The sum of all this account amounteth unto two millions, or 2,000,000l. per ann.: suppose it to be but one million and a half, as assuredly your majesty may make by these courses set down, yet it is much more than I promised in my letter for your majesty's service. Besides, some sums of money in present, by the courses following: imprimis, by the prince's marriage, to make all the earls in England grandees of Spain, and principi, with such like privileges, and to pay 20,000l. a-piece for it. 2. As also, if you make them fœditaries of the towns belonging to their earldoms, if they will pay for it besides, as they do to the king of Spain in the kingdom of Naples. And so likewise barons, to be made earls and peers, to pay 19,000l. apiece, I think might yield 500,000l. and oblige them more sure to his majesty. 3. To make choice of 200 of the richest men of England in estate, that be not noblemen, and make them titulate, as is used in Naples, and paying for it; that is, a duke 30,000l. a marquis 15,000l. an earl 10,000l. and a baron or viscount 5,000l. It is to be understood, that the ancient nobility of barons, made earls, are to precede these as peers, though these be made inarquises or dukes; this may raise a million of pounds and more unto your majesty. To make gentlemen of low quality, and francklins, and rich farmers, esquires, to precede them, would yield your majesty also a great sum of money in present. I know another course to yield your majesty at least 300,000l. in money, which as yet the time serveth not to discover, until your majesty be resolved to proceed in some of the former courses, which till then I omit. Other courses, also, that may make present money, I shall study for your majesty's service, and, as I find them out, acquaint you withal.

brought to hearing in the Star-Chamber, concerning a Discourse, intituled, A Proposition for his Majesty's Service to bridle the Imper 'tinency of Parliaments.' Wherein the king's Attorney-General was plaintiff, the earl of Bedford, the earl of Clare, the earl of Somerset, sir Robert Cotton, John Selden, Oliver St. John, and others, defendants. Here now followeth the Answers of the Defendants, and the Judgment of the court thereupon, viz.

After the king's Attorney-General opened the aforementioned Information, the Auswer of Robert earl of Somerset to the said Infor mation, was also opened by his council, to this effect:

That the Discourse, as he believed, was either the same that was shewed him in the time of his attendance near his late majesty king James, or had many of the same things in it: and finding no cause of concealing a Proposi tion made in a former king's time, and having no apprehension, that scandal to his majesty, or the present government, might thereby happen, he casually imparted it to the earls of Bedford and Clare, who, after perusal thereof, delivered their opinion concerning it, at their next meeting; that it was a phantastic pro'ject of some brain-sick traveller, who had made collections of some princes in Italy, and other foreign states, no way suitable to the government of this kingdom.'

And further said, that, besides that one time, there was never any conference, nor any passage by letter or otherwise, betwixt them concerning it, or with any other person, and denied that he either contrived the Proposition, or knew of the contriving thereof, or ever imagined that his majesty would innovate the antient form of government, dispose of the estates Lastly, to conclude all these discourses by of his subjects without their consents, make or the application of this course used for your repeal laws by proclamation without consent of profit, that it is not only the means to make parliament, plant garrisous in his principal cities you the richest king that ever England had, and towns, or put in execution any part of the but also the safety augmented thereby to said discourse: and the reason why he did not be most secure, besides what was shewed in present the discourse to his majesty, or some of the first part of this discourse; I mean, by the lords of the council, or some magistrate, the occasion of this taxation, and raising of was, because he did not conceive the same did monies, your majesty shall have cause and in any sort concern the time of his majesty's gomeans to imploy in all places of the land so vernment, but was contrived in some former many officers and ministers, to be obliged to time, as appeared manifestly, by the particulars you for their own good and interest, as nothing therein contained; and that about 16 or 17 can be attempted against your person, or royal years ago, sir David Fowles shewed him the state, over land, but some of them shall, in all project, to whom he replied, That he was sa probability, have means to find it out, and hin- tisfied no use could be made thereof, and so be der it. Besides, this course will detect many redelivered it, and concluded that the divulging disorders and abuses in the public government, thereof was in his opinion pardoned by the gewhich were hard to be discovered by men in-neral pardon granted upon his now majesty's different. To prohibit gorgeous and costly coronation.' apparel to be worn, but by persons of good quality, shall save the gentry of the kingdom much more money, than they shall be taxed to pay unto your majesty. Thus withal I take my leave, and kiss your gracious hands, desiring pardon for my error I may cominit herein.

