Parliament and the time of 40 daies expresly specified to intervene between the summons and the beginning of the Parliament Which Commons being such as antiently did hold in Capite and either having a Knights fee or the degree of Knighthood did first promiscuously attend in these publick meetings and after were reduced to four quatuor discretos milites de Comitatu tuo as c Id. ibid. the writ ran unto the Sheriff and at last to two as they continue to this day 5. We have it thus in the Magna Charta of King Henry the 3d. the birth-right of the English Subject according as it stands translated in the book of Statutes First we have granted to God and by this our present Charter have confirmed for us and our heirs for ever that the Church of England shall be free and shall enjoy all her whole Rights and Liberties inviolable d Magna Charta cap. 1. But it was a known Right and Liberty of the Church of England that all the Bishops and many of the greater Clergy and peradventure also the inferiour Clergy wherof more anon had their Votes in Parliament and therefore is to be preserved inviolable by the Kings of England their Heirs and Successors for ever Which Charter as it was confirmed by a solemn Curse denounced on all the Infringers of it by Boniface Arch-bishop of Canterbury e Matth. Patis in Henr. 3. and ratified in no fewer man 30 succeeding Parliaments so was it enacted in the reign of Edward the first that it should be sent under the great Seal of England to all the Cathedral Churches of the Kingdom to be read twice a year before the people f 25 Edw. 1. c. 2. that they should be read four times every year in a full County-Court g 28 Edw. 1. c. 1. and finally that all judgements given against it should be void h 25 Edw. 1. c. 3. 6. We have the Protestation of John Stratford Arch-bishop of Canterbury in the time of King Edward the 3d. who being in disfavour with the King and denyed entrance into the House of Peers challenged his place and suffrage there as the first Peer of the Realm and one that ought to have the first Voice in Parliament in right of his See But hear him speak his own words which are these that follow Amici for he spake to those who took witness of it Rexme ad hoc Parliamentum scripto suo vocavit ego tanquam major Par Regni post regem primam vocem habere debens in Parliamento jura Ecclesiae meae Cantuariensis vendico ideo ingressum in Parliamentum peto i Antiqu. Bâ—itan in Joh. Stratford which is full and plain 7. And lastly there is the Protestation on Record of all the Bishops in the reign of King Richard the 2d at what time William Courtney was Arch-bishop of Canterbury who being to withdraw themselves from the House of Peers at the pronouncing of the sentence of death on some guilty Lords first made their Procurators to supply their rooms then put up their Protestation to preserve their Rights the sum whereof for as much as doth concern this business in their own words thus De jure consuetudine regni Angliae ad Archiepiscopum Cantuariensem qui pro tempore fuerit nec non coeteros Suffraganeos confratres compatres Abbates Priores aliosque Praelatos quoscunque per Baroniam de domino Rege tenentes pertinet in Parliamentis Regis quibuscunque ut Pares regni praedicti personaliter interesse ibidemque de regni negotiis ac aliis tractari consuetis cum caeteris dicti regni Paribus aliis ibidem jus interessendi habentibns consulere tractare ordinare statuere diffinire ac câ—etera facere quae Parliamento ibidem imminent facienda This put together makes enough abundantly for the proofs de jure k In vita Gul. Courtney and makes the Bishops right to have Vote in Parliament to be undeniable Let us next see whether this right of theirs be not confirmed and countenanced by continual practice and that they have not lost it by discontinuance which is my second kind of proofs those I mean de facto And first beginning with the reign of the Norman Conquerour we find a Parliament assembled in the fifth year of that King wherein are present Episcopi Abbates Comites Primates totius Angliae l Matth. Paris in Willielmo 1. the Bishops Abbats Earls and the rest of the Baronage of England In the 9th year of William Rufus an old Author telleth us de regni statu acturus Episcopos Abbates quoscunque Regni proceres in unum praecepti sui sanctione egit that being to consult of the affairs of the Kingdom he called together by his writ the Bishops Abbots and all the Peers of the Realm m Eadmer hist Nov. l. 2. During the reign of Henry the 2d for we will take but one example out of each King reign though each Kings reign would yield us more a Parliament was called at London wherein were many things dispatched aswell of Ecclesiastical as secular nature the Bishops and Abbats being present with the other Lords Coacto apud Londoniam magno Episcoporum Procerum Abbatumque Conciliâ— multa ecclefiasticarum secularium rerum ordinata negotia decisa litigia saith the Monk of Malmesâ—ury n Malmesb. hist reg Angl. l. 5. And of this Parliament it is I take it that Eadmer speaketh Hist. Novell l. 4. p. 91. Proceed we to King Henry the 2d for King Stephens reign was so full of wars and tumults that there is very little to be found of Parliaments and there we find the Bishops with the other Peers convened in Parliament for the determination of the points in controversie between Alfonso King of Castile and Sancho King of Navarre referred by compremise to that King of England and here determined by King Henry amongst other things habito cum Episcopis Comitibus et Baronebus cum deliberatione consilio as in Roger Hoveden o Hoveden Annal. pars poster in Hen. 2. Next him comes Rich. the first his Son during whose imprisonment by the D. of Austria his Brother John then Earl of Moriton indeavoured by force and cunning in Normandy to set the Crown on his own head which caused Hubert the Arch-bishop of Canterbury to call a Parliament Convocatis coram eo Episcopis Comitibus et Baronibus regni p Id. in Joh. wherein the Bishops Earls and Barons did with one consent agree to seize on his estate and suppress his power the better to preserve the Kingdom in wealth peace and safety After succeeded John and he calls a Parliament wherein were certain Laws made for the defence of his Kingdom Communi assensu Archiepiscoporum Episcoporum Comitum Baronum omnium fidelium suoâ—um Angâ—iae by the common counsell and assent of the Arch-bishops Bishops Earls Barons and the rest of
