together with Judges and King's Council Citizens Burgesses of Parliament and Barons of the Cinque-Ports being usually summoned to the one but to the other some few Spiritual and Temporal Lords only without (x) Brief Register part 1. pag. 187. to 192. any Judges Assistants Knights Citizens Burgesses or Barons of the Cinque-Ports or some few of them only and divers who were no usual Lords or Barons of Parliament as Mr. Prynn hath made evident and the Rolls themselves in the Margin notes them by de Concilio summonito or deveniendo ad Concilium which some Antiquaries having not noted have confounded them SECT 4. Of the Judicature of the House of Lords IT is evident that the Lords in Parliament have ever been the usual Judges not only in all criminal and civil causes 6. The Lords Judicature proper for Parliaments to judg or punish and Writs of Errors but likewise in all cases of Precedencies and Controversies concerning Peers and Peerage which Power was in them as the King 's Supreme Court before there were any Knights Citizens or Burgesses summoned to our Parliaments So Hoveden (y) Annal. pars poster p. 561. ad 566. is express in the case of Sanctius King of Navar and Alphonsus King of Castile Comites Barones Regalis Curiae Angliae adjudicaverunt Anno 1177. 23 H. 2. So Fleta in Ed. the First 's time writes (z) Habet enim Rex Curiam suam in Concilio suo in Parliamentis suis praesentibus Pralatis Comitibus Baronibus Proceribus aliis viris peritis ubi terminatae sunt dubitationes judiciorum Lib. 2. c. 2. p. 66. thus The King hath his Court in his Council in his Parliaments there being present the Prelates Earls Barons Nobles and other skillful Men viz. the Judges Assistants where are ended the doubts of Judgments This Particular of the Jurisdiction of the House of Lords is so fully in every Branch of it proved by Mr. Prynn in his Plea for the Lords House that it were an Injury to the inquisitive Reader not to referr him to that Treatise for full Satisfaction therefore I shall only pick out a very few out of a Manuscript I have of the Priviledges belonging to the Baronage of England and Mr. Prynn In the fourth of King (a) Roâ— Parl. 4 E. 3. m. 7. num 3. Judgment of Lords on John Mautravers Edward the Third the Peers Earls and Barons assembled at Westminster saith the Record have strictly examined and thereupon assented and agreed that John Mautravers is guilty of the death of Esmon Earl of Kent Uncle of our Lord the King that now is wherefore the said Peers of the Land and Judges of Parliament judged and awarded that he the said John should be drawn hanged and beheaded In the first of R. 2. John Lord of (b) Rot. Par. 1 R. 2. m. 6. num 38 39. Gomenys and William de Weston were brought before the Lords sitting in the white Chamber On John Lord of Gâ—menys and William Weston for delivering up Forts to the Enemy and were severally charged at the Commandment of the Lords by Sir Richard Scroop Knight Steward of the Kings House William Weston being accused for rendring the Castle of Outhrewike and John Lord of Gomenys for rendring the Castle of Ards. They both made plausible defences and Sir Rich. Scroop Steward tells William that the Lords sitting in full Parliament do adjudge him to death But because our Lord the King is not yet informed of the manner of this Judgment the execution thereof shall be respited till the King be informed thereof and the like Sentence he passed upon John Lord of Gomenies only adding that he being a Gentleman and Banneret should be beheaded There are many more Examples of Judgments given in Capital matters upon Bergo de Bayons 4 E. 3. m. 7. num 4. Thomas de Gurny eadem membrana num 5. and others and for Offences not Capital of Richard Lions 59 E. 3. m. 7. William le Latymer 42 E. 3. m. 2. William Ellis ibid num 31 John Chichester and Botesha 1 R. 2. num 32. Alice Piers Ibid. num 41. Mr. Antiquity of Judgment by Peeâ—s Prynn (c) Plea for Lords p. 203. Hist lib. 4. shews this Jurisdiction out of Historians even from Cassibellan out of Geoffrey of Monmouth Also Anno 924. of Elfred a Nobleman who opposed King Aethelstan's Title and had his Lands adjudged by the Peers forfeit to him the Words of the King are Et eas accepi (d) Malmsb. de Gest is Reg. lib. 2. c. 6. p. 62. Spelman Conc. Tom. 1. p. 407 408. Anno 1043. quemadmodum judicaverunt omnes â—ptimates Regni Anglorum So Earl Godwin having murdred Prince Alfred Brother to King Edward the Confessor being fled into Denmark and hearing of King Edward's Piety and Mercy returned and came to London to the King who then held a Great Council and denied the Fact and put himself upon the (e) vnde super hoc pono me in consideratione Curiae vestrae Chron. Brompton col 937 938. consideration of the Kings Court and the King speaks to the Earls and Barons thus Volo quod inter nos in illa appellatione rectum judicium decernatis debitam justiciam faciatis and after it is said Quicquid judicaverint per omnia ratificavit So in the Constitutions of (f) An. 1164. M. Paris 94. Sicut Barones caeteri debent interesse judiciis Curiae Regis cum Baronibus quousque perveniatur in judicio ad diminutionem membrorum vel ad mortem The House of Lords the King's Court of Barons Clarendon it is appointed That the Archbishop Bishops and those Clergy that held in Capite as by Barony should be Parties in the Judgments of the Kings Court as other Barons ought with the other Barons till it come in Judgment to the loss of Member or to Death So in the Case of Tho. Becket Archbishop of Canterbury Anno 1165. 11 H. 2. we find in Hoveden parte post p. 494 495. that Barones Curiae Regis judicaverunt eum esse in misericordia Regis and afterwards when he would not yield to the Kings Will he (g) Dixit Baronibus suâ—s Cito facite mihi judicium de illo qui homo meus Ligeus est stare Juri in Curia mea recusat saith to his Barons Quickly make to me Judgment of him who is my Liege Man and refuseth to stand to the Law in my Court The Barons going out judg'd him fit to be seiz'd on and sent to Prison and the Historian saith tunc misit Rex Reginaldum Comitem Cornubiae Robertum Comitem Leicestriae ad indicandum ei judicium de illo factum Anno 1208. King (h) Anno 10 Johan Mat. Paris p. 218. John exacted Pledges of his Subjects and amongst others of William de Breause who said If he had offended the King he would be ready to answer his Lord and that without Hostages secundum judicium
in such cases it is not to be wondred at that a majority of Votes might be opposite to more judicious and foreseeing Members judgments neither is the Maxim universally true for it must be caeteris paribus if all things be alike For it is not sufficient for an Adviser to see unless he can let another see by the light of Reason A man ought not implicitely to ground his Actions upon the Authority of other mens Eyes whether many or few but of his own One Physician may see more into the state of a mans body than many Empiricks One experienced Commander may know more in Military Affairs than ten fresh-water Souldiers One old States-man in his own Element is worth many new Practitioners One man upon a Hill may see more than an Hundred in a Valley And who will deny but among an Hundred one of them may have a stronger Eye and see clearer and further than all the Ninety Nine So one Paphnutius in the Council of Nice saw more than many greater Clerks And it is no new thing to find one or two men in the Parliament change the Votes of the House Therefore nothing is got by this way of arguing though it be one of the plausiblest and most improveable of any of the Topicks they choose And if we could be sure that all the Members of such Assemblies were free from all the imperfections such are liable to much might be yielded to it All these Arguments were used for that sole end that they might possess their Party with the reasonableness of their desires to the King that he would implicitly yield up his reason to the guidance of their Councils They were not so frontless at first Concerning the Negative Voice as positively to deny the Kings negative Vote in Parliament that had never been doubted and there is good reason it should be a most sure Fundamental of the Government since nothing can be Statute-law but that to which the King assents Le Roy le veult For who can be said to will that hath not the Power to deny Si vult is scire an velim efficite us possim nolle Seneca But they affirmed that in Cases extraordinary when the Kingdom was to be saved from ruine the King seduced and preferring dangerous men it was necessary for them to take care of the Publick And then the Kings denying to pass their Bills was a deserting of them Objection That in Cases of Extraordinary necessity the Houses to have Power to secure the People from Tyranny Otherwise they alledged Parliaments had not sufficient Power to restrain Tyranny and so they boldly affirmed they had an absolute indisputable Power in declaring Law and as their Observer words it they are not bound to Precedents since Statutes cannot bind them there being no obligation stronger than the Justice and Honour of Parliaments And to summ up all he tells us if the Parliament meaning the two Houses be not vertually the whole Kingdom it self if it be not the supreme Judicature as well in matters of State as matters of Law if it be not the great Council of the Kingdom as well as of the King to whom it belongeth by the consent of all Nations to provide in all extraordinary cases ne quid detrimenti capiat Respublica let the brand of Treason saith he stick upon it Indeed because by all these most false and impious assertions and those horrid Acts built upon them they brought so great a ruine to the Kingdom they are and ever will be uâ—less a Platonick year return again branded with Rebellion in the highest degree To answer this Accumulation of Treasonable Positions for such I hope I may call in some sence Answer what is against the Kings Crown and Dignity is no ways difficult from the discourse of right constituted Parliaments For those of them that carry any shew of Reason are such only as may be understood of Acts of Parliament compleated by the Royal Assent but being spoken of either or both Houses in opposition to the King they are most false as I shall shew in particular For First If the two Houses are not bound to keep any Law no man can accuse them of breach of any What obligation can Justice lay on them who by a strange vertue of Representation are not capable of doing wrong But it is well known that Statutes stand in full force to the two Houses as being not void till repealed by a joynt consent of the King and the two Houses It would be much for the credit of the Observers desperate Cause if he were able to shew one such Precedent of an Ordinance made by Parliament without the Kings assent that was binding to the Kingdom in nature of a Law Our Kings can repeal no Laws by their own Prerogative though they may suspend the Execution It seems the Houses would have Power to do both and our Author in another place thinks it strange that the King should assume or challenge such a share in the Legislative Power to himself as without his concurrence the Lords and Commons should have no right to make Temporary Orders for putting the Kingdom into a Posture of Defence These were strange Phrases never heard before by English Ears Our Laws give this Honour to the King That he can joyn or be sharer with no man The King like Solomon's true Mother challengeth the whole Child not a divisible share but the very life of the Legislative Power The Commons present and pray the Lords advise and consent the King Enacts Secondly The Houses have no Power to declare Law As to their claiming an absolute Power in declaring Law it is as bold and false an Assertion as the other when spoken of the two Houses They may vote in order to a new Bill the explaining or repeal of any Law formerly made or prepare a Bill for any New Law and that is all they can do but authoritatively to declare any Law is most contrary to the Constitution of the Houses and never was adjudged one of their Privileges Thirdly As to the Justice and Honour of a Parliament when the State is in quiet and the Conventions only for making wholsome Laws for the Publick weal there are no Factions in Court or Country no private Intriegues to be managed the People neither uneasie nor discontented then it is to be expected That none but the wisest and wealthiest of the Gentry will be chosen Members of that August Assembly and their Justice and Honour will be conspicuous in all their Actions But have we not known Houses of Commons composed of other kinds of Persons who have voted their own Justice and Honour to be to imprison their fellow Members and fellow Subjects in an Arbitrary way How (d) Address part 3. p. 121. could a generous Soul conscious to himself he had transgressed no Law kneel at the Bar of such a House with the same submission as if he believed the Speaker
Particulars of Royal Abatements Edicts or make new Laws or change any of the old standing Laws without the mutual Consent of the two Houses of Parliament He may not oppress the People or in any Arbitrary way take from them their Liberties or Estates under any pretence whatsoever without due course of Law Nor can he impose upon their (m) Stamford's Pleas of the Crown Persons what Charges or Burthens he pleaseth but according to and by the Laws of the Kingdom He cannot do any thing against the Law of the Nation or against common Right cannot change Ancient Customs for a Legal (n) Hâ—ghs 's Reports 254.263 Cousâ—uetudo lâ—galis plus habet quam concessio Regalis Custom is more available than a Royal Concession yet on the other side that Custom which advanceth against the Prerogative of the King is void He cannot impose Arbitrary (o) Petit. of Right 3 Car. 1.7 Car. 1. c. 17. payments erect new Offices of Charge to the Subject may not deny or delay Justice may not compel his People to make Gifts Loan Benevolence or Tax without consent of the two Houses The King (p) 2 Car. 1. c. 1. Coke 12.46.2 part Brown lib. 2. c. 2. Coke Instit 2 part 47 48. Petition of Right Dyer 176. may not imprison without just Cause nor keep any Mans Cause from Tryal may not send any man out of the Realm without his own Consent may not in time of Peace Billet or Quarter Soldiers or Mariners upon his People against their Wills may not grant Commission to try Men by Martial Law in time of Peace nor to determine any matters of difference betwixt Subjects other ways than by ordinary (q) 21 Jac. c. 31. Coke 11.87 Plowden 497. course of Law and ordinary Courts may not by Patent or Licence make a grant of a Monopoly or the benefit of a Penal Law or give a Power to dispense with Penal Laws in some Cases (r) Coke 11.87 He may not have or take that he hath right to which is in the Possession of another but by due course of Laws and may not make new or alter old Courts of Justice unless to be kept after the Course of the Law and not in Course of Equity Nor (s) Sheppard's Grand Abridgment part 3. fol. 49. alter the Courts of Westminster that have been time out of mind nor erect new Courts of Chancery Kings-Bench Common-pleas or Exchequer (t) Fleetwood lib. 1. c. 8. He may not by his last Will and Testament under the great Seal or otherwise dispose of the Government or of the Crown it self nor give and grant away the Crown-Lands or Jewels which he hath in his Politic Capacity nor give away any of the incommunicable Prerogatives By these Abatements of Power and gracious Condescentions of the Kings of England for the Benefit and Security of the Subject No Power co-ordinate with the King 's we are not to conclude that there either is or can be any Co-ordination or