Extract from Rushworth, vol. 2, p. 51.
On the 29th of May, 1630, a great cause was

The rest of the Defendants denied any their contrivance thereof, alledging the author, as they were informed, was living beyond sea, and that they ought not to be questioned for it, being writ in the time of king James, and not in reference to his now majesty's govern ment, denying that they had the least thought or intention to scandalize the government; for that they rejected the discourse as soon as they

read it, as a foolish and impertinent issue of some projecting brain; and they averred their detestation of such a project, and that they bore loyal hearts to his majesty, and blessed God for the happy and peaceable government under him.

"To the King's most excellent Ma'ty. "Humbly complayning enformeth your most excellent ma'ty, sir Rob. Heath kt. your ma'ties Attorney-Gen'all, that whereas your sacred ma'tie ever since your happy accesse to the imperiall crowne of this realm hath gov'ned your people with soe much justice, and modethat rev'ence and love to your sacred person, as is justly due to so gracious a soveraigne; and your ma'ty, next to the service of Almighty God, and the maintenance of his true religion, hath preserved and maintained the ancient and fundamentall laws of this kingdom without innovation: Yet so it is, may it please your most excellent majesty, That some malicious persons who are as yet unknowne to your said Attorney, being ill affected to your ma'ty, and to your happy gov'nement, and intending to raise false scandalls, and seditious rumours against your ma'ty, and your gracious governem't, have of late wickedly and seditiously framed, contrived, and written, a false, seditious, and pestilent discourse in these words following."

After the publication of the Cause in order to a hearing, it appeared by the Depositions of sir David Fowles, that he received the said Writ-ration, that all your good subjects do beare ing from one Mr. Yates, in the time of king James, who brought it from sir Robert Dudley at Florence, together with a Letter, desiring him to deliver it to the earl of Somerset, that he might communicate it to king James, which was done accordingly, and that in his hearing the earl signified a dislike thereof; and that he received it back from the earl, being the original, and kept it by him till the lords of the council sent for it, and that he made no copy thereof.

It appeared also by the Depositions of other witnesses, that this Discourse, nine years ago, was bought by them in Little-Britain amongst other manuscripts.

Then follows the Proposition as printed above, ending with a formal request to the king, to call on the defendants for trial, signed by the Attorney-General. Then follows:

So this Cause coming to hearing, a great presence of nobility being in court, the attorney-general opened the Charge. But before much proceeding, his majesty sent word unto the lord keeper Coventry, then in court, that the queen was brought to bed of a son, and a private message also was delivered to bin from the king; whereupon the Lord-Keeper declared The ANSWER of Francis, Earle of Bedford, one of the Def'ts, to the Information exhiin court, that his most sacred majesty had taken this matter into his most serious considebited against him, and others, by Sir R. Heath, kt. his Ma'ties Attorney-Gen'all. ration, and athough the same was of so high a nature, as it was necessary to be brought in The said Def't, saving, &c. with all duty and question, (being contrary to many laws and thankfullnesse, doth acknowledge y't his ma'ty statutes, and the common law itself) yet his hath with great justice and moderation governed majesty balancing the same in the scales of his people, for which among the rest of his lovjustice and mercy, the Author of the Discourse ing subjects, this def't hath alwaies had and being discovered to live beyond the seas, found ever shall have a speciall love and reverence these Defendants rather fitting to be objects of of his sacred person, as due to so gracious a his mercy, than justice, they being some of sov'aigne. He doth also acknowledge his them noblemen, and such as his majesty did ma'ties gracious care to preserve and inaintaine and doth well esteem and like of, in his royal the ancient, and fundamentall lawes of this opinion and that his majesty was the rather kingdome, without innovation; insomuch that inclined to extend his goodness, in regard of the said def't nev'r had thought, that his most the time; it having now pleased the great jus- excellent majesty did entend to innovate bis tice of heaven to bless his majesty and his king-lawes in any thing: for his gov'ment hath been dom with a royal issue of his body, a hopeful so moderate as this def't hath alwaies conceivprince, the great joy and long expectation both ed it to be a speciall happiness to his people, of the king and kingdom. neither did he, this def't, ever raise any rumours at all against his ma'ty, or his gov'ment. And concerning the discourse in the information mentioned, the said def't saith that he did not naine, write, or contrive the same, nor doth know who did name, write, or contrive the same, but for declaration of the def't's knowledge and thoughts concerning the same, saith that he never did see or heare the said discourse until the month of July or August, in the 5th year of his ma'ty's happy reigne, about which time, a writing conteyning the said discourse was sent to this def't, he then being at his house in Whoborne in Bedfordshire; which was sent, as the def't was informed, from one Mr. Oliver St. John, of Lincoln's Inne, who

