Succinct Examination of the Fundamentals of Monarchy both in this and other Kingdoms as well about the Right of Power in Kings as of the Original or Natural Liberty of the People A Question never yet Disputed though most necessary in these Times Lucan Lib. 3. LIBERTAS Populi quem Regna coercent Libertate Perit Neque enim Libertas gratior ulla est Quà m Domino servire bono Claudian LONDON Printed in the Year MDCLXXIX AN ADVERTISEMENT TO THE Jury-Men OF ENGLAND TOUCHING WITCHES Together with a Difference between An ENGLISH AND HEBREW Witch LONDON Printed in the Year MDCLXXIX The Argument A Presentment of divers Statutes Records and other Precedents explaining the Writs of Summons to Parliament shewing I. That the Commons by their Writ are onely to Perform and Consent to the Ordinances of Parliament II. That the Lords or Common Councel by their Writ are only to Treat and give Counsel in Parliament III. That the King Himself only Ordains and makes Laws and is Supreme Iudge in Parliament With the Suffrages of Hen. de Bracton Jo. Britton Tho. Egerton Edw. Coke Walter Raleigh Rob. Cotton Hen. Spelman Jo. Glanvil Will. Lambard Rich. Crompton Will. Cambden and Jo. Selden THE Free-holders GRAND-INQUEST Touching Our Sovereign Lord the King and His Parliament EVery Free-holder that hath a Voice in the Election of Knights Citizens or Burgesses for the Parliament ought to know with what Power he trusts those whom the chooseth because such Trust is the Foundation of the Power of the House of Commons A Writ from the King to the Sheriff of the County is that which gives Authority and Commission for the Free-holders to make their Election at the next County-Court-day after the Receipt of the Writ and in the Writ there is also expressed the Duty and Power of the Knights Citizens and Burgesses that are there elected The means to know what Trust or Authority the Country or Free-holders confer or bestow by their Election is in this as in other like Cases to have an eye to the words of the Commission oâ—… Writ it self thereby it may be seen whether that which the House of Commons doth act be within the Limit of their Commission greater or other Trust than is comprised in the Body of the Writ the Free-holders do not or cannot give if they obey the Writ the Writ being Latine and not extant in English few Free-holders understand it and fewer observe it I have rendred it in Latine and English Rex Vicecomiti salut ' c. QUia de Advisamento Assensu Concilii nostri prâ—… quibusdam arduis urgentibus Negotiis Nos statum defensionem regni nostri Angliae Ecclesâ—… Anglicanae concernen ' quoddam Parliamentum nostruâ—… apud Civitatem nostram West duodecimo die Novembrâ—… prox futur ' teneri ordinavimus ibid. cum Praelatâ—… Magnatibus Proceribus dicti regni nostri colloquiuâ—… habere tract Tibi praecipimus firmiter injungentâ—… quod facta proclam in prox comitat ' tuo post receptioneâ—… hujus brevis nostri tenend ' die loco praedict duos miliâ—… gladiis cinct ' magis idoneos discretos comit ' praedictâ—… de qualib civitate com' illius duos Cives de quâ—…libet Burgo duos Burgenses de discretior ' magis suffcientibus libere indifferenter per illos qui proclam ' hâ—…jusmodi interfuerint juxta formam statutorum inde edâ—… provis ' eligi nomina eorundum milit ' civium â—… Burgensium sic electorum in quibusdam indentur ' intâ—…te illos qui hujusmodi election ' interfuerint inde confidend ' sive hujusmodi electi praesentes fuerint vel absentes inseri eósque ad dict' diem locum venire fac ' Ita quod iidem milites plenam sufficientem potestatem pro se communitate comit ' praedicti ac dict' Cives Burgenses pro se communitat ' Civitatum Burgorum praedictorum divisim ab ipsis habeant ad faciendum consentiendum his quae tunc ibid ' de communi Consilio dicti reg nostri favente Deo contigerint ordinari super negotiis ante dictis Ita quod pro defectu potestatis hujusmodi seu propter improvidam electionem milit ' civium aut Burgensium praedictorum dicta negotia infecta non remaneant quovismodo Nolumus autem quod tu nec aliquis alius vic' dicti reg nostri aliqualiter sit electus Et electionem illam in pleno comitatu factam distincte aperte sub sigillo tuo sigillis eorum qui electioni illi interfuerint nobis in cancellar ' nostram ad dict' diem locum certifices indilate remittens nobis alteram partem indenturarum praedictarum praesentibus consut ' una cum hoc breve Teste meipso apud Westmon The King to the Sheriff of Greeting WHereas by the Advice and Consent of our Councel for certain difficult and urgent Businesses concerning Us the State and Defence of our Kingdom of England and the English Church We have ordained a certain Parliament of ours to be held at Our City of the day of next ensuing and there to have Conference and to treat with the Prelates Great men and Peers of our said Kingdom We command and straitly enjoyn you that making Proclamation at the next County-Court after the Receipt of this our Writ to be holden the day and place aforesaid You cause two Knights girt with Swords the most fit and discreet of the County aforesaid and of every City of that County two Citizens of every Borough two Burgesses of the discreeter and most sufficient to be freely and indifferently chosen by them who shall be present at such Proclamation according to the Tenor of the Statutes in that case made and provided and the Names of the said Knights Citizens and Burgesses so chosen to be inserted in certain Indentures to be then made between you and those that shall be present at such Election whether the Parties so elected be present or absent and shall make them to come at the said day and Place so that the said Knights for themselves and for the County aforesaid and the said Citizens and Burgesses for themselves and the Commonalty of the aforesaid Cities and Boroughs may have severally from them full and sufficient Power to Perform and to Consent to those things which then by the Favour of God shall there happen to be ordained by the Common-Councel of our said Kingdom concerning the Businesses aforesaid So that the Business may not by any means remain undone for want of such Power or by reason of the improvident Election of the aforesaid Knights Citizens and Burgesses But We will not in any case you or any other Sheriff of Our said Kingdom shall be elected And at the Day and Place aforesaid the said Election made in the full County-Court you shall certifie without Delay to Us in our Chancery under your Seal and the Seals of them which shall be present
sift out what is comprised in the Writ for the Election of the Commons to Parliament since it is certain though the Writ doth not yet Privilege of Parliament gives sufficient Power for all Proceedings of the Two Houses It is answered that what slight Esteem soever be made of the Writ yet in all other cases the Original Writ is the Foundation of the whole business or action and to vary in Substance from the Writ makes a nullity in the Cause and the Proceedings thereupon and where a Commissioner exerciseth more Power than is warranted by his Commission every such Act is void and in many Cases punishable yet we will lay aside the Writ and apply our selves to consider the Nature of Privilege of Parliament The Task is the more difficult for that we are not told what the number of Privileges are or which they be some do think that as there be dormant Articles of Faith in the Roman Church which are not yet declared so there be likewise Privileges dormant in the House of Commons not yet revealed we must therefore be content in a generality to discourse of the Quality or Condition of Privilege of Parliament and to confine our selves to these three points 1. That Privilege of Parliament gives no power but only helps to the execution of the Power given by the Writ 2. That the Free-holders by their Elections give no Privilege 3. That Privilege of Parliament is the Gift of the King First The End or Scope of Privilege of Parliament is not to give any Power to do any publick Act not warranted by the Writ but they are intended as Helps only to enable to the Performance of the Duty enjoyned and so are subservient to the Power comprised in the Writ For Instance the grand Privilege of Freedom from Arrests doth not give any Power at all to the House of Commons to do any act but by taking away from the Free-holders and other Subjects the Power of Arrests the Commons are the better inabled to attend the Service to which they are called by the King In many other Cases the Servants oâ—… Ministers of the King are privileged and protected much in the same Nature The Servants in houshold to the King may not be arrested without special Licence Also the Officers of the Kings Courts of Justice have a Privilege not to be sued in any other Court but where they serve and attend and to this Purpose they are allowed a Writ of Privilege Likewise all such as serve the King in his Wars or are imployed on forreign Affairs for him are protected from Actions and Sutes Nay the Kings Protection descends to the privileging even of Laundresses Nurses and Midwives if they attend upon the Camp as Sir Edw. Coke saith quia Lotrix seu Nutrix seu obstetrix Besides the King protects his Debtors from Arrests of the Subject till his own Debts be paid These sorts of Protections are Privileges the Common Law takes notice of and allows and hath several Distinctions of them and some are Protections quia profecturus and others are quia moraturus some are with a Clause of volumus for stay of Suits others with a Clause of Nolumus for the safety of mens Persons Servants and Goods and the Kings Writs do vary herein according to the Nature of the Business But none of these Privileges or Protections do give any Power they are not positive but privative they take away and deprive the Subject of the Power or Liberty to arrest or sue in some cases only no Protection or Privilege doth defend in point of Treason Felony or Breach of the Peace Privileges are directly contrary to the Law for otherwise they should not be Privileges and