Coaequality of any State Order or Degree of the Subjects with the Sovereign nor any Competition of the Subjects Power in his Concurrence with the Vertual and Primary Influence of the Sovereign but a plain Subordination and subjected Ministration of the one under the Sovereignty of the other For although there is a Co-operation of the Members with the Head for the performing some Acts of State and they may seem Orders or States coaequally Authorized in the Power of Acting with the Sovereign in Petitioning for advising or consulting about or consenting upon the Kings Summons to Laws And although in judging and determining matters of Private Interest the King hath not an Arbitrary Judgment but is restrained to the Judgment to be administred by the proper sworn Judges in his Courts whom he appoints to judge according to his Laws and in the making of Laws his Power and Judgment is restrained to the Concurrence of the Nobles and Commons in Parliament yet in all other things wherein he is not expresly restricted by any Law of his own or Progenitors granting he retaineth the absolute Power as in the particulars before mentioned and in the Chapters of Parliaments I shall further discourse In the Rebellion under King Charles the First the (u) Observations on His Majesty's Messages c. The Rebels in 1641. would have lessened the King's Sovereignty and placed it in the People or their Representatives Pencombatants for the Party knowing they had the whole Current of the Laws against them made a great noise and bustle with Sophisms and plausible specious Pretences to captivate the Populace and nothing was more frequent than the Misapplication of that of the Philosopher That the King was Singulis major but Vniversis minor Inferring from thence That the Collective Body of the People and their Representatives were Greater in Authority than the King In answer to which it may be observed That the Aphorism how true soever in any other sense is most false in any sense of Sovereignty For if it be meant That the King is a better Man only than any of us single this doth not tell us he is better than Two and this is no more than possibly he might be before he was King For we must needs look upon Princes as Persons of Worth Honour and Eminency when taken from the People which the superaddition of Royalty did not destroy Besides any Lord of the Land may challenge such a Supremacy over all the Knights and any Knight over all the Esquires Furthermore if Princes be Sovereigns to single Persons of Subjects only and not to the universality of them then every single Subject by himself is a Body Politick whereof the King as King is Head and so the Publick Community is out of the King's Protection he being no King as to them in a complex Body Such impudent Falsities and many more destructive Consequences flow from such absurd Principles And if the Maxim were true the People have placed a King not over but under themselves But they enforce the Argument still further That the Fountain and efficient Cause of Power is the People and from hence they say the Inference is just That he is less than the Universe But the (w) Answer to Observations p. 10. Consequence is rather the contrary For suppose the People were the efficient Cause of Power it can be no otherwise than by translating or deriving their divided Power and uniting it in him Since then they cannot retain what they have parted with nor have what they gave away it follows That he who hath all their Power and his own particular besides must needs be greater and more powerful than they it being a very great Truth That he is the only Fountain of Power and Justice Another of their Maxims was That quicquid efficit tale illud est magis tale And they assume But the King was made by the People therefore less than the People In answer to which it is
Barons Justices and others which are of the King's Council who may not depart without special leave of the King I shall not here enter into the enquiry how far the extent of the Power of the King's Council was in those days but it is very apparent that the King with advice of his Council proposed Laws and that others proposed by the Houses were considered by the King and Council as no doubt they are now considered before the King gives his Assent to Bills So in the Statute of the Definition of (x) Pulton An. 1304. fol. 72. Conspirators in the three and Thirtieth Year of King Edward the First it is said This Ordinance was accorded by the King and his Council in his Parliament Also in the Ordinance of (y) Idem Anno 1305. Enquests the Eighteenth of Sept. in the thirty third Year of Ed. the First It is said it is agreed and ordained by the King and all his Council that is his Parliament As to the special Prerogative of the King in giving the ultimate Character and fiat to the Laws every Act expresseth it so the Statute of (z) 18 Sept. 33 E. 1. Champerty the Statutes are called by the King Our Statutes and Our Lord the King hath commanded and in the Statute de Conjunctim feoffat it is said It is no new thing that among divers Establishments of Laws which we have ordained in our time so in the Ordinatio Forestae 34 Ed. 1. The King Ordains (a) Id. Anno 1306. fol. 73. We have ordained for our selves and our Heirs So in the Statute De asportatu Religiosorum 35 Ed. 1. it is said by the Council of his Earls Barons great Men and other Nobles of his Kingdom at his Parliament Our Lord the King hath Ordained and Enacted I shall only note first That in the Twenty eighth of this King those the (b) Cl. 28 E. 1. m. 3. dorso King had appointed being ready to give an account of the Perambulation of the Forests the King put a present stop to their report and his determination because the Prelates Earls Barons The Reason the King will determine nothing without advice in Parliament and the rest of the Magnates of the Kingdom in whose Presence his own and others Reasons should be propounded and heard and by whose Councils he intended to work especially seeing they were bound by Oath as well as himself to observe and maintain the Rights of the Kingdom and Crown were not then present and those were not summoned who should propound their Reasons so far as the matters concerned them and the King was not willing without their advice to put an end to the matters therefore he orders the Sheriffs to cause the two Knights that came to the last Parliament by his Precept now to come and the like for the Cities and Burroughs and if any were dead or infirm so that he could not come then to cause another to be chosen By which it appears that it was only from the King's Indulgence and that he might more deliberately resolve for the best advantage of his Subjects and for their satisfaction that he would have the advice of a fuller Assembly We may also further note from hence that it was in the King's Power to summon the same Knights Citizens and Burgesses without a new Choice except the Persons were dead or infirm Of the Parliaments in King Edward the Second's time IN this King's Reign these following Particulars are most observable In the Statute for (a) Pulton An. 1307. fol. 79. Knights 1 Regni it is said Our Lord the King hath granted In the Summons 5 Ed. 2. the Precept to the Sheriff The same Knights c. to come that were before is to cause to come to the Parliament to be held at Westminster those Knights Citizens and Burgesses in his Bailiwick which he caused to come lately to the present Parliament at London and which for certain causes went from the said Parliament (b) Cl. 5 E. 2. m. 26. dorso Vel alios ad hâ—â— idoneos loco ipsorum si ad hoc vacare non possunt or others fit for the Imployment if they cannot be at leisure Dated Octob. 11. In the sixth of Ed. 2. we have an example of the King 's (c) Cl. 6 E. 2. m. 27. dorso A Form of Prorogation proroguing the House of Commons in these Words Dominus Rex praecepit quod Milites Cives Burgenses qui ad Parliamentum Regis ibidem summonitum convenerunt pro Comitatibus Civitatibus Burgis Angliae ad propria remearent ita quod reverterentur ibidem in crastino S. Mich. prox futuro sub poena qua decet So that as they were commanded to return home so they were appointed a time to return under the Intimation of a Punishment The Preamble to the (d) Pulton An. 1315. fol. 80. The King with his Council revise Articles after the Parliament ended Articuli Cleri runs thus That by the Kings Progrenitors and himself at the Instance of the Prelates certain Articles were made and in the Parliament at Lincoln 9 Regni he caused them to be rehearsed before his Council and made certain answers to be corrected and to the residue of the Articles answers were made by him and his Council and so by way of Charter they are published at York 24 Nov. 10 Regni The Statute of (e) Id. 1316. fol. 83. Gavelet at London saith It is provided by our Lord the King and his Justices In the Statute de Terris (f) Id. Anno 1323. 17 E. 2. fol. 91. Templariorum it is said Great conference was had before the King himself in the presence of the Prelates Earls Barons Nobles and great Men of the Realm and others present whereupon the Greater part of the King's Council The King's Council and Justices affirm as well the Justices as other Lay-men being assembled the Justices affirmed precisely c. After the recital of Particulars the words are It is ordained and agreed in the same Parliament Anno 1326. the last of Ed. 2. There is a Prorogation of the (g) Claus 20 E. 2. m. 4. dorso A Prorogation before Meeting Parliament before meeting which runs thus That though the King had intended Colloquium Tractatum Conference and Treaty in the Quindene of St. Andrew by Isabel the Queen and Edward his eldest Son Custos of the Kingdom the King then being beyond Sea and the Prelats Proceres Magnates Regni and so had commanded two Knights of the Community of the County two Burgesses of every Burrough (h) Quia tamen quibusdam de causis necessariis utilibus praedict Parliamentum Tractatum usque in crast inum Epiphaniae prox jam futur c. duximus prorogandum yet for certain causes necessary and profitable he hath prorogued the said Parliament and Treaty unto the day after Epiphany c. Of the Parliaments in King Edward the Third's
Curiae suae Baronum Parium suorum So Anno 1240. 24 H. 3. (i) Graviter accusatus coram Rege Curia tota Lond. Mat. Westm 153. Matthew Paris saith That Hubert de Burgo Earl of Kent was grievously accused before the King and his whole Court and it was adjudged he should resign to the King four of his Castles I cannot omit one memorable passage that (k) Mat. Westm Anno 1260. p. 295 296. Anno 1260. 44 H. 3. there falling out a difference betwixt King Hen. 3. Prince Edward his Son Simon Montfort and other Nobles the King called his Baronage to St. Pauls and there it being urged that Prince Edward had done some injuries to the King he offered to prove himself innocent before the King and his Uncle who was King of the Romans saying Who are Peers of Prince Edward That none of (l) Omnes alios Barones Comites sibi de â—ure non esse Pares nec sâ—â—s in eum excercerâ— disâ—ussiones the rest of the Barons and Earls were by right his Peers nor ought to exercise upon him their Discussions of the matter By which it appears that he judged himself to be something more than a Peer of the Realm being the Heir apparent of the Crown I might fill a large Volum with the Histories and Records to prove this but since Levellers and the House of Commons that voted the House of Lords dangerous and useless have received such deadly wounds by Mr. Prynne in his Plea for the Lords who was once one of their own Champions I think it needless to whet those Weapons again since they always will be in readiness for any one to make use of if need require and shall only obviate one objection that may be urged That whatever the usage was before the Representatives of the Commons An Objection That after the House of Commons were admitted the Jurisdiction of the Lords House was lessened Answered yet the Commons after were often admitted to a share of Judicature in some cases But I shall give a few Instances how after this change of the Constitution of Parliament still this power of Judicature remained in the King and House of Lords Roger de (m) 4 E. 3. num 11.28 E. 3. num 9 10. Mortimer being accused of High Treason 4 E. 3. for the Murther of King Edward 2. after his resignation and unlawful deposition Knighton (n) De Event Angliae lib. 3. c. 16. col 1556 1557. giving an account of the proceedings agreeable to the Parliament Roll saith Rex praecepit Comitibus Baronibus caeteris Magnatibus Regni justum judicium ferre super praedicto Rogero de Mortimer So at the Parliament held at Salisbury 7 R. 2. W. de Zouch is said to be called to the Parliament to stand to the Judgment (o) Ad standum judicio Regis Domincrum Walâ—ingham p. 334. Hist Ang. Hypodig Neust p. 141. of the King and the Lords So Michael de la Pole Earl of Suffolk and Chancellor of England 10 R. 2. (p) Rot. Parl. 10 R. 2. num 6. ad 18. was accused by the Commons in full Parliament before the King Bishops and Lords and at last it is said The Lords in full Parliament gave judgment against him In the Parliament 11 R. 2. Thomas Duke of Gloucester offered to put himself upon his Tryal as the Lords of the Parliament would award c. After which the Lords as well Spiritual as Temporal claimed their Liberties and Franchises namely That all weighty matters in the same Parliament which should be after moved touching the Peers of the Land should be judged and determined by them by the course of Parliament and not by the Civil Law nor yet by the Common Law of the Land used in other Courts of the Realm Yet this seems a very high Demand for they have not Juris dandi but dati Jurisdictionem as they are a Court of Ministerial Jurisdiction being the Court of the King's Barons in Parliament And though when upon Writ of Error (q) Egerton sect 4.22 23. any Judgment in the King's Bench is examined in the House of Lords and there affirmed or reversed the Judgment is said to be affirmed or reversed in Parliament yet we cannot conclude they have the Power of the High Court of Parliament that their Decrees if against the Law should be as binding as Acts of Parliament How the Lords judge ministerially And though the same House in the same Session may not have Power to review again their own Judgment nor to restore again any Judgment they have reversed because they judge ministerially and not sovereignly and so bind their own Hands as well as their Inferiors whereas an Absolute Supreme Court is never at the last Period of Jurisdiction yet we see Attainders in one Parliament reversed in another and so may their Judgments be But this obiter I shall but add one proof more being full and express to the purpose to prove the House of Lords sole Jurisdiction with the King who must always be understood to give Judgment by them The Record is 1 H. 4. (r) Rot. Par. 1 H. 4. num 79. Exact Abridgment p. 392. where it is said That 3 Nov. the Commons in this Parliament shewed to the King Come les joggements du Parlement apperteignent soulement au Roy Seignieurs nient aus Communes c. That the Judgments of Parliament appertained only to the King and to the Lords and not unto the Commons Thereupon they prayed the King out of his special Grace to shew unto them the said Judgments and the cause of them that so no Record might be made in Parliament against the said Commons which are or shall be parties to any Judgment given or hereafter to be given in Parliament without their Privity Whereunto the Archbishop of Canterbury gave them this Answer by the Kings Commandment That the Commons themselves are Petitioners and Demanders and that the King (s) Et que le Roy les Seigniours de tout temps ont eues averont de droit les Juggement in Parliament en manere come mesmes les Communes soâ—t monstres and Lords from all times have had and shall have of right the Judgments in Parliaments in manner as the Commons have shewed How far the King and House of Lords have been Judges of the Priviledges of the House of Commons I shall declare in that part of this Chapter wherein I treat of that House SECT 5. Of the Assistants to the House of Lords HAving thus far treated of the Constituent Parts of the House of Lords I come now to the Assistants to this most Honourable House which were mostly the (t) Prynne's Brief Register part 1. sect 3. p. 240. The Judges and other Assistants of the House of Lords King 's Great Officers as well Clergy-men as Secular Persons who were no Lords or Barons of the Realm as namely his Treasurer