Upon this declaration of the king's pleasure the Lord-Keeper made known, that the court by his majesty's special command was to proceed no further in the hearing of this cause; but ordered the Project, or Book, to be burnt, as seditious and scandalous, both to his majesty, the state, and government of this kingdom. And ordered the Proceedings to be taken off the file.

An Account of this Proposition is contained in a volume in the hand-writing of archbishop Sancroft among Tanner's MSS. in the Bodleian Liorary at Oxford. It begins with the AttorBey-General's Information as follows:

|

deliv'd unto him the said copy, w'ch was sent unto this def't, w'ch when the s'd earle had read, he returned to this def't, and told him, that he remembred that in the time of the s'd late king, Heads, or Propositions of like effect, had been tendred unto his l'd'p. And this def't s'th he nev'r did write, or cause any topic thereof to be written, nor did he co'municate, shew, or publish the same otherwise than as aforesaid, saving to some of the l'ds of his majesties most ho❜ble privy-councell by their co

def't saith, that the said discourse doth not concerne the present time of his ma'ty, or his gov'nem't; neither did he ev'r say, athrine, or believe, that there ev'r was any purpose to int'taine it: neither did this def't disperse, or divulge the same, to the intent that the same, or any thing conteyned therein should be divulged, or dispersed, as if the same had been intirtained by his most excellent ma'ty, or by any other, or with purpose to put in executio', or to raise fears, or jealousies in any w'tsoever, or that his sacred ma'ty had any purpose to alter, or innovate any laws of this kingdom, or the ancient manner of the gov'nem't thereof, or to draw things to be disposed of at his will, or dis