they are to be interpreted in the strictest manner as being odious and contrary to Law we see the Use of Privileges they do but serve as a Dispensation against Law intended originally and principally for the expediting of the Kings Business though secondarily and by accident there do sometimes redound a Benefit by them to the Parties themselves that are protected Strictly and properly every Privilege must be against a publick or common Law for there is no Use or Need of a private Law to protect where there is no publick Law to the contrary Favours and Graces which are only besides and not against the Law do not properly go under the name of Privileges though common Use do not distinguish them I know no other Privilege that can be truly so called and to belong to the House of Commons which is so vast and great as this Privilege of their Persons Servants and Goods this being indeed against the Common Law and doth concern the whole Kingdom to take notice of it if they must be bound by it Touching this grand Privilege of Freedom from Arrests I read that in the 33 Hen. 8. the Commons did not proceed to the Punishment of Offenders for the breach of it untill the Lords referred the Punishment thereof to the Lower House The Case is thus reported George Ferrers Gentleman Servant to the King and Burgesse for Plymouth going to the Parliament House was arrested in London by Process out of the Kings Bench for Debt wherein he had before been condemned as Surety for one Welden at the Sute of one White which Arrest signified to Sir Thomas Moyl Speaker and to the rest the Serjeant called Saint-Iohns was sent to the Counter in Breadstreet to demand Ferrers The Officer of the Counter refused to deliver him and gave the Serjeant such ill Language that they fall to an Affray the Sheriff coming taketh the Officers part the Serjeant returned without the Prisoner This being related to the Speaker and Burgesses they would sit no more without their Burgess and rising repaired to the Upper House where the Case was declared by the Speaker before Sir Thomas Audley Chancellor and the Lords and Iudges there assembled who judging the Contempt to be very great referred the Punishment thereof to the House of Commons it self This Privilege of Freedom from Arrestâ—… is the only Privilege which Sir Edward Coke finds to belong to the House of Commons he cannot or at least he doth not so much as name any other in his Section of the Privileges of Parliament neither doth he bring so much as one Precedent for the Proof of this one Privilege for the House of Commons which may cause a Doubt that this sole Privilege is not so clear as many do imagine For in a Parliament in the 27 Eliz. Richard Coke a Member being served with a Subpoena of Chancery the Lord Chancellor thought the House had no such Privilege for Subpoena's as they pretended neither would he allow of any Precedents of the House committed unto them formerly used in that Behalf unless the House of Commons could also prove the same to have been likewise thereupon allowed and ratified also by Precedents in the Court of Chancery In the 39 of Eliz. Sir Edw. Hobby and Mr. Brograve Attorney
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
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
Westminster and at the dissolution were translated to the Kings Chappel at White-hall Also I read that Westminster-hall being out of Repair Ric. 2. caused a large House to be builded betwixt the Clock-tower and the Gate of the great old Hall in the midst of the Palace Court the House was long and large made of Timber covered with Tiles open on both sides that all might see and hear what was both said and done four thousand Archers of Cheshire which were the Kings own Guard attended on that House and had bouche a Court and 6 d. by the day Thirdly he saith The Commons are to chuse their Speaker but seeing after their Choice the King may refuse him the Use is as in the conge d'eslire of a Bishop that the King doth name a Discreet Learned man whom the Commons Elect when the Commons have chosen the King may allow of his Excuse and Disallow him as Sir John Popham was saith his Margin Fourthly he informs us That the first day of the Parliament four Iustices assistants and two Civilianâ—… Masters of the Chancery are appointed Receivers 〈◊〉 Petitions which are to be delivered within six dayes following and six of the Nobility and two Bishops calling to them the Kings Learned Councel when neeâ—… should be to be Tryers of the said Petitions whether theâ—… were reasonable good and necessary to be offered and propounded to the Lords He doth not say that any 〈◊〉 the Commons were either Receivers or Tryers 〈◊〉 Petitions nor that the Petitions were to be propounded to Them but to the Lords Fifthly he teacheth us that a Knight Citizen 〈◊〉 Burgess cannot make a Proxy because he is Electeâ—… and Trusted by multitudes of People here a Questioâ—… may be whether a Committee if it be Trusted to 〈◊〉 any thing be not a Proxy since he saith the Hiâ—… Power of Parliament to be committed to a few is holdâ—… to be against the Dignity of Parliaments and that 〈◊〉 such Commission ought to be granted Sixthly he saith The King cannot take notice of 〈◊〉 thing said or done in the House of Commons but by 〈◊〉 Report of the House Surely if the Commons saâ—… with the Lords and the King were present 〈◊〉 might take notice of what was done in His Presence And I read in Vowel that the old Usage wâ—… that all the Degrees of Parliament sate together 〈◊〉 every man that had there to speak did it openly befâ—… the King and his whole Parliament In the 35 Eliz. there was a Report that the Commons were against the Subsidies which was toâ—… the Queen whereupon Sir Henry Knivet said it should be a thing answerable at the Bar for any man to report any thing of Speeches or Matters done in the House Sir John Wolley liked the Motion of Secrecy except only the Queen from whom he said there is no reason to keep any thing And Sir Robert Cecil did allow that the Councel of the House should be secretly kept and nothing reported in malam partem But if the meaning be that they might not report any thing done here to the Queen he was altogether against it Seventhly he voucheth an Enditement or Information in the Kings Bench against 39 of the Commons for departing without License from Parliament contrary to the Kings Inhibition whereof six submitted to their Fines and Edmund Ployden pleaded he remained continually from the beginning to the end of the Parliament Note he did not plead to the Jurisdiction of the Court of Kings Bench but pleaded his constant Attendance in Parliament which was an Acknowledgment and submitting to the Jurisdiction of that Court and had been an unpardonable betraying of the Privileges of Parliament by so learned a Lawyer if his Case ought only to be tryed in Parliament Eighthly he resolves that the House of Lords in their House have Power of Iudicature and the Commons in their House and both Houses together He brings Records to prove the Power of Judicature of both Houses together but not of either of them by it self He cites the 33 Edw. 1. for the Judicature of both Houses together where Nicholas de Segrave was adjudged per Praelatos Comites Barones alios de Concilio by the Prelates Earls and Barons and others of the Councel Here is no mention of the Judgment of the Commons Others of thâ—… Councel may mean the Kings Privy Councel 〈◊〉 his Councel Learned in the Laws which are called by their Writs to give Counsel but so are not the Commons The Judgment it self saith Nicholâ—… de Segrave confessed his fault in Parliament and submitted himself to the Kings Will thereupoâ—… the King willing to have the Advice of the Earlâ—… Barons Great men and others of his Councel enjoyned them by the Homage Fealty and Allegâ—…ance which they owed that they should faithfull counsel Him what Punishment should be inflicteâ—… for such a Fact who all advising diligently saâ—… That such a Fact deserves loss of Life and Memberâ—… Thus the Lords we see did but Advise the Kinâ—… what Judgment to give against him that deserteâ—… the Kings Camp to fight a Duel in France Ninthly he saith Of later times see divers not abâ—… Iudgments at the Prosecution of the Commons by tâ—… Lords where the Commons were Prosecutors theâ—… were no Judges but as he termes them generâ—… Inquisitors or the Grand Inquest of the Kingdom Thâ—… Judgments he cites are but in King Iames his dayeâ—… and no elder Tenthly also he tells us of the Iudicature in tâ—… House of Commons alone his most ancient precedenâ—… is but in Queen Elizabeths Reign of one Tho. Lonâ—… who gave the Maior of Westbury 10 l. to be electâ—… Burgess Eleventhly he hath a Section entitled The Housâ—… of Commons to many Purposes a distinct Court anâ—… saith Nota the House of Commons to many Purposes 〈◊〉 distinct Court of those many Purposes he tells but one that is it uses to adjourn it self Commissioners thaâ—… be but to examine Witnesses may Adjourn themselves yet are no Court. Twelfthly he handles the Privileges of Parliament where the great Wonder is that this great Master of â—…he Law who hath been oft a Parliament-man could â—…ind no other nor more Privileges of Parliament â—…ut one and that is freedom from Arrests which he â—…aith holds unless in three cases Treason Felony and â—…he Peace And for this freedom from Arrests he cites Antient Precedents for all those in the House of Lords but he brings not one Precedent at all for the Commons Freedom from Arrests It is behooful for a Free-holder to consider what Power is in the House of Peers for although the Free-holder have no Voice in the Election of the Lords yet if the Power of that House extend to make Ordinances that bind the Free-holders it is necessary for him to enquire what and whence that Power is and how far it reacheth The chief Writ of â—…ummons to the Peers was in these words CAROLUS Dei Gratia c. Reverendissimo in Christo
