Prison by Privilege of Parliament upon the Judges Answer it was concluded That the Speaker should still remain in Prison according to the Law notwithstanding the Privilege of Parliament and that he was the Speaker Which Resolution was declared to the Commons by Moyle the King's Serjeant at Law and the Commons were commanded in the King's Name by the Bishop of Lincoln in the absence of the Arch-bishop of Canterbury then Chancellour to chuse another Speaker In septimo of Hen. 8. a question was moved in Parliament Whether Spiritual Persons might be convented before Temporal Judges for Criminal Cases There Sir John Fineux and the other Judges delivered their Opinion That they might and ought to be and their Opinion was allowed and maintained by the King and Lords and Dr. Standish who before had holden it the same Opinion was delivered from the Bishops If a Writ of Errour be sued in Parliament upon a Judgment given 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 Law and for their Judgment therein they are to be informed by the Advice and Counsel of the Judges who are to inform them what the Law is and so to direct them in their Judgment for the Lords are not to follow their own Opinions or Discretions otherwise So it was in a Writ of Errour brought in Parliament by the Dean and Chapter of Lichfield against the Prior and Covent of Newton-Panel as appeareth by Record See Flower Dew's Case P. 1. H. 7. fol. 19. FINIS Apud Selden 21 Edw. 3. fol. 60. Apud Selden Selden Selden Selden Selden Selden Cambden Cotton Stow. Selden Selden Selden Selden Chanc. Egerton * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 3. c. 7. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 1. c. 2. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (c) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. lib. 3. c. 8. Lib. 2. c. 8. (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 2. c. 11. (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 8. c. 12. (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 31.5 (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 3. c. 7 (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 3. c. 5. (c) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 3. c. 4. (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 4. c. 8. (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. c. c. 13. (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 3. c. 7. Lib. 3. c. 9. Lib. 3. c. 11. Lib. 6. c. 4. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 7. c. 9. Lib. 2. c. 8. (a) L. 3. c. 7. (b) L. 4. c. 10. (c) L. 3. c. 6. (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 De Cive cap. 1. sect 10. 94. 87. Lib. 4. c. 8. Lib. 1. c. 4. P. 3. P. 13. P. 6. P. 1. P. 12. P. 5. P. 40. P. 12. P. 14. P. 16. P. 15. P. 17. P. 5. P. 2. P. 6. P. 12. P. 7. P. 54. P. 7. P. 1. P. 12. P. 13. P. 8. P. 16. P. 17. P. 14. P. 17. P. 49. P. 17. P. 18. P. 38. P. 18. P. 25. P. 56. P. 25. P. 26. P. 38. P. 26. P. 28. Arist. Pol. l. 3. c. 16. Cap. 1. Lib. 1. Cap. 2. Cap. 2. Cap. 2. Cap. 2. Lib. 2. Qu. 4. Cap. 12. Lib. 5. Sect. 18. Cap. 1. Sect. 4. Cap. 4. Sect. 1. Lib. 2. Cap. 5. Cap. 7. Cap. 7. Sect. 1. Cap. 7. Sect. 2. Chap. 7. Sect. 1. Chap. 7. Sect. 1. Lib. 2. Cap. 2. Cap. 7. Sect. 2. Ainsworth upon Deut. 18. 1 King 20.16 Gen. 27.29 Arist Pol. Lib. 1. c. 2.
