allow no alteration but in that of Dudley Which makes some observe Lawyer out-lawed p. 12. That if the House of Commons had then known they had any Power to mend the said Returns or punish the Offenders or Sir Edward Coke had known it had been Law he had never been sent on that Message So that what Authority the House hath it hath accrued since SECT 11. Concerning the House of Commons Censuring Imprisoning and Expelling their own Members AS to the Commons Imprisoning and Punishing their own Members The Reasons for this Privilege for words by them spoken or Misdemeanors committed in the House there may be some reason for it First Stat. 4. H. 8. c. 8. Coke 4. Instit p. 25. 31 H. 6. c. 26 27. because by Law they are not Punishable elsewhere for any rash indeliberate and inordinate Speeches in Parliament which do not amount to Treason Felony or Breach of the Peace which it is supposed none in that rightly constituted House will protect though done in the House of Commons begun in 1641. Secondly It is to be supposed that the Members upon their entring into that House unanimously agree for order sake that the lesser number should always submit to the greater So by such Consent and original Compact every single Member submitting himself to the rest he hath no such reason to complain although they had no such Authority for scienti volenti non fit Injuria provided that they exceed not the common Rules of Justice nor the Bounds of Established Laws for then no private Act can bind a Subject though made with his own free Consent as appears in Clark's Case against the Mayor and Burgesses of St. Albans Coke lib. 5. p. 64. The first Precedent I find that any Member of the House of Commons was complained and Petitioned against for Misdemeanors and put to answer before the King and Lords in Parliament Rot. Parl. 16. R. 2. num 6. and there judged and fined was 16 R. 2. the Wednesday after the Parliament began when Sir Philip Courtney Members of the House of Commons punished for Misdemeanour by the King and Lords returned one of the Knights for Devonshire came before the King in full Parliament and said that he understood how certain people had accused and slandered him to the King and Lords therefore prayed to be discharged of the said Imployment until the accusations c. were tryed and because his said Prayer seemed honest to the King and the Lords the King granted him his Request and discharged him in full Parliament Exact Abridgment p. 417. and the Monday following at the Instance and Prayer of the Commons the King granted that he should be restored and remitted to his Place In the Parliament 4 H. 4. the accusations against him being re-inforced the King and Lords adjudged that he should be bound to his good Behaviour and committed to the Tower for his Contempt By which saith Mr. Prynne it appears Plea for the Lords p. 386 387. That only the King and Lords in full Parliament can suspend or discharge any Knights or Commoners sitting in Parliament and have Power of restoring and re-admitting a suspended Member of the Commons House and he answers the Precedents that Sir Edward Coke brings 4 Instit p. 23 and 3 Inst p. 22. Vide pag. 296 297 299 344 371 372 373. and many others which would be tedious here to insert The first Precedent he finds The first Precedent of the House of Commons secluding their Members that the Commons began to seclude one another upon Pretence of undue Elections and Returns was in Queen Elizabeth's time when Thomas Lucy 8 Eliz. was removed out of the House for giving four Pound to the Mayor of Westbury to be chosen a Burgess and the Mayor fined and imprisoned and 23 Eliz. Mr. A. Hâ—ll for publishing the Conferences of the House and writing a Book to the dishonour of the House was committed to the Tower for six Months and fined five hundred Mark and expelled the House and in King Charles the First 's time this Power over their Fellow-Members was greatly improved in which how far Mr. Prynne then concurred I know not but after he was secluded he every where writes with great earnestness against this usage but whether with Judgment Law and Reason I shall leave others to judge only I think fit to insert some of his Invectives against the Proceedings of that unparallell'd house of Commons First he saith There can be no legal Trial or Judgment given in Parliament in Criminal Causes or others Id. p. 309. Mr. Prynne's Reasons against this Usage without Examination of Witnesses upon Oath as in all other Courts of Justice which the House of Commons cannot do Littleton sect 212. Coke ibid. Secondly That it is a Rule both of Law and Justice That no Man can be an Informer Prosecutor and Judge too of the persons prosecuted and informed against the Commons being in the nature of the Grand Inquest Coke 4. Inst p. 24. being summoned from all parts of the Kingdom to present Publick Grievances and Delinquents to the King and Peers for their Redress Plea for the Lords p. 373. Thirdly That all the objected Precedents are of very puny date within time of memory therefore unable to create a Law or Custom of Parliament or any right of sole Judicature in the House of Commons Fourthly Id. p. 387. That all these Precedents were made by the Commons themselves unfit Judges in their own Cases much less over one another being all of equal Authority so that in his opinion they could no more expel or eject any of their Members by their own Authority without the King and Lords concurrent consent See Legal Vindication p. 10. than one Justice of Peace Committeeman or Militia-man can unjustice or remove another since par in parem non habet potestatem neither in Ecclesiastical Civil Id. p. 373. Military or Domestick Affairs Fifthly That they are all against Law because coram non Judice he having throughout the whole Discourse endeavoured to prove That the Commons have no right or power of Judicature much less of sole Judicature in our Parliaments but only the King and Lords Sixthly That these Precedents are but few never judicially argued and rather connived at than approved by the King and Lords taken up with other more publick business therefore passing sub silentio they can make no Law or Right as is resolved in Long 5 E. 4. fol. 110. Cook 's four Rep. fol. 93 94. Slade's Case and six Rep. fol. 75. Drurie's Case Seventhly In the long Parliament of King Charles the First they began to seclude Projectors Exact Collections of Ordinances p. 541. to 558. Monopolists c. though duly elected then suspended and ejected such who were Royalists and adhered to the King then they proceeded to imprison and eject those Members Plea for the Lords p.
(p) 14 E. 3. c. 5. Stat. 1. Rot. Parl. 2 â— 2. num 63. confirmed by Parliament a Court for redress of Delays of Judgment in the Kings Great Courts raised by Statute 14 E. 3. whereby one Prelate two Earls and two Barons the Chancellor Lord Treasurer the Justices of both the Benches and other of the Kings Council have Power to call before them the Tenor of Records and Processes of such Judgments so delayed and to proceed to take a good accord and Judgment and so remand all to the Justices before whom the Plea did depend He likewise (q) 4. Instit c. 6. fol. 67. tells us That by the Common-Law it is required that both plena celeris Justitia fiat and all Writs of Praecipe quod reddat are quod juste sine dilatione reddat c and that there did and yet doth lye a Writ de pracedendo ad Judicium when the Justices or Judges of any Court of Record or not of Record delayed the Party Plaintiff or Defendant Justice and in Case the Prelate the two Earls two Barons the Chancellor Treasurer c. may not for the Difficulty determine it then to bring it to the next Parliament there to have a final accord From this whole Discourse I hope it is apparent that as our Kings authorize the Justices to do right to every one according to the Laws and Customs of England so the Judges cannot well fail of performing it Before I end this Chapter I cannot omit the inserting of some of the Expressions that I find in the Saxon Laws whereby the desire those Kings had that equal Justice should be administred is very manifest The eighth Law of King Ina inflicts a mulct of thirty Shillings upon every (r) Hwilcum scirmen oththe othrum dâ—man Shireman or other Judge that grants not Justice to him that requires it and besides that within a Week he afford him right in Saxon thus binnan seoffon nihte gedo hine rihtes wrythe The first of the secular Laws of King Edgar runs thus That every one enjoy the Benefit of right Judgment whether he be Poor or Rich but in exacting of Punishments let there be that Moderation that they may be attempered to Divine Clemency and may be tolerable to Men. The Saxon runs thus That ole mà n sy folc rihtes wyrth ge earm geeadig and him mon righte Domas deme sy on thaerebote swylec forgyffenysse swylec hit fore God ge beorglice sy and for weoruld aberendlic The third Law of the same King is that the Judg who shall pass false Judgment on any shall pay the King a Hundred and twenty Shillings unless he confirm it by Oath that he did it by Error and Ignorance not for Malice However he shall be removed (s) Et tholige a his Thegnscipes butan he aeft al thaem Cyng gebiege swa he hin gethasian wills out of his place unless he obtain the same again of the King By which it further appears that in those days the King removed and placed Judges at his Pleasure The first of the secular Laws of King Canutus runs thus First I will that Man (t) That man ribte laga upp araere aegh wylec unlaga georne assylle set up right Laws and unjust Laws be suppressed and that every one according to his Power pluck up utterly by the Roots all unrighteousness and set up Gods Right i. e. Divine Justice and for the time to come the Poor as well as the Rich enjoy right Judgment and to both of (u) Fole rihtes wyrthe him man ribte domes deme them right Dooms be deemed Then the next Law is for exhibiting Mercy in judgment that even in Capital Matters such moderation be used in imposing the mulct that it be (w) Swa it for Gode sy gebeolice for woruld aberendlice As in the Law of King Edgar attempered to divine Clemency and be to be born by Men and that he that judgeth think in his Mind what he asks when he saith in the Lords Prayer and forgive us our Debts or Trespasses as we forgive them that trespass against us and he forbids that any Christian be put to Death for any small or contemptible cause that for a (x) Et ne forspille man for litlum Godes handgeweorce his agenne ceap the he deorgevobt small matter they suffer not to perish the work of Gods Hands which he hath redeemed with a great price In the Eleventh Law we find that the King saith That by all help and work it is to be endeavoured by what reason principally he may gain Counsel that may (y) His man fyrmest mâ—g raed aredian Theode to Thearfe ribâ—ne Cristendom swy thort araeran agh wilec unlaga georne assyllan confirm such things as are for the profit of the Republick and may confirm Christian Piety and may totally overthrow Injustice from hence that Profit at last coming to the Kingdom that Iniquity may be suppressed and Justice may be set up in the Presence of God and Men. I could add more but I shall have occasion in the next Chapter to mention something of this Subject and shall only close with that Admonition of King James (z) Dalton's Justice of Peace c. 2. the First to the Judges in the Star-Chamber 1616. wherein he gave them in Charge to do Justice uprightly and indifferently without delay without Partiality Fear or Bribes with stout and upright Hearts with clean and uncorrupt Hands and not to utter theirown Conceits but the true meaning of the Law not making Laws but interpreting the Law and that according to the true Sence thereof and after deliberate Consultation remembring their Office is Jus dicere not Jus dare CHAP. XXXIV Of Justices of Peace and their Sessions SIR Edward Coke (a) 4. Instit c. 31. fol. 170. observes that the Constitution of Justices of Peace is such a form of subordinate Government for the Tranquillity and quiet of the Realm as no part of the Christian World hath the like which may be true in the particular Limitation of the Power Officers like our Justices of Peace anciently in other Countries But that in other Countries such like Officers have been appointed particularly for the preservation of Peace is evident in the ancient Laws of the Wisigothes (b) Lib. 2. c. 16. compiled by Theodoricus their King about the Year of our Lord 437. which constituted Pacis Assertores and appointed them Judges to hear and determine those causes quas illis Regia deputaverit ordinandi Potestas So in the Sicilian (c) Anno 1221. Ibid. p. 704. to 722. lob 1. tit 8. Laws compiled by the Emperor Frederick the Second we find one Title de cultu pacis generali pace in Regno servanda and another de (d) Ibid. tit 41. officio Justiciaratus where the Title Office and Commission of the Justiciarii Regionum is at large recited almost in Parallel terms with ours at this Day The