patri G. eadem gratia Archiepiscopo Cantuarienâ—…i totius Angliae Primati Metropolitano salutem Quia de advisamento assensu Concilii nostri pro quiâ—…usdam arduis urgentibus negotiis Nos statum defensionem regni nostri Angliae ecclesiae Anglicaâ—…ae concernentibus quoddam Parliamentum nostrum apud W. c. teneri ordinavimus ibidem vobiscum cum â—…aeteris Praelatis Magnatibus Proceribus dicti regni nostri Angliae colloquium habere tractatum Vobis â—…n fide dilectione quibus nobis tenemini firmiter injungendo mandamus quod consideratis dictorum negotioruâ—… arduitate periculis imminentibus cessante quacunquâ—… excusatione dictis die loco personaliter intersitis Nobiscum cum caeteris Praelatis Magnatibus Proceribâ—… praedictis super dictis negotiis tractaturi vestrumque concilium impensuri hoc sicut Nos Honorem nostrâ—…ac salvationem regni praedicti ac ecclesiae sanctae expeditionemque dictorum negotiorum diligitis nullatenus omittatiâ—… Praemonentes Decanum capitulum ecclesiae vestrae Caâ—…tuariensis ac Archidiacanos totumque Clerum vestrae Diâ—…cesis quod idem Decanus Archidiaconi in propriis peâ—…sonis suis ac dictum Capitulum per unum idemque Clerâ—… per duos Procuratores idoneos plenam sufficientem poâ—… statem ab ipsis Capitulo Clero habentes praedictis die â—… loco personaliter intersint ad consentiendum hiis quae tuâ—…ibidem de Commune Concilio ipsius Regni Nostri divinâ—… favente Clementia contigerint ordinari Teste Meipso apâ—… West c. CHARLES by the Grace of God c. To the moâ—… Reverend Father in Christ W. by the samâ—… Grace Arch-bishop of Canterbury Primate and Metropolitan of all England Health Whereas by thâ—… Advice and Assent of our Councel for certain difficult and urgent Businesses concerning Us the Statâ—… and Defence of Our Kingdom of England and 〈◊〉 the English Church We have Ordained a certaâ—… Parliament of Ours to be holden at W. c. aâ—… there to have Conference and to treat with you thâ—… Prelats Great men and Peers of Our said Kingdoâ—… We straitly Charge and Command by the Faiâ—… and Love by which you are bound to Us that coâ—…sidering the Difficulties of the Businesses aforesaiâ—… and the imminent Dangers and setting aside all Excuse you be personally present at the Day and Place aforesaid to treat and give your Counsel concerning the said Businesses And this as you love Us and Our Honour and the Safeguard of the foresaid Kingdom and Church and the Expedition of the said Businesses you must no way omit Forewarning the Dean and Chapter of your Church of Canterbury and the Arch-deacons and all the Clergy of your Diocese that the same Dean and the Arch-deacon in their proper Persons and the said Chapter by one and the said Clergy by two fit Proctors having full and sufficient Power from them the Chapter and Clergy be personally present at the foresaid Day and Place to Consent to those things which then and there shall happen by the favour of God to be Ordained by the Common Councel of our Kingdom Witness Our Self â—…t Westm. The same Form of Writ mutatis mutandis concluding with you must no way omit Witness c. â—…s to the Temporal Barons But whereas the Spirituâ—…l Barons are required by the Faith and Love the Temporal are required by their Allegiance or Homage The Difference between the two Writs is that the Lords are to Treat and to Give Counsel the Commons â—…re to Perform and Consent to what is ordained By this Writ the Lords have a deliberative or a â—…onsultive Power to Treat and give Counsel in difficult Businesses and so likewise have the Judges Barons â—…f the Exchequer the Kings Councel and the Maâ—…ters of the Chancery by their Writs But over and â—…esides this Power the Lords do exercise a decisive or Iudicial Power which is not mentioned or found in their Writ For the better Understanding of these two different Powers we must carefully note the distinction between a Iudge and a Counsellor in a Monarchy the ordinary Duty or Office of a Iudge is to give Judgment and to command in the Place of the King but the ordinary Duty of a Counsellor is to advise the King what he himself shall do or cause to be done The Iudge represents the Kings Person in his absence the Counsellor in the Kings Presence gives his Advice Iudges by their Commission oâ—… Institution are limited their Charge and Power and in such things they may judge and cause their Judgments to be put in Execution But Counsellors have no Power to command their Consultations to bâ—… executed for that were to take away the Sovereignty from their Prince who by his Wisdom is to weighâ—… the Advice of his Councel and at liberty to resolvâ—… according to the Judgment of the wiser part of hiâ—… Councel and not always of the greater In a word regularly a Counsellor hath no Power but in thâ—… Kings Presence and a Iudge no Power but out oâ—… his Presence These two Powers thus distinguished have yet such Correspondency and there is so neeâ—… Affinity between the Acts of judging and counselling that although the ordinary Power of the Judgâ—… is to give Judgment yet by their Oath they arâ—… bound in Causes extraordinary when the King pleaseth to call them to be his Counsellors and oâ—… the other side although the proper work of a Counsellor be only to make Report of his Advice to his Sovereign yet many times for the Ease only and by the Permission of the King Counsellors are allowed to judge and command in Points wherein ordinarily they know the mind of the Prince and what they do is the act of the Royal Power it self for the Councel is always presupposed to be united to the Person of the King and therefore the Decrees of the Councel are styled By the King in his Privy Councel To apply this Distinction to the House of Peers we find originally they are called as Counsellors to the King and so have only a deliberative Power specified in their Writ and therefore the Lords do only then properly perform the Duty for which they are called when they are in the Kings Presence that He may have Conference and treat with them the very Words of the Writ are nobiscum ac cum Praelatis Magnatibus Proceribus praedictis super dictis negotiis tractaturi vestrumque concilium impensuri with Us and with the Prelates Great men and Peers to treat and give your councel the word Nobiscum implieth plainly the Kings Presence It is a thing in reason most absurd to make the King assent to the Judgments in Parliament and allow Him no part â—…n the Consultation this were to make the King â—… Subject Councel loseth the name of Councel â—…nd becomes a Command if it put a Necessiâ—…y upon the King to follow it such Imperious Councels make those that are but Counsellors â—…n name to
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
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
first before the Councel of Edw. 4. after that before the President of the Requests of that King Hen. 7. and then lastly before the Councel of the said King 1 Hen. 7. In the time of Hen. 3. an Order or Provision was made by the Kings Councel and it was pleaded at the Common Law in Bar to a Writ of Dower the Plaintifs Atturney could not deny it and thereupon the Judgment was ideo sine die It seems in those days an Order of the Kings Councel was either parcell of the Common Law or above it Also we may find the Judges have had Regard that before they would resolve or give Judgment in new Cases they consulted with the Kings Privy Councel In the case of Adam Brabson who was assaulted by R. W. in the Presence of the Justices of Assise at Westminster the Judges would have the Advice of the Kings Councel for in a like Case because R. C. did strike a Juror at Westminster which passed against one of his Friends It was adjudged by all the Councel that his right hand should be cut off and his Lands and Goods forfeited to the King Green and Thorp were sent by the Judges to the Kings Councel to demand of them whether by the Stat. of 14 Edw. 3. 16. a word may be amended in a Writ and it was answered that a word may be well amended although the Stat. speaks but of a Letter or Syllable In the Case of Sir Thomas Ogthred who brought a Formedon against a poor man and his Wife they came and yielded to the Demandant which seemed suspitious to the Court whereupon Judgment was staid and Thorp said that in the like case of Giles Blacket it was spoken of in Parliament and we were commanded that when any like should come we should not go to Judgment without good Advice therefore the Judges Conclusion was Sues an counseil comment ils voilent que nous devomus faire nous volums faire autrement nient en oest case sue to the Councel and as they will have us to do we will do and otherwise not in this Case 39 Edw. 3. Thus we see the Judges themselves were guided by the Kings Councel and yet the Opinions of Judges have guided the Lords in Parliament in Point of Law All the Judges of the Realm Barons of Exchequer of the Quoif the Kings learned Councel and the Civilians Masters of Chancery are called Temporal Assistants by Sir Edw. Coke and though he deny them Voices in Parliament yet lie confesseth that by their Writ they have Power both to treat and to give Councel I cannot find that the Lords have any other Power by their Writ the Words of the Lords Writ are That you be present with Us the Prelates Great men and Peers to treat and give your Counsel The words of the Judges Writ are that you be present with Us and others of the Counsel and sometimes with Us only to treat and give your Counsel The Judges usually joyned in Committees with the Lords in all Parliaments even in Queen Eliz. Reign untill her 39th Year and then upon the 7th of November the Judges were appointed to attend the Lords And whereas the Judges have Liberty in the upper House it self upon Leave given them by the L. Keeper to cover themselves now at Committees they sit always uncovered The Power of Judges in Parliament is best understood if we consider how the judicial Power of Peers hath been exercised in matter of Judicature we may find it hath been the Practice that though the Lords in the Kings Absence give Judgment in Point of Law yet they are to be directed and