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 Judgment the Execution thereof shall be respited until our Lord the King shall be informed It is commanded to the Constable of the Tower safely to keep the said John until he hath other commandment 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 ancient 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 Erisby 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 Judicial Power exercised in the Chamber of Peers is meerly 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 only or during pleasure or good behaviour and also annexeth to those Honours the power of having Votes in Parliament as hereditary Counsellors 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 decisive 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 always Arbitrary for that is Arbitrary which hath no Superiour on Earth to controll it The last Appeal in all Government must still be to an Arbitrary Power or else Appeals will be in Infinitum never at an end The Legislative Power is an Arbitrary Power for they are termini convertibiles The main Question in these our days 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 to 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 observed within his Realm and in the fourteenth Chap. the words are The King of his special Grace granteth that the City 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 Florence Becket should sue no further in their cause against Alice Radley Widow for Lands in Wolwich and Plumsted in Kent forasmuch as the matter had been heard 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 H. 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 Plaintiffs Attorney 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 parcel 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 King 's 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 au counsell comment ils voilent que nous devomus faire nous volums faire autrement ment en cest 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 he confesseth that by their Writ they have power both to treat and to give Counsel 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 Vs and others of the Councel and sometimes with Vs only to treat and give your Counsel The Judges usually joined in Committees with the Lords in all Parliaments even in Queen Eliz. Reign until 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 Judgment given by the Judges 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 Judgments therein they are to be informed by the Advice and Councel of the Judges who are to inform them what the Law is and to direct them in their Judgment 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 Judges 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 in Prison according to the Law notwithstanding the Privilege of Parliament and that he was Speaker which Resolution was declared to the Commons by Moyle the Kings Serjeant at Law and the Commons were commanded in the Kings name by the Bishop of 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 Judges for Criminal Causes there Sir John 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 was delivered from the Bishops I find it affirmed that in Causes which receive Determination in the House of Lords the King hath no Vote at all no more than in other Courts of ministerial Jurisdiction 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 despoil 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
3d Rich. 2. the three Henries 4 5 6. in Edw. 4. and Rich. 3. days was The King and his Parliament with the Assent of the Prelates Earls and Barons and at the Petition or at the special Instance of the Commons doth Ordain The same Mr. Fuller saith that the Statute made against Lollards was without the Assent of the Commons as appears by their Petition in these Words The Commons beseech that whereas a Statute was made in the last Parliament c. which was never Assented nor Granted by the Commons but that which was done therein was done without their Assent 17. How far the King's Council hath directed and swayed in Parliament hath in part appeared by what hath been already produced For further Evidence we may add the Statute of Westminster The first which saith These be the Acts of King Edw. 1. made at his first Parliament General by his Council and by the Assent of Bishops Abbots Priors Earls Barons and all the Commonalty of the Realm c. The Statute of Bygamy saith In presence of certain Reverend Fathers Bishops of England and others of the King's Council forasmuch as all the King's Council as well Justices as others did agree that they should be put in writing and observed The Statute of Acton Bunnel saith The King for Himself and by His Council hath Ordaind and Established In Articuli super Chartas when the Great Charter was confirmed at the Request of his Prelates Earls and Barons we find these Passages 1. Nevertheless the King and his Council do not intend by reason of this Statute to diminish the King's Right c. 2. And notwithstanding all these things before-mentioned or any part of them both the King and his Council and all they that were present at the making of this Ordinance will and intend that the Right and