then and formerly was of this def't's councell | in his law businesse, and within two or three weeks after, the s'd Mr. St. John repaired to this def't's house, and there this def't and the 6'd Mr. St. John, had some speech and conference concerning the said discourse, upon which conference the s'd Mr. St. John did declare to this def't, that he had the said discourse from s'r Rob. Cotton, kt. and baronett, and that he was enformed and told, that it was written about the 12th year of the late k. James, of blessed memory, which this def't easily be-mand in this M'ch'mas terme. And the said lieved, for that he observed it could not be applied to his ma'ties time, y't now is, as well for that there is in the same discourse mention made of the king's son the prince, to be married for raising of present monies, as for some other passages therein, w'ch this def't doth still beleeve; neither did this def't think, or beleeve, or can be perswaded, that it was presented, or meant or intended to be presented to his gracious ma'ty, y't now is, for that he hath observed his ma'ties aversness from such courses. And he this def't further s'h that he this def't kept the same discourse by him, till the end of Sept'r or beginning of Oct'b'r in the said year, at w'ch time this def't repaired to his house in the parish of Chiswick in the county of Middle-pose of the states, revenues, or goods of his sex, in w'ch parish the earle of Som'sett, and ma'ties subjects; or to make or repeale staother of the def'ts named in the same informa- tutes by his ma'ties proclamation, or that he tion both then and before dwelt, and after some purposed to place, or maintaine garrisons or time of this def't's being at Chiswick aforesaid, fortified places for any such end, as in the s'd meeting with the said earle of Som'sett, and information is declared, and he is fully assured, conferring of divers matters happening in such y't his ma'ty nev'r did, nor will give the least time, as the earle of Som'sett had been in grace intertainment to any such design, and the said and favour with his s'd late ma'tie, anong def't confesseth, y't he did not shew or deliv'r other speeches, they had communication of the said wrighting to any of his ma'ties most sev'all ways then propounded both for preserv-ho'ble privy-councell, or other magistrate otheration, as also for increase of his s'd late ma'ties wise than as afores'd, for what [qu, that] he revenues. W'ch said earle of Som'sett then re- did not, nor yet doth conceive, that it had any lated, that div'se waies had been offered unto | relation to his ma'ties gov'nem't, or that he him about those times, and among others he ever had purpose, or disposition to give care to mentioned some like these waies y't are ex- such projects, or devices, or that any would so pressed in the said discourse, in the information believe. And as to all and every the misdespecified. Whereupon this def't did aske of meano's and offences in the information laid to his l'ds'p, whether he had seen a discourse tend- the charge of this def't, he is thereof not guilty ing to such purpose, mentioning an army and in manner and forme, as by the said informagabells, and he answered, y't he had then a no- tion is supposed. W'ch matters the said def't Lion of some such matter, but did not then per- doth, and will aver and prove, as this ho❜ble fectly call the particulars thereof to mind, but court shall award, and praieth to be dismissed if he might see it, he should then better remem- without further. attending, because of the said her it, and thereupon this def't did send, or suit, &c. . . .

137. The Trial of MERVIN Lord AUDLEY, Earl of CASTLEHAVEN, for a Rape and Sodomy: 7 CHARLES I. A. D. 1631. [2 Rushw. Coll. 93. Hutt. Rep. 115.]

THERE were three Indictments found at Salisbury in Wiltshire against the earl, the Wednesday preceding Easter, before the Lord Chief Justice Hyde, the L. C. J. Richardson, and baron Denham, Justices of Assize for that circuit, and special commissioners in that matter. One Indictment was for a Rape upon his own wife; for holding her by force, while one of his minions forcibly, against her will, had carnal knowledge of her: so that he was indicted as Prasens, Auvilians and Confortans; and therefore a principal. The other two Indictments were for Buggery with a man.

The Judges, on Friday morning before the trial, being sent. for, all but Denham being met at Serjeants-Inn in Fleet-street, these Questions were proposed them by sir Robert Heath, the king's Attorney General; a Memorial of which a learned judge, sir James Whitlock, one of the eight hereafter mentioned, set down in writing; to the effect following.

1. Whether a peer of the realm might wave his Trial by peers, and plead he will be tried by God and the country? Answ. He might not: for his Trial by peers was no privilege, but the law declared by Magna Charta: which if he would not plead to by a trial of his peers, it was standing mute.

2. Whether a peer might challenge his peers, as in the case of common Jurats? Answ. He might not, (which I think is so, said that Judge) because they were not upon their oath, but upon their honour, and a challenge is tried whether he stands indiderent, as unsworn.

4. Whether the Wife in this case might be a witness against her husband for the rape? Answ. She might for she was the party wronged; otherwise she might be abused. In like manner a villain (vassal) might be a witness against his lord in such cases.