regulated by the Kings Judges who are best able to give Direction in the difficult Points of the Law which ordinarily are unknown to the Lords And therefore if any Errour be committed in the Kings Bench which is the highest ordinary Court of Common Law in the Kingdom that Errour must be redressed in Parliament And the Manner is saith the Lord Chancellor Egerton If a Writ of Errour be sued in Parl. upon a Iudgment given by the Iudges in the Kings Bench the Lords of the higher House alone without the Commons are to examine the Errours The Lords are to proceed according to the Law and for their Iudgments therein they are to be informed by the Advice and Councel of the Iudges who are to inform them what the Law is and to direct them in their Iudgment for the Lords are not to follow their own Discretion or Opinion otherwise 28 Hen. 6. the Commons made Sute that W. de la Pool D. of Suffolk should be committed to Prison for many Treasons and other Crimes the Lords of the higher House were doubtful what Answer to give the Opinion of the Iudges was demanded their Opinion was that he ought not to be committed for that the Commons did not charge him with any particular Offence but with general Reports and Slanders this Opinion was allowed 31. Hen. 6. A Parliament being prorogued in the Vacation the Speaker of the House of Commons was condemned in a thousand Pounds Damages in an Action of Trespass and committed to Prison in Execution for the same when the Parliament was re-assembled the Commons made sute to the King and Lords to have their Speaker delivered The Lords demanded the Opinion of the Judges whether he might be delivered out of Prison by Privilege of Parliament upon the Judges Answer it was concluded that the Speaker should remain iâ—… Prison according to the Law notwithstanding the Privilege of Parliament and that he was Speaker which Resolution was declared to the Commons by Moyâ—… the Kings Serjeant at Law and the Commons were commanded in the Kings name by the Bishop 〈◊〉 Lincoln in the absence of the Arch-bishop of Canterbury then Chancellor to chuse another Speaker 7 Hen. 8. A Question was moved in Parliament Whether Spiritual Persons might be convented before Temporal Iudges for criminal Causes there Sir Iohn Fineux and the other Judges delivered their Opinion that they might and ought to be and their Opinion allowed and maintained by the King and Lords and Dr. Standish who before had holden the same Opinion wâ—… delivered from the Bishops I find it affirmed that in Causes which receive Determination in the House of Lords the King hath 〈◊〉 Vote at all no more than in other Courts of ministerial Iurisdiction True it is the King hath no Vote at all if we understand by Vote a Voice among others for he hath no partners with Him in giving Judgement But if by no Vote is meant he hath no Power to judge we dispoil him of his Sovereignty It is the chief Mark of Supremacy to judge in the highest Causes and last Appeals This the Children of Israel full well understood when they petitioned for a King to judge them if the dernier resoâ—… be to the Lords alone then they have the Supremacy But as Moses by chusing Elders to judge in small Causes did
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
of the Dutchy were sent by the House to the Lord Keeper in the name of the whole House to require his Lordship to revoke two Writs of Subpoena's which were served upon M. Th. Knevit a Member of the House since the Beginning of Parliament The Lord Keeper demanded of them whether they were appointed by any advised Consideration of the House to deliver this Message unto him with the word Required in such manner as they had done or no they answered his Lordship yea his Lordship then said as he thought reverently and honourably of the House and of their Liberties and Privileges of the same so to revoke the said Subpoena's in that sort was to restrain Her Majesty in Her greatest Power which is Iustice in the Place wherein he serveth under Her and therefore he concluded as they had required him to revoke his Writ so he did require to deliberate Upon the 22 of February being Wednesday 18 Eliz. Report was made by Mr. Attorney of the Dutchy upon the Committee for the delivering of one Mr. Hall's man that the Committee found no Precedent for setting at large by the Mace any Person in Arrest but only by Writ and that by divers Precedents of Records perused by the said Committee it appeareth that every Knight Citizen or Burgess which doth require Privilege hath used in that case to take a Corporal Oath before the Lord Chancellor or Lord Keeper that the party for whom such Writ is prayed Came up with him and was his Servant at the time of the Arrest made Thereupon M. Hall was moved by the House to repair to the Lord Keeper and make Oath and then take a Warrant for a Writ of Privilege for his Servant It is accounted by some to be a Privilege of Parliament to have power to Examine Misdemeanours of Courts of Justice and Officers of State yet there is not the meanest Subjest but hath liberty upon just cause to question the misdemeanour of any Court or Officer if he suffer by them there is no Law against him for so doing so that this cannot properly be called a Privilege because it is not against any publick Law It hath been esteemed a great Favour of Princes to permit such Examinations For when the Lords were displeased with the Greatness of Pierce Gaveston it is said that in the next Parliament the whole Assembly obtain of the King to draw Articles of their Grievances which they did Two of which Articles were First that all Strangers should be banished the Court and Kingdom oâ—… which Gaveston was one Secondly that the business of the State should be treated of by the Councel of the Clergy and Nobles In the Reign of King Henry the sixth one Mortimer an Instrument of the Duke of York by promising the Kentish men a Reformation and freedom from Taxations wrought with the people that they drew to a Head and made this Mortimer otherwise Iack Cade their Leader who styled himself Captain Mend-all He presents to the Parliament the Complaints of the Commons and he petitions that the Duke of York and some other Lords might be received by the King into favour by the undue Practices of Suffolk and his Complices commanded from his Presence and that all their Opposites might be banished the Court and put from their Offices and that there might be a general amotion of corrupt Officers These Petitions are sent from the Lower House to the Upper and from thence committed to the Lords of the Kings Privy Councel who having examined the particulars explode them as frivolous and the Authors of them to be presumptuous Rebels Concerning Liberty or freedom of Speech I find that at a Parliament at Black Friars in the 14 of Henry the Eighth Sir Tho. More being chosen Speaker of the House of Commons He first disabled himself and then petitioned the King that if in Communication and Reasoning any man in the Commons House should speak more largely than of duty they ought to do that all such Offences should be pardoned and to be entred of Record which was granted It is observable in this Petition that liberty or freedom of Speech is not a power for men to speak what they will or please in Parliament but a Privilege not to be punished but pardoned for the offence of speaking more largely than in duty ought to be which in an equitable construction must be understood of rash unadvised ignorant or negligent Escapes and Slips in Speech and not for wilful malicious Offences in that kind And then the Pardon of the King was desired to be upon Record that it might be pleaded in Bar to all Actions And it seemeth that Ric. Strood and his Complices were not thought sufficiently protected for their free Speech in Parliament unless their Pardon were confirmed by the King in Parliament for there is a printed Statute to that purpose in H. 8 ths time Touching the freedom of Speech the Commons were warned in Q. Eliz. dayes not to meddle with the Queens Person the State or Church-government In her time the Discipline of the Church was so strict that the Litany was read every morning in the House of Commons during the Parliament and when the Commons first ordered to have a Fast in the Temple upon a Sunday the Queen hindred it 21 Ian. Saturday 23 Eliz. the Case is thus reported Mr. Paul Wentworth moveth for a Publick set Fast and for a Preaching every morning at 7 of the clock before the House sate the House was divided about the Fast 115 were for it and an 100 against it it was ordered that as many of the House as conveniently could should on Sunday fortnight after Assemble and meet together in the Temple-Church there to hear Preaching and to joyn together in Prayer with Humiliation and Fasting for the Assistance of God's Spirit in all their Consultations during this Parliament and for the Preservation of the Queens Majesty and Her Realms And the Preachers to be appointed by the Privy Councel that were of the House that they may be Discreet not medling with Innovation or Unquietness This Order was followed by a Message from Her Majesty to the House declared by Mr. Vice-chamberlain that Her Highness had a great Admiration of the rashness of this House in committing such an apparent Contempt of her express Command as to put in execution such an Innovation without Her privity or pleasure first known Thereupon Mr. Vice-chamberlain moved the House to make humble submission to Her Majesty acknowledging the said Offence and Contempt craving a Remission of the same with a full purpose to forbear the Committing of the like hereafter and by the Consent of the whole House Mr. Vice-chamberlain carried their Submission to her Majesty 35 Eliz. Mr. Peter Wentworth and Sir Henry Bromley delivered a Petition to the Lord Keeper desiring the Lords of the upper House to be Suppliants with them of the lower House unto her Majesty for entailing the Succession of the Crown Whereof a Bill
