but first i shall shew the steps to it . the army now did all , the parliament was but a cypher , only cry'd amen to what the councils of war had determin'd . they make themselves an absolute third estate , have commissioners residing with them from the parliament , agents from his majesty , and abuse both sufficiently ; as solemnly treated with as if no subjects , but a body subordinate to neither , vested with an independent authority , claiming only from god and their sword. the whole business of the kingdom is there now agitated , and the engagement of the army is the standard by which all propositions must be measur'd . if any thing be offer'd by the parliament which they like not , it is presently answer'd not to stand with their solemn engagement . many meetings there were , great consultations and debates upon certain proposals for settling of a peace , and securing the rights and liberties of the people . . notwithstanding this , while these things are in agitation , after all their affronting , baffling , forcing the parliament , marching up against it and the city , contrary to their orders , by which they were not to come nearer than within forty miles of london , they will have them own them for their army , undertake to provide for their maintenance , and immediately send down a months pay , yet will not be subject to them in any thing . all this is done , mr. marshal the minister being a principal instrument for them , who was still going and coming between westminster and the head quarters , or at the parliament doors solliciting the members of both houses , perswading them by all manner of arguments , sometimes assurances , sometimes terrifyings , to agree to those things which the army desir'd ; and this not in order to the setting up of presbytery , in which he had formerly been so zealous ( for the presbyters were not then trump , and he meant to whine therefore to put out them to take in better cards for his turn ) afterwards they send to repeal the ordinance for the militia of london , which had been settled upon many and long debates , to stand for one whole year , and renew the former expir'd ordinance for establishing the old committee , which was the year before . . it is but ask and have , that is presently done ; and truly i think it was a design of the army , merely to provoke the city , engage them to do something , express a dislike perhaps , fly out , and give them an occasion to offer some violence should they persist ; or if yield after a little ill favour'dly shewing their teeth , then to put such things upon them , so yoke them , break their strength , trample upon their liberties and privileges , as they should not be able afterwards upon any occasion to raise them disturbance , and make opposition to whatever they should set on foot , tho never so grievous and displeasing to the whole kingdom ; for they thought not themselves secure whilst the city stood unbroken . . their plot took , the city was very much mov'd at this sudden act of the houses , in the altering their militia , without so much as giving them notice to hear what they could say in a point so nearly concerning them . they look upon it as an infringement of their charter ( granted and confirm'd to them by so many kings successively , by which they were still to have the power of their own militia ) as a shaking of the foundation of all their security for those vast sums of money they had lent , which depended only upon ordinances : and the easie and sudden repealing of this , gave them cause to fear they might be serv'd so in the rest . . whereupon at their common council they agreed upon a petition to the houses , informing them of the distempers in the city upon the change they had made , and beseeching them to reestablish it as it was before ; which was presented by the sheriffs , some of the aldermen , and of the members of the common council in a fair and submissive way . but the parliament durst do nothing without the leave of their masters , only give them good words , and so hop'd to slide over the business . then some young men , apprentices and others , appear'd , pressing hard , who would not be satisfy'd till it was done ; which the houses sticking at , the young men insisting , drew a great concourse of people , putting things into some heat , so as at last they prevail'd , and the militia was again settled according to their desire : upon which they went away returning to their homes , only some of the younger and more unruly sort remain'd , among whom some idle people ( and perhaps not well affected ) soldiers and others , and i have heard some of the independents even belonging to the army , thrust themselves , and put the multitude , disorderly enough before , into great distempers , who then would make the houses do this and the other thing , vote the king 's coming to london , the calling in of the eleven members , and i know not what else , would not suffer the parliament men either of the one house or the other , to stir till all was voted and pass'd which they desir'd , keeping them there till i think nine of the clock at night ; when the common council hearing of these disorders , sent down the sheriffs of london and some of the aldermen to appease them , which they did . this was upon monday the th of iuly . the houses adjourn'd themselves , the house of peers to friday , the commons house to the next day . the city had against the next day , which was tuesday , taken order to prevent such further inconveniences by unruly people assembling about westminster , which before they could not well do , in regard their militia was unsettled by the alteration that the new ordinance upon the armies command had made , and i heard sent down a message to the house of commons to assure them of it ; but mr. speaker was so hasty to adjourn till the friday , perhaps because the rather he would not receive that message which had half spoil'd the plot , that he would scarce stay till it was a house ; and some of the sactious crying to adjourn , he did so , tho many cry'd out against it , who could not be heard . . by the friday the two speakers , the earl of manchester of the peers , and mr. lenthal of the commons , instead of giving their attendance according to their duty upon the houses , with eight lords and fifty eight commoners , were run down to the army , there enter into an engagement , bearing date the th of august , to live and die with it , upon pretence of a force and violence to the parliament , but in truth by a conspiracy with the army , design'd and laid principally by mr. saint iohn the sollicitor , as appears by a letter sent from rushworth , sir thomas fairfax's secretary , to the speaker , with no name in it , but the latter part of it written with his own hand , advising him not to appear at the house on friday morning , but to take counsel of mr. sollicitor , who would tell him what was fit to be done , assuring him the army would all lie in the dirt or protect them who were their friends . this , as i remember , was the effect of the letter , yet remaining in one of the houses ; which , no doubt , came from sir thomas fairfax , and mr. cromwel , and the rest of those governors undertaking so for the army , and shews who was the man that must give the orders , and direct what was to be done by the house , and then may well be suppos'd to be the author of all . the ground of this engagement is made to be a declaration of the armies shewing the reasons of their advance towards london , as full of falshood as it is of malice against the eleven poor members , and in truth intended only against them , who are by it said to be the cause of all that had been done in the city ; that therefore they were resolv'd to march up to london , expecting the well affected people of the city would either put us in safe custody , or deliver us up to them , stuffing up the whole declaration with falshoods and lies , as well in the narrative part as in the comment upon it ; they pretend , that to carry on our former evil designs , and preserve our selves from the hand of justice , we had endeavour'd to cast the kingdom into a new war , and to that end had procur'd an under hand listing of reformadoes , and continu'd a wicked and treasonable combination , which we caus'd several persons to enter into , that this could not be done in the time of the old commissioners for the militia , and therefore the new were made , who many of them were very intimate with us , which was a just cause for the army to have them chang'd again : that thereupon the tumult was abetted and fomented by us to violate the parliament , and force it into our hands , which makes them require that we may be in that manner deliver'd up ; and declar'd all that was done in the houses that day or afterwards , till those fugitive members should return again , null and void ( so here the army takes upon it to declare what votes shall stand good , what not ; and this is for the honour and freedom of the parliament , that which those worthy patriots would live and die upon ) and besides , they say they were labouring after the settlement of the kingdom , and had even brought it to perfection , the particular proposals ready to be sent to the parliament for a final conclusion of all our troubles ; which conclusion of our troubles , in truth , nothing in the sight of man could have hinder'd , but this cursed practice of violence upon the parliament , which very thing in them was as cursed a high treason as could be committed , a mercenary army rais'd by the parliament , all of them from the general ( except what he may have in expectation after his father's death ) to the meanest centinal , not able to make a thousand pounds a year lands , most of the colonels and officers mean tradesmen , brewers , taylors , goldsmiths , shoemakers , and the like ; a notable dunghil , if one would rake into it , to find out their several pedigrees : these to rebel against their masters , put conditions upon them , upon the king and whole kingdom , make their will a rule , that all the interests of king , parliament , and kingdom must be squared by , which they are not asham'd to declare here to the world . . and this pious declaration do these worthy lords and commons receive with much approbation , and with much thankfulness to god in the first place , and next under him to the ever faithful army ; and so became , like the proselites which the scribes and pharisees made , twofold more the children of hell than themselves , more criminous , and guilty of a greater treason , as having broken a higher trust , being themselves part of the parliament which they deserted and betray'd ; a wound given in the more noble and vital parts , tearing the bowels , and piercing to the very heart . whereas the army were but servants , outward and ministerial parts , so to be look'd upon , and so punish'd ; slaves were crucify'd , but citizens that betray'd were exterminated , they and their posterity , and the whole city turn'd into mourning , sensible of the loss as the body when depriv'd of a principal member . . they should have remembred , that even at the time of the pretended force which they would have men believe to have driven them away , the house lay under a greater force , and themselves were greater slaves to the lusts of the army which trampled upon their necks , made them more contemptible than the smallest court of guard that had but a corporal to command it , to eat their words , their declarations , orders , ordinances , break their faith , betray and destroy all that serv'd them faithfully , give thanks for being cudgel'd and abus'd , pray and pay , and be glad it would be accepted ; should not every member have been sensible of such violations and injuries done to the body ? but some will say it was as these men will have it , who were like the sinful lusts in the soul , quiet and well pleas'd , while the strong man the devil keeps the house : so they were satisfy'd with all that was done , because it was according to their minds , conducing to their ends. if it be so , and that they will be slaves , let them be slaves still , for they deserve no better . the army was the fittest place for them , as brutus said of those he took prisoners at the first battel of philippi , let them go , says he , they are greater captives in their own camp under cesar and anthony than here . . they might likewise have consider'd , that the force upon the parliament from the army , as it was greater , so to have been a more horrid crime , of more dangerous consequence to the kingdom , and more destructive to the being of parliaments than that from the apprentices ; which is , in my opinion , very clear . this of the apprentices being a sudden tumultuary thing of young idle people without design , and without that obligation ; indeed but an effect of the other , both as following their example , and also as occasion'd by the just offence which they had given the city : whereas the army was a form'd deep laid design of revenge upon them they call'd their enemies , of domination over the parliament and kingdom , carry'd on both with power and cunning , laying the foundation of a perpetual tyranny by a company of hir'd servants , that had receiv'd more wages ten times than their work deserv'd , and now betray'd the trust reposed in them , rising against their masters , whose own swords they turn'd upon their breasts , to force them to do most dishonourable , unjust , infamous actions , deliver up themselves and the kingdom to their wills . so as take the act of the apprentices at the worst , it is ex malis minimum , and that of those fugitive members at the best , which is , that they were really under a force , and under a fear , they did vitare charibdim incidere in scyllam , and leap ( as the old proverb is ) out of the fryingpan into the fire , wherein they were unfortunate ; and well would it be for them in the day of their accounts if it were but fortune , but it is too apparent to have been in some of them a propens'd malice and detestable combination . . as for what they lay to the eleven members , with all the aggravations in that declaration , i will not answer it as mr. nathaniel fines did mr. walker's charge against him , to say only thou liest , and quote along the margin , first , second , third , and fourth lie. but this i will say to disprove it , affirming it upon the word of a gentleman , and faith of an honest man ( i think i may speak as much for the whole number ) i was not in the city all the time those businesses were in agitation , knew nothing of the petitions nor actings in the common council , nothing of the city's engagement , never saw it till two or three days after it was printed , had not the least thought of the apprentices coming down to westminster , nor notice of it till the very day at eleven of the clock when they were already there . we had appointed four days before to meet that day at dinner at the bell in kingstreet , there to even our reckonings , because we had made a common purse for lawyers fees and other charges , in preparing our answer for the house , then to take our leaves one of another , resolving to go several ways , some beyond sea , some into the country . as i was going into my coach ( there was with me sir philip stapleton , sir william waller , major general massey , and mr. long ) one brought us word of the hubbub at the house , whereupon we resolv'd not to go , and parted companies upon it ; but presently sir william lewis's footman came to tell us , his master and mr. nichols were staying for us at the bell ; upon which sir philip stapleton , sir william waller , and my self ( who were yet together ) went thither , but hearing more of the disorder about westminster hall , we would not stay so much as to make an end of our dinners , but presently came away . i mention this particular because i know they have made a great matter of that meeting , as if it was to be near hand , to receive information , and send instructions according to occasion , when we were as innocent of it as any of those who cry out most against us ; nay more , if it be true what is so confidently reported , as i said before , that there were independents most busie amongst that unruly multitude . . here we have seen what those worthy members did at the army , and upon what ground , and besides what little reason they had to go away upon the pretended force , which was a sudden thing , then past , and care taken it should be no more , and they lying before under a greater force , which they purposely now ran again into , to continue it the longer upon themselves and the kingdom . now let us see what in the mean time was doing at london . . the houses met according to the adjournment upon friday the th of iuly , some six or sevenscore in the house of commons , and as great a number of lords in their house as of those who went to the army , but all mute , neither having their speaker , for whom they sent about to seek , waiting till they had certain information how they had dispos'd of themselves ; then they fell into consideration of what was to be done , and that offer'd it self , which in truth was obvious to every man's reason , to chuse other speakers . for the lords house there could be no question , it was every day's practice , their speaker being but pro tempore , and changeable at pleasure ; so they make choice of my lord willoughby of parham . for the house of commons , it lay not so above ground , their speaker being a settled officer , made with great formalities , and not so moveable at pleasure ; but that he cannot be at all remov'd upon no occasion , not for misdemeanour ( as it is not esteem'd for a speaker to be honest , or to be so powerful by his compliance with the major or the more active part of the house , to be born out in his knaveries , as some have the luck of it ) or if he desert the house as mr. lenthal lately did , or be disabled by sickness , or any other accident , i think no man will say . for then what act of continuance will be of avail to keep up the parliament , since it would depend upon the will of one man , or the uncertainty of his health , to frustrate all such provisions , and at any time to set a period to a parliament ? . therefore they proceed to the choice of their speaker , and pitch upon mr. henry pelham , who , according to the custom , is presented at the lords house bar , brought in by my lord of pembrook in his robes , and there receiv'd . . they then go on upon the business of the house , take into consideration the letter spoken of sent by rushworth to mr. lenthal the late speaker , which discover'd the intention of the army to march up against the city ; whereupon they order a letter to be written to the general , signifying in what quietness they sat , and that therefore he should not advance his quarters any nearer . . they afterwards order the eleven members to come and give their attendance , who were presently sent for , and some others that had been forc'd by the army to forbear the house . . for amongst other enormous proceedings of the army , one was , upon pretence that some sat there who had born arms against the parliament , or abetted the other side , they make the house enjoin some gentlemen to present a state of their case upon certain votes then pass'd , which put an incapacity upon such as were comprehended in them under a heavy penalty if they forbore not the house of themselves , so compelling them either to accuse themselves against all rule of justice , and the very law of nature , undergoing the greatest hazard that could be ; for if they fail'd in a tittle , as very well one might in a thing done three or four years before , or that any knave would come and swear something against him , they underwent the penalty , or else to deprive themselves of their rights of sitting in the house , and so the town or county which had chosen him lose the service of their burgess or knight ; indeed this was a heinous villany , but they are guilty of so many that one drowns another . . they pass a vote , that the king may be humbly desir'd to come to his own house at richmond , that so the houses of parliament and commissioners of scotland might have access to him , to propose what was necessary for settling the peace of the kingdom , himself be in a place of safety out of the hands and power of the army , whose fair shews towards him they had cause to suspect to be no other than the kisses of iudas , to betray and ruin both him and the kingdom : and accordingly messengers were sent to attend him with it , but the army frustrated all those endeavours . . some other things were pass'd that day , and lest the parliament should be wanting to it self in doing what was possible for its defence and the citys , in case the army should not stop upon their letter , the committee of safety is reviv'd , and order'd , as before , to join with the militia , and provide for their protection ; and all but need , for sir thomas fairfax and his two councils of war , the members and the officers , would not vouchsafe to read the letter , but march on rabshekah like , threatning ruin and destruction ; yet was there no such thought towards them , our end being not vim inferre , but repellere , get such a strength about us as might only defend , not offend . to that end those forces which were quarter'd further off in kent and surrey , as sir robert pye's company , colonel graves's , and some others , were commanded to draw near the city , not offering or intending any act of hostility , when upon a sudden , the sunday morning the d of august , a party of horse , about two regiments , commanded , as i take it , by one desborough a major , fell into deptford , where were some half a score of sir robert pye's soldiers who had staid behind the rest to discharge the quarters , and most inhumanly and basely butcher'd those poor men as many as they could light of , killing besides any that look'd like a soldier whom they found upon the way , some within a stones cast of the works of southwark . this , as it was a most barbarous and bloody murder ( which will bring down vengeance upon their heads soon or late , that tho they should escape the hand of justice here , the hand of god will certainly overtake them ) so did it something awaken the city to see their own danger , and a little quicken their pace to draw the ordnance upon their works , and man them something better ; but in truth not much . for i may say they were a people prepar'd for ruin and slavery , gibbs and fowks principally had bewitch'd them ; and agents for the army who were up and down , weaken'd mens hearts and hands , so as nothing was done to any purpose for putting them into a way of safety , or possibility of deliverance . all were desirous equally of peace , but not all equally afraid of danger ; those who fear'd it most were the greatest cause of it : and some good well meaning men of the assembly , mr. herbert palmer and others , whom mr. marshal had wrought upon and perswaded to come to the houses first , as being ministers and ambassadors of peace , to perswade to peace , and then to the common council to do the like to them ; which did but dishearten and discourage those who were apt enough to fear , being not so fully ready to resist a power that was coming upon them , and did hinder the preparations . to say the truth all was done that could be to hinder and little to help . insomuch as at that very time when the army was marching up for their destruction , about l. which had formerly been order'd to be sent down for the army 's drawing off further from the city , could not be privily convey'd out of town by sir iohn wollaston , and some others , in which mr. scawen and mr. allen members of the house , had a principal hand , which was as great a blow to parliament and city as could be given ; for it serv'd to keep the soldiers together , and unite them for marching up , whereas before there were high discontents amongst them , and it weaken'd us , even taking away so much of our blood , that which at that time we principally stood in need of . . the parliament did all that could be desir'd , yet still with a resolution to endeavour the ways of preventing extremities . those commissioners of theirs who were at the army had in a manner disavowed them , for never any thing came from them to the houses ; and mr. skippon , when the city sent to him to come and take the conduct and management of their business , a duty they might very well have expected from him , he was so far from performing it as he absolutely refus'd except he might have an assurance from the parliament , and from them , to return again to the army if he lik'd not his conditions , which was a great ingratitude to those who had deserv'd so well of him , and an unworthy complyance with them who had formerly neglected him . . a message was resolv'd upon to be sent to the army , to see if they could be stopp'd from coming in that manner to endanger putting all into blood ; mr. swifen and mr. ashurst as i remember were nominated , the rest i have forgot . the like was also prepar'd in the city , and more quickly executed ; upon tuesday alderman gibbs , mr. noel , and some other aldermen and common councilmen were appointed to go with it . and they soon return'd , not with an olive branch , but with a heavy doom to the honour of the city , freedom of the parliament , and safety of the poor eleven members in the first place , and next of all that had engag'd in the defence of the city . the keys of the city ( if i misremember not ) must be deliver'd to his excellency , all the works from the thames side to islington fort demolisht , the eleven members secur'd or given up , and all the reformados and officers likewise who were ready to have fought for them . this was as worthily by the common council yielded to , their ambassadors notably promoting it . the eleven members were not yet seiz'd nor deliver'd , but as bad , left to shift for themselves , no care at all taken for their preservation , tho the city had now this last time wholly embark'd in their trouble , and engag'd them in their business , petitioning the house of commons to enjoin them to attend the service of the house , themselves not at all moving in , or desiring it : nay , they did not so much as provide for major general massey , whom they had made their commander in chief ; but like isachar bow'd under the burden , betray'd themselves and all that had to do with them . . here was an end of the parliament , and in truth of the c●●y , all whose glory is laid in the ●ust ; and as it was high before in reputation both at home and abroad , so is it now become a hissing and reproach to all that see it or hear of it . the next day sir thomas fairfax sends to take possession , and the day after that marches in state , bringing with him those deserting lords and commons , and the earl of manchester and mr. lenthal , the two pretended speakers , not vouchsafing to look upon the lord mayor and aldermen , who were there with the recorder , provided with a speech for his entertainment , which he did not so well deserve , as they did that scorn then put upon them . . he goes strait to the houses , put those two men in the speakers places , who had no more right to them than himself , and has ever since continu'd them there by force , and keeping out the true speakers ; which the lord willoughby is to the peers ( that house being under an adjournment , and not sitting when the intruder came in , so not in a capacity to admit him ) and mr. pelham to the commons , who had been legally chosen when the house was free and under no force ; the other having deserted , which is of all crimes the greatest . . so as without him it is no house , but an assembly of men acting under the army without lawful authority ; some of them by a combination and agreement with the army , but far the greater part by a terror and an awe from it , and therefore to be look'd upon accordingly ; and questionless many of them continuing there out of a good intent , like so many hushais , only to defeat the pernicious counsels of those achitophels who had design'd the destruction of david , the ruin of honest men , and even the trouble and confusion of the whole israel of god , church and state. these are so far from deserving thereby either to become the object of blame or pardon , as they merit exceedingly , are worthy the praise both of present and future times ; but to be consider'd rather as faithful patriots , that act out of necessity in an extraordinary way , stand in the gap to keep off mischief , than as members of parliament able or indeed qualify'd to exercise any parliamentary power for the good of the kingdom ; the house having been disturb'd , and for the time suppress'd by a real force , not feign'd and imaginary as the other was ; and while this force continues , not suffer'd to come together , but as soon as it ceases will return of it self to be as it was before . . for there is a difference between these two cases , one the parliaments acting under a force , remaining still to be a parliament , which dos not annual it , nor the acts it dos ; but makes them fit to be repeal'd , yet standing good pro tempore . . many of our best laws have been so made ( when armies have been on foot ) and afterwards declar'd good in a free parliament ; and what then done did appear to be inconvenient and unjust , was by subsequent parliaments repeal'd . so is it fit that what was compel'd to be done by the apprentices and others in that tumultuous way , the monday that the force was , should be repeal'd , as not fit to be continu'd . and so all that has been done a great while , under the power and force of the army , since it first rebel'd and gave laws to the parliament , is as fit , if not more , to be hereafter repeal'd ; and questionless will , if ever the parliament come to be free again . nay , even these pretenders do us that right , as finding the proceedings of the parliament after their desertion not sutable to their ends , but against them , by an ordinance to repeal and declare them null ; which otherwise had not been needful , seeing they would fall of themselves , being crimes in their own nature as proceeding from an usurp'd authority . this is one case ; the other is , when a force proceeds so far and so high as not to suffer a parliament to be , gives it such a wound as for the time it cannot act , but must cease , even as a wounded body that lies in a trance without sense or motion : but when that force is over , and the spirits recollected , it returns to it self to do the functions of life , move and act as formerly . it is but like a parenthesis in a sentence , and remains one and the same as if the parenthesis were not at all . . but to return where i left . this general , a setter up and puller down of parliaments , has a chair set him in either house , where first in the lords house , then in the commons , those pretended speakers make speeches to him , giving him thanks for all , approving his declaration of the reasons of his coming to london , desiring him to go on in taking care for the security of the kingdom , and to appoint a guard for the parliament . than which there was never any thing more base ; but mr. lenthal exceeded , being both base and prophane , applying a higgaior selah to this last act of his excellency , who as wisely took it . then that the prophaness might be compleat , and god mock'd as well as men abus'd , they appoint the thursday after for a day of thanksgiving , and fitted it with preachers , mr. marshal and mr. nye , simeon and levi , where they say marshal outwent all that had gone before him , and his brother nye was a modest presbyterian in comparison of him ; but that apostate went beyond ela , making this deliverance a greater one than the gunpowder treason , as i have been credibly inform'd by those that heard him . and some few days after , sir thomas fairfax and the whole army marcht in triumph with lawrel in their hats as conquerors , through the subdu'd city of london , to shew it was at his mercy ; which was an airy vanity i confess above my understanding , and might have rais'd a spirit of indignation , not so easily to have been laid . but a higher insolency of an army compos'd of so mean people , and a more patient humble submission and bearing of a great and populous city , but a little before so full of honour and greatness , was , i think , never heard of . . and now the houses fall to voting , the lords leading the way , and outdoing the commons , as much as mr. lenthal outdid the earl of manchester in the thanksgiving , or mr. marshal did mr. nye in the thanksgiving sermon . they make sir thomas fairfax generalissimo , commander in chief of all the forces in the kingdom , and constable of the tower , otherwise signifying mr. oliver cromwel , of whom sir thomas was the shadow ; they thank his excellency over again for his care of the safety of the city and parliament , risum teneatis amici ; leave it wholly to him to appoint what guards he thinks fit for their security , sed quis custodiet custodes ? give a months pay for a gratuity to the army for their many good services , which is praemium nequitiae ; then set up the star chamber , the high commission , the spanish inquisition , in one committee of ten lords and twenty commoners ( read over but their names , and you will swear it , except for four of the commoners , who are very unequally yok'd , sixteen against them ) to sit in the painted chamber de die in diem , to examine the business of the mutiny , and of forcing the houses . . so far the lords lead and the commons follow ; but in another vote they go by themselves a good while , that all things done by the members since as they injuriously and falsly pretend ) the speakers and other members were driven away from the parliament , be annull'd , and of no effect , and declar'd to have been so at the making thereof . the commons can't agree to this , but put off the debare to another time . some sense of honour there was amongst them , and of the dangerous consequence of such a vote , besides the unreasonableness and injustice , taking away the authority by which those votes were made , and so exposing to question and ruin all such as were at the passing of them , or had acted by them . many days debates were spent upon it , but it could not be carry'd the house of commons would be a house of commons still ; and as they represent the people of england , so assert their liberties , if they were left to themselves , and not overaw'd by the power of the army . . therefore the agitators must to work again with an humble address to his excellency , and some proposals on behalf of the kingdom and the army : first , that all those that have fat at westminster , usurping a parliamentary authority , since the forcible expulsion of the parliament , may immediately be excluded the house . secondly , that those members who have adher'd to that pretended parliament , may be also excluded under a penalty if they presume to sit . thirdly , that all former votes against disaffected members may be put in execution . and this is to make a free parliament , for those rogues to determine who shall sit , who shall not , and how they shall be punish'd who disobey them . these lords and commoners deserve well of parliament and kingdom , that ran away from the parliament , and went to the army for this . . sir thomas fairfax and the council of war answer presently , for it is but a song of two parts , making one harmony , all set by the same hand . a remonstrance is forthwith produc'd and sent to both houses the th of august , a sorrowful ditty for the poor house of commons , which tells them plainly , after a long deduction of all passages , just lying over the same lies again , that those members which sat during the absence of the speakers , are guilty of the prosecution and maintenance of the said treasonable engagement and violence , and therefore must not be their judges ( but their adverse party shall be theirs , which is army justice ) that they might have been made prisoners of war ; wherefore they protest and declare , if they hereafter intrude themselves to sit in parliament , they can no longer suffer it , but will take some speedy effectual course , that both they and others guilty of the same practices may be brought to condign punishment . . and they back this remonstrance ( for which the lords return a letter of approbation and great thanks to his excellency for his continu'd care of the honour and freedom of parliament ) with a party of a thousand horse drawn up to hide-park ; cromwel and ireton making menacing speeches in the house , and guards out of the army besetting the doors and avenues . by all which means , and the terror of their surly impeaching looks ( as some of the pamphleteers observe it ) many of the members were driven away , and the poor house forc'd the th of august , to pass the ordinance for declaring all votes , orders , and ordinances , made in one or both houses from iuly till august , null and void . and now they are a free parliament , or as haslerig told them the next day after the eleven members were withdrawn , a glorious parliament , in truth no parliament , but they are what mr. cromwel will have them to be . . then they lay about them , impeach seven lords of high treason , sparing only my lord of pembrook . they proceed against some of their own members , suspend mr. bainton , put commissary copley and mr. recorder out of the house , whom they commit to the tower for high misdemeanours , expel likewise sir iohn maynard , and send him to the tower. the rest of the eleven members upon the city's delivering up it self and the parliament to the will of the army , having sent for their passes which the house had order'd and upon them withdrawn themselves into foreign parts , the lord mayor and some of the aldermen were likewise imprison'd in the tower , and charg'd with treason : and all honest men persecuted , threaten'd , and therefore fled and scatter'd , some one way and some another ; and these are the effects of a free parliament . . the lieutenant of the tower , colonel west , an honest and gallant man , after he had been at charge to treat and entertain sir thomas fairfax , coming to take possession of his place as constable , was by that worthy general , by way of thankfulness for his good entertainment , turn'd out : and an independent , one tichburn a linen draper , put in , which was done with so much insolency and scorn of the city , as when his favourite alderman gibbs had prepar'd a long winded speech in the name of the city , who crav'd it as a boon and act of grace , that he would keep in the old lieutenant , he cut him off short , and bid him speak no more of it . indeed it had been against his instructions , and the maxim of his master cromwel and all that faction , which is to suffer none in any power save such as are theirs body and soul , and put all others out . . so colonel pointz was seiz'd upon , and by force fetch'd out of his command in the north ; major general massey must not continue in his of the west ; captain patten turn'd out of his vice admiralship , and rainsborough put in ; colonel carne out of the government of the isle of wight , and hammond in his room . the self-denying ordinance was a trick for this purpose . in the begining of these troubles sir william lewis not agreeing with their palate , being governour of portsmouth , they make the earl of essex , who was then general , send for him , upon a supposition that he was a favourer of malignants , and of many other things ; which being examin'd by the committee of safety , he gave so good an account of himself , as the committee could not do less than write a letter in his justification to the general , leaving it to him to repair him as he thought fit . then some of these honest men , who themselves had subscrib'd to it , sent a letter privately to my lord of essex , by which they advis'd his not sending him back to portsmouth ; which jugling of theirs he receiv'd with indignation , and wish'd sir william lewis to return to his command : but he seeing what men he had to deal with , quitted the employment ; and to say the truth , he only can be happy who has nothing to do with them , except it be in punishing them according to their demerits . . they have now they think both houses to their minds , ready to do whatsoever they please . accordingly the house of commons orders those of the eleven members , who were beyond sea upon their passes , which gave them liberty of travelling six months , to appear the th of october , taking no course to have them summon'd , only notice to be given at their houses , or places of their last abode , where few of us had any servants , my self only an old porter and a maid or two . . then they go on to the publick business , such work as the army had cut out for them . which were certain proposals that sir thomas fairfax and the council of war had sent them the st of august , sign'd by iohn rushworth secretary , now far above iohn brown and henry elsing . in these they 〈◊〉 down a new platform of government , an vtopia of their own , take upon them to alter all , give rules to all , cajole the king , claw with the people , cheat both , never intending good to either . the reading of the articles themselves which are in print will satisfie every body ; they need no comment , and are so many , and of so vast a comprehension , as to treat of them all , to shew the absurdities , contradictions , impossibilities , unreasonableness , which many of them contain , would swell this to too big a volume . i will only speak to some few , and shew how they dissolve the whole frame of this monarchy , taking a sunder every part , pulling out every pin and new making it . first , the constitutions and proceedings of parliaments , projecting new things for their beginnings , continuances , and endings , for the elections of members , privileges and customs of the houses , which they had violated before de facto , but now must be alter'd de jure . the militia of the kingdom , where they will have a general appointed to command it , pay setled to maintain it , a council of state to superintend it , which signifies to establish by act of parliament this holy army , the council of war , and general cromwel . then matters of the church , where they will have no power exercis'd to preserve religion and piety ; they would have bishops so they may be just cyphers , and all acts to be repeal'd , which hinder men from being atheists or independents ; for no body must be enjoyn'd to come to the church , and there may be meetings to practise any thing of superstition and folly , the covenant must be laid aside . in sum , it is to take away all government and set up independency . they propose a new way for making grand jury-men , justices of peace , and sheriffs . when these and many other things which they mention are settled , which will take up time enough , then the king , queen , and royal issue to be restor'd , which is as much as just nothing . next they make the people believe they do as great matters for them , will have a liberty of petitioning , which is but to make way for schismatical seditious petitions ; for if any petition stick at their diana , none so fierce to punish . who more than they against all the petitions from london and the counties for disbanding of the army , and complaining of their factious ways ? how eager were they against the petitions promoted in the city in the beginning , for which benion was fined , and many troubled ; and some petitions out of kent , for which some gentlemen were committed ? how barbarously did they fall upon some poor women which came one time to westminster petitioning for peace , commanding a troop of horse to run over them , the train'd bands to shoot at them , whereby many were wounded and some kill'd ? yet the world must think they will have it free for all to petition . then they will have the excise taken off from some commodities whereon the poor people live , and a time limited for taking off the whole ; which was but to please and amuse them till they had got the mastery of those who they thought stood in their way : but being masters themselves , they soon sent out a command ( more now than any proclamation or ordinance ) to forbid all soldiers any way to interrupt the levying of the excise , orany other tax charg'd by the parliament , which they had made merely instrumental to poll the people for