to the number of the Spartan Ephori which they called Tribunes of the people of which Sicinius and Junius Brutus must be two at least We may be sure they took not all this pains for nothing 3 And yet all this was nothing if they got not more The Articles and Conditions which they had agreed on had bound them too precisely to their good behaviour and if they did not break those bonds they were Prisoners still But first they must be fortified with some special priviledges to keep their persons out of danger that they might boldly venture upon any project without fear of law and put themselves into such condition that whatsoever wrongs they did they would not be called to an accompt To that end Brutus taking his opportunitie whilest the heats were up and the Senate in a disposition to deny them nothing causeth a law to be propounded obtained for the perpetual indemnitie of the Tribunes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and for declaring of their Office to be sacred and inviolable n Dâ—oâ—ys Halicarn l. 6. The substance of the law was to this effect That no man should compell the Tribunes to doe any thing against their wills nor beat or cause them to be beaten nor kill or cause them to be killed if any should presume to do the contrarie 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he was to be pursued as an execrable person and his goods confiscate and whosoever slew him should escape unpunished and do a meritorious service to the Common-wealth A Priviledge which they found good use of in the times succeeding and made it serve their turns upon all occasions Martius complained of them in the Senate for disobedience to the Consuls and an intent to bring an Anarchie upon the State o Plutarh in Coriolano they vote this for a breach of priviledge and nothing but his death or banishment will give them satisfaction for it Apptus being Consul sends his Lictor to lay hands upon them for raising tumults in the City p Livie hist Rom. lib. 2. this is another breach of priviledge and he shall answer for it when his year was out Caeso Quintius like a noble Patriot joyns with the Consuls and the Senate to oppress their insolencies when neither law nor reason would prevail upon them this also is a breach of priviledge and his life shall pay for it q Id. l. 3. But to proceed having obtained this law for their own securitie their next work was to break or pass by those laws by which the State was governed in all times before and which themselves had yeelded to at their first creation It was the practise of the City from the first fnundation and a continual custom hath the force of law to give such respect unto the Senate that the people did not vote nor determine any thing 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 r Dionys Halicarnass l. 7. which the Senate had not first debated and resolved upon This though no breach of priviledge was a main impediment to the advancing of those projects which they had in hand and therefore fit to be removed as removed it was and so a way made open unto that confusion which did expose the State to so many changes that it was never constant to one form of government Which being obtained the next thing to be brought about was to bring the election of the Tribunes into the hands of the people who had before the least part in it that so depending mutually upon one another they might co-operate together to destroy the State and bring it absolutely under the command of the common people For at the first according to the Articles of the Institution the Tribunes were to be elected in Comitiis Centuriatis as before was said where none but men of years and substance such as were of the Liverie as we speak in England had the right of Suffrage By means whereof the Patricians had a very great stroke in the Elections Et per Clientum suffragia creandi quos vellent potestatem s 〈◊〉 hist and by the voyces of their Clients or dependents set up whom they listed They must no longer hold this power The Tribunes were the creatures of the Common people and must be made by none but them A law must therefore be propounded to put the Election wholly into the hands of the people and to transact the same in Comitiis Tributis where no Patrician was to vote but all things carried by the voyces of the rascal Rabble Which though it caused much heat and no small ado yet it was carried at the last Appius complaining openly as his custom was Rempub. per metum prodi that the Senate did destroy the Common-wealth by their want of courage And whereas at the first they had so much modestie as not to come into the Senate t Valer. Maxim lib. 2. c. 2. Sed positis subselliis ante fores decreta Patrum examinare but to sit without upon some benches whilest they examined the decrees which had passed the house they challenge now a place though no vote in Senate t and had free ingress and egress when they would themselves 4 But their main business was to pull down the Nobles and make them of no more esteem then the common sort And upon this they set