Statutes of this Kingdom do give assign and appoint the correction and punishment of all Offenders against the Regality and Dignity of the Crown and the Laws of this Realm unto the King which manifests P. 23 that all such things are to be tried in his Courts So that surely the Commons Privileges must be included for to trouble any saith the Author of The Lawyer outlawed that doth not offend against the Crown or Laws of the Land is very Illegal and Arbitrary Id. p. 16. and an high breach of the Liberty of the Subject It would therefore be considered how improbable it is that after our Ancestors have struggled for many Ages Infoeliciter aegrotat cui plus mali venit a Medico quam a Morbo to preserve themselves and posterity from the unbounded Rule of Arbitrary Pleasure and having obtained that from their Soveraigns in so much that they can neither be fined or imprisoned by their Soveraign unless for transgressing some known Penal Law of the Land should leave any Arbitrariness in the House of Commons who are but the Peoples honourable Deputies Trustees and Atturneys Thirdly The Law hath provided where the Breach of the greatest Privileges are to be tried It is to be considered that the Law hath expresly provided where and how Breaches of Privilege ought to be punished 5 H. 4. c. 6. and 11 H. 6. c. 11. about any Assault upon a Parliament man or his menial Servant to be in the Kings Bench. Since therefore such Assaults are far more Criminal than Arrests of them or words spoken against them or inferiour misdemeanours to argue a majori ad minus it should seem rational that in the Courts of Justice being open to redress all sorts of Illegalities matters should be rather tryed than that persons should be punished by Imprisonments of the House of Commons alone For if this Arbitrariness were allowed it would argue a great defect in our Laws that they are not the entire Rule of the Subjects Civil Obedience and if the ordinary Courts of Justice can try the greater they may certainly try the lesser Crime as they have done in the Case of Done against Welsh River against Cosyn Shewish against Trewynnard Mich. 12. E. 4. Rot. 20. Excheq Hil. 14. E. 4. Rot. 7. Dyer fol. 59. But I have sufficiently shewed before that in old time the determination and knowledge of the Privileges did belong to the Lords How agreeable these ways of Proceedings were to the Usage of the House of Commons in 1640. and 1680. The Proceeding of the Houses in Anno 1640. and 1680. are fresh in every ones memory when not only they ejected and imprisoned their own Members but by Messengers sent for several Gentlemen and others no Members for acting according to the known Laws and King's Proclamations and often for Persons having spoke angrily or slightingly of some Member as in the Case of Abhorrers It is to be hoped those very Gentlemen now wish it might be forgot as I hope it will never be put in practice again when after a chargeable sending for up by the terrible Messengers after being detained in Custody during the Pleasure of the House and brought to receive their Sentence on their Knees at the House of Commons Bar they were dismissed So that I knew one who principally to avoid the Charge his Crime being for speaking Words against a Member in his Cups was forced upon notice of the Messenger 's coming for him to fly into Ireland Fourthly That the Law and Custom of Parliament may be declared It is worthy great Consideration by all the Members of the Honourable House of Commons that it is an undoubted Maxim both in Law and Reason and is necessary to the Obligation of all positive Constitutions That they should be published in express Words The immediate Laws even of God Almighty in the Opinion of Learned Men being not obligatory where they were never promulged Now since it hath not been hitherto published to the People what this Lex Consuetudo Parliamenti is 4. Inst it p. 15. Illa lex ab omnibus quarenda a multis ignorata a paucis cognita Fleta l. 2. c. 2. which Sir Edward Coke saith out of Fleta is to be enquired into of all is understood by many and known to few it would not only be obliging but most necessary that the Honourable House would give a true and full Description of this Law and Custom of Parliament and an exact Account of their Privileges that People might in some measure for the future shun those dangerous Rocks and not be surprized or shipwrack'd on such hidden Shelfs I shall close this long Chapter wherein according to my Talent I have endeavoured to comprise what hath been voluminously treated of by all the Authors I am furnished withal and digested things into an easie Method with some Assertions of Mr. Prynne whose Writings in this Particular are better esteemed than many others He saith Brief Register part 4. p. 685. Mr. Prynne's Opinion concerning the great Privilege the Commons The Parliament being the Supremest Court of Law and Justice ought to proceed legally according to the Course of Law and not to enlarge or extend the Privileges of Parliament beyond their Ancient Just and Legal Bounds nor alter the Law therein by their absolute Power Much more ought the House of Commons themselves to follow their Precedent and not to extend their old or vote up new Privilege to the delay Ibid. p. 1210. retarding or deluding of Common Right and Justice Therefore he condemns the writing of Letters by the Speaker 18 Jacobi 1. 14 Feb. 18 Jac. fol. 24. b. to stay a Tryal betwixt Sir William Coxe and Mr. Humphrey Aylworth as likewise in other Cases the same Year Ibid. fol. 51. b. fol. 137. 3 March and 20 April which he saith is diametrically opposite to the Judges Oath and against the Great Charter which saith See Stat. 2 E. 3. c. 6. 14 E. 3. c. 14.20 E. 3. c. 1 2. Nulli negabimus nulli differemus Justitiam Rectum To which I may add the Hardship used to Mr. Sherridon Lawyer outlawed p. 28. who being in the Custody of the Serjeant at Arms the Warrant of Commitment being during the Pleasure of the House of Commons Mr. Sherridon's Case who was denied the Benefit of the Habeas Corpus Act. without any Cause shown now the Habeas Corpus Act is express That all Persons are Bailable by what Person soever committed not excepting the King and Council much less the House of Commons unless for Treason or Felony One of the Judges made application to the House of Commons to know whether he might grant the Writ of Habeas Corpus to him The Debate lasted three days by reason of the Difficulty of the Cause For if they openly declared against the Habeas Corpus the Nation would be much alarm'd and suspect these Gentlemen instead of securing
Second as they found it in the Latin (o) Cl. 1. R. 2. m. 44. Records therefore before I apply those it is needful to note the Latin which as we find it 1 R. 2. was this Capto per Archiepiscopum Cantuar. Sacramento Dom. Regis Corporali de concedendo servando cum sucra confirmatione Leges consuetudines ab antiquis justis Deo devotis Regibus Angliae Progenitoribus Plebi Regni Angliae concessas praesortim leges consuetudines libertates a gloriosissimo sanctissimo Rege Edwardo Clero Populoque Regni praedicti concessas servando Deo Ecclesiae Sanctae Domini Cleroque Populo pacem concordiam integre in Deo juxta vires suas de faciendo fieri in omnibus judiciis suis aequam rectam Justitiam discretionem in misericordia veritate otiam de tenendo custodiendo justas Leges Consuetudines Ecclesiae de faciendo per ipsum Dom. Regem eas esse protegendas ad honorem Dei corroborandas quas vulgus juste rationabiliter elegerit juxta vires ejusdem Dom. Regis This is an additional Clause This is verbatim the Latin for the preceding French except in the additional Clause and the Conclusion which makes the just Laws and Customs both to relate to those of the Church and those that the Vulgar shall have justly and reasonably chosen The like we find (q) Rot. Parl. 1 H. 4. num 16 17. 1 H. 4. and in the Pontificale of the Archbishops and Bishops and it is added after the King hath King Henry the Fourth's Oath as before expressed answered to the Proposals Pronunciatis omnibus confirmat Rex se omnia servaturum Sacramento super Attari praestito coram cunctis i. e. that the King by his Oath taken upon the Altar before all present to observe these confirms them The Solemnities and Ceremonies used at the Coronation of King Richard the Second may be perused at large in Tho. (r) Hist Aug. fol. 194 195. Juravit coraem Archiepiscopo Proceribus qui ibi aderant quoniam ipsi solum ejus Juramentum audire potuerunt Walsingham and he saith he swore before the Bishops and Nobles there present for they only could hear his Oath that he would permit the Church to enjoy its Liberties and would honour it and its Ministers that he would hold right Faith and would forbid Rapines and all Iniquities in all their Degrees 2ly That he would make to be kept every where the good Laws of the Land and especially the Laws of St. Edward King and Confessor who was buried in that Church and would make all evil Laws to be abrogated 3ly That he would not be an accepter of Persons but would make right Judgment betwixt man and man that especially he (s) Praecipue misericordiam observaret sicut sibi suam indulgeat misericordiam clemens misericors Deus would observe Mercy as the Clement and Merciful God might grant Mercy to him Having thus given an account of these Coronation Oaths I come to the Objections First They (t) Prynne's Treachery and Disloyalty Answer to the Objections about the Words Quas vulgus elegerit say that the word Vulgus doth signifie the two Houses and the word elegerit is to be taken in the Future Tense so that the King is obliged to consent to such Laws as the two Houses especially the Commons do chuse It is a wonder to me how men that pretended to any reading or learning in Antiquities or in the Constitution of the Government could defend their Cause with such pitiful Reasonings especially against King Charles the First who neither had taken such an Oath nor many of his Predecessors before him The Latin Translation of two French words gave all the occasion of dispute for that which is called Communate is rendered Plebs and Vulgus and aura eslu is translated elegerit whereas were it to have been understood in the Future Tense it should have been eslira and agreeable to that in all the Authentick Records of the Exchequer the word elegerit is Englished in the Preterperfect Tense Thus much may suffice as to the word elegerit Dr. Brady's Glossary will satisfie the Curious about the import of the word it self Concerning the word Vulgus one solid (u) Freeholders Grand Inquest b. 46. What meant by Vulgus according to the Opinion of some Author saith That we may be confident that neither the Bishops Privy Council Parliament or any other whosoever they were that framed or penned this Oath ever intended in this word the Commons in Parliament much less the Lords they would never so much disparage the Members of Parliament as to disgrace them with a Title both base and false It had been enough if not too much to have called them Populus the People but Vulgus the Vulgar the rude multitude which hath the Epithete of ignobile vulgus is a word as dishonourable to the Composers of the Oath to give or for the King to use as for the Members of the Parliament to receive therefore he judgeth that by Vulgus must be meant the Common People not the Lords and Commons But then saith the same Author the doubt will be what the Common People or Vulgus out of Parliament have to do to chuse Laws In answer to which the preceding word is to be considered Consuetudines quas Vulgus elegerit the Customs which the Common People have chosen If we observe the nature of Custom Customs chosen by the Vulgar or Common People it is the Vulgus or Common People only who chuse Customs Common usage time out of mind creates a Custom and the commoner the usage is the stronger and the better is the Custom No where can so common an usage be found as among the Vulgar who are still the far greatest part of every multitude If a Custom be common through the whole Kingdom with us it is all one with the Common Law of England which is often called Common Custom so that to protect the Customs which the Vulgar chuse is to swear to protect the Common Laws of England Agreeable to this is what the learned Dr. Brady (w) Glossary p. 36. notes That upon the whole it signifies no more than that the Community had chosen that is owned submitted to and desired still to use their Old Customs which by use time out of mind they had enjoyed for the better management of Affairs and Conveniency betwixt Man and Man all the Nation over or in any particular County Hundred Town City or Burrough such long practices being the foundation of all Customs but these are to be just which intrench not upon the Government or Laws and by permission and sufferance only become Laws But the same (x) Id. p. 35. Author judiciously affirms That the Community here intended was the Community of the Bishops What meant by the Community Abbats Priors