Particulars of Royal Abatements Edicts or make new Laws or change any of the old standing Laws without the mutual Consent of the two Houses of Parliament He may not oppress the People or in any Arbitrary way take from them their Liberties or Estates under any pretence whatsoever without due course of Law Nor can he impose upon their (m) Stamford's Pleas of the Crown Persons what Charges or Burthens he pleaseth but according to and by the Laws of the Kingdom He cannot do any thing against the Law of the Nation or against common Right cannot change Ancient Customs for a Legal (n) Hâ—ghs 's Reports 254.263 Cousâ—uetudo lâ—galis plus habet quam concessio Regalis Custom is more available than a Royal Concession yet on the other side that Custom which advanceth against the Prerogative of the King is void He cannot impose Arbitrary (o) Petit. of Right 3 Car. 1.7 Car. 1. c. 17. payments erect new Offices of Charge to the Subject may not deny or delay Justice may not compel his People to make Gifts Loan Benevolence or Tax without consent of the two Houses The King (p) 2 Car. 1. c. 1. Coke 12.46.2 part Brown lib. 2. c. 2. Coke Instit 2 part 47 48. Petition of Right Dyer 176. may not imprison without just Cause nor keep any Mans Cause from Tryal may not send any man out of the Realm without his own Consent may not in time of Peace Billet or Quarter Soldiers or Mariners upon his People against their Wills may not grant Commission to try Men by Martial Law in time of Peace nor to determine any matters of difference betwixt Subjects other ways than by ordinary (q) 21 Jac. c. 31. Coke 11.87 Plowden 497. course of Law and ordinary Courts may not by Patent or Licence make a grant of a Monopoly or the benefit of a Penal Law or give a Power to dispense with Penal Laws in some Cases (r) Coke 11.87 He may not have or take that he hath right to which is in the Possession of another but by due course of Laws and may not make new or alter old Courts of Justice unless to be kept after the Course of the Law and not in Course of Equity Nor (s) Sheppard's Grand Abridgment part 3. fol. 49. alter the Courts of Westminster that have been time out of mind nor erect new Courts of Chancery Kings-Bench common-Common-pleas or Exchequer (t) Fleetwood lib. 1. c. 8. He may not by his last Will and Testament under the great Seal or otherwise dispose of the Government or of the Crown it self nor give and grant away the Crown-Lands or Jewels which he hath in his Politic Capacity nor give away any of the incommunicable Prerogatives By these Abatements of Power and gracious Condescentions of the Kings of England for the Benefit and Security of the Subject No Power co-ordinate with the King 's we are not to conclude that there either is or can be any Co-ordination or Coaequality of any State Order or Degree of the Subjects with the Sovereign nor any Competition of the Subjects Power in his Concurrence with the Vertual and Primary Influence of the Sovereign but a plain Subordination and subjected Ministration of the one under the Sovereignty of the other For although there is a Co-operation of the Members with the Head for the performing some Acts of State and they may seem Orders or States coaequally Authorized in the Power of Acting with the Sovereign in Petitioning for advising or consulting about or consenting upon the Kings Summons to Laws And although in judging and determining matters of Private Interest the King hath not an Arbitrary Judgment but is restrained to the Judgment to be administred by the proper sworn Judges in his Courts whom he appoints to judge according to his Laws and in the making of Laws his Power and Judgment is restrained to the Concurrence of the Nobles and Commons in Parliament yet in all other things wherein he is not expresly restricted by any Law of his own or Progenitors granting he retaineth the absolute Power as in the particulars before mentioned and in the Chapters of Parliaments I shall further discourse In the Rebellion under King Charles the First the (u) Observations on His Majesty's Messages c. The Rebels in 1641. would have lessened the King's Sovereignty and placed it in the People or their Representatives Pencombatants for the Party knowing they had the whole Current of the Laws against them made a great noise and bustle with Sophisms and plausible specious Pretences to captivate the Populace and nothing was more frequent than the Misapplication of that of the Philosopher That the King was Singulis major but Vniversis minor Inferring from thence That the Collective Body of the People and their Representatives were Greater in Authority than the King In answer to which it may be observed That the Aphorism how true soever in any other sense is most false in any sense of Sovereignty For if it be meant That the King is a better Man only than any of us single this doth not tell us he is better than Two and this is no more than possibly he might be before he was King For we must needs look upon Princes as Persons of Worth Honour and Eminency when taken from the People which the superaddition of Royalty did not destroy Besides any Lord of the Land may challenge such a Supremacy over all the Knights and any Knight over all the Esquires Furthermore if Princes be Sovereigns to single Persons of Subjects only and not to the universality of them then every single Subject by himself is a Body Politick whereof the King as King is Head and so the Publick Community is out of the King's Protection he being no King as to them in a complex Body Such impudent Falsities and many more destructive Consequences flow from such absurd Principles And if the Maxim were true the People have placed a King not over but under themselves But they enforce the Argument still further That the Fountain and efficient Cause of Power is the People and from hence they say the Inference is just That he is less than the Universe But the (w) Answer to Observations p. 10. Consequence is rather the contrary For suppose the People were the efficient Cause of Power it can be no otherwise than by translating or deriving their divided Power and uniting it in him Since then they cannot retain what they have parted with nor have what they gave away it follows That he who hath all their Power and his own particular besides must needs be greater and more powerful than they it being a very great Truth That he is the only Fountain of Power and Justice Another of their Maxims was That quicquid efficit tale illud est magis tale And they assume But the King was made by the People therefore less than the People In answer to which it is
414 415. How the House of Commons of the Parliament 1641. seduded their Members till there were not above 70 left whom the Army-Officers impeached or disliked as a corrupt Party or corrupt Majority and so fifty or sixty by the power of the Army secured secluded and expelled near 400 Members and made themselves the Commons House without them and so proceeded to vote down and seclude both King and House of Lords and voted themselves to be the Parliament of England and sole Legislators and Supream Authority of the Nation The consequences of all which are too well known to the whole Kingdom whose Calamity of Civil War and all the unspeakable Tragedies of it flowed from the packing of Members in the Commons House and the Assistance the People relying upon their Sageness and Authority afforded them How this revived against Abhorrers We had of later Years a fresh revival of the same method in the House of Commons expelling those they called Abhorrers which is so well known that I need say nothing of it yet I would recommend to all interessed Persons the perusal of two Treatises which though they pass for Pamphlets yet have been writ by Judicious Authors and those are The Lawyer outlawed and the Three parts of the Addresses which are Books very fit for Gentlemen to peruse How full and unquestioned a power the Commons have to represent Grievances to the King and petition for Redress The unquestioned Rights of the Commons to impeach any Person of the highest Quality that is a Subject for Treason or high Misdemeanors to have the sole Power in having all Bills for Subsidies Aids and Supplies to begin and I think be perfected in their House and the Privileges they petition for by their Speaker are so well known that they need no Discourse upon But I find several Judicious Persons will not allow the House of Commons to be a Court which Sir Edward Coke affirms 4. Instit p. 28. Whether the House of Commons be properly a Court. and uses this only one Argument for it Because it is not Prorogued or Adjourned by the Prorogation or Adjournment of the Lords House but the Speaker upon signification of the Kings Pleasure by the Assent of the House of Commons doth say This Court doth Prorogue or Adjourn it self But to this it is answered Lawyer outlawed p. 18. That if this were sufficient to denominate a Court every Committee of Lords and Commons though never so few in number must upon this account be a distinct Court because they may thus adjourn and prorogue themselves without their respective Houses In another place 4. Instit p. 23. the same Chief Justice offers to prove the House of Commons not only a Court but a Court of Judicature and Record for that the Clerks Book of the House of Commons is a Record and so declared by Act of Parliament 6 H. 8. c. 16. But this House had no such Book as a Journal much less any Authentick Record When the House of Commons had a Journal first before the first Year of Ed. the Sixth all their material proceedings till then being drawn in Minutes by a Clerk appointed to attend them for that purpose and by him entred of Record in the House of Lords Therefore the Words of the Statute are That the Speakers Licence for Members going into the Country be entred of Record in the Book of the Clerk of the Parliament appointed for the Commons House and this Journal is rather a Register of what passeth than such a Record as denotes a Court of Judicature as the Author of The Lawyer outlawed endeavours to prove P. 17 18 19. Plowd Com. fol. 319. Coke 1. Inst fol. 260. because there is no Court but what is established by the Kings Patent by Act of Parliament or by the Common Law i. e. the constant immemorial Custom of former Ages for by that the House of Lords is the sole supream Court of Judicature it having never been heard of before Sir Edward Coke's fancy That there were two distinct Courts in the same Parliament Also there is no Court without a power of tryal but the House of Commons have no power to try any Crime or Offence because they cannot examine upon Oath and there can be no legal Tryal without Witnesses nor are any Witnesses of any force in Law unless examined upon Oath But I shall not enter into these Controversies Some Observations on the Privileges of the House of Commons in general but shall now lay down some general Observations and Rules which Judicious Persons have noted as worthy the consideration of the Honourable House in point of their claims of Privileges and Judicature First King James the First 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 Stile calling it their Ancient and undoubted Right and inheritance but could rather have wished that they had said All Privileges from the Crown Their Privileges were derived from the Grace and permission of his Ancestors and him and thereupon concludes That he cannot with patience endure his Subjects to use such Antimonarchical Words concerning their Liberties except they had subjoyned That they were granted unto them by the Grace and Favour of his Predecessors yet he promiseth to be carefull of whatsoever Privileges they enjoy by long Custom and uncontrolled and lawful Precedents Secondly C. 29. None to be punished but by Legal Trial. It is to be considered That by the Great Charter it is declared That no Freeman shall be taken or imprisoned or diseised of his Freehold or Liberties or his Free Customs or be Outlawed or Exiled or in any manner destroyed but by the lawful Judgment of his Peers or by the Law of the Land Stat. 28 E. 3. c. 3. So 28 E. 3. it is Enacted That no Man of what estate or condition he be shall be put out of his Land or Tenements nor taken nor imprisoned nor dis-inherited nor put to death without being brought to answer by due Process of Law So 42 E. 3. c. 3. it is assented and accorded for the good Government of the Commons that no Man be put to answer without presentment before Justices or matter of Record or by due course of Law or Writ Original according to the Old Laws of the Land Nulla Curia quae Recordum non habet potest imponere finem neque aliquem mandare carceri quia isla tantummodo spectant ad Curias de Recordo Mar. Sess 3. So Sir Edward Coke saith Courts which are not of Record cannot impose a Fine or commit any to Prison because these only belong to Courts of Record for which see Beecher's Case fol. 60. 120. Bonham's Case and lib. 11 fol. 43. Godfrey's Case So in the First Parliament of Q. Mary it is declared That the most Ancient
correct the Vitious so they should begin the Reformation at home Chilon's (c) Laertius in vita Chilonis Brother desiring to know why he was not chosen at Sparta as well as Chilon he answered that he knew how to bear an Injury which his Brother did not for in Publick imployments those who are the Censores morum and chastise the Infringers of the Laws must expect Calumnies and evil Entreaties from the incorrigible and debauched and such must be resolved to perform their duty without any other by-end of Revenge Tyranny and Imperiousness on the one hand or hasty rast Cholerickness Partiality or Corruptness on the other Plato (d) Lib. 4. de LL. adviseth that the wealthiest be chosen for the better support of the Dignity but withall that they be such as are exemplary in obeying the Laws For none are more fit to serve their Prince and profit the Subjects than such as are obedient to the Laws which when they make a rule of their own Actions they will be sure to exact it of others It is great disparagement to a Prince to chuse men of vitious or uncommendable lives or such as have not worth and honour to commend them So the Princes of Europe think the Grand Seignior not so well served by Slaves nor was it so commendable in the Roman Emperors to make their Freemen of greater Power with them in the managery of greater affairs than Consuls or Senators which made (e) Praecipuum indicium non magni Principis magni Liberti Panaegyr Pliny say It was the principal sign of a Prince not great where the Freemen were great The Prince cannot be presumed to chuse his Magistrates by his own knowledge of their abilities and fitness for their several Imployments but must trust such as are about him therefore it becomes them well to know the qualifications of such as are to bear Office for the Rule of Tacitus (f) Melius officiis administrationibus non peccaturos praeficere quam damnare cum peâ—â—arint Vita Agricolae is to be observed That it is better not to prefer to Offices and Administrations such as will transgress than to condemn them who have transgressed CHAP. XXXIII Of the Soveraigns appointing Judges Courts of Justice and other Officers HAving treated in the last Chapters of such as have a general inspection into and by the Soveraigns Election and placing them a power of advising at least how the whole frame of Government is to be disposed as both Prince and People may be happy I come now more particularly to the Ministerial Officers of Justice such as are the Lord Chancellor or Keeper Lord Treasurer the two Lord Chief Justices and the rest of the Judges whether they be the Judges at Westminster or those of Assises Oyer and Terminer to try Causes in their respective Circuits I