the support of them and their faction . they will have no tythes to be paid , and so ministers to be starv'd for in truth they would have no ministers at all , or rather no ministery ; like iulian the apostate , take away presbyterium not presbyteros : for ministers that will be subservient to them , like mr. marshal , shall be much made of . the rules and course of law must be reduc'd ; indeed they will need no law , for they will rule by the sword , and the councils of war shall supply all courts of justice . prisoners for debt , if they have not wherewith to pay , must be freed ; so we may be sure few debts shall be satisfy'd , for it is an easie thing so to convey or conceal an estate , as nothing visible will be left for doing right to creditors . none must be compell'd to answer to questions tending to the accusing themselves or their nearest relations in criminal causes , witness their orders to make men under great penalties state their case in no less matter than treason ; therefore this is understood to extend only to the privilege of their own faction . we must alter all statutes and customs of corporations , and of imposing oaths which may be constru'd to the molestation of religious people , that is , independents , for all others are greeks and barbarians . yet these men , in how many letters and declarations do they say and protest , they have no thought of setting up independency , nor to meddle with any thing but what concerns the soldiery , and leave all the rest to the wisdom of the parliament . indeed they conclude their proposals with what concerns the soldiery : that provision may be made for payment of arrears to the army , and the rest of the soldiers of the kingdom who have concurr'd with them in their late proceedings : and in the next place , of the publick debts and damages of the kingdom , which they have taken a course that the parliament shall never satisfie , having caus'd such a debt to the soldiers , and so insupportable a charge for the maintenance of the army , which is to be satisfy'd in the first place before other debts to the rest of the kingdom , that the subject is not able to bear it , but is utterly ruin'd . . to some of these heads they say they will offer some speedy particulars in the nature of rules , of good use to the publick : rules indeed , from which , and from the rulers , good lord deliver us . but here you see they compile a work like the second part of solomon's , treating from the cedar in lebanon to the hysop on the wall ; of all degrees and conditions , from the king that should be on the throne to the beggar in prison . and since they have brought both ends together , so now we have a free parliament and a free kingdom . . every day produces some effects of their tyranny and power , like another africk , some monster , tho they were not without their difficulties to wrestle with and overcome . for to bring so absolute a bondage upon a people that was free before , could not be without many heats and colds . they had the king to deal with , whom they must in some measure satisfie and perswade that they had good intentions for him , to restore and maintain him in a power and dignity sutable to his royal person and office , from which the truth and bottom of their design did differ toto coelo : they had the king's party , whom they must entertain in hopes and expectation , and then cozen ; they had the parliament which must be kept under , brought to obedience , and a total subservience to their will and command . they had the generality of the people , who were for government and monarchy founded upon peace ( as they had reason ) desirous to be eas'd of their burdens and taxes , with hopes whereof the army had fed them , but it stood not with their interest to procure it them . they had lastly their own faction which troubled them most of all , being violent , impatient , not to be gain'd to go the pace of their grandees , and wait the revolutions of time , which they desir'd might have taken place , for the same things to be effected which even those headstrong furious people coveted , but with more ease , advantage , and greatness to themselves . . for they apprehended it very dangerous to fall presently upon his majesty and break with him , seeing the inclinations of the people towards him , and he at liberty for all persons to have access unto him , whom he might confer with , inform , and dispose according to occasion , perhaps take some resolutions which they apprehended might turn to their prejudice . besides , they knew not how the scotish nation might then declare and engage , which with the help of those whom they had already discontented by their injustice and oppression in the execution of their particular malice and revenge , and those whom they should discontent by frustrating their expectation , having born them in hand with hopes of peace and freedom from taxes , must needs have given a great interruption to their proceedings , and even shake the foundation of their whole design ; therefore they must work in another way , make his majesty believe they will do great things for him , so to receive rather an advantage than hinderance from his influence upon the affections of the kingdom . to this end were all those applications to him by cromwel , ireton , and the rest of their creatures and instruments , in framing of the proposals , appearing for his interest in the house , seeming to desire his restitution , being now turn'd absolute courtiers . they knew it would at last come all to one with that which they have since done to him . for , coming to a settlement with his concurrence , they had the power , he but vanam imaginem ; and what of lustre and quietness had been contributed by his majesty's conjunction , would but have serv'd to have confirm'd and heighten'd their authority , all had been but stilts to raise them above the rest of the kingdom and himself likewise ; so as it had been in their power ( as well as we are sure it had been in their will ) to destroy him afterwards , he should have only been a little longer repriev'd , as vlysses was by polyphemus to be devour'd at last . . but the party would not give way to this ; hatred to the king , envy and jealousies against their aspiring leaders , and a violent desire of having the work done at once , lay all persons and things level on the sudden , bring forth their monstrous conceptions all at one birth , made them break out , flye in their faces , discover many of their villanies , and , as appears by that business of lilburn and wildman , even resolve to take cromwel out of the way , and murder him for an apostate . . when cromwel , ireton , and the rest saw this , and that this madness of the inferiour sort of their disciples , which had formerly rais'd them , supported them , and lately given them the advantage of their enemies , victory over the parliament , and a superiority over all the kingdom , would now be their ruin , if either they clos'd throughly with the king ( for then their party would forsake them , turn against them , and they knew they had so well merited of king and kingdom , as not to expect to be preserv'd in greatness , either for honesty or abilities ) or if the king continu'd at liberty at hampton-court , or any other place , where freedom of resort might be to him , and opportunities taken and improv'd to meet with and prevent all their attempts , that then it would be impossible to carry on their business in an open and declar'd way of violence against him . they saw a necessity of removing him , and making sure his person ; that done , they thought they might be bold to do and say what they would , and own a second time the actings and resolutions of the agitators . . the difficulty was how to bring this about , to cozen the king so as to make him act it himself , and flie into the cage ; carry him by force they durst not , it would be unhandsom , it might be dangerous : they use this stratagem , heighten and sharpen underhand the mad humour of their party against him , to have it break out all manner of ways , in threatning speeches , pamphlets ; some consultations that whilst his majesty liv'd in england he could not be safe ; meetings to consider and come to some resolutions of taking him out of the way : the army is again disquiet , the officers not obey'd , all things tending to mutiny , and some violent eruption . then dos mr. cromwel and his cabinet council seem to be extreamly solicitous of the safety of his majesty's person , cause some discoveries to be given him of his danger , express great indignation and trouble in the house , in the army , and other places against these proceedings , act their parts so to the life , as the life of a man must go to make up the disguise : an agitator whom at a council of war , with two more , they condemned , was shot to death ; so as the king could not but have a great confidence in these men to believe that they were really for his preservation . at last cromwel writes a letter to whalley ( who commands the guards about his majesty's person ) to be shewn his majesty ; and other informations are likewise brought him , to make him believe that if he escap'd not presently he will be murder'd ; and he is advis'd to go to the isle of wight , where they had beforehand provided him a jaylor , colonel hammond , one for whom they said they could answer , that there his majesty would be in safety , and they able to serve him . . here they have the king safe enough , and now the army is presently quiet , the agitators as obedient as lambs , and councils of war are set up again to act as formerly . and sir thomas fairfax , with their advice , sets out a remonstrance to give satisfaction to the army , which he concludes with a protestation , to adhere to , conduct , live and die with the army in the prosecution of some things there express'd ; as namely , to obtain a present provision for constant pay , stating of accounts , security for arrears , with an effectual and speedy course to raise monies , a period to be set to this parliament , provision for future parliaments , the certainty of their meeting , sitting , and ending , the freedom and equality of elections , and other things which he had the impudence and boldness to publish in print . . and now instead of the proposals , they intend to send the four bills to his majesty to sign , which done , they would treat with him . by these bills the army was to be establish'd , which was the english of that for the militia ; and by another of them they would make sure , that the countenance of the parliament and the acting of the army should never be separated ; which was the intent of that for power of adjourning . so as if at any time the just sense of indignation , of so many indignities and injuries offer'd by the army to all ranks of men , magistrates both supreme and subordinate , people of all conditions and degrees should stir them up to some endeavours of casting off this iron yoke ; their party in parliament , with their speaker mr. lenthal's help , should presently be ready to adjourn to the army , then damn and destroy all the world by colour of law and power of the sword ; so king and kingdom must be subject to a perpetual slavery by act of parliament . . the scots were laid aside in this address to his majesty , contrary to the treaty , and contrary to the covenant . by the treaty there ought to have been no application for peace but with their advice and consent ; here the scots did not only not advise nor consent , but protest against it . by the covenant all were bound to keep united , firm and close one to another , not to suffer themselves to be divided ; here these men do divide from the whole kingdom of scotland , make a rent and breach between the kingdoms in settling of the peace , the very end both of treaty and covenant . . and for that subterfuge , that it is against the privilege of parliament that any out of the houses should interpose , or have any thing to do with bills , it is a mere cavil , fig-leaves which cover not their nakedness ; for that would have been no more against privilege , than was the whole transaction of business in carrying on of the war , and managing other great concernments of parliament and kingdom , wherein the scots all along were admitted to participate in counsel and interest . . the king refusing to sign these bills , hammond , by sir thomas fairfax's single order , claps him up a prisoner , removes all his servants . it seems by this time they had forgot their remonstrance of the d of iune , where they say it is against their principles to imprison the king , and that there can be no peace without due consideration of his majesty's rights : but then was then , and now is now . it was then necessary for the good of their affairs to seem gracious , desirous of peace , and of restoring the king. now they appear in their own colours , their nature having no restraint ; nay , sir thomas fairfax's command is so absolute and sacred , as captain burley was hang'd for endeavouring to oppose it , there being at that time no other pretence for his majesty's imprisonment , but because sir thomas fairfax had commanded it : it is true , that upon his signification to the houses of what he had done , it was approv'd of and confirm'd . . all this while a rigorous hand is continu'd against the impeach'd lords who were under the black rod , the gentlemen of the house of commons , the lord mayor and aldermen in the tower , who had been kept prisoners so many months , upon a general impeachment , and no particular charge against them . it was often endeavour'd in the house to have pass'd the articles which were brought in against the lord willoughby , to be a leading case to the rest . where i cannot pass by , that i find he is charg'd with treason for levying war against the king , and this done by the same persons that imprison the king , and had hang'd burley for levying war for him : one may see they will find matter to hang on all hands . many debates were had on this business , and at last it was resolv'd to lay the articles aside . . the seven lords still press'd for their trial , the house of peers as often sent down to the house of commons to give them notice of it ; and no charge coming up , they set them at liberty . the common council likewise petition'd for the liberty of their members in the tower ; which the army took so heinously , as that and the laying aside of the charge against the lord willoughby , together with a vote which had pass'd for disbanding the supernumerary forces , produce a thundring remonstrance of december the th , casting in the parliaments teeth their delays and neglects : that the army had with patience waited four months upon them : that finding such obstructions in matters of supply , and such unworthy requital , they apprehended god upbraids their care to preserve a people given up to their own destruction : that they could , to speak amen , with the power and advantages god had put into their hands ( for so is their expression ) have put the army and other forces engag'd with it into such a posture as to have assur'd themselves of pay , and made their opposers have follow'd them with offers of satisfaction : that now all business seems to be wrapt up in one bare vote , that all supernumery forces should be disbanded , which vote they say they cannot imagine to be absolute and soveraign : they offer as their final advice , that l. more per mensem be added to the l. that is in all l. a month. that for the more sure and ready payment , the force● may be immediately assign'd to several counties , out of whose taxes they shall be paid , and the general have power to make those distributions . and many things more they offer , or rather order for the payment of the soldiers so peremptorily , as if it be not granted and pass'd effectually by the end of that present week , they say they can give no longer account of the army in a regular way ; but if they find not satisfaction in their judgments , must take some extraordinary ways of power . then they come and vent their malice against the city , of which they say they have been so tender ; witness their carriage in their late advance towards it , notwithstanding provocations , their innocent march through it , their patient waiting for their long due arrears . but now justice forces them to desire that ( the adjacent counties being undone , and the whole kingdom groaning under the oppressions of free quarter , whilst the city , which occasions all , is free of it ) there be no longer stop to the drawing thither of the army : that besides levying the arrear of the tax , it make reparation to the parts adjacent of l. damage : that if they be necessitated or call'd on by the county , they must on their behalf demand of the city to the full : they earnestly desire that the proceedings against the citizens and others impeach'd may be hasten'd , and that out of their fines and confiscations some part of reparation be made to the country . then they say they see not how the parliament can sit in safety in the army should never so little withdraw , when they find the common council , thro the parliament and army's lenity , take the boldness already , in the face of both , to intercede for the release and acquittal , or rather justification of those impeach'd persons , who are but fellow delinquents to most of that council : that the consideration of this , and the renew'd confidence of mr. gwin , and other members , partakers in the same things , who presume to sit in the house , makes them fear , that through lenity and moderation , so much of the same leven is left behind , as even the worst of the eleven members ( notwithstanding their double crimes ) may be again call'd for in , unless the house by some exclusive resolutions and proceedings do timely prevent the same . . indeed these are gracious princes , full of lenity and moderation , by their own sayings ; but they dwell by ill neighbours , that they must commend themselves , for no body else will do it . the parliament is beholden to them , they tell them their faults , bid them not trust so much to their votes , which are not absolute nor soveraign ; let them know what is their duty to do , and give a short day to perform it in , lest they should be idle , and a worse thing fall upon them . the country is beholden to them , who now know the worst of it ; l. to be monthly rais'd to ease them of taxes , and the excise according to promise : but then they have to help them , reparation from the city for former damages , and the persons appointed out of whose estates it must be paid by way of fine or confiscation , whether they prove guilty or no ; and they are not wanting in their expressions to the city of their tenderness of it , wherefore they give good instance , coming against it with banners display'd , horse and foot armed , cannon loaden , and only take possession of their works and of the tower , change their militia , take from them westminster and southwark , commit their mayor and principal aldermen , yet doing the city no hurt ( like the fryer in chaucer , who would have but of the capon the liver , and of a pig the head , yet nothing for him should be dead ) then marching through it so innocently , only putting that scorn upon them which none of their kings ever did when most provok'd ; that to have endur'd a plundering had been more honourable : then waited so patiently for their arrears , when they had a great part of the l. which the city had lent for their disbanding , had taken that money , yet would not disband , and destroy'd trade by their late rebellion ; and now having so long lain upon free quarter all about , that they had made provisions excessive dear , and almost famish'd the city , to express a desire to come and quarter in it , which sure was for their good , only justice made them move they should pay l. for reparation to the country ; that their best members , greatest aldermen , and others , and their lord mayor , whom they had caus'd to be unjustly committed , should be as unjustly fin'd and ruin'd ; and then charge so honourable a court as the common council with treason . . then for the eleven members , how much they are beholden to them is beyond expression , all their remonstrances , as well as this make it appear ; here they desir'd only they might have a writ of ease from attending the parliament any more , out of their abounding care for the freedom of parliaments , and the free sitting and voting of the members . . and they will be sure to have all put in execution , the refractory house of commons shall make them wait no longer . a regiment or two of foot march and quarter in white-hall , as many horse in the mews ( they having provided another lodging for the king , therefore making bold with his majesty's house ) and then they think they can take a course both with the parliament and city ; which in truth they do full handsomly . . for presently they make them resume the consideration of the charge against the lord willoughby , and pass it , and likewise against the rest of those lords , and sir iohn maynard ; carry it up to the house of lords , and demand the recommitting of those lords , and putting them to their answer . sir arthur haslerig , the now worthy governor of newcastle , staid in town from going to take possession of his command , only to do this feat ; so to make good what he before said , when they could not upon a long debate , and the laying out of all their strength and power , carry the impeachment , that it was no matter , the army should impeach them all . . a little after the lord grey of groby sets on foot the motion concerning those of the eleven members who were beyond sea , having had passes to travel for six months , and most of them written or sent to the speaker and other gentlemen of the house , to desire the favor of a longer continuance , in regard it was winter , and ill crossing the seas ; but if it would not be granted , upon signification of their pleasure , they would immediately return . they had likewise ( upon occasion of the order of summons ) written of the uncertain report they had heard of such a thing long after it was done , that if notice had been given them of it , they had not fail'd to appear , and would if they might be certify'd that the house continu'd in the same resolution ; so confident were they of their innocency , tho they knew the malice of their enemies , and their violence and force upon the parliament : but proceedings since have made it clear what justice they should have found . for notwithstanding all this , those horse and foot were so powerful an argument against them , backing the remonstrance for the exclusive resolution , that it was carry'd to expel them the house , and impeachments order'd to be brought in . a parallel proceeding to this was never known in parliament , where it has not been refus'd to any , especially who were beyond sea , or in truth any where absent upon leave , to give a further day upon non-appearance the first ; and in our case there was a great deal more reason , considering the season of the year , the occasion of our departure ( then look'd upon as a merit ) our readiness to obey upon the first summons . all this writes but their injustice and our oppression in the more capital letters . . i am now coming to the catastrophe of this tragedy , the last and most horrid act. the parliament forc'd to do that which is unnatural against the being of parliament , the end for which it is call'd , which has rationem formae in all moral things ; that is , to declare they will make no further address or application to the king , receive none from him , nor suffer it in others ; which is , as if a limb should cut it self off from the body , and thereby deprive it self of life and nourishment : for the communication between the king and parliament is that which gives it being and life . it is call'd by the king , ad colloquium habendum & tractatum cum proceribus regni , &c. they are the words of the writ which brings them together . now there is colloquium & tractatus cut off , which was the first unhappy breach between his majesty and this parliament , and which the parliament found themselves grieved at , that he had withdrawn himself from them , so as they could not repair unto him for advice and counsel . and in all our declarations and messages in the beginning , until these people ( who it seems had projected from the first what they have now acted ) got to the helm , and steer'd us into this violent tempestuous course , that we neither see our pole , nor use our compass ; we still desir'd , press'd , endeavour'd his majesty's return to his parliament : but they say he shall not return , the regal power they have assum'd , they will keep it and exercise it . they will no longer be fellow subjects with the rest of the kingdom , but lords and masters . those whom they represent , and whose substitutes they are , they will put under their foot ; as if an ambassadour should renounce the prince that sent him , and say he will make his own dignity real and original , which is but representative and deriv'd , take away the substance and yet the shadow remain : certainly this is exceedingly against nature , and will turn all upside down ; yet this disorder must be made perpetual , put out of all possibility of recovery , like death , from which there can be no returning . for admit the king would grant all that they have desir'd or can desire , give them all imaginable security for it , it is impossible it should be made known , and so cannot be receiv'd , and by consequence our peace never be settled ; which is casting the kingdom into a mortal disease , putting it past cure , past hope . . to shew by what magick this spirit is rais'd , you have his fellow devil immediately call'd up by a council of war ; a declaration comes from his excellency and the general council of the army from windsor , bearing date the th of ianuary , presented to the house the th by sir hardress waller , wherein they give their approbation of the votes , say the parliament in that address to the king , with the four bills , could go no lower without denying that which god , in the issue of war , had born such testimony unto : that they account that great business of a settlement to the kingdom , and security to the publick interest thereof , by and with the king's concurrence , to be brought to so clear a trial , as that upon the king's denyal , they can see no further hopes of settlement and security that way ; therefore upon the consideration of that denyal , added to so many other such votes as had been pass'd that no further application should be made to him , &c. they do freely and unanimously declare for themselves and the army , that they are resolv'd firmly to adhere with and stand by the parliament in the things so voted , and in what shall be further necessary for the prosecution thereof , and for the settling and securing the parliament and kingdom without the king , and against the king , or any other that shall hereafter partake with him . . and in this i believe them , being ( i am confident ) the only truth has proceeded from them in all their declarations or proposals , with relation to his majesty . i would remember them , if 't were to any purpose , of some of their former professions , that it was against their principles to imprison the king , that no peace could be lasting without him , and the like . but they can blow hot and cold , as the fellow in the fable , to make all the satyrs , and almost the devil himself abhor them , as afraid to be outdone by them in his own art of lying and dissembling . therefore i shall not trouble my self any more with blazoning their coat armour , which is nothing but false colours and base metals : their impostures , contradictions , falshoods , hypocrisies , and damnable delusions being beyond all heraldry , not to be trick'd within the compass of any scutcheon . . i will only add one scene more of this last act , represented in the house of commons . i do not hear that the house of peers have had any part in it . but the commons , like the consistory of rome , have spent much time since in hunting out the premises , to infer the conclusion formerly agreed upon , a declaration , or rather rhetorical invective , to perswade mens affections , not convince their judgments of those enormities in the king , which should justly merit , and so justifie the resolutions taken concerning him . the particulars are such , as truly i cannot name withont horror , auferat oblivio si potest , si non , silentium tegat : i would forget that ever such a thing was done by the parliament . i will only say this of that faction ( for i look upon it merely as their act and their army's , who have forc'd the house to it , as they have to all the rest since the breaking out of their rebellion , the owning them , paying them , voting their continuance , expelling , committing , impeaching their own members , the lord mayor and aldermen of the city of london , doing what not for the encreasing their own shame , and setting up their diana , that idol of confusion ) that if they themselves believe that to be true which they there relate , they are excellent good patriots , and notable justices , to see and not see faults for their own advantage . for if the king would have agreed to such conditions as they propos'd to him , and such a settlement as had been in order to their ends , to have continu'd an omnipotency in them and ruin'd the rest of the kingdom , these things had been all dispens'd with , sacrific'd to their greatness , and the advancement of their dagon ; then nothing but hosannah's in their mouths , no peace could be lasting without due consideration of his rights ; far was it from them to have a thought of imprisoning him ; he had been their good king , and they his and our gracious masters . but now that his majesty had discover'd their aims , and would not contribute to them , he is an anathema , guilty of such and so many crimes , as not to be found scarce in any one person ; and now these men of belial can say he shall not reign over us . for the things themselves , i doubt not but there are those who knowing the arcana imperii , will give satisfaction to the world by a faithful and clear manifestation of his majesty's actions and counsels relating to them . i who stand below and at distance , as i cannot have the knowledg of such high things , so will not presume to meddle with them , only upon the general say , that methinks in reason those things cannot be ; for to destroy the protestants in france , whose preservation must needs be as a contentment to the soul of a protestant king , so a strength and advantage to his interest , were strange state-policy . and as for the rebellion of ireland , to cut off so great a limb from himself , pluck off one of the three flowers of his crown , is , methinks , to be felo de se. to speak nothing of that concerning king iames , an act so monstrous as not to be suspected in a heathen , not to be found in heathenish rome , much less in a christian ; truly i cannot , as a rational man , bring my judgment to admit of a belief of those things ; and then certainly charity obliges to hope better , believe better of any man , much more of a king , and of our own king , whom solomon tells us we are not to curse , no , not in thought , much less , which iob blames , tell him , and tell the world he is wicked and ungodly , least of all when there is not a clear an undeniable proof . and even their expressions in their declaration are not positive , as if the subject matter were only allegatum , not at all probatum , and rather set forth ad captandum populum , to gain , if possible , an approbation of the vulgar of what they had done , than that they conceiv'd it would find credit with rational and judicious men , or that themselves thought it to be a truth . for the other things , as knighthood , ship-money , &c. any thing by which the subject has been oppress'd and his purse pick'd , they of all men should not find fault , whose little finger has been heavier than the loins of monarchy . what was all that in comparison of free quarter , excise , and even the l. a month , which they say they must have for the maintenance of the army ? those were but flea-bitings to these . at the worst one may say , we were then chastis'd with whips , but now with scorpions . . and so i hope i have made good what i undertook in the beginning , having made it appear , that england is become , by the actings of these men , that monster whose shape is perverted , the head standing where the feet , and the feet where the head should be , mean men mounted aloft , and all that is or should be great , lacqueying it after them : the authority of the magistrate suppress'd , and the will of particular persons made the law of the kingdom , justice obstructed , and violence in the room of it ; king and parliament trodden under foot , and an army insulting over the persons and estates of the subject ; so as we may take up the psalmist's complaint , that the very foundations are destroy'd , and what then can the righteous do ? . i will conclude all with this short epiphonema : if such a complicated treason as this , which they have design'd and carry'd on all along , consisting of so many several parts , by betraying all the trusts men can be capable of , as subjects to their king , servants to their masters , an army to them that rais'd and paid them , english men to their country , and which is more , christians to their god , bound up yet in a more particular obligation by covenant , vows , and protestations ; all these relations thrown aside , nothing of duty , conscience , or morality to stand in the way , that could either be remov'd or overcome , eluded or broken through . if , i say , a treason rais'd up to this height , by so many several steps of hypocrisie , treachery , perfidiousness , injustice , violence , and cruelty , can be made good , and the actors prosper , blessing themselves in their success , sacrificing to their nets and gins , by which they have snar'd and destroy'd all their opposers : and on the other side , if no blessing must be on the good endeavours of those who only had propos'd to themselves bonum publicum , had nothing in particular in their eye , sought nothing for themselves , but to find their safety compris'd and contain'd in the happiness and welfare of the king , parliament , and kingdom ; like the honest passengers that seek their preservation in saving the ship they sail in ( as i can speak it for a truth , take the god of heaven for witness , and defie all the men on earth to disprove it ) that i for my part ( and i hope the same of those other persons of honour , members of both houses , with whom i have cooperated , and now partake in their sufferings ) never had other end : let the earl of manchester speak , who has been present at and privy to all our consultations , and is now join'd and engag'd with the army , and those other men who carry on this pernicious design , where , besides the universal desolation of the whole kingdom , there is a particularity against me for my ruin and destruction , and therefore i doubt not but he will say all he knows : let mr. reynolds of the house of commons , who went a long time and a great way with us , but is since fallen off and become throughly theirs ; the same i say of colonel harvy , who was long enough in our ears , and in our bosoms , to bottom all our thoughts , know all our desires . if these or any other , even that malicious and treacherous lord savil , can say , that at any time , upon any occasion , i propos'd any thing that look'd towards a self end , the driving of any particular interest , setting up of any party , but merely to prevent these fearful precipices into which the kingdom is fallen , by the art and practices of these enemies of peace , and to attain such a settlement , as all honest moderate men might have found in it both security and satisfaction : if they can , let them speak ; and if they prove one tittle , i will put my mouth in the dust , i will bear my punishment , and expect mercy neither from god nor man ; nay , even in relation to the army , and those persons who have a long time sought my ruin , if all i desir'd and aim'd at in disbanding that schismatical factious soldiery , in carrying on the business of the house in opposition to that party , and even in this last great treason of levying war against king , parliament , and kingdom ( as they stile it ) which was only to do my best endeavour to defend them and my self from a rebellious army that was marching up for all our destructions , contrary to the orders of both houses , against whom it first rebell'd instead of an obedient disbanding ; then cudgel'd them to own it for their army , forc'd the city into a trouble , and shew of opposition to what it had made the parliament do ; then took that occasion to march both against it and the parliament . if notwithstanding all this , in what i did , i had any thought of personal revenge , or to do the least hurt to any particular person in case we had prevail'd , but only to return into the way whence we were put out , of a free quiet parliamentary proceeding , to accomplish the great work of settling the peace both of church and state , let me perish ; and god , who is the searcher of hearts , knows i now speak nothing but truth . . well then , i say , if all our endeavours must , like an untimely birth , come to nothing , our hope be cut off , our persons destroy'd , our integrity , innocency , fidelity , question'd and decry'd , our good names traduc'd , torn in sunder , our memories made to stink to all posterity , by the false calumnies of our malicious enemies , and their power in suppressing truth , and which is worst ( for all this is but particular ) the general , the publick , the common wealth , once in so fair a way of recovery , at the eve of a happy day , to be rid of armies , enjoy a peace , hear no more of the instruments of war , but see a blessed composure of all unhappy differences , reap the fruits of justice and mercy ; and upon a sudden to find all this but as the hungry man's dream , who is the more empty when he awakes , so instead of this solid happiness to embrace a cloud , have nothing but the empty promises of a false deceitful army , and be cast back into a greater gulf of misery and confusion than all the enemies in the world could have brought it into , and the latter end to be far worse than the beginning : . if this be our portion , were i a heathen , i should say with brutus when he meant to kill himself , seeing the assertors of publick liberty overcome and ruin'd , and the invaders prevail and conquer , o misera virtus ! eras igitur fabula , seu verba ; ego te ut rem colebam & exercebam , tu autem fortunae serviebas . but being a christian , i am taught another lesson , to know that nothing comes by chance . god , who dos all things in number , weight , and measure , orders and disposes all as may most make for his own honour , and the good of his church and children , to which even the wickedness of the wicked , and these disorders will conduce , tho the wit of man cannot fathom it : therefore i will lay my hand upon my mouth , and not once whisper , because the lord has done it , only take up st. paul's admiration , and with it end , crying out , o altitudo ! o the depth of the riches both of the wisdom and knowledg of god! how unsearchable are his iudgments , and his ways past finding out ! finis . an alphabetical table . a. accommodation with the king propos'd by the lords , and laid aside by the malignant party of the commons . p. , . agitators set up by the army , their actions . , . receive some check from cromwel . , . write a letter against the parliament . , . the insolence of those that brought it . . their extravagant proposals to sir tho. fairfax in relation to the parliament , &c. . allen , treasurer of the army . . concern'd in conveying away a great sum of money design'd for the army . . army forsaken of divers brave officers when it left its obedience to the parliament . . countenanc'd great disorders in churches , &c . petitions from city and country to have it disbanded . . recruits daily , tho it had no enemy to oppose . . hinders the relief of ireland . , , , . voted to be disbanded but what was necessary for garisons , &c. . some of its officers mutiny . . petition for an indemnity before disbanding , &c. , . incens'd by the officers against the parliament . , . are rather incourag'd than discountenanc'd by the officers that were sent to appease them . . their representation to the parliament . , . address their general against disbanding . , . enter into an ingagement not to disband . . their representation , in which they censure the parliament's actions with contempt . , , . intermeddle with the business of the kingdom contrary to their protestations . . refuse to hear the parliament's votes , tho in their own favour , aud march towards the city . . their high pretences for the good of the people , &c. , , . make the parliament do what they please . . require a period to be put to it . . their insolent demands of it . , , , . their specious pretences for the king. . vpbraid the parliament for doing what they forc'd 'em to . . their pretended care for the privileges of parliament . ibid. manage all affairs of the kingdom . , &c. are compos'd of mean officers , &c. . their extravagant proposals to the parliament in relation to church and state. — . their remonstrance , decemb. . . against the parliament , — . which is descanted on . — . make the parliament act against it self ; set up for lords and masters , &c. , . army party , their actions and aims . , . how they got into power . . their vsage of the king , queen , &c. . are for the covenant , &c. . misrepresent affairs to the scots . . begin to shew themselves after marston-moor fight . . oppose the lords for medling with a commoner . , . against putting an end to the war. , . govern by the sword , &c. . oppos'd by an honest party in the house . ibid. frustrated in their expectation of some they had got chosen . , . indeavour to set the two kingdoms against each other , . and the country against the scots . . amuse the house with strange things against them . . break the law of nations with relation to the scots commissioners . , , . ioin some scots commissioners to the english in the power of the militia , but with an ill design , . which they would afterwards have alter'd . . would have the army march into the north against the scots without the parliament's order . . hinder the scots going out of england , tho they pretended to be for it . . quarrel with 'em about the person of the king. , . their designs frustrated by the scots prudence . . seize upon the king's person . . their letter to the lord mayor and aldermen of london concerning their demands of the parliament . . their large share in the treasure of the kingdom . — . their accounts extravagant . , . their remonstrance concerning the members that sat during the speaker's absence . . draw up a party of horse to back it . ibid. turn out officers that were against them , &c. . the difficulties they had to encounter . , . cajole the king , &c. . the means they us'd to get rid of him . , . procure his going to the isle of wight . . send him four bills to sign . . their declaration from windsor concerning no further address to him , . descanted on . , &c. ashurst mr. sent with a message from the parliament to the army . . b. blaxton imploy'd by the army party to give account what sums the scots had rais'd of the country . . bristol lost ; its governour condemn'd , but pardon'd . . burley captain hang'd by fairfax's order . . c. charles king of england , his forces ruffled at dennington . . his safety not regarded by the army party . . is deliver'd up to the english by the scots . . his person seiz'd by the army . . is made a prisoner in the isle of wight on refusing the four bills . . clotworthy sir john , one of the committee at derby-house . . commissioners of scotland endeavour to undeceive the english parliament in relation to their army . . move for pay for their soldiers . , . slighted by the army party . . their packets and letters intercepted and broke open . . give in an account of arrears due to their army . . committee at derby-house to see the parliaments votes concerning ireland executed . . labour to dispose the army to go thither . . — of