Barons made an Ordinance touching the Exemption of the Abby of Bury from the Bishops of Norwich In the tenth year of the Conquerour Episcopi Comites Barones regni regia potestate ad universalem Synodum pro causis audiendis tractandis convocati saith the Book of Westminster In the 2 year of William 2. there was a Parliament de cunctis regni Principibus another which had quosque regni proceres All the Peers of the Kingdom In the seventh year was a Parliament at Rockingham-Castle in Northampton-shire Episcopis Abbatibus cunctique regni Principibus una coeuntibus A year or two after the same King de statu regni acturus c. called thither by the Command of his Writ the Bishops Abbots and all the Peers of the Kingdom At the Coronation of Hen. 1. All the People of the Kingdom of England were called and Laws were then made but it was Per Commune Concilium Baronum meorum by the Common Councel of my Barons In his third year the Peers of the Kingdom were called without any mention of the Commons and another a while after consensu Comitum Baronum by the consent of Earls and Barons Florentius Wigoriensis saith these are Statutes which Anselme and all the other Bishops in the Presence of King Henry by the assent of his Barons ordained and in his tenth year of Earls and Peers and in his 23. of Earls and Barons In the year following the same King held a Parliament or great Councel with His Barons Spiritual and Temporal King Hen. 2. in his tenth year had a great Councel or Parliament at Clarendon which was an Assembly of Prelates and Peers 22. Hen. 2. saith Hovenden was a great Councel at Nottingham and by the Common Councel of the Archbishops Bishops Earls and Barons the Kingdom was divided into six parts And again Hovendeâ—… saith that the same King at Windsor apud Windâ—… shores Communi Concilio of Bishops Earls and Barons divided England into four Parts And in hiâ—… 21 year a Parliament at Windsor of Bishops Earlâ—… and Barons And another of like Persons at Northampton King Richard 1. had a Parliament at Nottingham in his fifth year of Bishops Earls and Barons Thiâ—… Parliament lasted but four days yet much was donâ—… in it the first day the King disseiseth Gerard de Canvil of the Sherifwick of Lincoln and Hugh Bardolâ—… of the Castle and Sherifwick of York The second day he required judgment against his Brother Iohn who was afterwards King and Hugh de Novaâ—… Bishop of Coventry The third day was granted to thâ—… King of every Plow-land in England 2 s. He required also the third part of the Service of every Knights Fâ—… for his Attendance into Normandy and all the Wooâ—… that year of the Monks Cisteaux which for that 〈◊〉 was grievous and unsupportable they fine for Moâ—…ny The last day was for Hearing of Grievancesâ—… and so the Parliament brake up And the same yeaâ—… held another at Northampton of the Nobles of thâ—… Realm King Iohn in his fifth year He and his Great mâ—…met Rex Magnates convenerunt and thâ—… Roll of that year hath Commune Concilium Bâ—…ronum Meorum the Common Councel of my Baronâ—… at Winchester In the sixth year of King Henry 3. the Nobleâ—… granted to the King of every Knights Fee two Markâ—… in Silver In the seventh year he had a Parliament at London an Assembly of Barons In his thirteenth year an Assembly of the Lords at Westminster In his fifteenth year of Nobles both Spiritual and Temporal M. Par. saith that 20. H. 3. Congregati sunt Magnates ad colloquium de negotiis regni tractaturi the Great men were called to confer and treat of the Business of the Kingdom And at Merton Our Lord the King granted by the Consent of his Great men That hereafter Usury should not run against a Ward from the Death of his Ancestor 21. Hen. 3. The King sent his Royal Writs commanding all belonging to His Kingdom that is to say Arch-bishops Bishops Abbots and Priors installed Earls and Barons that they should all meet at London to treat of the Kings Business touching the whole Kingdom and at the day prefixed the whole multitude of the Nobles of the Kingdom met at London saith Mat. Westminster In his 21 year At the Request and by the Councel of the Lords the Charters were confirmed 22. Hen. 3. At Winchester the King sent his Royal Writs to Arch-bishops Bishops Priors Earls and Barons to treat of Business concerning the whole Kingdome 32. Hen. 3. The King commanded all the Nobility of the whole Kingdom to be called to treat of the State of His Kingdom Mat. Westm ' 49. Hen. 3. The King had a Treaty at Oxford with the Peers of the Kingdom M. Westminster At a Parliament at Marlborow 55. Hen. 3. Statutes were made by the Assent of Earls and Barons Here the Place of Bracton Chief Justice in thiâ—… Kings time is worth the observing and the ratheâ—… for that it is much insisted on of late to make foâ—… Parliaments being above the King The words iâ—… Bracton are The King hath a Superiour God also thâ—… Law by which he is made King also his Court viz the Earls and Barons The Court that was said iâ—… those days to be above the King was a Court of Earls and Barons not a Word of the Commons or thâ—… representative Body of the Kingdom being any paâ—… of the Superiour Court Now for the true Senâ—… of Bractons words how the Law and the Court 〈◊〉 Earls and Barons are the Kings Superiours theâ—… must of Necessity be understood to be Superiours 〈◊〉 far only as to advise and direct the King out of hiâ—… own Grace and Good Will only which appeaâ—… plainly by the Words of Bracton himself wherâ—… speaking of the King he resolves thus Nec potest 〈◊〉 necessitatem aliquis imponere quod injuriam suam corrigâ—… emendat cum superiorem non habeat nisi Deum 〈◊〉 satis ei erit ad poenam quod Dominum expectat ultoreâ—… Nor can any man put a necessity upon Him to correâ—… and amend his Injury unless he will himself sinâ—… he hath no Superiour but God it will be sufficieâ—… Punishment for him to expect the Lord an avengeâ—… Here the same man who speaking according to somâ—…mens Opinion saith the Law and Court of Earls aâ—… Barons are superiour to the King in this place telâ—… us himself the King hath no Superiour but God thâ—… Difference is easily reconciled according to the Dâ—…stinction of the School-men the King is free from tâ—… Coactive Power of Laws or Councellors but may be suâ—…ject to their Directive Power according to his owâ—… Will that is God can only compell but thâ—… Law and his Courts may advise Him Rot. Parliament 1 Hen. 4. nu 79. the Commons expresly affirm Iudgment in Parliament belongs to the King and Lords These Precedents shew that from the Conquest untill a great
be Kings in Fact and Kings themselves to be but Subjects We read in Sir Roâ—…ert Cotton that towards the end of the Saxons and â—…he first times of the Norman Kings Parliaments stood 〈◊〉 Custom-grace fixed to Easter Whitsontide and Christmas and that at the Kings Court or Palace Parliaments sate in the Presence or Privy Chamber from whence he infers an Improbability to believe the King excluded His own Presence and unmannerly fâ—… Guests to bar Him their Company who gave them theâ—… Entertainment And although now a-days the Parliament sit not in the Court where the Kings housholâ—… remains yet still even to this day to shew that Parliaments are the Kings Guests the Lord Steward oâ—… the Kings Houshold keeps a standing Table to entertain the Peers during the sitting of Parliament and he alone or some from or under him as the Treasurer or Comptroller of the Kings Houshold takeâ—… the Oaths of the Members of the House of Commoâ—… the first day of the Parliament Sir Richard Sâ—…roop Steward of the Houshold of our Sovereign Lord the King by the Commandment of the Lords sitting in full Parliament iâ—… the Great Chamber put I. Lord Gomeniz and William Weston to answer severally to Accusations broughâ—… against them The Necessity of the King's Presence in Parliamenâ—… appears by the Desire of Parliaments themselves iâ—…former times and the Practice of it Sir Robert Cottoâ—… proves by several Precedents whence he concludeâ—… that in the Consultations of State and Decisions of private Plaints it is clear from all times the King wâ—… not only present to advise but to determine also Whensoever the King is present all Power of judging which is derived from His ceaseth The Votes of the Lords may serve for matter of Advice the finaâ—… Judgment is only the Kings Indeed of late years Queen Mary and Queen Elizabeth by reason of theiâ—… Sex being not so fit for publick Assemblies have brought it out of Use by which means it is comâ—… to pass that many things which were in former times acted by Kings themselves have of late been left to the Judgment of the Peers who in Quality of Judges extraordinary are permitted for the Ease of the King and in His absence to determine such matters as are properly brought before the King Himself sitting in Person attended with His great Councel of Prelates and Peers And the Ordinances that are made there receive their Establishment either from the Kings Presence in Parliament where his Chair of State is constantly placed or at least from the Confirmation of Him who in all Courts and in all Causes is Supream Judge All Judgement is by or under Him it cannot be without much less against his Approbation The King only and none but He if He were able should judge all Causes saith Bracton that ancient Chief Justice in Hen. 3. time An ancient Precedent I meet with cited by Master Selden of a judicial Proceeding in a Criminal Cause of the Barons before the Conquest wherein I observe the Kings Will was that the Lords should be Judges â—…n the Cause wherein Himself was a Party and He â—…atified their Proceeding The case was thus Earl Godwin having had a Trial before the Lords under King Hardicanute touching the Death of Alfred Son to King Ethelbert and Brother to him who was afterward Edward the Confessor had fled out of England and upon his Return with Hope of Edward the Confessor's Favour he solicited the Lords â—…o intercede for him with the King who consulting together brought Godwin with them before the King to obtain his Grace and Favour But the King â—…resently as soon as he beheld him said Thou Traytor Godwin I do appeal thee of the Death of my Brother Alfred whom thou hast most trayterously slain Then Godwin excusing it answered My Lord the King may it please your Grace I neither betrayed nor killed your Brother whereof I put my self upon the Iudgment of your Court Then the King said You noble Lords Earls and Barons of the Land who are my Liege men now gathered here together and have heard My Appeal and Godwins Answer I Will that in this Appeal between Us ye decree right Iudgment and do true Iustice. The Earls and Barons treating of this among themselves were of differing Judgments some said