the Justices in Queen Elizabeth's time the Chancellor tells them that the Queen had levied Forces and Reason willeth and the obedience of good Subjects requireth that all things that the Prince commandeth for defence of the State should by the Subjects diligently and obediently be performed for dutys sake either not examining the cause or presuming the best cause but at that time she was pleased to signifie the cause of her doings As to the King of England's making War and Peace abroad it hath always been owned as the King 's sole Prerogative and when some Parliaments have addressed to our Kings to make War or Peace contrary to what the Soveraign judged convenient they have been advertised of their Duties yet when War is to be made in remote Countries which cannot be performed without great Expence much time and the exhausting of the Kingdoms Forces That the People may more chearfully serve their Prince and Country and that the Exchequer may not be too much diminished whereby the usual Charges of the Government may not be substracted Kings have upon good Reason proposed the Matter to their Parliaments whereby necessary Aids might be sufficiently supplied The Laws now in force concerning the Militia are That the (k) 13 Car. 2. c. 6. 14 Car. 2. c. 3. King hath the Prerogative alone to dispose of the Militia of the Nation to make War and Peace Leagues and Truces to grant Safe-Conduct without the Parliament and he may issue out Commissions of Lieutenancy impowering them to form into Regiments to lead them and employ them as well within their own as other Countries as the King shall direct to suppress Insurrections Rebellions and Invasions He hath the Command of all the Forts and places of Strength and alone to have the keeping and Command of the Magazins of Arms he alone to give Letters of Mark and Reprizal in times of War to give Safe-Conduct for Merchants to make a stop of Trades as he sees cause In the time of danger and for defence of the (l) Coke 7. 25. Realm may command all his Subjects to Arm and they are to assist him and for this the Commission of Array may be made use of and all the Courts of Officers of War in a time of War are his Prerogative and the Subjects are to serve the King within the Kingdom against Rebels and Traytors (m) Jenkins Cent. 6. Case 14.26.89 without Pay or Wages and this as it seems in any part of the Nation especially if the King go himself The Subject except in an extraordinary (n) Coke 7.8 Case is not to be forced out of the Realm unless it be to go with the Kings Person nor in any case unless upon the sudden Invasion or Assault of an Enemy to serve the King without wages and the King in time of War may take any mans (o) I e. 3. Stat. 1. 2 Eliz. c. 2. House to build a Fort or make a Bulwark upon any mans Land But the King may not rate the Nation to pay any money towards any War of his It is true in time of Peace the King cannot quarter his Military Forces without the consent of the respective Subjects nor raise money without Act of Parliament for the maintenance of any Army so that the Subject while they keep dutiful are in no danger of oppression by such a Power yet without a competent Standing Force and Guard Some Standing Forces necessary at the Kings absolute pleasure what Livy saith of the Senate (p) Timor inde Patres incessit ac si dimissus exercitus foret rursus câ—tus occultaeque conjurationes fierent Lib. 6. The Long Parliaments Claim of the Militia would be most true of all Soveraigns That if the Forces were dismissed unlawful Assemblies and covert Conspiracies would be again set on foot The longest lived mischievous Parliament that any English History can record knowing that they could not effect their designs of weakning the King without the Power of the Militia though they had a numerous Party prepared to espouse their Interest and as ready for Rebellion as they could desire yet that they might have some colour for justifying their proceedings pretended necessity of putting the Kingdom into a posture of defence against foreign Invasions which by subtile Plots they possessed the people they had Intelligence of and for fear of any violence to be offered to themselves or that the King seduced by evil Counsellors should set up Arbitrary Power so having obtained that Fatal Act of not being to be dissolved without their own consent issued out their Commissions for Levying Trayning and Exercising Forces in all Counties where they had power by no Law or colour of Law but that of pretended imminent danger wherein the King refused to grant Commissions to such as they could confide in for their aforesaid purposes All which was but colour and shew to wrest the Power out of the Kings hands To obviate such like mischievous practices for the future upon his Majestys happy Restauration it was enacted and declared The Claims of any Right of the Two Houses to the Militia totally vacated That the sole supreme Government Command and disposition of the Militia and all Forces by Sea and Land and of all places of strength c. is and by the Law of England ever was the undoubted right of his Majesty and his Royal Predecessors Kings and Queens of England and that both or either of the Houses of Parliament cannot nor ought to pretend to the same nor can or lawfully may raise or levy War offensive or defensive against his Majesty his Heirs and lawful Successors So that now that great Controversy which wasso violently disputed to the loss of so much English Blood and Treasure is I hope eternally determined never again to be revived without an horrid prosperous Rebellion and this Prerogative of the Crown being thus guarded by Law will never more be attacked while the Royal line continues which is to be hoped and wished will without interruption be prolonged while the British Soil exists CHAP. XXXVI Concerning raising of Money upon the Subject and the obligation of Subjects to supply the Soveraign AS to the raising of Money for the support of Government I have discoursed something in the Title of Property and shall here only treat of the necessity in all Government That the Soveraign be plentifully supplyed with a Revenue suitable to the charge Although Darius the Persian be reckoned by Herodotus one of the first that exacted Tribute The necessity of Tributes and Aids yet it cannot be conceived but that ever since there was a Prince who commanded large Countrys and had potent Neighbours Tribute Aid and such like provision was exacted of the people for the defraying the necessary charges of it So Tacitus (a) Nec enim quies gentium sine armis nec arma sine stipendiis nec stipendia sine tributis 4. Hist tells us That we may be
Act for that purpose yet that prevented not the Inundation of blood and we found those men that moved Heaven and Earth with their clamours against the King as governing arbitrarily when they got the Power made it their dayly practice to lay what unprecedented illegal Taxes they pleased on their fellow Subjects to the value as some compute of Forty Eight Millions Therefore all Judicious persons lovers of their King The Advantages to Prince and People when the Crown is liberally provided for Country and Posterity finding the sad effects those disputes brought to the Blessed King and the whole Kingdom will think it a necessary prudence in a Prince to have always such a provision of Money ready as will enable him in all difficulties that may occur in the Administration of the Government without being obliged to part with any of his Royal Prerogatives when any discontented or designing Factious Members shall be able to take advantage of his Wants whereby to drive their barter with the Crown for thereby he shall defeat their ends On the other side it will be the most prudent and dutiful course both for their own security and the Princes honour for Parliaments upon all just and honourable Wars or occasions of assisting Allies preparing Fleets in readiness upon necessary defence to assist the Prince liberally and repay out of the Publick what for publick Service he hath expended out of his own Revenue rather than he should be in disesteem with his Neighbours and Allies whereby the honour of the Prince and consequently of his Subjects should be Eclipsed or he be necessitated to take any unusual course for raising Money or be compelled to make any inglorious Peace for we can never forget how the want of supplies to King Charles the First brought not only Ship-money and Knight-hoodmony Monopolies and the long disuse of Parliaments but at last that most calamitous War upon the whole Nation We cannot forget how zealous an House of Commons was of late to prevent any Arbitrariness as it was insinuated Decemb. 17.1680 The Care of some Parliaments to keep the King poor in the late King so that they voted a Bill to be brought in against illegal Exaction of Money upon the People under the Penalty of Treason not foreseeing that the Charters of the City of London and many other Corporations were forfeitable upon that account which if it had been made Treason the King had got a good Revenue against the intentions of those who in all appearance voted for a contrary end which further appeared in their Vote Jan. the 7th following (h) Address part 3. That whosoever should lend or cause to be lent by way of advance any Money upon the branches of the Kings Revenue arising by Customs Excise or Hearth-money the three principal branches should be judged to hinder the sitting of Parliament and be responsible for the same in Parliament So that they would give nothing themselves but as much as in them lay terrified others from lending or advancing any Money to him which was not according to their Writ to advise but by duress and force to compel the King to submit to their Judgments and instead of giving him Assistance to support his Allies and enable him to preserve Tangier they tended to the disenabling him from contributing to either by his own Revenue and Credit not only exposing him to the dangers that might happen either at home or abroad but endeavouring to deprive him of the Possibility of supporting the Government it self and reduce him to a more helpless Condition than the meanest of his Subjects as the King sadly and justly complained and in that Vote the Subjects Liberty and Property was invaded in that he could not dispose of his Money to his own Profit and the Benefit of the Government if either Insurrection or Rebellion happened in the interval of Parliament or a foreign Force on a sudden should attacque us yet these Gentlemen would be counted Loyal and Dutiful Subjects It is not to be denyed but that if a Prince's standing Revenue were so great that by it he might not only support the ordinary expences of the Government but lay by a summ sufficient to defray all extraordinary incident Charges either occasioned by intestine Rebellions or foreign Invasions that a King should not have occasion to have so often recourse to Parliaments for Aids Yet when we confider that there would be many other occasions of frequent convening that great Council for making wholesom Laws which is one great Portion of their Business and that the Subjects never can be happy under a poor Prince who thereby should be brought into contempt and how much greater mischiefs accrue to the Subjects by rendring their Prince impotent and unable to preserve them from factious disturbers of their Peace and Repose and the preserving their Properties as well as the defending them from the designs of foreign Princes who would injure our Merchants lock us in our Island and force us to sell our own native Commodities and receive theirs at what Rates they pleased if our Soveraign were not able to keep a sufficient Fleet and infinite other Mischiefs which would accompany a starved Exchequer we should too late find that the Expence of many Millions would not again restore us to that condition of Prosperity and Renown that one timely bestowed on our Prince would preserve us in It is much less Charge to keep in good Repair a well-built Fort Castle or Man of War than to build a new one especially if upon the demolishing of the old we were to fight for the Ground and Materials whereupon and wherewith we should build the new It is a singular Security to the English Subject that no Money can be levied upon him but by Act of Parliament to which in his Representatives he gives his Consent and the House of Commons is generally careful that they understand a great necessity ere they pass any Money-bill yet we have known in our Age some that have stood upon such terms with their Sovereign that either he hath chosen rather to want Supplies than have them upon such hard Terms or their Principals have suffered a thousand times more by such denials than they had done if they had been granted So was Constantinople lost to the Turks for want of furnishing the Emperor with the hundredth part of that which the victorious Enemy plundered the Citizens of and so the Count Palatine elected King of Bohemia lost that Kingdom and all his Hereditary Seigniories by unfurnishing his Soldiers with present Pay when he had it by him And how many suffer by the want of a liberal and proportionable Supply to pay off the Debts of the Exchequer is too sadly felt by many and if the Parliament of 1639. had furnished King Charles the First with twelve Subsidies as it appears by the sequel the Expence of four times as many Millions besides the infinite quantity of Christian Blood shed in the
this Freedom and Privilege The second is Sir Tho. Smith saith The Speaker used to add a Promise in the Commons Names That they shall not abuse these Privileges but have such regard as most faithful true and loving Subjects ought to have to their Prince Commonwealth p. 41. That if he shall commit any Error in any thing he shall deliver in the name of the Commons no fault may be imputed to the Commons and that he may resort again to them for Declaration of his good Intent and that his Error may be pardoned The third is That as often as necessity for his Majesties Service and the good of the Common-wealth shall require he may by direction of the House of Commons have access to His Majesty SECT 8. Of Priviledges of the House of Commons concerning Liberty of Speech HAving thus brought this Honourable Assembly together and their Speaker placed in his Chair I shall touch something of their Privileges which since the days of Sir Edward Coke and much by his Influence have been enlarged beyond what was used in antient times I shall begin with that of Freedom of Speech in their Debates It cannot be conceived in so great a Body as the House of Commons Why Liberty of Speech necessary to be allowed that what is proposed by one and seconded by others shall not admit of Debate Though all may aim at the same end the good of the King and People yet they may differ in the ways and methods of attaining it and whoever would straighten a crooked Rod must bend it as far on the contrary side I doubt not but the nemine contradicente was put into the Printed Votes when Mr. Williams had the Chair rather ad faciendum populum than that there was such an Harmonious Concurrence as then was blazed abroad Anno 4 (u) Stat. 4 H. 8. c. 8. Strowde's Case H. 8. An Act was made concerning Richard Strowde Esquire which declareth that all Suits Accusements Condemnations c. to be put or had upon any Member of that or succeeding Parliaments for any Bill speaking reasoning or declaring of any matter or matters concerning the Parliament to be communed or treated of be utterly void and of none effect This by (w) Lords Journal the Lords 11 Decemb. 