their strength and made it the first hansel of their new authoritie Martius had spoke some words in Senate which displeased the Tribunes and they incense the people to revenge the injury who promising to assist them in their undertakings an Officer is forthwith sent to apprehend him This caused the Patricians whom the cause concerned to stand close together and to oppose this strange incroachment and generally to affirm as most true it was that when they yeelded to the setting up of this new authority there was no power given them by the Senate 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 u Dionys Halicarn l. 7. but only to preserve the Commons from unjust oppressions The like did Martius plead in his own behalf as we finde in Livie auxilii non poenae jus datum illi potestati plebisque non patrum Tribunos esse x Livie hist lib. 2. that they were trusted with a power to help the Commons but with none to punish and were not Tribunes of the Lords but of the people And so much also was affirmed in the open Senate that the authority of the Tribunes was at first ordained not to offend or grieve the Senate but that the Commons might not suffer any grievance by it and that they did not use their power according to such limitations as were first agreed on and as of right they ought to use it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 y Dionys Halicarn l. 7. but to the ruine and destruction of the Lawes established Enough of conscience to have staved them from the prosecution but that they had it in design and resolved to carry it For Brutus had before given out and
first by these who first ventured on the expression or were improvidently looked over I can hardly say Certain I am it gave too manifest an advantage to the Antimonarchical party in this Kingdome and hardned them in their proceeding against their King whom they were taught to look on and esteem no otherwise than as a Joynt-tenant of the Soveraignty with the Lords and Commons And if Kings have partners in the Soveraignty they are then no King such being the nature and law of Monarchy that si divisionem capiat interitum capiat necesse est m Lactant Institut Div. l. 1. c. if it be once divided and the authorities thereof imparted it is soon destroyed Such is the dangerous consequence of this new Expression that it seemeth utterly to deprive the Bishops and in them the Clergy of this Land of all future hopes of being restored again to their place in Parliament For being the Parliament can consist but of three Estates if the King fall so low as to pass for one either the Bishops or the Commons or the Temporal Lords must desert their claim the better to make way for this new pretension and in all probability the Commons being grown so potent and the Nobility so numerous and united in blood and mariages will not quit their interesse and therefore the poor Clergy must be no Estate because lesse able as the world now goeth with them to maintain their title I have often read that Constantine did use to call himself 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 n Euseb de vita Constant the Bishop or Superintendent of his Bishops and I have oft heard our Lawyers say that the King is the general Ordinary of the Kingdome but never heard nor read till within these few yearrs that ever any King did possess himself of the Bishops place or vote in Parliament or sate there as the first of the three Estates as antiently the Bishops did to supply their absence By which device whether the Clergy or the King be the greater losers though it be partly seen already future times will shew 2. This rub removed we next proceed to the examination of that power which by our Author is conferred on the three Estates which we shall find on search and tryal to be very different according to the constitution of the Kingdome in which they are For where the Kings are absolute Monarchs as in England Scotland France and Spain l Bodin de Repub. l. 1. c. the three Estates have properly and legally little more authority than to advise their King as they see occasion to represent unto his view their common grievances and to propose such remedies for redresse therof as to them seem meetest to canvass and review such erroneous judgements as formerly have passed in inferiour Courts and finally to consult about and prepare such laws as are expedient for the publick In other Countries where the Kings are more conditional and hold their Crowns by compact and agreement betweeen them and their Subjects the reputation and authority of the three Estates is more high and eminent as in Polonia Danemark and some others of the Northern Kingdomes where the Estates lay claim to more than a directive power and think it not enough to advise their King unless they may dispose of the Kingdome also or at least make their King no better than a Royal Slave Thus and no otherwise it is with the German Emperors who are obnoxious to the Laws m Thuan. hist sui temp l. 2. and for their Government accomptable to the Estates of the Empire insomuch that if the Princes of the Empire be perswaded in their consciences that he is likely by his mal-administration to destroy the Empire and that he will not hearken to advice and counsel n Anonym Script ap Philip Paraeu in Append. â—d Rom. 13. ab Electorum Collegio Caesaria potestate privari potest he may be deprived by the Electors and a more fit and able man elected to supply the place And to this purpose in a Constitution made by the Emperor Jodocus about the year 1410. there is a clause that if he or any one of his Successors do any thing unto the contrary thereof the Electors and other States of the Empire sine rebellionis vel infidelitatis crimine libertatem habeant o Goldast Constit