Prerogative of his Crown shall be saved to him in all things Here we may see in the same Parliament the Charter of the Liberties of the Subjects confirmed and a saving of the King's Prerogative Those times neither stumbled at the Name nor conceived any such Antipathy between the Terms as should make them incompatible The Statute of Escheators hath this Title At the Parliament of our Soveraign Lord the King by his Council it was agreed and also by the King himself commanded And the Ordinance of Inquest goeth thus It is agreed and ordained by the King himself and all his Council The Statute made at York 9. Edw. 3. saith Whereas the Knights Citizens and Burgesses desired our Soveraign Lord the King in his Parliament by their Petition that for his Profit and the Commodity of his Prelates Earls Barons and Commons it may please him to provide remedy our Soveraign Lord the King desiring the profit of his People by the assent of his Prelates Earls Barons and other Nobles of his Council being there hath ordained In the Parliament primo Edwardi the Third where Magna Charta was confirmed I find this Preamble At the Request of the Commonalty by their Petition made before the King and His Council in Parliament by the assent of the Prelates Earls Barons and other Great Men assembled it was Granted The Commons presenting a Petition unto the King which the King's Council did mislike were content thereupon to mend and explain their Petition the Form of which Petition is in these words To their most redoubted Soveraign Lord the King praying the said Commons That whereas they have pray'd Him to be discharged all manner of Articles of the Eyre c. Which Petition seemeth to His Council to be prejudicial unto Him and in Disinherison of His Crown if it were so generally granted His said Commons not willing nor desiring to demand things of Him which should fall in Disinherison of Him or His Crown perpetually as of Escheators c. but of Trespasses Misprisions Negligences and Ignorances c. In the time of Henry the Third an Order or Provision was made by the King's Council and it was pleaded at the Common Law in Bar to a Writ of Dower The Plantiffs Attorney could not deny it and thereupon the Judgment was ideo sine die It seems in those days an Order of the Council-Board was either parcel of the Common-Law or above it The Reverend Judges have had regard in their Proceedings that before they would resolve or give Judgment in new Cases they consulted with the King's Privy-Council In the Case of Adam Brabson who was assaulted by R. W. in the presence of the Justices of Assize at Westminster the Judges would have the Advice of the King's Council For in a like Case because R. C. did strike a Juror at Westminster which passed in an Inquest against one of his Friends It was adjudged by all the Council that his right hand should be cut off and his Lands and Goods forfeited to the King Green and Thorp were sent by Judges of the Bench to the King's Council to demand of them whether by the Statute of 14. Ed. 3. cap. 16. a Word may be amended in a Writ and it was answered that a Word may well be amended although the Statute speak but of a Letter or Syllable In the Case of Sir Tho. Oghtred Knight 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 stayed 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 Case should come we should not go to Judgment without good advice therefore the Judges Conclusion was Sues au Counseil comment ils voillet que nous devomus faire nous volume faire auterment nient en cest case Sue to the Council and as they will have us to do we will and otherwise not in this case 18. In the last place we may consider how much hath been attributed to the Opinions of the Kings Judges by Parliaments and so find that the King's Council hath guided and ruled the Judges and the Judges guided the Parliament In the Parliament of 28 Hen. 6. The Commons made Suit That William de la Poole 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 Judges 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 In another Parliament 31. Hen. 6. which was prorogued in the Vacation the Speaker of the House of Commons was condemned in a thousand pound damages in an Action of Trespass and was committed to Prison in Execution for the same When the Parliament was reassembled the Commons made suit 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
that is God can only compel but the Law and his Courts may advise Him Rot. Parliament 1 Hen. 4. nu 79. the Commons expresly affirm Judgment in Parliament belongs to the King and Lords These Precedents shew that from the Conquest until a great part of Henry the Third's Reign in whose days it is thought the Writ for Election of Knights was framed which is about two hundred years and above a third part of the time since the Conquest to our days the Barons made the Parliament or Common Councel of the Kingdom under the name of Barons not only the Earls but the Bishops also were Comprehended for the Conquerour made the Bishops Barons Therefore it is no such great Wonder that in the Writ we find the Lords only to be the Counsellors and the Commons Called only to perform and consent to the Ordinances Those there be who seem to believe that under