Leges ignotas Judicare de eis quas Nesciebant How it was in Parliament while there were only Barons by Tenure would be more enquired But of later times Commons have adjudged Commons and have joyned with the Lords in adjudging Lords of which there are divers Cases cited in the Fourth Part of Institutes Cap. 1. pag. 23. It may be considered that many Kingdoms and Common-wealths that were not Kingdoms in all Ages did consist of Three Estates as of Three Principles in Nature or Bodies Natural which might occasion the Phrase of Tribe in many other besides the Romans who in Three Estates were not so Ancient as the Grecians or Aegyptians that I speak not of the Gauls Britans or the Eastern Nations And if any would observe it might be possible to find the Prophets hinting a Trinity in divers Kingdoms or Estates and that not only for moulding but for overthrowing them Besides the Three Captivities or Three overturnings of the Iewish State and the Three blows of the Goat on the Ram in Daniel as alluding to the Three great Battles which did break the Persian Empire And why may not the Sacred Trinity be shadowed out in Bodies Politick as well as in Natural And if so our Three Estates may be branched as our Writs into Original Iudicial and Executive as shadows of the Being Wisdom and Activity Divine If I may not grant yet I cannot deny Original Power to the Commons Iudicial to the Lords Executive to the King as the Spirit to the Body or if you will the Head or Fountain of Sense and Motion But he must see by two Eyes and hear by two Ears as I touched before yet his very pardoning although it be by Law much limited doth seem to speak his Power Executive And so his Writs do speak aright Because my Courts have so and so judged Therefore I do so and so command the Judgment shall be executed And if any will assert the Militia to this Power Executive I shall also grant it to the King So that it may be alwayes under the Power Original and Judicial This might belong to the Lords and that to the Commons And the plain truth is I do not find more Arguments to prove the Judicial Power to belong to the Lords than I do for rhe Legislative in the Commons And as it seemeth to be above so below also it may be much disputed That the Legislative Judicial and Executive power should be in distinct Subjects by the Law of Nature For if Law-makers be Judges of those that break their Laws they seem to Judge in their own Causes which our Law and Nature it self so much avoideth and abhorreth So it seemeth also to forbid both the Law-maker and Iudge to execute And by express Act of Parliament it is provided That Sheriffs be not Justices where they be Sheriffs But if Execution be alwayes consonant to Judgment and This to the Law there is still most sweet Harmony and as I may say a Sacred Unity in Trinity represented That the Commons should have most Right to the Power Original or Legislative in Nature I shall leave to be disputed by others I shall only touch some few Particulars which have made me sometimes to suspect that by our Laws and Model of this Kingdom it both was and should be so How the Roman Historian found the Judicial power given to the Lords by our Old Ancestors I did observe before he is as plain for the Legislative in the Commons Nay to the Lords themselves he saith in Judging was adjoyned a Committee of Commons both for Counsel and Authority Ex plebe Comites consilium simul Authoritas And again he sheweth how the Lords did sit in Council about the less Affairs but of greater all both Lords and Commons So also that those things which the Commons did determine Quorum Arbitrium penes Plebem apud Principes pertractentur they should be debated with the Lords for their Advice but not their Legislative Votes And the Mirror a good Comment on Tacitus in this sheweth how our Lords were raised out of the Commons and giveth them a power Judicial but where is their Ligislative Nay the Modus of Parliament will not only tell us that the Commons have better and stronger Votes than the Lords but that there may be a Parliament without the Lords as well as Prelates For there was a time in which there was neither Bishop nor Earl nec Baro so the Irish Modus and yet there were Parliaments without them but never without the Commons So that if the Commons be not summoned or for Cause Reasonable cannot or will not come for Specialties in which they blame the King Parliamentum tenebitur pro Nullo quamvis omnes Alii status plenarie ibidem interfuerint And the Kings Oath is to confirm the Just Laws which the Commons not the Lords but Commons shall Elect or Choose quas Vulgus Elegerit So in Latine and in French of Edw. 2. and Edw. 3. Les quiels la Communante aur ' eslu And in English of Hen. 8. and other Times which the Commons of the Realm shall choose And if we look into the Old Writs of Summons we shall find the Commons called ad consentiendum faciendum and the Old Writ addeth quod quilibet omnes de Comitatu facerent vel faceret Ii personaliter interessent As it is in the Modus of Parliament with sufficient intimation that without the Commons nothing could be done which the late Writs express thus Ita quod dicta Negotia Infecta non remaneant pro defectu potestatis c. But the Lords are called de quibusdam arduis tractaturi consilium Impensuri only as Counsellors not as Law-makers For the very same words are in the Writs for the Judges and others coming to Parliament although they do not Vote in making Laws This may also shew us how the Lords themselves did Elect the Knights of Shires and by Statute of Rich. 2. are to contribute to the charges of the County Knights who were to sit and Vote in Parliament as Law-makers for the whole County whereas the Lords were there but as Judges and the Kings Counsellors And is it probable they should retain to their own Persons that for which they delegated others who were there to do quod quilibet omnes facerent personaliter even all that all the Lords themselves should do as Freeholders not as Lords or the Kings Patentees who might so be his Councellors or Iudges rather than Law-makers this was more left it seems to the Commons who for this and other Reasons should not be Common Iudges as I think in private Causes or of private Persons but of Iudges or of such as the Mirror speaketh of whom elsewhere there was no Common Justice to be had But if the Lords had not a Legislative Right why did the Commons send up the Bills to them how came the Lords to joyn with the Commons in Passing of Acts