undertake this Task Lugduni tanquam Rhetor dicturns ad Aram The Author's Apology or one that procul profanus adorat The Subject being only fit to be handled by such as have read and digested the whole Body of the Laws and are eminent in the Profession of them whereas I must own my self to have tasted only so much of that Ornamental and most useful Study as may quicken a dull and languid Appetite to praise or rather admire it than that I can hope to benefit the judicious Reader by an imperfect Description of their Calling and Office who by the Sovereign are appointed to be the Oracles of the Law and the Ministers of his Justice whose great Wisdom and Knowledge all ought to reverence But as they make so great a Figure in the Government I could not omit them though it be but to salute the Skirts and hold up the Train of their Scarlet Robes SECT 1. IN Edward the Elders Days those that gave Judgment under the King King Edward the Elder 's Law about Judges Gerefa had the name Gerefa under which name Aldermen Earls Presidents Prefects Governours c. were comprehended From whence with the Germans the word Grave is used for an Earl President Judge c. and our Sheriff is from Scyre gerev Raeve or Graeve of the Shire The Charge in that Kings Laws runs thus (a) Eadweard Cyning vyt thaem Gerefum eallum that gede man swa ribte domas swa gerihtoste cunnon hit on thaere dombec stande ne wandigeth for nanum thingum folcrihte to gerecanne c. Eadward the King wills that all his Graeves give so right Judgment as they can most Righteously as it stands in their Judgment Book that is as we may suppose in the written Laws fearing for no thing or cause to declare or pronounce Right or Justice to the People The which publishing of Justice they shall appoint at certain times or Terms when they will perform it and declare the same So that in this seems to be comprehended what is more at large in the Oath of a Judge in After-Ages We must principally consider that the King is the Fountain and original of all Justice in his Kingdom The King is the Fountain of Justice therefore Bracton (b) Lib. 3. cap. 9 10. Rex non alius debet judicare si solas ad id sufficere possit cum ad hoc per veritatem Sacramenti teneatur astrictus sicut Dei Vicartus Minister in terra saith That the King and not another ought to judge if he alone were sufficient to do it being bound by his Oath to it therefore the King ought to exercise the Power of the Law as Gods Vicar But if our Lord the King be not sufficient to determine all Causes that the Burthen may be lighter divided among several Persons he ought to chuse Men wise and fearing God See Britton fol. 1. Coke 4. Inst c. 7. and appoint them Justiciaries Yet this surrogating of Judges in the Kings respective Courts doth not divest the King of his Power for as the same (c) Rex habet ordinariam Jurisdictionem omnia Jura manu sua quae nec ita delegari possunt quin ordinaria remaneant cum ipso Rege Bracton saith The King hath ordinary Jurisdiction and all Laws are in his Hands which cannot be so delegated but that they remain with the King From which and other Authorities Mr. Lambard saith (d) Archaion That the Courts derive their Powers from the Crown their original and drawing by one and one as it were so many Roses from the Garland of the Prince leave nevertheless the Garland it self undespoiled of the Sovereigns Vertue in the Administration of Justice Therefore saith Sir Edward (e) Tit. Discontinue de Proces part 7. 30. Coke By the Common Law all Pleas were discontinued by the Death of the King and Process awarded and not returned before his Death was lost For by the Death of the King not only the Justices of both the Benches and the Barons of the Exchequer but Sheriffs also and Escheators and all Commissions of
Oyer and Terminer Gaol-Delivery and Justices of Peace are determined by the Death of the Predecessor that made them Therefore the Statute of 25 Ed. 3. declares it to be Treason if any man kill the Chancellor The Judges represent the King's Person Treasurer or the Kings Justices of the one Bench or the other Justices in Eyre or Assise or any other Justices assigned to hear and determine being in their places doing their Offices The (f) Id. 3. Instit p. 18 140. reason whereof is assigned because all these represent the King 's Royal Person in his own Courts by his own Commission under the Great Seal in the very Execution of the Kings Royal Office viz. Administration of publick Justice to his People As therefore the King at his Coronation (g) Facies fieri in omnibus Justiciis tuis aequam rectam Justitiam discretionem in misericordia veritate secundum vires tuas taketh an Oath to make to be done in all his Judgments equal and right Justice and Discretion in Mercy and Truth according to his Power So he lays the Burthen thereof upon the Judges according to that of E. 3. for the Pleasure of God and quietness of our Subjects as to save our Conscience and keep our Oath by the assent of our great Men and other of our Council we have commanded our Justices that they shall from henceforth do even Law and Execution of right to all our Subjects Rich and Poor without having regard to any Person c. Therefore before this in (h) Nulli vendemus nulli negabimus aut differemus Justitiam vel Rectum c. 29. Magna Charta we find that the King will sell deny or defer Justice to none Yet from hence it doth not follow that if in the opinion of some the King doth not do Justice that therefore any Subject should conclude as the Master of the Hospitallers of Jerusalem in England at Clerkenwell Anno 1252. 37 H. 3. did The Story is thus told by (i) Hist p. 826 827. Edit prioris Matthew Paris The Master waiting a time when he might discourse with the King he complained of some Injuries done him The King loseth not his Authority tho' he do not Justice and shewed the King some Charters of Protection of himself and his Ancestors The King answered with an Oath and in Wrath You Prelates and Religious especially Templars and Hospitallers have so many Liberties and Charters that they make you proud c. Therefore they ought prudently to be revoked which imprudently have been granted to you for even the Pope oftentimes revokes his Grants with a non obstante and the King told him so he would do To all which the (k) Cui Magister Hospitalis respondit alacâ—iter vultu elevato Quid est quod diciâ— Domine Rex Absit ut in ore tuo recitetur hoc verbum illepidum absurdum Quamdia Justitiam observas Rex esse poteris quam cito bane infregeris Rex esse desines Master saith Matt. Paris answered chearfully and with a lifted up Countenance What is this you say my Lord the King far be it from you to speak so absurd a thing As long as you observe Justice you may be a King and as soon as ever you break this you cease to be a King Thus he would make Dominion founded in Justice as others in Grace But I need not add many Authorities upon this Head for by the universal Suffrage of the profound Lawyers the Kings of England solely nominate create and (l) Dyer fol. 56. appoint all the Judges of the great Courts at Westminister and may remove them at their Pleasure and alone make (m) Davis 45. and appoint Justices of Oyer and Terminer of Gaol-delivery Justices of the Peace Sheriffs and the like Officers and (n) Coke 4. Inst n. 4. 14. 114. 117. remove them when they see Cause and the (o) Bulstrod 3. 296. 1 H. 7. c. 25. Prerogative of making Judges cannot be given or claimed by a Subject The King hath also Power to name create make (p) Sheppard's Grand Abridgment part 3. p. 53. and remove the great Officers Ecclesiastical and Civil by Sea and Land as Archbishops Bishops by way I suppose of Conge deslier The King 's placing and displacing all Great Officers and Translation Lord Chancellor or Keeper Lord Treasurer Lord President Lord Privy-Seal Lord High Steward Lord Admiral Lord High Constable Earl Marshal Lord Chamberlain Privy Counsellors the Marshal or Steward of the Kings House and the rest of the Officers of his Houshold Master of the Horse Officers of the Mint of the Castles Port-Towns and Shipping Lord Lieutenants and many more too tedious to be named So that either mediately or immediately all Officers are by the Kings appointment which is not only a manifest badge but a necessary appurtenance of the Soveraignty SECT 2 The Court of High-Steward THE Kings Courts have been various The Court of the High-Steward as that of the Privy-Council called the Council-Board of which I have spoke before The Court of the High-Steward of England intituled Placita Coronae coram Seneschallo Angliae disused since the Reign of Henry the Fourth and now a Lord High-Steward is only appointed pro hac vice with limitations for the Tryals of some Peers of the Kingdom upon Inditement His Power anciently was (q) Coke 4 Inst c. 4. Supervidere regulare sub Rege immediate post Regem totum Regnum Angliae omnes Ministros Legum infra idem Regnum temporibus Pacis Guerrarum The next Court which is now totally suppressed was the Honourable Court of Star-Chamber The Star-chamber Court of ancient time stiled Coram Rege Concilio suo coram Rege Concilio suo in Camera stellata of which I shall have occasion to write something in the Chapter below SECT 3 The Court of King's-Bench AS to the great and standing Courts The King's-Bench the first of them that is mentioned in Ancient Writers is that of the Kings Bench coram Rege This (r) Rex illarum Curiarum habet unam propriam sicut Aulam Regiam Justiciarios Capitales qui proprias Causas Regias terminant Bracton saith was the Kings proper Court called the Kings Hall and had for Judges in it chief-Chief-Justices which determined the Kings proper Causes c. The same (s) Justiciariorum quidam sunt Capitales generales perpâ—tui majores a latere Regis residâ—ates qui emnium aliorum corrigere tenentur injurias errores Lib. 3. c. 7. fol. 108 b. Author speaking of the Justices of this Court saith That some of them were Capital General perpetual and the greater sitting by the Kings side which were to correct the injuries and errors of all others Fleta in describing this Court saith My Lord Coke gives this account That the King in this Court hath his Justiciaries as well Knights as Clergy-men as
the Kings Lieutenants in England as the Lords Justices were sometimes I suppose in Ireland before (t) Coram quibus non alibi nisi coram semetipso Concilio suo vel Aâ—ditoribus specialibus falsa Judicia Errores Justiciariorum reâ—ertuntur corriguntur whom and no where else unless before the King himself and his Council or special Commissioners false Judgments and Errors of Justices are reversed and corrected and there are determined Breeves of Appeals and other Breeves upon Criminal Actions and Injuries against the Peace of the King And Bracton saith That in Criminal Matters if they touched the King's Person as Treason they were tried coram Rege if concerning private matters then before the Justices only By many Records it appears The Kings of England used to fit in this Court that the King sometimes sate in this Court and that sometimes the King ordered it to follow his Court as particularly in 28 E. 1. (u) Cap. 5. it was established in the Statute of Articuli super Chartas Robert de Bruis was the first Capitalis Justiciarius ad placita coram Rege 8 March (w) Pat. 52. H. 3. m. 24. 52 H. 3. the Title of Justiciarius Angliae of whose great Power the learned (x) Glossary Spelman and (y) Sacred Laws Sir Henry Spelman about the Office of the Chief-Justice of England Mr. White have given an account having an end in Phillip Basset who was advanced to that place 45 H. 3. Who desires further satisfaction may consult Mr. Crompton's Jurisdiction des Courts c. 4. Sir Ed. Coke Sir William Dugdale Mr. Prynne and the Authors they cite who are many and learned and do at large treat of its Jurisdiction and the Practice in it which are foreign to my Design SECT 4. The Court of Common-Pleas The Common-Pleas THis Court of Common-Pleas appears to be as antient as Henry the First 's time for in his Charter to the (z) Coke's Reports part 8. Abbat of B. he grants Connusance of all Pleas so that neither the Justices of the one Bench or of the other or Justices of Assize should meddle Bracton (a) Cognoscunt de omnibus Placitis de quibus Authoritatem habent cognoscendi sine Warranto Jurisdictionem non habent nec Coercionem Lib. 3. c. 10. fol. 105 b. saith This Court had Cognizance of all Pleas of which Authority is given them without warrant they neither having Jurisdiction or Coercion Therefore Sir Edward Coke saith That regularly this Court cannot hold any Common-Plea in any Action real personal or mixt but by Writ out of Chancery returnable in this Court This Court proper for Pleas betwixt Party and Party Those that treat of this Court agree That it was for hearing and determining all Controversies in matters Civil betwixt Party and Party called the Common-Pleas as contradistinct from Pleas of the Crown and was anciently kept in the Kings own Palace Not to follow the King 's Court. In Magna Charta it is granted That the Common-Pleas shall not follow the Kings Court but shall be held in a certain place The Exchequer having been the place where these Causes were heard till (b) Articuli super Chartas cap. 4. 28 E. 1. that by Statute it was provided that no Common-Plea shall from henceforth be held in the Exchequer contrary to the form of the Great Charter The first who had the Appellation of Capitalis Justiciarius in this Court according to Sir William Dugdale was Gilbert de Preston who by that Title had his Livery of Robes (c) Liberat. 1 E. 1. m. 4. 