Maurice Justicer of Ireland The Explanations of the Statute of Gloucester made by the King and His Iustices only were received alwayes for Statutes and are still printed with them Also the Statute made for the correction of the twelfth Chapter of the Statute of Gloucester was Signed under the Great Seal and sent to the Justices of the Bench after the manner of a Writ Patent with a certain Writ closed dated by the Kings hand at Westminster 2 Maii 9 Edw. 1. requiring that they should do and execute all and every thing contained in it though the same do not accord with the Stat. of Gloucester in all things The Provisions of Merton made by the King at an Assembly of Prelates and the greater part of the Earls and Barons for the Coronation of the King and his Queen Elinor are in the form of a Proclamation and begin Provisum est in Curia domini Regis apud Merton 19 Hen. 3. a Provision was made de assisa praesentationis which was continued and allowed for a Law untill the Stat. of West 2. which provides the contrary in express words In the old Statutes it is hard to distinguish what Laws were made by Kings in Parliament and what out of Parliament when Kings called Peers only to Parliament and of those how many or whom they pleased as it appears anciently they did it was no easie matter to put a difference between a Councel-Table and a Parliament or between a Proclamation and a Statute Yet it is most evident that in old times there was a distinction between the Kings special or Privy Councel and His Common Councel of the Kingdom and His special Councel did sit with the Peers in Parliament and were of great and extraordinary Authority there In the Stat. of Westm. 1. it is said These are the Acts of K. Edw. 1. made at His first Parliament by His Councel and by the Assent of Bishops Abbots Priors Earls Barons and all the Commonalty of the Realm The Stat. of Acton Burnell hath these words The King for Himself and by His Councel hath Ordained and Established In articulis super Chartas when the Great Charter was confirmed at the Request of the Prelates Earls and Barons are found these two provisions 1. Nevertheless the King and his Councel do not intend by reason of this Statute to diminish the Kings Right 2. Notwithstanding all these things before-mentioned or any part of them both the King and his Councel and all they that were present Will and intend that the Right and Prerogative of His Crown shall be saved to Him in all things The Stat. of Escheators hath this Title At the Parliament of our Sovereign Lord the King By His Councel it was agreed and also by the King himself commanded 1 Edw. 3. where Magna Charta was confirmed this Preamble is found At the request of the Commonalty by their Petition made before the King and His Councel in Parliament by the Assent of the Prelates Earls and Barons c. The Statute made at York 9 Edw. 3. goeth thus Whereas the Knights Citizens and Burgesses desired Our Sovereign Lord the King in His Parliament by their Petition c. Our Sovereign Lord the King desiring the profit of His People By the Assent of His Prelates Earls Barons and other Nobles of His Realm and by the Advice of His Councel being there Hath Ordained 25. Edw. 3. In the Statute of Purveyors where the King at the request of the Lords and Commons made a Declaration what Offences should be adjudged Treason It is there further said if per-case any man ride Armed with Men of Arms against any other to slay him or rob him It is not the Mind of the King or of His Councel that in such cases it shall be adjudged Treason By this Statute it appears that even in the case of Treason which is the Kings own Cause as whereas a man doth compass or imagine the Death of Our Lord the King or a man do wage War against Our Lord the King in His Realm or be adherent to the Kings Enemies in his Realm giving to them Aid or Comfort in the Realm or elsewhere in all these cases it is the Kings Declaration onely that makes it to be Treason and though it be said that Difficult points of Treason shall be brought and shewed to the King and His Parliament yet it is said it is the mind of the King and his Councel that determines what shall be adjudged Treason and what Felony or Trespass 27 Edw. 3. the Commons presenting a Petition to the King which the Kings Councel did mislike were content thereupon to amend and explain their Petition the Petition hath these words To their most redoubted Sovereign Lord the King Praying Your said Commons that whereas they have prayed him to be discharged of all manner of Articles of the Eyre c. which Petition seemeth to his Councel to be prejudicial unto him and in Disinherison of his Crown if it were so generally granted His said Commons not willing nor desiring to demand things of Him or of his Crown perpetually as of Escheats c. But of Trespasses Misprisions Negligences Ignorances c. And as in Parliaments the Kings Councel were of Supereminent Power so out of Parliament Kings made great Use of them