that they either Are or Soon may be the Best in the World because in case they labour 〈◊〉 any defect that Fault may be Immediately amended by a wise Senate What if that wise Senate be no where to be found or is at no Certainty It is then Impossible to render the Chancellor's Latin into English For the speedy Perfection of the English Laws which the Prince and he are agreed is Concitò Citissimè may be rendred either at the Four Years end or the Twelve Years end or at the World's end For so I am satisfied it was meant after a Ten Year's Interval of Parliaments if the Herb woman at Edinburgh had not thrown her Cricket-stool at the Arch-Bishop's Head And so Dr. Heylin I remember does not so much acknowledge that Secret as Justify it It is in his little Book of Observations upon Hammond L'Estrange's History of the Reign of K. Charles I. Says Hammond upon the Dissolution of that wise Parliament in 28. to whom we owe the Petition of Right All wise Men concluded that there was an end of all Parliaments Yes says Heylin so they might well the King having been troubled with their Impertinencies and having an Example in France before his Eyes where Parliaments have been so much discontinued that it is become a Proverb amongst them Voyons le Jeu de Trois Estats as the strangest Sight which can be seen in an Age. I have not the Book now by me but I will be answerable for the Substance of this Quotation having retained this Passage in my Head above these Five and Twenty Years I can only touch several other Arguments which might be enlarged upon The High Court of Parliament is the Dernier Resort in this Kingdom and if that fail there may be a failure of the English Justice Bracton says of an Ambiguous or Difficult Cause Respectuetur ad magnam Curiam but unless Parliaments be Frequent such a Cause is Adjourned to a long Day Every Body that understands the English Constitution knows that it is exactly the same as it was laid down in Parliament 8 Ed. 4. by the Lord Chancellour that then was You have it in Sir Robert Cotton's Abridgment of the Rolls in the Tower p. 682. in these words He then declared the three Estates to comprehend the Governance of this Land the Preheminence whereof was to the King as chief the second to the Lords and Bishops and the third to the Commons Now if we are at a loss or uncertainty about our Parliaments we are at a loss or uncertainty about two Thirds of our Government But I will say no more upon this Head intending to shew in the following Chapters how the matter of Parliaments stood in former Ages CHAP. II. Shewing how Parliaments stood in King Alfred's Time and afterwards I Chuse to begin with this Period of Time in King Alfred's Reign because we have clear Law and History to shew how Parliaments stood in his Time and what Law was Ordained concerning them for ever It is in the Mirror of Justices which as my Lord Coke says in his Preface to his Tenth Reports was written in the Saxon Times and it appears by the Book it self But several things were added to it by a Learned and Wise Lawyer Andrew Horne who lived in the Reign of Ed. 1. and Ed. 2. Antiquity enough for a Book we desire no more for we are sure that no Common-wealths Man had the Penning of it The words of the Myrror are these p. 10. Pur le estate del Royalme fist l' Roy Alfred assembler les Comitees 〈◊〉 〈◊〉 pur Usage Derpetuelle que a deur foits per l' An on pluis-sovent pur mestier en tempts de peace se assemblerout a 〈◊〉 pur Parliamenter sur le guidement del people d' Dieu coment gents se garderent de peche 〈◊〉 en quiet 〈◊〉 〈◊〉 droit per certaine usages 〈◊〉 〈◊〉 〈◊〉 Der cel estate se sierent plusiours 〈◊〉 per 〈◊〉 Royes jesque al 〈◊〉 Roy Les quells Dideinances sont disuses per meins sages 〈◊〉 put default que 〈◊〉 ne sont my mise en escript 〈◊〉 publies en Certeine For the Good Estate of the Realm King Alfred caused the Counties to Assemble and Ordained it for a Perpetual Usage that at Two Times yearly or oftner if need were in Time of Peace they should Assemble at London to sit in Parliament for the Guidance of God's People how the Nation should keep themselves from Sin live in Quiet and receive Right by certain Usages and holy Judgments By this Estate were made many Ordinances by several Kings down to the King that is now which says the Margin was Edward the First which Ordinances are disused by some that are not so wise and for want that they are not put into Writing and published in Certain In this Passage the Two Times a Year seem to be Stationary the Calling a Parliament Oftner than Two Times a Year if need were is plainly intended for Contingencies of State and when the Ardua Regni or Extraordinary Affairs of the Nation require an Extraordinary Parliament I say and will make out to all the World by Laws and Declarations