that Godwin was never bound to the King either by Homage Service or Fealty and therefore could not be his Traytor and that he had not slain Alfred with his own hands others said that neither Earl nor Baron nor any other Subject of the King could wage his War by Law against the King in his Appeal but most wholly put himself into the Kings Mercy and offer competent Amends Then Leofric Consul of Chester a good man before God and the World said Earl Godwin next to the King is a man of the best Parentage of all England and he cannot deny but that by his Counsel Alfred the Kings Brother was slain therefore for my part I consider that He and his Son and all we twelve Earls who are his Friends and Kinsmen do go humbly before the King laden with so much Gold and Silver as each of us can carry in our Arms offering him That for his Offence and humbly praying for Pardon And he will pardon the Earl and taking his Homage and Fealty will restore him all his Lands All they in this form lading themselves with Treasure and coming to the King did shew the Manner and Order of their Consideration to which The King not willing to contradict did ratifie all that they had judged 23 Hen. 2. In Lent there was an Assembly of all the Spiritual and Temporal Barons at Westminster for the determination of that great Contention between Alfonso King of Castile and Sancho King of Navarre touching divers Castles and Territories in Spain which was by compromise submitted to the Judgment of the King of England And the King consulting with his Bishops Earls and Barons determined it as he saith Himself in the first Person in the Exemplification of the Judgement 2 Of King Iohn also that great Controversie touching the Barony that William of Moubray claimed against William of Stutvil which had depended from the time of King Hen. 2. was ended by the Councel of the Kingdom and Will of the King Concilio regni voluntate Regis The Lords in Parliament adjudge William de Weston to Death for surrendring Barwick Castle but for that Our Lord the King was not informed of the manner of the Judgment the Constable of the Tower Allen Buxall was commanded safely to keep the said William untill he hath other Commandment from our Lord the King 4 Ric. 2. Also the Lords adjudged Iohn Lord of Gomentz for surrendring the Towns and Castles of Ardee and for that he was a Gentleman and Bannaret and had served the late King he should be beheaded and for that our Lord the King was not informed of the manner of the Iudgment the Execution thereof
Augustissimi CAROLI Secundi Dei Gratia ANGLIAE SCOTIAE FRANCIAE ET HIBERNIAE REX Bona agere mala pati Regium est Page 1 THE Free-holders GRAND INQUEST Touching Our Sovereign Lord the KING And His PARLIAMENT To which are added OBSERVATIONS UPON FORMS OF GOVERNMENT Together with Directions for Obedience to Governours in Dangerous and Doubtful Times By the Learned Sir ROBERT FILMER Knight Claudian de laudibus Stiliconis Fallitur egregio quisquis sub Principe credit Servitium Nunquam Libertas gratior extat Quà m sub Rege pio LONDON Printed in the Year MDCLXXIX The Author's PREFACE THere is a general Belief that the Parliament of England was at first an Imitation of the Assembly of the Three Estates in France therefore in order to prepare the Understanding in the Recerche we have in hand it is proper to give a brief Accompt of the mode of France in those Assemblies Scotland and Ireland being also under the Dominion of the King of England a touch of the manner of their Parliaments shall be by way of Preface 1. In France the Kings Writ goeth to the Bailiffs Seneschals or Stewards of Liberties who issue out Warrants to all such as have Fees and Lands within their Liberties and to all Towns requiring all such as have any Complaints to meet in the Principal City there to choose two or three Delegates in the name of that Province to be present at the General Assembly At the day appointed they meet at the Principal City of the Bailiwick The King 's Writ is read and every man called by name and sworn to choose honest men for the Good of the King and Commonwealth to be present at the General Assembly as Delegates faithfully to deliver their Grievances and Demands of the Province Then they choose their Delegates and swear them Next they consult what is necessary to be complained of or what is to be desired of the King and of these things they make a Catalogue or Index And because every man should freely propound his Complaint or Demands there is a Chest placed in the Town-Hall into which every man may cast his Writing After the Catalogue is made and Signed it is delivered to the Delegates to carry to the General Assembly All the Bailiwicks are divided into twelve Classes To avoid confusion and to the end there may not be too great Delay in the Assembly by the Gathering of all the Votes every Classis compiles a Catalogue or Book of the Grievances and Demands of all the Bailiwicks within that Classis then these Classes at the Aslembly compose one Book of the Grievances and Demands of the whole Kingdom This being the order of the Proceedings of the third Estate the like order is observed by the Clergy and Nobility When the three Books for the three Estates are perfected then they present them to the King by their Presidents First the President for the Clergy begins his Oration on his knees and the King commanding he stands up bare-headed and proceeds And so the next President for the Nobility doth the like But the President for the Commons begins and ends his Oration on his knees Whilst the President for the Clergy speaks the rest of that Order rise up and stand bare till they are bid by the King to sit down and be covered and so the like for the Nobility But whilst the President of the Commons speaks the rest are neither bidden to sit or be covered Thus the Grievances and Demands being delivered and left to the King and His Counsel the General Assembly of the three Estates endeth Atque ita totus actus concluditur Thus it appears the General Assembly was but an orderly way of presenting the Publick Grievances and Demands of the whole Kingdom to the consideration of the King Not much unlike the antient Usage of this Kingdom for a long time when all Laws were nothing else but the King's Answers to the Petitions presented to Him in Parliament as is apparent by very many Statutes Parliament-Rolls and the Confession of Sir Edw. Coke 2. In Scotland about twenty dayes before the Parliament begins Proclamation is made throughout the Kingdom to deliver in to the King's Clerk or Master of the Rolls all Bills to be exhibited that Sessions before a certain day then are they brought to the King and perused by Him and onely such as he allows are put into the Chancellour's hand to be propounded in Parliament and none others And if any man in Parliament speak of another matter than is allowed by the King the Chancellour tells him there is no such Bill allowed by the King When they have passed them for Laws they are presented to the King who with his Scepter put into His hand by the Chancellor ratifies them and if there be any thing the King dislikes they raze it out before 3. In Ireland the Parliament as appears by a Statute made in the Tenth year of Hen. 7. c. 4. is to be after this manner No Parliament is to be holden but at such Season as the King's Lieutenant and Councel there do first certifie the King under the Great Seal of that Land the Causes and Considerations and all such Acts as they think fit should pass in the said Parliament And such Causes and Considerations and Acts affirmed by the King and his Councel to be good and expedient for that Land And His Licence thereupon as well in affirmation of the said Causes and Acts as to summon the Parliament under His Great Seal of England had and obtained That done a Parliament to be had and holden after the Form and Effect afore rehearsed and if any Parliament be holden in that Land contrary to the Form and Provision aforesaid it is deemed void and of none Effect in Law It is provided that all such Bills as shall be offered to the Parliament there shall first be transmitted hither under the Great Seal of that Kingdom and having received Allowane and Approbation here shall be put under the Great Seal of this Kingdom and so returned thither to be preferred to the Parliament By a Statute of 3 and 4 of Philip and Mary for the expounding of Poynings Act it is ordered for the King 's Passing of the said Acts in such Form and Tenor as they should be sent into England or else for the Change of them or any part of them After this shorter Narrative of the Usage of Parliaments in our Neighbour and Fellow Kingdoms it is time the inquisitio magna of our own be offered to the Verdict or Iudgment of a moderate and intelligent Reader REFLECTIONS Concerning the ORIGINAL OF GOVERNMENT Upon I. Aristotle's Politiques II. Mr. Hobs's Leviathan III. Mr. Milton against Salmasius IV. H. Grotius De Iure Belli V. Mr. Hunton's Treatise of Monarchy VI. Another Treatise of Monarchy by a nameless Author Arist. Pol. Lib. 4. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 LONDON Printed in the Year MDCLXXIX THE ANARCHY OF A LIMITED OR MIXED Monarchy OR A