It cannot be expected that I should shew the Original of all Changes or Distempers in this Kingdom It is work enough to shew our first Mould or Constitution yet for this also it cannot be doubted but the Barons Wars and Power might gain upon the Commons more than on the King he had such Bounds before that he could hardly be obliged more or capable of granting much but what was due before to all his People But it might be easie for the Potent Lords to grow upon the Commons in the Name of Barons In that Name I say for I cannot determine but the old Barons being the great Freeholders and the Lords of all the Manors that have left their Names in our Courts Baron had by Law and Reason much more Power than had the Kings Patentees Created Barons by Patent or Writ But this new Creation did but multiply the Iudges or the Kings Councellors for by so taking their Commission from the King they were only as other Judges in Inferiour Courts and so did really lose their great Power of Iudging which was proper only to those who were the Kingdoms Peers and Iudges So that these Lords did justly admit the Commons or rather were admitted by the Commons into the grand Iudicature and it may be that as the Barons did communicate their Power Iudicial so the Commons might communicate their Legislative unto those who had the Name but little of the Nature of the old Barons by Tenure yet by so doing they might bring Confusion or an harsh Discord into Natures Harmony But the main occasion seemed thus the King was tyed by his Coronation Oath to hold keep and defend the just Laws and Customs chosen by the Commons Iustas Leges consuetudines quas vulgus elegerit and this Limitation of Iust seemed to admit of reason or debate so much as might convince the Laws required to be Just for else I know not that the King was ever tyed to them And because he was or might be an Infant he had still a great Council about him to discuss the Laws proposed by the Commons and for this Cause he did and by reason might Summon the Lords or any other Wise and good Man he knew to come and give him Counsel as the Writ speaketh to the Lords and Iudges c. De quibusdam arduis nobiscum tractaturi Concilium impensuri So we find the old Acts passed per Consilium Baronum as we might shew in all Ages And because he used to demurr at Bills till he had the Advice of his great Council hence it may be for more Compendium the Bill was sent up first to the Lords as the Kings Counsellors and if they Counselled him against it then he answered Le Roy s'avisera The King will yet be farther Advised for he did not and I think he could not give a denyal nor of old perhaps Demurred till the Lords advised him against it I dispute not how much the Commons might oblige the Commons without assent of Lords or King Nor have I yet said that in the Coronation Oath the Commons Just Acts are called Laws and to Mould them may be works distinct enough and the plain truth is his Oath is to hold and to keep and to defend the Commons Laws à Tenir Gardir Les Defenderer per se tenendas protegendas as well as to Grant or to Confirm However I do not see either by Reason or Law That the King was so obliged to the Judgment of his own created Lords and there be few or none others left in England that he might not be convinced by the Reason of the Commons either without or against the Lords And beside divers Ordinances without any of the Lords it cannot be denyed but in Divers ages there were Acts of Parliament made without or against all the Lords Spiritual which yet often were the Major part of the Lords House and had as good it may be better Votes as Barons by Tenure than had all the other Lords by Writ and Patent only which might make them Judges or Councellors much rather than Law-makers I should still be far from desiring to obtrude my own Fancies or Opinions upon any least of all to the wrong of others Therefore if any can produce a better Title my Petition is they may be heard and may receive their Just Rights and Priviledges But if this be true which I now only propose and submit to better Thoughts and Judgments then had the Lords of late but a Right Consultative of making Laws And besides all that was said before this seemeth one Reason why our Ancestors did so willingly follow the Vice of Nature in placing the Power Legislative Iudicial and Executive in three distinct Estates as in Animals Aerials Etherials or Celestials three Regions and three Principles in Naturals that so they might be forced to consult often and much in all they did And if this frequent Consultation were retained and observed still it might not only occasion good Reviews but also prevent That which to the Common-wealth I fear and not Alone to private Persons may be sometimes prejudicial in a sudden Vote or Act of one House or one Body and yet one may be better much than Many if they be not good It must be granted that in Bodies of the Best Complexion and Composure here below there may be such Distemper and such Gangrene in some Members that it may be more than fit to cut it off Nay what was best may come to be the worst in Putrefaction That it may be meer Necessity to bury it although it were as Dear as Sarah was to Abraham or set on high by him that raised up the Brazen Serpent which see e're long lye buryed with this Epitaph Nehushtan And to all that is truly Just the Commons of England will not need to plead a bare Necessity for by Law and Reason too it may be said and proved I believe That both the King himself who chooseth by his Writ and All the Lords by several Votes have left the Legislative power so to the House of Commons that they had a Legal Right to do what all the Kingdom and Common-wealth of England Justly could But They are Men and therefore may be much unjust Nay where the Thing they do is Iust They may be much or most unjust I have neither Calling nor Ability to Judge them Nor may I act with force against them for whate're I think Unjust No not if I should think they did Usurp the Crown For if the Law Reports and Books deceive me not it hath been Judged Treason and so is for Private Men to rise conspire or Levy War against one that Usurps the Crown and Rights thereof except it rightly were declared Usurpation or that others should or might oppose him that did so Usurp Of which the Reasons may be Great and obvious Let me then suppose any one Man of all the Commons in Parliament for I will not
Parliamenti sedebunt nullus stabit sed quando loquitur ut omnes audiantur à Paribus And again Nullus solus potest nec debet recedere à Parliamento sine Licentia Regis omnium Parium Parliamenti hoc in pleno Parliamento Ità quod inde fiat mentio in Rotulis Parliamenti It may be possible That Bracton and Fleta with others may use the Phrase Pares in such a sence when they say That the King or his Commissioners should not judge and determine of Treason but Pares Which may be added to the 25 th of Edw. 3. reserving Treason to Parliament where of Old it seemeth only determinable so that The Mirror would not have it Endicted but by Accusation and in full Parliament as in King Edmund's Time c. Cap. 2. Sect. 11. and in Edw. the 3 d it was enacted That Offences of Peers and great Officers and those who sued against the Laws should be tryed in Parliament And although now the Phrase be given to all the Lords of Parliament yet it was most or only proper to the Earls whom by Law and custom the King styleth Consanguineos and he might style them his Peers or Companions as in Latine Comites So Bracton Comites dicuntur quasi Socii Regis qui habet Socium habet Magistrum and in another place A Societate Reges enim tales sibi Associant ad consulendum regendum Populum Dei and the like is in Fleta Comites à Comitiva dicuntur qui cum viderint Regem sine Freno Frenum sibi apponere tenentur c. which is also in Bracton The Mirror is yet clearer although the King had no Equals yet because himself or his Commissars might not be Judge it was provided by Law that he should have Companions to hear and determine all his Torts c Aux Parliaments and those Companions were called Countees Earls from the Latine Comites So also Sarisberiensis cited before in Hen. 2. Comites à Societatis participatione dici quisquis ignorat ignarus est literarum c. some will have them Comites Socii in