of Parliament that the King has a Power of calling Parliaments within the Law But I never did nor never will say to the end of my Life that the King can hinder Parliaments Appointed by Law These Frequent Parliaments were to meet at London in Time of Peace We see then what has interrupted our Parliaments both as to Time and Place For London was after in the hands of the Dane and Foreigners Wars and Tribulations came on But the best way is to let an Author explain himself which the Mirror does in telling us likewise the Abusions of the Law or the Contrarieties and Repugnancies to Right or as he calls it the Fraud and Force which is put upon Law This way of writing Law is the best that can be invented for it is the way of Preaching by Positive and Negative which is a two-edged Sword and cuts both ways And the Truth of it is the Negative part of the Law which lies in a little Compass oftentimes teaches us a world of the Positive For instance the 33 Articles in the Roll 1 H. 4. m. 20. which K. Richard the 2d solemnly acknowledged of his own Male-administration do give us more light into the Constitution than a Book of six times the bigness could do But to come to the Abusions of Law which are in the Mirror p. 282. He says that the First and Sovereign Abusion is for the King to be beyond the Law whereas he ought to be subject to it as is contained in his Oath Though the second is my Business which is in these words 2. Abusion est que ou les Parlaments se duissent faire pur le salvation des Almes de 〈◊〉 〈◊〉 ceo a 〈◊〉 〈◊〉 deur foits per An la ne se font ils 〈◊〉 rarement 〈◊〉 a la 〈◊〉 le Roy
AN ESSAY CONCERNING PARLIAMENTS AT A CERTAINTY OR The KALENDS of MAY. BY SAMUEL JOHNSON Vice Cotis fungar Horace LONDON Printed for the Author MDCXCIII TO THE Barons and Commons Of ENGLAND In Parliament Assembled May it please your Honours YOU either knew more of the Matter contained in these Papers or less or the same If you knew more I should be glad to see it in your Laws which you mean to Establish Or which is better in your Declaration of the Constitution If not no Body can find fault with my poor Office of bearing a Light but they that have very ill Eyes I am the known Servant of You and of my whole Country Samuel Johnson AN ESSAY Concerning Parliaments at a Certainty CHAP. I. Shewing that the Frequent meeting of Parliaments is the Basis of our Constitution and the True of the Government and that the Intermission of them is Inconsistent with the Body of the English Law IF a Man would have an entire View of the English Constitution he must have recourse to those Able and Approved Authors who have written Purposely on that Subject For it is a Rule Parva est Authoritas aliud Agentis and what is said by the by is of less Weight than what is professedly handled provided it have been Maturely considered by a Competent Judge of that Matter of which he treats And in this kind we do not find a Man better Qualified than the Learned Lord Chancellor Fortescue who was an Aged Lawyer and had been Lord Chief Justice of England when he wrote his Book de laudibus Legum Angliae which was on purpose in a Dialogue with the Prince of Wales to inform him of the Nature of the English Constitution and to let him know by what Sort of Laws the Realm in which he was to Succeed his Father was to be Governed And therefore he adjures him over and over again to Addict himself to the Understanding of the Laws of his Father's Realm wherein he was to Succeed Fol. 16. a. and having shewed the Prince the Different nature of Reahns where a King could Tyrannize and where he could not being restrained by Politick Laws Fol. 26. b. Rejoyce therefore says he most Excellent Prince and be glad That the Law of the Realm in which you are to succeed is Such for it shall exhibit and minister to You and your People no small Security and Comfort But out of that excellent Book which I believe no way Warped for then it must lean towards the Court partly because of the Flattery and Officiousness which is too often found in Dialogues with Princes and partly because the Author was retained on the Crown side by the Greatest Office in England I will confine my Self to those Passages only which relate to the Frequency of Parliaments And the first I meet with is in his 18th Chap. concerning the Statutes of England in these words Et si Statuta haec tantâ solemnitate prudentiâ edita efficaciae tantae quantae conditorum cupiebat intentio non esse contingant Concitò reformari ipsa possunt 〈◊〉 non sine Communitatis Procerum Regni illius assensu quali ipsa primitùs emanarunt And if these Statutes fall short of their intended Efficacy though devised with such great Solemnity and Wisdom of Parliament they may very Quickly be Reformed but not without the Assent of the