haberdashers-hall , goldsmiths-hall , &c. misus'd by the army to the ruin of many . . — of the two kingdoms . . is out of esteem , tho all affairs of moment had been transacted by them , &c. , . committee of reformation . . corbet mr. m●●es , iustice at the committee of examinations . . covenant between the two kingdoms , the ends of it not answer'd by sending away the scots , without disbanding the english army . . crawford major general , his service at marstonmoor . , . cromwel , his cowardice at marstonmoor , basinghouse , and keinton . . his rancor against the scots , and hatred of the nobility . . his soldiers mutiny , that he may escape the self-denying ordinance . . is dispens'd with for two or three months , but after keeps in for good and all , without an order of the house . . keeps from the army to give 'em opportunity of doing their mischief . . his policy and hypocrisy in relation to the disorders of the army . . sent down to 'em , but to no purpose . ibid. leaves the parliament , and joins with the army . . orders the king to be seiz'd , but denies it , . and the magazine at oxford to be secur'd . . appoints a general rendevouz near cambridg , and justifies what the agitators had done . . gets petitions of his own drawing sign'd by several counties . . his pension . . writes a letter to whalley to be shewn the king. . d. dacres , lord , one of the committee at derby-house . . delaware , lord , one of the commissioners for disbanding the army . . desborough , major , with two regiments , falls upon some of sir robert pye's men at deptford , and barbarously murders them . . e. elections vacant , by an artifice voted to be filled up . . vnfairly made by the malignant party . . eleven members incur the hatred of the army for doing their duty . . their care and industry with relation to ireland , was the foundation of the good successes in that kingdom . . have a general charge exhibited against them by the army , who require they should be suspended sitting in the house . , . remarks on their case . , . withdraw from the house to prevent inconveniences . . no particular charge against them ; the ill practices of their enemies to ruin them . , . accus'd by the army of holding correspondence with the king , &c. which is descanted on . , , &c. largely vindicated ; , , &c. , . the army's declaration against them , , . which is largely descanted on . , &c. are vindicated from the disorders that happened at westminster from the rabble , &c. , . order'd by the house to make good their places . . forsaken by the city , who had espous'd their cause . . their unparallel'd case . . essex , earl , suspected and laid aside by the army party . , , , . is order'd to attend his majesty's motions . , . his ill success in the west . , . his ruin design'd by haslerig . . relief refus'd to be sent him . . his army willingly disband . , . f. fairfax , sir thomas , commands at marstonmoor under his father . . is made general . . his commission ran only in the name of the parliament . ibid. is discharg'd of subordination to the committee of both kingdoms . . design'd to be sent with his army to protect the northern counties . . receives orders about disbanding . . causes his regiment to march another way . . innocent as to seizing the king. . his remonstrance concerning the king's being voted to richmond . . takes up his quarters at uxbridg . . marches to london in state , and puts in the old speakers , . by whom he is complemented and addressed . . marches through the city in triumph . . voted by both houses general of all the forces , and constable of the tower. . his remonstrance for satisfaction of the army . . his order concerning the king , &c. at the isle of wight . . fleetwood , colonel , concern'd in seizing the king. . his place and pension . . foulks , alderman of london , promotes the interest of the army . , . g. gibbs , alderman of london , promotes the interest of the army , , . sent with a message to the army . . interrupted by fairfax in a speech he was making to him . . grey of grooby , lord , is gratified by the army . . against the eleven members . . gurden , mr. against the parliament's having a period put to it . . h. hammond , colonel , his unreasonable demands on being design'd for ireland . . haslerig , sir arthur , his ill success in the west . . his rashness , &c. . his excuse for the king 's not being attack'd at dennington , cowardice , vain-glory , &c. , . is concern'd in seizing the king. , . his pension . . his great pay. . stays in town , tho governour of newcastle , to do a feat for the army . . holland , mr. cornelius , his gratuity from the army party . . holles , mr. denzil , accus'd by savil of corresponding with the lord digby . , . is prosecuted with great violence by the sollicitor st. john. . acquitted by the house . . concern'd in the uxbridg-treaty . . his generosity as to the publick money . . i. jackson , lieutenant colonel , submits to the parliament in order to disband . . independents ; army , &c. mostly compos'd of them . . joyce , cornet , seizes the king at holmby , with the commissioners that attended him . . order'd to seize the magazine at oxford . . ireland not to be reliev'd while the army was kept up here . . relief voted them by the parliament . . about willing to go , the rest hinder it all they can . . such as were willing to relieve it , voted deserters by the army ; . who require they should be discharg'd , tho order'd thither by the parliament . . ireton keeps from the army to give them opportunity to do their mischief . . lenthal , speaker of the commons , his good places , &c. . forsakes the house , and joins with the army . , . is put into his place again by fairfax . . lesley , his service at marstonmoor . . lewis , sir william , governour of portsmouth , his fair accounts , &c. , , . lilburn against the eleven members . . london for the parliament , and against the army , &c. . resent the parliament's altering their militia by the influence of the army . , &c. alarm'd by the army . . lords , several forsake the house , and join with the army . , . the house chuse a new speaker on the other's leaving ' em . . outdo the commons in honour of sir tho. fairfax . . their vote concerning what was acted by the houses when forsaken by their speakers , disagreed to by the commons . . seven of 'em impeach'd of high treason by the army . , . are set at liberty . . m. manchester , earl , his charge against cromwel . , , . laid aside by the army . . is speaker of the house of lords , whom he forsakes , and joins the army . , . is put into his place again by sir tho. fairfax . . marshal , chaplain to skippon , too instrumental in the evils of this kingdom . , . preaches before the parliament , and extols sir tho. fairfax's expedition , &c. . marstonmoor fight had not been obtain'd but for the scots . . massey , captain , stops an express sending to scotland ; committed by the lords for it , but set at liberty . , . massey , major general , his brigade cashier'd , tho it had done the greatest service in the west . . is one of the committee at derby-house . . is made lieutenant general of the horse in ireland . . forsaken by the city . . maynard , sir john , one of the eleven members , tho nothing against him . . expel'd the house , and sent to the tower. . members of parliament , what their design in taking up arms. . are misrepresented by the army . . some of 'em discover the designs of the army against the scots . . mildmay , sir henry , has letters sent him against the scots . . model of the army , &c. . n. newcastle ; propositions sent to the king there , gave occasion to the army party to review 'em all , &c. . nicklis , mr. the lawyer , concern'd in the committee of sequestrations . . noel , mr. sent with a message from the parliament to the army . . north of england suffers by the scots army , thro the practice of the army party here . , . nye , mr. preaches a thanksgiving-sermon before the commons on sir tho. fairfax's coming to london . . o. oxford ; magazine there kept by the army from the parliament . . p. palmer , mr. herbert , influenc'd by marshal . . parliament vote the disbanding of the army . . send for some officers that had promoted the petition against it . . their clemency to 'em ill requited . . settle the arrears of the army . . make sir tho. fairfax general of all their forces . ibid. order the officers down to the army , but to their own ruin. . too favourable to the army . . appoint a rendevouz for the foot in order to disband . . about to take a severe course with the army party , but prevented by skippon . . forc'd to comply with the army . , , . resolve to defend themselves and the city against the army . , . vote the king to richmond . , . made a mere cypher by the army . , &c. indeavour to prevent extremities . . their case stated as to the force put upon 'em , and being deserted by their speaker . — . appoint a committee to inquire concerning that force . . disagree with the lords about what the houses had done when forsaken by their speakers . . afterwards forc'd to comply . . constrain'd to act against it self by refusing to make any further address to the king , &c. . pelham , mr. henry , chose speaker of the commons in the room of lenthal . . pennington , alderman of london , favour'd and rewarded by the army party . , . petitions from an army to their superiors , when requir'd to do service , always deem'd a mutiny . . pointz , colonel , his care and vigilance to prevent the mischiefs design'd by the army party in the north , for which he was put out of command . . taken by violence out of his house by the agitators . ibid. inhumanly treated by ' em . . pride , colonel , his equivocation at the bar of the house about petitioning against disbanding . . prideaux , mr. of the army party , made himself postmaster of england . . r. rabble threaten the house of commons , to cause 'em to pass several votes . rainsborough colonel , his regiment refuses to march for jersey , which he connives at ; yet afterwards made vice-admiral . , . riot in yorkshire . . rushworth , secretary to sir tho. fairfax , his acting against the eleven members . . his letter to the speaker against appearing at the house . . signs proposals to the parliament concerning a new form of government . . s. saint john , mr. oliver , his character ; his underhand letter to the committee of hertfordshire , &c. . his violent and bloody nature . . breaks his protestation as to cromwel's being dispens'd with from the self-denying ordinance . . his places of profit , &c. . salloway , mr. one of the committee at derby-house . . savil , lord , an impostor . . writes letters to several great men against the parliament . . say , lord , rewarded by the army party . . scawen , mr. brings a sad account of the temper of the army . . his pension . . concern'd in conveying away a great sum order'd for the army . . scots propos'd to be call'd in , but obstructed by the malignants ; their character . , . after call'd in . . made use of only for a pinch . . impos'd on by the malignants . . discover the good intentions of the honest party in england . , . are represented as having a design to make good their footing here . . their army ill requited . , . are vindicated as to raising of money in the north on free quarter . . their pay kept back . . their ministers of state suspected by the army party here , to hold correspondences with the queen , &c. , . their papers in the house of commons here , not answer'd . . their piety , moderation , &c. . had no ground to disband their army , unless the english did . , . have a great sum voted 'em , tho with great opposition . . deliver up the king to the english. . whereby they gain reputation . . are laid aside in the army's address to the king at the isle of wight . . self-denying ordinance . . sequestrations , &c. . skippon , major general , made commander in chief in ireland . . instrumental in betraying the parliament , &c. . excuses the agitators . . prevents the parliament's proceeding against the army party , and how . , . refuses to obey the parliament's order , but on certain conditions . , . stapleton , sir philip , laid aside by the army . . his moderate pay , &c. . swifen , mr. imploy'd by the parliament to the army . . t. tichburn , a linen-draper , made constable of the tower by sir tho. fairfax . . v. vane , sir henry , one of the parliament's commissioners with the army . . uxbridg , treaty there . . w. waller , sir william , order'd from oxford into the west . . laid aside by the army . . is one of the committee at derby-house . . warmworth , mr. his insolent and ridiculous speech concerning the adjutators . . warwick , earl , one of the committee at derby-house . . one of the commissioners for disbanding the army . . wentworth , sir peter , gets an estate for half the value . . west , colonel , discharg'd by fairfax from being constable of the tower. . weston , earl of portland's son , his reward from the army . . white , colonel , his places in the army , &c. . wild , serjeant , chairman in the committee of sequestrations . . gets an ordinance for the lady thornborough's money ; is a great enemy to the eleven members . . willoughby of parham , lord , chose speaker by the lords . . charg'd with treason by the army . . wollaston , sir john , conveys a great sum away , which was order'd for the army . . wright , robert , made use of to give intelligence of the scots , &c. . finis . lex parliamentaria ; or , a treatise of the law and custom of the parliaments of england , by g. p. esq with an appendix of a case in parliament between sir francis goodwin and sir iohn fortescue , for the knights place for the county of bucks . iac. . reflections upon what the world commonly calls good luck and ill luck , with regard to lotteries , and of the good use which may be made of them . written in french by monsieur le clerc , and done into english. printed for tim. goodwi● ▪ densell hollis esquire, his worthy and learned speech in parliament on thnrfeday [sic] the thirtieth of december vpon the reading of the petition and protestation of the twelve bishoppes, for which they were accused of high treason, and committed to the tower : wherein is discovered the danger of this protestation, that it is both against the king and his royall prerogatives, the priviledges of parliaments, the liberties of the subject, and the subvertion of the fundamental lawes of this kingdome. holles, denzil holles, baron, - . this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (wing h ). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing h estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) densell hollis esquire, his worthy and learned speech in parliament on thnrfeday [sic] the thirtieth of december vpon the reading of the petition and protestation of the twelve bishoppes, for which they were accused of high treason, and committed to the tower : wherein is discovered the danger of this protestation, that it is both against the king and his royall prerogatives, the priviledges of parliaments, the liberties of the subject, and the subvertion of the fundamental lawes of this kingdome. holles, denzil holles, baron, - . [ ], p. printed for iohn thomas and thomas bankes, london : . reproduction of original in union theological seminary library, new york. eng bishops -- england. a r (wing h ). civilwar no densell hollis esquire, his worthy and learned speech in parliament, on thnrfeday [sic] the thirtieth of december . vpon the reading of holles, denzil holles, baron c the rate of defects per , words puts this text in the c category of texts with between and defects per , words. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - john latta sampled and proofread - john latta text and markup reviewed and edited - pfs batch review (qc) and xml conversion densell hollis esquire , his worthy and learned speech in parliament , on thurfeday the thirtieth of december . vpon the reading of the petition and protestation of the twelve bishoppes . for which they were accused of high treason , and committed to the tower . wherein is discovered the danger of this protestation , that it is both against the king and his royall prerogatives , the priviledges of parliaments , the liberties of the subject , and the subvertion of the fundamtall lawes of this kingdome . london , printed for iohn thomas , and thomas ●ankes . . a speech made by master hollis in parliament , upon the reading of the petition and protestation of the . bishops since committed to the tower on thurseday the th . of december . . master speaker , this petition and protestation of the biships presented to his majestie , is the cheife subiect of our present debate , i desire under the favour of this honorable house , to speake somewhat concerning the same , and in speaking thereof i shall observe the persons that deluded it , the subiect and matter conteined in the same ; the dangerous effects that are likely to follow thereupon if it bee not suddently prevented ; and lastly their crime in making and deluding thereof . first master speaker , concerning the persons actors of this tragedy , bishops of a holy function , the dedomination of their stile prescribes them in scripture to bee men of god , fathers of the church , starres , ( not blazing commets or meteors ( as it is to apparant , many of them have bne ; ) lights , the salt of the earth . ( that should seasons the hearts lives and conversation of the people of god , with piety and godlines , for these men . master speaker , the hinderers of the peace and quiet of the kingdome , is extreame vilenesse , for bishops governours ( aswell as teachers of the people of god ) to instruct , admonish , rebuke , reprove , and correct evill doers in the clergy , for these i say not onely to convey , and winke at superstition , innovations , and ceremonies introduced into the church , by the inferiour and scandalous ministers , but to amnimate and incourage them in their evill practises , nay not contented therewith , but themselves to innovate religion , corrupt the true and orthodox doctrine of the church , to attempt , to intice and draw the minds of peeres , nobles and great officers of state ; nay his most sacred majesty , to favour their indeavours and designes , shew them plainely to be the instruments of the devill , striving to increase and build his kingdome , to the decay of the propagation of the gospell ; and the kingdome of christ , to whom they would seeme to be devoted , these corrupt officers and ministers master speaker , both in church and state , haue , produced these corrupt and dangerous times , this it is that makes religion seeme vile , and hatefull to most men , this it is master speaker that staines their function , of it selfe uncorrupted ( sacred ) this changes their names of being called men of god , to be men serving onely the devill , if fathers and nurses of the church , prove the betrayers of the church , woe to that flocke of whom christ is the sheapheard ; if starres fall to the earth , wee notifie thereby great change and alterations in a state to insue ; if the lights of the church be put out , or put out themselves , or be hid and appeare not , how is it likely the children of god should , see to walke in the right way , if salt be corrupt and putrified and thereby looseth its savour , what profitteth it for the use of man , you know the phrase well enough . then master speaker to conclude these persons ( that have had all these titles ) that have ( as we have proved by woefull experience , shamed themselves , complyable to all the defects that are thus dishonourable to their denominations ) are as i under fav●ur conceive altogether unfit , and unworthy to beare them any longer . now master speaker i come in the second place to the subiect of their petition and protestation , which is of most dangerous consequence , being altogether treacherous , both against his most sacred majestie his royall queene and princly progeny , his rightfull throane seated ouer all his maiesties kingdomes , against the fun●amentall lawes of this kingdome and all other statuts and lawes made for the good gouernment therof by the wisdome of his maiestie and his great and wise councell of state , against the priuiledges of parliament and the free proeeedings therof , and against all his maiesties loyall subiects that are true and good protestants . thirdly the dangerous effects of this their malitious and traiterous actions are easie to be guessed at . by this meanes the division betweene the two houses may be increased , the lords most of them favouring rheir cause , thereby keeping them from comming to triall vpon our accusations of them for their haynous crimes commited by them . if ihey proceed in their intentions , it may prove the maine cause of setting an irreconcileable division betwene the king and his leig people who desire ther grevance may be redrest and all malefactors delinquents receiue condigne punishment for their misdeeds both in church and state , and especially the bishops accused whom they conceaue to haue bine the principell incendaries betwene scotland and us , great favorers of the dangerous rebellion in ireland , cheife actors in innovating our religion , & the greatest oppressors of parliamentarie proseedings . by this attempt the romish faction will be much imbouldened to put in practise their wicked plotts priuatly now in agitation amongst them . it may cause great uproares and tumults in the city , and about westminster , of the citizens who are altogether set against bishops . . it will be a great incouragement to forraigne princes that are disaffected , and private enemies to this state , ( seeing our devisions betweene our selves ) to put in practise some dangerous designe against the whole kingdome . . lastly , it will disable us for continuall supply of ayde into ireland to app●●se the rebellion there . . i come now ( master speaker ) to the fourth and last thing i intimate to you concerning this petition , and that is what fault they have committed , in-framing and delivering the same , my oppinion is master speaker , that they are guilty of high treason ; i will give you a few reasons and grounds of this my opinion , and then humbly leane it to the further consideration of this honourable house . to protect against the proseedings of a free parliament is adiudged high treason in the tenth year of edw : the second , by the parliament holden then at westminster where the bishop of yorke the duke of suffolke , and others of that conspiracy , protesting against the proceedings of the parliament for their appointing and placeing the commicinors about the king for the government of the kingdome for one yeare , were adiudged guilty of high treason and some of them executed , some banished and the rest fleed . . to endeavour to subvert the fundamentall lawes of the kingdome , was adiudged high treason in the earle of straffords case , my example of strafford take this present parliament , and to protest or incense the king by petition , or otherwise against the proceedings of parliament , ( which is a constitution of government , found to be the anninentest of this nation , and the onely meanes to preserve and defend the fundamentall lawes of this kingdome ; the powerfull councell of indicacature , to punish all delinquents in the government thereof , and the breakers , and infringers of the laws of this land , ) is to subvert the fundamentall lawes . . to endeauour to bring into this state an arbitrary way of gouernment was likewise by this parliament adiudged high treason in the earle of straffords case , to protest against parliamentary proseedings , is to change that forme of gouernment and to introduce an arbitrary and tiranicall forme of gouernment , for these reasons i conceive master speaker these bishop that have signed this petition and protestation are guiltie of high treason . and my humble motion , is wee may send up to the lords to accuse them perticularly and with all convenient speed make ready a charge or impeachment of high treason against them . finis . mr. hollis his speech to the lords in parliament concerning peace. with a motion for some course to be taken for repairing of trade, that so poore tradesmen may be preserved to hold out during these troublesome times. whereunto is added a relation of a vision of blood in the skie, that appeared about redding on tuesday night last. holles, denzil holles, baron, - . this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (thomason e _ ). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing h thomason e _ estc r this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (thomason tracts ; :e [ ]) mr. hollis his speech to the lords in parliament concerning peace. with a motion for some course to be taken for repairing of trade, that so poore tradesmen may be preserved to hold out during these troublesome times. whereunto is added a relation of a vision of blood in the skie, that appeared about redding on tuesday night last. holles, denzil holles, baron, - . [ ], p. printed for t. wright, london : . annotation on thomason copy: "feb ". reproduction of the original in the british library. eng great britain -- history -- civil war, - -- early works to . a r (thomason e _ ). civilwar no mr. hollis his speech to the lords in parliament concerning peace.: with a motion for some course to be taken for repairing of trade, that holles, denzil holles, baron f the rate of defects per , words puts this text in the f category of texts with or more defects per , words. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - john latta sampled and proofread - john latta text and markup reviewed and edited - pfs batch review (qc) and xml conversion mr. hollis his speech to the lords in parliament concerning peace . with a motion for some course to be taken for repairing of trade , that so poore tradesmen may be preserved to hold out during these troublesome times . whereunto is added a relation of a vision of blood in the skie , that appeared about redding on tuesday night last . london , printed for t. wright . . mr. hollis his . speech to the lords , upon the delivery of a message from the house of commons . my lords , i am commanded by the knights . citizens and burgesses of the commons house , to present your lordships with a petition now delivered into their house , by divers poor tradesmen in and about the citie of london , contaning in the same the great want and necessitie they and their families are fallen into , through the decay of treading . the means and causes that have produced this decay , and the remedies to prevant further miserie , and revive trading : my lords , it is a common observation , and the experience of former ages hath made it manifest , that when the sword of warre is unsheathed , famine that followes , the greatest destruction of all common-wealths and kingdomes , witnesse the miserable calamities and troubles that have of late years befallen upon italy and germany . if wee call to minde ancient histories mentioning the fatall destruction of the easterne empires , wee shall finde that the first step to their desolation , hath been domestick dissention , and home-bred mutinies , upon which hath followed nationall warres , and the effects of all hath been famine and pestilence , which hath given a full period to the utter confusion of those kingdoms . if wee pry and search into the ancient histories of italy and rome , we shall find the only destruction both of that kingdom and citie ; hath happened only by these occasions , the pride and ambition of the popes and bishops of that see , usurping authority to themselves over the churches in the east , produced the wars between the east vandals and the romans , beeween the east and west gothes , and the italians , which was the utter desolation of the city of rome . first , by allarick captain of the west gothes . secondly by adolph their captain . thirdly , by athila king of the hunns . fourthly , by genserick king of the vandalls . fifthly odasar a german . sixthly theodericke an east goth. and lastly , totela baldivel . these princes by the sword and fire , executed the iust iudgements of god upon proud and wicked rome ; the originall whereof was occasioned by the impurity and uncleanes of the clergy : and what terrible famines and grievous pestilencies followed these warres , is likewise too manifest by history ; whereas in the beginning whome rome first began to lift up her head against gods true religion and his anointed servants , kings and emperours , she had been dashed and suppressed , all those bloudy and long warres procured by the bishops thereof in all parts of the christian world had bin prevented and avoyded . my lords , i have spoken this onely to remember your lordships of the miseries and calamities that have hapned unto those nations that have entertained amongst themselves dissension about the diversity of worship of god in religion , which alwaies hath proved the root and principall means of future destruction , that now in time while opportunity doth serve such occasions of difference as do threaten the the same desolations to the state wherein we live , and whereof we be a part , may by the wisdome of this high court of parliment be prevented and avoyded . my lords , if dearth and famine be in a nation , there can be nothing expected but confusion as well of the rich , as of the poore , it is the common proverb , necessity hath no law . there is no delaying of present necessity . it is not to be thought that millions of men , women and childrdn will starve and perish , so long as there is corn in the land of goshen , or in the custody of ioseph , it is therefore the desire , my lords , of the commons , that as they have compassionately considered among themselves this necessiated petition of distressed trades-men , and have limited a day certaine for answering the same , so your lordships would be pleased to take the same petition into your consideration with them , that the petitioners may at the time appointed , receive from both houses of parliament , such answer from their demands , as may give them full satisfaction . my lords , under favour , i am to speake a word or two of the means that have occasioned the decay in trading , and the remedies to prevent the same for future time , and againe renew trading , the meanes they conceive is principally want of due execution of justice upon those persons that have bin the causers , and authors thereof , and then the remedies , due execution of justice , without any further protraction of time and the enacting of such wholsome and good lawes , for the restriction of vice , and maintaining of vertue , both in goverment of the church and state , as shall be congruent to the word of god , and the peace and prosperity of his sacred majesty , and all his kingdoms , as shall be thought meet by the wisdome and policie of this great & high court of parliament , which i further humbly leave to the grave consideration of this honourable house . a relation of a vision of blood in the skie , which appeared at redding on tuesday night last . upon tuesday night last there appeared a skie red as bloud about redding , halfe a mile long , or more , which was seen so cleare and visible about six of the clock at night , that not onely many people thereabouts did run to see it , but it being apparent so farre that it might be seen to london ; there were thousands that went to london-bridge , and many other places , where they could attaine the prospect , to see it ; insomuch that there was a great crowd upon the bridge , some went into the fields , others to the tops of houses to behold this wonderfull vision , which was in this manner , viz. in length half a mile or more , as it was judged , sharp at the north end , and broad at the south end : for the length of it was north and south , red as bloud , and very clear , almost in colour like the moon when she is in an eclipse ; which though it seemed cleere , yet caused rather a darknesse then a light ; the length continued much alike , but it grew somtimes broader , and sometimes again it was narrower ; there was neither sun , moone , nor any star visible in the skie , which was very black and dark , onely this bloudy vision which appeared in this manner . what can we otherwise judge of , then to be a token of gods displeasure against the cruell cavaliers thereabouts , who kill , murder , and slaw the people of god , whose bloud cries to heaven in the ears of god for vengeance against them . finis . handle the ecclesiasticall affaires . and those which shall be chosen to goe to the colloques and synods with the ministers , shall not faile to come thither at the day assigned . chap. vii . of deacons . article i. the deacons shall be ordained in the church to gather the almes of the people , and to distribute them according to the necessitie of the poore , by the advice of the consistory . art. . they shall gather together the almes after the sermon , and shall procure and keepe faithfully , the goods of the poore : and if necessitie so require , they shall goe from house to house of those that are willing , to gather that which it shall please them to give . art. . they shall distribute nothing without the advice of the consistory , if there be not urgent necessitie . art. . the almes shall be distributed principally to those which are of the houshold of faith , and if there be any overplus , it may serve to helpe the strangers . art. . to meet with all suspition the deacons shall keepe the booke , as well of the receits as also of the distribution of the almes , the which they shall count in presence of the minister and of one of the elders . art. . the deacons shall render their accompts every communion day after the latter sermon , in the presence of the ministers , the ancients , and the people , if there be any that will assist them : and therefore they shall be exhorted to be present there . art. . they shall endeavour that the poore shall be nourished without going about a begging . and they shall make suite to the governours , that the youth fit for labour , may be set to occupations : and shall advertise the masters , the justices , to the end they may give order that none goe from house to house to beg . art. . they shall visite the poore , sicke , and impotent , and the prisoners , to comfort and assist them in their necessitie . art. . they shall be assistant to the consistory with the ministers and ancients , and there shall propose the necessitie of the poore , and tell their advice : but in the choice of other deacons , they shall have definitive voice . art. . there shall be two deacons in every parish , or else the elders shall have this charge of gathering and distributing the almes of the people . the ecclesiasticall liturgie , wherein is contained the preaching of the word , the administration of the sacraments , marriage , the visitation of the sicke , wherein also is spoken of buriall . chap. viii . of the preaching of the word . article i. the people shall assemble themselves twice every sunday within the church to heare the gospell preached , and shall be assistant to the publike prayers : and also they shall assemble themselves once or twice every weeke upon the dayes , which shall be commodious for the parishes : and every house-holder shall cause to be present his family . art. . the people being assembled before the sermon , one shall reade a chapter out of the canonicall scripture onely , and not out of the apocrypha bookes : and that it be done by one that hath charge in the church , or of one of good conversation at the least . art. . during the time of prayers , every one shall kneele , having the head bare . item during the time of singing of psalmes , and the administration of the sacraments , and whiles the minister shall read his text , every one shall be uncovered , and be attentive to that which is said and done of him . art. . at the publike catechismes which the minister shall make on the sunday after dinner , he shall chuse a text out of the word of god , which is agreeable unto the section he is to treate of , and shall reade in the beginning of the said text , and shall have it for a foundation of the doctrine which shall be spoken of in the said section . art. . the doores of the church shall be shut after the sermon and publike prayers , to wipe away all superstition . and the sears shall be set in good order , that every one may commodiously understand the voice of the minister preaching . art. . the churches which are dedicated to the speciall service of god , shall not be imployed to any prophane uses : and the magistrate shall be desired that he would not hold there any civill jurisdiction . chap. ix . of baptisme . article i. the holy baptisme shall be administred in the church after the preaching of the word of god , before the blessing . art. . the fathers of the children ( if they be not upon a voyage ) shall with the witnesses stand neere to the child , to present it to god , and make promise for the instruction of it , as they are bound there to doe . art. . none shall be received to present a childe at the baptisme , unlesse he have received the lords supper , or else if he be not fit to receive it , and that he make promise to doe it at the next communion , whereof ( if he be a stranger ) he shall bring testimony . art. . he which would present a childe to be baptised , shall advertise the minister in good time . art. . the minister shall not receive the names of heathen , of idolls , names attributed to god in the scripture , neither the names of office , as angels , baptist , apostle . art. . every parish shall register all their baptismes , of the fathers , mothers , and witnesses of children , and of the day wherein they were baptized ; and likewise of the marriages and of the dayes ; all which shall be carefully kept . chap. x. of the lords supper . article i. the holy supper of our lord jesus christ , shall be celebrated foure times in the yeare ; at easter , or the first sunday of aprill : the first sunday of july : the first sunday of october ; and the first sunday of januarie : and this shall be done after the sermon , the which shall be made expresly of this matter , or at the least shall be touched at the latter end of the sermon . art. . they shall follow this order ; the table shall be set in some commodious place by the pulpit , where they shall communicate in order , being set , which is most conformable to the first institution , or standing , as it is the custome of some churches , the men first , and the women after , and none shall goe away till after the thankesgiving and blessing of the people . art. . those which would communicate at the holy supper , shall be catechised first of all by the minister , to render a reason of their faith . they ought to know the lords prayer , the articles of their faith , and the ten commandements , at the least the substance of them ; and renounce the pope , the masse , and all idolatry and superstition . art. . none shall be received to the holy supper , which is not of age and discretion , and which hath not good testimony of his life and conversation , and which doth not promise to subject himselfe to the discipline . art. . if there be any which is accused in justice to have committed some crime , he shall be exhorted to abstaine from the communion , till such time as he shall be justified . art. . there shall not be received to the lords supper any of other parishes without good testimony from his pastor , or of two of the elders where there is no minister . art. . those that will not be reconciled , shall be deprived of the lords supper . art. . they shall advertise the people at the least fifteene dayes before the lords supper , to the end they may be prepared for it . art. . besides the former examination , which is made of the doctrine before they communicate unto the holy supper , every one ought againe to be catechised once a yeare at the least , according to the commoditie of the ministers and parishioners . chap. xi . of the fast . article i . the publike fast shall be celebrated in the church , what time the colloque or synode shall thinke it meete , as a day of rest , in which there shall be sermons in the forenoone and afternoone , with prayers , the reading of the word of god , and singing of psalmes , all most meete for the occasions and causes of the fast , and all by the authoritie of the magistrate . of thankesgiving . art. . the solemne thankesgiving must be celebrated in like manner , as the fast : all the exercises being fitted to the occasions and causes of it . chap. xii . of marriage . article i. the promises of marriages shall be made in the presence of the parents friends , governours , or masters or mistresses of the parties , and with consent of them , and in the presence of the minister , or of one elder or deacon , who shall receive the promises pure and simple , with invocation of the name of god , otherwise they shall not be received . and as for those that are at their owne libertie , the presence of the minister or one of the elders or deacons is also necessary for the policie . art. . the children and those which are under government , cannot make any promise of marriage without the consent of their fathers and mothers , or of their tutors , or of their gardians , in whose power they are . art. . if the fathers and mothers are so unreasonable that they will not accord to so holy a thing , the consistory shall give them such advice as shall be expedient , to the which if the fathers and mothers will not agree , they shall have recourse to the magistrate . art. . even those which have beene married , owe this honour to their parents , not to marry themselves without the advice of their parents , for want whereof they shall be censured . art. . those which shall be betrothed , shall promise with their parents that they shal be married within three moneths after their promises are made , or within six moneths , in case they be in a voyage . and if they will not obey , they shall be pursued by the ecclesiasticall censures . art. . no stranger shall be betrothed , unlesse he have leave of the right worshipfull the governours , or their leiftenants . art. . in marriages the degrees of consanguinitie and affinitie shall be diligently observed according to the law of god . art. . the publication of matrimony shall be declared three sundayes , one after another immediately in the church where the parties dwells , or if they marry in some other parish , they shall bring good testimony from the minister that shall have published them , otherwise they cannot be married . art. . to avoyde the abuse and prophanation of the day of rest , and the manifest contempt of the word of god , which is made in the marriage-dayes , it is thought good that marriage be no more celebrated upon sunday , but on the weeke dayes onely when there is a sermon . art. . if any will oppose himselfe against the publication of matrimony , they must addresse themselves to the minister first , or to two of the elders , which shall signifie it to the next consistory , to come and give the reasons of his opposition : of which the consistory shall judge : and if there be any appeale , it shall be referred to the colloque . art. . those which have companied together before they are married , shall not be married before they have made confession of their fault ; and if the fault be openly knowne , they shall doe it before all the church : and if it be lesse knowne , the consistory shall give order for it . art. . the promises of widdowes that would remarry themselves , shall not be received but six moneths after the death of their deceased husband , that both for the honestie and well seemlinesse , and to meet with many inconveniences . as for the men , they shall be exhorted to stay a certain time also , without constraining them thereunto . chap. xiii . of the visitation of the sicke . article i. those which have sicke folke , shall advertise those which have charge in the church in commodious time to this end , that they may be visited and comforted . art. . those which are sicke shall be advertised to make their will in good time , and whilst they are in their good sense , which shall be done in the presence of the minister or elder , or some other able men , and worthy of faith , which shall seale the said testament , to this end they may be approved . chap. xiv . of buriall . article i. the dead bodies shall not be brought nor made enter into the churches : but into the church-yard ordained for the faithfull . art. . the kinsfolke , friends , and neighbours of the dead , and as many as the kinsfolkes will pray , even the ministers , if they be at leisure , as members of the church and brethren , not in regard of their charge , no more than the elders and deacons , and shall goe to conduct the dead corps , for the comelinesse of the buriall : at the which there shall be neither sermon , nor prayer , nor ringing of bells , neither any kinde of other ceremony . art. . the dead shall not be buried without advertising of the minister before . art. . the dead corps of those which are excommunicated shall not be buried among the faithfull without ordinance of the magistrate . chapter xv . of ecclesiasticall censures . article i. all those which are of the church shall be subject to the censures , as well those which have charge in the church , as those which have no charge . art. . the suspention from the holy supper of the lord , shal be published only in matter of heresie , schisme , or other notable fault , of which the consistorie shall judge . art. . those which shall not receive the advertisements and reprehensions of faults made by the word of god , and which continue hardened , without hope of being brought into the right way after many exhortations , if they cannot be brought againe they shall be excommunicated : whereunto shall be proceeded by three sundayes , according to the order as followeth . art. . the first sunday every one shall be exhorted to pray for the sinner , without naming or declaring the sinne , or the sinner . art. . the second sunday the sinner shall be named and not the sinne : the third sunday the sinner shall be named and the sinne declared , and he excommunicated , which shall so continue as long as he remaineth rebellious . art. . those which are excommunicated , are rejected of the church , that they ought not to be admitted either to publick prayers , or unto the preaching of the word . art. . if any having publick charge in the church , shall commit any fault which in a private person meriteth publick suspention from the lords supper , they shall be suspended from their charge , and if they commit any fault the which in a private person meriteth excommunication they shall be deposed . art. . and likewise those which have committed any such fault , by the which they are made uncapable of exercising their charge to the edification of the church , shall be deposed . art. . if the sinner commeth to repentance , desiring of the consistory to be received to the peace of the church , diligent information must be had of his conversation , and shall advise the people thereof the sunday before he be received , and make confession to have peace of the church . art. . the second sunday he shall present himselfe before the pulpit , and shall confesse his fault , asking pardon of god and of the church by his owne mouth , in ratifying onely that which the minister shall have said of his repentance . chap. xvi . of the ecclesiasticall assemblies for the guiding and governing of the church . article i. in all ecclesiasticall assemblies the ministers shall be moderators , to gather the voyces , to impose silence , and to give sentence according to the pluralitie , and to give the censures ; to the which they shall be subject as well as others . art. . all censures shall be done in meeknesse of spirit and doctrine . art. . all assemblies shall be begun and ended by prayers and thankesgiving ; and it shall be done by him that is then moderator . art. . all those which there shall be assistant , shall speake by order , without interrupting one of the other . art. . none shall depart from the assembly without leave . art. . all ecclesiasticall matters there shall be intreated of , and decided by the word of god , without taking upon them any civill jurisdiction . art. . if there come any matter of importance , which cannot be decided in the lesser assemblies , they shall be sent to the greater . and likewise if any man doe feele himselfe grieved with the judgement of the lesser , he may appeale to the greater : and there shall be nothing in the greater handled , which hath not been handled before in the lesser , unlesse it be in a matter which is remitted . art. . for all the things that are memorable in all the assemblies , there shall be a register made , which shall be done by a scribe appointed in every one of the assemblies . art. . the ecclesiasticall assemblies shall not be daysmen in causes and matters civill , yet the particular members of it as private persons may , but yet very rarely , when it is for making an end of debate , and the same of great consequence . art. . he which hath been deprived of the communion , or suspended from his charge by an assembly , shall be reestablished by the same . these assemblies are either simple , or compound ; simple , as the consistories . chap. xvii . of the consistories . article i. the consistory is the assembly of the ministers and elders of every church , for the government of it , and to watch over the manners and doctrine , and to correct the vices , and encourage the well-doers , where the deacons , together with the proposants , may be assistant to the ministers , to the end to fashion them in the discipline and guiding of the church . art. . the consistories are to be assembled every sunday , or other dayes and houres ordained , according to the commoditie of the consistories , to consult of the affaires of the church . art. . none shall be called to the consistory without the advice of the minister and of two elders , in case of necessitie at the least : and every elder or he that giveth sommance , shall call them of his quarter , as shall be ordained . art. . the elders shall not report the secret faults , not having observed the order commanded by jesus christ , matth. . reprehending in secret the faults that are secret . art. . the minister or elders shall not name to the consistorie , those whose faults they shall bring to the consistorie , without the advice of the said consistorie . art. . the censures of the consistorie shall be given before every communion in the most commodious day ; wherein the school-masters also shall be censured . art. . the consistorie shall choose those which ought to goe to the colloques . art. . the correction of faults and offences , appertaineth to the consistories , excommunication excepted . art. . in ecclesiasticall assemblies the consistories shall make inquisition of the faults which shall come before them ; and shall adjure the parties in the name of god to speake the truth . chap. xviii . of the composed assemblies , which are the colloques and the synods . article i. at the beginning of the assembly there shall be called the minister and the elders , which ought to be assistants there . art. . the persons who are named to be assistants shall not misse to be present there , upon paine to be censured at the next assembly , unto the which they shall be called . art. . the articles of the former assemblies shall be read before they enter the affaires , to the end to know if they have been executed : and at the end of every assembly the elders shall take a copie of that which hath been determined there : to the end that all may walk after the same rule . art. . in every assembly there shall be a scribe to write that which shall be resolved of by the company . art. . at the end of every assembly they shall give a brotherly censure of the consistories , in generall of the ministers and elders , which shall be assistant there , and principally of that which hath been done in the assembly during the action . art. . the excommunication shall be onely concluded in these assemblies . art. . the masters the justices shall be prayed to cease the exercise of courts , ordinary and extraordinarie in the dayes of the colloques and synods , to this end that they which ought to be there assistant may not be hindred . chap. xix . of the colloques . article i. the colloque in the assembly of the ministers and ancients deputed of every church , in every one of the governments of those iles , for the government and entertainment of the discipline . art. . the colloques shall be assembled foure times in the yeare ; ten dayes before every communion : in which day there shall be the proposition of the word of god , following the forme which is before established in the chapter of ministers . art. . the ministers of alderney and sparke , shall meet once a yeare at the least , at the colloque at gernsey , and they shall choose the most fit time to come in . art. . the colloque shall choose those which ought to goe to the synode , and shall give them letters testimoniall of their sending . chap. xx . of the synods . article i. the synode is the assemblie of ministers and elders , deputed by the colloques of these iles. art. . the synode shall be assembled from two yeares to two yeares , in gersey and garnsey by course , unlesse necessitie doe constraine to assemble it sooner ▪ in which case those of the i le where the synode is to be holden , may hasten ▪ it by the advice of both the colloques . art. . in every synode there shall be chosen a minister to governe the action , and a scribe to register the actions . art. . the minister of the place where the assembly is made , shall make a prayer in the beginning of the first sitting . art. . the colloques shall mutually advertise one another of the generall things they have to propose to the synode in commodious time , to this end that every one may have time to think of it more ripely . and they shall give some advertisement thereof before the colloque , which goeth next before the synode , so farre as they may : and as for things of smaller importance , they shall be communicated of in the day of the first sitting . these articles touching the discipline , are so set downe that so much and so farre as they are grounded upon the word of god , they are immoveable : and as for the points that are meerely ecclesiasticall , that is to say , framed and set downe for the commoditie of the church , according to the circumstance of persons , time , and place , they may be changed by the same authoritie they have been instituted . here followeth the manner of installing the officers of the church . the promise in generall . you promise before god , his elect angels , and his church , that you will serve him faithfully in this office , taking heed to your selfe , to this end , that in this vocation of god , you may walke worthily , so as it becommeth a good servant of god , without abusing it to serve your owne affections , or to be pleasing unto men , but that you use it with a good consciente , carrying all that you doe in this office to the glory of god , and to the edification of the church , principally of that over which you are set : giving in all things good example unto all , namely , in keeping and taking good heed to the pollicy as well ecclesiasticall as civill , procuring the good and honour of the kingdome of england and of the i le : taking paines that the people may live in good order , peace and union one with another , and in subjection and obedience to the government of his majestie , the right worshipfull the governours , his lieftenant , the bailiefe , and the justices , not consenting to any thing which is repugnant to the lawes civill , pollicy of the countrey and kingdome , and the ecclesiasticall censures . all which you shall doe so farre as your office doth require , that is to say , without being prejudiciall to the libertie of a good conscience . furthermore , you shall not abandon or leave off your charge for any discontentment , or tediousnesse , or any thing whatsoever : unlesse it be by the consent of the consistory , or other to whom it appertaineth : at which consistory you shall attend ( if there be no hinderance ) the sunday , after the catechisme to handle the ecclesiasticall affaires : and you shall take heed of not disclosing any thing that hath been handled , to the parties or any other persons ( unlesse it be that they ought to know it ) in paine of being rejected from the company : remembring alwayes that you must render an account of the charge which hath been committed unto you ; to the end that you may heare his most amiable voice , it is well done good servant , enter into the joy of thy lord . finally , that which toucheth you most neerly in regard of the particular charge you are called unto . promises common to ministers of the word of god , and to the elders . you doe promise that you will feed and governe the flocke of christ , which is committed unto you , which is his house , according to the pollicy that our lord jesus christ hath established in his church , in having a care not by constraint , but willingly and with a ready courage , not for gaine or unseemely honour , but onely having regard to the glory of god , and to the salvation of the people : not raigning over the church , but in humilitie and feare , following the word of god . you promise also to have an eye and watch upon the flocke , to admonish and comfort in particular , according as neede requires : also to reprehend the private faults , and to bring to the consistorie the publick faults ; to the end the scandalls of the church may be hindred . you shall attend the colloques and synodes at all times , when you shall be deputed thereunto , revealing nothing of that which hath been handled to the parties , or any of the persons , unlesse they ought to know it , upon paine to be rejected from the company . you promise to take carefull heed of the accompts of the deacons at the communion day , or at least at the communion dayes of september and easter , and that after the second sermon of the sabbath ; in which day ordinarily there is no consistorie kept , or else the sunday following , according to the opportunitie of the church . a promise particular to the minister of the word . you promise that you will deliver the most holy word , and sacraments of god , in all faithfulnesse , purenesse , and reverence , that you will take paines in teaching the people which are capable , in convincing those which contradict , in casting downe the proud , in erecting and lifting up the humble , in bringing againe those that are strayed out of the way , in cutting rightly the word of truth , as a good workman , which needeth not be ashamed , and as a good and wise steward of the house of the lord , distributing the spirituall meate as well to every one apart , according to his abilitie , as in common to all the family . you shall doe this in all diligence , being earnest in time and out of time : and for this cause you promise to follow with all care and diligence , all meanes and helpes of studie , things proper to execute & honour your said ministery , which notwithstanding shall be done in all simplicitie and easinesse , as well in words as in sentences , to this end , that the rudest and most unlearned , and the church may be edified by it . above all , you shall imploy your selfe in studying the holy scriptures , to this end , that being well instructed touching the kingdome of heaven , you may be like a good father of a family , who is able to draw out of his treasure both old and new things . a promise particular to the elders . you promise to be assistant unto the ministers of the word , for the government of the church , over the which you are appointed , and shall take heed to the ministery of the word ; first , that the church be not unprovided , and that being established it may be reverenced , and therefore you shall have an eye to them as well for the holy doctrine , as for their holinesse of life , and afterwards upon the rest of the church , especially upon those which are committed more neerly to your charge . and therefore if there shall come any discord between any of your quarter , you shall endeavour to accord them by good and brotherly advisement , and if they will not obey , you shall summon them to come to the consistorie to have some convenient remedy thereof , which you shall doe principally in the visitation before the communion : also you shall goe at every communion throughout all the families of your quarter , as well to your neighbours , as those that are of your own houshold , to know whether they live in the feare of god , whether they frequent preaching , if they doe pray in their houses , their particular prayers evening and morning , before and after meate . furthermore , you doe promise to visit the sicke of your quarter , and when there shall be need , you shall call with you the ministers of the word to comfort them ; finally , you shall procure that all things in the assemblies may be done in good order and seemlinesse . a promise particular to deacons . you promise to receive , dispence , and keepe faithfully , and without deceipt or acceptation of persons , the goods which are given to the poore ; you shall gather the almes of the poore given by the people at the going out of the church after the sermons , and especially on the sabbath day : and if that necessitie so require ( because of some extraordinary need ) you shall goe by the houses of those which are willing , to gather some come or other almes , according to the good will or discretion of well disposed people . and to wipe away all evill suspition , you shall count out of hand the almes received ( which shall be set down in writing ) in the presence of the ministers , and one or two of the elders : and for this cause you shall have a booke , wherein to register as well the things that are received as those that are laid out . you doe promise that you will not give any almes without communicating it unto the ministers and the elders , that you distribute the almes , first of all unto those that are of the houshold of faith ; and if there be any overplus , you may let it run down unto strangers from the church . you do promise to visit the poore , sicke , and to cause them to be tended and looked unto , and to inquire of the necessitie of other poore , principally of your quarter , and to the end that they may be nourished by the almes of the church , without letting them wander and range about the streets , or other parishes . and you shall procure that those which are meet to be put to occupation , that they may be imployed , of the which , you shall advertise the constables , or those which have the charge of justice , to the end that they may not be suffered to beg . a prayer common for all the officers of the church . oh lord god , father of light , from whom commeth every good and perfect gift , we doe pray thee most humbly in the name and favour of jesus christ , thy onely sonne our saviour , who being ascended into heaven in glory , doth not cease to inlarge towards as thy gratious liberalitie of officers , for the work of the ministery , and building of thy mysticall bodie , wee most humbly pray thee , that seeing it hath pleased thee to call this our brother to the service of the church , that thou wouldest so fashion and fit him to so holy a charge , that he may quit himselfe in all diligence , imploying himselfe faithfully and with a fervent zeale to all that which belongeth unto his charge . give him prudency to governe himselfe well in it , and force to execute all things that appertaine to him in regard of his office . above all things , fill him with the spirit of thy feare , to the end that he may be preserved from all scandall , confusion , and the allurements of this present world , of the snares and ambushments of sathan , giving him patience and constancy , that he may acquit faithfully his dutie as much as humane frailtie may suffer : blesse thou his labour , to the end that nothing hinder the holy worke which is in his hands ; shew also this grace to every one of us , to acknowledge him as set and ordained of thy hand in this most holy vocation , that we may be led by him , without withstanding the order thou hast established in thy charge : and that by this means remaining in thy obedience , thou mayst be glorified in us , and thy church may receive continuall growth , to the good and salvation of thy children : proper to the minister of the word . and in regard of his particular charge , we most humbly pray thee , that this our brother which thou hast called to the ministery of thy holy word , to the which even the holy angells are insufficient , thou wouldest enlarge him with the true keowledge of the wonderfull secrets thereof , and with a singular wisdome , by the which he may know how to dispence and apply to every one , according to the circumstance of time , of places , and principally of persons , that he may have his mouth opened to declare in all libertie and boldnesse , truly spirituall , the mystery of the gospell ; as also all that which is meete for him to declare ; and also to administer the holy sacraments in all puritie and reverence : give to every one of us this grace , that we may receive as well the one as the other , in all humilitie and trembling of heart , not as comming from men , but ( as the truth is ) comming from thee the living god , thereby to be quickned eternally to proper to the elders . be an elder and watchman , graunt thou that he being given for helpe to the ministers of the word in the government , and as the eares of the body of the church , he may apply himselfe with such diligence to know the estate as well of the faith as of the manners of the flocke , principally of those over the which he hath more particular charge , that by this meanes he may as well admonish , reprehend , comfort , and encourage every one , according as there is need ; as also to certifie the ministers of the word of it , that the ministers by help thereof may with more profit addresse their doctrine to the church of god . give also this grace to every one of us , that we may obey and reverence him as well in private admonitions , as the rest of the guiding of the church , as a father whom god hath set to watch over our soules , to this end he may doe it with cheerfulnesse and not with griefe to proper to deacons . be a deacon , that thou wouldest graunt him thy spirit , first of simplicitie , to distribute the treasure of the church without acceptation of persons ; and then the spirit of discretion , to discern of the estate of every one of the poore , and especially of those which are of his quarter . finally , and above all , the spirit of compassion , to execute his dutie towards the poore ( principally towards the sicke and weake ) in all joy and readninesse , to the end they be not put to further sorrow : touch also the hearts & entrayles of every one of us , that following thy liberalitie towards us , we may willingly and frankly distribute of our goods to sustain the necessitie of the afflicted , as members of the same bodie , and entertaining the communion , which ought to be between the faithfull , we may shew by effect that we are true members of the church . laying on of hands . i lay upon him the hands in the name of the consistory , by which imposition of hands , you are advertised that you are set apart from the affaires of this world , whether they be your own or any others ( in so much as they may hinder the charge you are called unto ) to be dedicated & consecrated to the holy service of god . moreover , that in doing your dutie faithfully , roundly , and in all simplicitie ( as before god ) you shall be assured of the assistance of the hand of god , helpfull unto you in all your necessitie : and therefore that you be not discouraged for the afflictions that may come upon you in executing your charge , rather that you may sustain constantly and in all patience , contempt , shame , and reproach of men given in this world , both which things being signified by this ceremony , god by his mercy and faithfulnesse accomplish and perfect in you , in the name of his sonne jesus christ our saviour . a generall admonition to the people for all the officers of the church . and as for you brethren and sisters know , that the dutie of the church towards the brother present , is to receive him willingly , as sent of god , bearing him honour and reverence , in regard of his charge , the which he executeth towards you : take heed that you murmur not against him , or against his ministery in any sort whatsoever , for the lord will not leave unpunished the contempt of his servants , and much lesse the murmuring and rash rebellion against their persons : as the horrible examples that may be seene in the scriptures doe plainly testifie . it is also required of you that you pray unto god for him , to this end that he may execute the office god hath called him unto in all wisdome and faithfulnesse , referring all to gods glory , and the edification of his church , whereof he hath charge . speciall for the minister of the word . which you shall doe so much more carefully for him in regard that his charge is of so great importance , as well for the glory of god , as for the salvation of us all , as you have partly understood by the dutie which hath been already recited . to the end that speech may be given him and a mouth opened in all boldnesse to make known the secret of the gospell , and to speak frankly as it behoveth him to speak . secondly , it is meet you know that the office of the church towards the ministers is to entertaine them honestly , according to their power and abilitie : for it is good reason that seing they sow spirituall things , they should reap the corporall things : and that the oxe that treadeth out the graine , should not want feeding , as st paul teacheth : therefore also you shall have this our brother for recommended as touching his entertainment . finis . machine-generated and other supplemental data master hollis his speech in parliament the , of march wherein is contained his declaration concerning the kings atturney generall for his abuse given to the house of commons in the accusation of high treason against the sixe members of the house : as also his advice concerning the last commands issued from the said house. speech in parliament the of march, , wherein is contained his declaration concerning the kings atturney generall holles, denzil holles, baron, - . this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (wing h ). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing h estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; :e , no ) master hollis his speech in parliament the , of march wherein is contained his declaration concerning the kings atturney generall for his abuse given to the house of commons in the accusation of high treason against the sixe members of the house : as also his advice concerning the last commands issued from the said house. speech in parliament the of march, , wherein is contained his declaration concerning the kings atturney generall holles, denzil holles, baron, - . p. printed for andrew coe and marmaduke boat, london : . reproduction of original in thomason collection, british library. eng great britain -- politics and government -- - -- sources. a r (wing h ). civilwar no master hollis his speech in parliament, the . of march. . wherein is contained his declaration concerning the kings atturney generall, holles, denzil holles, baron a this text has no known defects that were recorded as gap elements at the time of transcription. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion master hollis his speech in parliament , the . of march . . wherein is contained his declaration concerning the kings atturney generall , for his abuse given to the house of commons , in the accusation of high treason against the sixe members of the house . as also his advise concerning the last commands , issued from the said house , london , printed for andrew coe and marmaduke boas . . the speech delivered by mr hollis one of the members of the house of commons , now conjoyned in parliament . with his arguments against master harbert , his majestiés atturney generall , for drawing the articles of high treason against himself , and the other five members of the said house . master speaker , the subtilety , policy , and dubious wayes , bearing rule in a man corrupted , whose evill actions come within the compasse , and justly claim the due reward of exemplary punishment , is alwayes working ; although by the destruction and utter delabition of the vertuous , and innocent ( whose words and works , actions , and endeavours , can be termed to lay holds on nothing but realties ) to cleer himself : the actions , conditions , and endeavours of the good man , being alwayes the contrary , there being no vicissitude or coherence with them , in respect they are meer opposites , the one seeking to performe his duty both to god and man , through his true dealing for the truth , the other seeking what in him lyeth for the advancing of impiety : the good man joyning with his practise , is daily labours for the defence of vertuous and pious designes ; thereby seeking with vigilancy to bring the malignant persons to deserved punishments , it being a work , which in conscience is due both to god , his king , and country . first , to god in respect of religion , and the true and reall faith , we now professe in the church of england , without which we are nothing , being no lesse then meer atomes to the world , and the just antipothes to a ground faith . no faith can stand without that true foundation of christ ; no grounds of salvation can be had , but by and through those extraordinary merits and sufferings , which we are partakers of in christ : if so then does our saviour daily suffer in the instigations , and quotidiall provocations against him ; all which are violated by those ( who are many ) malignants to the truth . secondly , to the king , what greater abuse can there be to his sacred majesty then by the continuall sufferance , the subject endures through the ill counsell administred to our soveraign , being done under the colour of loyalty ; yet in proving in matter no better then flat abuses to this whole kingdom . thirdly , if that god and the king , so much suffer by the aforesaid means , the poor subject and country can do no lesse ; witnesse the daily disturbances which are now a dayes , being so many , that there is no county almost within this his majesties dominions , but hath delivered their humble petitions to this honourable assembly , for removeall of the said grievances and the deprieving of the aforesaid persous of their usurped authority . master speaker , it is palpable enough that the wicked man , cares not though he dishonours god in the highest degree may he but defend himselfe and vices , thought to the utter abolishing of religion , king , and countrey , ( as aforesaid ) if opposite to his designes . wee have had the experience of the evils and great troubles that have beene raised , this state by ill instruments men of power and authority in the same , and not onely of publique misedoers and open enemies , but also of many private disaffected spirits , whose outward carriage hath procured to themselves great esteem and respect in their county . nay so well have they been approved on , that their countrey hath not misled them , with both their estates and priviledges , as electing them members of this high court of parliament ; wherein also for a long time , they have discharged their duties to their king and countrey ; nay and attained the generall estimation , and respect of all men , as worthy members of the common-wealth ; but their hearts disagreeing with their outward qualities , being not upright and perfect , have at least shewed themselves in their perfect colours , and brought themselves to shame and dishonour . master speaker , i have hitherto spoken of nothing but generalls : now i intend to insist upon a perticular , being the gentleman , who as yet stands accused by this honourable house , his majesties atturney generall , who hath been a man , upon whom all these honours aforenamed , have been conferred in the parliament , and no le sse esteemed by his majesty ; his place therein being sufficiently honourable , he needed not to have proceeded so farre as to prive ambitious , or malitious ; which of the two i cannot nominate , nor am able to distinguish , was his errour , or whether he is guilty of both ; how ever , it does appear , his heart was not right in discharging his duty in that great place committed to him ; and as he was a member of the parliament , had he been faithfull to his king and country , he had never undertaken this enterprise to accuse us of treason , and draw the accusation against us himself ; for which we have already , and further are bound to answer . master speaker , his offence is of a high nature , of dangerous consequence , a manifest breach of the priviledges of parliament , an apparent treachery ( if found to rely upon him ) against those accused members , of which i am the least , yet moved to speak in the cause , the offence is generally against the whole state , deserving great punishment for the same . by this he hath made himself guilty of those misdemeanours , that other delinquents have been impeached , and accused for , and nothing inferiour to them in their crime . this designe was a great offence ( if by him advised ) against his sacred majesty himself , in seeking to work an evill opinion in him concerning his parliament , and their proceedings in the great affairs , of both church and state . this is the matter that discourages this honourable assembly in proceeding in such businesses as may be for the honour of their king and country ; when they peceive that all their endeavours , and dutifull actions , are not well accepted by his majesty , this and such like ill councells hath caused all this distraction in the state . master speaker , the charge is apparent against him , the accusation is apparent before ( as though voyde ; ) therefore i in behalf of the rest of the members , most humbly desire you would proceed to voting him upon the same , as he shall be found guilty , and his reward may be contributed for the same : i for my part have performed my promise to those other members accused , in moving you in the businesse ; to whose consideration i now leave it , as being best able to determine of a matter of so great weight . finis . the speech of denzill hollis, esquire at a conference with the lords on tuesday the third of august, : in justification of the three last printed votes by the house of commons. holles, denzil holles, baron, - . this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (wing h ). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing h estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) the speech of denzill hollis, esquire at a conference with the lords on tuesday the third of august, : in justification of the three last printed votes by the house of commons. holles, denzil holles, baron, - . [ ], p. [s.n.], london printed : . reproduction of original in the british library. eng great britain -- history -- charles i, - . great britain -- politics and government -- - . a r (wing h ). civilwar no the speech of denzill hollis esquire, at a conference with the lords on tuesday the third of august, . in justification of the three las holles, denzil holles, baron a this text has no known defects that were recorded as gap elements at the time of transcription. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - jonathan blaney sampled and proofread - jonathan blaney text and markup reviewed and edited - pfs batch review (qc) and xml conversion the speech of denzill hollis esquire , at a conference with the lords on tuesday the third of august , . in justification of the three last printed votes by the house of commons . london printed anno domini . master hollis his speech , on tuesday the third of august , , to the lords , in justification of the three last printed votes by the house of commons . i am cōmanded by the knights , and burgesses , to present unto your lordships their answer to what was proposed yesterday . they take notice of your lordships desire , that a true intelligence may bee kept between the two houses , for so your lordships did expresse it in this they do with all cheerfulnesse concurre with your lordships , as knowing that this sweet conjunction between your lordships and them is the golden chain which bindes up in one gordian knot the strength , the beauty , the happinesse of this kingdom , which so knit together is not to be broken in sunder by the fiercest violence . therefore , who desires to unlinke this chaine , and dissolve this knot , or fails of his part , to the preserving and continuing it fast , and firme , and entire , let the sin of it lie at his doore , nay , let it come into the midst of his house , and consume it let him perish , and his posterity inherit onely his shame . so carefull will the house of commons be to cherish , and maintain , this good correspondencie with your lordships in all things . then for the businesse about which your lordships were then pleased to conferre with them , which was a printed paper you had met with all , as you said , in your house , setting forth some resolutions of the house of commons , concerning which you put unto us these two interrogatories , videlicet , the first , and second votes which were read . die veneris . julij . . that this house doth conceive that the protestation made by them is fit to bee taken by every person that is well affected in religion , and to the good of the common-wealth ; and therefore doth declare , that what person soever shall not take the protestation is unfit to beare office in the church or common-wealth . that the knights , citizens , and burgesses , and barons of the cinque-ports respectively , shall forthwith send down to the severall places for which they serve copies of this vote of the house , concerning the protestation . that these votes shall bee printed and attested under the clerks hand . and not finding this paper attested by their clerke under his hand , they could not judge of it , till they had resorted to his booke where their orders and their votes are entred : where they found their votes concerning their late protestation taken both by your lordships and them , and they found the contents of this paper to agree in terminis with what is entred in their clerks book . then they called to minde what had passed in the house upon that occasion when those resolutions of theirs were voted ; how they had considered of that protestation that it bound all men to defend the religion here established , &c. this they conceived to be a true test of every good subject , a shibboleth to distinguish the ephramits from the gileadites , that whosoever was wel affected in religion , and to the good of the common-wealth would make this protestation : and on the other side who would not make it was not well affected . and such a man , they held it their duties , in discharge of the trust reposed in them by the whole body of the kingdome , all the commons of england , who have set them out as so many sentinels to watch for them , to give them notice of the good or the evill , friends or enemies , comming towards them , they held it i say their duties to declare their opinions , that such a man was not their friend , was unfit to beare any office in church or state , and therefore they passed this vote , that it is a thing fit and necessary to be done by them ; and for such they do avow it . and besides they thought it fit to give an account to those who had employed them , the severall counties and burroughs that sent them , to give them a marke , by which they might know who were goodmen , lovers of their countrey , fit to be entrusted with offices , with the over-sight of any part of church or state : and therefore they gave order this vote should be sent downe unto all the parts of this kingdome . and lastly , that it might be done speedily , and not stay the writing out of so many copies , they gave order it should be printed , and be attested under the clerks hand , with order &c. the coppies of which three orders your lordships have in this printed paper , which the commons assembled in parliament have commanded me to signifie unto your lordships , and that the passing of these votes they doe own , they do avow , they do justifie . finis . mr. hollis his speech in parliament, on munday the . of januarie . upon the delivery of a message from the house of commons, concerning the poore trades-mens petition. speech in parliament: on munday the th of january. holles, denzil holles, baron, - . this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (wing h b). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing h b estc r this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) mr. hollis his speech in parliament, on munday the . of januarie . upon the delivery of a message from the house of commons, concerning the poore trades-mens petition. speech in parliament: on munday the th of january. holles, denzil holles, baron, - . [ ] p. printed for f.c. t.b., london : . signatures: a⁴. reproduction of the original in the bodleian library. eng speeches, addresses, etc., english -- early works to . great britain -- economic conditions -- early works to . great britain -- history -- charles i, - -- sources -- early works to . a r (wing h b). civilwar no mr. hollis his speech in parliament, on munday the . of januarie, . upon the delivery of a message from the house of commons, concerni holles, denzil holles, baron c the rate of defects per , words puts this text in the c category of texts with between and defects per , words. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion mr. hollis his speech in parliament , on munday the . of januarie , . upon the delivery of a message from the house of commmons , concerning the poore trades-mens petition . london , printed for f. c. t. b . mr. hollis his speech to the lords , upon the delivery of a message from the house of commons . my lords , i am commanded by the knights , citizens and burgesses of the commons house , to present your lordships with a petition now delivered into their house , by divers poor trades-men in and about the citie of london , containing in the same the great want and necessitie they and their families are fallen into , through the decay of trading . the means and causes that have produced this decay , and the remedies to prevent further miserie , and revive trading : my lords , it is a common observation , and the experience of former ages hath made it manifest , that when the sword of warre is unsheathed , famine followes , the greatest destruction of all common-wealths and kingdomes , witnesse the miserable calamities and troubles that have of late yeares befallen upon italy and germany . if wee call to minde ancient histories mentioning the fatall destruction of the easterne empires , wee shall finde that the first step to their desolation , hath been● domestick dissention , and home-bred mutinies , upon which hath followed nationall warres , and the effects of all hath beene famine and pestilence , which hath given a full period to the utter confusion of those kingdomes . if wee pry and search into the ancient histories of italy and rome , wee shall finde the onely destruction both of that kingdome and citie , hath happened onely by these occasions , the pride and abition of the popes and bishops of that see , usurping authority to themselves over the churches in the east , produced the warres betweene the east vandalls and the romans , betweene the east and west gothes , and the italians , which was the utter desolation of the city of rome . first , by allarick captaine of the west gothes . secondly by adolph their captaine . thirdly , by athila king of the hunns . fourthly , by genserick king of the vandalls . fifthly odasar a german . sixthly theodericke and east goth. and lastly , totela baldevil . these princes by the sword and fire , executed the just judgements of god upon proud and wicked rome ; the originall whereof was occasioned by the impurity and uncleannesse of the clergy : and what terrible famines and grievous pestilencies followed these warres , is likewise too manifest by history ; whereas in the beginning when rome first began to lift up her head against gods true religion and his anointed servants , kings and emperours , she had been dashed and suppressed , all those blondy and long warres procured by the bishops thereof in all parts of the christian world had bin prevented and avoyded . my lords , i have spoken this onely to remember your lordships of the miseries and calamities that have hapned unto those nations that have entertained amongst themselves dissension and division about the diversity of worship of god in religion , which alwaies hath proved the root and principall meanes of future destruction that now in time while opportunity doth serve such occasions of difference as doe threaten the same desolations to the state wherein we live , and whereof we be a part , may by the wisedome of this high court of parliament be prevented and avoyded . my lords , if dearth and famine bee in a nation , there can be nothing expected but confusion as well of the rich , as of the poore , it is the common proverb , necessity hath no law . there is no delaying of present necessity . it is not to be thought that millions of men , women & children will starve and perish , so long as there is corn in the land of goshen , or in the custody of ioseph , it is therefore the desire , my lords , of the commons , that as they have compassionately considered among themselves this necessitated petition of distressed trades-men , and have limited a day certaine for answering the same , so your lordships would bee pleased to take the same petition into your considerations with them , that the petitioners may at the time appointed , receive from both houses of parliament , such answer from their demands , as may give them full satisfaction . my lords , under favour , i am to speake a word or two of the meanes that have occasioned the decay in trading , & the remedies to prevent the same for future time , and againe renew trading , the means they conceive is principally want of due ●xecution of justice upon those persons that have bin the causers , and authors thereof , and then the remedies , due execution of justice , without any further protraction of time and the enacting of such wholsome and good lawes , for the restriction of vice , and maintaining of vertue , both in goverment of the church and state , as shall be congruent to the word of god , and the peace and prosperity of his sacred majesty , and all his kingdoms , as shall be thought meet by the wisedome and policie of this great and high court of parliament , which i further humbly leave to the grave consideration of this honourable house . finis . the case stated concerning the judicature of the house of peers in the point of appeals holles, denzil holles, baron, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing h estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) the case stated concerning the judicature of the house of peers in the point of appeals holles, denzil holles, baron, - . , [ ] p. s.n.], [london : . reproduction of original in the bodleian library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng england and wales. -- parliament. -- house of lords -- rules and practice. appellate procedure -- great britain. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - rina kor sampled and proofread - rina kor text and markup reviewed and edited - pfs batch review (qc) and xml conversion the case stated concerning the judicature of the house of peers in the point of appeals . printed in the year , mdclxxv . the case stated concerning the iudicature of the house of peers , in the point of appeals . one chief end of parlaments , besides that of making good and wholsome laws for the well governing of the kingdom , is to redress and reform abuses of inferiour courts , and to direct them in cases of great difficulty , when by reason of some circumstance in matter of fact , the law is not so plain , as that they can proceed to give relief to such suiters as stand in need of relief and demand it ; and then have those courts applied themselves to the parliament for advice and direction : whereas in other cases , where there hath been either a perverting of justice in giving a wrong judgement , or a wilful delay of justice , in giving no judgement at all , there the party grieved complaining to the parliament , finds that remedy , which his case requires . therefore is it that . r. . n. . the commons pray , that a parliament be yearly holden to redress delays in suits , and to end such cases as the iudges doubt of . now the next thing to be enquired into , is how , and in what manner , the parliament doth exert this power of judicature over inferiour courts , and where , and in what part of the parliament this jurisdiction is lodged , which i think will be easily made out , to be singly and solely in the upper house , the house of peers , that there it is , and hath ever been both de facto & de jure . that it hath been practised so , you have multitudes of presidents , sometimes in case of delay in justice , sometimes in case of an erroneous proceeding in the application of it : as in the . e. . in the case of sir iohn and sir ieffery stanton ; sir ieffery comes and complains to the house of lords , of delay in the court of common pleas , the house of lords first send to those judges to proceed to judgement , by a writ containing the whole matter as it was represented to them , with this ; that in case the judges there could not agree in regard of difficulty , or any other cause , they should then come into parliament , and bring with them the record of the whole process , which sir iohn stonore the chief justice did ; and then the house of peers , ( as it is expressed in the roll ) : les prelats countes barouns & autres du parliament , and who those autres were , is likewise expressed ( not any of the lower house , but ) le chaunceller , tresorer , iustices del un bank & del autre & autres du conseil du roy ( that is , those who were assistants in the house of peers , as the attorney , and others of the kings learned counsel , and even the chancellor and treasurer , if they were not peers ) they declare , est finalement accordez , the roll saith , it is finally agreed , what the judgement shall be , and they command those judges , quils en lour bank aillent le iugement rendre , that they go and pronounce that judgement in their bench. but there is an act of parliament in that . of e. . c. . ( and that act is still in force ) which shews the right of such a judicature to be in the house of peers : it ordains , that a prelate , two earls , and two barons , shall be chosen every parliament , who shall have a commission from the king , to hear the complaints of those that will complain unto them of such delays or grievances done to them in the chancery , kings bench , common bench , or exchequer , shall cause the iudges of the court , where such delay is complained of , to come before them with the whole process in the cause , may call to them the chancellor , treasurer , iustices of either bench , and barons of the exchequer , as they shall think fit , to assist them : so shall proceed to take a good accord , and make a good judgement , and then send that to the iustices before whom the plea did depend , with order that they hastily go to give judgement accordingly . and if the case were of such difficulty , as that they could not well determin it , they were then to bring it to the next parlaement , where a final accord was to be taken , what judgment ought to be given , which was to be sent to the iudges , and they commanded to proceed without delay , and give that judgment . and to begin to do remedy upon this ordinance , ( they are the words of the act ) the lords are named , viz. the arch bishop of canterbury , the earls of arundel and huntington , the lord de wake , and the lord ralph basset , and it is enacted , that a commission and a power should be granted to them to endure till the next parliament . for this was but for the intervals of parlament ; the parliament sitting , the complaint was to be made to the house , and the house to give the redress . then for erroneous judgements and decrees , whether given in courts of law , or courts of equity , that the remedy en dernier ressort , lies likewise in the house of peers , will ( i think ) be easily proved . concerning the courts of law it is not at all controverted , but that by a writ of error all such judgements in inferiour courts , with which any body shall find himself aggrieved , may be removed unto , and reversed in that house , if they find cause for it . it is true , that in rastals collection of entries , tit. error en le parlament , pag. . there is this clause inserted in the writ there entred , viz. vobis mandamus quod record . & process , &c. in presens parliament , &c. mittatis & hoc breve , ut inspect . recordo & processis predicto nos de consilio & advisamento dominorum spiritualium & temporalium ac communitatum in parliamento nostro predict . existent . ulterius pro errore illo corrigendo fieri faciamus quod dejure & secundum legem & consuetudinem regni nostri angliae fuerit faciendum . here one would think is a clear testimony , that the house of commons are copartners with the lords , in judging those writs of error : but i may say , there is an error in this entry , and it was set right that very year , in the . of h. . by a meeting and consultation of all the judges in the exchequer chamber : it is in the year-book pasc. . h. . p. , & . in flouredews case , the words are these : et postea per avisament . omnium iusticiariorum in camera scaccarii existent . & congregat . pro eadem materia & errore illo corrigendo , sic intelligendum est , si parliament . sit apud westm. tunc oportet partem habere billam de rege indorsatam , &c. et quam cito billa sic indorsata fuerit , & breve de errore & transcriptum pred . in parliamento deliberentur , clericus parliamentorum habebit custodiam inde ; et per dominos tantum , & non per communitatem assignabitur senescallus , qui cum dominis spiritualibus & temporalibus per concilium justiciariorum procedent ad errorem corrigendum . here is a negativa praegnans , to the house of commons , et non per communitatem , as if it was not enough to say by the lords alone , there is added , that it must not be by the commons . nothing can be clearer than this , and the practice hath been according to it in all times , both preceding and following . some question hath been made of appeals from courts of equity , whether or no that house hath cognisance of them ? and more is it questioned , if a member of the house of commons hath been concerned in the appeal , which hath now this last session of parliament been absolutely and peremptorily denied , and strongly opposed by the house of commons ? but i no wayes doubt of making it appear as clear as the noon-day , that all appeals ( whoever is concerned in them ) are regularly and properly within the cognisance and the jurisdiction of the house of peers , and so have ever been . and to speak truly , there was antiently no difference in the way of complaining of erroneous judgements given in courts of law , and that of unjust decrees made in a court of equity . both were by way of petition from the party grieved , setting forth the cause of his complaint , and shewing wherein the court had erred in the adjudging and determining his cause before them : in the rolls of parliament from the beginning of edward the third , to the end of edward the fourth , ( which are all that are in the tower ) there is no mention of any complaint of an erroneous judgement brought into parliament , ( that is to the house of peers ) by a writ of error , ( as it is now the practice ) from the courts of law , but all were by petition , as the appeals are now from decrees in equity . and this change is crept in of late years we know not how , nor exactly when , but certainly in those times of which the parlament journals are either totally lost , as those of the times of richard the d , and henry the th and between the th and the th of henry the th , or else made so concise and imperfect , recording nothing but bills and their several readings , and some proceedings upon them , and very little , as good as nothing of any private businesses , that one cannot have a certain knowledge how the judicature was then exercised in the house of lords , as appears by the journals extant of h. the th , and all since , even till the th of king james , when henry elsing came to be clerk of the parliament , who first took care to enter duly in the journal book all that passed in the house . but however , this alteration , and the difference that seemingly is between complaining by a petition of appeal , and bringing of a writ of error , hath given occasion to the house of commons to dispute the jurisdiction of the house of peers , in case of appeals , and pass some vote against it , and more declaredly and avowedly to oppose the proceedings of the peers upon appeals , when any member of their house hath been concerned . for appeals in general , they have declared that the house of lords hath no right to receive and judge of any from courts of equity , a thing was never questioned in any preceding parliament , though it hath been ever practised . and there is the same reason for it , if not more , than for their reversing erroneous judgements at the common law. for in the courts of common law , there are four judges , and they will not easily be all mistaken , and all concur in giving a false judgement ; and a suitor there , is more like to receive justice , especially in regard they have a strict rule to go by , the rule of the law , which is a known rule , than where there is but one judge , as in chancery , and who hath a greater latitude to proceed by , varying from the exact rule of law , and guiding himself much by his own discretion : it is easie for such a judge to err , though perhaps not willingly , and hard it were , that there should then be no remedy . but it will be said , the king may then grant a commission to certain persons , to give relief to such as shall find themselves aggrieved with any unjust decree , as was done by queen eliz. in the d. year of her reign , in a case of the countess of southampton and the earl of worcester , mentioned by serjeant rolls , in the report of the case of vaudrey and pannel , p. . where he saith it was resolved by all the judges , which they set under their hands , that when a decree is made in chancery , upon petition to the queen , she may refer it to the judges , ( but not to any other but to them ) to examine , and reverse the decree if there be cause , and accordingly by such a reference that decree was reversed . sir edward cook , also in his th institute , c. . treating of the court of chancery , gives two presidents more of the like nature , one of the same . eliz. in sir moyle finches case , he defendant , the earl of worcester , and others plaintiffs , whereupon a petition to the queen , a decree in chancery was referred to the judges , and their resolutions against it being certified into the chancery , the decree was reversed : the other president is three years before , . eliz. in throgmorton's case , the same sir moyle finch , there likewise defendant , where a demurrer of his being over-ruled by the chancellor , upon a reference to the judges , it was by them otherwise resolved , and their resolution being by the chief justice popham signified to the chancellor , there was no further proceeding in chancery . to these presidents is answered , first , that it may be doubted , if the opinion and proceedings of the judges at that time be so authentick , as to make it pass for law , to set up a new court of equity . sir edward cook , in the same treatise , fol. . saith in perrots case , mich. , and . eliz. that it was resolved by sir christopher wray , chief justice , and the court of kings bench , that the queen could not raise a court of equity by her letters-patents , and that there could be no court of equity but either by act of parliament , or by prescription time out of mind : and in hobberts reports fol. . in the case of martin and marshal , it is said , that this court of equity is a special trust committed to the king , and not by him to be committed to any other but his chancellor . how then can king or queen commissionate any or her persons to be judges in equity of any cause ? for what is it but a court of equity , when all the judges are commissionated to assemble themselves to rehear a cause , formerly decreed in chancery , which they do judge a-new , and determin it upon hearing counsel of both sides , for or against the decree , secundum aequum & bonum , according to the course of equity , and not by the strict rule of law. this is certainly at least a temporary court of equity : it is true , that for erroneous judgements in the kings bench or in the exchequer , a writ of error lies to bring them before the judges in the exchequer chamber , but it is by act of parliament : several acts have been made to give that relief . first , the . e. c. . which gives power to the chancellor and treasurer to call the judges to assist them , to examine errors in the exchequer . then the . eliz. c. . which makes judgements in the kings bench examinable by all the judges of the other courts in the exchequer chamber . and the . eliz. c. . which gives some further regulation in the proceedings upon judgements given in each of those courts , as well the exchequer as the kings bench : and that of the th of the queen gives the reason in the preamble , why those laws were made , because before that time , erroneous judgements given in the kings bench could only be reformed in the high court of parliament , and the parliament did not so often sit in those days as formerly : but there is no act of parliament , nor no law , which gives power to the king to enable either the judges , or any body else out of parliament , to examine a decree made in chancery , though it be never so unjust and erroneous ; therefore it may well be doubted , if such a commission were according to law , notwithstanding the resolution of the judges at that time . but admit such a commission were legal , and that the king had power to appoint and authorise persons to receive and judge of appeals from the chancery , as he doth delegates for appeals from ecclesiastical courts , ( which power is given him by act of parliament , . h. . c. . ) yet that would not conclude the house of peers , but that they might receive an appeal even from the sentence of those commissioners , seeing it is the kings supream court of judicature , and where henry the th said , upon occasion of what happened in parlament in the case of ferrars , that he was informed by his judges that he stood highest in his royal estate . therefore even those acts of parliament , that erect a judicature of all the judges in the exchequer chamber , to examine and reverse erroneous judgements given in the kings bench , and in the exchequer , do not exclude an appeal , even from thence , to the parliament : the words of the statute of . eliz. are these : and be it further enacted , that such reversal or affirmation of any such former judgement shall not be so final , but that the party , who findeth him grieved therewith , shall and may sue in the high court of parliament , for the further and due examination of the said judgement , in such sort as is now used upon erroneous judgements in the kings bench. and it doth naturally and necessarily follow , that it must be so , if the house of peers be the supream court of judicature . that the high court of parliament is so , no man will deny . it rests only to make out , that by the high court of parliament in matter of judicature is intended the house of peers , where such jurisdiction is solely lodged . and that it is so , it will be proved by good authorities , and by right reason . the authorities are taken out of the parlament rolls , which declare it throughout from the beginning to the end , both in the ancient records , and in the modern journal books ; they all speak the house of peers , that is king and lords , to be the sole judges both of persons and things , criminal and civil , and the house of commons to have no part in it at all . the first parlament roll extant is . e. . and it begins with a judgement given by the peers upon roger de mortimer e. of march , per qoi les ditz . countes barouns & piers , come juges du parlement , per assent du roi en mesme le parlement agarderent & aiugerent que le dit roger come treitor & enemy du roi & du roialme feust treyne & pendu . the earls barons and peers as judges of parlament , &c. they are characterised judges of parlament as a thing known and notorious to all men. they at the same time exercised their judicature upon sir simon de bereford , john mautrauers , bogo de bayons , john deueroil , thomas de gurney , and william de ode , who were commoners and no peers , those were all condemned , but only sir simon de bereford executed , for the others were not taken , and none of them all , neither the earl of march , nor bereford , called to answer ; but the lords were forced to condemne them by the earnest pressing of the king , which so troubled their consciences , that they presently came to an agreement with the king , not to be hereafter compelled to give judgment upon any but their peers ; which is that of . e. . n. . which is hinted in a paper , said to be , reasons prepared by the house of commons for a conference with the lords , and to be read to their lordships , as a matter of huge importance to disprove the power of the house of peers of judging commoners , when it was only an agreement , as it were a bargain , made with the king , that he should not force them to judge any but their peers , ( for that was a thing they were tied unto by law , and they could not avoid it ) ne soient mes tenuz ne chargez a rendre juggementz sur autres , are the words of the record ; i see not what great matter can be built upon this president to dispossess them of their judicature ; it was a voluntary act of the lords at that time , even an effect of their indignation against themselves , for having yielded to doe an unjust thing , at the pressing importunity of the king , to condemne men unheard , and not called to answer for themselves , as the lords themselves confessed , . e. . when an act of parlament passed to reverse this judgement : but that they did afterwards commonly judge commoners in criminal causes is very apparent . that very parlament , notwithstanding that agreement made , sir thomas berkley was tried before them by a jury , for the death of edward the d , and acquitted . the house of commons themselves , . r. . n. . come and desire the lords to exercise this judicature upon such as had betraied forts and towns into the hands of enemies , the words are , supplie est per les coēs que touz ceux qont renduz & perduz chastelz on villes per de la per verray desauce de capitaine puissent estre a response a ceste parlement & solonc lour desert forsement puniz per agard des srs. & baronage ; &c. that they may by the judgement of the lords and the baronage , be severely punished according to their deserts : the lords accordingly cause to be brought before them william de weston , for surrendring the castle of outhrewick , and john de gomeniz for surrendring the town and castle of arde , and adjudged them to death . the same parlament alice perrers , who had been in high favour with edward the d. was questioned devant les prelats & seigneurs , before the lords spiritual and temporal , for maintenance and medling with businesses contrary to an ordinance made . e. . n. . for which they adjudge her to be banished , and to forfeit her whole estate . sir ralph de ferrers , . r. . was brought before the lords by the duke of lancaster , who had arrested him on the marches of scotland upon suspicion of high treason , for holding correspondence with and adhering to the french , the kings enemies , by reason of a packet of letters taken up by a beggar in a field near london , some from him to the king of france and to some french lords , and some from them to him , which the beggar carried to the lord major , and the lord major to the kings councel : these letters were produced in parlament against him , and by him denied . being put to his trial , he desired counsel , which was denied ▪ then the business coming to hearing , i l semblast as srs. du parlement que le dit mr. rauf estoit innocent , the lords declared him innocent , and committed the beggar to prison . the . r. . n. . peter de cressingham , and john de spikesworth , were tried for surrendring the castle of drinkham in flanders , spikesworth was acquitted , and cressingham committed to prison : the same parlament , sir william elmham , sir thomas tryuet , sir henry de ferriers , sir william de farnedon , and robert fitz-ralph , for receiving moneys of the french , who were the kings enemies , and delivering up forts into their hands , were adjudged to prison , and to a fine and ransome at the kings will ; sir william de farndon , to be at the kings mercy body and goods , so as the king might take his life if he pleased . . r. . n. . the serjeant at arms john de ellingham , is sent by the lords to fetch up some persons , that had committed a ryot in the church of whitewyk , in lecestershire : he brought up the two chief actors in it , henry tebb de threnguston , and robert grenlowe , whom the lords committed to the fleet , there to remain during the kings pleasure , and where they did remain , till they paid a fine to the king , and made agreement with the prior of holland in lancashire , ( whose the church was , and whom they had in the church abused ) and given bond for their good behaivour . . r. . n. . the abbot of saint osithe sets forth in his petition , how the parlament before upon his complaint , their lordships had sent john rokell to the tower for embracery and maintenance against him , that the duke of guien and lancaster , had after that made an award between them , and that rokell did now refuse to stand to that award . the lords send for rokell , the duke testifies the award , the lords charge the chancellor to see that rokell perform it . that same parlament , sir william brian for purchasing a bull from the pope directed to the arch-bishops of canterbury and york , and the bishop of london , to make inquiry after some persons , who had broken into his house at london , and had taken out several writings , and other things , and to excommunicate them . this was adjudged by the lords to be prejudicial to the king and his crown , in derogation to the law of the land , a great contempt to the king , and they committed him to the tower. . h. . the lords condemn john hall , servant to the duke of norfolk , to be hanged drawn and quartered , and his head to be sent and set up at calez , for murdering there the duke of glocester . . h. . n. . they send sir philip courtney to the tower , and bind him to the good behaviour , for making a forcible entry upon lands of sir thomas pomery , and for imprisoning by force the abbot of newenham in devonshire , and two of his monks . . h. . n. , . several rioters are complained of , and order given upon it for writs to the sheriffs , to apprehend their persons , and seise upon their estates , and they to answer for their misdemeanors before the justices of the kings bench , to whom authority is given to end those businesses . all these were commoners , yet they with many others , who upon perusing the journals will be easily found , were adjudged by the house of peers , some to death , some to prison , and some to other punishments , as fine , and good-behaivour , and some ordered to be proceeded against in the courts below , and power given to those courts to do it , which is all one , as if they punished them themselves : and all this , notwithstanding that agreement made in the th year of e. the d. which shews , that their intention then was only , that they should not be put upon it by the king , but not to put it out of their own power . and one thing i must observe by the way , that though the judgements be commonly given in the kings name , yet it is the act of the house , where the king is always virtually present , when they act judicially ; not so , when they act in their legislative capacity . therefore sometimes when the king had taken upon him to pronounce a judgement of himself ( or rather something like a judgement ) the lords have protested against it , as . h. . n. . . the duke of suffolk was impeached for many treasonable matters : and not putting himself upon his peerage , but referring himself to the king , and to his order ; the king then by the mouth of the chancellor declared unto him , that he should be banished for five years ; and this ( as the words of the record are ) by force of his submission , and by the kings own advice , and not reporting him to the advice of his lords nor by way of judgement ; for the king ( he said ) was not in place of iudgement . and though this was but done in such a manner , the king even excusing it , that it was not by way of judgement , yet because it looked like one , the viscount beaumont on the behalf of the lords , and by their advice assent and desire , protested against it , prayed it might be entered in the parlament roll that they did so , and that it might not turn to the prejudice and derogation of them and their heirs , in the liberty and freedom of their peerage : so jealous were they then of their priviledge of judicature , that they would not suffer any thing to pass , not from the king himself , that did but looke like a violation of it : but their predecessors went further than this in henry the fourths time , for here they suffered the king to have his desire only with a salvo to themselves , but . h. . n. . they absolutely opposed the king in what he would have done , and would do it themselves in another way : for the earle of northumberland coming into parlament before the king and lords , and by his petition acknowledging his offence , that he had done contrary to his allegience in raising men , and giving of liveries , and therefore begging pardon , and the rather for that upon the kings letters , he had yielded himself and come to the king at york ; the king having thereupon delivered this petition to the justices to have them consider of it , the lords protested against it , said , the ordering of it belonged to them : and that therefore as peers of parlament , to whom such iudgement belonged , they would take the business into consideration themselves , and then examining the statutes , that of . e. . of treason , and of the second of the then king h. . against liveries ; upon well weighing them they adjudged the earle of northumberlands fact to be no treason , but only a trespass fineable to the king : whereupon the king pardoned him , and received him into favour . and the lords were not more careful to assert and maintain this jurisdiction of theirs , than all english-men were to acknowledge it , the judges both in and out of parlament have ever had a deference to it ; in the year-book of e. . termino michaelis , pag. . an action being brought upon the writ de rationabili parte bonorum , and some difference being of opinions , if the action was good , that learned judge moubray delivered his , qe les seignours en parlement ne graunteront my que cest accion est maintenable per ascun comune custome ou ley de ce realme . the lords in parlament will not yield this action to be maintainable , he meant , they had judged it otherwise : and to that judgement of the lords , sir edward cook , hath reference in his comment upon littleton , sect. . where he saith , that it hath been resolved in parlament , that a custome must be alledged in some county , &c. to enable the wife and children to the writ de rationabili parte bonorum . it would be but labour lost , to heap up more proofs , and more presidents for the asserting and maintaining of the judicature of the house of peers ; yet i shall add one more , which is in truth instar omnium , for it is a law having the concurrence of king , lords , and commons , not a constituting-law , but a declaratory-law , ( which is the strongest asserting and confirmation of any law or custome already established , that can be ) . it is that of the . h. , n. . the record saith , that the commons come and shew to the king , that as iudgements in parlament belong only to the king and lords , and not to the commons , except in case it please the king out of his special grace to acquaint them with those iudgements in favour to them ; so that no entry ought to be made prejudicial to them , to make them parties now or hereafter , to any judgements given or hereafter to be given in parlament : to which the arch-bishop of canterbury answered by the kings command , that the commons are but even petitioners and suitors , and that the king and lords have ever had and ever shall have right to the judicature of parlament , as the commons do themselves set forth ; saving that the king will have their advice and assent in making of laws and granting of subsidies , and doing such things for the publick good : this order to be observed and kept in all times to come . here is a cleare renunciation of all pretence to judicature by the commons themselves , and a full declaration and acknowledgement of it to be only in the king and lords , that it hath been ever so for the time past , and must be so for ever in time to come : and this declared by king , lords and commons , as a thing notorious , known to all men , and not disputed or doubted of by any . what can be said against this ? yes , that paper which goes about from hand to hand , that i mentioned before , of reasons prepared for a conference , saith , that this record was made upon occasion of judgements given by the lords , to depose and imprison their lawful king , to which the commons were unwilling to be made parties : admit it were so , yet no man would think that the house of commons would , to avoid that present inconvenience , divest themselves to all intents and purposes of so great a priviledge , if in other things and before that time they had ever had right to such a priviledge ; nay more , that they would say against themselves a thing in it self untrue , if it were untrue , as in truth it is not , but is most true , viz. that judgements in parlament belong only to the king and lords , and not to the commons . this is not to be believed , being against the general practice of all judges of courts , that will ampliare jurisdictionem , rather than deliver it up or diminish it , and very contrary to their practice in particular , who have been far from suffering any of their power of judgeing and imprisoning any body , to grow less and weaker since the . of h. . in ferrers case , which is the first time that ever they judged or imprisoned any body , even of their own members , much less any other body for what offence soever , though never so much in violation of their priviledges : and that was when ferrers a member of their house sitting the parlament , was arrested and imprisoned in the counter , and their serjeant sent by them , only to demand their member to come and attend the house , ( not to bring those who had arrested him as delinquents to their bar , or any wayes to punish them ) yet he was beaten , his mace broken , glad to return himself , and leave the member behind . then could they with their speaker come up the whole house to the lords bar to complain , and pray them to do them justice : and the lords upon hearing this complaint , judged the contempt to be very great , and referred the punishment to them , being themselves it seems upon other business , and not at leasure for that . here was the beginning of the house of commons punishing any body , they were permitted to inflict the punishment , when the house of lords had judged the offence . for before that time they could but complain of any wrong received , the lords were to judge of it , and punish the offender . if a sheriff had not carried himself well in an election of a knight of the shire , the lords took course in it . . h. . n. . the sheriff of rutlandshire had returned onby instead of thorp , who was duly chosen , the lords upon complaint to them , command him to amend his return , and commit him to the fleet , and put him to fine and ransome at the kings pleasure . . h. . n. . the sheriff of cambridgeshire had made no return at all : the king by advice of the lords spiritual and temporal orders a new election , and the sheriff to make proclamation , that no person come thither with arms in disturbance of the peace . . h. . n. . many knights of counties and other members had been unduly returned , yet were received to sit , the commons come , and desire they may be allowed for good , and no sheriff incur for it the penalty of the statute . h. . which the king and lords assented to at their request . if any of the members or their servants were beaten or wounded , or arrested , the house of commons could not themselves punish them by their own authority , but must come to the king and lords , and pray in their aid , sometimes to punish them judicially , sometimes to make an act 〈◊〉 parlament for it , as was done . h. 〈◊〉 the case of rich. chedder , servant 〈◊〉 tho. brooke knight for sommerset●●●●e ; who was assaulted and beaten by one iohn savage : the king by the advice and assent of the lords at the request of the commons ordained that savage should appeare and yield himself in the kings bench , within a quarter of a year after proclamation made for that purpose , and appearing or not appearing ( if attainted of the fact ) should pay double damages to the party , and make fine and ransome at the kings will ; and so to be done in time to come in like cases . and n. . of the same parlament , the commons pray , that all such persons as shall arrest any knight , or burgess , or their servants , as parlementz venantz , illeoques demurrantz , & a lour propres restournantz , coming , staying , and returning ( not forty dayes before the sitting , and forty dayes after , as now ) should pay trebble damages to the party grieved , and make fine and ransome at the kings will. . h. . n. , . tho. thorp their speaker , and walter raile a member , during a prorogation , had been taken in execution , and laid up in prison : when the parlament came , they wanted their speaker and one of their members , and there-upon sent up some of their number to the lords to complain , and desire them to set them at liberty , ( far from going about to do it themselves ; ) the lords advise with the judges , and after consultation think not fit to deliver them , because they were imprisoned upon a condemnation before parlament , when there was no priviledge , which they signifie to the commons , and charge them in the kings name to chuse another speaker , which they did , one sir thomas charlton . yet if any of the members or their servants , were arrested within time of priviledge , then upon complaint the lords did use to set them at liberty , as they did , . h. . n. . william lake servant to william mildred burgess for london . . h. . n. . walter clerk burgess for chippenham . . e. . n. . walter hyde , burgess for the same place . . e. . n. . iohn atwell burgess for exeter . but the house of commons never pretended either to discharge any body out of prison , or to commit any body to prison , or impose a fine in any case whatsoever , till that th of h. . when it was in one particular case permitted , and referred to them by the house of peers : nor indeed can it stand with reason and the rules of justice , they should have such a jurisdiction , in regard they cannot give an oath . and is it rational or any wayes just , that any man should either be disseised of property or deprived of liberty , without there be testimony upon oath , that he hath done some thing to deserve it ? this seem to be against the fundamental laws of the kingdome . all this considered , it is not probable , ( were it true , that the house of commons did dislike that acting of the lords in the case of rich the second , to unthrone and imprison their lawful king ) that yet out of that dislike , and to avoid the present evil of being made joynt actors in , and parties to that particular judgement , they would renounce being parties to any , and for ever debar themselves of a power and priviledge , which did justly belong to them ; nay more , say , they never had such a power , that it belonged onely to the king and lords , and that their part was but to sue and to petition : this is hardly to be believed . but who reades the story , will see that the inference is not true , and will find that at that time the common people , and even that house of commons were full as much , if not more than the lords , displeased with king richard , and favourers of henry the th , who did so much rely upon the affection of the people , that he brought no military force with him out of france , where he had remained in banishment , and that he landed at rauenspurre in holderness only with fifteen lances , but soon encreased to an army of threescore thousand men , for ( as historians say ) his strength was in the hearts of the people , where king richards should have been , who had so little of their good-wills , that when he was sent from chester to london , certaine citizens had conspired to way-laye him and kill him , if the lord major having intelligence of it , had not prevented it , himself riding forth with convenient company to guard him to the tower. and when the parlament came , which henry the fourth then duke of lancaster called by wri●●s of summons in king richards name , the house of commons was as forward as the lords in every point , for decrying , condemning , and deposing of king richard ; when his resignation was declared unto them by the arch-bishop of yorke and bishop of hereford , whom king richard had made his atturneys for that purpose , and they were demanded , if they would assent and agree to it , they with one general voice did expresly accept and admit the same . when the articles of his charge were read unto them , they all agreed that his crimes were notorious , and he worthy for the same to be deposed of his princely dignity , and joyned in appointing commissioners , two knights , sir thomas erpinghan and sir tho. grey for them , to goe with two prelates and two temporal lords for the peers , to the tower , to pronounce unto king richard the sentence of his deposition : and they promoted several things that parlament in favour of henry the th and his friends , and to the depression and reproach of richard the second , and his friends , which they inserted among their petitions , which according to usage they presented at the end of the parlament , which being granted at their request were established for acts of parlament . so as the penner of that paper of reasons for a conference was much mistaken in what he there said of the commons being then unwilling to be made parties to that judgement because it was to depose their lawful king , and sure he either never had read the story of those times , or had forgotten it ; otherwise he would have knowen , that they were as busie actors as the lords in that deposing , i mean in the prosecution of it , though not in the judgement given upon it ; to which as to all other judgements they disclaimed to have any right or interest . and it is in my opinion rather an unanswerable argument , that they had no interest , nor could have none , in any judgement , their disclaiming it at this time and upon this occasion , when they knew , that nothing would be done to displease them , and they were sure to obtain almost any thing they would ask with reason , and with any colour , of a new king so much beholding to them , whose best title to , and strongest hold of his new-gotten crowne , was their affection and good-will towards him : therefore the lords may very well owne the citing of that record , and not account it any dishonour to them , notwithstanding the gentle admonition given them to the contrary by the writer of that paper of reasons . and so , i hope , i have sufficiently evinced this truth , that the sole j●dicature of parlament is lodged in the house of peers , and that all who come for relief to parlament must have it there . it now rests to shew , that it extends to the relieving of such as have suffered wrong in courts of equity , and receiving of appeales from those courts ; we have already seen , that in case of delay of justice , the house of lords doth give relief , and by the same reason they may do it in case of deniall of justice , and of doing injustice : and in truth , there is greater reason for it , for when justice is but delayed , a little waiting and patience may happily bring a remedy ; but when an unjust decree