1 E. 1. The number of the Justices (d) See Sir William Dugdale's Origines Juridiciales p. 39 b. The number of the Justices varied 3 E. 2. were Six 14 E. 3. they were Nine the latter end of Henry the Fourth and all the Reign of Henry the Seventh they were but Four Those that would be satisfied about the Jurisdiction of this Court may have recourse to Mr. Richard Crompton's Jurisdiction of Courts c. 7. fol. 91. the Year-Book quoted in Ash his Promptuary Sir Henry Spelman's Glossary tit Bancus Capitalis Justiciar de Banco Communi p. 417. Sir W. Dugdale's Origines Juridiciales Prynne's Animadversion p. 52. and many other good Authors cited by them SECT 5. Court of Chancery THE Court of Chancery in some Writers is placed the first Coâ—rt of Chancery in others as I have placed it Although it is true what Sir Edward (e) Sir Edw. Coke's Arguments for the Antiquity of the Chancery Coke saith That Kings had their Chancellors in the Saxon times indeed he adds the Brittish also of which little can be known yet I dare not avouch with him that the Court of Chancery was then as now the only Court out of which Original Writs do issue it is true that to the Charter of King (f) Spehran Tom. 1. Concil p. 631. Edward the Confessor maâ—e to the Abbat of Westminster amongst the Witnesses it is said Ego Swardus (g) Swyerg trius in Spelman Notarius ad vicem Reynbaldi Regiae dignitatis Cancellarii hanc cartam scripsi subscripsi So (h) Glossary fol. 106. Adulph is accounted Chancellor to King Edgar and Tâ—rketil to King Edred and King Edmund and Wolsine to King Athelstan and that the Chancellor had a Court may be presumed from what is found in the Book of Ely writ as it is supposed about King Stephen's time that King Aethelred who Reigned about Anno 978. appointed and granted Answer Canceliarius qui vel Regum praecepta aut Acta Judicum scribit Spelm. Gloss fol. 104. that the Ch. of Ely then and ever after in the Kings Court should have the dignity of the Chancery which albeit as Sir Edward Coke saith it was void in Law to grant the Chancellourship of England in Succession yet it proveth that then there was a Court of Chancery As to the first it is apparent that the Chancellor then had the power of composing the Charters and before Seals were in use might also subscribe with the Sign of the Cross as other of the Kings Officers did but this doth not prove what kind of Court he was made Judge of for there the Notary in the Chancellors room signs last and in the (i) Tom. 1. p. 486. Councils of Sir Henry Spelman's Edition I find Adulph stiled Herefordensis (k) Id. p. 489. Ecclesiae Catascapus signing last of the Abbats See Spelman Glossar p. 106. As to the Book of Ely I know not how to understand that the Church should have any dignity of Chancellorship in the Kings Court and if it be meant of the Bishop of that See only it might possibly be meant to be the principal Chirographer or drawer of the Kings Charters As to what is found in the Mirror it is of no great validity being writ according to the then custom of the Age wherein the Author
all manner of People as well Poor as Rich that for Highness nor for Riches nor for Hatred nor Estate of no manner of person or persons nor for any Deed Gift nor Promise of any person the which is made to him nor by Craft nor by Ingen he shall let the Kings Right nor none other Persons right he shall disturb let or respite contrary to the Laws of the Land nor the Kings Debts he shall put in respite where that they may goodly be levied that the Kings need he shall speed above all others that neither for gift wages nor good deed he shall layne disturb nor let the profit or reasonable advantage of the King in the advantage of any other person or of himself that he shall take of no person for to do wrong or right to delay or to deliver or to delay the People that have to do before him c. where he may know any wrong or prejudice to be done to the King he shall put and do all his power and diligence that to redress and if he may not do it that he tell it to the King or to them of the Council that may make relation to the King if he may not come to him Sir Edward Coke (z) 4. Instit p. 103. 110 111. hath commented on the Mirror to explain all the Power and particular business of the Court and further observeth that the Patent of the King to the Chief Baron the rest of the Barons Atturney General and Sollicitor are not so long as the King pleaseth but quam diu se bene gesserint which is interpreted a place for life and there is good reason being too many changes would give too many an insight into the Kings Revenue There is a Manuscript (a) Codex niger c. 1. Nulli licet statutum Scaccarii infringere vele is quavis temeritate resistere Habet enim hoc commune cum ipsa Dom. Regis Curia in qua ipse in propria persona Jura decernit quod nec Recordationi nec Sententia in eo latae liceat alicui contradicere of Gervasius Tilburiensis writ in the time of Henry the second which gives an account how it came to be called the Exchequer from a checked Covering of the Table at which the Officers of the Court sate and saith That it is lawful for none to infringe the Statutes of the Exchequer or by any rashness to resist them it having that common with the Court of the Lord the King in which he in his proper person gives Judgment that it is not lawful for any to contradict either the Record or Sentence By which it appears that this Court was distinct from the Kings Bench where the King sate in person and that by the Institution of William the Conqueror not only the great Barons of this Realm as well Ecclesiastical as Secular but also the Justice of England as President thereof by his Office were Members of this Court and so continued to do long after as the Judicious (b) Origines Jurisâ—ic fol. 50. Sir William Dugdale hath by Precedent shown Mr. Prynne hath given us two Records out of the Exchequer (c) Commun Term. Mich. 35 H. 3. Rot. 2. 34 H. 3. and Rishanger 40 H. 3. that that King in his proper person sate and gave judgments in the Court of Exchequer and gave not only Rules to be observed about the Revenue Sheriffs and Bailiffs but also concerning punishing Blasphemy defending Pupils Orphans and Widows and how the Magnates deported themselves to their Tenents and if (d) Inquirant qualiter Magnates se gerunt erga homines suoâ— si forte non possunt plenarie corrigere tunc ostendant easdem transgressiones Dom. Regi they found them transgressing that they correct them as they can and if they cannot fully correct them they show the same transgressions to the King He hath also given an account how 54 H. 3. (e) Pat. 54 H. 3. m. 22. dorso Incep 55. Rot. 3. dorso the accounts of the Sheriffs into the Exchequer were to be digested and in Michaelmass-Term the same Year how the Barons of the Exchequer were to administer the new Oath to the Mayor Elect of the City of London likewise in the same (f) Animadv fol. 55 56. Author there is a large refutation of Sir Edward Coke's Opinion that the Statute of Rutland as he calls it was a Statute made by the King Lords and Commons where it is proved against Sir Edward that it was made for the ordering of the Exchequer at Rothelan in Wales by the King and his Council and not at Rutland but I shall not enter into such Particulars There are several other Courts which have peculiar Jurisdictions by the King's Grants and Prescription as the Court of Requests abolished 17 Car. 1. The Court of Chivalry Court of Marshalsea of the Admiralty and that for redress of delays of Justice which Sir Edward Coke and others have treated of at large and fall not so necessarily for me to discourse of So I shall proceed to the Itinerant Justices and of Assizes and Gaol-delivery SECT 7. Of Itinerant Justices and Justices of Assize and Nisi Prius SOme Shadow of this we find in the time of the Conqueror when Geofrey Itinerant Justices Earl of Constance and some other Barones Regis did sit at (g) Regist Ecclesiae Eliensis fol. 24 b. Kenteford to hear and determine the Claim touching the Rights and Liberties of the Church of Ely at that time disputed before them But the settlement of the Constitution of them was not till 22 H. 2. Anno 1176. as Roger Hoveden (h) Annal. pars post p. 148 149 150. hath related when the King held his Great Council at Nottingham communi omnium Consilio divisit Regnum suum in 6 partes per quarum singulas Justiciarios Itinerantes constituit and the Twenty fifth of his Reign at his great Council at Windsor (i) Idem p. 590 591. Et unicuique partium praefecit viros sapientes ad faciendam Justitiam ad audiendum clamorem populi he divided England into four Parts and over every Part he appointed Wisemen to do Justice and hear the Complaints of the People The Form of the special Writ from the King to impower them to act and of the Writ directed to the Sheriffs to summon all such Persons as were concerned in this Service to appear before the Justices may be seen in Sir William Dugdale's Origines Juridiciales fol. 52. a.b. In which latter Writ (k) Cl. 3 H. 3. m. 13. dorso the Persons summoned to appear were Archbishops Bishops Abbats Earls Barons Knights libere tenentes and in every Village four Legales Homines Praepositum de quolibet Burgo 12 Legales Burgenses Sir Ed. Coke (l) 4. Instit p. 184. calls these Justices in Eyre and saith they had Jurisdiction in all Pleas of the Crown and of all Actions real personal and
mixt and they rode from seven Years to seven Years These Justices in Eyre continued no longer than till Edward the Third's time for then as Mr. (m) Notes on Hengham p. 143. Justices of Assize Selden notes Justices of Assizes came in their Places though it is manifest that Justices of Assize were sooner begun For (n) Lib. 3. c. 10. Bracton mentions these Justices of Assizes in his time in these words Sunt etiam Justitiarii constituti ad quasdam Assisas duo vel tres vel plures qui quidem perpetui non sunt quia expleto negotio Jurisdictionem amittunt The form of the Writ in (o) Cl. 9 H. 3. m. 11. dorso 9 H. 3. is set down by Sir William Dugdale in which the King constitutes his Justitiarii to take the Assizes of new disseising and Delivery of the Gaol and the Command to the Sheriff is to cause (p) De qualibet Villa quatuor legales homines Praepositum de quolibet Burgo vel Villa mercanda duodecim legâ—les homines omnes Milites libere Tenentes c. four legal Men and the Provost out of every Village and twelve lawful Men out of every Market-Town and Borough and all the Knights and Free-Tenents that is all that held in Capite to do what the Justices should on the King's part appoint In 21 E. 1. (q) Placit Parliam 21 E. 1. num 12. another settlement was made that either discreet Justices should be assigned to take Assizes Jurats and Certificates throughout the whole Realm viz. for the Counties of York Northumberland Westmoreland Cumberland Lancaster Nottingham and Derby two In the Counties of Lincoln Leicester Warwick Stafford Salop Northampton Rutland Gloucester Hereford and Worcester other two In the Counties of Cornwall Devon Somerset Dorset Wiltshire Southamptom Oxford Berks Sussex and Surrey two For the Counties of Kent Essex Hertford Norfolk Suffolk Cambridge Huntingdon Bedford and Bucks two and that the Assizes c. of Middlesex should be taken before the Justices of the Bench. (r) Mâ—ltis vigiliis excegitata inventa fuit recuperandâ—e possessionis gratia ut per summariam cognitionem absque magna Juris solennitate quasi per compendium negotium terminetur Lib. 4. sol 164 b. Bracton speaking of the Writ called Assiza novae disseisinae saith it was found out and contrived by much Vigilance for the recovering of Possessions by a summary or speedy Conusance without great Solemnity of the Law that the business might be compendiously determined For before at Common-Law Assizes were not taken but either in the Bank or before Justices in Eyre which was a great delay to the Plaintiff and a great molestation and vexation of the Recognitors of the Assize therefore in Magna Charta the Assizes are appointed to be taken in the respective Counties and the Patents to Justices of Assize run thus (s) See the Patent Clause and Fine-Rolls from King John to Edw. 4. Sciatis quod constituimus vos Justiciarios nostros una cum hiis quos vobis associaverimus ad omnes Assisas c. in Com. c. arainandas capiendas c. facturi inde quod ad Justitiam pertinet secundum legem Consuetudinem Regni vostri Angliae Salvis nobis amerciamentis inde provenientibus The Justices of Nisi Prius (t) Ad exonerationem Juratorum ad ceâ— lerem justitiam in ea parte exhibendum Stat. de Finibus 27 E. 1. c. 4. were first instituted by the Statute of Westm Justices of Nisi Prius 2. and their Authority is annexed to the Justices of Assize These Justices were instituted for two principal Causes for the ease of Jurors and for the speedy exhibiting of Justice SECT 8. Justices of Oyer and Terminer AS to the Justices of Oyer and Terminer they are appointed either by (u) Coke 4. Inst fol. 162. general or special Commission By general Commission they are to enquire of Treasons Misprisions of Treason Insurrections Rebellions Murders Felonies Manslaughter (w) Interfectionibus Killing Burglaries Rapes of Women unlawful Assemblies Conventicles (x) Verborum prolationibus false News Combinations Misprision Confederacies false Allegations Riots Routs Retainings Escapes Contempts Falsities Negligences Concealments Maintenances Oppressions Combinations (y) Cambipartiis of Parties Deceits and other ill Deeds Offences and Injuries whatever and to do thereupon what appertains to Justice according to the Law and Custom of the Kingdom Special Commissions were not granted unless for enormous (z) Nisi pro â—nermi transgressione ubi necesse apponere festinum remedium Cl. 14 E. 3. part 1. m. 41. dorso Hil. 2 H. 4. Rot. 4. Mich. 1 H. 8. Transgressions where there was a necessity of speedy Remedy In some cases we find the Justices of Oyer and Terminer have upon an Indictment found proceeded the same day against the Party indicted So Thomas Marks Bishop of Carlisle before Commissioners of Oyer and Terminer was Indicted tryed and adjudged all in one day for High-Treason Likewise Sir Richard Empson was indicted of High-Treason and tried all in one day So Robert Bell 10 Dec. 3 E. 6. and 10 Eliz. 4 Aug. John Felton was before Commissioners of Oyer and Terminer in London indicted of High-Treason and tried the same day by the advice of all the Judges of England SECT 9. Of the Kings Erection of Courts IN some Cases the King may erect new Courts of Justice What new Courts the King may erect and grant Conusance of Pleas to a Corporation to be kept after the Rules of the Law not in a way of a Court of Equity but may not alter the great Courts at Westminster that have been time out of mind nor erect a new Court of Chancery Kings-Bench Common Pleas Exchequer c. Although in a proper Court such as our Chancery a Judge of Equity be allowed yet if it were permitted in all other Courts to expound the Law against the letter and perhaps the meaning of the Makers according to Conscience as we speak there would soon be introduced absoluteness and Arbitrary Power Therefore great Care is taken by those that understand the Law that matters be not left to the discretion of any Persons Commissionated by the King to adjudge of any Causes So the plausible Statute (b) 11 H. 7. c. 3. of H. 7. to put in Execution the Penal Laws impowering Justices of Assize and of Peace upon Information for the King by their Discretion to hear and determine all Offences and Contempts against any Statute unrepealed was found to have Authorised Empson and Dudly to commit upon the Subject unsufferable pressures and oppressions So that (c) 1 H. 8. c. 6. soon after that Kings death it was repealed and those two brought to Tryal and executed for their oppressions So the Statute (d) C. 2. 8 E. 4. of Liveries c. by the discretion of the Judges to stand as an Original is deservedly repealed In