at that Election sending back unto Us the other part of the Indenture aforesaid affiled to these Presents together with this Writ Witness Our Self at Westminster By this Writ we do not find that the Commons are called to be any part of the Common Councel of the Kingdom or of the Supream Court of Iudicature or to have any part of the Legislative Power or to Consult de arduis regni negotiis of the difficult Businesses of the Kingdom The Writ only sayes the King would have Conference and Treat with the Prelates Great men and Peers but not a word of Treating or Conference with the Commons The House of Commons which doth not minister an Oath nor fine nor imprison any but their own Members and that but of late in some Cases cannot properly be said to be a Court at all much less to be a part of the Supream Court or highest Judicature of the Kingdom The constant Custom even to this day for the Members of the House of Commons to stand bare with their Hats in their Hands in the Presence of the Lords while the Lords sit covered at all Conferences is a visible argument that the Lords and Commons are not fellow Commissioners or fellow Counsellors of the Kingdom The Duty of Knights Citizens and Burgesses mentioned in the Writ is only ad Faciendum Consentiendum to Perform and to Consent to such things as should be ordained by the Common Councel of the Kingdom there is not so much mentioned in the Writ as a Power in the Commons to dissent When a man is bound to appear in a Court of Justice the words are ad Faciendum recipiendum quod ei per curiam injungetur which shews that this word Faciendum is used as a Term in Law to signifie to give Obedience For this we meet with a Precedent even as ancient as the Parliament-Writ it self and it is concerning Proceedings in Parliament 33. Ed. 1. Dominus Rex mandavit vicecom ' quod c. summon ' Nicolaum de Segrave ex parte Domini regis firmiter ei injungeret quod esset coram Domino Rege in proximo Parl. c. ad audiendum voluntatem ipsius Domini Regis c. Et ad Faciendum recipiendum ulterius quod curia Domini Regis consideraret in Praemissis Our Lord the King commands the Sheriff to summon Nicholas Segrave to appear before the Lord our King in the next Parliament to hear the Will of the Lord our King himself and to Perform and receive what the Kings Court shall further consider of the Premises Sir Ed. Coke to prove the Clergy hath no Voice in Parliament saith that by the Words of their Writ their Consent was only to such things as were ordained by the Common Councel of the Realm If this argument of his be good it will deny also Voices to the Commons in Parliament for in their Writ are the self-same words viz. to consent to such things as were ordained by the Common Councel of the Kingdom Sir Edw. Coke concludes that the Procuratores Cleri have many times appeared in Parliament as Spiritual Assistants to Consider Consult and to Consent but never had voice there how they could consult and Consent without Voices he doth not shew Though the Clergy as he saith oft appeared in Parliament yet was it only ad consentiendum as I take it and not ad faciendum for the Word Faciendum is omitted in their Writ the cause as I conceive is the Clergy though they were to assent yet by reason of Clerical Exemptions they were not required to Perform all the Ordinances or Acts of Parliament But some may think though the Writ doth not express a Calling of the Knights Citizens and Burgesses to be part of the Common Councel of the Kingdom yet it supposeth it a thing granted and not to be questioned but that they are a part of the Common Councel Indeed if their Writ had not mentioned the Calling of Prelates Great men and Peers to Councel there might have been a little better colour for such a Supposition but the Truth is such a Supposition doth make the Writ it self vain and idle for it is a senseless thing to bid men assent to that which they have already ordained since ordaining is an Assenting and more than an Assenting For clearing the meaning and sense of the Writ and Satisfaction of such as think it impossible but that the Commons of England have alwayes been a part of the Common Councel of the Kingdom I shall insist upon these Points 1. That anciently the Barons of England were the Common Councel of the Kingdom 2. That until the time of Hen. 1. the Commons were not called to Parliament 3. Though the Commons were called by Hen. 1. yet they were not constantly called nor yet regularly elected by Writ until Hen. 3. time For the first point M. Cambden in his Britania doth teach us that in the time of the English Saxons and in the ensuing Age a Parliament was called Communâ—… concilium which was saith he Praesentia Regis Praelatorum Procerumque collectorum the Presence of the King Prelates and Peers assembled No mention of the Commons the Prelates and Peers were all Barons The Author of the Chronicle of the Church of Lichfield cited by M. Selden saith Postquam Rex Edvardus c. Concilio Baronum Angliae c. After King Edward was King by the Councel of the Barons of England he revived a Law which had layen asleep threescore and seven years and this Law was called the Law of St. Edward the King In the same Chronicle it is said that Will. the Conquerour anno regni sui quarto apud Londin ' haâ—… Concilium Baronum Suorum a Councel of his Barons And of this Parliament it is that his Son Hen. 1. speaks saying I restore you the Laws of King Edward the Confessor with those amendments wherewith my Father amended them by the Councel of his Barons In the fifth year as M. Selden thinks of the Conquerour was a Parliament or Principum conventus aâ—… Assembly of Earls and Barons at Pinenden Heath iâ—… Kent in the Cause between Lanfranke the Arch-bishop of Canterbury and Odo Earl of Kent The King gave Commission to Godfrid then Bishop of Constanâ—… in Normandy to represent His own Person for Hearing the Controversie as saith M. Lambard and caused Egelrick the Bishop of Chichester an aged man singularly commended for Skill in the Laws and Customes of the Realm to be brought thither in a Wagon for his Assistance in Councel Commanded Haymo the Sheriff of Kent to summon the whole County to give in Evidence three whole dayes spent in Debate in the End Lanfranke and the Bishop of Rochester were restored to the Possession oâ—… Detling and other Lands which Odo hath withholden 21. Ed. 3. fol. 60. There is mention of a Parliament held under the same King William the Conquerour wherein all the Bishops of the Land Earls and
part of Henry the Third's Reign in whose dayes it is thought the Writ for Election of Knights was framed which is about two hundred years and above a third part of the time since the Conquest to our dayes the Barons made the Parliament or Common Councel of the Kingdom under the name of Barons not only the Earls but the Bishops also were Comprehended for the Conquerour made the Bishops Barons Therefore it is no such great Wonder that in the Writ we find the Lords only to be the Counsellours and the Commons Called only to perform and consent to the Ordinances Those there be who seem to believe that under the word Barons anciently the Lords of Court-Baâ—…ons were Comprehended and that they were Called to Parliament as Barons But if this could be proved to have been at any time true yet those Lords of Court-Barons were not the representative Body of the Commons of England except it can be also proved that the Commons or Free-holders of the Kingdome chose such Lords of Court-Barons to â—…e present in Parliament The Lords of Manors â—…ame not at first by Election of the People as Sir Edw. Coke treating of the institution of Court-Baâ—…ons resolves us in these words By the Laws and Ordinances of ancient Kings and especially of King Alâ—…red it appeareth that the first Kings of this Realm â—…ad all the Lands of England in Demean and les grand Manors and Royalties they reserved to themselves and of the remnant they for the Defence of the Realâ—… enfeoffed the Barons of the Realm with such Iurisdiction as the Court-Baron now hath Coke's Instituteâ—… First part Fol. 58. Here by the way I cannot but note that if thâ—… first Kings had all the Lands of England in Demean 〈◊〉 Sir Edward Coke saith they had And if the firâ—… Kings were chosen by the People as many thinâ—… they were then surely our Forefathers were a verâ—… bountiful if not a prodigal People to give all thâ—… Lands of the whole Kingdom to their Kings witâ—… Liberty for them to keep what they pleased and tâ—… give the Remainder to their Subjects clogg'd anâ—… cumbred with a Condition to defend the Realmâ—… This is but an ill sign of a limited Monarchy by original Constitution or Contract But to conclude thâ—… former Point Sir Edward Coke's Opinion is thâ—… in the ancient Laws under the name of Barons were comprised all the Nobility This Doctrine of the Barons being the Commâ—… Councel doth displease many and is denied aâ—…tending to the Disparagement of the Commons anâ—… to the Discredit and Confutation of their Opinioâ—… who teach that the Commons are assigned Councelloâ—… to the King by the People therefore I will call in Mâ—… Pryn to help us with his Testimony He in his Booâ—… of Treachery and Disloyalty c. proves that before thâ—… Conquest by the Laws of Edward the Confessoâ—… cap. 17. The King by his Oaths was to do Iustice 〈◊〉 the Councel of the Nobles of his Realm He also resolves that the Earls and Barons in Parliament aâ—… above the King and ought to bridle him when he exorâ—…tates from the Laws He further tells us the Peers anâ—… Prelates have oft translated the Crown from the right Heâ—… 1. Electing and Crowning Edward who was illegitimate and putting by Ethelred the right Heir after Edgars decease 2. Electing and Crowning Canutus a meer Foreigner in opposition to Edmund the right Heir to King Ethelred 3. Harold and Hardiknute both elected Kings successively without title Edmund and Alfred the right Heirs being dispossessed 4. The English Nobility upon the Death of Harold enacted that none of the Danish bloud should any more reign over them 5. Edgar Etheling who had best Title was rejected and Harold elected and crowned King 6. In the second and third year of Edw. 2. the Peers and Nobles of the Land seeing themselves contemned entreated the King to manage the Affairs of the Kingdome by the Councel of his Barons He gave his Assent and sware to ratifie what the Nobles ordained and one of their Articles was that he would thenceforward order all the Affairs of the Kingdom by the Councel of his Clergy and Lords 7. William Rufus finding the greatest part of the Nobles against him sware to Lanfranke that if they would choose him for King he would abrogate their over-hard Laws 8. The Beginning saith Mr. Pryn of the Charter of Hen. 1. is observable Henry by the Grace of God of England c. Know ye That by the Mercy of God and Common Councel of the Barons of the Kingdom I am Crowned King 9. Maud the Empress the right Heir was put by the Crown by the Prelates and Barons and Stephen Earl of Mortain who had no good Title assembling the Bishops and Peers promising the amendment of the Lawâ—… according to all their Pleasures and Liking was by thâ—… all proclaimed King 10. Lewis of France Crowned King by the Barons in stead of King John All these Testimonies from Mr. Pryn may satisfie that anciently the Barons were the Common Councel or Parliament of England And if Mr. Pryn could have found so much Antiquity and Proof for thâ—… Knights Citizens and Burgesses being of the Common Councel I make no doubt but we should have heard from him in Capital Characters but alas he meets not with so much as these Names in those elder Ages He dares not say the Barons were assigned by the People Councellors to the King for he tells us every Baron in Parliament doth represent hiâ—… own Person and speaketh in behalf of himself alone but in the Knights Citizens and Burgesses are represented the Commons of the whole Realm therefore every one of the Commons hath a greater voice in Parliament than the greatest Earl in England Nevertheless Masteâ—… Pryn will be very well content if we will admiâ—… and swallow these Parliaments of Barons for the representative Body of the Kingdom and to that Purpose he cites them or to no Purpose at all But to prove the Treachery and Disloyalty of Popish Parliaments Prelates and Peers to their Kings which iâ—… the main Point that Master Pryn by the Title of hiâ—… Book is to make good and to prove As to the second Point which is That untill the time of Hen. 1. the Commons were not called to Parliament besides the general Silence of Antiquity which never makes mention of the Commons Coming to Parliament untill that time our Histories say before his time only certain of the Nobility were called to Consultation about the most important affairs of the State He caused the Commons also to be assembled by Knights Citizens and Burgesses of their own Appointment much to the same Purpose writes Sir Walter Raleigh saying it is held that the Kings of England had no formal Parliaments till about the 18th year of King Hen. 1. For in his Third year for the Marriage of his Daughter the King raised a Tax upon every Hide of Land by the Advice of His Privy Councel alone And