Fisca because of old some Earls had a third part of profits accrewing by Pleas and Forfeitures in their Counties as the Laws of the Confessor and Mr. Selden in his Comes but he will also grant their name à Comitiva potestate rather than from such Communion of profits That the old Sheriffs also who were Vice-Comites did come to Parliament appeareth in the Ancient Writs and Histories and yet the Barons seem to be the Kingdoms Iudges and the present Earls may seem to sit in Parliament but onely as Barons who are now all Peers and Lords and Parliament But although the Lords were the great Iudges of the Kingdom and of all Members thereof yet it is well known that in full Parliament as old as Edw. 3. they did not only acknowledge but protest that they were not to Iudge the Commons in Cases of Treason and Felony being not their Peers How it was in Rich. the Second may be seen at large in the Rolls and Records now printed in Edward the Second the Commons proceeded by the Judgment of the Lords for which also the Fructus temporum cited before may be added to all in the Road. Appeals and Writs of Error were from the King to the Lords in Ecclesiasticals that touched the King they were to the Spiritual Prelates Abbots and Priors of the Upper House by Act of Parliament in 24 Hen. 8. till which it may be Temporal Lords had also Cognizance of such as well as Temporals And Writs of Error in the Parliament were Judged by the Lords for they came from the Kings Court his Bench or his Exchequer and if Errors had been in the Common Pleas or below it they should not be brought into Parliament but to the Kings-Bench and from the Kings-Bench as from the King not otherwise they came to the Lords and although there was a formal Petition for removing the Record from the King it was but of Course and the King could not deny it Which we found granted by all the old Lawyers and Historians as I shewed before and by the grand Master and Patron of Law King Edw. 1. in Britton because none may Judge in his own Cause Therefore in Causes where our self shall be Party we do consent que N. Court soit judg Sicome Counts Barons in Temps de Parliament In the Laws of Hen. 1. one of the Chapters beginneth thus Iudices sunt Barones Comitatus qui liberas in eis terras habent for in those times Barons were by Tenure only not by Patent that I know till Beauchamp of Holt in Rich. 2. nor by Writ that I can find till the Barons Wars but K. Johns Charter is to Summon Comites Barones Regni majores sigillatim per literas N. But all that hold in Capitae by general Summons forty days before the Parliament and that Negotium procedat ad diem assignatum secundum consilium eorum qui presentes fuerint quamvis non omnes submoniti venerint and the Summons of Delinquents or Suitors in Parliament was to appear and abide the Judgment of the Court not of the King but of his Court for the King is Father and not Judge of his People in his proper Person as was shewed before and all the Books agree that he must Commit his Jurisdiction unto Judges in the Courts of Justice and when he might assume great Offices into his own Hands by Parliament in Edw. the third all Judges were expresly excepted and the Judges Oaths and several Acts of Parliament require them to proceed according to the Law notwithstanding the Kings Command or Seal against it and the Register affordeth a Writ to Supersede or Revoke any such Seal from the King himself to any of the Judges And the Lord Chief Justices as the Lord Chancellor and Treasurer were Chosen by the Kingdom as we found before in the time of Hen. 3. how much more then should the Lords of Parliament be made by Parliament for else they be the Kings Commissioners So the Roman saith our German Fathers chose their Lords in Common Council to be Judges in iisdem Conciliis Eliguntur Principes qui Jura reddunt De Minoribus consultant Principes de Majoribus Omnes And Caesar also observeth that their Princes or Lords were their great Judges sed Principes Regionem atque Pagorum inter suos jus dicunt Controversiasque minuunt Yet Tacitus will also tell us that with those Princes they did joyn Commons Centeni ex Plebe Comites which were perhaps the Fathers of our County Hundreds And in K. Williams Edition of the Confessor's Laws when he inclined so much to them of Norwey Universi Compatriotae Regni qui Leges Edixerant came and besought him not to change their Old Laws and Customs of their Ancestors because they could not judge from Laws they understood not quia durum valde foret sibi suscipere
Lists which I would avoid as a Purgatory being otherwise I say not better imployed than in such unprofitable Wranglings I should believe it not very difficult much less impossible to maintain That both the Moulding and Manage the Make and the Use of the Kingdoms Militia was ever immediately subject to the Command of the Courts of Iustice especially the Parliaments which may in a large Sense of Law be called the Crown or King's Politick Capacity but never I think to the King's Person alone which in Law is still an Infant as the Mirrour expresly calls him though his common Capacity be ever of age Be the Person a Child an Infant Lunatick Incompos Mentis or a Woman which sure our Ancestors could not but deem a most unlikely Person for a wise and valiant General If I were compelled to argue this it should not be only from right Reason or the Law of Nature which yet to me seemeth much to encline this way The Feet are to bear and the Hands to help to hold to bind and rub the Head in any Distemper or Weakness but if I should hear of any Man born with his Heels in his Neck or his Hands tyed to his Head or immediately under his Chin I should think it a Monster And wherever both Hands and Feet are at their due Distance from the Head with divers Nerves and other Vessels Bones and other parts between them yet I never heard or knew that they did obey the Head till it did command itself and them also by Reason or till it also doth Obey not only its own Eyes and Ears but the Common Sense and Reason of the Soul I must confess I have heard that Ticho-Brah did sometimes imagine that he found Mars below or under the Sun But if it were really so it seems as great a Prodigy in Nature as the new Star and that of Mars rather than a new Star in Cassiopeia might presage those sad Commotions which have since followed in many Places of Europe while Mars hath been so much below or under the Sun For by Nature Mars was said and ever thought to be placed immediately under Iupiter the great Judg or Court of Iustice which should command the Sword And so it doth by Law For in England the Iudgments given in any Court of Record do so command the Militia for Execution for a Writ runs of Course which was made by Common Consent and cannot be denyed Release to all Actions will not hold against Execution except all Suits were also released But this is such a Suit as the Law calls a Demand which may not be denyed And for other Cases of Routs Riots unlawful Assemblies Invasions c. The Posse Comitatus and by Consequence the Posse Regni was Disposed and Commanded by known sworn Officers that acted Virtute Officii by the Law and Custom of the Kingdom For it may be known that the old Iustices or Conservators of the Peace were chosen by the Counties as appeareth by Writs yet to be read from the Rolls of Edward the First And now their Commission and their Power dependeth