Imperial Tom. 3. p. 424. should be at liberty without incurring the crimes of Treason or Disloyalty not only to oppose but resist them in it The like to which occurs for the Realm of Hungary wherein K. Andrew gives authority to his Bishops Lords and other Nobles sine nota alicujus infidelitatis p Bonfinius de Edict publ p. 37. that without any imputation of disloyalty they may contradict oppose and resist their Kings if they do any thing in violation of some Laws and sanctions In Poland the King takes a solemn oath at his Coronation to confirm all the Privileges rights and liberties which have been granted to his Subjects of all ranks and orders by any of his Predecessors and then addes this clause quod si Sacramentum meum violavero incolae Regni nullam nobis obedientiam praestare tenebuntur which if he violates his Subjects shall no longer be obliged to yield him obedience q Bodin de Rep. lib. 1. cap. 8. Which oath as Bodine well observeth doth savour rather of the condition of the Prince of the Senate than of the Majesty of a King The like may be affirmed of Frederick the first King of Danemark who being called unto that Crown on the ejection of K. Christian the 2d An. 1523. was so conditioned with by the the Lords of the Kingdome that at his coronation or before he was fain to swear that he would put none of the Nobility to death or banishment but by the judgement of the Senate that the great men should have power of life or death over their Tenants and Vassals and that no Appeal should lye from them to the Kings tribunal nor the King be partaker of the confiscations nec item honores aut imperia privatis daturum c r Id. ibid. nor advance any private person to commands or honors but by authority of his great Counsel Which oath being also taken by Frederick the second made Bodinus say that the Kings of Danemark non tam reipsa quam appellare Reges sunt were only titular Kings but not Kings indeed Which character he also gives of the Kings of Bohemia Å¿ Id. ibid. p. 88. But in an absolute Monarchy the case is otherwise all the prerogatives and rights of Soveraignty being so vested in the Kings person ut nec singulis civibus nec universis fac est c. that it is neither lawful to particular men nor to the whole body of the Subjects generally to call the Prince in question for life fame or fortunes t Id. ibid. p. 210. and amongst these he reckoneth the kingdoms of France
Spain England Scotland the Tartars Muscovites omnium paene Africae Asiae imperiorum and of almost all the Kingdomes of Africk and Asia But this we shall the better see by looking over the particulars as they lye before us 3. But first before we come unto those particulars we will look backwards on the condition and authority of the Jewish Sanhedrim which being instituted and ordained by the Lord himself may serve to be a leading case in the present business For being that the Iews were the Lords own people and their Kings honored with the title of the Lords Anointed it will be thought that if the Sanhedrim or the great Councel of the seventie had any authority and power over the Kings of Iudah of whose jus Regni such a large description is made by God himself in the first of Sam. cap. 8. the three Estates may reasonably expect the like in these parts of Christendom Now for the authority of the Sanhedrim it is said by Cardinal Baronius that they had power of judicature over the Law the Prophets and the Kings themselves u Baron Annal. Eccl. An. 31. §. 10. Erat horum summa autoritas ut qui de lege cognoscerent Prophetis simul de Regnibus judicarent Which false position he confirms by as false an instance affirming in the very next words horum judicio Herodem Regem postulatum esse that King Herod was convented and convicted by them for which he cites Iosephus with the like integrity I should have wondred very much what should occasion such a grosse mistake in the learned Cardinal had I not shewn before that as he makes the Sanhedrim to rule the King so he hath made the high Priest to rule the Sanhedrim which to what purpose it was done every man can tell who knoweth the Cardinal endeavoureth nothing more in his large Collections than to advance the dignity and supremacy of the Popes of Rome x Id. in Epist dedicator But for the power pretended to be in the Sanhedrim and their proceedings against Herod as their actual King Iosephus when he cite's is so far from saying it that he doth expresly say the contrary For as Josephus tells the story Hyrcanus was then King not Herod and Herod of so little hopes to enjoy the Kingdom that he could not possibly pretend any Title to it But having a command in Galilee procured by Antipater his Father of the good King Hyrcanus he had played the wanton Governor amongst them and put some of them to death against Law and Justice For which the Mothers of the slain 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 did often call upon the King and people in the open Temple 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 y Joseph Antâ—q Judic l. 14. cap. 17. c. that Herod might answer for the murther before the Sanhedrim Which being granted by the King he was accordingly convented by them and had been questionlesse condemned had not the King who loved him dearly given him notice of it on whose advertisement he went out of the Town and so escaped the danger This is the substance of that story and this gives no authority to the Court of Sanhedrim over the persons or the actions of the Kings of Iudah Others there are who make them equal to the Kings though not superiour Magnam fuisse Senatus autoritatem Regiae velut parem z Grotius in Matth. cap. 5. v. 22. saith the learned Grotius And for the proof thereof allege those words of Sedechias in the Book of Ieremie who when the Princes of his Realm required of him to put the Prophet to death returned this Answer a Jerem. 