* Britton, c. 9. says, that sodomites, sorcerers, and some other offenders, were to be burned. The Mirrour says they were to be buried alive; in conformity with which Ld. Co. 3 Inst. c. 10, quotes Fleta b. 1. c. 35, where I cannot find any such matter: however, it seems likely that afterwards they had ceased to be punished capitally; which occasioned the 3. Whether a peer might not have counsel statute of 25 Hen. 8. c. 6, passed in the year any more than a commoner? Answ. If matter 1534, which was about six years after 11. 8, of law appeared, he might; not for matter of had begun upon the suppression of Monasteries, fact.-Certain Examinations having been taken [See 14 Rymer's Fœd, 258] and about the time by the lords without an oath: It was resolved, when the general suppression of them seems to Those could not be used until they were rehave been resolved on. About a year after-peated upon oath, unless of the party to be wards (1536) the lesser monasteries were sup- tried; which might be read without an oath. pressed. And in four years more (1540) the work was completed by the final dissolution of all manner of abbies, priories, monasteries, &c. and the transfer of their revenues and estates to the crown, by st. 31 H. 8, c. 13. See 1 Cobbett's Parl. Hist. 526, 537, 1 Rapin 782, 307-821. fol. ed. and Burnet's Hist. of the Reformation. The st. 25 H. 8, c. 6, was repealed by the general st. 1 E. 6, c. 12, and by 2 E. &, c. 29, the crime was made felony with out benefit of clergy, but without forfeiture of lands or goods, or corruption of blood, which st. of 2 E. 6, c. 29, was repealed by st. 1 Mar. c. 1, so both acts stood repealed until the statute 5 Eliz. c. 17, by which the whole act 25 H. 8, c. 6, is revived and re-enacted. Mr. Barrington in the first edition of his " Observations on the Statutes." p. 31, " Assisa panis et cerevisiæ," made a remarkable mistake in quoting by memory a passage from Tacitus. He seems to have thought it likely that the custom of pelting criminals in the pillory was derived from the antient Germans, “Infaines," says he,

"luto ac cœno aspergunt." The passage

"Dis

which he had in his mind is doubtless the follow-
ing in Tacitus de Mor. Germ. s. 12.
tinctio pœnarum ex delicto. Proditores et trans-
fugas arboribus suspendunt: ignavos et imbelles
et corpore infames coeno ac palude, injectâ in
super crate, mergunt. Diversitas supplicii illuc
respicit; tanquàm scelera ostendi oporteat dum
puniuntur, flagitia abscondi." The passage in

VOL. III.

5. Whether, if he stood mute, he could demand his clergy? Answ. If he stood mute in the case of Rape or Buggery, he might have his clergy in either.

the Mirrour, c. 4, s. 14, p. 252, is "Le mortal
peché de majesté vers le roy celestre de sodomy
soy fornist per enfover les pecheurs touts vifs
profond en terre; issint que memoire soit re-
strainé pour la grande abomination del fait.”
The words in Britton are, "Soit enquis de
ceux que felonisement en temps de pees eient
autre blees ou autre mesons ars.
Et ceux que
serrount de ceo atteynts soient ars, issint que
eux soient punys par mesme cele chose dount
ils pecherent; et mesme cel jugement eyent soi-
cers et sorceresses et sodomites et mescreaunts
appertement atteynts." Britton fo. xvi.

*East's P. C. ch. x. s. 6.

See the Note to Weston's Trial, vol. 2. p. 914. See also Barrington's Obs. on St. West. 1st. c. 12.

The statute of 25 H. 8, c. 6, in case of Buggery, and of 18 Eliz. c. 7, in case of a Rape, take away Clergy only from such as are convicted by verdict, outlawry, or confession:

2 D

The lords the peers took their places about 8 At a second meeting of the Judges in Ser- of the clock in the morning, and were scated jeants Inn, there were other things considered on benches on each side of a large table, coof concerning this matter. They made a dif-vered with green cloth; and below them were ference between Buggery and a Rape, in point of having the clergy if he stood mute: for it was argued he might have his clergy if he stood mute in a Rape, but not in Buggery; because by the statute 25 H. 8, Buggery was made felony, which by the common law was not. And in the very creation of the offence, clergy was taken away; whereas clergy lay for a rape until it was (should be) taken away by statute.