Knights Citizens and Burgesses 4. The Penalty of 40 l for Maiors or Bayliffs making untrue Returns 5. Due Election of Knights must be in the full County-Court between the Hours of Eight and Eleven before noon 6. The Party must begin his Suit within 3 Moneths after the Parliament began 7. Knights of the Shire shall be notable Knights of the County or such notable Esquires or Gentlemen born of the said Counties as shall be able to be Knights and no man to be such Knight which standeth in the Degree of a Yeoman and under The last thing I observe in the Writ for Election of Members for Parliament is That by the express words of the Writ Citizens and Burgesses for the Parliament were eligible at the County-Court as well as Knights of the Shire and that not only Free-holders but all others whosoever were present at the County-Court had Voices in such Elections see the Stat. 7. Hen. 4. cap. 15. I have the longer insisted on the Examination of the Writ being the Power and Actions of the House of Commons are principally justified by the Trust which the Free-holders commit unto them by virtue of this Writ I would not be understood to determine what Power the House of Commons doth or may exercise if the King please I confine my self only to the Power in the Writ I am not ignorant that King Hen. 7. in the Cause of the Duke of Britain and King Iames in the Business of the Palatinate asked the Councel of the House of Commons and not only the House of Commons but every Subject in particular by Duty and Allegiance is bound to givâ—… his best Advice to his Sovereign when he is thoughâ—… worthy to have his Councel asked 13. Edw. 3. nu 10. All the Merchants of England were summoned by Writ to appear at Westminster in proper Person to confer upon great business concerning the Kings Honour the Salvation of the Realâ—… and of themselves In Passages of publick Councel it is observable saith Sir Rob. Cotton that in ancient times the Kings of England did entertain the Commons with weighty Causes thereby to apt and bind them to a readiness of Charge and the Commons to shun Expence haâ—… warily avoided to give Advice 13. Edw. 3. The Lords and Commons were called to consult how the domestick Quiet may be preserved the Marches of Scotland defended and thâ—… Sea secured from Enemies The Peers and Commons having apart consulted the Commons desired Not to be charged to Councel of things of whicâ—… they had no Cognisance de queux ils n' ont pas de Cognisance 21. Edw. 3. Justice Thorp declaring to the Peeâ—… and Commons that the French War began by theiâ—… Advice the Truce after by their Assent accepted and now ended the Kings Pleasure was to havâ—… their Counsel in the Prosecution the Commons being commanded to assemble themselves and when they were agreed to give notice to the King and the Lords of the Councel after four days Consultation Humbly desire of the King that he would be advised therein by the Lords and others of more Experience than themselves in such Affairs 6. Ric. 2. The Parliament was called to consult whether the King should go in Person to rescue Gaunt or send an Army The Commons after two dayes Debate crave a Conference with the Lords and Sir Thomas Puckering their Speaker protests that Councels for War did aptly belong to the King and His Lords yet since the Commons were commanded to give their Advice they humbly wished a Voyage by the King 7. Ric. 2. At the second Session the Commons are willed to Advise upon View of Articles of Peace with the French whether War or such Amity should be accepted they modestly excuse themselves as too weak to Counsel in so weighty Causes But charged again as they did tender their Honour and the Right of the King they make their Answer giving their Opinions rather for Peace than War For fuller Manifestation of what hath been said touching the Calling Election and Power of the Commons in Parliament it is behooful to observe some Points delivered by Sir Edw. Coke in his Treatise of the Jurisdiction of Parliaments where First he fairly begins and lays his Foundation that the High Court of Parliament consisteth of the Kings Majesty sitting there and of the three Estates 1. The Lords Spiritual 2. The Lords Temporal 3. And the Commons Hence it is to be gathered that truly and properly it cannot be called the High Court of Parliament but whilst the King is sitting there in Person so that the Question now a days whether the Parliament be above the King is either false or idle false if you exclude and idle if you include the King's Person in the word Parliament The case truly put and as it is meant is whether the three Estates oâ—… which is all one the Lords and Commons assembled in Parliament be above the King and not whether the King with the three Estates be above the King It appears also that they are much mistaken who reckon the King one of the three Estates as Mr. Pryn pag. 20. and many others do for the three Estates make the Body and the King is Caput Principium finis Parliamentor as confesseth Sir Edw. Coke Secondly Sir Edw. Coke delivers That certain it is both Houses at first sate together and that it appears in Edward the Third's time the Lords and Commons satâ—… together and the Commons had no continual Speaker If he mean the Lords and Commons did sit and Vote together in one Body few there be that will believe it because the Commons never were wont to lose or forego any of their Liberties or Privileges and for them to stand now with their Hats in their hands which is no Magistratical Posture there where they were wont to sit and Vote is an alteration not imaginable to be indured by the Commons It may be in former times when the Commons had no constant Speaker they were oft and perhaps for the most part in the same Chamber and in the presence of the Lords to hear the Debates and Consulations of the Great Councel but not to sit and Vote with them for when the Commons were to Advise among themselves the Chapter-house of the Abby of Westminster was oft-times their place to meet in before they had a settled House and their meetings not being very frequent may be the reason I conceive why the name of the House of Commons is not of such great Antiquity or taken notice of but the House of Lords was only called the Parliament-House and the Treatise called Modus tenendi Parliamentum speaks of the Parliament as but of one House only The House where now the Commons sit in Westminster is but of late Use or Institution for in Edward the Sixth's dayes it was a Chappel of the Colledge of Saint Stephen and had a Dean Secular Canons and Chorists who were the Kings Quire at his Palace at
shall be respited untill our Lord the King shall be informed It is commanded to the Constable of the Tower safely to keep the said John untill he hath other commandement from our Lord the King In the case of Hen. Spencer Bishop of Norwich 7 Ric. 2. who was accused for complying with the French and other Failings the Bishop complained what was done against him did not pass by the Assent and Knowledge of the Peers whereupon it was said in Parliament that The cognisance and Punishment of his Offence did of common Right and antient Custom of the Realm of England solely and wholly belong to Our Lord the King and no other Le cognisance punissement de commune droit auntienne custome de Royalme de Engleterre seul per tout apperteine au Roy nostre Seignieur a nul autre In the case of the Lord de la Ware the Judgment of the Lords was that he should have place next after the Lord Willoughby of Erisbe by consent of all except the Lord Windsor and the Lord Keeper was required to acquaint Her Majesty with the Determination of the Peers and to know her Pleasure concerning the same The Inference from these Precedents is that the Decisive or Iudicial Power exercised in the Chamber of Peers is merely derivative and subservient to the Supreme Power which resides in the King and is grounded solely upon his grace and favour for howsoever the House of Commons do alledge their Power to be founded on the Principles of Nature in that they are the Representative Body of the Kingdom as they say and so being the whole may take care and have power by Nature to preserve themselves yet the House of Peers do not nor cannot make any such the least Pretence since there is no reason in Nature why amongst a company of men who are all equal some few should be picked out to be exalted above their Fellows and have power to Govern those who by Nature are their companions The difference between a Peer and a Commoner is not by Nature but by the grace of the Prince who creates Honours and makes those Honours to be hereditary whereas he might have given them for life onely or during pleasure or good behaviour and also annexeth to those Honours the Power of having Votes in Parliament as hereditary Counsellours furnished with ampler Privileges than the Commons All these Graces conferred upon the Peers are so far from being derived from the Law of Nature that they are contradictory and destructive of that natural equality and freedom of mankind which many conceive to be the foundation of the Privileges and Liberties of the House of Commons there is so strong an opposition between the liberties of Grace and Nature that it had never been possible for the two Houses of Parliament to have stood together without mortal Enmity and eternal jarring had they been raised upon such opposite foundations But the truth is the Liberties and Privileges of both Houses have but one and the self same foundation which is nothing else but the meer and sole Grace of Kings Thus much may serve to shew the Nature and Original of the deliberative and decisive Power of the Peers of the Kingdom The matter about which the deliberative power is conversant is generally the Consulting and