1667. was declared a dâ—claratory Law of the antient and necessary Rights and Priviledges of Parliament and so the Judgment against Denzil late Lord Hollis was nulled and against others in King Charles the First 's time Yet it is manifest that Queen Elizabeth in two Cases shewed how far even motions in Parliament contrary to her Laws Prerogative and Pleasure expressed were to be treated The (x) Prynne's Plea for the Lords Sir Sym. D' Ewe's Journâ—l How Queen Elizabeth curbed and punished those that made Motions in the House contrary to her Prohibitions in Mr. Paul and Mr. Pet. Wentworth's Case first was a motion by Mr. Paul Wentworth 23 Eliz. for a publick set Fast and for a Preaching every Morning at Seven of the Clock before the House sate and the Preachers to be appointed by the Privy-Council that were of the House but the Queen sent them a Message by the Vice-Chamberlain that she had in great admiration the rashness of the House in committing such an apparent contempt of her express Command and to put in Execution such an Innovation without her Privity and Pleasure first known so that by Mr. Vice-Chamberlain they sent their Submission to her Anno 35 Eliz. Mr. Peter Wentworth and Sir Henry Bromley delivered a Petition to the Lord-Keeper desiring the Lords of the upper House to be suppliants with them of the lower House to her Majesty for entailing the Succession of the Crown whereof a Bill was ready drawn by them The Queen was highly displeased as being against her express Order and charged the Lords of her Council to call the parties before them and Mr. Wentworth was by them committed to the Tower and others with Sir Hen. Bromley to the Fleet the Parliament then sitting and when Mr. Wroth moved That the House might be humble Suitors to the Queen for their Liberty it was answered by the Privy Counsellors in the House that the causes of Commitment were best known to her self and the House must not call the Queen to account for what she doth of her Royal Authority for her Majesty liked no such Questions neither did it become the House to search into those matters So Mr. In Mr. Morrice's Case Morrice Atturney of the Court of Wards was taken out of the House Feb. 28. and committed to Prison for delivering in a Bill against the abuses of the Bishops the Queen sending for Sir Edward Coke then Speaker and charging him upon his Allegeance if any such Bill were exhibited not to read it At another time long before this she told the Speaker and the body of the House of Commons moving her to Marriage That if it had been with limitation of place or person she must needs have misliked it and thought it a great presumption in those to take it upon them to bind and limit whose duty it was to Obey King Charles the First was very infortunate to have so many Firebrands in some if not all of his Parliaments Liberty of Speech in King Charles the First 's time abused which if the rest of the Houses had been pleased to have extinguished by timely and nipping reprehensions we had never seen the Government of Church and State so reduced into Ashes that there was nothing remained of the beautiful Pile In some of his Speeches he calls those evil Members Vipers but it was his misfortune to anger and exasperate them rather than suppress them so that at last they stung him to Death It is a very ill condition when a Prince hath such Wolves by the Ears that he is in danger whether he hold them or let them go The Attacque upon the five Members and letting fall the pursuit was one of the false thrusts that left him unguarded In the Close of one of the Parliaments of Queen Elizabeth the (y) MS. Speeches 13 Eliz. 1571. Queen Elizabeth's Reprehension of some Members for moving things she had forbid Chancellor tells them There be certain of the House of Commons though not many who have shewed themselves Audacious Arrogant and Presumptuous calling her Majesties Grants and Prerogatives into question contrary to the express admonition given in her Majesties name in the beginning of the Parliament which it might very well have become them to have regard to but her Majesty saith That seeing they thus willfully forget themselves they are otherwise to be remembred Indeed there seems good reason that such who make advantage of their being Members of Parliament to sow their Seditious Discourses and under the Protection of being Members take the boldness to calumniate the Government and raise Jealousies betwixt the King and his People to alienate their Affections and Allegeance from him after the
allow no alteration but in that of Dudley Which makes some observe Lawyer out-lawed p. 12. That if the House of Commons had then known they had any Power to mend the said Returns or punish the Offenders or Sir Edward Coke had known it had been Law he had never been sent on that Message So that what Authority the House hath it hath accrued since SECT 11. Concerning the House of Commons Censuring Imprisoning and Expelling their own Members AS to the Commons Imprisoning and Punishing their own Members The Reasons for this Privilege for words by them spoken or Misdemeanors committed in the House there may be some reason for it First Stat. 4. H. 8. c. 8. Coke 4. Instit p. 25. 31 H. 6. c. 26 27. because by Law they are not Punishable elsewhere for any rash indeliberate and inordinate Speeches in Parliament which do not amount to Treason Felony or Breach of the Peace which it is supposed none in that rightly constituted House will protect though done in the House of Commons begun in 1641. Secondly It is to be supposed that the Members upon their entring into that House unanimously agree for order sake that the lesser number should always submit to the greater So by such Consent and original Compact every single Member submitting himself to the rest he hath no such reason to complain although they had no such Authority for scienti volenti non fit Injuria provided that they exceed not the common Rules of Justice nor the Bounds of Established Laws for then no private Act can bind a Subject though made with his own free Consent as appears in Clark's Case against the Mayor and Burgesses of St. Albans Coke lib. 5. p. 64. The first Precedent I find that any Member of the House of Commons was complained and Petitioned against for Misdemeanors and put to answer before the King and Lords in Parliament Rot. Parl. 16. R. 2. num 6. and there judged and fined was 16 R. 2. the Wednesday after the Parliament began when Sir Philip Courtney Members of the House of Commons punished for Misdemeanour by the King and Lords returned one of the Knights for Devonshire came before the King in full Parliament and said that he understood how certain people had accused and slandered him to the King and Lords therefore prayed to be discharged of the said Imployment until the accusations c. were tryed and because his said Prayer seemed honest to the King and the Lords the King granted him his Request and discharged him in full Parliament Exact Abridgment p. 417. and the Monday following at the Instance and Prayer of the Commons the King granted that he should be restored and remitted to his Place In the Parliament 4 H. 4. the accusations against him being re-inforced the King and Lords adjudged that he should be bound to his good Behaviour and committed to the Tower for his Contempt By which saith Mr. Prynne it appears Plea for the Lords p. 386 387. That only the King and Lords in full Parliament can suspend or discharge any Knights or Commoners sitting in Parliament and have Power of restoring and re-admitting a suspended Member of the Commons House and he answers the Precedents that Sir Edward Coke brings 4 Instit p. 23 and 3 Inst p. 22. Vide pag. 296 297 299 344 371 372 373. and many others which would be tedious here to insert The first Precedent he finds The first Precedent of the House of Commons secluding their Members that the Commons began to seclude one another upon Pretence of undue Elections and Returns was in Queen Elizabeth's time when Thomas Lucy 8 Eliz. was removed out of the House for giving four Pound to the Mayor of Westbury to be chosen a Burgess and the Mayor fined and imprisoned and 23 Eliz. Mr. A. Hâ—ll for publishing the Conferences of the House and writing a Book to the dishonour of the House was committed to the Tower for six Months and fined five hundred Mark and expelled the House and in King Charles the First 's time this Power over their Fellow-Members was greatly improved in which how far Mr. Prynne then concurred I know not but after he was secluded he every where writes with great earnestness against this usage but whether with Judgment Law and Reason I shall leave others to judge only I think fit to insert some of his Invectives against the Proceedings of that unparallell'd house of Commons First he saith There can be no legal Trial or Judgment given in Parliament in Criminal Causes or others Id. p. 309. Mr. Prynne's Reasons against this Usage without Examination of Witnesses upon Oath as in all other Courts of Justice which the House of Commons cannot do Littleton sect 212. Coke ibid. Secondly That it is a Rule both of Law and Justice That no Man can be an Informer Prosecutor and Judge too of the persons prosecuted and informed against the Commons being in the nature of the Grand Inquest Coke 4. Inst p. 24. being summoned from all parts of the Kingdom to present Publick Grievances and Delinquents to the King and Peers for their Redress Plea for the Lords p. 373. Thirdly That all the objected Precedents are of very puny date within time of memory therefore unable to create a Law or Custom of Parliament or any right of sole Judicature in the House of Commons Fourthly Id. p. 387. That all these Precedents were made by the Commons themselves unfit Judges in their own Cases much less over one another being all of equal Authority so that in his opinion they could no more expel or eject any of their Members by their own Authority without the King and Lords concurrent consent See Legal Vindication p. 10. than one Justice of Peace Committeeman or Militia-man can unjustice or remove another since par in parem non habet potestatem neither in Ecclesiastical Civil Id. p. 373. Military or Domestick Affairs Fifthly That they are all against Law because coram non Judice he having throughout the whole Discourse endeavoured to prove That the Commons have no right or power of Judicature much less of sole Judicature in our Parliaments but only the King and Lords Sixthly That these Precedents are but few never judicially argued and rather connived at than approved by the King and Lords taken up with other more publick business therefore passing sub silentio they can make no Law or Right as is resolved in Long 5 E. 4. fol. 110. Cook 's four Rep. fol. 93 94. Slade's Case and six Rep. fol. 75. Drurie's Case Seventhly In the long Parliament of King Charles the First they began to seclude Projectors Exact Collections of Ordinances p. 541. to 558. Monopolists c. though duly elected then suspended and ejected such who were Royalists and adhered to the King then they proceeded to imprison and eject those Members Plea for the Lords p.
the King who by the same Laws hath the Power of putting in execution and suspending the execution of the Laws in many Cases or that Aristocracy or Democracy have any such mixture with the Monarchy as they can impose their Laws upon him For to suppose a mixed Monarchy consisting of Three Estates independent for their Authority upon one another and to have several shares in the Rights of Sovereignty and to say The Government of three Estates is the Government of one Monarch is perfect nonsence for when (q) Besold Synopsis Polit. Doct. l. 1. c. 6. Monarchy Aristocracy and Democracy are melted and allayed together that which resulteth can take its name from none of the simple species or kinds of Government but must have some other Appellation Whoever will consider aright of the concurrence of the two Houses in preparing Bills will find How the two Houses concur in making Laws That though the Houses be as the Causa sine qua non yet the efficient procatarctick Cause and the Authoritative Power in passing these into Laws is the King only and what the two Houses do without his Assent is but as the Counsellor at Law 's framing a Deed and the Clerks Ingrossing the Indenture of Conveyance but till the Seal be set to it and delivery made as the Act and Deed of Donor or Conveyor it is of no force and virtue neither do we call it the Act and Deed of the Counsellor or Clerk but of the Person that seals it Another Objection those Champions for the two Houses made great noise with was (r) King's Supremacy p. 84. Objection That the Mixture is in the Supremacy of Power That the Power where the Legislative is in all Three is in the very Root and Essence of it compounded and mixed of those three so that where this height of Power resideth in a mixed Subject that is in three concurrent Estates the consent and concursus of all being most free and none depending on the Will of the other that Monarchy is in the most proper sence and in the very model of it a mixed Constitution And that such is the State of the Monarchy of England the Objector thinks clear because the House of Peers are an Aristocracy and the Commons a Democracy and this mixture of Interests and Powers being in the very Legislative Power he concludes the mixture is in the Root and Supremacy of Power and not in the exercise alone In answer to which it must be considered Answer That is only in the Exercise of the Power That though the concurrence of both the Estates with the Monarch in the making and promulgation of Laws be such as our Laws describe yet it is no otherwise than in the precedent Chapters by undeniable proofs I have made it out That what participation soever the two Houses have with the King in the Legislature it is only derivative from the Crown by the King's Summons and the restriction of those Summons to do and consent It is known to be the common Assertion of (s) Panorm cap. Gravem de Sent. Excom Canonists (t) Bertol. in Lomnes Populi sect de Justitia Jure q. 2. Civilians and (u) Suarez lib. 1. de Leg. c. 8. n. 9. Schoolmen That the Legislative Power is communicable by the Princes allowance and that such a concurrence as our Kings have allowed is no Argument of Supremacy such a mixture of the three Estates hath been in other Monarchies * Besold de Juribus Magist c. 2. which every where are owned to be absolute in respect of Power For as they are summoned by the Princes single Authority and dissolved at his own pleasure they can claim no sort of Right during their Session further than to consult about and prepare Bills for the Royal Assent Therefore (w) De Imperio Summarum Potestatum circa sacra c. 8. num 11. Grotius saith Istam Legislationem quae aliis quam Summae Potestati competit nihil imminuere de jure Summae Potestatis quod in Scholis dicunt cumulative datum censeri non privative So in our Kingdom every Corporation hath Authority to make Ordinances and Constitutions within their own Liberties for the good Order and Government of the Body and the Inhabitants (x) Coke 5. part tit Cases de By-Laws Ordinances of every Parish to make By-Laws and Ordinances among themselves for their own profit where they have Custom for it and for the Publick Good where they have no Custom Surely this is a sort of Legislative Power yet thereby it cannot be inferred that they have any Co-ordinate Power with the King in the Rights of Soveraignty So that allowing the Power of the two Houses as large as can be proved by the Laws for the stretch that the Parliamentarians would make is by the Tenters they only have set up the whole latitude of the Nomothetical Power is not jointly in the two Houses for none but Strangers to our Laws can deny That the King hath sole Power to dispense with the Statutes and abate their Rigour where a mischief would otherwise insue he alone hath Power by Edicts and Proclamations to order all Affairs for which there is no order taken by certain and perpetual Laws The Legislative Power is either (y) King's Supremacy p. 88. Of Architectonical and Preceptive Power Architectonical or Preceptive The Architectonical is that which layeth Materials of Law and consisteth in two things First in determining what is just convenient or necessary Secondly in declaring and promulgating that to be actually made a Law and Enacted which upon consultation is thought to be just convenient or necessary The first shews no Jurisdiction in the Persons who have it but only an Office and Imployment to deliberate and consult But whoever hath the Second Power hath a Jurisdiction to define Authoritatively what shall be Law and this Preceptive Power is that which makes the Law sacred and inviolable and which giveth it force to oblige the Conscience Now it is evident by undeniable Testimony and Authority that the exercise of the Architectonical Power is only committed to the two Houses who have votum consultivum decisivum but it is derived from the King who hath only the Preceptive Power So that the Writers for the two Houses generally did use a Sophistical way of arguing not discovering what they could not but know the difference betwixt the King's and the two Houses Powers in the making of Laws For subordinate Agents that are but Instruments of another and work by a derived Power when they concur with the Principal and supream Agent have their causality in producing the Effect yet this doth not prove the Authority to be radically in them As in an Estate of Lands saith (z) Idem p. 91. Mr. Sherringham wherein a Man hath a perpetual Right in Fee his Right is distinguished from the King 's Right of whom he holds the King having the demean of the