Commons and Peers of the Realm which was their Source from the beginning Now I only desire that the word Concitò may be taken notice of which is the quickest Word that can be imagined and shews that our Parliaments were always at Hand and the whole Passage shews for what Wise and Just Reasons they were so The next Passage is Chap. 53. Fol. 129. a. Neque leges Angliae frivolas infructuosas permittunt inducias Et siquae in Regno illo dilationes in Placitis minùs accommodae fuerint usitatae in Omni Parliamento amputari illae possunt etiam Omnes Leges Aliae in Regno illo usitatae cum in aliquo Claudicaverint in Omni Parliamento poterunt Reformari Quo recte concludi potest quod omnes Leges Regni illius Optimae sunt in actu vel potentiâ quo faciliter in actum duci poterunt in Essentiam realem Ad quod faciendum quoties aequitas id poposcerit singuli Reges ibidem Sacramento astringuntur solemniter praestito tempore receptionis Diadematis sui Neither do the Laws of England allow in Law-suits frivolous and fruitless Delays And if in this Kingdom Delays in Pleas which are not to the purpose should be used they may in every Parliament be cut off Yea and all other Laws used in the Realm when they Halt or are Defective in any point they may in every Parliament be set to Rights Whereupon it may be rightly Concluded that the Laws of England are the Best in the World either Actually or Potentially since they can easily be brought into Act or Being To the performance whereof as often as Equity so requireth Every King is bound by an Oath solemnly taken at the time of receiving his Crown Out of this last Passage I will not trouble you with any more Observations than these First That Parliaments are the Remedy against Delays in Law Proceedings But how if Parliaments themselves should be Delayed Secondly That if any or all our Laws should Halt and our Parliaments at the same time should be Crippled too and not able to come together they could not help one another In the next and last Chapter of that Book Fol. 129. b. the Prince immediately replies Princeps Leges illas nedum bonas sed optimas esse Cancellarie ex prosecutione tuâ in hoc Dialogo certissimè deprehendi Et siquae ex illis meliorari deposcant id Citissimè fieri posse Parliamentorum ibidem Formulae nos erudiunt Quo realiter potentialiterve Regnum illud semper praestantissimis Legibus gubernatur Nec tuas in hâc concionatione doctrinas futuris Angliae Regibus inutiles fore Conjicio dum non delectent regere legibus quae non delectant Says the Prince My Lord Chancellor by the Tenour of your Discourse in this Dialogue I am throughly satisfied that the Laws of England are not only Good but the Best in the World And in case any of the Laws want to be mended or improved the Rules of the English Parliaments do instruct us That that may be done forthwith Whereupon the Realm of England is always Governed by the very best Laws either in Reality or in Possibility And besides I conjecture that the Doctrines that have been held forth in this Dialogue will be very useful to the Kings of England that shall come hereafter since no Body likes to Govern by Laws which they do not like After all these Lauds and Praises of the English Laws which the Chancellor has stuck all over with Stars quite through his Book and has made their Perfection to Center in this
pur aides 〈◊〉 cuilets de 〈◊〉 Et ou les 〈◊〉 duissent faire al Common assent del Roy 〈◊〉 de ses Counties la le se font 〈◊〉 per le Roy 〈◊〉 ses Clerks 〈◊〉 per aliens 〈◊〉 autres que nosent contravener le 〈◊〉 eins 〈◊〉 de luy plaire 〈◊〉 de luy Counseller a son 〈◊〉 tout ne soit my le Counsel Covenable al Commons del People fans 〈◊〉 les Counties 〈◊〉 fans ensuer les Rules de 〈◊〉 〈◊〉 dount 〈◊〉 〈◊〉 se foundent 〈◊〉 〈◊〉 fur 〈◊〉 que sur Droit The second Abusion of the Law is that whereas Parliaments ought to Convene for the Salvation of the Souls of Trespassors and this at London and Two Times in the Year now a days they meet but seldom and at the Will of the King for Aids and Gatherings of Treasure And whereas Ordinances ought to be made by the Common Assent of the King and his Counties now they are made by the King and his Clerks and by Aliens and others that dare not Contradict the King but desire to Please him and to Counsel him for his own Profit though it be not Counsel which is Convenient for the Commons of the People without applying to the Counties and without following the Rules of Right Whereupon there are several of the present Ordinances that are rather founded upon Will than upon Right From this Passage I shall only observe that the Place of a Parliament's meeting is Fixed and still at London And that the Two Times a Year was standing Law down to King Edward the First though Abusions and Court-Practices had broken in upon the Law Now let us see how the Law stood afterwards wherein I can only consult the Books I have by me for I have not Health enough to go and Transcribe the Records in the Tower but take them upon Content as they lie in Sir Robert Cotton's Abridgment of the Records in the Tower And there in the very first Page 5 Ed. 