the word Barons anciently the Lords of Court-Barons were comprehended and that they were Called to Parliament as Barons but if this could be proved to have been at any time true yet those Lords of Court-Barons were not the representative Body of the Commons of England except it can be also proved that the Commons or Free-holders of the Kingdom chose such Lords of Court-Barons to be present in Parliament The Lords of Manors came not at first by Election of the People as Sir Edw. Coke treating of the Institution of Court-Barons resolves us in these words By the Laws and Ordinances of ancient Kings and especially of King Alfred it appeareth that the first Kings of this Realm had all the Lands of England in Demean and les grand Manors and Royalties they reserved to themselves and of the remnant they for the Defence of the Realm enfeoffed the Barons of the Realm with such Jurisdiction as the Court-Baron now hath Coke's Institutes First part Fol. 58. Here by the way I cannot but note that if the first Kings had all the Lands of England in Demean as Sir Edw. Coke saith they had And if the first Kings were chosen by the People as many think they were then surely our Fore-fathers were a very bountiful if not a prodigal People to give all the Lands of the whole Kingdom to their Kings with Liberty for them to keep what they pleased and to give the Remainder to their Subjects clogg'd and encumbred with a Condition to defend the Realm This is but an ill sign of a limited Monarchy by original Constitution or Contract But to conclude the former point Sir Edward Coke's Opinion is that in the ancient Laws under the name of Barons were comprised all the Nobility This Doctrine of the Barons being the Common Councel doth displease many and is denied as tending to the Disparagement of the Commons and to the Discredit and Confutation of their Opinion who teach that the Commons are assigned Councellors to the King by the People therefore I will call in Mr. Pryn to help us with his Testimony He in his Book of Treachery Disloyalty c. proves that before the Conquest by the Laws of Edward the Confessor cap. 17. The King by his Oaths was to do Justice by the Councel of the Nobles of his Realm He also resolves that the Earls and Barons in Parliament are above the King and ought to bridle him when he exorbitates from the Laws He further tells us the Peers Prelates have oft translated the Crown from the right Heir 1. Electing and Crowning Edward who was illegitimate and putting by Ethelred the right Heir after Edgars decease 2. Electing and Crowning Canutus a meer Foreigner in opposition to Edmund the right Heir to King Ethelred 3. Harold and Hardiknute both elected Kings successively without title Edmund and Alfred the right Heirs being dispossessed 4. The English Nobility upon the Death of Harold enacted that none of the Danish bloud should any more reign over them 5. Edgar Etheling who had best Title was rejected and Harold elected and crowned King 6. In the second and third year of Edw. 2. the Peers and Nobles of the Land seeing themselves contemned entreated the King to manage the Affairs of the Kingdom by the Councel of his Barons He gave his Assent and sware to ratifie what the Nobles ordained and one of their Articles was that He would thenceforward order all the Affairs of the Kingdom by the Councel of his Clergy and Lords 7. William Rufus finding the greatest part of the Nobles against him sware to Lanfranke that if they would choose him for King he would abrogate their over-hard Laws 8. The Beginning saith Mr. Pryn of the Charter of Hen. 1. is observable Henry by the Grace of God of England c. Know ye That by the Mercy of God and Common Councel of the Barons of the Kingdom I am Crowned King 9. Maud the Empress the right Heir was put-by the Crown by the Prelates and Barons and Stephen Earl of Mortain who had no good Title assembling the Bishop and Peers promising the amendment of the Laws according to all their Pleasures and Liking was by them all proclaimed King 10 Lewis of France Crowned King by the Barons instead of King John All these Testimonies from Mr. Pryn may satisfie that anciently the Barons were the Common Councel or Parliament of England And if Mr. Pryn could have found so much Antiquity and Proof for the Knights Citizens and Burgesses being of the Common Councel I make no doubt but we should have heard from him in Capital Characters but alas he meets not with so much as these Names in those elder Ages He dares not say the Barons were assigned by the People Councellors to the King for he tells us every Baron in Parliament doth represent his own Person and speaketh in behalf of himself alone but in the Knights Citizens and Burgesses are represented the Commons of the whole Realm therefore every one of the Commons hath a greater voice in Parliament than the greatest Earl in England Nevertheless Master Pryn will be very well content if we will admit and swallow these Parliaments of Barons for the representative Body of the Kingdom and to that Purpose he cites them or to no Purpose at all But to prove the Treachery and Disloyalty of Popish Parliaments Prelates and Peers to their Kings which is the main Point that Master Pryn by the Title of his Book is to make good and to prove As to the second Point which is That until the time of Hen. 1. the Commons were not called to Parliament besides the general Silence of Antiquity which never makes mention of the Commons Coming to Parliament until that time our Histories say before his time only certain of the Nobility were called to Consultation about the most important affairs of the State He caused the Commons also to be assembled by Knights Citizens and Burgesses of their own Appointment much to the same purpose writes Sir Walter Raleigh saying it is held that the Kings of England