King Edw. 1. finding that Bogo de Clare was discharged of an Accusation brought against him in Parliament commanded him nevertheless to appear before him and his Councel ad faciendum recipiendum quod per Regem ejus Concilium fuerit faciendum and so proceeded to the Examination of the whole Cause 8 Edw. 1. Edw. 3. In the Star-chamber which was the ancient Councel-table at Westminster upon the complaint of Eliz. Audley commanded Iames Audley to appear before Him and His Councel and determined a Controversie between them touching Land contained in her Jointure Rot. claus de An. 41 Edw. 3. Hen. 5. In a Suit before Him and His Councel For the Titles of the Manors of Serre and St. Lawrence in the Isle of Thanet in Kent took order for the Sequestring the Profits till the Right were tried Hen. 6. commanded the Justices of the Bench to stay the Arraignment of one Verney in London till they had other Commandment from Him and His Councel 34 Hen. 6. rot 37. in Banco Edw. 4. and his Councel in the Star-Chamber heard the Cause of the Master and poor Brethren of Saint Leonard's in York complaining that Sir Hugh Hastings and others withdrew from them a great part of their Living which consisted chiefly upon the having of a Thrave of Corn of every Plow-land within the Counties of York Westmorland Cumberland and Lancashire Rot. pat de an 8. Edw. 4. part 3. memb 14. Hen. 7. and his Councel in the Star-Chamber decreed that Margery and Florence Becket should sue no further in their cause against Alice Radley Widow for Lands in Wolwich and Plumsted in Kent for as much as the matter had been heard
Augustissimi CAROLI Secundi Dei Gratia ANGLIAE SCOTIAE FRANCIAE ET HIBERNIAE REX Bona agere mala pati Regium est Page 1 THE Free-holders GRAND INQUEST Touching Our Sovereign Lord the KING And His PARLIAMENT To which are added OBSERVATIONS UPON FORMS OF GOVERNMENT Together with Directions for Obedience to Governours in Dangerous and Doubtful Times By the Learned Sir ROBERT FILMER Knight Claudian de laudibus Stiliconis Fallitur egregio quisquis sub Principe credit Servitium Nunquam Libertas gratior extat Quà m sub Rege pio LONDON Printed in the Year MDCLXXIX The Author's PREFACE THere is a general Belief that the Parliament of England was at first an Imitation of the Assembly of the Three Estates in France therefore in order to prepare the Understanding in the Recerche we have in hand it is proper to give a brief Accompt of the mode of France in those Assemblies Scotland and Ireland being also under the Dominion of the King of England a touch of the manner of their Parliaments shall be by way of Preface 1. In France the Kings Writ goeth to the Bailiffs Seneschals or Stewards of Liberties who issue out Warrants to all such as have Fees and Lands within their Liberties and to all Towns requiring all such as have any Complaints to meet in the Principal City there to choose two or three Delegates in the name of that Province to be present at the General Assembly At the day appointed they meet at the Principal City of the Bailiwick The King 's Writ is read and every man called by name and sworn to choose honest men for the Good of the King and Commonwealth to be present at the General Assembly as Delegates faithfully to deliver their Grievances and Demands of the Province Then they choose their Delegates and swear them Next they consult what is necessary to be complained of or what is to be desired of the King and of these things they make a Catalogue or Index And because every man should freely propound his Complaint or Demands there is a Chest placed in the Town-Hall into which every man may cast his Writing After the Catalogue is made and Signed it is delivered to the Delegates to carry to the General Assembly All the Bailiwicks are divided into twelve Classes To avoid confusion and to the end there may not be too great Delay in the Assembly by the Gathering of all the Votes every Classis compiles a Catalogue or Book of the Grievances and Demands of all the Bailiwicks within that Classis then these Classes at the Aslembly compose one Book of the Grievances and Demands of the whole Kingdom This being the order of the Proceedings of the third Estate the like order is observed by the Clergy and Nobility When the three Books for the three Estates are perfected then they present them to the King by their Presidents First the President for the Clergy begins his Oration on his knees and the King commanding he stands up bare-headed and proceeds And so the next President for the Nobility doth the like But the President for the Commons begins and ends his Oration on his knees Whilst the President for the Clergy speaks the rest of that Order rise up and stand bare till they are bid by the King to sit down and be covered and so the like for the Nobility But whilst the President of the Commons speaks the rest are neither bidden to sit or be covered Thus the Grievances and Demands being delivered and left to the King and His