Advising upon any urgent Business which concerns the King or Defence of the Kingdom and more especially sometimes in preparing new Laws and this Power is grounded upon the Writ The décisive Power is exercised in giving Judgment in some difficult Cases but for this Power of the Peers I find no Warrant in their Writ Whereas the Parliament is styled the Supreme Court it must be understood properly of the King sitting in the House of Peers in Person and but improperly of the Lords without him Every Supreme Court must have the Supreme Power and the Supreme Power is alwayes Arbitrary for that is Arbitrary which hath no Superiour on Earth to controlâ—… it The last Appeal in all Government must still bâ—… to an Arbitrary Power or else Appeals will bâ—… in Infinitum never at an end The Legislative Power is an Arbitrary Power for they are termini convertibiles The main Question in these our dayes is Where this Power Legislative remains or is placed upon conference of the Writs of Summons for both Houses with the Bodies and Titles of our Ancient Acts of Parliament we shall find the Power of making Laws rests solely in the King Some affirm that a part of the Legislative Power is in either of the Houses but besides invincible reason from the Nature of Monarchy it self which must have the Supreme Power Alone the constant Antient Declaration of this Kingdom is against it For howsoever of later years in the Titles and Bodies of our Acts of Parliament it be not so particularly expressed who is the Author and Maker of our Laws yet in almost all our elder Statutes it is precisely expressed that they are made by the King Himself The general words used of later times that Laws are made by Authority of Parliament are particularly explained in former Statutes to mean That the King Ordains the Lords Advise the Commons Consent as by comparing the Writs with the Statutes that expound the Writs will evidently appear Magna Charta begins thus Henry by the grace of God Know ye that WE of Our Meer and Free Will have given these Liberties In the self-same style runs Charta de Foresta and tells us the Author of it The Statute de Scaccario 41 H. 3. begins in these words The King Commandeth that all Bailiffs Sheriffs and other Officers c. And concerning the Justices of Chester the King Willeth c. and again He Commandeth the Treasurer and Barons of the Exchequer upon their Allegiance The Stat. of Marlborough 52 Hen. 3. goeth thus The King hath Made these Acts Ordinances and Statutes which He Willeth to be Observed of all his Subjects high and low 3 Edw. 1. The Title of this Statute is These are the ACTS of King EDWARD and after it follows The KING hath Ordained these ACTS and in the first Chapter The King Forbiddeth and Commandeth That none do hurt damage or grievance â—…o any Religious Man or Person of the Church and in the thirteenth Chapter The King prohibiteth that none do Ravish or take away by force any Maid within age 6 Edw. 1. It is said Our Sovereign Lord the King hath established these Acts commanding they be â—…bserved within this Realm and in the fourteenth Chap. the words are The King of his special Grace granteth that the Citizens of London shall recover in an Assise Damage with the Land The Stat. of West 2. saith Our Lord the King hath ordained that the Will of the Giver be observed and in the 3. Chap. Our Lord the King hath ordained that a woman after the Death of her Husband shal recover by a Writ of Entry The Stat. of Quo Warranto saith Our Lord
not thereby lose his Authority to be Judge himself when he pleased even in the smallest matters much less in the greatest which he reserved to himself so Kings by delegating others to judge under them do not thereby denude themselves of a Power to judge when they think good There is a Distinction of these times that Kings themselves may not judge but they may see and look to the Iudges that they give Iudgment according to Law and for this Purpose only as some say Kings may sometimes sit in the Courts of Justice But it is not possible for Kings to see the Laws executed except there be a Power in Kings both to judge when the Laws are duely executed and when not as also to compell the Judges if they do not their Duty Without such Power a King sitting in Courts is but a Mockery and a Scorn to the Judges And if this Power be allowed to Kings then their Judgments are supream in all Courts And indeed our Common Law to this Purpose doth presume that the King hath alâ—… Laws within the Cabinet of His Breast in Scrinio pectoris saith Crompton's Jurisdiction 108. When several of our Statutes leave many things to the Pleasure of the King for us to interpret all those Statutes of the Will and Pleasure of the Kings Iustices only is to give an absolute Arbitrary Power to the Justices in those Cases wherein we deny it to the King The Statute of 5 Hen. 4. c. 2. makes a Difference between the King and the Kings Iustices in these words Divers notorious Felons be indicted of divers Felonies Murders Rapes and as well before the Kings Iustices as before the King himself arreigned of the same Felonies I read that in An. 1256. Hen. 3. sate in the Eâ—…chequer and there set down Order for the Appearance Sheriffs and bringing in their Accounts there wâ—… five Marks set on every Sheriffs Head for a Fine bâ—…cause they had not distrained every Person that migâ—… dispend fifteen pounds Lands by the Year to receive tâ—… Order of Knighthood according as the same Sherifâ—… were commanded In Michaelmas Term 1462. Edw. 4. sate thâ—… dayes together in open Court in the Kings Bench. For this Point there needs no further Proofs bâ—…cause Mr. Pryn doth confess that Kings themselvâ—… have sate in Person in the Kings Bench and other Couâ—… and there given Iudgment p. 32. Treachery and Dâ—…loyalty c. Notwithstanding all that hath been said for tâ—… Legislative and Judicial Power of Kings Mr. Pryâ—… is so far from yielding the King a Power to maâ—… Laws that he will not grant the King a power to hinder a Law from being made that is 〈◊〉 allows Him not a Negative Voice in most case which is due to every other even to the Meaâ—…est Member of the House of Commons in his Judgment To prove the King hath not a Negative Voice 〈◊〉 main and in truth his only Argument insisted oâ—… is a Coronation-Oath which is said anciently soâ—… of our Kings of England have taken wherein thâ—… grant to defend and protect the just Laws and Customâ—… which the Vulgar hath or shall chuse Iustas Legâ—… Consuetudines quas vulgus elegerit Hence Mâ—… Pryn concludes that the King cannot deny any Iaâ—… which the Lords and Commons shall make choâ—… of for so he will have vulgus to signifie Though neither our King nor many of His Predecessors ever took this Oath nor were bound to â—…ake it for ought appears yet we may admit â—…hat our King hath taken it and answer we may be confident that neither the Bishops nor Privy Councel nor Parliament nor any other whosoever they were that framed or penn'd this Oath ever intended in this word Vulgus 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 Epithet 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 it being most false for the Peers cannot be Vulgus because they are the prime Persons of the Kingdom next the Knights of the Shires are or ought to be notable Knights or notable Esquires or Gentlemen born in the Counties as shall be able to be Knights then the Citizens and Burgesses are to be most sufficient none of these can be Vulgus even those Free-holders that chuse Knights are the best and ablest men of their Counties there being for every Free-holder above ten of the Common People to be found to be termed the Vulgar Therefore it rests that vulgus must signifie the vulgar or common People and not the Lords and Commons But now the Doubt will be what the Common People or vulgus out of Parliament have to do to chuse Laws The Answer is easie and ready there goeth before quas vulgus the Antecedeâ—… Consuetudines that is the Customs which the Vulghath or shall chuse Do but observe the Nature 〈◊〉 Custom and it is the Vulgus or Common People only who chuse Customs Common Usage time out 〈◊〉 mind creates a Custom and the commoner 〈◊〉 Usage is the stronger and the better is the Custom no where can so common an Usage be found 〈◊〉 among the Vulgar who are still the far greatâ—… part of every Multitude if a Custom be commoâ—… through the whole Kingdom it is all one with the Common Law in England which is said to be Common Custom Thus in plain Terms to protect the Customs which the Vulgar chuse is to swear to protect the Common Laws of England But grant that Vulgus in the Oath signifies Lordâ—… and Commons and that Consuetudines doth not signifie Customs but Statutes as Mr. Pryn for a desperate Shift affirms and let elegerit be the Future or Preterperfect Tense even which Mr. Pryn please yet it cannot exclude the Kings negative Voice for as Consuetudines goeth before quas vulgus so doth justas stand before leges consuetudines so that not all Laws but only all just Laws are meant If the sole Choice of the Lords and Commons did oblige the King to protect their Choice without Power of Denial what Need or why is the Word justas put in to raise a Scruple that some Laws may be unjust Mr. Pryn will not say that a Decree of a General Councel or of a Pope is infallible nor â—… think a Bill of the Lords and Commons is infallible just and impossible to erre if he do Sir Edward Coke will tell him that Parliaments have been utterly deceived and that in eases of greatest Moment even iâ—… case of High Treason and he calls the Statute of 11 Hen. 7. an unjust and strange Act. But it may be Mr. Pryn will confess that Laws chosen by the Lords and