but of late Use or Institution for in Edward the Sixth's days it was a Chappel of the Colledge of St. 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 Vse 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 Justices assistants and two Civilians Masters of the Chancery are appointed Receivers of Petitions which are to be delivered within six days following and six of the Nobility and two Bishops calling to them the Kings Learned Councel when need should be to be Tryers of the said Petitions whether they were reasonable good and necessary to be offered and propounded to the Lords He doth not say that any of the Commons were either Receivers or Tryers of Petitions nor that the Petitions were to be propounded to Them but to the Lords Fifthly he teacheth us that a Knight Citizen or Burgess cannot make a Proxy because he is Elected and Trusted by multitudes of People here a Question may be whether a Committee if it be Trusted to act any thing be not a Proxy since he saith the High Power of Parliament to be committed to a few is holden to be against the Dignity of Parliaments and that no such Commission ought to be granted Sixthly he saith The King cannot take notice of any thing said or done in the House of Commons but by the Report of the House Surely if the Commons sate with the Lords and the King were present He might take notice of what was done in His Presence And I read in Vowel that the old Vsage was that all the Degrees of Parliament sate together and every man that had there to speak did it openly before the King and his whole Parliament In the 35 Eliz. there was a Report that the Commons were against the Subsidies which was told 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 Woolley 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 Inditement or Information in the Kings Bench against 39 of the Commons for departing without Licence 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 Judicature 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 the Councel may mean the Kings Privy Councel or 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 Nicholas de Segrave confessed his fault in Parliament and submitted himself to the Kings Will thereupon the King willing to have the Advice of the Earls Barons Great men and others of his Councel enjoyned them by the Homage Fealty and Allegiance which they owed that they should faithfully counsel Him what Punishment should be inflicted for such a Fact who all advising diligently say That such a Fact deserves loss of Life and Members Thus the Lords we see did but Advise the King what Judgment to give against him that deserted the Kings Camp to fight a Duel in France Ninthly he saith Of later times see divers notable Judgments at the Prosecution of the Commons by the Lords where the Commons were Prosecutors they were no Judges but as he terms them general Inquisitors or the Grand Inquest of the Kingdom The Judgments he cites are but in King James his days and no elder Tenthly also he tells us of the Judicature in the House of Commons alone his most ancient precedent is but in Queen Elizabeths Reign of one Tho. Long who gave the Mayor of Westbury 10 l. to be elected Burgess Eleventhly he hath a Section entitled The House of Commons to many Purposes a distinct Court and saith Not a the House of Commons to many Purposes a distinct Court of those many Purposes he tells but one that is it uses to adjourn it self Commissioners that 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 the Law who hath been oft a Parliament-man could find no other nor more Privileges of Parliament but one and that is Freedom from Arrests which he saith holds unless in three cases Treason Felony and the Peace And for this freedom from Arrests he cites Ancient 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 behooveful 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