on Parliament Nor could the Chancery have given such a Power had it not been so Established by Parliament which hath also strictly provided for their Legal Nomination and Election For which the Statutes of Richard the Second Henry the Fifth Henry the Sixth and before them all Edward the third thought it were not printed And it is very well known how by the Common-Law and Custom of the Kingdom all the Sheriffs do command the Posse Regni in their several Counties and that not onely Execution of Writs which may be thought to be Matters of Peace But the Lawyers know that Sheriff is Custos Legis and Reipublicae as well as of Peace of which he is the Principal Conservator in his Shire and County Nor may it be Presumption to say That all these Sheriffs also ought to be and so were chosen by the People as is sufficiently found in Hoveden and in the Laws of the Confessor And in full Parliament of Edward the first it was declared to be the Law and Custom of the Kingdom and therefore so setled in the Choice of the People There was in latter times some Alteration made in Choice of Sheriffs but it was by Parliament However we all know that Headboroughs Constables greater men than themselves know Coroners and divers others are yet still chosen in the Counties and do act by Custom and Common-Law And the Sheriff also however he be chosen yet he stands not by Commission nor ought to fall with Kings death But is a standing Officer by Common-Law Who may command all Lords Knights Gentlemen and others in his County by his Writ of Assistance Which issueth of course to every Sheriff I need not say how little the Kings Personal Command or Warrant can by Law interrupt or hinder the Process of Sheriffs Iustices Constables or others in their legal course for the Publick Peace Yea insomuch that if I should have beaten a Drum or raised Forces to rescue King Henry the Eighth from the Compter for abusing a Petty Watch in a Night-walk I might have been arraigned for it And so I might have been for refusing to fire the Beacons or to have raised the Counties if I had seen a Navie of French or Turks landing in King Iohn's time Although the King had come to me and bid me quiet because they were Friends or such as he invited in for the good of his Kingdom Which from his own Mouth or under his hand would have been no legal Supersedeas to a private man in case of such Danger much less to a Sheriff or other sworn Officer For in such cases of Apparent Danger any man that is next may esteem himself an Officer as in quenching great Fires or damming out the Sea And in such though the King himself should forbid me or get me indicted I may demur and put my self on the Judges of Law especially Parliament the most proper Judges in such Causes And to Lawyers I need not cite Records or Precedents Nor shall I need to adde That in case of Foreign Invasion or Intestine Motions and Breaches of Publick Peace the Common known Laws of the Land will warrant a Sheriff Officer or private man to go over a Pale an Hedge a Ditch or other Bound of a Shire or County In which our Ancestors were not so ceremonious or superstitious in case of hot Pursuit or the like Although they were punctual enough in keeping of Land-marks And in Peace in cases of real Actions and personal Trials They were very tender of those Marks in special that bounded out Shires or Counties The Original of Shires and Sheriffs is generally fixed upon King Alfred But the old Abbot of Crowland whence this arose seemeth to speak of new Names rather than Things for himself hath Provincias Comites Vice Domini though not Vice Comites of Ages before King Alfred And the Monk of
by Commune assent in special of the Clergy And for this Walsinghams Neustria may be added to others in the Road and at his return he is again Crowned before the People as well as the Lords Consilio Procerum Yet Polydore with others is bold to charge his Reign with great exactions on the Clergy in special for his ransome but himself yeilded that the King did send the Bishop of Salisbury into England that by the consent of Parliament Regii Senatus Authoritate he might get his Ransome And himself yeilded that at his return there was a Parliament wherein the King thanked his People for their Faith to him and for that they had helped him in his Wars and Imprisonment And that Ejus Nutu Archiep. Cantuar. was conferred on the said Bishop of Durham and that the Chalices c. were again restored to the Churches and that the Laws with weights and measures were then also corrected or amended K. Iohn's Election must be discussed in another place Of his Military Aids Paris with Wendover is clear that they were granted in and by Parliament Convenerunt ad Colloquium apud Oxoniam Rex magnates Angliae ubi concessa sunt Regi Auxilia Militaria de quolibet scuto duae marcae dimidium Nor are the Records wholly lost of his Parliament summoned about a War with the French or rather defence against them and his Writs are known enough They speak consent of Parliament provisum est de communi assensu Archiep. Comitum Baronum omnium Fidelium nostrorum Angliae quod novem Milites per Angliam inveniant decimum bene parat ad defensionem Regni Besides the Rolls this is found in the 9th part of the great Reports and in divers others His Charter is now so well known in Print that I need not cite any clause thereof No not that so clear for the Militia Nullum scutagium vel Auxilium ponam in regno nostro nisi per commune Consilium Regni nostri Yet I may add that the Aides there excepted and called Reasonable being such by Common Law were afterwards assessed and ascertained by Parliament For which the first of Westminster may be compared with the 25 th of Ed. 3d. and in the 14 th of that King his Aides were remitted by Parliament because for his Wars he had taketh other Assistance than was due by Law which was much excused by himself and divers other Kings And for this I might cite the 48 th of H. 3d. the 25 th and 31 th of Edw. 1st the 10 11 12 and 13 of Edw. 2d the 19 th and 20 th Edw. 3 d. who did buy Souldiers rather than Press them as the Roman Historian of the declining times of that Empire Of the Barons Wars I must not speak a syllable they do deserve a discourse by themselves and it may be possible er'e long to see it Now I shall only observe that our great Charter was rather the Cause or occasion than the Effect of those Wars For had it been so kept as it was made the Crown might have rested in peace enough They which perswade others that this Charter was first created by King Henry and extorted from him only by a prevailing Sword seem not to consider so much as its Title as it now is printed where we find it granted in his 9 th year Although it was so ill performed that it needed confirmation afterwards Matth. Paris is very clear and plain in this that it was wholly the same or exactly agreeing with that of K. Iohn in nullo dissimilis Nay he speaketh of K. Iohns Charter quas sponte promisit Baronagio Angliae and again in K. H. 3 d. sponte liberaliter concessit And the Popes Letters tell us of K. Iohns Charter granted most freely Liberaliter ex mera spontanea Voluntate de Communi consensu Baronum suorum c. Besides the very words in one of those Charters spontanea voluntate nostra dedimus concessimus pro nobis Heredibus nostris Libertates has subscriptas Nor were these new priviledges then first Created by him But