was ready drawn by them Her Majesty was highly displeased herewith as contrary to her former strait Command and charged the Councel to call the Parties before them Sir Thomas Henage sent for them and after Speech with them commanded them to forbear the Parliament and not to go out of their several Lodgings after they were called before the Lord Treasurer the Lord Buckhurst and Sir Thomas Henage Mr. Wentworth was committed by them to the Tower Sir Henry Bromley with Mr. Richard Stevens to whom Sir Henry Bromley had imparted the Matter were sent to the Fleet as also Mr. Welch the other Knight for Worcestershire In the same Parliament Mr. Morrice Attorney of the Court of Wards moved against the hard Courses of the Bishops Ordinaries and other Ecclesiastical Judges in their Courts used towards sundry Learned and godly Ministers and Preachers and spake against Subscription and Oaths and offer'd a Bill to be read against Imprisonment for refusal of Oaths Mr. Dalton opposed the Reading of it as a thing expresly against Her Majesties Command to meddle in Doctor Lewin shewed that Subscription was used even at Geneva At two of the clock the same day the Speaker Mr. Coke afterwards Sir Edward Coke was sent for to the Court where the Queen Her self gave him in Command a Message to the House She told him It being wholly in Her Power to Call to Determine to Assent or Dissent to any thing done in Parliament that the Calling of This was only that the Majesty of God might be more religiously observed by compelling by some sharp Laws such as neglect that Service and that the Safety of Her Majesties Person and the Realm might be provided for It was not meant they should meddle with matters of State or Causes Ecclesiastical for so Her Majesty termed them she wondred that any could be of so high Commandement to attempt they were Her own words a thing so expresly contrary to that which She had commanded wherefore with this She was highly offended And because the words spoken by my Lord Keeper are not now perhaps well remembred or some bâ—… now here that were not then present Her Majesties present Charge and express Command is that no Bill touching the said matter of State or Reformation in Causes Ecclesiastical be exhibited and upon my Allegiance saith Mr. Coke I am charged if any such Bill be exhibited not to read it I have been credibly informed that the Queen sent a Messenger or Serjeant at Arms into the House of Commons and took out Mr. Morrice and committed him to prison within few dayes after I find Mr. Wroth moved in the House that they might be humble Suitors to Her Majesty that She would be pleased to set at liberty those Members of the House that were restrained To this it was answered by the Privy Counsellors that Her Majesty had committed them for Causes best known to Her self and to press Her Highness with this Suit would but hinder them whose Good is sought that the House must not call the Queen to account for what she doth of Her Royal Authority that the Causes for which they are restrained may be High and Dangerous that Her Majesty liketh no such Questions neither doth it become the House to searcâ—… into such matters In the 39 Eliz. The Commons were tolâ—… their Privilege was Yea and No and thaâ—… Her Majesties Pleasure was that if the Speaker perceived any idle heads which would not stick to hazard their own Estates which will meddle with reforming the Church and transforming the Commonweal and do exhibit Bills to that purpose the Speaker should not receive them till they were viewed and considered by those whom it is fitter should consider of such things and can better judge of them and at the end of this Parliament the Queen refused to pass 48 Bills which had passed both Houses In the 28 of Eliz. the Queen said She was sorry the Commons medled with chusing and returning Knights of the Shire for Norfolk a thing impertinent for the House to deal withal and only belonging to the Office and Charge of the Lord Chancellor from whom the Writs issue and are returned 4 Hen. 4. The 10 of October the Chancellor before the King declared the Commons had sent to the King praying him that they might have Advice and Communication with certain Lords about Matters of Business in Parliament for the common good of the Realm which Prayer Our Lord the King graciously granted making Protestation he would not do it of Duty nor of Custom but of his special Grace at this time and therefore Our Lord the King â—…harged the Clark of the Parliament that this Protestation should be entred on Record upon the Parliament-Roll which the King made known to them by the Lord Say and his Secretary how that neither of Due nor of Custom our Lord the King ought to grant any Lords to enter into Communication with them of Matters touching the Parliament but by his special Grace at this time he hath granted their Request in this Particular upon which matter the said Steward and Secretary made Report to the King in Parliament that the said Commons knew well that they could not have any such Lords to commune with them of any Business of Parliament without special Grace and Command of the King Himself It hath heretofore been a question whether it be not an Infringing and Prejudice to the Liberties and Privileges of the House of Commons for them to joyn in Conference with the Lords in Cases of Benevolence or Contribution without a Bill In the 35 Eliz. on Tuesday the first of March Mr. Egerton Attorney general and Doct. Carey came with a Message from the Lords their Lordships desired to put the House in Remembrance of the Speech delivered by the Lord Keeper the first day for Consultation and Provision of Treasure to be had aginst the great and imminent Dangers of the Realm thereupon their Lordships did look to have something from the Houses touching those Causes before this time and yet the Parliament had sate but three dayes for it began Feb. 26. and therefore their Lordships had hitherto omitted to do any thing therein themselves And thereupon their Lordships desired that according to former laudable Usages between both Houses in such like Cases a Committee of Commons may have Conference with a Committee of Lords touching Provision of Treasure against the great Dangers of the Realm which was presently resolved by the whole House and they signified to their Lordships the willing and ready Assent of the whole House At the Meeting the Lords negatively affirm not to assent to less than three Subsidies and do insist for a second Conference M. Francis Bacon yielded to the Subsidy but opposed the joyning with the Lords as contrary to the Privileges of the House of Commons thereupon the House resolved to have no Conference with the Lords but to give their Lordships most humble and dutiful Thanks with all Reverence for
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
Poor only for so the Opposition â—…eth but then Aristotle saw his Democratie wouâ—… prove to be no Transgression but a perfect Politie 〈◊〉 his Oligarchy would not be for the Benefit of a few and those the best men for they cannot be the best men that seek onely their private Profit In this Chapter the mind of Aristotle about the several kinds of Government is clearliest delivered as being the foundation of all his Books of Politiques it is the more necessary to make a curious Observation of these his Doctrines In the first place he acknowledgeth the Government of one man or of a Monarchy and that is a perfect Form of Government Concerning Monarchy Aristotle teacheth us the beginning of it for saith he the first Society made of many Houses is a Colony which seems most naturally to be a Colony of Families or Foster-bretheren of Children and Childrens children And therefore at the beginning Cities were and now Nations under the Government of Kings the Eldest in every house is King and so for Kindred sake it is in Colonies Thus he deduced the Original of Government from the Power of the Fatherhood not from the Election of the People This it seems he learnt of his Master Plato who in his third Book of Laws affirms that the true and first Reason of Authority is that the Father and Mother and simply those that beget and ingender do command and rule over all their Children Aristotle also tells us from Homer that every man gives Laws to his Wife and Children In the fourth Book of his Politiques cap. 2. he gives to Monarchy the Title of the first and divinest sort of Government defining Tyranny to be a Transgression from the first and divinest Again Aristotle in the eighth Book of his Ethicks in the 12 Chapter saith That of the right Kinds of Government a Monarchy was the best and a popular Estate the worst Lastly in the third Book of his Politiques and the sixteenth Chapter concerning Monarchy he saith that A perfect Kingdom is that wherein the King rules all things according to his own Will for he that is called a King according to the Law makes no kind of Government Secondly he saith there is a Government of a few men but doth not tell us how many those few men may or must be only he saith they must be more than one man but how many that he leaves uncertain This perfect Government of a few any man would think Aristotle should have called an Oligarchy for that this word properly signifies so much but in stead of the Government of a few Aristotle gives it a quite other name and terms it an Aristocraty which signifies the Power of the best the reason why it is called an Aristocraty saith Aristotle is for that there the best men govern or because that is not always true for that it is for the best of the governed by this latter reason any Government and most especially a Monarchy may be called an Aristocraty because the End of Monarchy is for the best of the governed as well as the End of an Aristocraty so that of these two Reasons for calling the Government of a few an Aristocratie the first is seldome true and the latter is never sufficient to frame a distinction This Aristotle himself confesseth in his next Chapter saying that the Causes aforesaid do not make a Difference and that it is Poverty and Riches and