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A46947
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An essay concerning Parliaments at a certainty, or, The kalends of May by Samvel Johnson.
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Johnson, Samuel, 1649-1703.
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1693
(1693)
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Wing J826; ESTC R11823
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20,302
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52
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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
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