the old Rights of the People by long and ancient Custom as we may find at large also in Wendover with Matthew Paris where they are not only Antiquae Leges consuetudines Regni but we are also told they did present the great Charter of H. the first with his Laws and St. Edward's And to these the Barons sware as the King had also done before For so we read their Covenant was that if the King would break his Oath a juramento proprio resilire which they had some cause to believe or suspect propter suam duplicitatem yet they would keep theirs and would do their best to reduce him to keep his Virgil is also clear in this who telleth us K. Iohn's Troubles and proceedure from his not restoring K. Edw. Laws as he had promised And that the Barons urged him ut promissas tandem aliquando Lege daret and again they ask for their Antient Customes vetera instituta quibus olim Reges Pop. Angl bene rexissent and the close is quae ille prius recepisset se sanctissime observaturum And for Henry the Third the same Author affirmeth that instead of his granting ought that was new the People granted him that grand Prerogative of Wardships which that King accepted with many thanks adding also that the People did not intend it for his Successors But of this I may speak in another place I shall now only adde that if there be not yet enough said from all the Saxon Laws and Histories with the first Norman Confirmations and Explications to assert the Great Charter to be more Antient for its matter than K. Henry or K. Iohn I shall only desire those that are yet unsatisfied they would please to peruse the 2 d. part of the Great Institutes or at least so much of it as speaketh of H. 3 d. and Edw. 1st And it may be they will not wonder that at the Prelates motion that Bastards might inherit the Parliament at Merton cryed out so loud nolumus Lages Angliae mutate c. To which also besides the late Declarations of this Parliament and the Petition of Right may be added the Learned arguments of those Grave and Honourable Judges to whom we shall ever owe so much for standing up in an evil day for Truth and Common Justice in the Case of Ship-money Sir Richard Hatton Sir George Crook and Sir Iohn Denham with the truly Noble Oliver St. Iohn Lord Chief Justice of the Common Pleas. Their Arguments are now in Print by publick Command Nor may I presume to add a word in that subject Nor shall I speak of the times following the great Charter which was confirmed more than thirty times in full Parliament with many special Provisions for the Militia It being most just and reasonable that what did so much concern all should be considered by all Quod omnes tangit
forth Nay till she have leisure to attend with Joy that a Man-child is born to her Some have thought the Travailer to be Gentile Church but it is Interwoven with Bethlem Ephrata I need not spend much time to Parallel the two Estates of our Messiah with this Ioseph and this Benjamin The Lord will dwell between his Shoulders more then when the Holy Place was in the Tribe of Benjamin he also was cut off as Ioseph was but did prolong his Days and prosper Yet a little while I hope and Benjamin shall come down from his good Father and then shall Ioseph Ben Ioseph make himself known to his Brethren who did hate him shout at him cast him into the Pit deliver him to the Gentiles But he was brought from Prison and from Iudgment At thirty Years he stood before the King and was made Governour of all His Brethren must come and bow down to him tho they rememb'red not his Affliction yet he preserveth them in Aegypt and tho Dead yet goeth before them to Canaan in his Coffin of which the Jews have many Stories in the Life of Moses and others They shall see him who they have pierced and shall weep over him For he shall melt them by saying I am Joseph your Brother But he must stay till Aegypt be destroyed by Famine and be glad to yield it self to Ioseph he must sit till his Enemies be put under him And then shall come the Restitution when Babylon is pulled down It filleth all the Scene as yet And whil'st Satan acteth as if he were God it is no Wonder that we see so little done of Good I must not trouble the World with the time of this great Change But it may be sought and perhaps found not only by Types but plain Expressions in Moses and the Prophets besides our Saviour's Words and the Revelation This I may observe that as Aegypt was broken before the Tabernacle was first raised and Edom before the first Temple and Babylon before the Second So both Edom and Babylon before the Third in Ezekiel and St. Iohn for I now seek not the three Temples in Ezekiel Sitnah and Rohoboth digged by Isaac as do many Iews Of all the Crimes of Edom and Babylon this hath a heavy Charge that the afflicted Heber the People of his Love But those that Curse them must be Cursed How great a share in that this Kingdom had I cannot say there are Mistakes on either side We say they Crucifyed a Child or more They do deny it and we prove it not They say we drove them out from hence it is not clear They were in Favour once at Court they did deserve Respect who brought the Crown two hundred thousand Pounds per Annum little less as mony now for divers Years together And King Iohn did give or sell them a Charter of Priesthood or rather Presbytery for I know not that by this they ever Sacrificed And the Charter yet remaineth for old Jacob the Presbyter of all the Jews in England during Life Their Use and Brocage was so burthensom that in King Edward the First one Parliament did quite deny them Leave of Usury and that did draw them but not drive them hence It was their Motion that obtained a Writ for safer Passage which yet secured them not but that the best of them were drowned in the Thames by Fraud of those that undertook to Waft them over But they hanged for abusing those poor Jews The next Parliament did grant a whole Fifteenth pro expulsione Iudaeorum yet they had but a Writ for a Pasport and they were but 15000 and odd if I may believe a great learned Judg who has so Reported and Recorded How they are now I need not say although I might also bear them Witness that they are yet Zealous in their Way nor do they wholly want Ingenious Able Men of whom I cannot but with Honour mention him that has so much obliged the World by his learned Writings â—ab Menasseh Ben Israel a very Learned Civil Man and a Lover of our Nation The more I think upon the great Change now coming on them and all the World the more I would be Just and Merciful to them to all nay Universal Sweetness if I could a Christian overcoming all with Love And such one should be more I believe if one had conquered all the World For then there would be nothing left but Self to Conquer Then one would return in Love and say come forth my Enemies and Live enjoy your Rights your Peace and Liberties with all your Ioyes There shall not an Hair fall off your Heads By this it shall be known that God alone must Reign I know that Antichrist and Babylon must fall and rise no more But these are more in Hearts then any Walls or any City Not only in the Heart much less the Name of King or Lord I Judg my self or so I should much rather and much heavier than I Judg another For I see much cause to fear my self lest I may keep a little Pretty rather Ugly Antichrist within my Breast whil'st I am busie to destroy some others more then it in others or my self