not Few and Many that makes the Difference between an Oligarchy and Democraty there must be an Oligarchy where rich men rule whether they be few or many and wheresoever the Poor have the Sovereignty there must be a Democraty Now if Aristotle will allow Riches and Poverty to make a Difference between an Oligarchy and a Democratâ—… these two must likewise make the Difference between an Aristocraty and a Polity for the only Difference Aristotle makes between them is in their Ends and not in their Matter for the same few men may make an Aristocraty if their End be the Common Good and they may be an Oligarchy if they aim only at their private Benefit Thus is Aristotle distracted and perplexed how to distinguish his Aristocratie whether by the smallness of their Number or by the Greatness of their Estates Nay if we look into Aristotles Rhetoriques we shall find a new Conceit not only about Aristocratie but also about the sorts of Government for whereas he has taught us in his Politiques that there be three sorts of right or perfect Government and as many sorts of wrong which he calls Transgressions or Corruptions he comes in his Rhetoriques and teacheth us that there be four sorts of Government 1 A Democratie when Magistracies are distributed by Lots 2. In an Oligarchy by their Wealth 3. In an Aristocratie by their Instructions in the Law It is necessary for these to appear the best from whence they have their name 4. A Monarchy according to the name wherein one iâ—… Lord over all Here we see Aristocratie is not distinguished by smallness of Number nor by Riches but by Skill in the Laws for he saith those that are instructed in the Laws govern in an Aristocratie 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Point 〈◊〉 dreamt of in his Politiques by which it seems Aristotle himself did not know well what he would haâ—… to be an Aristocratie And as he cannot teach us truly what an Aristocratie is so he is to seek to tells us where any Aristocratie ever was even himself seems to doubt whether there be any such Form of Government where he saith in his third Book of Politiques cap. 5. It is impossible for any Mechanical man to be a Citizen in an Aristocratie if there be any such Government as they call Aristocratical His if makes him seem to doubt of it yet I find him affirm that the Commonwealth of Carthage was Aristocratical he doth not say it was an Aristocratie for he confesseth it had many of the Transgressions which other Commonwealths had and did incline either to a Democratie or an Oligarchy The Government of Carthage did transgress from an Aristocratie to an Oligarchy And he concludes that if by Misfortune there should happen any Discord among the Carthaginians themselves there would be no Medicine by Law found out to give it Rest wherein me-thinks Aristotle was a kind of Prophet for the Discords between the Citizens of Carthage were the main Cause that Hannibal lost not only Italy but Carthage it self By these few Collections we may find how uncertain Aristotle is in determining what an Aristocratie is or where or when any such Government was it may justly be doubted whether there ever was or can be any such Government Let us pass from his Aristocraty to his third sort of perfect or right Government for which he finds no particular Name but only the common Name of all Government Politia It seems the Greeks were wonderfully to seek that they of
the Bodies of the Tribunes from all Arrests or other Violence they grew in time by Degrees to such Boldness that by stopping the legal Proceedings of the Consuls when they pleased to intercede they raised such an Anarchy oft times in Government that they themselves might act and take upon them what Power soever they pleased though it belonged not to them This Gallantry of the Tribunes was the Cause that the Commons of Rome who were diligent Pretenders to Liberty and the great Masters of this part of Politiques were thought the only famous Preservers and Keepers of the Liberty of Rome And to do them right it must be confessed they were the only men that truly understood the Rights of a Negative Voice if we will allow every man to be naturally free till they give their Consent to be bound we must allow every particular Person a Negative Voice so that when as all have equal Power and are as it were fellow-Magistrates or Officers each man may impeach or stop his Fellow-Officers in their Proceedings this is grounded upon the general Reason of all them which have any thing in Common where he which forbiddeth or denyeth hath most Right because his Condition in that Case is better than his which commandeth or moveth to proceed for every Law or Command is in it self an Innovation and a Diminution of some part of popular Liberty for it is no Law except it restrain Liberty he that by his negative Voice doth forbid or hinder the Proceeding of a new Law doth but preserve himself in that Condition of Liberty wherein Nature hath placed him and whereof he is in present Possession the Condition of him thus in Possession being the better the stronger is his Prohibition any single man hath a juster Title to his Negative Voice than any Multitude can have to their Affirmative to say the People are free and not to be governed but by their own Consent and yet to allow a major part to rule the whole is a plain Contradiction or a destruction of natural Freedom This the Commons of Rome rightly understood and therefore the transcendent Power of the Negative Voice of any one Tribune being able of it self to stay all the Proceedings not of the Consuls and Senate only and other Magistrates but also of the rest of his fellow-Tribunes made them seem the powerfullest men in all Rome and yet in Truth they had no Power or Jurisdiction at all nor were they any Magistrates nor could they lawfully call any man before them for they were not appointed for Administration of Justice but only to oppose the Violence and Abuse of Magistrates by interceeding for such as appealed being unjustly oppressed for which Purpose at first they sate only without the Door of the Senate and were not permitted to come within the Doors this Negative Power of theirs was of Force only to hinder but not to help the Proceedings in Courts of Justice to govern and not to govern the People And though they had no Power to make Laws yet they took upon them to propound Laws and flattered and humoured the Commons by the Agrarian and Frumentarian Laws by the first they divided the Common fields and conquered Lands among the Common People and by the latter they afforded them Corn at a cheaper or lower price by these means these Demagogues or Tribunes of the Commons led the Vulgar by the Noses to allow whatsoever Usurpations they pleased to make in Government The Royal Power of the Consuls was never taken away from them by any Law that I hear of but continued in them all the time of their pretended popular Government to the very last though repined at and opposed in some particulars by the Commons The No-Power or Negative Power of the Tribunes did not long give content to the Commons and therefore they desired that one of the Consuls might be chosen out of the Commonalty the eager propounding of this point for the Commons and the diligent opposing of it by the Nobility or Senate argues how much both parties regarded the Sovereign power of a Consul the Dispute lasted fourscore years within two the Tribunes pressing it upon all advantages of opportunity never gave over till they carried it by strong hand or stubbornness hindring all Elections of the Curule or greater Magistrates for five years together whereby the Nobles were forced to yield the Commons a Consul's place or else an Anarchy was ready to destroy them all and yet the Nobility had for a good while allowed the Commons Military Tribunes with Consular Power which in effect or substance was all one with having one of the Consuls a Commoner so that it was the bare Name of a Consul which the Commons so long strived for with the Nobility In this contentionsome Years Consuls were chosen some years Military Tribunes in such Confusion that the Roman Historians cannot agree among themselves what Consuls to assign or name for each Year although they have Capitoline Tables Sicilian and Greek Registers and Kalenders Fragments of Capitoline Marbles linen Books or Records to help them a good while the Commons were content with the Liberty of having one of the Consuls a Commoner but about fourscore years after they enjoyed this Privilege a Desire took them to have it enacted that a Decree of the Commons called a plebiscitum might be observed for a Law Hortensius the Dictator yielded to enact it thereby to bring back the Seditious Commons who departed to Ianiculum on the other side of Tybur because they were deeply engaged in Debt in regard of long Seditions and Dissensions The eleventh Book of Livy where this Sedition is set down is lost we have only a touch of it it in Florus his Epitome and St. Augustine mentions the Plundring of many Houses by the Commons at their departing this Sedition was above 220 years after the Expulsion of Kings in all which time the People of Rome got the Spoil of almost all Italy and the wealth of very many rich Cities and yet the Commons were in so great Penury and over whelmed with Debts that they fell to plunder the rich Houses of the Citizens which sounds not much for the Honour of a popular Government This communicating of a legislative Power to the Commons touching Power of enfranchising Allies Judgments Penal and Fines and those Ordinances that concerned the Good of the Commons called Plebiscita was a dividing of the Supreme Power and the giving a Share of it to others as well as to the Consuls and was in effect to destroy the legislative Power for to have two Supremes is to have none because the one may destroy the other and is quite contrary to the indivisible nature of Sovereignty The Truth is the Consuls having but annual Sovereignty were glad for their own Safety and Ease in Matters of great Importance and Weight to call together sometimes the Senate who were their ordinary Councel and many times the Centuries of the People who were