Commons may be unjust so that the Lords and Commons themselves may be the Judges of what is just or unjust But where a King by Oath binds his Conscience to protect just Laws it concerns him to be satisfied in his own Conscience that they be just and not by an implicite Faith or blind Obedience no man can be so proper a Judge of the Justness of Laws as he whose Soul must lie at the Stake for the Defence and Safeguard of them Besides in this very Oath the King doth swear to do equal and right Iustice and Discretion in Mercy and Truth in all His Iudgments facies fieri in omnibus judiciis tuis aequam rectam justitiam discretionem in Misericordia Veritate if we allow the King Discretion and Mercy in his Iudgments of Necessity he must judge of the Justness of the Laws Again the clause of the Oath quas vulgus elegerit doth not mention the assenting unto or granting any new Laws but of holding protecting and strengthning with all his Might the just Laws that were already in Being there were no need of Might or Strength if assenting to new Laws were there meant Some may wonder why there should be such Labouring to deny the King a negative Voice since a negative Voice is in it self so poor a thing that if a man had all the Negative Voices in the Kingdom â—…t would not make him a King nor give him Power to make one Law a negative Voice is but a â—…ivative Power that is no Power at all to do or act any thing but a Power only to hinder the Power of another Negatives are of such a malignant or destructive Nature that if they have nothing else to destroy they will when they meet destroy one another which is the reason why two Negatives make an Affirmative by destroying the Negation which did hinder the Affirmation A King with a Negative Voice only is but like a Syllogisme of pure negative Propositions which can conclude nothing It must be an Affirmative Voice that makes both a King and a Law and without it there can be no imaginable Government The reason is plain why the Kings negative Voice is so eagerly opposed for though it give the King no Power to do any thing yet it gives him a Power to hinder others though it cannot make Him a King yet it can help him to keep others from being Kings For Conclusion of this Discourse of the negative Voice of the King I shall oppose the Judgment of a Chief Iustice of England to the Opinion of him that calls himself an utter Barister of Lincolns Inn and let others judge who is the better Lawyer of the two the words are Bracton's but concern Mr. Pryn to lay them to heart Concerning the Charters and Deeds of Kings the Iustices nor private men neither ought nor can dispute nor yet if there rise a Doubt in the Kings Charter can they interpret it and in doubtful and obscure Points or if a word contain two Senses the Interpretation and Will of Our Lord the King is to be expected seeing it is his part to interpret who makes the Charter full well Mr. Pryn knows that when Bracton writ the Laws that were then made and strived for were called the Kings Charters as Magna Charta Charta de Foresta and others so that in Bracton's Judgment the King hath not only a Negative Voice to hinder but an Affirmative to make a Law which is a great deal more than Master Pryn will allow him Not only the Law-maker but also the sole Iudge of the People is the King in the Judgment of Bracton these are his words Rex non alius debet judicare si solus ad id sufficere possit the King and no other ought to judge if He alone were able Much like the words of Bracton speaketh Briton where after that he had shewed that the King is the Viceroy of God and that He hath distributed his Charge into sundry portions because He alone is not sufficient to hear all Complaints of His People then he addeth these words in the Person of the King Nous volons que nostre jurisdiction soit sur touts Iurisdictions c. We Will that Our Iurisdiction be above all the Iurisdictions of Our Realm so as in all manner of Felonies Trespasses Contracts and in all other actions Personal or Real We have Power to yield or cause to be yielded such Iudgments as do appertain without other Process wheresoever we know the right Truth as Iudges Neither was this to be taken saith Mr. Lambard to be meant of the Kings Bench where there is only an imaginary presence of His Person but it must necessarily be understood of a Iurisdiction remaining and left in the King 's Royal Body and Brest distinct from that of His Bench and other ordinary Courts because he doth immediately after severally set forth by themselves as well the authority of the Kings Bench as of the other Courts And that this was no new-made Law Mr. Lamâ—…d puts us in mind of a Saxon Law of King Edgars Nemo in lite Regem appellato c. Let no man iâ—… Suit appeal unto the King unless he cannot get Right aâ—… home but if that Right be too Heavy for him then lâ—… him go to the King to have it eased By which iâ—… may evidently appear that even so many years agâ—… there might be Appellation made to the Kings Persae whensoever the Cause should enforce it The very like Law in Effect is to be seen in the Laws of Canutus the Dane sometimes King of thâ—… Realm out of which Law Master Lambard gatheâ—… that the King Himself had a High Court of Iustia wherein it seemeth He sate in Person for the words bâ—… Let him not seek to the King and the same Court â—… the King did judge not only according to meeâ—… Right and Law but also after Equity and gooâ—… Conscience For the Close I shall end with the Suffrage â—… our late Antiquary Sir Henry Spelman in his Glossary he saith Omnis Regni Iustitia solius Regis est c. All Iustice of the Kingdom is only the King 's and Hâ—… alone if He were able should Administer it but thâ—… being impossible He is forced to delegate it to Ministers whom he bounds by the limits of the Laws the positive Laws are only about Generals in particular Cases they are sometimes too strict sometimes too remisâ—… and so oft Wrong instead of Right will be done if wâ—… stand to strict Law also Causes hard and difficult dâ—…ly arise which are comprehended in no Law-books â—… those there is a necessity of running back to the King tâ—… Fountain of Iustice and the Vicegerent of God himself who in the Commonwealth of the Iews took such Cause to His own cognisance and left to Kings not only the Example of such Iurisdiction but the Prerogative also Of Privilege of Parliament WHat need all this ado will some say to
their favourable and courteous Offer of Conference and to signifie that the Commons cannot in those Cases of Benevolence or Contribution joyn in conference with their Lordships without prejudice to the Liberties and Privileges of the House and to request their Lordships to hold the Members of this House excused in their not-assenting to their Lordships said Motion for Conference for that so to have Assented without a Bill had been contrary to the Liberties and Privileges of this House and also contrary to the former Precedents of the same House in like cases had This Answer delivered to the Lords by the Chancellor of the Exchequer their Lordships said they well hoped to have had a Conference according to their former Request and desir'd to see those Precedents by which the Commons seem to refuse the said Conference But in conclusion it was agreed unto upon the Motion of Sir Walter Raleigh who moved that without naming a Subsidy it might be propounded in general words to have a Conference touching the Dangers of the Realm and the necessary Supply of Treasure to be provided speedily for the same according to the Proportion of the Necessity In the 43 Eliz. Serjeant Heal said in Parliament he marvail'd the House stood either aâ—… the granting of a Subsidy or time of Payment wheâ—… all we have is her Majesties and She may lawfull at her Pleasure take it from us and that she had â—… much right to all our Lands and Goods as to anâ—… Revenue of the Crown and he said he could proâ—… it by Precedents in the time of H. 3. K. John and K. Stephen The ground upon which this Serjeant at Law went may be thought the same Sir Edw. Coke delivers in his Institutes where he saith the first Kings of this Realm had all the Lands of England in Demesne and the great Manors Royalists they reserved to themselves of the remnant for the defence of the Kingdom enfeoffed the Barons from whence it appears that no man holds any Lands but under a condition to defend the Realm and upon the self-same Ground also the Kings Prerogative is raised as being a Preheminence in cases of Necessity above before the Law of Property or Inheritance Certain it is before the Commons were ever chosen to come to Parliament Taxes or Subsidies were raised and paid without their gift The great and long continued Subsidy of Dane-gelt was without any Gift of the Commons or of any Parliament at all that can be proved In the 8 H. 3. a Subsidy of 2 Marks in Silver upon every Knights fee was granted to the King by the Nobles without any Commons At the passing of a Bill of Subsidies the words of the King are the King thanks his loyal Subjects accepts their good Will also will have â—…so le Roy remercie ses loyaux Subjects accept leur â—…enevolence ausi ainsi le veult which last words of ainsi le veult the King wills it to be so â—…re the only words that makes the Acts of Subâ—…idy a Law to bind every man to the Payâ—…ent of it In the 39 Eliz. The Commons by their Speaker complaining of Monopolies the Queen spake in private to the L. Keeper who then made answer touching Monopolies that Her Majesty hoped her dutiful and loving Subjects would not take away Her Prerogative which is the chiefest Flower in her Garland and the principal and head Pearl in Her Crown and Diadem but that they will rather leave that to Her Disposition The second Point is that the Free-holders or Counties do not nor cannot give Privilege to the Commons in Parliament They that are under the Law cannot protect against it they have no such Privilege themselves as to be free from Arrests and Actions for if they had then it had been no Privilege but it would be the Common Law And what they have not they cannot give Nemo dat quod non habet neither do the Free-holders pretend to give any such Privilege either at their Election or by any subsequent Act there is no mention of any such thing in the return of the Writ nor in the Indentures between the Sheriff and the Free-holders The third Point remains That Privilege of Parliament is granted by the King It is a known Rule that which gives the Form gives the Consequences of the Form the King by his Writ gives the very Essence and Form to the Parliament therefore Privileges which are but Consequences of the Form must necessarily flow from Kings All other Privileges and Protections are the Acts of the King and by the Kings Writ Sir Edw. Coke saith that the Protection of mens Persons Servants and Goods is done by a Writ of Grace from the King At the presentment of the Speaker of the House of Commons to the King upon the first day of Parliament The Speaker in the Name and Behoof of the Commons humbly craveth that his Majesty would be graciously pleased to grant them their accustomed Liberties and Privileges which Petition of theirs is a fair Recognition of the Primitive Grace and Favour of Kings in bestowing of Privilege and it is a shrewd Argument against any other Title For our Ancestors were not so ceremonious nor so full of Complement as to beg that by Grace which they might claim by Right And the Renewing of this Petition every Parliament argues the Grant to be but temporary during only the present Parliament and that they have been accustomed when they have been accustomably sued or petitioned for I will close this Point with the Judgment of King Iames who in his Declaration touching his Proceedings in Parliament 1621. resolves that most Privileges of Parliament grew from Precedents which rather shew a Toleration than an Inheritance therefore he could not allow of the Style calling iâ—… their ancient and undoubted Right and Inheritance but could rather have wished that they had said their Privileges were derived from the Grace and Permission of his Ancestors and Him and thereupon he concludes He cannot with Patience endure his Subjects to use suâ—… Antimonarchicall words concerning their Liberties except they had subjoyned that they were granted unto them by the Grace and Favourâ—… of his Predecessors yet he promiseth to be careful of whatsoever Privileges they enjoy by long Custom and uncontrolled and lawful Precedents OBSERVATIONS UPON Aristotle's Politiques TOUCHING Forms of Government Together with DIRECTIONS FOR Obedience to Governours in Dangerous and Doubtful Times THE PREFACE IN every Alteration of Government there is something new which none can either Divine or Iudge of till time hath tried it we read of many several wayes of Government but they have all or most of them been of particular Cities with none or very small Territories at first belonging to them At this present the Government of the Low-Countries and of Swisserland are not appropriated either of them to any one City for they are compounded of several petty Principalities which have special and different Laws and