38. 5. Behold he is in your hâ—nd Rex enim contra vos nihil potest for the King is not he that can do any thing against you Which words are also cited by Mr. Prynne to prove that the King of England hath no Negative voyce b Prynne of Parl. pt 2. p. 73. but by neither rightly For Calvin who as one observeth composed his expositions on the book of God according to the doctrine of his Institutions c Hookers preface would not have lost so fair an evidence for the advancing of the power of his three Estates had he conceived he could have made it serviceable to his end and purpose But he upon the contrary finds fault with them who do so expound it or think the King did speak so honorably of his Princes ac si nihil iis sit nequandum d Calvin in Jerem. c. 38. v. 5. as if it were not to deny them any thing Not so saith he it rather is amerulenta Regis querimonia a sad and bitter complaint of the poor captivated King against his Counsellors by whom he was so over-ruled ut velit nolit cedere iis cognitur that he was forced to yield to them whether he would or not which he expresly calls inexcusabilem arrogantium an intollerable piece of sawciness in those Princes and an exclusion of the King from his legal rights 4 Let us next take a view of such Christian Kingdomes as are under the command of absolute Monarchs And first we will begin with the Realm of France the government whereof is meerly Regal if not despotical such as that of a Master over his Servants which Aristotle defineth to be a form of Government 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c Aristot Politic. l. 3. wherein the King may do whatsoever he list according to the counsel of his own mind For in his Arbitrary Edicts which he sendeth abroad he never mentioneth the consent of the People or the approbation of the Counsel or the advice of his Judges which might be thought to derogate too much from his absolute power but concludes all of them in this Regal form Car tel est nostre plaisir for such is our pleasure And though the Court of Parliament in Paris do use to take upon them to peruse his Edicts before they passe abroad for d View of France by Dallington Laws and sometime to demurr on his grants and patents and to petition him to reverse the same as they see occasion yet their perusal is a matter but of meer formality and their demurs more dilatory than effectual It is the Car tel est nostre plaisir that concludes the business and the Kings pleasure is the Law which that Court is ruled by As for the Assemblie des Estats or Conventus Ordinum it was reputed antiently the Supreme Court for government and justice of all the Kingdome and had the cognizance of the greatest and most weighty affairs of State But these meetings have been long since discontinued and almost forgotten there being no such Assembly from the time of K. Charles the eighth to the beginning of the reign of K. Charles the ninth e Thuanus hist sui temp which was 70 years and not many since And to say truth they could be but of little use as the world
now goeth were the meetings oftner For whereas there are three Principal if not sole occasions of calling this Assemblie or Conventus Ordinum that is to say the disposing of the Regency during the nonage or sickness of the King the granting aids and subsidies and the redress of the grievances there is now another course taken to dispatch their business The Parliament of Paris which speaks most commonly as it is prompted by power and greatness appointeth the Regent f Contin Thuani An. 1610. the Kings themselves together with their Treasurers and Under-officers determine of the taxes g View of France and they that do complain of grievances may either have recourse to the Courts of justice or else petition to the King for redress thereof And for the making new Laws or repealing the old the naturalization of the Alien and the regulating of his sales or grants of the Crown-lands the publick patrimony of the Kingdome which were wont to be the proper subject and debates of these grand Assemblies they also have been so disposed of that the Conventus Ordinum is neither troubled with them nor called about them The Chamber of Accompts in Paris which hath some resemblance to our Court of Exchequer doth absolutely dispose of Naturalizations and superficially surveyeth the Kings grants and sales * Andr. Du Mesn which they seldom cross The Kings Car tel est nostre plaisir is the Subjects law and is as binding as any Act or Ordinance of the three Estates and for repealing of such Laws as upon long experience are conceived to be unprofitable the Kings sole Edict is as powerfull as any Act of Parliament Of which Bodinus doth not only say in these general terms Saepe vidimus sine Ordinum convocatione consensu leges à Principe abrogatas k Bodin de Rep. lib. 1. cap. 8. that many times these Kings did abrogate some antient laws without the calling and consent of the three Estates but saith that it was neither new nor strange that they should so do and gives us some particular instances not only of the later times but the former ages Nay when the power of this Assemblie des Estats was most great and eminent neither so curtailled nor neglected as it hath been lately yet then they carried themselves with the greatest reverence and respect before their King that could be possibly imagined For in the Assembly held at Tours under Charles the 8. though the King was then no more than 14 years of age and the authority of that Court so great and awfull that it was never at so high an eminence for power and reputation quanta illis temporibus as it was at that time yet