his own Will V. If it be demanded what is meant by the word People 1. Sometimes it is Populus universus and then every Child must have his Consent asked which is impossible 2. Sometimes it is pars major and sometimes it is pars potior sanior How the major part where all are alike free can bind the minor part is not yet proved But it seems the major part will not carry it nor be allowed except they be the better part and the sounder part We are told the sounder part implored the help of the Army when it saw it self and the Commonwealth betrayed and that the Souldiers judged better than the Great Councel and by Arms saved the Commonwealth which the Great Councel had almost damned by their Votes p. 7. Here we see what the People is to wit the sounder part of which the Army is the judge thus upon the matter the Souldiers are the People which being so we may discern where the Liberty of the People lieth which we are taught to consist all for the most part in the power of the Peoples Choosing what Form of Government they please pag. 61. A miserable Liberty which is onely to choose to whom we will give our Liberty which we may not keep See more concerning the People in a Book entituled The Anarchy p. 8 9 10 11 12 13 14. VI. We are taught that a Father and a King are things most diverse The Father begets us but not the King but we create the King Nature gives a Father to the People the People give themselves a King If the Father kill his Son he loseth his life why should not the King also p. 34. Ans. Father and King are not so diverse it is confessed that at first they were all one for there is confessed Paternum imperium haereditarium p. 141. and this Fatherly Empire as it was of it self hereditary so it was alienable by Patent and seizable by an Usurper as other goods are and thus every King that now is hath a Paternal Empire either by Inheritance or by Translation or Usurpation so a Father and a King may be all one A Father may dye for the Murther of his Son where there is a Superiour Father to them both or the Right of such a Supreme Father but where there are onely Father and Sons no Sons can question the Father for the death of their Brother the reason why a King cannot be punished is not because he is excepted from Punishment or doth not deserve it but because there is no Superiour to judge him but God onely to whom he is reserved VII It is said thus He that takes away from the People the power of Choosing for themselves what Form of Government they please he doth take away that wherein all Civil Liberty almost consists p. 65. If almost all Liberty be in Choosing of the Kind of Government the People have but a poor Bargain of it who cannot exercise their Liberty but in Chopping and Changing their Government and have liberty onely to give away their Liberty than which there is no greater mischief as being the cause of endless Sedition VIII If there be any Statute in our Law by which thou canst find that Tyrannical Power is given to a King that Statute being contrary to Gods Will to Nature and Reason understand that by that general and primary Law of ours that Statute is to be repealed and not of force with us p. 153. Here if any man may be judge what Law is contrary to Gods Will or to Nature or to Reason it will soon bring in Confusion Most men that offend if they be to be punished or fined will think that Statute that gives all Fines and Forfeitures to a King to be a Tyrannical Law thus most Statutes would be judged void and all our Fore-fathers taken for Fools or Madmen to make all our Laws to give all Penalties to the King IX The sin of the Children of Israel did lye not in Desiring a King but in desiring such a King like as the Nations round about had they distrusted God Almighty that governed them by the Monarchical Power of Samuel in the time of oppression when God provided a Judge for them but they desired a perpetual and hereditary King that they might never want in Desiring a King they could not sin for it was but Desiring what they enjoyed by Gods special Providence X. Men are perswaded that in Making of a Covenant something is to be performed on both parts by mutual Stipulation which is not alwayes true for we find God made a Covenant with Noah and his Seed with all the Fowl and the Cattel not to destroy the Earth any more by a flood This Covenant was to be kept on Gods part neither Noah nor the Fowl nor the Cattel were to perform any thing by this Covenant On the other side Gen. 17. 9 10. God covenants with Abraham saying Thou shalt keep my Covenant every male child among you shall be circumcised Here it is called Gods Covenant though it be to be performed onely by Abraham so a Covenant may be called the Kings Covenant because it is made to him and yet to be performed only by the People So also 2 Kin. 11. 17. Iehoiada made a Covenant between the Lord and the King and the People that they should be the Lords People Between the King also and the People which might well be that the People should be the Kings Servants and not for the King 's covenanting to keep any Humane Laws for it is not likely the King should either Covenant or take any Oath to the People when he was but seven years of age and that never any King of Israel took a Coronation-Oath that can be shewed when Iehoiada shewed the King to the Rulers in the House of the Lord he took an Oath of the People he did not Article with them but saith the next Verse Commanded them to keep a Watch of the Kings House and that they should compass the King around about every man with his weapon in his hand and he that cometh within the Ranges let him be slain XI To the Text Where the word of a King is there is Power and who may say unto him What dost thou J. M. gives this Answer It is apparent enough that the Preacher in this place gives Precepts to every private man not to the great Sanhedrin nor to the Senate shall not the Nobles shall not all the other Magistrates shall not the whole People dare to mutter so oft as the King pleaseth to dote We must here note that the great Councel and all other Magistrates or Nobles or the whole People compared to the King are all but private men if they derive their Power from him they are Magistrates under him and out of his Presence for when he is in place they are but so many private men I. M. asks Who swears to a King unless the King on the other side be sworn
forgot himself and reckons up a fifth kind of Monarchy which is saith he When one alone hath Supream power of all the rest for as there is a domestical Kingdom of one house so the Kingdom of a City or of one or many Nations is a Family These are all the sorts of Monarchy that Aristotle hath found out and he hath strained hard to make them so many first for his Lacedemonian King himself confesseth that he was but a kind of Military Commander in War and so in effect no more a King than all Generals of Armies And yet this No-king of his was not limited by any Law nor mixed with any companions of his Government when he was in the Wars out of the Confines of Lacedemon he was as Aristotle stiles him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of full and absolute command no Law no companion to govern his Army but his own will Next for Aristotles Aesymnetical King it appears he was out of date in Aristotles time for he saith he was amongst the antient Greeks 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Aristotle might well have spared the naming him if he had not wanted other sorts for the honour of his own Nation for he that but now told us the Barbarians were of a more servile nature than the Grecians comes here and tells us that these old Greek Kings were Elective Tyrants The Barbarians did but suffer Tyrants in shew but the old Grecians chose Tyrants indeed which then must we think were the greater slaves the Greeks or the Barbarians Now if these sorts of Kings were Tyrants we cannot suppose they were limited either by Law or joyned with companions Indeed Arist. saith some of these Tyrants were limited to certain times and actions for they had not all their power for term of life nor could meddle but in certain businesses yet during the time they were Tyrants and in the actions whereto they were limited they had absolute power to do what they list according to their own will or else they could not have been said to be Tyrants As for Aristotles Heroick King he gives the like note upon him that he did upon the Aesymnet that he was in old time 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the Heroick times The thing that made these Heroical Kingdoms differ from other sorts of Kingdoms was only the means by which the first Kings obtained their Kingdoms and not the manner of Government for in that they were as absolute as other Kings were without either limitation by Law or mixture of companions Lastly as for Arist. Barbarick sort of Kings since he reckoned all the world Barbarians except the Grecians his Barbarick King must extend to all other sorts of Kings in the world besides those of Greece and so may go under Aristotles fifth sort of Kings which in general comprehends all other sorts and is no special form of Monarchy Thus upon a true accompt it is evident that the five several sorts of Kings mentioned by Aristotle are at the most but different and accidental means of the first obtaining or holding of Monarchies and not real or essential differences of the manner of Government which was always absolute without either limitation or mixture I may be thought perhaps to mistake or wrong Aristotle in questioning his diversities of Kings but it seems Aristotle himself was partly of the same mind for in the very next Chapter when he had better considered of the point he confessed that to speak the truth there were almost but two sorts of Monarchies worth the considering that is his first or Laconique sort and his fifth or last sort where