is given , there is a ne plus ultra in that court , no help is to be there expected , and without such an appeal the party grieved must be without remedy . then , why not as well receive an appeal from a court of equity , and give relief upon it , if there be cause , as to reverse an erroneous judgement upon a writ of error from a court of common law ? as hath been said already , there is more danger from a court of equity , where ones doome depends upon the will of one man , that is not tied to the strict rule of law , than where there are four judges , who have that strict rule to goe by : and can it be believed , that in a government so well modelled and established by the wisdom of our ancestors , as this is , there should be a standing known remedy appointed for the lesser evil , which apparently will more rarely happen , and none for the greater , which probably may befall us much more frequently ? in the third place , one may argue thus , by the constitution of this government generally from all inferiour courts , where any body is grieved , he may appeale to a superiour , and so gradatim , till he come to the highest of all , the supreame judicature in parlament , as . e. . n. . was said to the bishop of norwich , that errors in the common pleas were to be corrected in the kings bench , and of the kings bench in the parlament . so from particular courts , that are in several counties , and from judges of assize , yea from ireland , the party grieved resorts to the courts of westminster , and from them to the parlament , this is the ordinary tract , but where it is otherwise provided by act of parlament in special cases to make some judgements in some judicatories finall ; else the last resort , where all appealing terminates , is the supreame court of parlament , whither they have still come from all the courts in england , sometimes gradatim by steps going first to other courts , sometimes immediately per saltum from the court it self , where the judgement complained of was first given . and so have they received complaints , and given relief from sentences in the star-chamber , as in . april . to mr. lambert osbolston ; in the high commission to nicholas bloxam , . febr. . and to sir robert howard , december . the same parlament , and to iohn turner , december . who had laine fourteen years in prison , by a sentence of the high commission : so from an order of the counsel table , to william waters , and thomas waters , ianuary . who had been committed thence for refusing to pay ship-money , and they made dr. clerk , and dr. sibthorp reimburse their charges , and pay them l. damages for procuring them that trouble by a false certificate . the th . of february , from a sentence in the ecclesiastical court at glocester , by which iohn radway , william newark , and walter coates , had been committed to prison and excommunicated . and february . the lords gave relief to abraham hill , who had been committed to prison by the major of colchester . multitudes of such presidents may be produced , who will take the pains to look over the journals ; but these are sufficient to shew , that upon complaint the house of peers hath still given redress to what ever hath been done amiss by any other court , ecclesiastical or civil , court of law , or court of equity , and was never found fault with till now . but now they must not meddle with appeals from decrees in chancery , and if a member of the house of commons be concerned , it is then a breach of their priviledge , and that house will punish any counsel that shall appear at the lords barr to plead against a member , together with the party himself that brings the appeal , and all others employed by him in the solliciting and following his business . so then a person that cannot obtaine justice in chancery , who perhaps hath been brought thither against his will , and is barred by an injunction there from pursuing his right in any other of the kings courts of westminster , and that wrongfully ( as injunctions are some times laid on in chancery ) : there he cannot have right , but is opprest with an unjust decree , and he hath no remedy , but must lie under that oppression , and the supreame court of judicature in the kingdome , which receives complaints and gives relief against the erroneous proceeding of all other courts , must be impotent in this behalf ; this is not only a derogation to the high court of parlament , but it would be a great defect in the general administration of justice in this kingdome . to this is answered , yes , there is a remedy proposed to prevent a failer of justice , the king may grant a special commission whensoever there is occasion to certain persons ( to the judges , as it was . eliz. ) to reheare the cause and give relief to the party grieved : but it is replied , first , that it may be doubted , if this can be done without an act of parliament . secondly , admit it may , yet as the king may grant it , so he may refuse it , for there is no law to make him do it ex debito iustitiae , therefore if he doth it , it will be but ex gratia & ex mero motu , which doth not salve the objection , that there would be a defect in the established rule for the administration of justice , which ought to make the doeing of justice a necessary duty incumbent on the magistrate ( be he supreame or be he subordinate ) and not leave it voluntary to himself , to be ad libitum . it cannot be believed , that the wisdome of our ancestors would leave the administration of justice so loose and uncertaine . we see how in the time of henry the eight , when they annexed all ecclesiastical jurisdiction to the crown , they by act of parlament . h. . c. . gave the king power by commission under the great seal to appoint such persons , as he shall name , to reheare any cause judged in ecclesiastical courts , whereof any person is grieved and will appeal , and it cannot be denied him : so in queen elizabeths time they provide for those who are grieved with judgements given in the kings bench or exchequer , and because parlaments were not so frequent as formerly , that men should not stay long for relief , , & . eliz. they appoint a rehearing by all the judges , meeting in the exchequer chamber , from whence they might afterwards have their recourse to parlament : but still the statute leaves it to their election to sue in parlament , and not go to the judges at all except they please : now , can we imagine they would take no care to give relief from unjust decrees in chancery , but that the current of justice must there be at a dead stand ? a man perhaps be ruined against all law and equity , and no help for him , no remedy , for so it must have been , if a parlament could not relieve him : for that way of having a commission under the broad seale directed to the judges , was never thought on till about the . of the queen in those few cases , nor hath it ever been practised since that wee know , so as wee may be bold to affirme , that our ancestors knowing the parlament , to be the supreame court , to which all persons aggrieved with the proceedings of inferior courts , did apply themselves for relief , and there had it , thought it not needful to make any other provision for those who should receive wrong in chancery ; where heretofore they did not often doe wrong , because in those dayes they had little worke , not meddling with many causes , and the chancellors were commonly church-men . sir edward cook saith , that the first decree in chancery that ever he observed was . r. . and that an act of parlament had passed that same year , which gave the first ground for those proceedings , giving the chancellor power to award dammages according to his discretion to such as were vexed in that court upon untrue suggestions , such suggestions being duely found and proved untrue . certain it is , they were in those times very rare , the same sir edward cook saith , that none are found reported in their law-books before the reigne of henry the th . and this is one reason , why we find no appeales in the antient journals : besides ( as we have said before ) that the journals are many of them lost , and those that remaine are very imperfect . yet some there are : that very first decree before mentioned of the . r . n. . came to be examined 〈◊〉 the house of lords . the case was t●●s , iohn de windsor being put out of fossession of three mannors in cambridgeshire , by sir robert de lisle , they referr themselves to the arbitration of the king and privy councel , who find it reasonable that sir robert de lisle should restore them to windsor , and a decree is made in chancery to put this in execution : lisle then petitions that he may be left to the common law : the king grants it , sends a privy seal to the bishop of winchester , who was then lord chancellor ( and not william courtney arch-bishop of canterbury , as sir edward cook hath it ) to remand the whole matter to be tried at law : the chancellor doth it by a writ de procedendo under the broad seale . sir robert de lisle in the interim sells these lands to sir richard le scroope . iohn de windsor sets forth all this in a petition to the king and lords in parlament , and accuses sir richard le scroope of champerty . the lords order all the proceedings to be brought into the house , what passed in chancery , and what at the privy seal . all which was viewed and examined by them , and upon the whole matter they gave this judgement , quod non fuit nec habebatur aliqua cambipartia , quod predictus johannes nihil capiat per petitionem suam , quod predi●lus ricardus eat inde quietus , ac quod predictus johannes pro●equatur ad communem legem in hac parte si sibi viderit expedire . the lords here doe examine , and judge of what was done in chancery , which shews their jurisdiction to extend thither . and even their taking notice of any delay there , is argument sufficient of this jurisdiction , which jurisdiction the statute . e. . c. . doth fully prove to have been in them before the making of that statute ; for that statute doth onely provide for the placing it in some lords named by the house to be exercised by them after the parlament is risen , until it meet again , and for that interval of time : which shews that during the parlaments 〈◊〉 such an expedient needs not for the relief of those , who are de●ayed in chancery , because then the house doth it by a power inherent in them , and which so hath been time out of mind : for there is no record , when that power began , no more then for their power of rectifying erroneous judgments at the common law , ( so that , if the lords be asked , when that power was given them , and where it is recorded ? they may answer as the house of commons answered them in another case , about imposing upon merchandize , that it will be found on the back-side of the record , by which they are authorised for erroneous judgements : for in truth there is no more a record for the one then for the other ) . both those powers are naturally of the ess●nce of a parlament , not conferred upon it by any law extant ; but as the common law of the land , it is by prescription , time out of mind , which is the difference between the common law and statute law : the common law is by an●ient usage and custome , of which no man knowes the beginning : statute lawes have a knowen time of beginning , when first they were made and established by king lords and commons in parlament , before which time they were not in being . now we may say that the power to correct the errors of inferior courts , as well of law as of equity , and so of the chancery is lodged in parlament , as a part of their judicature , by the common law of the land ; i say of the chancery , both as it is a court of equity , and as it is a court of common law ; for both those courts are in chancery , that of common law coram domino rege in cancellaria is of all antiquity , and upon a judgment given in this court lies a writ of error returnable in the kings bench , and consequently from thence to parlament : that of equity is not so antient , it is a power growen up by degrees ; sir edward cook saith , that some are of opinion that a statute made . e. . did first give the chancellor this authority , which opinion he confutes , and refers it rather to another statute of . r. . as hath been said before ; however it is certain that in principio non fuit sic , in the beginning it was not so ; and when ever , or how ever it began , when once it was begun and had a being , it became subordinate to the jurisdiction of parlament : which one may boldly conclude both upon the general reason , of all inferior courts being subordinate to the supreame court , and particularly from the constitution of the court of chancery , which in it's antient legal capacity , as it acts secundum legem & consuctudinem angliae , is in such a subordination , and a fortiore then ought it to be so , acting in a capacity of a later acquisition , and in a more arbitrary and irregular way . in latter times , that is from . iac. all the last kings reigne , and so much as is past of the kings reigne that now is , presidents are frequent of appeals in parlament from decrees in chancery , ( which yet is five and fifty yeares ) and it hath formerly been the opinion of the house of commons , that moderne presidents were best ; and strongly was it urged by them in the case of the earle of clarendon , to induce the lords to commit him to prison upon a general impeachment of treason without special matter shewen , from one single president of that being done in the case of the late earle of strafford , against multitudes of presidents produced to the contrary . but now they are of another mind . and because we find not in the antient rolls of parlament presidents full in the point of appeals from unjust decrees in chancery , they doe deny , that the parlament hath now such a power of receiving appeals . to which it hath been already said , that the antient rolls since the time that the chancery hath acted as a court of equity in . r. . are many of them lost , those that remaine are very general , especially since henry the sevenths time mentioning onely publick bills , scarce any thing of particular businesses , sometimes naming the parties that had sutes depending in the house of peers , but not expressing the matter in difference , that one cannot tell whether they were appeals or original causes ; let any body peruse the journals of parlament of h. . e. . q. mary and q. elizabeth , and he shall find it so . but goe to the times before , and you will see that the house of peers did exercise their jurisdiction over the chancery , as well as over all the other courts of westminster ; and this they have done in all times . the statute of . e. . shews they did it in case of delay of justice . and they have sometimes stopped a proceeding in chancery , and ordered the businesse to be proceeded in in another court. . r. . n. . sir philip darey complained that the prior of st. iohn's of hierusalem ●ued him in chancery for two mannors , which he said that edward the d had granted to his father , and produced a deed , shewing that the priors predecessor had passed away the fee of those mannors to edward the d. the lords order that deed to be carried to the barons of the exchequer , they to examine the king's title , and the proceedings in chancery to be stopped . the same parlament the earle of pembrook and william de zouch complaine that sir robert roes , and thomas his son sued them in chancery for certain lands in yorke-shire that had been formerly belonging to william cantloe , pretending certaine feoffments to have been made by cantloe to their advantage , and that they endeavoured likewise to get an order for a tryal in the countrey where they were powerful ; the lords take the matter into their own hands , and refer the examination to three of the judges , kneuet , cavendish , and belknap to examine and report , who doe report those feoffments to be otherwise then sir robert and his son pretended . the chancellors have themselves sometimes repaired to the lords for direction in businesses of difficulty and of consequence as . h. . the abbot of ramsey sueing in chancery for a prohibition to stop proceedings in the execution of a sentence given in the arches against his tenants in a case of tythes , the bishop of durham lord chancellor , brought the business into the house of peers to have their direction in it , declaring all that had passed before him ; and counsel then being heard on both sides , the duke of bedford ( who was guardian of the realme in the absence of the king ) and the lords asked the opinion of the judges who were there present , the judges of ei - bench and the chief baron , charging them to give lour bon advis selone l'exigence de la ley pur de pluis seure exhibition de iustice celle part , to give their advice what was required by law for the more certain rendring of justice in that particular , which they did : and after mature deliberation sentu suit per le dit gardein & seignors selone l'advis de le dits iustices & baron , &c. it was resolved by the said gaurdian and lords according to the advice of the judges that no prohibition should be granted . we see by these antient presidents the power that the house of peers did heretofore exercise over the court of chancery ; it is true that we have not such frequent examples of it in those times as we have of latter dayes within some fifty or threescore years , since the work of that court hath swelled to that bigness as now it is , which hath furnished much matter for appeals ; and was never questioned till now . in so much as in the year when the case of skinner the merchant complaining of wrongs done him by the east india-company was before the lords , the house of commons interposing , and declaring against the lords meddling with an original cause , and denying them that jurisdiction ( to which notwithstanding their lordships had an undoubted right , and maintained it to the last both by reason and presidents ) yet the house of commons in all those debates and conferences upon that subject , alwayes allowed them their judicature in appeals and writs of error , which they said they did not at all question ; but now they are come to question appeals , one step further ; and upon the same ground , and with as much reason they may take away writs of error next , and so put an end to all judicature in the supreame court of judicature . but i hope i have made it clear , that both those parts of judicature are and must be essentiall parts of the supreame judicature , and the matters they concern to be wholly within the cognisance of it . that which i heare sticks with many , is the present constitution of the house of peers , composed of so many young lords , who have not experience in business , and may be thought to mind modes and fashions , more then serious things ; and perhaps the prospect of what is coming on , may in their opinion not give better hopes ; however right is right : if it be a right belonging to them , till there be a law to dispose of it otherwise , it ought not upon any prudential ground to be taken from them , that were to set the house of peers , very loose , for by the same reason one may as well take away all their other rights and priviledges . but let us take the house of lords as it is , though there be many young men , there are some more elderly , and it is they commonly that sit out hearing causes , and even amongst the young lords there be some that apply themselves to business : in the general , it may be said of that house , that many among them are persons of honour and of integrity , that will not be byassed , and of experience to understand and judge aright of such matters as are brought before them : the great officers of the kingdome are part of that body , who in all reason should be knowing men ; the chancellor of england is alwayes their speaker , who is commonly a person skilled in the law ; and they have all the judges of the land , to be their assistants , with whom they advice , and by whose advice they are guided in difficult points of law , as it is said in flouredew's case h. . ter. pasc. f. . senescallus cum dominis spiritualibus & temporalibus per consilium iusticiariorum procedent ad errorem corrigendum ; by the counsel and advice of the judges they shall correct the errors , viz. of the judgement complained of . so it is probable , and there is ground to hope and expect , one may find justice here , as soon as ●n any other judicatory ; nay perhaps sooner here . for when a lord chancellor or a lord keeper is concerned , as he is in all appeals from decrees in chancery ( which is the proper question at this time before us ) a commission to the judges , or to any other sett of men , is not so likely to relieve a poor man , that is opprest by an unjust decree , ( whereby those commissioners may incurre the displeasure of so great a person , by censuring and vacating his act ) as the house of peers , who are not in that awe of him and subjection to him , as all particular persons are . which consideration alone hath heretofore been sufficient to justifie the lords interposing even in the ordinary judicature of the kingdome , in causes between party and party : and the commons themselves did then so farr approve of this , as they made it their desire to the king , that it might be so : so as it passed into a law , to be an act of parlament , and a statute , according to the formality of making lawes in those times . r. . m. . they pray que querele entre parties ne soit attemptez ne terminez deuaunt srs. ne officiers du conseil mes que la commune ley courge sans estre tarie es lieux on ils soloient dancien temps estre terminez sil ne soit ticle querele & encontre si grande personne que home ne suppose aillours dauoir droit . the answer is , le roy le voet . they pray , that sutes between party and party may not be retained and determined before the lords nor before the councel ▪ but that the law may have its course , and no obstruction of it b● there where such businesses did antiently use to be determined , except it be in such a sute , and against so great a person , as one cannot otherwise hope to have justice ; and the king grants it . and . h. . n. . this statute is again confirmed . now i know not what s●●●e nor what business can be fitter to be within this exception , then where a lord chancellor or a lord keeper is concerned for the maintenance of a decree which himself hath made . besides we know what influence that great officer hath in all commissions , that issue under the great seal , for naming and appointing the persons that shall be commissionated by them : and certainly one that complaines of injustice done by so great a person would not willingly , that he should have hand in appointing the persons that must examine and redress it . so as all things considered , i do not see where such a power as this could better be lodged , then in the house of peers ; if it were not already there ; and that we were now to chuse where it should be placed . yet all men are fallible , and parlaments may erre , and do erre many times ; and therefore as commonly second notions and second thoughts are better , and consequently second judgements , so there lies even an appeale from the first judgement in parlament , but it must be still to the parlament , as the law books say , error in parliament convient estre reverse per parlament , that is in another parlament , or another session , not in the same . all this tends to shew , that not onely the right of appeales is in the house of lords , but that neither can it be better any where else : yet there is still one point behind , not yet treated of , which must be cleared before i make an end ; and that is , whether the lords may proceed upon an appeale , if a member of the house of commons be concerned : and the same question then may be moved concerning writs of error , for if the priviledge of that house extends to the one , it must extend to the other , the same reason being for both , as likewise for the lords not medling with any business , wherein any of their house is concerned . in the first place let us consider what the usage hath been heretofore , and what the judicature of the house of peers hath been , and how exercised in relation to the house of commons . that heretofore in the antient times even till henry the th . when the house of commons did need any thing , either for repelling any injury done to them , and punishing those who had done it ; or for supplying them with any thing they wanted and desired for their advantage and well being , they did then come and pray in the aide of the lords , who did examine the particular businesses , and apply the necessary remedies , ( they being altogether unable to help themselves ) hath i think been sufficiently proved already in the former part of this discourse . the question is now , as that was when they complained , and when it was at their desire , so if when others complained of them , and sought remedy against them , the lords had then power to receive the complaint , and relieve the party grieved ; which questionless they had : nor was it ever knowen that ever the house of commons did before pretend to such a priviledge , as that their members should be exempt from being put to answer in the house of lords , when any sute was there commenced against them . . r. . n. . sir philip courtney being knight for devonshire , presents himself to the house of peers disant coment il auoit entend●z que certeins gentz lui avoient accusez & esclandrez au roi & as seig rs . &c. saying , he heard he had been accused and slandered to the king and lords of doeing great wrongs , and prayed he might be discharged from serving in parlament untill he was purged and cleared of them , and the record saith , a cause que sa priere sembla au roi & as seig rs . honeste le roi luy ottroya sa requeste & lui en dischargea , because his prayer seemed reasonable to the king and lords , the king did grant him his desire , and discharged him of his attendance : this was upon the wednesday , the monday after at the request of the commons he was restored to his place and good name . that very parlament he was again petitioned against by nicolas de pontingdon for dispossessing him of the mannor of bygelegh , upon pretence that thomas his father was a bastard ; and by richard somestre likewise , for dispossessing him of some land in thurverton ; he appears upon it , and those differences are referred to some person there named to end them by a certaine time , which it seems they could not doe ; for in . h. . i find pontingdon petitioning still against him , and making the same complaint of the same unjust act , and then the lords referre the matter to be tried at law , but determine and appoint first what shall not be the point in issue , ( to wit a pretence of sir philip courtneys of a release made unto him by one thomas pontingdon a parson , ) then they appoint what shall be in issue ; to wit , the bastardy of thomas the father . the house of commons it seems did not in those dayes find fault , that a business concerning a member was by the lords entertained , and a determination made in it ; and more , that a member should think himself unworthy and unfit to sit in the house of commons , because there was an accusation brought into the lords house against him , and to make it his sute to the king and lords to dispence with him from sitting , till he was cleared , and till that he stood right again in their good opinions : the house of commons did not then send him to the tower for shewing his respect and deference to the house of lords : so far from it , that they come themselves , sutors to the king and lords in his behalf , and pray that he may be restored to his place in their house , as likewise to his good name , and at their request the king and lords doe it . there was not in those dayes the least question made , nor the least difference between the two houses upon on this score : now , counsel has been pulled from the bar in westminster hall , and sent to the tower for having but pleaded at the lords bar in a cause , wherein a member of the house of commons hath been concerned , & the so doeing voted a breach of their priviledge ; which would not have been so thought heretofore , as appears by this president . and there are other presidents both old and new , which demonstrate the truth of what i say . . r. . , . iohn earle of pembrook , and william le zouch complaine in their petition , a lour tres redoute seignor le roy & as seig rs . du parlement , that sir robert de roos of ingmarthorp , and thomas his sonne sued them in chancery , and endeavoured to get a tryall at the assizes in the countrey , for some lands settled upon them by their kinsman william de cantlow , which settlement sir robert roos ( they say ) maintained to be otherwise then in truth it was , and to be for the advantage of his son , by which means he would recover those lands from them . the lords refer the business to three of the judges , who are to call all parties before them , to examine the matter ; and to report it to the house : which they did , and then delivered the examinations and the accompt of their proceedings in writing to the clerk of the parlament . sir robert roos was then knight of the shire for yorkshire , yet being summoned appearred before those judges , who had order to examine him , and the business which concerned him . . r. . n. . sir william de eurcester and margaret his wife set forth in their petition , several eomplaints of the miscarriages and deceitful dealings of sir thomas hungerford entrusted by them in many businesses ; who had warning to put in his answer , luy quiel monsieur thomas ( saith the record ) vint en parlement & en sa persone faisant primerment sa protestation de adjouster corriger & amender si embusoigneroit , y fist sa responce & le mist avant en parlement en escript en la forme que sensuyt , la responce de thomas hungerford chevalier , &c. that is , the said sir thomas came into parlament in person , making first protestation , to adde , correct and amend as there would be need , then put in his answer in writing in the forme following , viz. the answer of sir thomas hungerford , &c. he was then knight for sommersetshire . and this appears , as well for him as for sir robert roos , ( that they respectively served for those counties ) by the writts de expensis militum , which are in the clause rolls in the tower for those parlaments : the journalls of parlament say nothing of it , nor can it be expected they should , for the names onely of the persons and of their business are there recorded , whether or no they were members of parlament is not mentioned , nor taken notice of , as not materiall , nor no wayes altering the case : sir philip courtney indeed is in the journal expressed to be knight for devon , upon that special occasion of his coming up to the lords house and desiring to be discharged his attendance till he was purged , else neither had he been knowen to be so by the record of the journall . we may see that by the journals now ; where mens names are entred as there is occasion for it of businesses in which they are concerned , but never of their being or not being parlament men : yet , it being within our memory , we remember some , as sir arthur ingram . jac. may . he was then a member of the house of commons , yet one mrs. grizil rogers petitions the house of lords , complaining how she was sued and vexed in several courts by him and others there named for some lands in sommersetshire , and she desires their lordships to end those differences and to settle her title ; upon which there is a long order made for that purpose ; every particular thing in question between them is determined , and all sutes are ordered to cease in those other courts . in the parlament of . car. . apr. . sir robert pye was a member of the house of commons , and yet the lady dyer sets forth in her petition to the lords , how he and one mr. button had extended lands belonging to sir richard tichburne at a far under-value , so as she who had likewise a judgement after theirs upon those lands for a debt oweing to her , was in danger to lose it : the lords order counsell on both sides to agree upon drawing up assurances for the satisfying of all parties , the parties themselves to signe and seale them , and so the lady dyer to be paid her money . the house of commons then found no fault with these proceedings , there was no quarelling with the lords , nor questioning of their jurisdiction , no vote for committing of those , who petitioned for relief in a cause against a member , no sending of counsell to the tower for pleading for their clients at the lords bar , no stop of the current of justice : it was then observed , what the wisdome of our fore-fathers had enjoyned westminster the d. nemo recedat a curia regis sine remedio ; but , if that should be allowed , which is pretended , and challenged by the house of commons , as their priviledge , if a member of theirs be concerned , though a man have received never so hard measure , though never so erroneous and unjust a judgement have been given against him in any of the courts of westminster hall , ( for there is the same reason for both , for writs of error from a court of law , as from appeals from a court of equity , if priviledge of the commons house , exempts from the one , it must exempt from the other ) there is no help for him , he must sit down , and lay his hand upon his mouth , and not once whisper , but must recedere a curia regis and that the chief court , the supreame court , sine remedio . so here is an absolute failer of justice , which as sir edward cook saith , the law abhors . and as it seemes to me , it is upon an irrational ground ; for here is priviledge of parlament against the parlament it self ; which makes a parlament felo de se to give a priviledge , which enervates it's power , a power which is proper and peculiar to parlaments , the dernier ressort , by which it helps , when no other court can help ▪ this is taken away , and cannot exert it self , when a member of the house of commons is concerned : against the rule of all courts , for in other courts as chancery , kings bench , exchequer , the officers that belong to those courts claime a priviledge to be sued no where else , but no priviledge to free them , that they shall not be sued in their own courts : now the house of peers is a court of judicature , as it is a part of the parlament , pars constituens of a parlament , and the members of the house of commons have priviledge , as they are members of parlament , and as their house is the other pars constituens of a parlament , for both together are partes constituentes parliamentum , and both make but one parlament , though they be two several constituting parts . and it is not rational to think that either of those parts can be entituled to a priviledge , which shall abridge the other part from doeing those functions , which are proper and natural to it . as if the house of peers should assume to themselves a priviledge , that the house of commons could not without their leave and consent first had , propose the raising of moneys by way of tax or subsidy : this is against the nature and constitution of our parlaments , and therefore it cannot be imagined , to be true , that such a priviledge can belong to the lords , by one that understands any thing of the nature of parlaments : and truely it is even as great an absurdity to say , that the house of commons hath a priviledge to give a stopp to the lords proceeding in the hearing of a cause , as a court of judicature , if one of their members is concerned in it : for the hearing of causes by way of appeale or of writ of error , is as proper and as natural to the house of lords , as a bill of subsidy to begin in the house of commons , is proper to that house . but i have heard it said , that this would be destructive to the house of commons , if the lords could compell their members to appeare at their barr , and attend their causes there ; and if they would not appear , commit them , as is the use of other courts ; for , say they , as they commit one , they may commit more , and even fetch them all out of the house , to leave none or not a number to attend the service there . but first , this is a mischief so unlike ever to happen , that one need almost as little fear it , as the skie falling to kill all the larks , if it were so , that they should take upon them to commit those that would not appeare and answer ; for it is not to be imagined , that so many would be concerned in appeals or writs of error at one time , as that there would not be enough left to carry on the business of the house , since at most perhaps two or three in a whole session may be concerned . and if so small a number should , for their particular occasions , which they cannot avoid , being sued by others , be kept for some few dayes from attending the publick service , the matter seems not so great , since all along this parlament for twelve or thirteen years together , this house hath had the goodness to dispense still with the attendance of at least two hundred of their members , who have remained at their several homes , for their pleasure many , all for their private occasions , without coming at all to beare their parts of the houses service : this is more like to be an inconvenience to that service , then if the lords should commit two or three single persons amongst them for not appearing upon summons , when they are sued before them . but none of this need be feared : for the house of lords doth not pretend to a power of committing any member of the house of commons , if they will not appear , nor any body else for not appearing , or not answering being sued before them in a civil cause : if they will not appeare by themselves or by their atturney , and put in their answer , being lawfully summoned , and having no lawful excuse for not doeing what is required of them , and what they ought to do , but will stand out in contempt of their jurisdiction , they will proceede to hear the cause ex parte , and determine it , as they did in the case of the deane and chapter of st. cedde in lichfield , and the prior of newport-pannel upon a writt of error . r. . n. , . &c. the deane and chapter had the parlament before preferred a petition , an̄re s r. tres redoute le roi & a les nobles s rs . de cest parlement , &c. complaining of a judgement in the kings bench by which an annuity of mark per ann . and an arreare of an hundred , which they had recovered in the common pleas , was judged against them in the kings bench , and had prayed a scire facias for the prior to appeare returnable this parlament , which was granted : and the prior now solempniter vocatus , non venit , being solemnly called appeared not : whereupon the record saith , decanus & capitulum petierunt iudicium parliamenti , & quod ob defaltam nunc prioris procedatur ad examinationem recordi & processus praedicti brevis de errore , quod in parliamento concessum est . the dean and chapter demand judgement , and that upon the default of the prior , they will goe on to examine the business , which the parlament granted . they do so , and then give judgement for the dean and chapter . and in truth there is all the reason in the world it should be so , that a man , who wilfully and contemptuously will refuse to appeare , and will not stand to the law , should at least not receive benefit and advantage by his contempt and by his own default : otherwise , it is but not appearing , and one is sure never to have any thing judged against him ; but he shall keep what ever he is once possest of , right or wrong . therefore the house of commons need not fear being deprived of any of their members for their being sued in the house of peers ; their persons are safe whether they appeare or no ; but that must not hinder the lords doeing right to others , who have to doe with those members , and have cause to complaine of some judgement given in their behalves in an inferiour court : so that objection falls to the ground . nor in truth have i heard any that is of weight , to make me so much as hesitate in my opinion of the truth of those positions , which i have ever believed to be most true , and which i laid down at first to be the ground of which discourse , and this i have endeavoured to make out to the satisfaction of others ; as first , that the parlament is the supreame court of judicature , to reforme and redresse the failings of inferiour courts , when either they delay justice , or give wrong judgements . secondly , that this jurisdiction is solely and singly in the house of peers . thirdly , that the house of peers exerciseth this jurisdiction , to the reliefe of those who are aggrieved and complaine , be it a court of law or a court of equity they complaine of . fourthly , that members of the house of commons are not more exempt then others from this jurisdiction , when they are concerned in any case that is complained of . now whether or no i have performed what i undertooke , and said that which will satisfie those who will be satisfied , others must judge : this onely i will be bold to affirme , that in all i have said , i have delivered the truth , and nothing but the truth , but perhaps not all that is truth upon this subject ; for i doubt not but much more may be said by those that know more then i doe , and who are better skilled in the antient records of parlament then i am ; yet i have said so much , and am so much more confirmed in my former opinion and belief of this truth , by looking a little further into it , and examining it more narrowly , then otherwise i should have done , if it had not of late been questioned and strongly opposed , that i shall be glad to heare what can be said against it , and what reason can be alledged in maintenance of that opposition ; till when i shall rest , heartily wishing truth may prevaile , and that to stand and be submitted unto , which is agreeable to justice , equity , and the antient usage and custome of this kingdome . finis . errata . page , . line . for defauce , read defaute , and l. . for forsement . . fortement . postscript . in the citing of the record of the agreement between the king and lords . of e. . mentioned pag. . one passage in it may be thought to have been purposely omitted , which truly was meer inadvertency : and it seeming to restrain the judicial power of the lords , that it should not extend to the judging of commoners , i have thought fit to insert it here . the words are these ; after saying , that it was agreed between the king and lords , qe les pieres qores sont , ou les pieres que seront en temps auenir ne soient mes tenuz ne chargez a rendre jugements sur autres qe sur lur pieres , there is added , ne a ce faire mes eient les pieres de la terre poer , eins de ce pur touz iours soient deschargez , & quitez . that the peeres of the land may not have power to doe this , but that for ever they may be discharged and freed of it , that was , of judging any but their peeres . and if this had been an act of parlament , which had passed both houses , and becomed a law by having the kings assent to it , no question the lords had been bound up ; and without another act of parlament to repeale this , they could not have exercised that jurisdiction , which they have exercised ever since in all parlaments , and which those lords themselves , who made that agreement and bargaine with the king , did afterwards exercise in that very parlament , in the case of sir thomas de bercley , whom they tried for the murther of king edward the d. the truth is ( as is before said in this treatise ) it was but a sudden effect of passion , and of an indignation which they had conceived against themselves , for what they had been forced by the king to do most unjustly , in condemning the earle of march , and sir simon de beresford to death without calling them to answer . nor yet do they say , they had not power , clean contrary , it appears they had it , for they desire that power may be taken from them , that neither they nor their successors may have it for the future , but then having it , they could not by this act of theirs divest themselves of it . for nothing but a law could doe that , and it is cleare that this was none , but meerely an order of that house , of which themselves were masters , ( as the house is still of all it's orders , and may alter or revoke them as it pleaseth ) and themselves it seems did revoke this order , for they afterwards in that very parlament did the contrary in the case of sir thomas de barcley . but admit they had done so , and that their order had still continued in force as to them , it could have no operation upon succeeding parlaments to bind them . so as this record cannot be said to be of any signification to impeach the power of judicature which is in the house of lords , no not in the least degree . but i was willing not to conceal any thing , which hath but a semblance the other way : and indeed indeed the truth will the better appear , and be made the more clear and perspicuous , by shewing the weakness of all that can be said against it . finis . densell hollis esq. his speech at the delivery of the protestation to the lords of the upper house of parliament may, wherein is set forth the reasons that moved the house of commons to make the said protestation : together with a short narration of the severall grievances of the kingdome. speech at the delivery of the protestation to the lords of the upper house of parliament, may holles, denzil holles, baron, - . this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (wing h ). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing h estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; :e , no ) densell hollis esq. his speech at the delivery of the protestation to the lords of the upper house of parliament may, wherein is set forth the reasons that moved the house of commons to make the said protestation : together with a short narration of the severall grievances of the kingdome. speech at the delivery of the protestation to the lords of the upper house of parliament, may holles, denzil holles, baron, - . p. printed for j. a., [london?] : . reproduction of original in thomason collection, british library. eng great britain -- history -- charles i, - -- sources. a r (wing h ). civilwar no densell hollis esq; his speech at the delivery of the protestation to the lords of the upper house of parliament. . may, . wherein is s holles, denzil holles, baron d the rate of defects per , words puts this text in the d category of texts with between and defects per , words. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - jonathan blaney sampled and proofread - jonathan blaney text and markup reviewed and edited - pfs batch review (qc) and xml conversion densell hollis esq his speech at the delivery of the protestation to the lords of the upper house of parliament . . may , . wherein is set forth the reasons that moved the house of commons to make the said protestation . together with a short narration of the severall grievances of the kingdome . printed , for i. a. . densell hollis esq his speech at the devery of the protestation to the lords , may the fourth . . my lords , the knights , citizens and burgesses of the house of commons , having taken into their consideration the present estate and condition of this kingdome , they find it surrounded with varietie of pernitious dangers , and destructive designs , practises and plots , against the well being of it , and some of those designs , hatched within our own bowels , and viper-like working our owne destruction . they finde iesuits and prests conspiring with ill ministers of state , to destroy our religion , they finde ill ministers conioyn'd together to sobvert our lawes and liberties . they finde obstructions of iustice , which is the life-blood of every state , and having a free passage from the soveraigne power where it is primarily seated as the life-blood in the heart , and there derived from the several iudicatories , or through so many veines , into all the parts of this great collective body , doth give warmth and motion , to every part & member , which is nourished and inlivened by it . but being once precluded stoppd , and reared as the particular must of necessity faint and languish , so must the whole frame of government be dissolved . and consequently soveraignty it selfe ( which as the heart in the bo●● , is pri●um movens , & ultimum moriens , must dye and perish in the generall dissolution , and all things as in the beginning in antiquum ch●os . ) my lords , they find the property of the subiect invaded and violated , his estate rent from him by illegall taxations , monopolies and proiects almost upon every thing that is for the use of man , not onely upon superfluities but necessaries : and that to enrich the vermine and caterpillers of the land , and impoverish good subiects , to take the meat from the children , and give it to dogges . my lords , if the commons finde these things , they conceive they must needes bee ill counsels that have brought us into this condition . these counsels have put all into a combustion , have discouraged the hearts of all true english men ; and brought two armies into our bowels , which is the vulture upon prometheus , eates through , and sucks and gnawes our very hearts out . hic dolor , sed ubi mediei●a ? heretofore parliaments were the catholicall , the balme of gilead , which healed our wounds , restored our spirits , and made up the breaches of the land . but of late yeares they have 〈◊〉 like the fig-tree in the gospell , without efficacy , without fruit , onely destructive to their perticular members , who discharged 〈◊〉 〈◊〉 and consciences no way beneficiall to the common-wealth . nobis exi●iale , nec reipublico 〈◊〉 . as hee said in tacitus , being taken away still as elias was with a whirle-wind , ne●●r comming to any maturity , or to their naturall end whereas they should be like the bl●ssed old man , who dieth , plenus dierum , in a full age after hee had fought a good fight , and ourcome all his enemies , or as the shocke of wheat , which commeth in due season to fill our granaries with corne , uphold our lives with the staffe of bread , for parliaments are our prius quotidianus , our true bread , all other waies are but quelkachoes which yeeld no true nourishment , bread , nor good blood . the very parliament which hath sate so long , hath but beat the ayre , and strive against the streame , i may truly say the wind and tide , hath still beene against us . the same ill counsell which first raised the storme , and almost shipwrackt the cummon-wealth , they still continue , they blow strong like the east wind , that brought the locusts over their counsels , crosse our designes , cast difficulties in our way , hinder our proceedings , and make all that we do to be fruitlesse and ineffectuall : they make us not masters of our businesse , and so not masters of many , which have beene the great businesse of this parliament , that we might pay the armies , according to our promises and engagements . for my lords , our not effecting of the good things which we had undertaken , for the good of the church and of the common-wealth ; hath wounded our reputation , and taken off from our credit . is it not time then , my lords , that we should unite and concentrate our selves , in regard of this anteperistasis , of hurtfull and malicious intentions and practices against us . my lords , it is most agreeable to nature , and i am sure most agreeable to reason , in respect of the present coniuncture of our affairs , for one maine engine by which our enemies worke our mischiefe , is by infusing an opinion & beleef into the world , that we are not united among our selves . but like sampsons foxes , we draw severall waies , and tend to severall ends . to defeat the counsels of these achitophels , which would involve us . our religion , our being , our lawes , our liberties , all that can be neere and deere unto an honest soule , in one universall and generall desolation , to defeat i say , the counsels of evill achitophels , the knights , citizens and burgesses , of the house of commons ( knowing themselves to be specially entrusted with the preservation of the whole , and in their conscience are perswaded that the dangers are so eminent , as they wil admit of no delay ) have thought fit to declare their united affections by entring into an assosciation amongst themselves and by making a solemne protestation and vow unto their god , that they wil unanimously endevour to oppose and prevent the counsells and counsellours which have brough upon us all these miseries and the feares of greater , to prevent the ends and bring the authors of them to condigne punishment and thereby discharge themselves , better before god and man . the protestation your lordships shall have read unto you , together with the ground and reasone which have induced the house of commons to make it , which are prefixed before it by way of preamble . then the protestation was read by mr. maynard . finis . a true relation of the unjust accusation of certain french gentlemen (charged with a robbery, of which they were most innocent) and the proceedings upon it, with their tryal and acquittance in the court of kings bench, in easter term last published by denzell lord holles, partly for a further manifestation of their innocency, (of which, as he is informed, many do yet doubt) and partly for his own vindication, in regard of some passages at that tryal, which seemed very strongly to reflect upon him. holles, denzil holles, baron, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing t _variant estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) a true relation of the unjust accusation of certain french gentlemen (charged with a robbery, of which they were most innocent) and the proceedings upon it, with their tryal and acquittance in the court of kings bench, in easter term last published by denzell lord holles, partly for a further manifestation of their innocency, (of which, as he is informed, many do yet doubt) and partly for his own vindication, in regard of some passages at that tryal, which seemed very strongly to reflect upon him. holles, denzil holles, baron, - . [ ], p. printed by j. darby for richard chiswel ..., london : . reproduction of original in the huntington library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng thieves -- england. great britain -- history -- restoration, - . - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - jonathan blaney sampled and proofread - jonathan blaney text and markup reviewed and edited - pfs batch review (qc) and xml conversion a true relation of the unjust accusation of certain french gentlemen , ( charged with a robbery , of which they were most innocent ) and the proceedings upon it , with their tryal and acquittall●● in the court of kings bench , in easter term last . published by denzell lord holles , partly for a further manifestation of their innocency , ( of which , as he is informed , many do yet doubt ) and partly for his own vindication , in regard of some passages at that tryal , which seemed very strongly to reflect upon him . london , printed by j. darby , for richard chiswel , at the two angels and crown in little-britain , . conceiving my self under some necessity , not onely to make known the innocency of a couple of young gentlemen of the french nation , whom a curiosity of seeing other countries besides their own had brought into england , and who , by a great deal of art and malice , had been drawn into danger by a robbery laid to their charge , of which they were as free as the child new born ; and also to vindicate my self of some blemish , which was endeavoured to be cast upon me at the tryal of those gentlemen in the kings bench , as if something had been done by me , not fair nor justifiable , in the carriage of that business , and some harsh usage which i received in court : these considerations have induced me to make publick the whole proceeding from the beginning to the end . but by the way , let me answer one thing which may be objected , why i have staid so long to set out this narrative , it being now almost a twelve month since these transactions were , which gave the occasion for it ? to which i say , that it was still my desire , before i made it publick in print , to be judicially cleared in my reputation ; and before i did apply my self to any higher power cither king or parliament to be so cleared , to do my self first that right , to declare the truth of all passages , whereby the clearness of my proceedings might appear , i still being in the same capacity , and upon the same level , as i was , when those indignities were put upon me , and when such a disguise was put upon the whole business as the truth could not appear , that was , to give a full and true account of all in an ordinary court of justice , which i would have done then in the kings bench , but could not be suffered , and for which i knew i should have an opportunity , when those gentlemen should bring their action against the persons who had so falsly and ma●itiously accused them , as they have since done in the court of common pleas , and there i did them and my self that right , to lay open the whole matter , with which the court and jury were so well satisfied , that they had a verdict for four hundred pounds dammages against them ; and after that , i immediately made my complaint in the house of lords for what concerned my self , where i have received that justice , which hath abundantly satisfied me , ( my honour being the only thing dear unto me , which before had been blemi●hed , and was there cleared ) and now i come to present it all to the publick view , and shall do it as succinctly as i may , with all candor and sincerity . these two gentlemen , one , a youth of about years of age , called valentine simon chevalier de hoeville ( that is , knight of hoeville , according to the french stile , he being destinated ( it seems ) by his parents to be a knight of malta , when they use to give them the appellation of knights , even while very young before their going thither to take upon them the vow and the habit : ) the other , his name is adrian lampriere s t des mezieres , young also , but nineteen years old , and of a good family in normandy as well as the other , both of them neighbours to my wife , and to her estate in those parts . these two young men , young●r brothers , but with money in their purses , came hither , not to rob upon the high-way , but to see fashions , and have seen one with a witness not very well to be liked by them : they landed at ratcliff , the second or third of november ; and having a recommendation to lodge at master sedgewick's house , a ba●●●r , in the strand , they came thither , and there they continued , till forced to lie in a prison against their wills. though they were neighbours , and their parents of acquaintance and friends to my wife , yet she heard not of them , till they were made to cry to her out of the goal of hartford ; they excused it afterwards that they would not see her , till they had put themselves into black clothes , as most wore at that time . they kept in their lodgings , and scarce ever went out , but to their dinners and suppers at an ordinary ( as several credible witnesses made it out at their tryal ) from the day of their coming to london , until the thursday sennight after , which was the th of november . that day , they and three others of their countreymen ( whom they had fallen acquainted with here ) agreed to go see a merchant about barnet , with whom they had some business ; missing of him , they resolved to go see hatfield house . one of their company onely spake english , whose name was beauuais , themselves not one word , and the other two as little . for this journey they hired horses , in two or three places , from several persons , the best horse not worth above three pounds . these horses were brought to their lodgings upon the thursday morning , their landlord's wife passing her word for them . one of the company had no boots , a young youth , whose father is a rich merchant in paris , his name boutandon ; he lay in long-acre , and took horse there ; and it is said , they had much adoe to get him upon his horse , having scarce ever been upon one before , and boots it is certain he had none at all , nor they say never had any : and not a pistol among all five . in this equipage they began their voyage , how like to be high-way men , let any man judge , especially having no language , nor no knowledge of the countrey , or of one foot of the way in it , and horses that could scarce go out of a way when they were in it . they came to hatfield upon the market day , went into the market , saw hatfield house , and coming back to their inn , the town did rise upon them , and apprehended them for thieves , that had robbed four butchers , whose names were robert simons , robert bellingham , edward lawrence , and solomon grace , upon totternol hill in bedfordshire the monday before , being the eighth of november , between three and four of the clock in the afternoon . those butchers among the rest came , and viewed them , and having seen them , one or two of them ( as i have been told ) were very doubtful of accusing them ; solomon grace by name , saying ( as one murrel a chirurgion who did then reside in hatfield , and was present , hath assured me ) that he would not for the world say , they were the men that did the robbery : onely two of the butchers said , they thought they were them , and going into the stable , said , they thought they knew one of the horses . they kept them there all the thursday , trying to get the money from them which the butchers had lost , about pound , upon which condition , they said they would let them go , and not carry them before a justice . but they refusing it , they then upon the friday morning carried them before sir francis butler : he examined them , and heard the accusation of the four butchers , without giving them their oath ; and upon the bare saying of three of them , one , that those men were like those he saw upon the road , the other two , that they did believe them to be those that robbed them : he made his mittimus , and sent them to the goal at hartford , whither they were compelled to walk on foot : and when they came thither , were presently put into irons , and laid in a low damp room , with scarce any light to it , no bed , and only straw to lie upon ; and so they lay from friday the twelfth of november , till the sunday fortnight after , seventeen dayes , more like dogs then persons of any quality : and no body at london had known what had become of them , if that murr●l , whom i named b●fore , hearing them tell where they lodged in london , had not of himself come and given notice at that house , that their guests were in hartford goal . the examination and the mittimus follow verbatim . the examination of solomon grace , drover ; robert simmons , robert bellingham , and edward lawrence , butchers , all of the parish of edmondron in the county of middlesex , taken before me , one of the justices of peace for the county of hartsord , upon the th of november , . solomon grace saith , that he riding on the road near totternol , saw five young men afoot , with their horses in their hands ; he suspecting them , made haste from them ; and being got at a good distance , stayed to let his horse drink , but seeing them coming towards him , he galloped away , and heard one of them say , farewel old man ; and looking about , saw them all turn back towards totternol hill , which was about a mile distance from him ; and saith , that the persons apprehended are very like those he saw upon the road. robert simmons saith , that on monday , being the eighth of november , . about three or four of the clock in the afternoon , upon totternol hill , in the parish of totternol , he was robbed , and had pounds taken from him , and believes the persons now apprehended , are the men which robbed him . robert bellingham , as to time and place , agreeth with robert simmons , and further saith , that he and robert simmons , and edward lawrence , riding together , espied five men coming towards them , which they judged to be thieves , and therefore putting spurs to their horses , thought to escape them by riding , but two of them overtaking him , one of the two clapt a pistol to his breast ; they searched him , and finding no money , they took his bridle and his girdle , and the other three pursued robert simmons , and he verily believes that the black man , which calls himself adrian lamperiere , is the man that pulled the bridle off his horse . edward lawrence saith , he was in company with robert simmons and robert bellingham , on the forementioned day , time , and place , and saw the five men , which they suspected to be thieves , but being well horsed , escaped . the examination of paul bovey , adrian lamperier , john boudandon , valentine chivalier , and guinet chateuneuf , all french men , taken before me , one of his majesties justices of the peace for the county of hertford , upon the th day of november . paul bovey saith , that he is a servant to one of my lord chamberlains sons , mr. edward montacute , but that he lodgeth at mr. munduglas his house , in george lane in kings-street , westminster . he saith he came to hatfield upon the th of november . with four of his friends , to see the earl of salisburies house , and that on monday before , he and one of his friends dined at the scottish ordinary in bedfordbury , and on tuesday they all five dined in the same place . adrian lamperier saith , that he came into england the second of this instant , and that he lodgeth at one sedgwick's a barbers , over against the maypole in the strand . john boudandon saith , he came into england the th of august last , and lodgeth in long-acre , at a semstress house over against the castle ; and that he tradeth in merchandize . valentine chevalier lodgeth with adrian lamperier , and came into england with him . guinet chateauneuf lodgeth with paul bouey , which monsieur bouey hired all the five horses , upon which they rode to hatfield . sedgwick past his word for three of the horses , who lives in the strand over against the may-pole ; and all but bouey affirm , they were not out of london since they came thither , until the fore-mentioned th of november . the mittimus . to the keeper of his majesties gaol for the county of hertford . i herewithall send you the bodies of paul bouey , adrian de lamperier , john boutandon , valentine chevalier , and guinet chateauneuf , brought this day before me , and charged with the felonious taking away twenty seven pounds from robert simmons of edmondton , and rifling robert bellingham upon totternol-hill , on the th day of this instant november , between three and four of the clock in the afternoon : these are therefore on the behalf of our sovereign lord the king , to command you to receive the forenamed paul bouey , adrian lamperier , john boutandon , valentine chevalier , and guinet chateauneuf , and them safely to keep in your gaole until they shall be thence delivered by due order of law : hereof fail not . given under my hand and seal at hatfield-woodhall this th of november , in the th year of his majesties reign . francis boteler . mr. sedgwick their landlord presently sent his son to hertford to them , and with him their servant , whom they had left in london ; and that servant they sent back , with a letter to my wife , to let her know who , and where they were : with which she acquainted me upon the monday-morning , i being at that time sick in bed . whereupon i sent for sedgwick , who came to me immediately , and brought with him the men of whom they had hired the horses , and his son , and ( as i remember ) a servant of his . he gave me an account of those gentlemen , assuring me they had not been out of london from the time of their coming thither , till that thursday ; and that he believed them to be very honest men , they having carried themselves very civilly in his house : and however , that he would take his oath , they had not committed any robbery upon monday the th of november , for he knew they were all that day in london ; which his son and servant likewise affirm● 〈…〉 men of whom the horses were hired , said , they 〈…〉 but that thur●day . and he off●red himself to 〈…〉 , but said he could not possibly go thither to 〈…〉 till the wednesday ; upon which day i sent one with him to joyn in the bayl ; they first went to sir ●●●ncis bot●ler , the justice that had committed them , told him who ●●●se gentlen w●●e whom he had committed ; that they were persons known unto me s● far , as that i would answer for them , being very well assured that they were not guilty of that robbery , as having not stirred out of london all that day on which the robbery was done in bedfordthire , at thirty miles distance from thence , nor had been out of london from the time of their arrival thither out of france , till the day before he committed them to hertford-gaol , which was three dayes after the robbery , when they went from london to see hatfield-house ; and that therefore i had sent them to him , to be their bayl : but all this would not prevail with sir francis boteler , who bade them go to some other justice , saying , it was not fit for him who had sent them to prison , to take bayl for them to let them out . he was then desired , they might not lie in irons : but he would not meddle with that neither , saying , he left that to the gaoler , who knew how to keep them . so they left him , and went to seek some other justice at hertford , and when they came thither , they found a letter there from mr. justice morton , that then they could not be bayled . the letter was directed to the gaoler of hertford as follows . sir , there being information given to my lord chief justice and my self , that there are five high-way robbers apprehended in hertfordshire , and committed to the goal , i am desired by my lord chief justice to require you to look carefully to them , that they do not escape out of your custody , and to iron them well : and withall to write up unto us by what names they are committed to you , and what their true names are , if you have or can discover the same ; because we are informed , that they refuse to declare what their true names are ; and the return thereof you are to send by this bearer , and to be very careful that they may not escape , or be bayled without our special order : and this we require you to perform at your utmost peril . chancery-lane , nov. . . postscript . i pray you , that the bearers hereof be admitted to view the prisoners , and to confer with them . so sedgwiek , and he that went with him to bayl them , returned next day to london , re infecta , brought me copies of the examination , mittimus , and of judge mortons letter : with which i presently went to serjeants-inn to the judge , and discoursing the matter with him , made it appear they could not be thieves : so he said , they should be bayled , but that he must speak first with the chief-justice , because the letter had been written by his advice , and he would give me an account of it the next day in the lords house : he came accordingly , and then told me the case was altered , since he had seen me , for that the butchers had now been with the lord chief-justice , and positively charged them with the robbery upon their oaths , so as now they were not baylable . i replied , i thought it strange , that first a justice of peace should send men to prison without any oath against them , of so much as suspition , keep them so long in irons , so hardly used ; and after several dayes lying so , their accusers to be sent for to swear to their accusation , when they had not done it before ; so to make good a posteriore , what upon their commitment before was not good . ( for certainly their imprisonment , and all the duress they had suffered , without an accusation upon oath , and to refuse bayling them , was unjust and illegal : ) and i said , the king should be acquainted with it : which he was , and the chief-justice was sent for , and i commanded by his majesty to attend at the same time , which was the monday after in the morning : when we came thither , the chief-justice telling the king they were highway-men , and i affirming they were not , and that i would undertake for them body for body : his majesty said , they should then be bayled , and commanded the chief-justice accordingly to do it , who said he would ; but yet was it a whole week after , ere i could get them brought to the kings-bench bar to be bayled ; for just that day sennight after , upon the monday , they were brought thither , and there i entered into a recognizance of two thousand pounds for their appearance at the next assizes at bedford : and all that week they had lain in irons in their nasty hole at hertford : nay , i am credibly inform'd , that when they were brought to the side-barr in westminster-hall in the morning before the court sate , the chief-justice was angry , because they had not irons on ; which was a very great severity to poor young gentlemen , strangers , whom the king had commanded to be bayled , and whom ( if i may say it without vanity ) a peer of the realm had undertaken for , in the presence of his majesty . at bedford lent-assizes they appeared , and were indicted , but their tryal was by the king's command removed by certiorari into the king's-bench . and the first day of easter term they appeared there : whither i went not my self with them , because the small-pox was in my house , which made me keep within doors , but i sent my son , bade him do my service to my lord chief-justice , tell him the occasion why i came not , and that he was there to perform what was to be done for the bayling of those gentlemen : now it seems the use is upon such a kind of bayl , after an indictment upon a certiorari , to require four persons to answer for the prisoner body for body : so my son offered himself , and mr. sedgwick the landlord to these gentlemen , ( a substantial man , worth at least two or three thousand pounds ) and two other men , french-men , but house-keepers , and that live in a good fashion , to be the bayl : the chief-justice asked those two , what estate they had , and if they would swear , that all their debts paid , they were worth three hundred pounds , which they refusing to do , he put them by , and would not accept of them for bayl ; which i am told is not usual to be requied of such kind of bayl , that undertake body for body for a prisoners being forthcoming . well bayled they were not , but to prison they went , and there they continued until their tryal upon wednesday the th of may , at which i was present in court. that day they were brought to the barr , and the four butchers came , their accusers , and were sworn in court , of whom three charged them with the robbery ; and solomon grace was one of the three , who had refused to swear against them , when they were first seized on at hatfield , and afterwards at london when the lord chief-justice sent for him ; and i am very certain that he said afterwards in my house in my hearing , and of several of my servants , that he had not sworn against them , nor would for all the world ; ( the occasion of his coming to my house i shall hereafter relate : ) the fourth man , edward lawrence said , he saw the five thieves at a distance , but he rode for it and escaped , and could not say it was those five men at the barr. a fift man was produced , one george pettifo●d , who said that he rode in company with beauvais within half a mile of totternel-hill about two of the clock in the afternoon that day that the robbery was , but could not say any thing to the robbery : the butchers said also , that two of the horses which they rode upon , when they robbed them , viz. that which adrian lampriere had , a bay with a white face and white feet , and that which beauvais had , a gray , were taken with them at hatfield ; where , upon the hue and cry all the five men were apprehended . simmons said further , that beauuais was the man , that took his money ftom him : and bellingham said , that the black man , ( who was adrian lampriere ) when he overtook him , held a pistol to his breast , and swore to him dam-me what money hast tho● about thee ? and then rifled him , and finding nothing , took his girdle , and pulled his bridle off his horses head . and the same bellingham some-while after being again asked and put to it , to repeat what lampriere said , and in what language he spake , when he came to him ; he then answered , that he said dam-me , and jabberd to him , but he knew not well what he said : so would not stand to what he had positively said before of lamprieres asking him , what money he had in his purse : and i dare affirm that at that time mr. lampriere could not have spoken so much english to have gotten thereby all the money in england ; of which one pinson ( that teacheth strangers the english tongue , whom he hath since had to teach him ) will take his oath . this was the charge . then the prisoners being required to answer to it , mr. lampriere began to give an account of himself , what he was , and what had brought him into this kingdom ; that he was a gentleman , and came not hither to robb upon the high-way : that his friends would rather wish him a thousand times dead , than to be branded with such an infamy ; and so was going on , when the chief-justice interrupted him , and bad him speak particularly to the matters of his charge ; ( and certainly what he was saying was much to the purpose , to shew in the first place the improbability of his being guilty of such a fact , by being a gentleman , a stranger in this country , and whose friends would detest him if he had committed that fact ; ) he then only named some persons , and desired they might be heard , to prove , that he could not be guilty of that robbery , for that he was in london all that monday the th of november , when the robbery was committed upon totternol-htll in bedford shire . and first , one mr. richard compton , an ancient gentleman , and ( as i am informed ) a justice of peace in his country , was produced , who said , that he lodged in the same house with the two gentlemen at the barr , at mr. sedgewick's the barber , that he saw them there , and spake with them the saturday , understanding french a little , and saw them and spake with them the monday , which was the th of november , first in the morning , and then at two of the clock in the afternoon , and again at five of the clock the same evening : ( so then if he said true , it was impossible they should be that day robbing at totternoll-hill ; and a grave person of that quality affirming a thing in such a solemn assembly in a court of justice is certainly more to be believed , then those butchers , even upon their oathes , who as it appears cared no more to hang men with taking a false oath , then to have knockt one of their calves in the head , and accordingly it seems the jury did believe him , ) he said further , that he saw them also the wednesday , and thought he saw their horses on thursday , which they rode on to hatfield . the chief-justice asked him , how he came to take so good notice of his seeing them the monday ? he answered , that when he heard they were taken as highway-men , and to have done a robbery such a day , he had recollected his memory , how he had seen them at times all that day in london , and had set it down in a paper , with the day of the month , and pointing to the two gentlemen at the barr , to shew he meant them , the chief-justice bad him name them , he said , he knew not their names , which the chief-justice presently laid hold on , and asked him , how then he could give such a testimony of them ? he answered , that they had told him their names , but he had forgotten them , and called them still only monsieurs . next thomas doughty , an antient man likewise , a sollicitor , was called : he said , he saw those two gentlemen in mr. sedgwick's house , saturday the th of november , and the monday being the th at three of the clock in the afternoon ( just the hour of the robbery ) and saw them also there the tuesday , and the wednesday ; the chief-justice asked him , how he came to take so much notice of them ? he answered , that he followed business for mr. sedgewick , and so had occasion to come often to the house , where he saw them . then mr. sedgewick was heard , who said , that those two gentlemen , viz. mr. lampriere , and the chevalier , came to his house the d of november , being then newly arrived out of france , and recommended by some body , that had told them there were some in it that spake french ; and that from the time of their coming to london , till the thursday sennight that they went to hatfield , they had not been out of his house above two hours at a time , and then only to their dinners and suppers at an ordinary in swan-alley : and that particularly upon monday the th of november , they were in his house all the morning till about eleven a clock , and then went out to dinner to the ordinary , and came back about one or two , and staid within till supper time , and then went to the ordinary , and came back after supper : the chief-justice asked him , where they dined upon the sunday before , he said they dined with him at his house : and that the tuesday and wednesday following they were within both forenoon and afternoon , only going out to their meals : that thursday they took horse at his door to go to barnet , with a resolution to see hatfield-house before their return . mris sedgwick ( his wife ) said , that those two french-gentlemen came to their house upon the d day of november about ten of the clock in the forenoon , brought thither by a waterman , to whom ( they having no english money ) she gave a crown for them : that they went out to dinner to the ordinary , and afterwards came back , and lay upon their beds , and she saw them no more till the next day , when she changed some french gold for them ; that from the d to the th of november that they went to barnet , they were not above two hours at a time out of doors : that mr. beauuais went with them , because he spake english : that they said if they found not their merchant at barnet , they would go to hatfield : that the passed her word for their horses ; and not seeing them come home again on thursday , she much wondred at it , and on friday in the evening one came to tell them , they were in hertford gaol : that they sent letters to the lord holles , who knew them : that three of them took horse at their door about nine or ten of the clock in the forenoon , and were to meet the two others in drury-lane : and that the horses were so bad , as they said it would be a shame to be seen upon them . i must note here that upon the naming of me , and mentioning the letter , that should be written to me , the chief-justice seemed to be moved , and said some thing which i did not well hear , whereupon i stood up , and said , my lord , i shall give you an account how i came to be concerned , and so began to tell , that they were gentlemen , neighbours to my wife in normandy , who came over hither to see the country , and falling into this misfortune , writ a letter to my wife to acquaint her with it , not to me , ( which was a mistake in the witness ; ) and so was going on to relate what i knew of the business ; but his lordship was pleased in a very angry peremptory manner to interrupt me , first asking if i was to give evidence , then bidding me forbear , and saying i must not interrupt the court. i replied , that i hoped it was not to interrupt the court ; nor to do them any wrong to inform them 〈◊〉 as much as was possible of all passages , that they might the better understand the whole truth of the business : he answered again very angrily , my lord , you wrong not the court , but you wrong your self : and it is not the first time you have been observed to appear too much for strangers . so i was snubb'd , and sate down again . but i must say , it was a language , i had not been used to , nor i think any of my condition , that have the honour to serve the king in the quality i do of a privy-counseller . then sedgwick the son was called , who said he knew those two , viz. mr. lampriere , and the chevalier , that they came to lodge at their house , the d of november , and their contiuned till the th . that the day before they went their journy all five met at their shop ; and that in the morning , three of them ( their two lodgers and beauvais ) took horse there , and said they should meet the other two in their way , and so go to barnet : that upon monday the th of november , he saw the two ( the chevalier and the other ) at home about ten of the clock , and again about two in the afternoon ; and that they staid within till the evening ; and the same account he gives of them for tuesday and wednesday . his sister mary sedgwick confirms what was said of their assiduous and constant being at home ; only adds this , that upon monday morning the th she carried up a landress to them to their chamber , and that the little man , meaning the chevalier , was in his bed about ten or eleven of the clock : and that every day after until thursday she saw them in her shop , she keeping a sempstress shop . philip lemmon a poulterer saith , that as he was watering his horse in the white-hart yard upon the wednesday , mr. lampriere , the chevalier , and beauuais coming by , beauvais asked him , if he had any horses to let ? and he said , he had but one : so they went , and he with them , to one hooper , who had but one neither , and asked s. for his hire , and they proffered half a crown : he said that his horse was a bay , with a white face and four white feet , hoopers was a little gray nag , and that there was a gray mare besides hired of another man : and said , that one capt. hill had hired his horse on the monday before to go to brickbill , and kept him till the wednesday : it is to be noted , that this was the horse , which the butchers swore , lampriere had under him when he robbed them , whereas it appears by this mans testimony , that one captain hill had him that day , and full two days after , for he brought him back to london but the wednesday , the day before these gentlemen hired him . mary hooper , wife to him that let out one of the horses , saith , that she sent the little gray nagg on thursday morning to mr. sedgwick's house , and that on the wednesday before she saw those three men with her husband hiring that horse of him : and note , that this was the other horse , which the butchers swore that beauvais ridd upon when he robbed them ; whereas it appears , that none of them had this horse till three dayes after that robbery , when they went to hatfield , nor was it beauvais who had himthen , but mr. lampriere ; so they swore falsly , for it appears , neither he nor the horse were there . william wood master of the victualling-house in swan-alley , witnessed , that mr. lampriere and the chevalier dined and supped at his house monday the th of november . the chief-justice asked him , how he came to take notice , that they were there just that day ? he answered , that there was a writing sealed between two persons at his house that day , and he had since looked upon the date of it , and found it to be the th of november , and he very well remembred that those two gentlemen were then present . the chief-justice then asked him , where they dined upon the sunday ? he said , at his house . whereupon mr. sedgwick was presently called , and asked again , where the gentlemen dined on sunday ? and he ( as he had done before ) said , at his house . of this the chief-justice took notice , shewing how the witnesses contradicted one another , which he said took off their whole testimony ( or some words to that effect ; and by the way let me say , that i would not be understood to take upon me to repeat still the very identical words that were spoken by any , but i am very confident , that i do not vary a tittle from the sense of what every one said . ) the same wood also testified that they had dined and supped at his house the tuesday , and the wednesday following ; so as it appears , they continued still in london until the thursday . then charles walrond came into the court and confessed , that himself , du-val , ashenhurst , cassels , and mac-guy were the five men that committed that robbery upon the butchers at totternol-hill upon monday the th of november ; that they robbed them about the middle of the hill ; that himself rode upon a brown gelding . that it was ashen●urst that took the money from the butcher , about l. odd money : the chief-justice then stopt him , and said , that he knew he would say what ever he was bid to say ; and