〈◊〉 it is Ordained Que Parliament serra tenus un ou deux foits per An. That a Parliament shall be held one Time or Two Times a Year Here you see the Twice a Year is 〈◊〉 into Once or Twice The next is p. 93. of the same Bock 36. Ed. 3. The Print touching the Yearly holding of a Parliament cap. 10. agreeth with the Record Now the Print is Item for Maintenance of the said Articles and Statutes and Redress of divers Mischiefs which Daily happen a Parliament shall be holden every Year as another time was Ordained by Statute Now that Statute as I find by the Statute-Book for I cannot find it in Sir Robert Cotton is thus 4 Ed. 3. cap. 14. Item it is accorded that a Parliament shall be holden every Year Once and more Often if need be By the Reason given in the 36 Ed. 3. cap. 10. just now recited for a Yearly Parliament one would think it should be a Daily Parliament because it is for the Maintenance of former 〈◊〉 and Redress of divers Mischiefs which Daily happen But I believe that a Parliament which Sits but Forty Days in the Year are able to do that Work Concerning which we will enquire further afterwards In the 50 Ed. 3. p. 138. The Parliament's Demand or Petition is this That a Parliament may be holden every Year the Knights of the Parliament may be chosen by the whole Counties and that the Sheriff may likewise be without brokage in Court The King's Answer is this To the Parliament there are Statutes made therefore To the Sheriffs there is answer made To the Knights it is agreed that they shall be chosen by common Consent of every County After these Three Laws in Ed. 3d's Time we come to the First of King Richard the Second p. 163. where the Petition or Demand for a Yearly Parliament is this That a Parliament may be Yearly holden in convenient place to redress Delays in Suits and to end such Cases as the Judges doubt of The King's Answer is It shall be as it hath been used In the 2 R. 2. p. 173. By the King's Commandment one Cause of opening the Parliament is Declared to be this Secondly for that it was enacted that a Parliament should Yearly be holden Nay if the Court insist upon a Yearly Parliament the Country may and ought Thus stood the Law of England till the 16 Caroli 1. when that King having discontinued Parliaments for Twelve Years and created a Distrust of him in the Breasts of his People which was Just for if a Prince spoil the Government for Twelve Years together who shall Trust him in the Thirteenth The Nation found a Necessity of having a Cautionary Parliament every Third Year to secure their Annual Parliaments for the Two Years immediately foregoing This is the true Reason of the Act for a Triennial Parliament which was a perfect Innovation both Name and Thing For I challenge any Antiquary Lawyer or Person whatsoever that has turned over Books to shew me the word Triennial joined to the word Parliament from the Foundation of this Government till the Year 1640. A Triennial Parliament therefore is so far from being the Constitution of this Government that if it were so a great number of our present Lords and Commoners are Older than the Constitution and were Born before it But as I said before that Act was only a Cautionary Act as a Town or Gate of a City is taken in Caution for performance of Articles This appears by the first thing which is Enacted in that Law namely That the Laws for a Parliament to be holden at least once a Year shall hereafter be duly Kept and Observed Scobel's Coll. 16 Car. 1. Cap. 1. This Act was Gently drawn up and had more of a Prospect than a Retrospect and does not look back into those Oppressions which King Charles himself in his large Declaration of August the 12th does acknowledge were Insupportable which were wholly owing to this long Intermission of Parliaments but it wisely provides that in case the two first Years Parliaments should fail then came a Peremptory Parliament which the King and Keeper might call if they pleased but if they did not the Counties and Burroughs of England were forced to send It is an Act that executes it self like our Act for Burying in Woollen and he that will see the Wisdom of it may read it where I have quoted it After this comes the Act 16 Car. 2. cap. 1. and repeals this Triennial Act because say they It is in Derogation of his Majesty's just Rights and Prerogative inherent to the Imperial Crown of this Realm for the Calling and Assembling of Parliaments whereupon the Triennial Act is Annulled as if it had never been made I wish it had never been made But we will stop there first It is annulled as if it had never been made There is nothing lost by that for then our Parliaments are where they were which was Due Annual Well now let