their Councel extraordinary that by their Advice they might countenance and strengthen such Actions as were full of Danger and Envy and thus the Consuls by weakening their original Power brought the Government to Confusion civil Dissension and utter Ruine so dangerous a thing it is to shew Favour to Common People who interpret all Graces and Favours for their Rights and just Liberties the Consuls following the Advice of the Senate or People did not take away their Right of Governing no more than Kings lose their Supremacy by taking Advice in Parliaments Not only the Consuls but also the Pretors and Censors two great Offices ordained only for the ease of the Consuls from whom an Appeal lay to the Consuls did in many things exercise an arbitrary or legislative Power in the Absence of the Consuls they had no Laws to limit them for many Years after the Creation of Consuls ten men were sent into Greece to choose Laws and after the 12 Tables were confirmed whatsoever the Pretors who were but the Consuls Substitutes did command was called jus honorarium and they were wont at the Entrance into their Office to collect and hang up for publick View a Form of Administration of Justice which they would observe and though the edictum Praetoris expired with the Pretoâ—… Office yet it was called Edictum perpetuum What Peace the Low-Countries have found since their Revolt is visible it is near about an hundred Years since they set up for themselves of all which time only twelve years they had a Truce with the Spaniard yet in the next year after the Truce was agreed upon the War of Iuliers brake forth which engaged both Parties so that upon the matter they have lived in a continued War for almost 100 Years had it not been for the Aid of their Neighbours they had been long ago swallowed up when they were glad humbly to offer their new hatch'd Commonweal and themselves Vassals to the Queen of England after that the French King Hen. 3. had refused to accept them as his Subjects That little Truce they had was almost as costly as a War they being forced to keep about thirty thousand Souldiers continually in Garrison Two things they say they first fought about Religion and Taxes and they have prevailed it seems in both for they have gotten all the Religions in Christendome and pay the greatest Taxes in the World they pay Tribute half in half for Food and most necessary things paying as much for Tribute as the price of the thing sold Excise is paid by all Retailers of Wine and other Commodities for each Tun of Beer six Shillings for each Cow for the Pail two Stivers every week for Oxen Horses Sheep and other beasts sold in the Market the twelfth part at least be they never so oft sold by the year to and fro the new Master still pays as much they pay five Stivers for every Bushel of their own Wheat which they use to grinde in publick Mills These are the Fruits of the Low-Country War It will be said that Venice is a Commonwealth that enjoys Peace She indeed of all other States hath enjoyed of late the greatest Peace but she owes it not to her kind of Government but to the natural Situation of the City having such a Banck in the Sea of neer threescore Miles and such Marshes towards the Land as make her unapproachable by Land or Sea to these she is indebted for her Peace at home and what Peace she hath abroad she buys at a dear Rate and yet her Peace is little better than a continued War The City always is in such perpetual Fears that many besieged Cities are in more Security a Senator or Gentleman dares not converse with any Stranger in Venice shuns Acquaintance or dares not own it they are no better than Banditos to all humane Society Nay no People in the World live in such Jealousie one of another hence are their intricate Solemnities or rather Lotteries in Election of their Magistrates which in any other Place would be ridiculous and useless The Senators or Gentlemen are not only jealous of the Common People whom they keep disarmed but of one another they dare not trust any of their own Citizens to be a Leader of their Army but are forced to hire and entertain Foreign Princes for their Generals excepting their Citizens from their Wars and hiring others in their Places it cannot be said that People live in Peace which are in such miserable Fears continually The Venetians at first were subject to the Româ—… Emperour and for fear of the Invasion of the Hunnes forsook Padua and other places in Italy and retired with all their Substance to those Islandâ—… where now Venice stands I do not read they had any Leave to desert the defence of their Prince and Countrey where they had got their Wealth much less to set up a Government of their own it was no better than a Rebellion or Revolting from the Roman Empire At first they lived under a kind of Oligarchy for several Islands had each a Tribune who all met and governed in common but the dangerous Seditions of their Tribunes put a necessity upon them to choose a Duke for Life who for many hundreds of years had an Absolute Power under whose Government Venice flourished most and got great Victories and rich Possessions But by insensible degrees the Great Councel of the Gentlemen have for many years been lessening the Power of their Dukes and have at last quite taken it away It is a strange Errour for any man to believe that the Government of Venice hath been alwayes the same that it is now he that reads but the History of Venice may find for a long time a Sovereign Power in their Dukes and that for these last two hundred years since the diminishing of that Power there hath been no great Victories and Conquests obtained by that Estate That which exceeds admiration is that Contareâ—… hath the confidence to affirm the present Government of Venice to be a mixed Form of Monarchy Democratie and Aristocratie For whereas he makes the Duke to have the Person and Shew of a King he after confesseth that the Duke can do nothing at all alone and being joyned with other Magistrates he hath no more Authority than any of them also the power of the Magistrates is so small that no one of them how great soever he be can determine of any thing of moment without the allowance of the Councel So that this Duke is but a man dressed up in Purple a King only in Pomp and Ornament in Power but a Senator within the City a Captive without a Traytor if he go without Leave As little reason is there to think a Popular Estate is to be found in the great Councel of Venice or S. P. Q. U. for it doth not consist of the fortieth part of the People but only of those they call Patritians or Gentlemen for the Commons neither by
give and take away Kingdomes and thereby to adopt Subjects into the obedience of another fatherly power according to that of Arist. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 A Monarchy or Kingdom will be a fatherly government Ethic. l. 8. c. 12. However the natural freedome of the people be cried up as the sole means to determine the kind Government and the Governours yet in the close all the favourers of this opinion are constrained to grant that the obedience which is due to the fatherly power is the true and only cause of the subjection which we that are now living give to Kings since none of us gave consent to government but only our Fore-fathers act and consent hath concluded us Whereas many confess that Government only in the abstract is the ordinance of God they are not able to prove any such ordinance in the Scripture but only in the fatherly power and therefore we find the Commandment that enjoyns obedience to superiours given in the terms of Honour thy Father so that not onely the power or right of government but the form of the power of governing and the person having that power are all the ordinance of God the first Father had not only simply power but power Monarchical as he was a Father immediately from God For by the appointment of God as soon as Adam was created he was Monarch of the World though he had no subjects for though there could not be actual government until there were Subjects yet by the right of nature it was due to Adam to be Governour of his posterity though not in act yet at least in habit Adam was a King from his Creation And in the state of innocency he had been Governour of his Children for the integrity or excellency of the subjects doth not take away the order or eminency of the Governour Eve was subject to Adam before he sinned the Angels who are of a pure nature are subject to God which confutes their saying who in disgrace of civil Government or power say it was brought in by sin Government as to coactive power was after sin because coaction supposeth some disorder which was not in the state of innocency But as for directive power the condition of humane nature requires it since civil society cannot be imagined without power of Government for although as long as men continued in the state of innocency they might not need the direction of Adam in those things which were necessarily and morally to be done yet things indifferent that depended meerly on their free will might be directed by the power of Adams command If we consider the first plantations of the world which were after the building of Babel when the confusion of tongues was we may find the division of the earth into distinct Kingdomes and Countries by several