Counsel the General Assembly of the three Estates endeth Atque ita totus actus concluditur Thus it appears the General Assembly was but an orderly way of presenting the Publick Grievances and Demands of the whole Kingdom to the consideration of the King Not much unlike the antient Usage of this Kingdom for a long time when all Laws were nothing else but the King's Answers to the Petitions presented to Him in Parliament as is apparent by very many Statutes Parliament-Rolls and the Confession of Sir Edw. Coke 2. In Scotland about twenty dayes before the Parliament begins Proclamation is made throughout the Kingdom to deliver in to the King's Clerk or Master of the Rolls all Bills to be exhibited that Sessions before a certain day then are they brought to the King and perused by Him and onely such as he allows are put into the Chancellour's hand to be propounded in Parliament and none others And if any man in Parliament speak of another matter than is allowed by the King the Chancellour tells him there is no such Bill allowed by the King When they have passed them for Laws they are presented to the King who with his Scepter put into His hand by the Chancellor ratifies them and if there be any thing the King dislikes they raze it out before 3. In Ireland the Parliament as appears by a Statute made in the Tenth year of Hen. 7. c. 4. is to be after this manner No Parliament is to be holden but at such Season as the King's Lieutenant and Councel there do first certifie the King under the Great Seal of that Land the Causes and Considerations and all such Acts as they think fit should pass in the said Parliament And such Causes and Considerations and Acts affirmed by the King and his Councel to be good and expedient for that Land And His Licence thereupon as well in affirmation of the said Causes and Acts as to summon the Parliament under His Great Seal of England had and obtained That done a Parliament to be had and holden after the Form and Effect afore rehearsed and if any Parliament be holden in that Land contrary to the Form and Provision aforesaid it is deemed void and of none Effect in Law It is provided that all such Bills as shall be offered to the Parliament there shall first be transmitted hither under the Great Seal of that Kingdom and having received Allowane and Approbation here shall be put under the Great Seal of this Kingdom and so returned thither to be preferred to the Parliament By a Statute of 3 and 4 of Philip and Mary for the expounding of Poynings Act it is ordered for the King 's Passing of the said Acts in such Form and Tenor as they should be sent into England or else for the Change of them or any part of them After this shorter Narrative of the Usage of Parliaments in our Neighbour and Fellow Kingdoms it is time the inquisitio magna of our own be offered to the Verdict or Iudgment of a moderate and intelligent Reader REFLECTIONS Concerning the ORIGINAL OF GOVERNMENT Upon I. Aristotle's Politiques II. Mr. Hobs's Leviathan III. Mr. Milton against Salmasius IV. H. Grotius De Iure Belli V. Mr. Hunton's Treatise of Monarchy VI. Another Treatise of Monarchy by a nameless Author Arist. Pol. Lib. 4. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 LONDON Printed in the Year MDCLXXIX THE ANARCHY OF A LIMITED OR MIXED Monarchy OR A
patri G. eadem gratia Archiepiscopo Cantuarienâ—…i totius Angliae Primati Metropolitano salutem Quia de advisamento assensu Concilii nostri pro quiâ—…usdam arduis urgentibus negotiis Nos statum defensionem regni nostri Angliae ecclesiae Anglicaâ—…ae concernentibus quoddam Parliamentum nostrum apud W. c. teneri ordinavimus ibidem vobiscum cum â—…aeteris Praelatis Magnatibus Proceribus dicti regni nostri Angliae colloquium habere tractatum Vobis â—…n fide dilectione quibus nobis tenemini firmiter injungendo mandamus quod consideratis dictorum negotioruâ—… arduitate periculis imminentibus cessante quacunquâ—… excusatione dictis die loco personaliter intersitis Nobiscum cum caeteris Praelatis Magnatibus Proceribâ—… praedictis super dictis negotiis tractaturi vestrumque concilium impensuri hoc sicut Nos Honorem nostrâ—…ac salvationem regni praedicti ac ecclesiae sanctae expeditionemque dictorum negotiorum diligitis nullatenus omittatiâ—… Praemonentes Decanum capitulum ecclesiae vestrae Caâ—…tuariensis ac Archidiacanos totumque Clerum vestrae Diâ—…cesis quod idem Decanus Archidiaconi in propriis peâ—…sonis suis ac dictum Capitulum per unum idemque Clerâ—… per duos Procuratores idoneos plenam sufficientem poâ—… statem ab ipsis Capitulo Clero habentes praedictis die â—… loco personaliter intersint ad consentiendum hiis quae tuâ—…ibidem de Commune Concilio ipsius Regni Nostri divinâ—… favente Clementia contigerint ordinari Teste Meipso apâ—… West c. CHARLES by the Grace of God c. To the moâ—… Reverend Father in Christ W. by the samâ—… Grace Arch-bishop of Canterbury Primate and Metropolitan of all England Health Whereas by thâ—… Advice and Assent of our