There is a sweeping Rain oppressing more then any Thunder There is a Pride most proper to a Leathern Coat And one there was that trod on Pato's Pride with Prouder it was said and fouler Heels I find it in the Scriptures thence I know that Babylon must down and be thrown down with Violence More Force it may seem than Form of Law Yet even in such things God seldom doth that which is not just in Man's Eye also Nor did he ruine Babylon or spoyl Aegypt till they oppressed Israel Nor did he bring the Iews by pure Force to possess Canaan before they had purchased Sechem or Machpela with such a Legal Seisin as might warrant Force or Forcible Disseisors that so held Possession against the true Owners And what ever Force may appear in pulling down of Babylon I do not Read or Know that the new Temple or the new Ierusalem shall be built with Violence or by Violent Men that may ruffle much in forcing Babylon But they may perish by the Sword that use it most Moses was the meekest Man alive yet he had a special Commission that was a Patent sealed with the Arms and Impress of Heaven to ruine or impoverish Aegypt He pulled down indeed but he raised little but a Tabernacle Only a Shadow of good things to come And it must be abolished by him that was typified by Ioshua For Moses could not bring them into Rest altho by Force and a mighty Hand he brought them out of Aegypt David was a Warriour and a mighty puller down He cut off the Head of Goliah and weakened all the Philistins he threshed Ammon Moab was his Washpot and over Edom he casts his Shoe He shall be brought into the strong City and shall harrow Edom and sow it with Salt or cut off all the
Beasts which in Ezechiel's Mircavah the Jews will have to be the Emblems of the four great Monarchies in Daniel even these four Beasts and the Elders of Presbyters with all the Angels of Heaven and all the Creatures of Heaven and Earth and of the Sea and under the Earth how long or how far this may reach I know not all shall fall down about the Throne giving Honour and Blessing and Praise to him that sitteth on the Throne and to the Lamb for ever and ever And the four Beasts again in special say Amen There is much spoken of a Personal Reign of Christ upon Earth I do not affirm it yet I believe there is more much more for it then I have yet seen in any of the many Writers on Daniel or the Revelation And beside the Judgment of so many if not all the Orthodox in Iustin Martyr's time there be some very antient almost Apostles that relate how our Saviour himself discoursed of this Kingdom which the Acts do but Intimate But for my part I do acknowledg my self to be so ambitious as to expect somewhat much higher and better then his bodily Presence which yet I long for as the Captive hasteth to be loosed But this would please or profit little without Life and Power and Real Light above our Doubts Disputes or Demonstrations Nor would this much profit man or please God I think without true Love proportionate to such a Light The first Paradice had one River parted into four Streams and one Tree of Knowledg but of Evil rather than Good The new Paradice shall have many Rivers of Knowledg to cover the Earth and many Trees of Knowledg also whose very Leaves shall heal the Nations what then shall their Fruit be but Resurrection from the Dead I see so much of this vain World that I cannot but earnestly desire and long for a new Earth and for new Heavens but yet I should not value or desire them much were it not that in these I hope to see more Iustice and more Mercy Is not that the World to come of which the Hebrews and our Saviour speak as pardoning all but one Sin The Phrase is common with the Jews who do expect it on Earth and the Prophets make it a pardoning World to come so that the Inhabitants shall not say they are Sick for their Iniquities shall be forgiven I must confess my Hope is that he that bid us still forgive so much that we might be like our Father meaneth himself to forgive very much being himself the Founder and great Patron of that great Order of Christians whose Badg is this Conquer thy self and others Evil by doing Good Elijah must level his Way and many if not all the Antients thought Elijah yet to come which our Saviour also seemeth to intimate with that at his Transfiguration And the Jews repeat the Verse of the Prophet Malachi which seemeth also to speak of two Days and all Elijah's Work was hardly fulfilled at Christ's first Coming However when that Levelling is over and past the Lamb shall come of another Spirit For the Son of Man came not to destroy but save He is the Prince of Peace And when he shall come to Conquer He will come on a White Horse and shall ride on Prospering because of Meekness with Truth and Righteousness He will have Mercy and not Sacrifice and that will please him more than all burnt Offerings He will make our Officers Peace and our Exactors Righteousness For Violence shall be no more But a King shall Rule in Judgment and a Man shall be an hiding Place from Storm and Tempest I will hear what the Lord God will speak For he will speak Peace as well as Truth to his People and to his Saints that they may no more return to Folly or have Cause to Blush Mercy and Truth shall meet together Righteousness and Peace shall kiss each other Truth shall spring out of the Earth but Mercy this the Jews called Righteousness shall come down from Heaven for the Kingdom of God confisteth in Peace and Ioy as well as Righteousness For the Fruit of Righteousness is Peace and Assurance for ever being sown in Peace of them that make Peace Such is the Wisdom from above and such are the Fruits of the Holy Spirit What shall we say then to the Messenger of the Nation or to the Angel spoyling Edom and Babylon What That the Lord hath founded Sion and the Poor of his People shall trust in it He will leave an afflicted poor People and they shall trust in the Name of the Lord and then will he give them a pure Language that they may all call upon him with one Consent Thou hast indeed smitten Edom and Babylon Let not thine Heart lift thee up for why wilt thou meddle to thine own Ruine that thou shouldest also fall thou and all Juda with thee Shall the Sword devour for ever Knowest thou not that it will be Bitterness in the latter end How long shall it be then ere thou bid the People return from persuing their Brethren Again and yet again I bow my Soul and Pray and humbly Beg That all may be both Iust and Iustly done Not with Justice only but with Pitty and great Compassion and much Mercy for in many things we fail all I say that the Commons also failed to the Common-wealth But to speak freely altho I will not Judg the Commons yet I cannot Justifie that House but I must also Condemn what was lately done to them also even to the House of Commons by that Army which hath often been acknowledged to have both served and saved them from Ruine or Slavery I desire not to dispute matter of Fact nor can I Judg it It is true that by express Law besides all of Reason and Nature there should be no Force of Arms near or so much as in appearance of overawing the Parliament and I looked on it as an heavy Charge on some that perswaded the Scots or the Northern Army to look as if they would have moved towards the City and Parliament against its Will Nor can we forget it was so late that the House voted it Treason to act by Command of Parliament under a visible Force But how shall wee know or discern this visible Force They may be Free under that which I may think a Force and therefore I must believe them to be Free unless they declare themselves to be Forced For by Judging what is the Priviledg of Parliament I may certainly break their Priviledg while I inveigh against others for so doing and by this incur the Danger of those that Judg before the time or out of Place for I suppose I see 100 of the Commons seized and secured I cannot Judg it a Breach of Priviledg because I know not but it might be done by the Command Order or Consent of Parliament till it declare the contrary Or if not by Order of Parliament yet it may be by some