then asked him , if he had been indicted for this robbery ? he said , no ; and the chief-justice replyed , now sirrah you have confest enough , and you shall be indicted , or you may be indicted , one of the two i am sure he said , but which i will not positively affirm . he had said in the account he gave , that one of the butchers breaking from them and galloping away , he followed him over some plowed-lands ; and the butcher asfirming it was stubble he rode over , the chief-justice made a great matter of it , insinuating , as if walrond had said false , and that he was not there at all , but meerly took this robbery upon himself at my sollicitation , upon hope of his pardon ; yet another of the butchers confessed there was both plowed-land and stubble : and what was it material which it was ? it had been no wonder , if neither could have told , and that both had been mistaken : for hardly doth either he that rides away from a thief as fast as his horse will carry him , and sufficiently frighted withal , or the thief that rides as fast after him to overtake him , mind the ground they ride over . then sir george cbarnock was called in to testifie what du-val and mac-guy had confessed concerning this robbery : but first i must tell , how the butchers ( and bellingham chiefly ) had a little before given information , that they had been sent for up to london by the lord holles his warrant , and carried to du-val at newgate , where du-val , mac-guy , and they were examined by two men , who pretended themselves to be justices of peace , and who after they had examined du-val , carried him to mac-guy , but first went in themselves , and staid with him half an hour , and when they came into the room they took him aside again , and spake with him in private a good space , acquainting him ( as bellingham said he conceived ) with what du-val had confessed , and promising him his pardon ; and that then mac-guy said the same things with du-val , and took the robbery upon him , as du-val had done before : i must note , that upon bellingham's saying they were sent for by me , i stood up and said , that it was done by the king 's express command . the chief-justice asked , who were those justices , and what were their names ? and used some expression to this sense , that those justices deserv'd to be sent to the gaol themselves ; and withal cast his looks upon me , and by his gesture and countenance seemed to mark out me , as the setter and contriver of a foul practice , to send those justices thither to make those condemned persons own the robbery , and acquit the french-men ; so as all the standers-by took notice of it , and looked upon me , as well as did the judge ; yet i sate still and would not say any thing in the court to vindicate my self , because i would not give any interruption to their proceedings , as the chief-justice had before told me that i did , and i believed he might again have said the same . but truly if i had done any unworthy thing even to have saved their lives , or had any design of suborning , or in any unfitting way perswading any body to do or speak for them , or had contributed any thing to the effecting of such a design , i should abhor my self for it . and after i shall have gone through with all the witnesses , i shall then give an account , and a very true one , of all my transactions in that business : and will now go on with the testimony of sir goarge charnock . he said , that himself and mr. andrew blackwell counsellor at law , and mr. william sedgwick , and one of his majesties messengers , were sent by me , together with bellingham and other the prosecutors , to du-val to newgate just before his going to execution : that they found him in a room , which was not very dark , and yet had also a candle in it , so as du-val , and the butchers mighteasily discern one another , and he asked them whether they knew one another ? du-val confessed that he and his camerades had committed the robbery upon those men , and named walrond , ashenhurst , cassels , and mac-guy to have been those that were then with him at that robbery ; that bellingham thereupon swore , by god he was not the person that robbed them : and du-val upon that said , friend be cautious how you swear and prosecute innocent persons ; for men of your profession , butchers , care not what you swear against any man ; and instanced in a robbery in surry committed by him , and others , upon some butchers , which they had charged peremptorily upon other persons that were innocent . and then said further to bellingham , you may remember it was i , by the same token , that you fled from me over the plowed-lands , and my horse tired , so , as i left following you , and walked back with my horse in my hand ; and sir george charnock said , that he then asked bellingbam what he said to that , and that bellingham was startled at it , and confessed it to be true , that he did ride away from them towards layton . and so was going on with his testimony , when the chief-justice interrupted him , and required him to answer a question which he would propose , which was , to know how long he had been with mac-guy before the butchers saw him ? to which he answcred , that he desired his lordship he might first give a full account of what du-val had confessed , and that then he would tell all that had passed with mac-guy : but his lordship would not suffer him , but said , pray you sir george go on no further , but answer this question . whereupon he told him , that he was a little while with mac-guy , but not alone , for mr. blackwell and young sedgwick were there as well as he , and that he asked mac-guy if he was one of the persons which had committed such a robbery ? and he denyed it ; whereupon he sent for the butchers in t o the room , and desired them to look upon mac-guy , and see if they knew him ; which they said they did not . the chief-justice then asked him , if he took not mac-guy aside the d time ? he said he did , but mr. blackwell and young sedgwick still present , and that it was only to make him discharge his conscience and tell the truth , which he conceived it to be his duty to do , and so was going on to relate all passages ; but the chief-justice stopt him , and with much sharpness reproved him , saying , sir george you have gone too far , and have done too much already : here hath been a foul contrivance , it would be examined by what authority you have done it : and would hear him no further , nor suffer him to read du-val and mac-guy's examinations which he had in his hand and shewed unto him , notwithstanding that both sir george and my self had just before told him , that all had been done by the kings express command . then the masters mate of the ship , john burdick , who brought over the two gentlemen into england , was called : he said , that he took in those two gentlemen viz. mr. hoeville and mr. lampriere , and one servant of theirs aboard his ship at roven , upon the th of october ; that he landed them at ratcliff upon the third of november ; that they went into london that day , and came back and lay that night on shore in ratcliff , and the next day they went again to london , and came no more ; and he sent a seaman along with them to carry their things : the chief-justice then asked him , if he was sure , that he landed them the d of november ? he answered yes , for that he had set it down in writing and had it ready in his hand to shew . then sedgwick the father was presently called , and asked again , what day those two came to his house ? he said ( as before ) the second of november : and sharp reflections were made upon this faltering in his testimony , as if the stress of the matter had lain in this , whether the second or third of november was the day of their landing ? which no man will say could signifie any thing , to prove , whether or no they had been robbing upon totternol-hill the eighth . and so ended the tryal of those two gentlemen , hoeville and lampriere : then paul beauvais was called upon to answer for himself ; and he desired only that his witnesses might be heard , to prove his being in london the day of the robbery . and first sir steven fox was called , who being in court , affirmed upon his salvation , that he saw beauvais at a french play that very day from three of the clock in the afternoon untill seven ; ( note , this was the very time of the robbery . ) the chief-justice asked him , how he came to take notice that it was that very day ? of which sir stephen gave this account , that his wife and himself , and his daughter , and a gentlewoman that waited on his daughter , were that monday at the french play , and his daughter sitting before him in the box , looked over into the pit , and saw beauvais there , and turned back to him , saying , father , paul beauvais is not gone into france , i see him here : whereupon lie said he looked over also into the pit , and did see him there ; and saw him also , and spoke to him at the end of the play , about seven of the clock : he said also , that he was then to go into france to his mother , and that he thought him gone : and for his taking such particular notice of him , and his being there that very day , monday the eighth of november , ( for that was asked of him as well as of others ) he gave this reason , that hearing so presently after , within four dayes , that beauvais was taken with some others , and committed to hertford gaol for a robbery done that day , he easily recollected himself and remembred his being that day at the french play : and this upon his salvation he declared to be true . his wife the lady fox , and their daughter , and the waiting-gentlewoman confirmed all that sir stephen had said . then one mac-don ( as i remember his name , who in beauvais's examination at hatfield is called mr. munduglas ; but whether mistaken there or here , or in both i know not ) a scotch-man , at whose house beauvais lodged , was called , who said that beauvais , and guinet the other prisoner with him , were at his house the said monday , and after dinner they went into holburn ( as themselves said ) to a barber there . and that barber he came and said , that they were at his house about two of the clock in the afternoon that day , and that guinet cut his ( the said barber 's ) hair , and afterwards that they went both of them from his house , and said they would go to a play. i must not omit one passage more upon the testimony given by a woman ( whose name i have forgot ) produced on the behalf of the prisoners , she saying she had upon the wednesday hired out a gray mare to carry one of them to hatfield , and the butchers having said that one of the thieves that robbed them the monday before on totternol-hill was upon a gray mare : the chief-justice ( to shew the colour was the same , and that so it might be thought to be the same mare ) would have the woman repeat it again , and therefore asked her , what colour her gray mare was of ? which having moved some laughter , he put it of with a jest , mentioning the old saying , that the gray mare is the better horse . and so the examination of witnesses for the prisoners ended ; for the judges said , there was not evidence against the other two prisoners , viz. guinet and boutandon , wherefore there was no need of hearing any more witnesses on their parts . and then calling the jury , the chief-justice applied himself to them , and to the summing up of the evidence , which had been given pro and con , for the prisoners and against them . in which to be short , i shall only say , that he insisted much upon the contradictions which he said he had observed in the evidence brought on the prisoners behalves , the witnesses thwarting and contradicting one another , which took off much from the credit of their testimony , and that three men had positively charged them with that robbery upon their oaths ; only he acknowledged something to have been said materially by sir stephen fox for the clearing of beauvais , and so would have differenced his case from that of the two young gentlemen whom i had appeared for , and bayled ; and what ground there was for it , let any indifferent man judge , that reades this narrative : but so he left it to the jury . the jury then went together from the bar , and after some two hours stay returned , and delivered in their verdict , not guilty : upon which mr. justice morton ( as i am informed , for i was then gone out of the court , ) said to them , gentlemen you have done well ; and if i had been of the jury , i should have done the same thing that you have done . and so the tryal ended . and now i shall give an account what hand i had in taking the consessions of du-val and mac-guy , and likewise of walrond . i was from the beginning as certain , as i could be of any thing that i had not seen with my own eyes , that the two french gentlemen were most innocent of the robbery which was laid to their charge : and i did verily believe , that du-val , who likewise was a french-man ( but spake as good english as any natural-born english-man ) had done the feat , and that the butchers might be deceived , taking one french-man for another , and really think themselves in the right , accusing those they did , and so be guilty of false swearing without knowing it ; wherefore when du-val was apprehended , i did within a day or two after , take a gentleman with me , ( one mr. hull of dorsetshire ) and went to newgate to speak with him ; and when i came thither , i did send for him into the hall , which was full of people as it could hold , come out of curiosity it seems to see him , though i knew none of them except mr. charles bartue brother to the earl of linsey , who with twenty more heard all i said to du-val , and i doubt not but he will testifie the truth of what i here say , which is this , that when du-val came to me , i said this to him , mr. du-val , i am sorry that you have brought your self into this bad condition , it hath been your own fault ; and the best counsel i or any man can give you , is , to make your peace with god almighty , and make way for his mercy ; and one good help to it will be , to do all the good you can before you dye , that is , by preventing mischief as much as in you lies , discovering those persons who have joyned with you in committing of robberies , that they may be apprehended , and rob no longer ; and confessing the robberies that have been done by you , that innocent persons may not suffer for them : then i asked him if he had not done that robbery at totternol-hill , for which some country-men of his were questioned ? he then stood still a good while , with his head down , and his finger upon his mouth , musing , and said at last , that he was within three miles of the place where those french-men were apprehended , at the time of their apprehension . but i prest him again to speak to the robbery : and then he denyed it , and said he was not there : to which i replyed but this , i have no more to say to you ; god forbid you should take it upon your self if you be not guilty . this i will be deposed was the summe of all i said to him ; and so i came away , and thought no more of it , till two dayes before his execution , that one of the two french-gentlemen came and told me , that now du-val had cleared them , and confessed , that he and others had committed that robbery ; and i asked him to whom he had confessed it , to an englishman or a french-man ? he said , to an english-man : i asked him then , if that english-man would tell me so much ? he answered , that he thought he would , and that he would bring him to me ; which i desired might be the next morning : accordingly he did bring him to me the next morning , and that man did tell me , that du-val had confessed to him , that he and four others , whom he named to him , had committed that robbery at totternol-hill ; those four he said were mac-guy , ashenhurst , cassels , and walrond : i asked him , if du-val would declare so much to any other person that should be sent to him ? he answered , that he was confident he would , for he had not revealed it to him in confession ; which made me believe him to be a romish priest ; but i took no notice of that , only said , that it would be worth the while , and that perhaps i should use some means that his examination should be taken before he suffered . it was upon a councel-day , and i w●● then going to councel , where i acquainted the king with what had been told me that morning , and said besides , that i thought it would be very well , if that the butchers that had accused those french-men were sent for to be confronted with du-val before he dyed ; things might be set right , innocent persons might be freed , and the butchers themselves be disabused , that they should not , by mistaking one french-man for another , persist in their false oathes . his majesty answered , i think it will be very well , let them be sent for , and accordingly bade me call mr. secretary trevor to him , who was in the room , to whom he gave order to send for the butchers . after the rising of the councel i returned home ; and soon after one of the messengers of the chamber came to me from mr. secretary to know the place of the abode of those butchers , mr. secretary having forgot it ; and the messenger , after i had informed him of it , went his way . that afternoon sir george charnock came to my house , ( as he used to do many times ) and i told him what i heard that du-val had confessed , and what was done upon it , and asked him , if he could be at leasure to go to newgate to hear what du-val and the butchers would say one to another ? he said he would . and then considering whom i should joyn with him , i pitch'd upon mr. blackwell , a counsellor at law , who being an acquaintance of mr. sedgwicks , and using much to his house , had been with me once or twice for the business of those two french-gentlemen ; i sent to him to desire him , that he would give himself the trouble of that employment , and he accepted of it . these two were utterly unknown the one to the other , and had never seen one another before ; so it had been a very weak part in me to have together engaged them in a foul contrivance , nor is it likely they would have trusted one another to have together undertaken it . that night very late , as i was going to bed , one of my servants came and told me , that the messeng er was c●me with the butchers , and said that mr. secretary had given him order to bring them to me : whereupon i sent for them all into my chamber , and asked them if they were the men that were robbed at totternol-hill ? they said they were ; and i told them , that it seems it was du-val that robbed them . bellingham ( who was the forward man ) presently said , no , he would swear it was those frenchmen that were taken at hatfield : i bad him take heed how he did swear , for if it was not they , he would be forsworn ; but he stood to it , that they were the men : then i asked the rest , what they said to it ? simmons , who was the man robbed , was nothing so positive as bellingham ; lawrence said , he could not swear who it was , for he rode away before they came so near as that he could discern them to know them again ; solomon grace , said these words , my lord , i have not sworn against them , nor will for the world ; they used me well whoever they were , for i rode with them a good way , and had fourscore pounds about me , and they meddled not with me , but when they left me and rode back , they bade me farewel . ( yet did this man at their tryal swear as lustily as bellingham himself ; but how he came to do so , let them give an account who perswaded him , and no question they will do it one day . ) i said only this to them , well friends , it is the king's pleasure you should see du-val , and he you , therefore if you will be here to morrow morning betimes , i shall send some with you who shall bring you to him ; and i bade my servants , who were in the room , have them down to the buttery and make them drink , where discoursing again of the business , solomon grace , in the presence of three or four of my servants ( who will be deposed of it ) said again the same thing that he had said to me in my chamber , that he had not sworn against them , nor would for the world. bellingham still obstinate , and in such a rage , as my servants afterwards told me , that he would taste neither beer nor wine . in the morning , sir george charnock and mr. blackwell , and with them mr. sedgwick's son came to my house , where they met the butchers and the messenger , and all together went to newgate : and sir george charnock and his company came back at noon , and gave me an account of their negotiation , which was this ; they told me they were first with du-val and examined him , who had fully confessed the robbery , and told the butchers of many particulars , which the butchers themselves had acknowledged true , yet would not be convinced ; but that one of them especially ( which was bellingham ) still persisted , saying , that the other men did the robbery . what du-val said , they had put down in writing , and they three had signed it ; but du-val being presently to be carried out to execution , they said , they had not put him to sign it . they afterwards asked if mac-gay was still in prison ? and because du-val had named him to have been one of the company , they would examine him , and went up to him ; and first it seems they three went up by themselves ( which yet i do protest i knew not , till i heard it said at the tryal in the king's-bench , though i do not understand that they did ill in so doing , to see what temper he was in , being a condemned man , before they would bring the butchers to him ) they do all three say , that they did not acquaint him with any of the particulars that ' du-val had declared , till he had acknowledged himself an actor in the robbery , confessed the whole business , and of himself told them many of the same passages which du-val had told before , he not knowing what du-val had said . it seems he was unwilling at the first to confess any thing , and said , he did not know the butchers : and they said the like that they knew not him ; but upon their pressing him a second time to discharge his conscience , he then confessed all , which they took in writing , and he put his hand to it . both their confessions ( du-vals and his ) i shewed to his majesty , and they are inserted here verbatim . the examination and confession of du-val , prisoner in newgate , taken by sir george charnock knight , mr. andrew blackwel , and william sedgwick , immediatly before his execution , being the th of january / , in the presence of solomon grace , robert simmons , robert bellingham , and edward lawrence , all of the parish of edmondton in the county of middlesex , butchers ; concerning a robbery committed on them at totternol in the county of bedford , by the foresaid du-val , with walrond , ashenhurst , cassels , and mac-guy . when and where the said du-val confessed and said , that the said robbery was committed by him and his above-named companions ; and more particularly , that solomon grace aforesaid being shewen unto him , did ride with them about a mile , till coming to two little houses at the bottom of the hill , they left the said solomon grace watring his horse , and returned up the hill , where they met with the other three butchers , one whereof fled upon the plowed-lands , whom the said du-val pursued upon a little gray nag , but could not overtake him , because of the weakness of his borse , which he was forced to lead in his hand afterwards at least the space of twelve-score : in the mean while ashenhurst robbed simmons of twenty seven pounds , or there abouts , part whereof was in odd money : and that from the other nothing was taken , but a girdle , and the bridle pulled off his horses head : which circumstances of the action the aforesaid simmons and bellingham did then acknowledge to be true . and he further confesseth , that after this robbery committed as aforesaid , he did perceive one of the two persons that were robbed , to ride hard towards layton , which by the acknowledgment of bellingham was himself . and the said du-val at the time of his confession aforesaid did advise the afore-named butchers , to be cautious how they prosecuted innocent persons ; declaring , that men of their trade did not care how they s●re against any man : for , a robbery was committed by him on some other butchers , and they had peremptorily charged it upon another person . and in the conclusion of his confession he put on his perriwig , affirming , that he was present at the robbery in the same perriwig so tyed up , and asked bellingham if he knew him now ? signed by us , g. charnock . andr. blackwell . william sedgwick . the examination and confession of patrick mac-guy , prisoner in newgate , taken by sir george charnock knight , mr. andrew blackwell gent. and william sedgwick citizen , the th of january / , concerning a robbery committed by him , with the aforesaid du-val , walrond , ashenhurst , and cassels , in the parish of totternol in the county of bedford . patrick mac-guy confesseth , and saith , that he was with the aforesaid du-val , walrond , ashenhurst and cassels , at totternol-hill in the foresaid county , where they met with three persons , one whereof they robbed of about twenty seven pounds , of which twenty one pounds odd money was in a wallet , which was taken by ashenhurst , and had in it about thirty or forty shillings in ninepences and thirteen-pence-half-pennies : the other which he took out of his pocket ashenhurst never discovered . one man made his escape , and the other had nothing taken from him . the time of the day , about three of the clock in the afternoon . that bellingham had a green rugg upon his saddle : which he the said bellingham confess●th . simmons likewise confesseth , that there was odd money in the su●● but remembers not the quantity ; and that likewise in the wallet there was twenty pounds odd money ; and that above five pounds was taken out of his pocket . mac-guy further declares , that an old man kept them company about a mile to the foot of the hill , where he watered his horse ; and that they bid him good night old man : which circumstance solomon grace and the other three acknowledged to be true , they being acquainted with it when the said grace came to them . and the said mac-guy declared , he never was in other robbery , but this and my lord grandison's . he asked bellingham if he did not remember , that he told them , that he was a poor grasier , and had no money ? and bellingham at first replied , no , he remembred no such thing ; but recollecting himself , told them , he said , he was a poor man , and had no money . signed by us , g. charnock . andr. blackwell . william sedgwick . signed , patrick magee . i appeal now to every mans conscience that shall read these confessions , if it can be believed , that any other , but these men that knew all these particulars , could be guilty of this robbery ; and if it was possible that sir george charnock should have put all this into mac-guy's mouth , who did not only say the same things that ' du-val had said , but enlarged and confirmed them with many other circumstances , which the butchers themselves confessed and acknowledged to be true , and which sir george charnock could not know : as the money taken , to have been , some in a wallet , some in simmons pocket , and that the broken money was part of that in the wallet : this du-val had not specified , yet it is a great confirmation of what he had said : then one man to escape , which was lawrence . that bellingham had a green rugg upon his saddle , which bellingham could not deny , but acknowledged to be true . that solomon grace watering his horse at the foot of the hill , they should say to him , good night old man , which du-val had not said : so to tell what bellingham said to them , which he acknowledged so far , as to confess , that he said , he was a poor man , and had no money , though not that he was a poor grasier , as mac-guy had said : which was no great mistake . certainly none but they that were present and did the fact , could discover these particularities . i shall now give an account of my transactions with mr. walrond , whom i thought fit to examine , after i had seen what the other two had said : and therefore went to the gate-house , and spake with him there in the kitchin , where the lady broughton , ( who hath the keeping of the prison ) and the turn-key were present , and heard all i said to him , i asked him , if he knew any thing of the robbery commited such a day at totternol-hil : of which i desired him but to tell me the truth ? his answer to me was this , my lord , no body as yet hath come against me to accuse me , so i have not been indicted ; and if i should accuse my self , i might bring my self into trouble , and i have not yet my pardon , which i hope i shall obtain of the kings mercy . i replied ; mr. walrond , this i will promise you , that whatsoever you say to me shall not rise in judgment against you , it shall do you no hurt i do assure you ; i desire but to know the truth : for some persons are accused of that robbery , who i know are very innocent : ( and whether or no i told him so much , as that du-val had confessed it , i do protest i do not remember , they may be asked that were present , the lady and the turn-key ( i have not spoken to them since , nor will i ) but i think i did not ; however if i had , i know not that any thing would have been amiss in it , if in general i had told him , that du-val had confessed it : ) his answer to me was , my lord i will cast my self upon you and tell you all , and then did confess to me the whole matter , and told me many particulars . then indeed i did say to him , that he had done well , and had told me but what i knew before , for both du-val and mac-guy had confessed the same things ; and as to his pardon i did again assure him , that it should be no prejudice to it , happily it might be an advantage , for that i would endeavour all i could to help it forward : he afterwards at my desire put down in writing what he had said ; and i did move his majesty for his pardon , and got it passed for him , which i did for two ends ; one out of charity , he had no money to pay for it , and he deserved it for the discovery which he had made of that knot of thieves du-val and his companions , some of whom were taken , and the knot thereby broken by his means : the other end was , that he might be rectus in curia , and appear a competent witness , to discover the truth of that robbery ; but he was so terrified at the tryal with being threatned and told he had now confessed enough to be endicted for it , and perplexed with questions , that he knew not almost what he said , and left an impression ( i verily believe ) with most of the standers-by , that he was gained by me to take this robbery upon him , meerly to save the french men at the bar , himself not at all guilty of it . but how undeservedly that could be imputed to me , let my greatest enemy be judge , if this my narrative be true , as i take the god of truth to witness , that it is true , i mean for matter of fact , and for what i relate here , as said or done by me , and for my intention , that it was just and honest , without any trick or design , and all above-board , meerly to preserve innocency , and that in strangers , that wanted language , friends , and all other support and help to make their innocency appear . i have always heard , that the judge should be of counsel with the prisoner ; and that is one reason given , why he needs no other counsel , and that the law allows him none ; for the judge upon the bench ought to help him with his advice and direction , that he run not into any inconvenience , by his ignorance of the law , and of the forms of proceeding , and to take care that he be not circumvented and ruined by the malice , art , and cunning of his prosecutors , or by the weakness and simplicity of such witnesses , as are produced to justifie and clear his innocency , who many times have not wit nor elocution to tell their tale so , as to make his innocency and the truth to appear . and certainly it is the duty of a judge , and justice is as much concerned , to preserve and deliver an innocent person , that is falsly accused and unjustly prosecuted , as to condemn and punish one that is really criminous ; and that of the two is the more acceptable , and well-pleasing both to god and man. these two gentlemen were strangers , that understood not the language , either what was said to them by their judges , or against them by their accusers , or for them by their witnesses ; and they had an interpreter given them , a young student that was there in court , who did need an interpreter himself : for no body understood a word he said , scarce when he spake english , he spake so low and unintelligibly , so as they were never the nearer to understand any thing that passed , though so much concerning them , even their lives ; nor was there any care taken that they should understand any thing , the interpreter not once bid to ask them a question upon what was urged against them , to know what they would say to it . and commonly a judge will call for the examination taken upon the first commitment of a felon , and begin there ; but not a word of that , for that examination would not have been authentick , not being taken upon oath , nor they positively charged by those butchers , who only said , one of them , that they were like the men whom he saw upon the road ; simmons , that he believed they were the men that robbed him ; and bellingham himself no more but this , that he verily believed adrian lampriere was the man that pulled the bridle off his horse-head : this was well known to be no sufficient ground for the justice to send them to gaol , clap irons upon them , and put them into a room without light , with a little straw to lie upon , more like dogs , then men , especially gentlemen and strangers : nay , the second examination was not produced neither , that which the lord chief-justice took himself four or five dayes after , when he sent for those butchers to london : for though two of them indeed had there taken their oaths , and charged them positively , yet solomon grace , who at this tryal in the kings-bench swore as stoutly as any , would not swear then . and another particular i observed , that the butchers said in their evidence , that these men were taken upon the hue & cry at hatfield ; and it is very usual for a judge upon a bench , when felons are apprehended upon such a warrant , and brought to their tryal , to call for that warrant , to see the description there given of the persons pursued and apprehended upon it , whether or no it agrees with the prisoners at the bar , which gives a great light to discover if they be the men , and probably would have shewed that these were not ; nothing of this neither , but with what intention neglected , i judge not . it is certain that the prisoners were far from receiving any favour , the younger of the gentlemen , mr. hoeville , who understood not any thing of all was done or said against him , and i believe not apprehending of what concernment it was to him , out of a childish innocency hid his face and smiled a little , to see such a stir about him ; the chief-justice espyed it , and fell upon him severely for it , telling him he must not laugh there , and put the poor youth past laughing , who yet understood not what he said , only saw he was angry . the other gentleman , mr. lampriere , when he was asked , what he had to say for himself , to what the butchers had laid to his charge ( which yet was not interpreted and made known to him , nor did he at all know what it was , and yet was now to speak to it for his life ) began in his language in french , to give some account of himself ; the chief-justice stopt him , and would not let him go on , but bade him answer to the particulars , and yet took no care to let him know what they were ; which was a great disheartning to him . and usually when any man , that is not known , is suspected of a crime and tryed for it , the judge will in the first place inform himself what the man is , and whence , and of what conversation of life , and learn all particulars that concern him , as much as is possible ; which will be a great leading to his judgment of him , and of the matters that are brought against him ; but here neither the prisoner could be permitted to give an account of himself , nor no body else must do it for him . and i think there was as much reason now to proceed with circumspection , and to hear and examine , and well weigh all , for and against those prisoners , as for any that had been tryed at that bar of a great while ; there were persons of quality appeared in their behalfs , undertook largely for them ; that they were not men to do such an act , being of good families in their own country , strangers , newly arrived here to see this country , no wayes in need of money , bringing with them sufficient to defray the charge of their travels , so most unlikely they should begin here with robbing upon the high-way : but further , there were those of good credit , that did affirm upon their credits , some upon their salvation , and all of them ready to be deposed , that they could not be guilty of that fact , for that they saw them , and spake to them here in london that day , and in that instant of time , that the robbery was committed above thirty miles off in bedfordshire ; so there was an impossibility of their being guilty of it . and who accused them ? three mean fellows , of no very good lives nor conversation ; and they butchers , of no commendable occupation to have to do with mens lives , either as jury-men or accusers ; and one of these as bold an impudent fellow as ever i saw with my eyes , that is bellingham : and more than all this , it was well known , that even his majesty himself had a strong perswasion of their innocency , and was desirous that all just favour should be shewed unto them , and had himself done all towards it depending upon him , and the rather because they were strangers , who were newly come into his kingdom , and so had put themselves under his protection ; and his majesty had well considered the consequence , both as to the reputation abroad of his royal justice and good government , and likewise for the safety and freedom of of his subjects in forreign parts , who must have expected the same measure there . certainly , all this laid together , me-thinks should have made one cautious how he entertained a prejudicate opinion against them , and not to take advantage upon any mistake , especially in circumstances not at all material , as whether the gentlemen landed and came to london the second , or the third of november ? where they dined the sunday before the day of the robbery ? whether it was plowed-land , or stubble that the butcher rode over , when he ran away from the thieves , and they followed ? and because there was some disagreement in these particulars , which signified nothing to prove them either innocent or guilty , yet this was blown up to such a magnitude of contradiction , that the whole testimony of those witnesses must be overthrown by it . to say the truth , there was not the least colour of guilt upon them . therefore it is well , that their tryal received so fair an issue , answerable to their innocency ; and that they were at last delivered from the unjust and malicious prosecution of those butchers : for had that malice prevailed , and innocency been oppressed ; and strangers , who by the law of nations are to receive favour and pro●ectoin , in lieu thereof had found here injustice and undeserved ruine , what would have followed upon it ? our governmenr , and our administration of justice would have been a reproach and a hissing to forreign nations , and especially to our neighbours of france , who would have hated and derided us for it , and perhaps have made the next english-man , that should come amongst them , pay for this piece of injustice shewed to their country-men : and what evil more might have ensued , how many unconcerned innocent persons have smarted for it , no man knows . but this i know , that even these two gentlemen , however they may have seemed mean and despicable here , oppressed as they were , and persecuted in a strange country , and put to a vast charge and expence , have yet friends and kindred in their own country , who have courage enough to resent , and very likely it is that they would have resented such an injury done to their kinsmen here , and would have revenged it upon the next of the english whom they had found in france ; and as one mischief brings on another , who can tell but it might have brought on a national quarrel at last ? but god be thanked , there is now no cause to apprehend these ill consequences ; justice hath prevailed , innocency hath found protection , and all machinations and contrivances against both justice and innocency , have been defeated , and the parties wronged have received some reparation for the injuries , which were then offered unto them . for those gentlemen have since brought their action against the butchers for their unjust and malicious prosecution of them , and have recovered four hundred pounds dammages in the court of common-pleas before the lord chief-justice vaughan : and i have made my complaint to the house of peers of the lord chief-justice keeling his ( as i thought ) unfitting expressions and carriage in relation to me , particularly for laying to my charge a foule contrivance in the carriage of this business , ( as i then understood it , and i do believe all that heard him when those words were uttered by him ; but he hath since denied that he meant it of me , so i am satisfied : ) and their lordships have called him before them , and after hearing us both , have adjudged him to make me a satisfaction , ( which he hath accordingly made ) as is expressed in their order of friday the th of march , entred upon record in their journal-book , with which i shall conclude . the record is as followeth : die veneris , decimo martii , . this day the lord holles produced several witnesses to be examined concerning his complaint ( in his petition ) of several indignities put upon him by the lord chief justice of the court of kings-bench , at the tryal of some french-gentlemen in the said court of kings-bench , who were there falsly accused of a robbery by four butchers in easter-term last ; after the hearing of which witnesses , the lord chief-justice made his defence , and denyed , that he intended any thing against the lord holles , when he spake those words at the said tryal , [ that it was a foule contrivance &c. ] as in the petition is set forth : to which defence the lord holles made a short reply , and then voluntarily withdrew himself , and the lord-chief-justice withdrew himself also . upon which the house took the whole matter into serious consideration , and ordered , that the lord chief-justice should be called to his place as a judge , and openly ( in the presence of the lord holles ) the lord-keeper should let him know , that this house is not satisfied with his carriage towards the lord holles in this business , and therfore hath ordered , that he should make this acknowledgment , which is to be read by the clerk , as followeth , that he did not mean it of the lord holles when he spake those words , [ that it was a foul contrivance ] and that he is sorry that by his behaviour or expressions he gave any occasion to interpret those words otherwise ; and asks the pardon of this house , and of the lord holles . then the lord chief-justice of the court of king's-bench was called to his place ( the lord holles being also present ) the lord-keeper performed the directions of the house , and the lord chief-justice read the acknowledgment abovesaid , onely changing the style into the first person . john browne , cleric . parliamentorum . and this being the true state of the whole business , i do appeal to all mankind to judge , if there was any colour of truth in that accusation of the french-gentlemen by these butchers , if in the least degree they were deserving such a prosecution , and much less the thing aimed at by that prosecution , the taking away of their lives ; and if i , by endeavouring ( as i did ) their assistance and preservation , deserved any blame either for the matter or manner of it . finis .