the King a Subject Councel loseth the name of Counsel and becomes a Command if it put a Necessity upon the King to follow it such Imperious Councels make those that are but Counsellors in name to be Kings in Fact and Kings themselves to be but Subjects We read in Sir Robert Cotton that towards the end of the Saxons and the first times of the Norman Kings Parliaments stood in Custom-grace fixed to Easter Whitsuntide 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 for Guests to bar him their Company who gave them their Entertainment And although now a-days the Parliament sit not in the Court where the Kings houshold remains yet still even to this day to shew that Parliaments are the Kings Guests the Lord Steward of 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 takes the Oaths of the Members of the House of Commons the first day of the Parliament Sir Richard Scroop Steward of the Houshold of our Sovereign Lord the King by the Commandment of the Lords sitting in full Parliament in the Great Chamber put J. Lord Gomeniz and William Weston to answer severally to Accusations brought against them The Necessity of the King's Presence in Parliament appears by the Desire of Parliaments themselves in former times and the Practice of it Sir Robert Cotton proves by several Precedents whence he concludes that in the Consultations of State and Decisions of private Plaints it is clear from all times the King was 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 final Judgment is only the Kings Indeed of late years Queen Mary and Queen Elizabeth by reason of their Sex being not so fit for publick Assemblies have brought them out of Use by which means it is come 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 commonly placed or at least from the Confirmation of Him who in all Courts and in all Causes is Supreme Judge All Judgment 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 judicious Proceeding in a Criminal Cause of the Barons before the Conquest wherein I observe the Kings Will was that the Lords should be Judges in the Cause wherein Himself was a Party and He ratified 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 to 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 presently 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 Judgment 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 Godwin's Answer I will that in this Appeal between us ye decree right Judgment and do true Justice 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 must wholly put himself into the King's 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 King's 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 comprise 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 Judgment 2. Of King John 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 Council 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 Bruxal was commanded safely to keep the said William until he had other Commandment from our Lord the King 4 Ric. 2. Also the Lords adjudged John Lord of Gomentz for surrendring the Towns and Castles of Ardee and for
they are necessitated to relinquish that Supreme Power which they think they exercise and to delegate it to a few There are two Parts of the Supreme Power the Legislative and the Executive neither of these can a great Assembly truly act If a new Law be to be made it may in the General receive the Proposal of it from one or more of the General Assembly but the forming penning or framing it into a Law is committed to a few because a great number of Persons cannot without tedious and dilatory Debates examine the Benefits and Mischiefs of a Law Thus in the very first Beginning the Intention of a General Assembly is frustrated then after a Law is penned or framed when it comes to be questioned whether it shall pass or nay though it be Voted in a full Assembly yet by the Rules of the Assembly they are all so tied up and barred from a free and full Debate that when any man hath given the Reasons of his Opinion if those Reasons be argued against he is not permitted to reply in Justification or Explanation of them but when he hath once spoken he must be heard no more which is a main Denial of that Freedom of Debate for which the great Assembly is alledged to be ordained in the high Point of Legislative Power The same may be said touching the Executive Power if a cause be brought before a great Assembly the first thing done is to refer or commit it to some few of the Assembly who are trusted with the examining the Proofs and Witnesses and to make Report to the General Assembly who upon the Report proceed to give their Judgments without any publick hearing or interrogating the Witnesses upon whose Testimonies diligently examined every man that will pass a conscientious Judgment is to rely Thus the Legislative and Executive Power are never truly practised in a great Assembly the true Reason whereof is if Freedom be given to Debate never any thing could be agreed upon without endless Disputes meer Necessity compels to refer main Transactions of Business to particular Congregations and Committees Those Governments that seem to be popular are kinds of petty Monarchies which may thus appear Government is a Relation between the Governours and the governed the one cannot be without the other mutuò se ponunt auferunt where a Command or Law proceeds from a major part there those individual Persons that concurred in the Vote are the Governours because the Law is only their Will in particular the Power of a major Part being a contingent or casual thing expires in the very Act it self of Voting which Power of a major Part is grounded upon a Supposition that they are the stronger Part when the Vote is past these Votes which are the major Part return again and are incorporated into the whole Assembly and are buried as it were in that Lump and no otherwise considered the Act or Law ordained by such a Vote loseth the Makers of it before it comes to be obeyed for when