a Common Council in his time and before In the same Laws this William whom some call the Conquerour granteth that Cities Burroughs Castles Hundreds and Wapentakes should be so kept and watched as the Sheriffs Aldermen c. should best order for the good of the Kingdom per Commune concilium by such Common Council and a little after giveth this Reason Because they were founded for publick defence of the Kingdom and People thereof idcirco observari debent cum omni libertate integritate ratione a very happy Trinity And for Service with such Arms as were by Common Council assessed The same King called the Conqueror hath indeed such a Law That all Earls Barons Knights c. should have and keep themselves in Arms and Horses as it became and behoved them So much of this Law the King's Declaration cited for the Commission of Array But the following Words of that Law quite dash such Array for the Close of all is according to what they ought to us by their Fees and Tenure to do by Law sicut eis statuimus per commune Concilium Totius Regni Even by Parliament for the Common Council of the whole Kingdom These Laws of King William with the Additions and Emendations of the Confessor's were afterwards confirmed by King Henry the 1 st as appeareth by his Charter not only in the Exchequer but in other Places also besides that we have in Matthew Paris a Copy of which was kept in every County And the same Charter was again confirmed by King Iohn they know it may be proved and again by King Henry the 3 d. and so it came into the great Charter and by Consequence Confirmed in more than thirty Parliaments In which also there hath often been most especial Care of this touching the Militia being one of the main Causes of those Statutes entituled Confirmationes Chartarum and of those De Tallagio non concedendo except by common Consent in Parliament besides many later Statutes in King Edward the 3 d. and Henry the 4 th with other Times I deny not that in Henry the 4 th there did issue out a Commission of Array But it is as true that in the last Parliament of the same King Henry the 4 th it was again declared as the undoubted Right of this Kingdom not to be charged with ought for Defence of the Realm or Safeguard of the Seas but by their own Will and Consent in Parliament By which we may learn how to interpret all the Precedents acted by the King for his Array and by how much the more is it true that some Commissioners of Array have been confirmed by Parliament which is always needful to Confirm any such Array Which yet is not proved ever to be Paralelld in any Parliament for ought I can find For in all yet seen there is no such boundless Authority given to two or three Strangers or others to compel all Men but themselves to provide and bear Arms how and when and where it shall seem good to such Commissioners Which at once seemeth to Dissolve all Laws of Liberty Which by the Mirrour with other old Lawyers is chiefly placed in this not to be tyed to any Man but by ones own Consent In explaining of which they are Large in shewing how the Tenures of the Crown were appointed for Defence of the Kingdom and none tyed to Service but according to this Tenure which was assessed by Common Consent And if such Commissions of Array might be Legal from the King Escuage is so far from the worst or hardest Tenure as it was commonly thought that it would prove the best and easiest in all the Kingdom For if the Escuage be uncertain by Tenure None that hath read so much as Littleton can be Ignorant that by the Commom Law and Custom of the Kingdom it is not to be assessed by the King or any other but by Common assent in Parliament which hath now done much to settle this also And if Certain then is the King as really limited as the Tenant So that the King cannot command or require his Tenant but according to his Tenure expressed Not when he will For it must only be in time of War and this is not to be determined by the King but by the Courts of Iustice. When they are open as appeareth by all the Law-Books in the Case of Roger Mortimer Thomas Earl of Lancaster and divers others Nor in all times of War but only in a Voyage Royal to which Escuage is most properly tyed and this must not be determined by the King who may be a Child Sick Incomposed nor by his Marshal or Constable but by the Courts of Justice Nor in a Voyage Royal as long as the King may please But according to the Tenure usually forty Days for each Knights Fee and it hath been demurred in Law when those forty Days should begin They are Littleton's own Words and very Pregnant as if he thought that by Law the King could have no Host or Muster but by Consent of the Commons and he was as like to know our Laws as most Men living now Nor is the Tenant to serve but according to his Tenure in Gascoyn Wales Ireland Scotland to which Escuage proper but rather from the Scute or Shield and the Books have divers Cases where the King hath required Service denyed by Limits in Tenures which the Courts of Iustice especially Parliament in all Ages did determine Nor is the King to determine how the Knights shall serve him whether in Person or not For this is by Law at the Tenants Choice And if the Knight or his Proxy will not attend or stay out his Time yet cannot the King proceed against him but in a Court of Iustice and not by Marshal Law Yet the Marshal's Certificate is a Legal Evidence that the Tenants did not appear in Service but his Reasons must be heard with all just Pleas. Nor with what Arms or Horses the Tenants may serve all is expresly limited if the Tenure be certain and if not Certain it must as all Lawyers know be assessed by Parliament which did also at first establish that which now is Certain Nor would it be difficult for a mean Historian to shew how in all Ages the Militia was as well disposed and managed as it was Moulded by Common Consent which is very considerable and the rather because all that wrot for the Array did most or only run out in this That the King had the sole disposal of the Militia not attending that if this had been proved which never was that I know yet this was only but half and it may be the least half of the Question For by that strange Commission of Array the King did not only challenge the Right of Disposal of the Legal Militia already setled but also of Moulding and Making a new Militia not yet made or ever thought of that I could learn by any of our Ancestors If I were forced to enter the