procure the Subscriptions and then tender them as it were by their number to affright the King to a Compliance or that the King to whom the Execution of the Laws or suspension in some measure surely appertains might not forbid such Petitions They singled out Sir Francis North then Lord Chief Justice of the common-Common-Pleas after Lord Keeper and Earl of Guilford Sir George Jefferies then Recorder of London now Lord Chancellor Mr. Justice Withins and others as Subjects of their displeasure for disliking and abhorring the irregular dangerous way of Petitioning But they received more Lustre and Regard in the Eyes of their Soveraign and all Loyal Subjects by their Censure than they did discredit by it It seems worth the while for Persons that have regard to the quiet and repose of the Subject to the Honour and Establishment of the Government and for the Tranquillity and Liberty of their Posterity to consider whether any mortal Man can either produce Precedent or Law to justify the Imprisonment of those Gentlemen Abhorrers of which I have spoken something before in the Chapter of Parliaments I shall now conclude with the last and formidablest sign of Sedition Of Tumults viz. Tumults which are but unarmed and Pen-feathered Rebellion They have the Mien and Standard of it only want the Artillery The fatal black Parliament disciplined them to be ready at any watch word and whatever they voted against the King or Church was ushered in by thousands of all sorts flocking out of the City and Country braving and threatning all along as they went by White-Hall and so in Sholes crowding to the Houses promising to stand by them and crying out for Justice They were so insolent and rude that they forced the Merciful King to withdraw from his Pallace to which he never returned till they brought him to his Barbarous Tryal and Murther That Blessed Kings Sence of them can be expressed by none so emphatically as by himself therefore I shall extract some of his feeling Expressions I (x) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 4. never thought any thing except our Sins more ominously presaging all those mischiefs which have followed than these Tumults And this was not a short Fitt or two of an Ague but a quotidian Feaver always encreasing to higher Inflammation impatient of any Mitigation restraint or remission Those who had most mind to bring forth Confusion and Ruin upon Church and State used the Midwifery of Tumults by which they ripped up with barbarous Cruelty and forcibly cut out abortive Votes to crowd in by force what reason would not lead Some Mens Petulancy was such as they joyed to see their Betters shamefully and outragiously abused So the Blessed King finding they invaded the Honour and Freedom of the two Houses and used such contemptuous words and Actions against him thought himself not bound by his Presence to provoke them to higher Contempt and Boldness For he saith it was an hardiness beyond Valour to set himself against the breaking in of the Sea being daily baited with Tumults he knew not whether their Fury and Discontent might not fly so high as to worry him and tear him to pieces whom as yet they played but with in their Paws Therefore thinks himself not bound to prostitute the Majesty of his Place and Person c. to those who insult most when they have Objects and opportunity most capable of their rudeness and petulancy Our late gracious Sovereign in later times when some Men were endeavouring to practise the same Methods found some offers of the like at Windsor a place of all others in which one would have thought he should have had the most Honour for the Benefits he did to that Town by his so frequent residence when first the Boys and then the Rabble were set on to shout for a Burgess of Parliament in opposition to a Loyal Person His Majesty favoured even in his own Presence The Prophetick Observation of the Martyred King is worth noting That he believes the just Avenger of all Disorders will in time make these Men and that City see their Sin in the Glass of their Punishment which needs no application but only to desire they would be so just to themselves and their Posterity as to follow no such Precedents and that none will encourage such outragious doings I shall dismiss this ingrateful Subject with the Description (y) Vâ—â—ibus truculentis strepere rursum viso Casare trepidare Murmur incertum atrox clamor repente quies diversis animorum moribus pavebaret terrebaâ—â— 1. Annal. Tacitus gives of the mutinous Tumult of Drusus's Soldiers That the Ring-Leaders when they looked to the multitude with outragious Voices made terrible noises but viewing Caesar shrunk again and of the whole multitude he saith an uncertain Murmur an horrible cry and suddenly a calm by divers emotions of Mind they feared and did affright CHAP. XLIV Prognosticks of Sedition and Faction BOdinus (a) Seditio semel accunsa quasi scantilla impetu populari repente agitatur ac totum prius inflammari solet quam extingui possit De Repub. c. 4. tells us That Sedition once kindled is suddenly fanned and blown by popular fury into a Flame which is wont to set all on Fire ere it can be extinguished The danger therefore of Faction is not to be sleighted but the Government should be watchful over the least Sparks which no Man can forbid or tell whence they may come or how far they may ravage when there is a Propensity to Faction Therefore Governours should not suffer matter of Trouble to be prepared or hatched but crush the Cockatrice in the Egg and the Monster in the Embryo especially (b) Vbi Respublica aegra quave vix cicatrices clade intestina acceptas obduxerit Clapm. de Arcanis dominationis lib. 3. c. 16. When Danger less when the Scars of late Wounds are not healed or hardned as after a Civil War when Factions are most dangerous The danger is less saith my Lord (c) Essays St. Albans when it springs only from the Discontent of the People being slow of Motion and the greater sort of small Strength without the Multitude can do little but the danger is greatest when those of higher Rank wait but for the troubling of the Waters So Jupiter by Pallas's Advice when the other Gods would have bound him sent for Briarous with his Hundred Hands an Emblem to show how safe it is for Monarchs to make sure of the Good Will of their People The motions of the greatest Persons in Government ought to be as the motion of the Planets under the Primum Mobile according to the old Opinion that every of them is carried swiftly by the highest Motion and slowly by its own Therefore when great Men in their own particular motion move violently Liberi usque ut Imperantium meminissent as Tacitus speaks It is a sign the Orbs are out of Frame Where Factions are not Combinations against the Government
their imperious Commands The World never knew greater oppression than those that stiled themselves Keepers indeed Jaylors of the Liberties of England were guilty of It would trouble saith a judicious (s) Malson's Common Interest Author a publick Accountant to cast up those vast Summs and incredible Treasures which in less than twice seven years they raised and spent to support the worst of all luxurious Rebellion and to act upon the publick charge and Theater of the Nation not Masques and Plays as they had charged one great part of the Expences of the Court on but the most real and inhumane Tragedies and those infinite in number one of which was such as the Sun never saw or any History could parallel It would be endless to recount the Annual Revenue of the Crown Bishops Chapter and Cathedral Lands besides the Money they received for the purchace of them the constant heavy and unheard of Assesments free Quarter Plunder Sequestration Compositions Decimations Excise and Customs voluntary Contributions of Plate Jewels c. Summs borrowed on the Publick Faith which some found to their cost was but fides Punica and almost innumerable ways and arts they had to squeeze and drain the Treasure of the Nation into their bottomless Gulph so that the same Writer is confident That not any three Kings of England since William the Conqueror to this present were so expensive to England as that one Tyrannical and Prodigal Parliament The Nation was then and ever will be under any Usurping Republic in worse than Egyptian Bondage In every County a Committee was placed to seize the Estates and Rents of all the Loyal Subjects with such a Tyrannical Arbitrariness as never was known under any Kings Reign and as if that were not enough there were added to them Basha Major Generals and the sucking Vermine in every Town and Hamlet were either fire-side Troopers or some well affected Person whose Information would be believed before the best in the Parish Every one that would not worship those Pagods were proceeded against by some of those or their Arbitrary High Courts of Justice or were convened before the House of Commons where every one of those Parliament Demarchs were as absolute as the Laws of their own will could make them No Person could either question their Actions or Authority but he paid his Life or Fortune or one of them for his presumption so that we saw the whole Kingdom brought into a slavery far greater than theirs that wear Canvase Cloth and Wooden Shooes and not only look like Ghosts but really are so as they made all which they either suspected feared or hated All which was never to have been altered as long as their standing Force should be true to them to the incredible charge oppression and impoverishment of the Subjects Friend and Foe though they had the Policy to lay the heaviest Burthen and Load upon the Backs of their Enemies if possible to break them keeping the Loyal Nobility and Gentry so poor that many of them have not been able or ever will be to forget the kindness of that Government which was the ruin of them and their Families I shall now pass to the last head of Rewards and Punishments No just Distribution of rewards or Punishments and executing of Justice none of which can be according to merit where prevalent Faction shall sway the Balance and open and shut the Eyes of Justice by the cunning Instruments of Partiality It being impossible to separate Faction and Interest from this kind of Authority so that none shall obtain any thing but according as they shall be judged favourable or advantageous to the Interest of the ruling Faction So that the Vertuous shall have the least share since Vertue is not over natural to Mankind it is like to thrive but poorly in a soil where it is not tenderly cherished and frequently refreshed with the encouraging Dews of Reward and Benefit But those shall have the greatest share that can best wheedle or seem by a well-managed Flattery to join with the topmost governing Party I shall therefore give some examples of the Ingratitude of Commonwealths to the well-deserving great and brave Men Ingratitude of Commonwealths who have served their Country and been ill rewarded by the governing Part or been exposed to be baited or worried by the People instigated by Factions or suffered base Ignominy Banishment or Death I shall begin with Athens the eye of Greece and the Seat of the Muses When Xerxes invaded Greece The ill usage of Themistocles the Athenians and Peloponnesians were the most considerable States yet the Athenians were forced to leave their City and get into their Navy which might carry the whole People and their Power to some remote Country where they might enjoy more secure Habitations The Spartans were unwilling to hazzard a Sea-Battle near Salamis but would have weighed Anchor and gone to Isthmus Themistocles did all he could to perswade the staying and joining of the Fleets there to wait the Enemy who would have less Sea room whereas if they fought elsewhere by his numbers he would have overborn the Confederates and when he could not prevail but that they would weigh Anchor the next day he sent a private message to the Persian Captains that the Grecian Fleet intended to fly and in the interim advised the Grecian Fleet to be in a readiness against all Events By which Stratagem he toiled the Persian Fleet to make the Attacque with that disadvantage he desired and the Grecians obtain'd a most memorable Victory Several other great Services he did not only in saving of Athens but the rest of Greece from Xerxes But when the Athenians were returned to their City and rebuilt it after the Battle of Mycale the People were so proud of their Exploits that they not only endeavoured to get the Command of many Towns and Islands of the Greeks but within their own Walls would admit no Government but meerly Democratical which being argued against by Themistocles they laid upon him the Punishment of the Ostracism banishing him for ten Years before which time was expired a new accusation was framed against him by the Lacedemonians that he intended to betray (t) Sir Walt. Raleigh b lib. 3. cap. 8. sect 7. Greece to Xerxes So that he was forced to fly to Artaxerxes who afterwards would have imployed him against Greece but he decided the great Conflict betwixt thankfulness to his well-deserving Patron and natural Affection to his own ill-deserving People by finishing his Life with a draught of Poyson This Ostracism was a Sentence of Banishment writ upon an Oyster-shell and the like in Sicily writ on a Leaf was called Petalismus This was so often abused by exterminating Persons not so much for Crimes as by factious Envy made use of to remove out of the way Persons that were like to oppose the prevailing Factions that the (u) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. lib. 3. c. 13.