Kalends of May was a Greve's Court. Now what Court should this be belonging to a Greve or any Count or Viscount or President whatsoever for Greve is an Ambiguous Word It is not a Burghmote for that is Three times a Year by the Saxon Laws It is not a County Court for that by Edward the Senior's Laws N. 11. was in these words Ic Wille that aelc Gerefa haebbe Gemot a ymb feower wucan I will that each Greve have a Gemot at about Four Weeks So that there were Twelve in the Year It was not the Sheriffs Turn or le 〈◊〉 del 〈◊〉 for that was twice a Year 〈◊〉 Scirgemot on ger by the Laws of King Edgar cap. 5. it is not the Gemot for the View of Weapons or Arms which every Freeman in England was charged with and was bound to shew once every Year and as was wisely contrived all in one Day throughout all England but that Day was not in our Kalends of May but the Morrow after Candlemass Crastino Purificationis B. M. And therefore I cannot for my Life make any thing else of an Universal Anniversary Full Folkmote which is but semel in Anno scilicet in capite Kal. Maii but a Stationary Parliament Especially considering who they were and what they did The next thing to be considered is the Author or Founder of this Ancient Constitution which we have in the aforesaid Chap. De Greve Num. 35. amongst the Laws of Good King Edward Hanc Legem Invenit Arthurus qui quondam fuit Inclytissimus Rex Brytonum ità consolidavit confoederavit regnum Britanniae universum semper in unum This Law of the Anniversary Folkmore Arthur Invented who was heretefore the most Renowned King of the Brytons and thereby he consolidated and confederated together the whole Realm of Britany for ever as One Man It is good to Honour the Founders of all Useful Constitutions and I believe that 〈◊〉 Arthur was the Inventor of this as to this Realm because these Laws of K. Edward say so And so was Cadmus the Inventor of Letters in Greece though we 〈◊〉 trace them out of Phoenicia and the Letters speak for themselves For if it be Aleph Beth Gimel Daleth in one Place and in the same Order it is Alpha Beta Gamma Delta in the other Place then we are sure there has been an Understanding and Communication For it is impossible to be otherwise when the Alphabets are settled on both Sides by being their Numeral Letters as it was plainly in King David's Time by the Octonaries of the 119th Psalm as it stands in the middle of the Bible and as it was in Homer's Time in Greece or else the Old Scholiasts have deceived me who say that Homer purposely couched the Number of all his Books in the first Word of his Iliads 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Which Numerals stand for 48. The Greeks likewise taught the Welch to tell Twenty and I believe they taught the Romans too Now by the same Rule if there was a very Ancient Folkmote in the Neighbouring Kingdom of France upon every Kalends of May then perhaps King Arthur borrowed from them and it is good to look upon their Kalends because it is possible they may give Light to Ours The French Kalends of May lie thus in Radulphus de Diceto a Famous Dean of Paul's in King John's time whose History was thought so Authentick that the English Parliament in Edward the First 's time Relied upon his Testimony amongst some others in no less a Point than the Claim of the King of England to the Supream Dominion of the Realm of Scotland As to our present business he has these Words Abbreviat Chronicorum pag. 439. Abhinc Francorum Regibus à solita fortitudine scientia degenerantibus regni potentia disponebatur per Majores domus Regibus solo nomine regnantibus Quibus moris erat principari quidem secundum genus nil agere vel disponere praeterquam irrationabiliter edere bibere domique morari Kal. Maii praesidere coram totâ gente salutari obsequia dona accipere rependere sic secum usque ad alium Maium permanere I will render the Sense of it into English as near as I can However the Latin lies before every Man to Translate it for himself From henceforward the French Kings degenerating from the Valour and Learning which they used to have the Power of the Kingdom was Administred by the Masters of the Palace the Kings themselves being upon the Matter only Titular whose Custom it was to come to the Crown indeed according to their Descent and neither to Act nor Order any thing but to Eat and Drink Unconscionably and to live at Home and upon the Kalends of May to Preside in an Assembly of the whole Nation and there to be Addressed to receive their Allegiances and Aids or Benevolences and to Remercie them and