and after by himself and his mock-Representatives by Councils of State and Safety and such new Names and Powers as our Laws never heard of and all this under pretence that they Acted by the Peoples Authority and suffrage and all the sad Devastations of that Age resulted from the confiding so much in the pretended Representatives of the People Which (a) England's Universal Distraction p. 4. one some Years before the sad Catastrophe plainly foretold tho' like belief was given to him as of old to Cassandra His Words are That the so much exalting the Power of the Representatives was first to destroy the King by the Parliament and next the Parliament and Kingdom by the People Thus ignorant Politicians that build upon such Quick-sands soon live to see their Insanae Structurae ruinously fall about their Ears Thirdly Whereas the Advocates for the Representatives would gladly have possessed the People that they could rely upon none so securely and safely as upon those they had themselves chosen they being less subject to private ends and affections than any particular man such a Body being not likely to counsel or consent to any thing but what is publickly advantageous It is to be considered that it is a false Postulatum Such a Body being but an Aggregate of particulars may have as many private ends as any other number of Subjects it being well known that Communities themselves are subject to dangerous Inclinations from private Incitements and I the Representatives subject to misleading Factions and Ambitions of private Men and by coalition of Parties when they fall into designs they are most dangerous and fatally violent and tho' it may at first View seem to be repugnant that an Universality should have private ends yet seeing it is not the number of Agents but the capacity in which they act and the quality of the Actors and the coherence or incoherence of what they pursue with the publick end and weal which makes the Actions of men public or private It must needs follow That if without Authority or out of the way of Public Ordinances men pursue any thing though the whole Community concur in the pursuit yet it is all of the nature of a private Action and done to a corrupt and private end Because the Author of some Observations upon some of K. Charles the 1st Messages was reputed the great Champion of the two Houses I shall content my self with culling out some of the daringest assertions Why Reason and Law were not hearkned to by the Advocates of the Long Parliament he and some other of their Triarii used and apply such of those Answers and Reasonings as the Learned and Loyal offered then against them though they could not be heard while the Torrent bore all down the stream The hideous noise of Tumults and after of Drums Trumpets Cannons and Fire-Arms hushed and silenced all the still voice of Law and Reason But now it is to be hoped when Mens Eyes are unsealed the Mask and Vizard dropped or pulled off the fatal Consequences of such pernicious Principles throughly manifested and the loud Thunder of the Two Houses Ordinance allayed mens Spirits will be better fitted to hear them refuted Besides what I have endeavoured to answer before concerning the Authority of the Representative which they would make an Assembly in which the People in underived Majesty are by these Proxies convened to affirm an Imaginary Power supposed to be theirs originally and in such a convention to be put in execution I say besides this which in several places I have refuted That filled all their Declarations Messages and Treatises when they were contriving the setting up the Commons House Topmost to prove That they were a Body that was not easily corrupted byassed tempted or prevailed upon to Act any thing but what was the best for the Peoples advantage Therefore I think fit in many particulars to shew how such Bodies may be warped to sinister ends and especially how that House not only deceived but tyrannized over the whole Nation Private (b) Answer to Observer p. 130 131. How Passions Affections Interests and Factions may sway Representatives Quarrels and the memory of former Sufferings may work upon some discontent and envy at other mens preferment may transport others the fear of the lash and desire to secure themselves have forced some to personate a part great Offices and Honours have been a Pearl in some Mens Eyes to hinder their Fight others have been like Organ Pipes to whom the wind of popular Applause hath only given a sound others who have premeditated their Parts before their design was discovered have upon some pretences or other suppose of an unlawful Election being Monopolists Abhorrers or such like got those excluded by Vote whom they conceived to be likely to oppose their designs The bewitching Power of Oratory prevails upon many In others there is a Speechless Humour of following the Drove The Ambition and Covetousness of Representatives Can we not easily conceive several of this Body may be ambitious which would prompt them to alter the old way of bestowing Offices and collating of Honours so by disservice as well as service in Parliaments some Men have obtained Honours Offices and Estates finding it a good way to get preferment by putting the King upon necessity of granting Good Woodmen say That some have used Deer-stealing as an Introduction to a Keepers place So we have seen a Non-conformist's mouth stopped I might instance in other Professions with a good Benefice whereas before he was satisfied he could gape as wide as his Neighbours Others by more only ways slip into Preferment for Covetousness and Ambition will sail with any Wind. The Covetousness of the Members of the long Parliament by woful experience was found insatiable witness their Voting for one anothers Offices Governments satisfaction for their losses out of Delinquents Estates sharing the Kings Lands and Revenue the Bishops Deans and Chapters Lands and the Estates of the Royal Party hence together with the itch of Arbitrary rule they drew the determination of Causes out of the ordinary Courts of Justice before their Houses and Committees of them and in every County had their Sub-committees to Tyrannize over the People and fleece them Their cruelty appeared in their erecting High Courts of Justice Major Generals and other Arbitrary Courts The Cruelty of the Long Parliament where many a Loyal and brave man for serving his King against such Rebels either lost his Life or his Liberty and Estate and when they were the gentlest yet they could show hatred enough by Imprisoning upon I know not what suspicion and at leasure prosecuting such as they had a pique against The partiality of Members in such Conventions are very frequent The Partiality in shielding their friends from being questioned though their Corruptions were notorious to all the World So in the fatal Parliament of 1641. A Monopolist if a Loyal man was sure to be
expelled the House but if a favourer of the Cause he was never recriminated with that or any other by-past or present ill disposition In such Assemblies there often happen one sort of People who are always representing grievances complaining of Male-administration troubling the Church and State shaking up the Lees and Dregs in the richest Vessel of Wine these have learned to catch Eels Tacitus notes the corruptions of the Roman Senate The Corruptness of the Roman Senate which necessitated the change of that State into a Monarchy under Augustus fully significantly and concisely after his manner Suspecto Senatus Populique imperio ob certamen Potentium avaritiam Magistratuum invalido legum auxilio qua vi ambitu postremo pecuniaturbabantur The Provinces observing in this Supremacy of the Senate and People the contests of the most Powerful the Covetousness of the Magistrates the feeble help the Laws afforded by the Arbitrariness of the Senate we may presume by what force and moyen and lastly how all things were distracted by Bribery they were the more easily induced to admit of one Soveraign These particulars were most obvious in the fatal House of Commons Besides these things I have hinted at Of cunning and designing Men. in such a body as we are speaking of where there cannot want men designing some dangerous Revolutions for the establishing their own greatness though some few wise men may be apprehensive of their designs yet we know maxima est pars artis celare artem Such contrivers will be sure by all imaginable Arts to conceal their intentions and obtain an Ascendent over the Judgment of the gross Body who either are not so quick-sighted or aiming at no such things themselves judge others candor by their own and so by their helps the designers may carry the Vote against even such as penetrate further into the aims of the Contrivers than the Majority do so that those that have good ends may be hood winked by others whose ends are worse Fallit enim vitium specie virturis umbra and private ends will steal upon well affected for all grand Conspiracies are veiled under the Mask of Reformation of removing Grievances and evil Counsellors Gallant and vertuous actions do not more often ingratiate men with such a mixed body than a rolling Tongue a precipitate Head vain-glorious profusion oyly insinuations feigned devotions sufferings though deserved from Superiours and above all opposition to the present State So the memorable long Parliament of 1641. by the specious pretences of redressing Grievances The specious Pretences of the Long Parliament taking care of the Public and particularly of the Liberty of the Subject and their Privileges together with vehement Expressions of their Resolutions of Establishing the Kings Throne upon more firm foundations of the peoples Hearts and Affections by insensible Screws wound themselves into the credit of Patriots and being thereby able to carry a numerous party with them in all their Votes by little and little made such encroachments upon the Soveraignty that having undermined it past support they took the advantage of its fall and ruine out of the same specious pretence that the Commonwealth might suffer no detriment to propose their long designed Model of Government not as by them forethought on but as a necessary expedient to accomplish the end as they pretended they had all this while been aiming at viz. the Peoples prosperity which 〈◊〉 they endeavoured to make the World believe they were most Zealous for when God knows the upshot of all was the total dissolution of the best constituted Government and the Establishing themselves a fattened Commonwealth out of the rich spoils of Monarchy Yet these very men were they who some years before possessed as many as they could delude with an opinion Their Hypocritical Promises that none knew better nor affected more the sweetness of so well ballanced a Monarchy than they and that the Kings just Authority was Sacred to them that they would make him more rich and glorious than any of his Predecessors The Observer told the World That it had been often in the Power of former Parliaments to load the Government with greater Fetters and Clogs but they would not and that change of Government could not be in their desires because the advantage of the Lords and Commons in the State was so great that no change of Government could better them except each one could obtain an hereditary Crown But these were but vain flourishes and empty aiery offers success altered their Principles and they were ill troubled to find out excuses and evasions after the Murther of the Blessed King and change of Government for these their so hypocritical Declarations From all which I shall only desire that Posterity may be cautious how they credit the truth of those who in such Conventions are the most active for any Innovation if they see that they zealousliest pretend some greater happiness to the People by lessening the Authority of the Crown It is reported of Frederick the Emperour (c) Aeneas Sylvius de diaetis Fred. Imp. that in the Speech to the Senators he desired them before they entred into the House of their Assembly they would leave two things behind them and then they would give right Judgment and being asked what those were he told them Simulatio dissimulatio Counterfeiting and Dissembling Another of their Arguments How many Counsellors may mislead for the preference of the Houses Counsel before all other Councils was that many Eyes of so many choice Gentlemen from all parts see more than fewer which Sophism easily midwived in the conclusion that then the two Houses judgment of Affairs was to be preferred before the King and his Privy Councils and the Commons before the Peers and by a parity of Reason though they desired not it should be urged so far home that the body of the People was to be preferred before the Commons House which might be urged upon as common a Proverb That By-standers see more than Gamesters But who are so blind as those that will not see Those very Seers if they would have made use of their Eyes to have perused the Histories of former Ages on what specious pretensions Rebellions had begun and how the Laws had settled the Government in an unparallel'd security of the Peoples Rights as well as the Prerogative of the Crown or by serious consideration foreseen the certain and inevitable miseries that would follow the weakning of the Crown and the necessitating the King for his defence to take up Arms these quick-sighted Commoners might have prevented all those Calamities that ensued The Elected like the Electors Whoever considers how easie it is to possess a People with prejudices against the Government of which elsewhere I must enlarge will soon find that it is no difficult matter to have such Elections of Members as were like to be of the same perswasion with the Electors So that