it comes to be put in Execution it becomes the Will of those who enjoyn it and force Obedience to it not by Virtue of any Power derived from the Makers of the Law No man can say that during the Reign of the late Queen Elizabeth that King Henry the Eighth or Edward the Sixth did govern although that many of the Laws that were made in those two former Princes times were observed and executed under her Government but those Laws though made by her Predecessours yet became the Laws of her present Government who willed and commanded the Execution of them and had the same Power to correct interpret or mitigate them which the first Makers of them had every Law must always have some present known Person in Being whose Will it must be to make it a Law for the Present this cannot be said of the major Part of any Assembly because that major part instantly ceaseth as soon as ever it hath voted an infallible Argument whereof is this that the same major part after the Vote given hath no Power to correct alter or mitigate it or to Cause it to be put in Execution so that he that shall act or cause that Law to be executed makes himself the Commander or willer of it which was originally the Will of others It is said by Mr. Hobs in his Leviathan page 141. Nothing is Law where the Legislator cannot be known for there must be manifest Signs that it proceedeth from the Will of the Sovereign there is requisite not only a Declaration of the Law but also sufficient Signs of the Author and the Authority That Senate or great Council wherein it is conceived the Supreme or Legislative Power doth rest consists of those Persons who are actually Subjects at the very same time wherein they exercise their Legislative Power and at the same instant may be guilty of breaking one Law whilst they are making another Law for it is not the whole and entire Will of every particular Person in the Assembly but that part only of his Will which accidentally falls out to concur with the Will of the greater part So that the Sharers of the Legislative Power have each of them perhaps not a hundredth part of the Legislative Power which in it self is indivisible and that not in Act but in Possibility only in one particular Point for that Moment whilst they give their Vote To close this Point which may seem strange and new to some I will produce the Judgment of Bodin in his sixth Book of a Commonweal and the fourth Chapter his words are The chief Point of a Commonweal which is the Right of Sovereignty cannot be nor insist to speak properly but in Monarchy for none can be Sovereign in a Commonweal but one alone if they be two or three or more no one is Sovereign for that no one of them can give or take a Law from his Companion and although we imagine a Body of many Lords or of a whole People to hold the Sovereignty yet hath it no true Ground nor Support if there be not a Head with absolute Power to unite them together which a simple Magistrate without Sovereign Authority cannot do And if it chance that the Lords or Tribes of the People be divided as it often falls out then must they fall to Arms one against another and although the greatest part be of one Opinion yet may it so happen as the lesser part having many Legions and making a Head may oppose it self against the greater Number and get the Victory We see the Difficulties which are and always have been in popular Estates whereas they hold contrary Parts and for divers Magistrates some demand Peace others War some will have this Law others that some will have one Commander others another some will treat a League with the King of France others with the King of Spain corrupted or drawn some one Way some another making open War as hath been
not any One setled Form of Government in Rome for after they had once lost the Natural Power of Kings they could not find upon what Form of Government to rest their Fickleness is an Evidence that they found things amiss in every Change At the First they chose two Annual Consuls instead of Kings Secondly those did not please them long but they must have Tribunes of the People to defend their Liberty Thirdly they leave Tribunes and Consuls and choose them Ten Men to make them Laws Fourthly they call for Consuls and Tribunes again sometimes they choose Dictators which were Temporary Kings and sometimes Military Tribunes who had Consular Power All these shiftings caused such notable Alteration in the Government as it passeth Historians to find out any Perfect Form of Regiment in so much Confusion One while the Senate made Laws another while the People The Dissentions which were daily between the Nobles and the Commons bred those memorable Seditions about Vsury about Marriages and about Magistracy Also the Graecian the Apulian and the Drusian Seditions filled the Market-Places the Temples and the Capitol it self with Blood of the Citizens the Social War was plainly Civil the Wars of the Slaves and the other of the Fencers the Civil Wars of Marius and Sylla of Cataline of Caesar and Pompey the Triumvirate of Augustus Lepidus and Antonius All these shed an Ocean of Blood within Italy and the Streets of Rome Thirdly for their Government let it be allowed that for some part of this time it was Popular yet it