one alone hath Supream power over all the rest thus he hath brought his five sorts to two Now for the first of these two his Lacedemonian King he hath confessed before that he was no more than a Generalissimo of an Army and so upon the matter no King at all and then there remains onely his last sort of Kings where one alone hath the Supream power And this in substance is the final resolution of Aristotle himself for in his sixteenth Chapter where he delivers his last thoughts touching the kinds of Monarchy he first dischargeth his Laconick King from being any sort of Monarchy and then gives us two exact rules about Monarchy and both these are pointblank against limited and mixed Monarchy therefore I shall propose them to be considered of as concluding all Monarchy to be absolute and Arbitrary 1. The one Rule is that he that is said to be a King according to Law is no sort of Government or Kingdom at all 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 2. The second rule is that a true King is he that ruleth all according to his own will 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 This latter frees a Monarch from the mixture of partners or sharers in Government as the former rule doth from limitation by Laws Thus in brief I have traced Aristotle in his crabbed and broken passages touching diversities of Kings where he first finds but four sorts and then he stumbles upon a fifth and in the next Chapter contents himself onely with two sorts of Kings but in the Chapter following concludes with one which is the true perfect Monarch who rules all by his own will in all this we find nothing for a regulated or mixed Monarchy but against it Moreover whereas the Author of the Treatise of Monarchy affirms it as a prime principle That all Monarchies except that of the Iews depend upon humane designment when the consent of a society of men and a fundamental contract of a Nation by original or radical constitution confers power He must know that Arist. searching into the original of Government shews himself in this point a better Divine than our Author and as if he had studied the Book of Genesis teacheth That Monarchies fetch their Pedigree from the right of Fathers and not from the gift or contract of people his words may thus be Englished At the first Cities were Governed by Kings and so even to this day are Nations also for such as were under Kingly Government did come together for every House is governed by a King who is the eldest and so also Colonies are governed for kindred sake And immediately before he tells us That the first society made of many Houses is a Village which naturally seems to be a Colony of a House which some call foster-brethren or Children and Childrens Children So in conclusion we have gained Aristotles judgment in three main and essential points 1. A King according to Law makes no kind of Government 2. A King must rule according to his own will 3. The Original of Kings is from the right of Fatherhood What Aristotles judgment was two thousand years since is agreeable to the Doctrine of the great modern Politician Bodin Hear him touching limited Monarchy Unto Majesty or Soveraignty saith he belongeth an absolute power not subject to any Law Chief power given unto a Prince with condition is not properly
the remedy proved worse than the disease In all great distresses the body of the people were ever constrained to rise and by force of the major party to put an end to all intestine strifes and make a redress of all publick grievances But many times calamities grew to a strange height before so cumbersome a body could be raised and when it was raised the motions of it were so distracted and irregular that after much spoil and effusion of blood sometimes only one Tyranny was exchanged for another till some was invented to regulate the motions of the peoples moliminous body I think Arbitrary rule was most safe for the World but Now since most Countries have found an art and peaceable order for publick Assemblies whereby the people may assume its own power to do it self right without disturbance to it self or injury to Princes he is very unjust that will oppose this art or order That Princes may not be Now beyond all limits and Laws nor yet to be tyed upon those limits by any private parties the whole Community in its underived Majesty shall convene to do justice and that the Convention may not be without intelligence certain times and places and forms shall be appointed for its reglement and that the vastness of its own bulk may not breed confusion by vertue of election and representation a few shall act for many the wise shall consent for the simple the vertue of all shall redound to some and the prudence of some shall redound to all and surely as this admirably-composed Court which is now called a Parliament is more regularly and orderly formed than when it was called mickle Synod of Wittena-gemot or when this real body of the people did throng together at it so it is not yet perhaps without some defects which by art and policy might receive farther amendment some divisions have sprung up of late between both Houses and some between the King and both Houses by reason of incertainty of Iurisdiction and some Lawyers doubt how far the Parliament is able to create new forms and presidents and has a Iurisdiction over it self all these doubts would be solemnly solved but in the first place the true priviledges of Parliament belonging not only to the being and efficacy of it but to the honour and complement of it would be clearly declared for the very naming of priviledges of Parliament as if they were chimera's to the ignorant sort and utterly unknown unto the Learned hath been entertained with scorn since the beginning of this Parliament In this large passage taken out of the Observator which concerns the Original of all Government two notable Propositions may be principally observed First our Observator confesseth arbitrary or absolute government to be the first and the safest government for the world Secondly he acknowledgeth that the Iurisdiction is uncertain and the priviledges not clearly declared of limited Monarchy These two evident truths delivered by him he labours mainly to disguise He seems to insinuate that Arbitrary Government was but in the infancy of the World for so he terms it but if we enquire of him how long he will have this infancy of the world to last he grants it continued above three thousand years which is an unreasonable time for the world to continue under-age for the first opposers he doth finde of Arbitrary power were the Ephori Tribuni Curatores c. The Ephori were above three thousand years after the Creation and the Tribuni were later as for his Curatores I know not whom he means except the Master of the Court of Wards I cannot English the word Curator better I do not believe that he can shew that any Curatores or caetera's which he mentions were so antient as the Ephori As for the Tribuni he mistakes much if he thinks they were erected to limit and bound Monarchy for the State of Rome was at the least Aristocratical as they call it if not popular when Tribunes of the people were first hatched And for the Ephori their power did not limit or regulate Monarchy but quite take it away for a Lacedemonian King in the judgment of Aristotle was no King indeed but in name onely as Generalissimo of an Army and the best Politicians reckon the Spartan Common-wealth to have been Aristocratical and not Monarchical and if a limited Monarchy cannot be found in Lacedemon I doubt our Observator will hardly find it any where else in the whole World and in substance he confesseth as much when he saith Now most Countries have found out an art and peaceable order for publick Assemblies as if it were a thing but new done and not before for so the word Now doth import The Observator in confessing the Iurisdiction to be incertain and the priviledges undetermined of that Court that should bound and limit Monarchy doth in effect acknowledge there is no such Court at all for every Court consists of Iurisdictions and Priviledges it is these two that create a Court and are the essentials of it If the admirably composed Court of Parliament have some defects which may receive amendment as he saith and if those defects be such as cause divisions both between the Houses and between the King and both Houses and these divisions be about so main a matter as Iurisdictions and Priviledges and power to create new Priviledges all which are the Fundamentals of every Court for until they be agreed upon the act of every Court may not onely be uncertain but invalid and cause of tumults and sedition And if all these doubts and divisions have need to be solemnly solved as our Observator confesseth Then he hath no reason at all to say that Now the conditions of Supream Lords are wisely determined and quietly conserved or that Now most Countries have found out an art and peaceable order for publick affairs whereby the people may resume its own power to do it self right without injury unto Princes for how can the underived Majesty of the people by assuming its own power tell how to do her self right or how to avoid doing injury to the Prince if her Iurisdiction be uncertain and Priviledges undetermined He tells us Now most Countries have found an art and peaceable order for publick Assemblies and to the intent that Princes may not be Now beyond all limits and Laws the whole community in its underived Majesty shall convene to do Iustice. But he doth not name so much as one Country or Kingdome that hath found out this art where the whole Community in its underived Majesty did ever convene to do Justice I challenge him or any other for him to name but one Kingdome that hath either Now or heretofore found out this art or peaceable order We do hear a great rumor in this age of moderated and limited Kings Poland Sweden and Denmark are talked of for such and in these Kingdomes or nowhere is such a moderated Government as our Observator means to be found