and his People as they loved to phrase it they answer by their Prolocutor that those who contract to their own ruin or esteem such Contracts before their own preservation are felonious to themselves and rebellious to Nature Inferring from thence That if the legal Constitution of Government The Writers for the Parliament affirm That where the Houses think the Constitution of the Government is not agreeable to the Liberty of the People they may alter it be not agreeable to the Liberties the House conceives needful for them they are obliged to contend to alter them which is no more nor less than if a Criminal being condemned to be hanged should be guilty of another Felony and Treason against Nature to yield to the Sentence but that he ought in his own defence to kill as many as he could that he might thereby save his life by escape Thus I hope I have made apparent the falshood of the Positions ranged in defence of that dismal Parliament How the Long Parliament voted all the Power into their own Hands who made use of them as Platforms upon which to plant the Artillery of their Acts and Ordinances For under the pretext of their obligation to preserve the Kingdom they voted to put it in a posture of defence and they voted from the King his Navies Officers Privy Counsellors and Revenues pretending the Navies were still reserved for the King in better hands than he would put them and for the other they would furnish him with better principled Ministers Whereas by the same Precedent the Subjects were bound to give up their Estates to their ordering as often as they pretended they could dispose of them more wisely For they might alledge the State which they reputed themselves had an interest paramount in them in case of publick extremity so that as they pretended the Head without the Body was the State before so now it was fit the Body should be without the Head whereas the Law hath provided against either exorbitances and if there was necessity we must fall into one we ought in reason to chuse the former because being better acquainted with that we could better digest it and it would be less burthensom to our Estates to satisfie one than five hundred nay ten thousand as it appeared when the greedy Commonwealths men with their Committees Armies c. was that flat Vermine in the Bowels which how true soever it is of the lumbricus latus was certainly true of this Monster That it was every where Head and Mouth It is to be well weighed When Parliaments beneficial when not that as Parliaments are in the highest degree beneficial when they keep within the bounds of duty and sobriety so when they will have their Ordinances to have the force of Laws and not govern themselves by known Laws they are the cause of many Distempers in a Kingdom and the Subjects condition is most unhappy in the Multitude of Physicians for extraordinary Remedies such as they always pretend to use are saith Sir Henry Wotton like hot Waters which may help at a pang but being too often used spoil the Stomach A Compleat Parliament is that (f) Answer to Observ p. 150. Panchreston or Soveraign Salve for all Sores but some would make the name of Parliament a Medusa's Head to transform reasonable men into Stones and subordinate Monarchy to the two Houses who must be denied nothing but with their good will would claim for them a paramount interest with the Soveraign whom they would advance only to the height and mighty Dignity of a Doge of Venice or a Roman Consul whilest they must be the Tribunes of the People their Supervisors So that we cannot be content to gather the blessed fruits right constituted Parliaments would afford us but we must rend away the top Branch yea stub up the Tree that we may scramble for the Fruit. Tacitus (g) 10 Annal. gives a Caution how a Prince may support his Authority that he do not vim Principatus resolvere cuncta ad Senatum revocando Kings not to grant away their Prerogatives at the Importunity of Parliaments It is fit a Prince should have the Glory of performing those things himself which are his Prerogatives and not to refer such things to Conventions of Parliament which properly belong not to their Cognizance Since therefore by the condescensions of our Wise and Gracious Princes there are several things in England the King cannot by Law do alone it is a most requisite Wisdom in Princes that as they observe the Laws in securing the Peoples Liberties and Privileges so by no Arbitrary Assumption of either or both Houses to let their Prerogatives be invaded for those are now no more than are rationally and politically necessary for orderly and established Government The Encroachments of the never to be forgotten long Parliament several of which I have in this and the foregoing Chapter hinted may be sufficient documents to Princes not to yield such a body too much Power for if the ballance once decline a little weight will sink it Therefore though Princes are not to enlarge their Prerogatives nova siti ad alia aliaque properare yet they ought to preserve those that remain For any Raveling once yielded will make the Royal Cittadel defenceless Testudo ubi collecta est in suum tegmen tuta est ad omnes ictus ubi exerit partes aliquas quodcunque nudavit obnoxium infirmum est The Tortoise as long as it keeps within its shell and coverture is safe but if it unbare any part it is obnoxious to danger Above all things a Prince should he careful never to part with the Prerogative of Summoning and Dissolving Parliaments For we cannot forget that the Houses of 1641. not content with a Bill for Triennial Parliaments got an Act for perpetuating themselves and that would not satisfie but they prepared a Bill for the certainty of future Parliaments whether the King had occasion for them or not so that if the King omitted the sending out of Writs and Summons the Chancellor might and for failure the Sheriff and I know not what inferiour Officers of which the Blessed King complains I cannot dismiss this Subject without taking notice of the Fundamental cause of Factious Members of Parliament The fundamental Cause of Factious Members in Parliament In England there is no such powerful Engine to make Faction and Sedition formidable and dangerous to Government as when the Majority of the Freeholders are wrought upon by the Arts I have in some measure hinted before and shall more largely in the Chapter of Faction to chuse Members of the House of Commons of their own Temper for such a Number being imbodied in that House give and receive mutual strength from one another For when such are met they do not take care to unite the minds of the Subjects to their Prince or one to another or imploy their time upon the great concerns of
should be forwardest to supply the necessities of the Crown to shew all Loyal Dutifulness to their Sovereign whereby a most dangerous Rebellion in both Kingdoms was the easilier crushed and which endears them to the King that there can be no danger but whatever good and wholsome Laws they shall propose for the general good of the Kingdom will find a chearful allowance by him How happy had our Forefathers been if King Charles the First had met with such considerate Parliaments who by a seasonable supply and compliance might have had without that vast effusion of Blood and Treasure all their Grievances redressed and the flourishing State of the Kingdom preserved and the Memories of a great many Noblemen and Gentlemen had been transmitted without stain to their remote Nephews But to draw towards a Conclusion of this Discourse Some not willing to hear of the Miscarriages of Parliaments think this Discourse needless Some that may not be willing to hear of the Miscarriages of some Parliaments wherein probably they were concerned may say what need is there now to bring again upon the Stage the rigorous Proceedings of the two Houses of Parliament or more properly of the leading and designing Men in the House of Commons in the Years 1640 and 1680. since we are now happily past these Rocks Quicksands and treacherous Shores All the World indeed must acknowledg we have a Royal wise Pilot Because we have a most wise King and good Parliament who knows full well to steer the Soveraignty of the Commonweal He hath weathered out high going Seas so that neither their over-whelming liquid Mountains nor the terrible Shot from the floating Castles have daunted him magnanimity unparallel'd Courage and an Experience beyond most Crowned Heads have raised him great Trophies of his Victorious toils He is served with sage Councils both private and National So that all must confess we have less cause to fear any more dangers of Hurricanes and Shipwracks But though we now enjoy Halcyon days Yet we are not secure but that in after-Ages evil Members of Parliament may be under a Sovereign enriched with Royal abilities to the heighth of our Wishes though he is blessed with a Parliament as Loyal as can be desired betwixt whom there is no other Strife but who shall out-pass the other in mutual Obligations Yet are we secure that no ill Exhalations may be gathered in after-Ages Can we expect always temperate Weather pleasing Sunshine and fruitful Showres No in small revolutions of Years we find Epidemical Diseases return excesses of Drought Rains or Frosts are often marked in our Annals even after promising Configurations of the Coelestial Bodies I write not an Almanack for a Year The Design of the Author in writing against the Exorbitances of some or Pamphlet for a time my Design is not Infandum renovare Dolorem out of any Pique but as much as in me lies to show from the by-past Irregularities and Exorbitances of some Men how Loyal good and Just Men may measure things by the Golden Standard of the Laws how mischievous Practices and Principles may be obviated how every one may see what the upshot of rebellious Principles will be how to detect and how to avoid the same kind of Rocks and Sands in after-Ages I know some Persons recovered from a valitudinary Condition Some love not to hear of their Distempers love not to hear of the Torments they have undergone nor of the Extravagances of their delirous State Yet this should not hinder but the Healthful and those that would avoid the Calenture should patiently endure to hear a Description of the Causes and Symptoms In this Discourse I have only culled out such Particulars The Author's Apology for himself as I find Judicious Authors have insisted upon against the unprecedented Proceedings of some late Houses of Commons which I think all Loyal Persons disapprove and I believe a great many as well as my self have heard many of the then sitting Members dislike when things were carried with an impetuous Torrent that it was more dangerous to speak against their proceedings or question the unlimited Power assumed by that House than it was to speak Seditious I had almost said Treasonable Words against the King Therefore I hope none of this present Honourable House of Commons who have so signalized their Loyalty in the last Session will take offence at what from such judicious Persons as I have met with I have delivered the Sentiments of My intention is no ways to lessen the Rights or necessary Privileges of that venerable Assembly which never can be unbeneficial to the King or People but when Discontent Faction and Sedition hath too spreadingly infected the Electors The continuance of that worst of Parliaments of 1641. What evil Principles taught during the Long Parliament in their disloyal Practices so long by the overgrowing of the Tares which were only suffered to thrive occasioned so much corrupt seed to be sown as in twenty years there was no wholesom grain left We saw too late how by some evil Seedsmen a fertile but dangerous Crop was shooting up apace It is not a little Labour nor small diligence will howe and weed out the Briars Thistles and destructive Shrubs and poysonous Weeds that shoot their spreading Roots so far But I hope the great Wisdom of this Loyal Parliament will find out ways and methods to prevent the danger of their thriving in a Soil worthy of better Plants than any will be set by Republican Hands CHAP. XXX Of the Kings most Honourable Privy-Council I Find by several Authors Four kinds of the King's Councils The First that there are reckoned Four Councils of the King First The Magnum Concilium consisting of the Prelates and Nobles in Parliament of which Bracton (a) Lib. 1. c. 2. may be consulted and what I have writ in the Chapter of Parliaments Secondly A Convention of the Peers of the Realm The Second Lords of Parliament yet not meeting as a Parliament which appears manifestly in the Record 25 Aug. 5 H. 7. upon an exchange made of some Lands betwixt the King and the Earl of Northumberland the King promiseth to deliver the Earl Lands to the value c. by (b) Per advice assent du Estates de son Realm de son Parliament parensi que Parliament soit devant le Feast de St. Lucy ou autrement per advice de son Grand Council autres Estates de son Realm que le Roy serra assemblez devant le dit Feast in case que le Parliament ne soit Coke 1. Instit lib. 2. c. 10. sect 164. the Advice of the Estates of his Realm of his Parliament if the Parliament be convened before the Feast of St. Lucy or otherwise by the Advice of his Great Council and other Estates of his Realm which the King shall Assemble before the said Feast in case the Parliament be not called which well
saith That Enrollments (l) Pur le Enrolments de Pardon de Roy in le Chancery en temps le Roy Alfred of Pardons of the King were in the Chancery in the time of King Alfred Altho' Mauricius Regis Cancellarius by that title subscribes as witness to the Charter of King William the Conquerer to the Abby of Westminster yet none of these prove that such a Court was in those Ages constituted as we now call the Chancery For Sir Henry Spelman (m) Gless p. 107 ◠proves the Chancery was no Court but only the Ship as he calls it of the Kings Writs and Charters in old time now consisting of three Parts sc è Collegio Scribarum Regiorum è Foro Juris communis è Praetorio boni aqui Mr. Lambard (n) Archaion p. 62 63. hath proved that till the Reign of King Edward the First we find nothing of the Chancellors hearing and determining of Civil causes for till then the Justiciarius Angliae had the great Power Sir William Dugdale 's Origines Jurid fol. 36. b. which being then restrained ad placita coram Rege tenenda the King together with the trust and charge of the Great Seals appointed him to represent his own Royal and extraordinary Preheminence of Jurisdiction in Civil Causes and he gives this particular reason for his opinion That Britton a Learned Lawyer in Edward the First 's time writing of all other Courts from the highest Tribunal to a Court Baron maketh no mention of this Chancery Yet towards (o) 28 E. 1. c. 5. the latter end of his Reign we find it enacted The Chancellor and Justices of the King's-Bench to follow the King That the Chancellor and Justices of the Bench should follow the King that is remove with the Kings Court so that he might have at all times near him some Sages of the Law which were able to order all such matters as should come unto the Court at all times when need should require Yet this Act did not give an absolute Power to the Chancellor alone of determining in such Civil Causes as may seem by that Law which was made 20 Ed. 3. (p) Cap. 6. where it appears the Treasurer was joyned with him to hear complaints against Sheriffs Escheators c. something like this about Purveyors and Escheators that they might not oppress was enacted (q) Cap. 3. 36 Ed. 3. Nevertheless Mr. Lambard observes When Causes in Equity determined in Chancery that it doth not appear in the Reports of the Common Law that there is any frequent mention of Causes usually drawn before the Chancellor for help in Equity till from the time of King Henry the fourth nor are there found any Bills and Decrees in Chancery before the 20 of H. 6. such Causes as since that time were heard in that Court having formerly been determined in the Lords House of Parliament So Sir Edward Coke saith In the Chancery are two Courts First the ordinary coram Domino Rege in Cancellaria where in the Lord Chancellor or Lord Keeper of the Great Seal proceeds according to the right line (r) Secundum Legen Consuetudinem Angliae of the Laws and Statutes of the Realm Secondly extraordinary according to the Rule of Equity Secundum aequum bonum But it is not my business to enter into particulars The curious may consult Sir Edward (s) 4. Instit c. 8. Coke Mr. Richard Cromptom cap. 3. Sir Henry Spelman 1. glossar 1. de Cancellario à pag. 105. ad pag 113. Ryley's Appendix Ash's Repertory tit Courts Sect. 2. Roll's Abridgment p. 374. to 587. Prynne's Animadversions p. 48. Anno 5 Eliz. (t) Cap. 18. it was Enacted that the Lord Keeper for the time being hath always had used and executed and so may for the future The Lord Keeper equal to Lord Chancellor the like place Authority Preheminence Jurisdiction Execution of Law c. as the Lord Chancellor of England for the time being lawfully used The Oath of the Chancellor or Lord Keeper is to be found (u) Rot. Parl. 10 R. 2. col 8. 10 R. 2. consisting of six Parts First That well and truly he shall serve our Soveraign Lord the King and his People in the Office of Chancellor The Oath of the Lord Chancellor or Lord Keeper Secondly That he shall do right to all manner of people Poor and Rich after the Laws and usages of the Realm Thirdly That he shall truly counsel the King and his Counsel he shall layen i. e. hide or keep secret Fourthly That he shall not know nor suffer the hurt or disheriting of the King or that the Rights of the Crown be decreased by any means as far as he may lett it Fifthly That if he may not lett it he shall make it clearly and expresly to be known to the King with his true Advice and Counsel Sixthly That he shall do and purchase the Kings profit in all that he reasonably may as God help him and by the Contents of this Book SECT 6. Of the Court of the Exchequer SIR Edward Coke saith the Authority of this Court is of original Jurisdiction without any Commission Bracton mentioneth nothing of this Court and Fleta giveth a very short account that the King hath his Court and his Justiciaries residing at his Exchequer but descends to no particulars of the Jurisdiction (w) Fol. 2 b. But x Britton who lived in Edward the First 's Reign and all along writes in the name of the King as if his whole work had been the Kings gives us an account of the Nature of this Court in several particulars To hear and determine all Causes which touch the Kings Debts his Fees and the incident Causes without which these cannot be tried So of Purprestures Rents Farms Customs and generally of whatever appertained to the Revenue of the Crown the Tenants and Receivers of it so that the Court is divided into two Parts viz. Judicial Accounts called Scaccarium Computorum and into the Receipt of the Exchequer The principal Officer is the Lord Treasurer of England who formerly had this great Office The Lord Treasurer principal Officer of the Exchequer by delivery of the Golden Keys of the Treasury and hath the Office this day by delivery of a white Staff at the Kings Will and Pleasure his Oath is much-what the same as the Chancellors differing principally in that clause That the Kings Treasure he shall truly keep and dispend The other great Officers are the Treasurer of the Exchequer the Chancellor and Chief Baron and other Barons of the Exchequer The rest of the Officers are particularly reckoned in Sir (x) 4. Instit fol. 106 107 108. Edward Coke The Oath of the Barons of the Exchequer is to be found in the Statutes (y) The Oath of 〈◊〉 Barons of the 〈◊〉 chequer 20 Ed. 3. cap. 2. whereof the principal parts are That he shall truly charge and discharge