when they came before the King Monseiur de Rell being then Speaker for the Commons or the third Estate did in the name of all the rest and with as much humility and reverence as he could devise promise such duty and obedience such a conformity of his will and pleasure such readiness to supply his wants and such alacrity in hearking unto his Commandements that as Bodinus well observes his whole Oration was nothing else quam perpetua voluntatis omnium erga Regem testificatio l Id. ibid. but a constant testimony and expression of the good affections of the subject to their Lord and Soveraign But whatsoever power they had in former times is not now material King Lewis the thirteenth having on good reason of State discharged those Conventions for the time ensuing Instead whereof he instituted an Assembly of another temper and such as should be more obnoxious to his will and pleasure consisting of a certain number of persons out of each Estate but all of his own nomination and appointment which joyn'd with certain of his Counsel and principal Officers he caused to be called L' Assembly des Notables assigning to them all the power and privileges which the later Conventions of the three Estates did pretend unto right well assured that men so nominated and intrusted would never use their powers to his detriment and disturbance of his Heirs and Successors 5. But to proceed Bodinus having shewn what dutifull respects the Convention of Estates in France shewed unto their King addes this note nec aliter Hispanorum conventus habentur that the Assembly of the three Estates in the Realms of Spain carry themselves with the like reverence and submission to their Lord the King Nay major etiam obedientia majus obsequium Regi exhibetur m Id. ibid. the King of Spain hath more obedience and observance from his three Estates than that which is afforded to the Kings of France Which being but general and comparative is yet enough to let us see that the Assembly of Estates in the Realms of Spain which they call the Curia is very observant of their King and obsequious to him and have but little of that power which is supposed by our Author to be inherent in the three Estates of all the Christian Kingdoms But this Bodinus proveth more particularly ascribing to the King and to him alone the power of calling this Assemblie when he sees occasion and of dissolving it again when his work is done according as is used both in France and England And when they are assembled and met together their Acts and consultations are of no effect further than as they are confirmed by the Kings consent Which he declareth in the same form eadem formulà quâ apud nos that hath accustomably been used by the Kings of France which is authoritative enough that is to say n Id. ibid. p. 90. decernimus statuimus volumus We will and we appoint and we have decreed The Kings of Spain though not so despotical in their Government as the French Kings are are as absolute Monarchs and have as great an influence on the three Estates to make them pliant to their will and to work out their own ends by them as ever had the French Kings on their Courts of Parliament a touch whereof we had before in the former Chapter And this we may yet further see by their observance of the pleasure of King Philip the 2d Who having maried the Lady Elizabeth Daughter of Henry the 2d of France Convocatos Castellae reliquarum Hispaniae Provinciarum Ordines o Thuan. â—ist sui temp h 23. l. calling together the Estates of Castile and his other Provinces of Spain he caused them to swear to the succession of his Son Prince Charles whom he had by the Lady Mary of Portugal and after having on some jealousies of State put that Prince to death caused them to swear to the succession of another son by the Lady of Austria And for the power of his Edicts which they call Pragmaticas they are as binding to the Subject as an Act of Parliament or any kind of Law whatever examples of the which are very obvious and familiar in the Spanish Histories For though
l. 1. c. 8 because he could not have an Equal but with the losse of his Authority and Regal Dignity considering that one Equal hath no power to command an other Now lest the Fuller should object as perhaps he may that this is spoken of the King out of times of Parliament and of the Members of the Houses seorsim taken severally as particular persons but when they are convened in Parliament then they are Soveraigns and no Subjects first he must know that by the Statute of Queen Elizabeth all of the House of Commons are to take the oath before remembred for the defending of all preheminences and authorities united and annexed to the Imperial Crown of this Realm and for bearing faith and true allegiance to the King his Heirs and lawfull Successours and that if any of them do refuse this Oath he is to have no voice in Parliament m Stat. 5 Eâ—iz 1. 2. He cannot choose but know that even sedente Parliamento both the Lords and Commons use to address themselves to his sacred Majesty in the way of supplication and petition and certainly it is not the course for men of equal rank to send Petitions unto one another and that in those Petitions they do stile themselves his Majesties most humble and obedient Subjects Which is not only used as the common Complement which the hypocrisie of these times hath taken up though possibly it might be no otherwise meant in some late addresses but is the very phrase in some Acts of Parliament n â—25 Hen. 8. c. 22. c. as in the Acts at large doth at full appear 3. They may be pleased to know how happy a thing it was for the Realm of England that this Fuller did not live in former times For had he broached this Doctrine some Ages since he would have made an end of