in Parliament Which was the Receiving of Petitions As the Rolls of most times witness It being the old Mode and others accounted it somewhat against Reason that Petitions should be taken and brought into the House by those that were to debate and determine them and so might at pleasure keep them Out or too hastily might press them in Whereas they were to be filled up in course and so to be debated as they were received which was therefore entrusted to the care of known and sworn Officers of the Kingdom Although of late their work in Parliament be so strangely degenerate from that it was of old when also beside Receivers there were some appointed for Tryers of Petitions who as it seemeth were to enquire of matter of Fact expressed in the Petition that it might be cleared and rightly stated before it came to be debated in full Parliament I do not deny but these Triers of Petitions were most frequently some of the Bishops and other Barons But by this I am not convinced that the Lords had by Right and Legislative Power or were the sole Determinors of all Petitions as some would infer or that they were the sole Judges except also the Petty Jury that are Tryers of Fact shall be esteemed the sole Judges of Matters of Law And yet I shall not deny but Petitions concerning abuses or errors in Judicature were often deermined by the Lords as the great Judges but of error in the King's Bench as Judges above the King as was shewed before or from the Exchequer In Queen Ellzabeths Time for the seldom meeting or great Affairs of Parliament the Writs of Error from the King's Bench were by special Act of Parliament to be brought before the Judges of the Common Pleas and Barons of the Exchequer and by them to be determined But with these express Limitations as the Law shall require other than for Errors to be assigned or found for or concerning the Iurisdiction of the said Court of Kings Bench or for want of form in any Writ Process Verdict c. and that after all the Records and all concerning them be remanded to the King's Bench as well for execution as otherwise as shall appertain and with this express Proviso That any Party agrieved by such Iudgment in the Exchequer shall and may sue in Parliament for a further and due Examination By which I do not see such Parties agreed were absolutely tied to Petition the Lords onely although it were onely in a Case judicial Yet I deny not but in Edward the 3d. there was a Committee made of a Bishop two Earls and two Barons to hear and determine all Petitions complaining of Delays or Grievances in Courts of Justice But with great Limitations so that they must send for the Records and Judges which were to to be present and be heard and then by good advice of the Chancellor Treasurer Judges and other of the Council to make an Accord yet so that all be remanded to the Judges before whom the Cause did first depend who were then to proceed to Judgment according to the Accord of the said Committee And in Case it seemed to them to be such as might not well be determined but in full Parliament that then the said Records or Tenors should be brought by the said Commitee to the next Parliament it being the Common Law of the Kingdom and so expressed in all the old Books that all new unwonted difficult matters of consequence should still be brought and submitted to the Judgment of full Parliament so that all our Iudges did and ought to respit such Causes till the next Parliament of which there be almost innumerable Precedents in all the Rolls Nay in Richard the 2d there was a Committee of Lords and Commons appointed to hear and determine all Petitions present in that Parliament But afterwards it was adjudged and declared That such a Commission ought not to be given committing or betraying the High Power of Parliament into a few private hands as we may learn out of Henry the 4th beside other times Yet the Modi of Parliament admit that some extraordinary Cases where the Estates could not agree or the greater part of the Knights Proctors Citizens c. There by consent of the whole Parliament the Matter might be compromised to 25. chosen out of all Degrees and to fewer till at length it might come to 3. who might determine the Case except that being written it were corrected by Assent of Parliament and not otherwise And this seemeth to be the Law of Nature and right Reason That Delegates should not delegate others which was one reason why the Commons never made Pracies as the Lords did Nor might any Committee so determine but there might be Appeal from it to the Parliament Nor doth the Parliament it Self conclude so but that there may be Appeal from its self to its self even to its Iustice if it erre or at least to its mercy by some motion or Petition In one Parliament of Richard the 2d it was Enacted that no man condemned by Parliament should move for Pardon but another Parliament 10 years after did annul this Branch as unjust unreasonable and against the Law and Custom of Parliament For from this which is the highest here there still lieth Appeal from its Self to its Self For which also by the Laws and Customs of the Kingdom there were to be frequent Parliaments that so the errors or omissions of one being still human and therefore errable might be corrected and amended in another By express Statutes of Edw. the 3d. we are to have Parliaments once every year and oftner if need be They were of Old three or four times a year as may be found in all the Old Historians speaking of the great Feats in the Militia in King Alfred's Time they were to be twice a year and that at London as the Mirror affirmeth which we compared with the Laws of the Confessor And I speak also of King Edgars and Canutes Laws for the Celeberrimus Conventus ex qualibet Satrapta which the Great Iudg applieth to the Parliament Eternity it self would be a Burthen unto him that is not pleased with his Being so would Omnipotence to him that is unhappy in his acting It was therefore goodness in God to limit man as well in Doing as in Being It was also the Wisdom of our Ancestors to bound and limit out the Being Acting and continuing not onely of other Judges but also of Parliaments Yet the Old Modi of Parliament agree in this That a Parliament should not be Dissolved till all Petitions were discussed and answered and that after all there should be Proclamation made in some open place whether any had a Petition or just Address to the Parliament and if none replied then it was to be Dissolved I need not shew the Care of our Ancestors or former Parliaments for most strict observation of their own good Orders and Customs of Parliament which are such so just and reasonable that they well deserve a peculiar Discourse by themselves and suppose it not impossible to clear them more by the practice and consent of most Ages in this Kingdom which might also be useful for the Times to come And although it might be possible to find some of their old custome fit to be changed yet my hope is they will retain and observe such Rules of right Reason good Orders and Customs as may still make this an Happy Nation and that they will be mindful of their great Trust for which they are accountable And however it may be in this World yet they also must be judged at his coming who shall bring every Work into Iudgment with every secret Thing whether it be good or whether it be evil And I am not ashamed both to long and pray for his coming who is King of Kings and Lord of Lords The Prince of Salem that is Peace as well as King of Righteousness Melchizedek the Lamb upon the white Thone All the Creation groaneth and the Spirit and the Bride saith come Lord Iesus come quickly FINIS