and Actors of horrid things as purging Sacrifice (c) Rerum atroâ—ium ministros veluti placulares publici odii of publick Hatred atonement is made to publick Justice and the less crimmal have the greater Obligations to dutiful Repentance for the Punishment of such Ring-leaders and Coryphaei is not so much the revenge of the Prince as of the Commonwealth Otherwise the Prince by (d) Ne sanguinem nostram largeas dum Pâ—aucis sceleratis parcis bonos omnes proditum eas Sallust in Catilinam sparing a few Wretches will be Prodigal of his better Subjects Blood which those Criminals would as soon as they had obtained Power more profusely shed Therefore it becomes all good Subjects to bestir themselves for the safety of the Prince to hasten saith (e) Tanquam ad clarum beneficum sidus certatim advolare objicere pro illo mucronibus insidiatorum pâ—ratissâ—mi De Clem. lib. 1. c. 3. Seneca to his Standard esteeming him as a luminous and beneficial Constellation and most ready for his safety to expose themselves betwixt the Traytors unsheathed Swords and his Royal Person I cannot more emphatically express the clemency of our Princes and their Laws against Treason or better discover the Limits and Bounds of Punishments and the desire that our Princes have had That none should fall under the guilt of Treason than by reciting the Preambles to the Statutes made in King Edward the Sixth's and Queen Marys time concerning Treasons The words of the Statute of King Edward (f) 10 Ed. 6. c. 12. the Sixth are Nothing being more Godly more sure move to be wished and desired betwixt a Prince the Supream Head and Ruler and the Subjects whose Governour and Head he is than on the Prince's Part great Clemency and Indulgence and rather too much forgiveness and remissness of his Royal Power and just Punishment than exact Severity and Justice to be showed and on the Subjects part That they should obey rather for love than for fear of his strait and severe Laws yet such Events sometimes happen in the Commonwealth that it is necessary and expedient for the repressing of the Insolence and unruliness of Men and foreseeing and providing Remedies against Rebellion Insurrection or such mischiefs that sharper Laws and an harder Bridle should be made to stay those Men that might else be occasion cause and Authors of farther Inconvenience That as in Tempest or Winter a coarse Garment is convenient in calm or warm Weather a more liberal race or lighter Garment both may and ought to be followed and used So that sometimes there have been occasion at divers Parliaments to make and enact certain Laws and Statutes which might seem and appear to Men of exteriour Realms and the Subject very strait sore extream and terrible although they were then when they were made not without great Consideration and Policy moved and established and for the times to the avoidance of further inconvenience very expedient and necessary and when Princes are more indulgent it is to provoke the Subject with Clemency shewed on the Prince's behalf to more love and kindness to him and upon Trust they will not abuse the same but rather be encouraged thereby more faithfully and with more diligence to serve him c. In the Statute of Queen Mary (g) 1 Mar. c. 8. of the repeal of certain Treasons Felonies and Praemuniâ—e's wherein she reduceth all to 25 Ed. 3. the words are Forasmuch as the State of every King Ruler and Governour of every Realm Dominion or Commonweal standeth and consisteth more assured by the love and favour of the Subject towards their Sovereign Ruler and Governour than in Dread and Fear of Laws made with rigorous Pains and extream Punishment for not obeying of their Sovereign Ruler and Governour and Laws also justly made for the Preservation of the Commonweal without extream Penalty or Punishment are more often for the most part obeyed and kept than Laws and Statutes made with great and extreme Punishment c. Therefore some are repealed By these the Clemency of the Princes is discovered and the reason of enacting severe Laws in such Cases in Terrorem is cleared I must refer all other Discourses of the Laws against Treason to the Learned Books writ on that Subject and only note what a (h) Transcendent and multiplied Rebellion p. 25. See Sir Tho. Wyat's Speech at his Execution in Hollingshead well worth perusing by all concerned grave Author saith That if we peruse all our Books Records and Histories we shall find it a Principle in Law a Rule in Reason and truth in Experience That Treason doth ever produce fatal and final Destruction to the offenders and never attains the desired End although infinite mischiefs are effected by it For Conspirators and Traytors one way or other have generally come to condign Punishment If what I have hitherto laid down work any good Effect upon the Subjects in general to keep them in their Duty to their Sovereign and his Laws or have afforded them such Rules for Obedience or dehortments from Faction Sedition Conspiracies and Rebellion as I wish I have attained the end for which I write which is only to satisfie all sorts of Subjects how excellently composed the Government is that our Kings cannot or have any Interest to rule Arbitrarily Therefore it will be the duty advantage and true Interest of all Subjects so to comport themselves to the Government as to consider the excellent Foundations upon which it is built that neither by the Cunning of unquiet Spirits the pretenders of Reformation of abuses the ambition of the aspirers nor especially by the plausible Charms of the Republicans they be ever induced to disquiet the Government or rebel against it lest in conclusion they bring upon themselves and Posterity such a Slavery as we had too bloody an Example of in the late Calamitous times and that above all things they consider that excellent Saying of the best of (i) Quippe in turbâ— discordias pessimo cuique plurima vis pax quies bonis Artibus indigent 4. Hist initio Historians That to stir up Dissentions and troubles the worst Men commonly have the greatest Influence but Peace and quietness are not established but by Men of rare gifts and excellent Vertue FINIS THE Author being at great distance from the Press and sending up his Coppy by Parcels which by reason of his Imployment in his Profession he was constrained sometimes to commit to the Care of others The following Chapter was not sent up till most of the Treatise was Printed Therefore he chuseth rather to place it at the end than to disturb the order of the Pages and desires the Candid Reader will peruse it next immediately after the 15th Chapter it being designed to have preceded the 16th Chapter of The King's Soveraignty CHAP. XVI Of the Benefit and Excellency of Hereditary Monarchy THE (a) Arist Pol. l. 3. c. 10. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉
Parliament of England knew they had no Power to make such an Act and we may conclude That such Politick and Temporary provisions find no approbation either by the Laws or succeeding ages who in all such cases judge more impartially therefore it is much more honourable for the Legislative Power to found their Laws upon Justice and Right rather than upon the humours and Interests of those who desire but the shadow of a Law to countenance their designs It must be owned that King Edward the Second was deposed The Injustice in deposing Kings for making use of Gaveston and the Spencers But how illegally all succeeding ages have acknowledged and it rather shews how extravagant the People and their Representatives are in their humors than how just their Powers are For by the same parity of Reason the horrid Murther of the blessed Martyr or the Murther of Edward the Second may be justified as his deposing may be and the like may be said of King Richard the Second against whom the Fourteenth Article was that he refused to allow the Laws made in Parliament which had been in effect to consent that the two Houses should have been the Soveraign and that he had transferred the Royal Power on them Whoever desires further satisfaction may consult Arnisaeus in that Treatise Quod nulla ex causa subditis fas sit contra legitimum Principem arma sumere Whereas Richard Duke of York in Henry the Sixth's time after he had been declared Heir Apparent was by another Act of Parliament declared uncapable of Succession all that can be inferred from it is When Acts of Parliament to be less esteemed That Acts of Parliament when they are bottomed upon private affections to Parties in times of Faction and civil War are not to be looked upon with that veneration as when they regularly pass in times that are calm when no potent Persons oppress Justice or usurping Powers hinder faithful Judges from expounding the Laws soundly Therefore we find in the claim of the said Duke of York that it is more consentaneously to Law expressed That no Act taketh place or is of force against him that is right inheritor of the Crown as accordeth saith the Record with Gods Laws and all natural Laws and we may observe that though there was a Succession of three Kings of the House of Lancaster who had usurped the Crown for Sixty Years yet all our Historians and the Laws call those Kings de facto and not de jure Such a true sence of just and right the uninterested Ages have had of that Usurpation ever since although there were Acts of Parliament carefully penned to corroborate â—he Title of the house of Lancaster during that time and all ways and means used to have established that Line yet by vertue of the Right of Lineal Succession Edward the Fourth Son to the said Duke of York came to be owned lawful King of England though the Right of his Family had been interrupted ever since Henry the Fourth usurped the Crown which might have been a sufficient document to all Ages not to have attempted any sort of praeterition of the Right Heir Yet we find that unsuccessful attempts were made by H. 8. contrary to the fundamentals of Succession which when rightly considered I hope will convince all of how little validity even such Acts are to be reputed Therefore because these have been made use of for Precedents I shall speak a little more fully to them In the 25 of H. 8. (f) Cap. 22. the Marriage with Queen Katherine is made void Concerning the several Entailings of the Crown by King Henry the Eighth and that with Queen Anne's declared good and an Entail made on the Issue Male or Female and the Penalty for hurting the Kings Person disturbing his Title to the Crown or slandering the present Marriage is judged High Treason and Anno 26. (g) Cap. 2. a strict Oath is injoyned to observe the Succession there appointed But 28 H. 8. (h) Cap. 7. it is declared that the former Act was made upon a pure perfect and clear foundation thinking the Marriage then had between his Majesty and the Lady Anne they are the words of the Act in their Consciences to have been pure sincere and perfect and good c. till now of late that it appeareth that the said Marriage was never good or consonant to the Laws but utterly void and of none effect and so both the Marriage with the Princess Katherine and the Lady Anne are declared void and their Issue made illegitimate and the perils are enumerated that might ensue to the Realm for want of a declared lawful Successor to the Crown and the Act impowers the King if he dye without Issue of his body that he may limit the Crown to any by his Letters Patents or his last Will in Writing and it is declared Treason to declare either of the Marriages to be good or to call the Lady Mary or Lady Elizabeth Legitimate and the former Oath is made void and this may be judged to be procured when he resolved to settle the Crown on Henry Fitz Roy Duke of Richmond his natural Son But after the Birth of Prince Edward 38 H. 8. (i) Cap. 1. another alteration is made whereby the Crown is entailed on Prince Edward and for want of his Issue on the Lady Mary and for want of her Issue on the Lady Elizabeth and for want of Issue of the King or them then the King is impowered by his Letters Patents or last Will to dispose of the Crown at his free will It is therefore to be considered that in such a juncture of affairs when the legality of the Kings Marriages were so disputable by reason that two of the legal Successors upon niceties not of nature but of the Popes 〈◊〉 for Divorcing were declared Bastards there was some â—eason (k) 25 H. 8. c. 22. that the Act should express that the Ambiguity of several Titles pretended to the Crown then not perfectly declared but that men might expound them to every ones sinister affection and sence contrary to the right legality of Succession and Posterity of the lawful Kings and Emperours of the Realm hath been the cause of that great effusion and destruction of mens blood and the like cause will produce the like effect as the words are Upon such grounds it was very plausible to declare by Act of Parliament the Succession But this does not prove that where the Right of nature is clear that the Parliament may invert the same and they teach us how dangerous it is to leave Parliaments to the Impression of Kings when it is too obvious the first of these Laws was made to gratifie the Kings affection to Queen Anne in the case of naming a Successor as it is also to expose Kings to the Arbitrariness of Parliaments And we may well infer H. 8. taking such care by his Parliaments to legitimate and illegitimate his