apparent the Argument is Sophistical as being built on a Maxim in it self amphibolous which is not simply true but as it is restricted For it is true before the Effect produced not after So a Spark firing a City was once more Fire than the Houses but not so after the whole Town is become a Flame It is true also in those Agents in whom the Quality by which they operate is inherent not true in those who by ways of Donation divest themselves of Power or Wealth For a thing cannot retain its Fulness after it hath emptied it self If the Objector have an Estate which he would willingly improve let him bestow it on another and he shall make him rich and by his own Argument himself richer It is to be supposed rather than such an one will part with his Estate he will find an Answer to his Objection As to the minor Proposition I have before cleared I hope That the People are not the Original Cause of Government But the Observer saith They are the Final Cause and the End is far more valuable in Nature and Policy than that which is the Means therefore the Commons whose Good is the final End of all Government are more Honourable than the Sovereign But the Rule holds in such Means only as are valuable by that relation they bear to their Ends and have no proper Goodness of their own A King is not so to his People If we look back to his first Extraction when he was first taken from the People to be set over them we must needs behold him as a Man of some Worth Honour and Eminence which the superaddition of Royalty did not destroy but encrease and to be a means of his Peoples Preservation is very consistent with the Heighth of Honour Besides they that would captivate the unthinking Multitude by such Fallacies must consider that the Question is not Who is Preferable but Who is Superiour One good Christian is preferable to a thousand that are not so yet his Interest in the Commonwealth may not be preferable A Shepherd is ordained for his Flock yet a Flock of Brutes is not preferable to any Reasonable Creature Further the King's Interest and the Peoples are inseparable in the Construction of the Law which presumes what the King doth he does for the People Whether therefore the King's Power be derived from God or the People it is preferable If from God because his Ordinance If from the People because the People have elected him and consented it (x) Jus Regium p. 68. should be and have trusted him with the Publick Interest which is still preferable If this way of arguing were sound Angels being Ministring Spirits for the good of Men it would follow That Men should be more Honourable than Angels and the poor Client should be a better Man than his Learned Counsellor and the simple Patient than his Doctor As to Bracton's Authority Rex habet superiorem Deum legem item Curiam suam I must refer the scrupulous Reader to the Book called The Case of our Affairs p. 14. CHAP. XVIII That the Sovereign is unaccountable to any but God BEfore I come to treat of the several Branches of the Sovereignty of Kings in the Executive parts of them I shall from the general Idea of their Sovereignty deduce three Corollaries in this and the two following Chapters which seem to me to flow naturally from the Being of a Sovereign viz. That such are accountable to none but the Great Sovereign of the Universe And secondly may dispense in some Cases with the Laws And lastly must not be resisted or rebelled against The necessary Motive to treat of the Unaccountableness of Kings the Murther of King Charles the First If there were no other Motive to induce me to treat of this Head the barbarous Murther of the Blessed Martyr King Charles the First would have the same power as the sense that Croesus's dumb Son had to see his Father's Life in imminent danger which made such a violent emotion of the Spirits as unloosned the stiff Ligaments by which his Tongue was contracted or forced an Irruption of Powerful Spirits to invigorate the paralytick Muscles of it so that he cried out Spare my Father So certainly the Consideration of such an High Court of Justice that arraigned and sentenced their Sovereign should raise an Indignation in any one that hath sense of Allegiance Duty or Religion to defend that as a Fundamental Truth That Sovereigns are subject to no Tribunal but that of their Heavenly Sovereign In the handling this I shall pick out some of the Assertions of Learned and Judicious Authors Heathens and Christians and annex and intersperse such Reasons as may evince it and then show That this doth not leave Princes to a Tyrannical Liberty and lastly give some short Remarks upon the unparallell'd Sentence of the Regicides of King Charles the First of Immortal Memory (a) Vsher's Power of Princes part 4. pag. 196. Edit Cracovian Divine and Humane Authorities to prove it Rabba bar Nachman in his great Gloss upon Deuteronomy saith positively No Creature may judge the King but the Holy and Blessed God alone For the Original Hebrew of which and the place of Moses from whence he deduceth this Assertion I must refer the Reader to the Authors cited having chosen this not only for the fulness of the Expression but for the Antiquity though not of the Comment yet of the Text before any other All those Places also in Holy Scripture which style Princes and Judges of the Earth (b) Psal 8. 5. with Heb. 2.7 and Psal 97.7 with Heb. 1.6 Exod. 21.6 22.8 Gods and the Sons of God and Psal 82.6 I have said ye are Gods and all sons of the most High which in the Chaldee Paraphrase is thus rendred Behold ye are reputed as Angels and all of you as it were Angels of the most High (c) Job 1.6 2.1 38.7 are sufficient Proofs of this Truth As are likewise those Places that tell us It is the Will of God that we (d) 1 Pet. 2.13 15. submit our selves to these Higher Powers for his sake Therefore (e) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Orat. 3. de Regno St. Chrysostom calls Regality such a Government as is not subject to the control of any Sophocles calls it (f) In Antiq. v. 11 27. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Free and Independent Regiment and (g) Xiphilin 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Marcus Aurelius in Dio an Absolute Kingdom not subject to the Control of any To all which agrees that of Horace Lib. 3. Carm. Od. 1. Regum timendorum in proprios Greges Reges in ipsos Imperium est Jovis By which he fully expresseth That as Kings have Power over their Subjects so God hath the Power over Kings All the vast Collections that may be made of Emperours asserting or Subjects owning that their Authorities are from God that God gave them their Kingdoms
(q) Power of the Prince p. 81. Primate is obvious because the inflicting of a punishment is an Act of a Superior to an Inferior and to make one upon Earth Superior to the Supreme Governour would imploy an absolute contradiction though a Father or Master were never so faulty none would be so absurd as to think that their Servants or Children might chastise them When I reflect on that dismal Day when the wicked High Court of Justice arraigned and sentenced the most Innocent Just and Religious King that possibly hath worn a Crown since our Saviours time I always stand amazed and read or meditate on that Tragical Act with a concern next to that of our Saviour's suffering All that black and bloody Scene was acted by Men of and upon the Principles successful Rebels made use of The Preamble to the Treasonable Charge against King Charles the First That Kings are admitted and trusted with a limited Power to govern by and according to the Laws of the Land and not otherwise and by their Trust Oath and Office are obliged to use the Power committed to them for the Good and Benefit of the People and for the Preservation of their Rights and Liberties which they charged that Blessed King to have designedly violated To which I shall give only some k short Heads of his Majesties Answer (r) His Majesty's Speeches and Tryal p. 429. which if they had been weighed were enough to confound all their arguing He demanded by what lawful Authority he was seated there he had a trust committed to him by God by old and lawful Descent that he would not betray Pag. 431. to answer to a new unlawful Authority That England was an Hereditary Kingdom He tells them how great a sin it is to withstand lawful Authority and submit to a Tyrannical or Unlawful That Kings can be no Delinquents That Obedience unto Kings is strictly commanded in the old and new Testament pag. 435. particularizing that one place Where the word of a King is there is Power and who may say unto him What dost thou Eccl. 8.4 That no Impeachment can lye against him all running in his Name That the King can do no wrong the House of Commons never being a Court of Judicature can erect none He owns an Obligation to God to defend and maintain the Liberties of his People against all such Illegal and Arbitrary Proceedings Pag. 439. But 't was to no purpose to show such Crown-Jewels before such Wolves and Bears that were gaping for his Blood and would not admit his only request to them to be heard for the Welfare of the Kingdom and Liberty of the Subject before they precipitated Sentence against him before the Lords and Commons and pressed it That it may be it was something he had to say they had not heard before Hand But nothing his sacred Majesty could say would move those who under a vile and notorious Lye in the Name of the People the Supreme Authority as they called it passed that barbarous Sentence against that sacred Head to the amazement of the whole World sufficient to raise the utmost Indignation of all good Men against such barbarous Principles and Proceedings CHAP. XIX That the Sovereign may dispense with the Execution of the Laws of his Country in several Cases HAving discoursed of the Kings being unaccountable to any but God Almighty when he governs not according to the Laws of God Nature or his Dominions The Connexion of this with the foregoing Chapter upon that Foundation That there cannot be two Supremes here upon Earth in one Kingdom I come now to discover what Power Kings in general and our Kings in particular have to dispense with the Execution of the Laws upon some cases for it is far from my thoughts ever to suggest any such dangerous assertion That Princes in general may dispense with the Execution of the Laws Plutarch (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Compar Flaminii Philopaemenis setteth this down as a chief point of that natural skill which Philopoemen had in Government That he did not only rule according to the Laws but over-ruled the Laws themselves when he found it conducing to the Weal publick For as the (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Justin Jun. Imp. praef Constit 3. Emperor saith whilst the Laws stand in force it is fit that sometimes the Kings Clemency should be mingled with the severity of them especially when by that means the Subject may be freed from much Detriment and Damage Princes according to the (c) Princeps est supra legem adeo quod secundum conscientiam suam judicare potest Cyrus in L. Rescript c. Judgment of great Lawyers have Power to judge according to their own Conscience and not according to the Letter of the Law and no doubt it was such written Laws as these that (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Justinian Novel 105. Justinian the Emperor meant when upon the enacting of a Constitution of this kind he added thereunto this Limitation From all these things which have been said by us let the Emperors State be excepted whereunto God hath subjected the very Laws themselves sending him as a living Law unto Men who therefore in another place assumeth to himself the Title of a Father of the Law Whereupon the (e) Nota Imperatorem vocari patrem Legis under c Leges sune ei subjecte Gloss in Novel 12. c. 4. Glossator maketh this Observation Note That the Emperor is the Father of the Law whereupon the Laws also are subject to him So the great (f) Princeps est supra legem in quantum si expediens est potest legem mutare in ea dispensare pro loco tempore Vid. Thom. in 1.2 q. 96. Artic 5. ad 3. Schoolman saith The Prince is above the Law so far that if it be expedient he may change the Law and dispense with Time and Place as when a Man is condemned to banishment the Prince if he see cause may revoke him from thence and therein saith (g) Gloss in lib. 4. de Poenis Accursius his own Will is accounted a great and just cause Magna justa Causa est ejus Voluntas The Reason of these Assertions is couched in what Aeneas (h) Convenit Imperatori Juris rigorem aequitatis fraeno temperare cui soli inter aequitatem jusque interpositam interpretationem licet incumbit inspicere De Ortu Authoribus Imperii Sylvius observes That there is a certain other thing to which the Emperor is more obnoxious than to the Law and that is Equity which is not always found written Now if the Law doth command one thing and Equity perswade another It is fit the Emperor should temper the Rigor of the Law with the Bridle of Equity as he who alone may and ought to look unto that Interpretation which lyeth interposed betwixt Law and Equity since no Law can sufficiently