was Popular as to the City of Rome only and not as to the Dominions or whole Empire of Rome for no Democratie can extend further than to One City It is impossible to Govern a Kingdom much less many Kingdoms by the whole People or by the Greatest Part of them 12. But you will say yet the Roman Empire grew all up under this kind of Popular Government and the City became Mistress of the World It is not so for Rome began her Empire under Kings and did perfect it under Emperours it did only encrease under that Popularity Her greatest Exaltation was under Trajan as her longest Peace had been under Augustus Even at those times when the Roman Victories abroad did amaze the World then the Tragical Slaughter of Citizens at home deserved Commiseration from their vanquished Enemies What though in that Age of her Popularity she bred many admired Captains and Commanders each of which was able to lead an Army though many of them were but ill requited by the People yet all of them were not able to support her in times of Danger but she was forced in her greatest Troubles to create a Dictator who was a King for a time thereby giving this Honourable Testimony of Monarchy that the last Refuge in Perils of States is to fly to Regal Authority And though Romes Popular Estate for a while was miraculously upheld in Glory by a greater Prudence than her own yet in a short time after manifold Alterations she was ruined by her Own Hands Suis ipsa Roma viribus ruit For the Arms she had prepared to conquer other Nations were turned upon her Self and Civil Contentions at last setled the Government again into a Monarchy 13. The Vulgar Opinion is that the first Cause why the Democratical Government was brought in was to curb the Tyranny of Monarchies But the Falshood of this doth best appear by the first Flourishing Popular Estate of Athens which was founded not because of the Vices of their last King but that his Vertuous Deserts were such as the People thought no Man Worthy enough to succeed him a pretty wanton Quarrel to Monarchy For when their King Codrus understood by the Oracle that his Country could not be saved unless the King were slain in the Battel He in Disguise entered his Enemies Camp and provoked a Common Souldier to make him a Sacrifice for his own Kingdom and with his Death ended the Royal Government for after him was never any more Kings of Athens As Athens thus for Love of her Codrus changed the Government so Rome on the contrary out of Hatred to her Tarquin did the like And though these two famous Commonweals did for contrary Causes abolish Monarchy yet they both agreed in this that neither of them thought it fit to change their State into a Democracy but the one chose Archontes and the other Consuls to be their Governours both which did most resemble Kings and continued untill the People by lessening the Authority of these their Magistrates did by degrees and stealth bring in their Popular Government And I verily believe never any Democratical State shewed it self at first fairly to the World by any Elective Entrance but they all secretly crept in by the Back-door of Sedition and Faction 14. If we will listen to the Judgment of those who should best know the Nature of Popular Government we shall find no reason for good men to desire or choose it Xenophon that brave Scholar and Souldier disallowed the Athenian Common-weal for that they followed that Form of Government wherein the Wicked are always in greatest Credit and Vertuous men kept under They expelled Aristides the Just Themistocles died in Banishment Meltiades in Prison Phocion the most virtuous and just man of his Age though he had been chosen forty five times to be their General yet he was put to Death with all his Friends Kindred and Servants by the Fury of the People without Sentence Accusation or any Cause at All. Nor were the People of Rome much more favourable to their Worthies they banished Rutilius Metellus Coriolanus the Two Scipio's and Tully the worst men sped best for as Xenophon saith of Athens so Rome was a Sanctuary for all Turbulent Discontented and Seditious Spirits The Impunity of Wicked men was such that upon pain of Death it was forbidden all Magistrates to Condemn to Death or Banish any Citizen or to deprive him of his Liberty or so much as to whip him for what Offence soever he had committed either against the Gods or Men. The Athenians sold Justice as they did other Merchandise which made Plato call a Popular Estate a Fair where every thing is to be sold The Officers when they entered upon their Charge would brag they went to a Golden Harvest The Corruption of Rome was such that Marius and Pompey durst carry Bushels of Silver into the Assemblies to purchase the Voices of the People Many Citizens under their Grave Gowns came Armed into their Publick Meetings as if they went to War Often contrary Factions fell to Blows sometimes with Stones and sometimes with Swords the Blood hath been suckt up in the Market Places with Spunges the River Tiber hath been filled with the Dead Bodies of the Citizens and the common Privies stuffed full with them If any man think these Disorders in Popular States were but Casual or such as might happen under any kind of Government he must