Parliaments Princes are very jealous of the smallest points of Soveraignty and love to reign alone without any Rivals their Souls being equally made up of Pompeys and Caesars and can as little broke an Equul as endure a Superiour And lastly I must let him know what Bodinus saith who telleth us this Legum ac edictorum probatio aut publicatio quae in Curia vel Senatu fieri solet non arguit imperii majestatem in Senatu vel Curia inesse o Bodin de Rep. l. 1. c. 8. viz. That the publishing and approbation of Laws and Edicts which is made ordinarily in the Court or Parliament proves not the Majesty of the State to be in the said Court or Parliament And therefore if the power of confirmation or rejecting be of a greater trust and more high concernment than that of consulting and consenting as no doubt it is the power of consulting and consenting which the Fuller doth ascribe to the two Houses of Parliament will give them but a sory Title to Co-ordinative soveraignty 10. This leads me on unto the power of making Laws which as before I said is properly and legally in the King alone tanquam in proprio Subjecto as in the true and adequate subject of that power And for the proof thereof I shall thus proceed When the Norman Conqueror first came in as he wonne the Kingdom by the sword so did he govern it by his power His Sword was then the Scepter and his will the Law There was no need on his part of an Act of Parliament much less of calling all the Estates together to know of them after what form and by what Laws they would be governed It might as well be said of him as in the flourish and best times of the Roman Emperors p Justin Institut l. 1. c. Quod Principi placuerit legis habet vigorem that whatsoever the King willed it did pass for Law This King and some of his Successours being then 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and having a despotical power on the lives and fortunes of their Subjects which they disposed of for the benefit of their friends and followers Normans French and Flemangs as to them seemed best But as the Subjects found the yoke to be too heavy and insupportable so they addressed themselves in their Petitions to the Kings their Soveraigns to have that yoke made easier and the burden lighter especially in such particulars of which they were most sensible at the present time By this means they obtained first to have the Laws of Edward the Confessor contain'd for the most part in the great Charter afterwards and by this means that is to say by powring out their prayers and desires unto them did they obtain most of the Laws and Statutes which are now remaining of the time of King Henry the 3d. and King Edward the first Many of which as they were issued at the first either in form of Charters under the Great Seal or else as Proclamations of Grace and favour so do they carry still this mark of their first procuring the King willeth the King commandeth the King ordaineth the King provideth the King grants c. And when the Kings were pleased to call their Estates together it was not out of an opinion that they could not give away their power or dispence their favours or abate any thing of the severity of their former government without the approbation and consent of their people but out of just fear lest any one of the three Estates I mean the Clergy the Nobility and the Commons should insist on any thing which might be prejudicial to the other two The Commons being alwaies on the craving part and suffering as much perhaps from their immediate Lords as from their King might possibly have asked some things which were as much derogatory to the Lords under whom they held as of their Soveraign Liege the King the chief Lord of all In this respect the Counsel and consent as well of the Prelates as the Temporal Lords was accounted necessary in passing of all Acts of Grace and Favour to the people because that having many Royalties and large immunities of their own a more near relation to the person and a greater interesse in the honour of their Lord the King nothing should passe unto the prejudice and diminution of their own Estates or the disabling of the King to support his Soveraignty And this for long time was the Stile of the following Parliaments viz. q Preface an 1 Ed. 3. To the honour of God and of holy Church and to the redresse of the oppressions of the people our Soveraign Lord the King c. at the request of the Commonalty of his Realm by their Petition made before him and his Counsel in the Parliament by the Assent of the Prelates Earls Barons and other great men assembled in the said Parliament hath granted for him and his Heirs c. To this effect but with some little and but a very little variation of the words was the usual Stile in all the Prefaces or Preambles of the Acts of Parliament from the
aswell now as formerly in the times of the Roman Emperors Quod Principi placuerit legis habet vigorem nothing but that which the King pleaseth to allow of is to pass for Law the laws not taking their coercive force as judicious Hooker well observeth from the quality of such as devise them but from the power which giveth them the strength of laws d Hooker Ecclesiast Pol I shut up this Discourse with this expression and comparison of a late leatned Gentleman viz. That as in a Copyhold Estate the Copybolder of a meer Tenant at will comes by custom to gain an Inheritance and so to limit and restrain the will and power of the Lord that he cannot make any determination of the Copyholders Estate otherwise than according to the custome of the Mannour and yet doth not deprive the Lord of his Lordship in the Copyhold nor participate with him in it neither yet devest the Fee and Franktenement out of the Lord but that they still remain in him and are ever parcel of his Demesn e Case of our Affairs p. 6. so in the restraining of the Kings Legislative power to the concurrence of the Peers and Commons though the custome of the Kingdom hath so fixed and setled the restraint as that the King cannot in that point use his Soveraign power without the concurrence of the Peers and Commons according to the custom of the Kingdom yet still the Soveraignty and with it the inseparable Legislative power doth reside soly in the King 11. If any hereupon demand to what end serve Parliaments and what benefit can redound to the Subject by them I say in the Apostles words much every way f Rom. 3. 