Chancellor of the Exchequer Judges of his Courts at Westminster Justices in Eyre Justices Assignes Barons of his Exchequer Clerks Secretaries of his Council and sometimes his Serjeants at Law with such other Officers and Persons whom our Kings thought meet to summon The first Writ that Mr. Prynne finds extant in our Records and which Sir William Dugdale mentions is entred in the Clause-Roll 23 E. 1. dorso 9. directed to Gilbert de Thornton and thirty eight more whose Names are in Sir William Dugdale whereof there are eleven by the name of Magistri three Deans and two Archdeacons only I find them differently ranked in Mr. Prynne to what they are in Sir William Dugdale The Writ runs thus Rex dilecto fideâ—i suo Gilberto de Thornton salutem Quia super quibusdam arduis negotiis nos Regnum nostrum ac vos caeterosque de Concilio nostro tangentibus quae sine vestra eorum praesentia nolumus expediri c. Vobis mandamus in fide dilectione c. as in the usual Summons to the Bishops Sometimes as 25 E. 1. there (u) Cl. 25 E. 1. m. 25. dorso was no Writ directed to them but we find under the Name of Milites with a Lines space betwixt them and the Barons thirteen named which by other Records are known to be the King's Justices The differences in their Writs are mostly these Sometimes The difference in their Writs as in 27 E. 1. it is Cum caeteris de Concilio nostro habere volumus colloquium tractatum or as in 28 E. 1. (w) Cl. 28 E. 1. m. 3. dorso showing the special Cause Quia super Jure Dominio quae nobis in Regno Scotiae competit c. cum Juris peritis cum caeteris de Concilio nostro speciale colloquium habere volumus tractatum vobis mandamus c. cum caeteris de Concilio nostro super praemissis tractaturis vestrumque consilium impensuris At the same time there are Writs to the Chancellor of the University of Oxford to send four or five Persons skilful in the Law summoned from the Universities de discretioribus in Jure scripto magis expertis and to the Chancellor of the University of Cambridge to send two or three in the like manner qualified and then follow Writs to several Abbats Priors Deans and Chapters and all these Writs mentioned the Business of the King's Claim to the Jurisdiction of Scotland and in the Writs of Summons to the Archbishops Bishops Abbats Priors Temporal Lords Justices and Sheriffs of Counties that Particular is not mentioned which shows that the King summoned these particular Persons as most fit to search and â— send their Chronicles to the Parliament The Occasion and Result whereof and of sending these Lawyers from the Universities you may read at large in (x) An. 13â—2 p. 419. to p. 438. Matth. Westminster and (y) Hist Ang. p. 32. to 58. Walsingham In some Writs as that of 9 E. 2. (z) Cl. 9 E. 2. m. 20. dorso the Justices are appointed to expedite their Assizes that they may not fail to be present at the Parliament or to leave two to attend the Business of the King's Bench And the 7 of E. 2. (a) Cl. 7 E. 2. m. 25â— dorso Justices to leave the Assâ—zes to attend the Parliament That whereas they had appointed the Assizes at Duresm and other Parts in the Northern Circuit at certain days after the time the Parliament was to convene at which he wondred he orders them to put off the Assizes and attend By which two Writs it appears their Summons by Writ to attend and counsel the King in Parliament was a Supersedeas to them to take Assizes during the Parliament and that the Assizes and Suits of private Persons ought to give place to the publick Affairs of the King and Kingdom in Parliament Whoever desires to know who were summoned in this manner and the further variety of Summons may consult Mr. Prynne and Sir William Dugdale's Summons From these Writs we may observe Observations from these Writs first That sometimes the Persons summoned were many in number sometimes very few and always (b) Brief Register part 1. a p. 366. ad p. 394. more or less at the King's Pleasure Secondly in latter times the Clergy-men were wholly omitted Thirdly That they were never licensed to appear by Proxies Mr. Prynne hath collected a great many Precedents to prove that these Persons thus summoned together with the King 's ordinary Council had a very great Hand Power and Authority not only in making Ordinances Proclamations deciding all weighty Controversies regulating most publick Abuses and punishing all exorbitant Offences out of Parliament in the Star-Chamber and elsewhere The Employment of these Assistants but likewise in receiving and answering all sorts of Petitions determining and adjudging all weighty doubtful Cases and Pleas yea in making or compiling Acts Ordinances Statutes and transacting all weighty Affairs concerning the King or Kingdom even in Parliaments themselves when summoned to them Yet these have no Vote but only are to speak to such Matters as their Opinions are required in and sit uncovered unless the Chancellor or Lord Keeper give leave to the Judges to be covered SECT 6. Concerning the House of Commons I Now come to consider the Honourable House of Commons and the Use The Summons of the Knights Citizens and Burgesses Constitution and Priviledges of it and shall first consider the Summons by which they have their Power to act as an House and third Estate in Parliament Mr. (c) Second Part of Brief Register a p. 1. ad 29. Prynn hath cleared that all the Writs of Summons directed to Sheriffs in King John and Henry the Third's time before 49 H. 3. to send Knights to the King at set times were either for Information of the Council what voluntary aid each particular County would grant the King in his great necessity or to assist with Men and Arms and were not elected as Representatives of the Commons till 49 H. 3. To whom I shall refer the curious for Satisfaction as also to Dr. Brady who hath by his own Inspection as well as the considerate application of what Mr. Prynn hath amassed in his Books since his late Majesties Restauration and after 1648 composed many most useful Observations for the understanding of the ancient customs usages and practices relating to Parliaments Therefore I shall endeavour to be as short as possibly I can and without obscurity contract what they and most others that treat of the House of Commons have at large filled Volumes with The form of the Writ 49 H. 3. to the Sheriffs is not (d) Cl. 49 H. 3. m. 11â— dorso expressed but after the recital of the Writ to the Bishop of Duresm and Norwich and the eodem modo to the Bishops Abbats Priors Deans Earls Lords and Barons there follows this entry
Statutes of this Kingdom do give assign and appoint the correction and punishment of all Offenders against the Regality and Dignity of the Crown and the Laws of this Realm unto the King which manifests P. 23 that all such things are to be tried in his Courts So that surely the Commons Privileges must be included for to trouble any saith the Author of The Lawyer outlawed that doth not offend against the Crown or Laws of the Land is very Illegal and Arbitrary Id. p. 16. and an high breach of the Liberty of the Subject It would therefore be considered how improbable it is that after our Ancestors have struggled for many Ages Infoeliciter aegrotat cui plus mali venit a Medico quam a Morbo to preserve themselves and posterity from the unbounded Rule of Arbitrary Pleasure and having obtained that from their Soveraigns in so much that they can neither be fined or imprisoned by their Soveraign unless for transgressing some known Penal Law of the Land should leave any Arbitrariness in the House of Commons who are but the Peoples honourable Deputies Trustees and Atturneys Thirdly The Law hath provided where the Breach of the greatest Privileges are to be tried It is to be considered that the Law hath expresly provided where and how Breaches of Privilege ought to be punished 5 H. 4. c. 6. and 11 H. 6. c. 11. about any Assault upon a Parliament man or his menial Servant to be in the Kings Bench. Since therefore such Assaults are far more Criminal than Arrests of them or words spoken against them or inferiour misdemeanours to argue a majori ad minus it should seem rational that in the Courts of Justice being open to redress all sorts of Illegalities matters should be rather tryed than that persons should be punished by Imprisonments of the House of Commons alone For if this Arbitrariness were allowed it would argue a great defect in our Laws that they are not the entire Rule of the Subjects Civil Obedience and if the ordinary Courts of Justice can try the greater they may certainly try the lesser Crime as they have done in the Case of Done against Welsh River against Cosyn Shewish against Trewynnard Mich. 12. E. 4. Rot. 20. Excheq Hil. 14. E. 4. Rot. 7. Dyer fol. 59. But I have sufficiently shewed before that in old time the determination and knowledge of the Privileges did belong to the Lords How agreeable these ways of Proceedings were to the Usage of the House of Commons in 1640. and 1680. The Proceeding of the Houses in Anno 1640. and 1680. are fresh in every ones memory when not only they ejected and imprisoned their own Members but by Messengers sent for several Gentlemen and others no Members for acting according to the known Laws and King's Proclamations and often for Persons having spoke angrily or slightingly of some Member as in the Case of Abhorrers It is to be hoped those very Gentlemen now wish it might be forgot as I hope it will never be put in practice again when after a chargeable sending for up by the terrible Messengers after being detained in Custody during the Pleasure of the House and brought to receive their Sentence on their Knees at the House of Commons Bar they were dismissed So that I knew one who principally to avoid the Charge his Crime being for speaking Words against a Member in his Cups was forced upon notice of the Messenger 's coming for him to fly into Ireland Fourthly That the Law and Custom of Parliament may be declared It is worthy great Consideration by all the Members of the Honourable House of Commons that it is an undoubted Maxim both in Law and Reason and is necessary to the Obligation of all positive Constitutions That they should be published in express Words The immediate Laws even of God Almighty in the Opinion of Learned Men being not obligatory where they were never promulged Now since it hath not been hitherto published to the People what this Lex Consuetudo Parliamenti is 4. Inst it p. 15. Illa lex ab omnibus quarenda a multis ignorata a paucis cognita Fleta l. 2. c. 2. which Sir Edward Coke saith out of Fleta is to be enquired into of all is understood by many and known to few it would not only be obliging but most necessary that the Honourable House would give a true and full Description of this Law and Custom of Parliament and an exact Account of their Privileges that People might in some measure for the future shun those dangerous Rocks and not be surprized or shipwrack'd on such hidden Shelfs I shall close this long Chapter wherein according to my Talent I have endeavoured to comprise what hath been voluminously treated of by all the Authors I am furnished withal and digested things into an easie Method with some Assertions of Mr. Prynne whose Writings in this Particular are better esteemed than many others He saith Brief Register part 4. p. 685. Mr. Prynne's Opinion concerning the great Privilege the Commons The Parliament being the Supremest Court of Law and Justice ought to proceed legally according to the Course of Law and not to enlarge or extend the Privileges of Parliament beyond their Ancient Just and Legal Bounds nor alter the Law therein by their absolute Power Much more ought the House of Commons themselves to follow their Precedent and not to extend their old or vote up new Privilege to the delay Ibid. p. 1210. retarding or deluding of Common Right and Justice Therefore he condemns the writing of Letters by the Speaker 18 Jacobi 1. 14 Feb. 18 Jac. fol. 24. b. to stay a Tryal betwixt Sir William Coxe and Mr. Humphrey Aylworth as likewise in other Cases the same Year Ibid. fol. 51. b. fol. 137. 3 March and 20 April which he saith is diametrically opposite to the Judges Oath and against the Great Charter which saith See Stat. 2 E. 3. c. 6. 14 E. 3. c. 14.20 E. 3. c. 1 2. Nulli negabimus nulli differemus Justitiam Rectum To which I may add the Hardship used to Mr. Sherridon Lawyer outlawed p. 28. who being in the Custody of the Serjeant at Arms the Warrant of Commitment being during the Pleasure of the House of Commons Mr. Sherridon's Case who was denied the Benefit of the Habeas Corpus Act. without any Cause shown now the Habeas Corpus Act is express That all Persons are Bailable by what Person soever committed not excepting the King and Council much less the House of Commons unless for Treason or Felony One of the Judges made application to the House of Commons to know whether he might grant the Writ of Habeas Corpus to him The Debate lasted three days by reason of the Difficulty of the Cause For if they openly declared against the Habeas Corpus the Nation would be much alarm'd and suspect these Gentlemen instead of securing