so to retire to the same Life again till another May came This French Kalends of May is so much a Picture of Ours that I know not which is the Copy nor which the Original Their's was an Assembly of the whole Nation so was Our's Annual and Anniversary so was Our's It was 〈◊〉 Gens Kal. Maii in France Our Folkmote looks extreamly like it in those two Strokes Statutum est enim quod ibi debent populi omnes gentes Universae singulis annis semel in anno scilicet convenire scilicet in capite Kal. Mati For it was Appointed by Statute that all the People and Counties Universal should meet together at the Folkmote each Year namely Once in the Year namely in the Beginnings of the Kalends of May. The King used to have fine Speeches made to him in France so had we They swore Allegiance to him so did our Folk They gave him Gifts it was not New-Year's tide Aids Benevolences call them what you will and our People at the same time as Sir H. Spelman said above Consulted of Peace and War which cannot be managed without Ways and Means of raising Money which is the Sinews of War as Laws are of Peace The word rependere at last in the French Kalends looks so like our French form of the Royal Assent given to a Money Bill le 〈◊〉 Remercie ses Loyals Sujects that I knew not how to render the word Rependere any otherwise than I did by the word Remercie I know that the Year 662 was below K. Arthur's Time but it appears that when the French Government was utterly spoiled in the Merovingian Family as to the other Points still they retained the old Custom of the Kalends of May so that it was of much greater standing The Conclusion And thus I have finished what I at first propoundded but under such difficulties and disadvantages of a broken Health as I do verily believe never Book was Written And for that Reason I am certain that the very Great Personages to whom I ventured to Offer it though it was upon presumption of a better Performance will bear with it to whom I wholly Submit it with all Deference and if one single Word of it should happen to be against Law I here revoke it before hand And for the same Reason I earnestly desire all Antiquaries and Learned Men to look further into this Matter because I my self cannot And as they see Cause either to Confirm or Confute my Notion which is Indifferent to me because I only seek Truth I do not speak thus doubtingly concerning Annual Parliaments for I am Positive in them but if People will have the utmost of Antiquities and the very Original of the Wisest and Justest Government in the World they must sometimes be content to Read with Letters that are somewhat Worn Though I have been of Opinion for many a Year that the Kalends of May were very Legible And I am sure that I have by this Time gained my Point which was to set Wiser Men upon Thinking I was afraid that this Government would float and move upon the Face of the Waters till we were at a certainty about our Parliaments and therefore when I waited upon my Lord Devonshire before the Coronation and it is my Fault I have not done it often since I said that we were never the Better for this Revolution till we had a Settlement of Parliaments and our Ancient Right was Anniversary Parliaments and that nothing else could set the Government to rights Knowing how much he had Assisted the King and seeing the white Staff in his Hand I concluded upon his Interest with the King and therefore said My Lord you may make a Complement of this Matter to the King and tell him that we must have Good Laws in a Good Reign or never for we cannot have them in a Bad one but the Laws made in a Good Reign are to support us when a bad one comes as the seven Years of Plenty in Egypt sustained the seven Years of Famine It breaks no Rules to repeat my own Discourse to his Lordship and to say that he gave me the hearing nor to say that a certain Knight pulled me by the Sleeve which had no other Effect than to make me speak the more and the more earnestly to my Lord in that matter Likewise when Mr. Johnston the present Secretary of State for Scotland told me in the Court of Requests that the Bill of Rights was going up to the House of Lords I wish'd at that Time that all the Rights were reduced to One Line which was our Right To have a Parliament every Kalends of May. I tell these old Stories to shew that I was always of the same Mind and that no Court neglects nor disappointments have Altered me and I will Love this Court whether they will or no for I am sure that I laid the Bridg that brought them over and am pretty certain that they did not come hither in Virtue of Passive-Obedience FINIS ERRATA P. 19. l. 6. dele The. P. 30. l. 11. for the Year before read some few Years before 4 E. 3. c. 14. 36 E. 3. c. 10. An. Dom. 662. L. L. Ed. Cons. cap. 35. de Greve