Councel for certain difficult and urgent Businesses concerning Us the Statâ—… and Defence of Our Kingdom of England and 〈◊〉 the English Church We have Ordained a certaâ—… Parliament of Ours to be holden at W. c. aâ—… there to have Conference and to treat with you thâ—… Prelats Great men and Peers of Our said Kingdoâ—… We straitly Charge and Command by the Faiâ—… and Love by which you are bound to Us that coâ—…sidering the Difficulties of the Businesses aforesaiâ—… and the imminent Dangers and setting aside all Excuse you be personally present at the Day and Place aforesaid to treat and give your Counsel concerning the said Businesses And this as you love Us and Our Honour and the Safeguard of the foresaid Kingdom and Church and the Expedition of the said Businesses you must no way omit Forewarning the Dean and Chapter of your Church of Canterbury and the Arch-deacons and all the Clergy of your Diocese that the same Dean and the Arch-deacon in their proper Persons and the said Chapter by one and the said Clergy by two fit Proctors having full and sufficient Power from them the Chapter and Clergy be personally present at the foresaid Day and Place to Consent to those things which then and there shall happen by the favour of God to be Ordained by the Common Councel of our Kingdom Witness Our Self â—…t Westm. The same Form of Writ mutatis mutandis concluding with you must no way omit Witness c. â—…s to the Temporal Barons But whereas the Spirituâ—…l Barons are required by the Faith and Love the Temporal are required by their Allegiance or Homage The Difference between the two Writs is that the Lords are to Treat and to Give Counsel the Commons â—…re to Perform and Consent to what is ordained By this Writ the Lords have a deliberative or a â—…onsultive Power to Treat and give Counsel in difficult Businesses and so likewise have the Judges Barons â—…f the Exchequer the Kings Councel and the Maâ—…ters of the Chancery by their Writs But over and â—…esides this Power the Lords do exercise a decisive or Iudicial Power which is not mentioned or found in their Writ For the better Understanding of these two different Powers we must carefully note the distinction between a Iudge and a Counsellor in a Monarchy the ordinary Duty or Office of a Iudge is to give Judgment and to command in the Place of the King but the ordinary Duty of a Counsellor is to advise the King what he himself shall do or cause to be done The Iudge represents the Kings Person in his absence the Counsellor in the Kings Presence gives his Advice Iudges by their Commission oâ—… Institution are limited their Charge and Power and in such things they may judge and cause their Judgments to be put in Execution But Counsellors have no Power to command their Consultations to bâ—… executed for that were to take away the Sovereignty from their Prince who by his Wisdom is to weighâ—… the Advice of his Councel and at liberty to resolvâ—… according to the Judgment of the wiser part of hiâ—… Councel and not always of the greater In a word regularly a Counsellor hath no Power but in thâ—… Kings Presence and a Iudge no Power but out oâ—… his Presence These two Powers thus distinguished have yet such Correspondency and there is so neeâ—… Affinity between the Acts of judging and counselling that although the ordinary Power of the Judgâ—… is to give Judgment yet by their Oath they arâ—… bound in Causes extraordinary when the King pleaseth to call them to be his Counsellors and oâ—… the other side although the proper work of a Counsellor be only to make Report of his Advice to his Sovereign yet many times for the Ease only and by the Permission of the King Counsellors are allowed to judge and command in Points wherein ordinarily they know the mind of the Prince and what they do is the act of the Royal Power it self for the Councel is always presupposed to be united to the Person of the King and therefore the Decrees of the Councel are styled By the King in his Privy Councel To apply this Distinction to the House of Peers we find originally they are called as Counsellors to the King and so have only a deliberative Power specified in their Writ and therefore the Lords do only then properly perform the Duty for which they are called when they are in the Kings Presence that He may have Conference and treat with them the very Words of the Writ are nobiscum ac cum Praelatis Magnatibus Proceribus praedictis super dictis negotiis tractaturi vestrumque concilium impensuri with Us and with the Prelates Great men and Peers to treat and give your councel the word Nobiscum implieth plainly the Kings Presence It is a thing in reason most absurd to make the King assent to the Judgments in Parliament and allow Him no part â—…n the Consultation this were to make the King â—… Subject Councel loseth the name of Councel â—…nd becomes a Command if it put a Necessiâ—…y upon the King to follow it such Imperious Councels make those that are but Counsellors â—…n name to