families whereof the Sons or Grand-children of Noah were the Kings or Governours by a fatherly right and for the preservation of this power and right in the Fathers God was pleased upon several Families to bestow a Language on each by it self the better to unite it into a Nation or Kingdom as appears by the words of the Text Gen. 10. These are the Families of the Sons of Noah after their generations in their Nations and by these were the Nations divided in the earth after the floud Every one after HIS TONGUE AFTER THEIR FAMILIES in their Nations The Kings of England have been gratiously pleased to admit and accept the Commons in Parliament as the representees of the Kingdom yet really and truly they are not the representative body of the whole Kingdom The commons in Parliament are not the representative body of the whole Kingdom they do not represent the King who is the head and principal member of the Kingdom nor do they represent the Lords who are the nobler and higher part of the body of the Realm and are personally present in Parliament and therefore need no representation The Commons onely represent a part of the lower 〈◊〉 inferior part of the body of the People which are the Free-holders worth 40 s. by the year and the Commons or Free-men of Cities and Burroughs or the major part of them All which are not one quarter nay not a tenth part of the Commons of the Kingdom for in every Parish for one Free-holder there may be found ten that are no Free-holders and anciently before Rents were improved there were nothing neer so many Free-holders of 40 s. by the year as now are to be found The scope and Conclusion of this discourse and Argument is That the people taken in what notion or sense soever either diffusively collectively or representatively have not nor cannot exercise any right or power of their own by nature either in chusing or in regulating Kings But whatsoever power any people doth lawfully exercise it must receive it from a supream power on earth and practice it with such limitations as that superior power shall appoint To return to our Author He divides Monarchy into Absolute Limited Absolute Monarchy saith he is when the Soveraignty is so fully in one that it hath no limits or bounds under God but his own will This definition of his I embrace And as before I charged our Author for not giving us a definition of Monarchy in general so I now note him for not affording us any definition of any other particular â—…nd of Monarchy but onely of absolute it may peradventure make some doubt that there is no other sort but only that which he calls absolute Concerning absolute Monarchy he grants that such were the antient Eastern Monarchies and that of the Turk and Persian at this day Herein he saith very true And we must remember him though he do not mention them that the Monarchs of Iudah and Israel must be comprehended under the number of those he calls the Eastern Monarchies and truly if he had said that all the antient Monarchies of the world had been absolute I should not have quarreld at him â—…or do I know who could have disproved him Next it follows that Absolute Monarchy is when 〈◊〉 people are absolutely resigned up or resign up themselves to be governed by the will of One man Where men put themselves into this utmost degree of subjection by oath and contract or are born and brought unto it by Gods providence In both these places he acknowledgeth there may be other means of obtaining a Monarchy besides the contract of a Nation or peoples resigning up themselves to be governed which is contrary to what he after saies that the sole mean or root of all Soveraignty is the consent and fundamental contract of a Nation of men Moreover the Author determines that Absolute Monarchy is a lawful government and that men may be born and brought unto it by Gods providence it binds them and they must abide it because an oath to a lawful thing is obligatory This Position of his I approve but his Reason doth not satisfie for
Soveraignty or power absolute except such conditions annexed to the Soveraignty be directly comprehended within the Laws of God and Nature Albeit by the sufferance of the King of England controversies between the King and his people are sometimes determined by the high Court of Parliament and sometimes by the Lord Chief Iustice of England yet all the Estates remain in full subjection to the King who is no ways bound to follow their advice neither to consent to their requests It is certain that the Laws Priviledges and Grants of Princes have no force but during their life if they be not ratified by the express consent or by sufferance of the Prince following especially Priviledges Much less should a Prince be bound unto the Laws he maketh himself for a man may well receive a Law from another man but impossible it is in nature for to give a Law unto himself no more than it is to command a mans self in a matter depending of his own will The Law saith Nulla obligatio consistere potest quae à voluntate promittentis statum capit The Soveraign Prince may derogate unto the Laws that he hath promised and sworn to keep if the equity thereof be ceased and that of himself without the consent of his Subjects The Majesty of a true Soveraign Prince is to be known when the Estates of all the people assembled in all humility present their requests and supplications to their Prince without having power in any thing to command determine or give voice but that that which it pleaseth the King to like or dislike to command or bid is holden for Law wherein they which have written of the duty of Magistrates have deceived themselves in maintaining that the power of the people is greater than the Prince a thing which causeth oft true Subjects to revolt from their obedience to their Prince and ministreth matter of great troubles in Common-wealths of which their opinion there is neither reason nor ground for if the King be subject unto the Assemblies and Decrees of the people he should neither be King nor Soveraign and the Common-wealth neither Realm nor Monarchy but a meer Aristocracie So we see the principal point of Soveraign Majesty and absolute power to consist principally in giving Laws unto the Subjects in general without their consent Bodin de Rep. l. 1. c. 8. To confound the state of Monarchy with the Popular or Aristocratical estate is a thing impossible and in effect incompatible and such as cannot be imagined for Soveraignty being of it self indivisible how can it at one and the same time be divided betwixt one Prince the Nobility and the people in common The first mark of Soveraign Majesty is to be of power to give Laws and to command over them unto the Subjects and who should those Subjects be that should yield their obedience to the Law if they should have also power to make the Laws who should he be that could give the Law being himself constrained to receive it of them unto whom himself gave it so that of necessity we must conclude That as no one in particular hath the power to make the Law in such a State that then the State must needs be a State popular Never any Common-wealth hath been made of an Aristocracy and popular Estate much less of the three Estates of a Common-weal Such States wherein the rights of Soveraignty are divided are not rightly to be called Common-weals but rather the corruption of Commonweals as Herodotus has most briefly but truly written Common-weals which change their state the Sovereign right and power of them being divided find no rest from Civil wars and broils till they again recover some one of the three Forms and the Soveraignty be wholly in one of the states or other Where the rights of the Soveraignty are divided betwixt the Prince and his Subjects in that confusion of state there is still endless stirs and quarrels for the superiority until that some one some few or all together have got the Soveraignty Id. lib. 2. c. 1. This Judgment of Bodin's touching Limited and Mixed Monarchy is not according to the mind of our Author nor yet of the Observator who useth the strength of his Wit to overthrow Absolute and Arbitrary Government in this Kingdom and yet in the main body of his discourse le ts fall such Truths from his pen as give a deadly wound to the Cause he pleads for if they be indifferently weighed and considered I will not pick a line or two here and there to wrest against him but will present a whole Page of his Book or more together that so we may have an entire prospect upon the Observators mind Without society saith the Observator men could not live without Laws men could not be sociable and without Authority somewhere to judge according to Law Law was vain It was soon therefore provided that Laws according to the dictate of Reason should be ratified by common consent when it afterward appeared that man was yet subject to unnatural destruction by the Tyranny of entrusted Magistrates a mischief almost as fatal as to be without all Magistracy How to provide a wholsome remedy therefore was not so easie to be invented it was not difficult to invent Laws for the limiting of Supream Governours but to invent how those Laws should be executed or by whom interpreted was almost impossible Nam quis Custodiet ipsos Custodes to place a Superiour above a Supream was held unnatural yet what a lifeless thing would Law be without any Iudge to determine and force it If it be agreed upon that limits should be prefixed to Princes and Iudges to decree according to those limits yet another inconvenience will presently affront us for we cannot restrain Princes too far but we shall disable them from some good long it was ere the world could extricate it self out of all these extremities or find out an orderly means whereby to avoid the danger of unbounded Prerogative on this hand and to excessive liberty on the other and scarce has long experience yet fully satisfyed the minds of all men in it In the Infancy of the world when man was not so artificial and obdurate in cruelty and oppression as now and Policy most rude most Nations did choose rather to subject themselves to the meer discretion of their Lords than rely upon any limits and so be ruled by Arbitrary Edicts than written Statutes But since Tyranny being more exquisite and Policy more perfect especially where Learning and Religion flourish few Nations will endure the thraldome which usually accompanies unbounded and unconditionate Royalty Yet long it was ere the bounds and conditions of Supream Lords was so wisely determined or quietly conserved as now they are for at first when as Ephori Tribuni Curatores c. were erected to poise against the scale of Soveraignty much blood was shed about them and States were put into new broils by them and some places