2. Many vexations often times do befall the Subjects without the knowledge of the King and against his will to which his ears are open in a time of Parliament The King at other times useth the eyes and ears of such as have place about him who may perhaps be guilty of the wrongs which are done the people but in a Parliament he seeth with his own eyes and heareth with his own ears and so is in a better way to redresse the mischief than he could be otherwise Nor do the people by the opportunity of these Parliamentary meetings obtain upon their Prayers and petitions a redress of grievances only but many times the King is overcome by their importunity to abate so much of his power to grant such points and pass such Laws and Statutes for their ease and benefit as otherwise he would not yield to For certainly it is as true in making our approaches and petitions to our Lord the King as in the pouring out of our prayers and supplications to the Lord our God the more multitudinous and united the Petitioners are the more like to speed And therefore said Bodinus truly Principem plaeraque universis concedere quae singulis denegarentur g Bodin de Rep. l. 1. c. 8. that Kings do many times grant those favours to the whole body of their people which would be absolutely denied or not so readily yielded to particular persons There are moreover many things of greater concernment besides the abrogating of old Laws and making new which having been formerly recommended by the Kings of England to the care and counsel of their people convened in Parliament are not now regularly dispatched but in such conventions as are altering the tenure of Lands confirming the rights titles and possessions of private men naturalizing Aliens legitimating Bastards adding sometimes the secular authority to such points of Doctrin and forms of worship as the Clergy have agreed upon in their Comvocations if it be required changing the publick weights and measures thorowout the Kingdom defining of such doubtfull cases as are not easily resolved in the Courts of Law raising of Subsidies and Taxes attainting such as either are too potent to be caught or too hard to be found and so not tryable in the ordinary Courts of Justice restoring to their blood and honours such or the Heirs of such as have been formerly attainted granting of free and general pardons h Sir Tho. Smith de Rep. Angl. Camden in Brit. Crompt of Courts c. with divers others of this nature In all and each of these the Lords and Commons do co-operate to the publick good in the way of means and preparation but their co-operation would be lost and fruitless did not the King by his concomitant or subsequent grace produce their good intentions into perfect Acts and being Acts either of special grace and favour or else of ordinary right and justice no way derogatory to the Prerogative Royalâ— are usually confirmed by the Royal assent without stop or hesitancy But then some other things there are of great importance and advantage to the Common wealth in which the Houses usually do proceed even to final sentence the Commons in the way of imquisition or impeachment the Lords in that of judicature and determination with the consent and approbation of the King though many times without his personal assent and presence The King may be abused in his Grants and Patents to the oppression of the people or the dilapidation and destruction of the Royal Patrimony Judges and other the great Officers of Law and Equity are subject to corruptions and may smell of gifts whereby the passages of Justice do become obstructed The Ministers of inferiour Courts as well Ecclesiastical as Civil either exhaust the miserable subject by extortions or else consume him by delayes Erroneous judgements may be given through fear or favour to the undoing of a man and his whole posterity in which his Majesties Justices of either Bench can afford no remedy The great ones of the State may become too insolent and the poor too miserable and many other waies there are by which the Fabrick of the State may be out of Order for the removing of which mischiefs the rectifying of which abuses the Lords and Commons in their several waies before remembred are of special use yet so that if the Kings Grants do come in question or any of his Officers are called to a reckoning they used heretofore to signifie unto his Majesty what they found therein and he accordingly either revoked his Grants or displaced his Servants or by some other means gave way unto their contentment the Kings consent being alwaies necessary and received as a part of the final sentence if they went so far So that we may conclude this point with these words of Bodin who being well acquainted with the Government of this State and Nation partly by way of conference with Dr. Dale the Queens Ambassadour in France and partly in the way of observation when he was in England doth give this resolution of the point in controversie i Bodin de Repub. l. 1. c. 8. Habere quidem Ordines Anglorum authoritatem quandam jura vero majestatis imperii summam in unius Principis arbitrio