intended to invade the Subjects Liberties but if they allowed the Writ the delicious Power of Imprisoning such as they had a Pique to was utterly lost and all Persons referred to the ordinary Courts of Justice or upon their failure to the House of Lords Sir William Jones against any ones Release by Habeas Corpus if they were imprisoned by the House of Commons the Supreme Tribunal of England Sir William Jones insisted much upon the Power of the House and that they did not intend by that Act to bind themselves which yet must bind the King though it might as well be alledged That he did not intend to bind himself by it However Sir William persisted urging See Debates of the House p. 217. That whatever Reasons may be given for discharging such as are not committed for Breach of Privilege if grounded on the Act for the Habeas Corpus will hold as strong for discharging of Persons for Breach of Privilege and so consequently deprive the House of all its Power and Dignity and so make it insignificant and said That was so plain and obvious that all the Judges ought to take notice of it and so judged it below the House to make any Resolution therein but rather to leave the Judges to do otherwise at their peril and let the Debate fall without any Question But Baron Weston had the Courage to grant the Habeas Corpus Baron Weston grants the Habeas Corpus as rather willing to expose himself to the Displeasure of the House than deny or delay Justice contrary to his Oath I could not omit this remarkable Passage as a Specimen of the Arbitrariness of the Leading Party in that House Brief Register part 4. p. 846. and now shall proceed to Mr. Prynne's Remarks upon the Proceedings of the long House of Commons He observes Privilegia omnino amittere meretur qui sibi abutitur concessa penestate Ejus est interpretari cujus concedere Summa Rosella Privilegium 3. That Privileges may be lost by the abuse of the Power and that whatever Privilege the House hath is from the King's Grant or Toleration Therefore according to the Canonists Rule If the Privilege granted be expressed in general dubious or obscure Words then it is in the power of him to interpret who hath the power to grant Now the Petition of the Speaker is That the Commons in this Parliament may and shall have all their Ancient and Just Privileges allowed them Therefore the King Nemini liceat Chartas Regias nisi ipsis Regibus judicare Placita Parl. 18 E. 1. num 19. p. 20. being the sole Granter of these Privileges must be the only proper Interpreter and Judge of them as he is of all his other Charters of Privileges Liberties Franchises and Acts of Parliament themselves after his Regal Assent thereto not the Commons or Persons to whom they are granted and that both in and out of Parliament by Advice of his Nobles or Judges of the Common-Law Therefore he saith first How the Breach of Privilege to be punished according to Mr. Prynne See the Authority Brief Regist part 2. p. 847. That if the Commons by Petition to the King and Lords in Parliament complain of the Breach of their ancient Privileges and Liberties as they ever did in the Cases of Lark Thorp Hyde Clerk Atwyll and others the King by Advice of his Lords in Parliament assisted with his Judges hath been and as he humbly conceives is the sole proper Judge of them and their violations not the Commons who being Parties Prosecutors and Complainants are no legal indifferent Judges in their own or Menial Servants cases if they will avoid partiality which is the reason the Law allows Challenges to Jurors in Civil and Criminal causes Therefore he observes Ibid. p. 1206. that the House of Commons taking Informations without Oath may be easilier abused by misinformation and sometimes thereby are put upon over hasty Votes which upon finding out evil Combinations they are forced to retract Secondly The Chancellor or Lord Keeper to grant the Writ If the complaint of the breach of Privilege be made in the Commons House and thereupon an Habeas Corpus Writ of Privilege or Supersedeas prayed under the great Seal for the Members or menial Servants release whose Privilege is infringed the Lord Chancellor or Keeper of the great Seal representing the Kings person in Chancery the Court for relief in cases of Privilege is the properest Judge and Examiner of the claimed Privilege and its violations upon Oath and other sufficient Evidence assisted by all the Kings Judges in cases of difficulty who thereupon will grant or deny the Writs Thirdly The Judges of the Courts to which the Writ is directed to judge of the validity of the Privilege When these Writs of Privilege Supersedeas or Habeas Corpus are granted to any Member or menial Servants and directed to any of the Kings Courts to enlarge their restrained Persons or stay any Arrests Process or Judgments against them the Kings own Judges in his respective Courts to which they are directed are then the proper Judges of the Privileges of Parliament and of their breaches suggested in these Writs who may examine not only all matters of Law or Fact comprised in them which are Traversable but likewise adjudge allow or disallow the very Privilege it self if no real ancient Parliamentary Privilege allowed by the Laws and Customs of the Realm How far he is in the right I will not undertake to judge but I remember somewhere he wisheth an Act of Parliament to pass to adjust these matters which possibly would prevent many of those chargeable attendances about false Returns and save much expence of time in the discussing of them and enable the Subjects to pay a right and due obedience to them SECT 12. Concerning the Royal Assent to Bills I Have treated so much of this elsewhere as to the sole Power in the King the ancient Custom of Sealing the Acts with the Kings Seal and of some of the Prelates and Nobles as Witnesses of their Assents that I shall only now speak as to the usual formality of passing the Bills into Acts by the Kings last Act. See also his Memorials For Mr. Hackwell hath given a full account of the manner how Statutes are enacted in Parliament by passing of Bills to which Book I refer the curious Reader that would understand the order that is used in the debating and passing of them When Bills are passed by both Houses upon three several Readings in either House Hackwell of Passing of Bills p. 179. ad 182. they ought for their last approbation to have the Royal Assent whereby every Statute is as Mr. Hackwell observes like Silver seven times tryed The Royal Assent is usually deferred to the last day of the Session and because some have been of opinion that the passing of Bills The Royal Assent determines not the Session
puts an end to the Sessions so that what ever Bills are ready and pass not the Royal Assent must be again read three times in either House for the more security it is usual to insert a Proviso That the Session is not thereby concluded The Royal Assent is given two ways First Royal Assent by Patent by Commission since the Statute of the 33 H. 8. c. 21. wherein it is expressed That the Kings Royal Assent by his Letters Patents under the Great Seal Signed by his hand and declared and notified in his absence to the Lords Spiritual and Temporal and to the Commons Assembled in the higher House is and ever was of as good strengh and force as if the King had been there personally present and assented openly and publickly to the same The manner of the King 's giving his Publick Assent is in this manner The King cometh in Person in his Parliament-Robes Royal Assent when the King present and sitteth in his State and the Upper House sit in their Robes The Speaker with all the Commons House cometh to the Bar of the Lords House and in Sir Thomas Smith's time Sir Th. Smith's Commonwealth p. 45. Speeches used to be made there the Chancellor for the Lords and the Speaker for the Commons in set Speeches returned the Prince Thanks for that he hath so great Care of the good Government of his People and for calling them together to advise of such things as should be for the Reformation Establishing and Ornament of the Commonweal After which the Chancellor in the Prince's Name giveth Thanks to the Lords and Commons for their Pains and Travel taken which he saith the Prince will remember and recompense when Time and Occasion shall serve and that the Prince is ready to declare his Pleasure concerning their Proceedings whereby the same may have perfect Life and Accomplishment by his Princely Authority I think now mostly Hackwell of Passing of Bills p. 181 182. the Speaker of the House of Commons makes a Speech acquainting the King with the purport of the Bills Then the Clerk of the Crown readeth the Title of the Bills in such Order as they are in Consequence After the Title of every Bill is read singly The Clerk of the Crown pronounceth the Royal Assent or Dissent the Clerk of the Parliament pronounceth the Royal Assent according to certain Instructions given from his Majesty in that behalf If it be a Publick Bill to which the King assenteth the Answer is Le Roy le veult The King willeth If a Private Bill allowed by the King the Answer is Soit fait comme il est desire Let it be done as it is desired And upon a Petitionary Bill the like is used If it be a Publick Bill which the King forbeareth to allow he saith Le Roy se avisera The King will advise To a Subsidy Bill the Clerk pronounceth Le Roy remercie ses loyaux Subjects accepte leur Benevolence aussi le veult The King thanks his Loyal Subjects accepts their Benevolence and also willeth To a general Pardon is pronounced Les Prelates Seigneurs Communs en cest Parlement assembles au nom de touts vous autres Subjects remercient tres humblement vostre Majesty prient Dieu vous donner en sante bone vie longe The Prelates Lords and Commons in this Parliament assembled in the name of all your other Subjects thrice humbly give thanks to your Majesty and pray God to give you in health a good Life and long These P. 46. saith Sir Thomas Smith be taken now as perfect Laws and Ordinances of the Realm of England and none other and as shortly as may be are printed except it be some Private Acts made for the Benefit or Prejudice of some Private Man these be only exemplified under the Seal of the Parliament CHAP. XXIX Of Factious Combinations in Parliaments I Hope in the foregoing Chapters I have so explained the Constitution of Parliaments and the Legislative Power that unbiassed and unprejudiced Persons will no more be misled by the Sophisms and plausible pretences which to aggrandize the Power of the two Houses at first and after of the Commons House only the Penmen of the long Parliament made use of yet because many of late were furbishing the rusty Armour of their Demagogues and trimming their Helmets with fresh Plumes I conceive it necessary to take notice of some of their chiefest Arguments and examine those which had greatest Influence upon the People The great and venerable name of Parliament and its Authority was constantly used as Shield and Buckler to ward off all the Force of the Loyal Assaults and Mr. Prynne writ a large Volume which he stiled The Soveraign Power of Parliaments and when the very Lees and Dregs of the Commons House was put in Ferment that very Kilderkin would admit no lower Stile than the supreme Authority of the Nation to be pearched on its Bunghole Therefore to disabuse the less considerate The various Acceptation of the word Parliament and to detect the Frauds of those which under that great Name applyed whatever they met with in the Laws or History to the House of Commons I think it necessary in the first place to clear the acceptation of the Word Appropriated to the Lords House Sometimes the word Parliament is used for the House of (a) Egerton sect 4. 22 23. Lords only as when upon Writ of Error any Judgment in the King's-Bench is examined in the House of Lords the Judgment is said to be affirmed or reversed by Parliament The Appellation of Parliament is likewise used for the two Houses To both the Houses in regard they are the gross Body whereof the Parliament consists there only wanting the Sovereign Head to compleat it But they are so far from being the High Court of Parliament that they cannot co-unite to be an entire Court either of Sovereign or Ministerial Justice but only in concurring in Votes in their several Houses for preparing of matters in order to an act of all the Body which when they have done their Votes are so far from having any legal Authority in the State as in Law there is no Stile or Form of their joynt Acts further than Bills nor doth the Law so much as take notice of them till they have Royal Assent without which the Votes of the two Houses dye in the Womb like an Embryo So that the proper use of the word Parliament How properly the High Court of Parliament as Authority of Law-making is annexed to the name is only when the King and the two Houses concurr in one Act and in that sence only is the Parliament the Supream Court the highest Judicatory and the most Sovereign Power Not for any Soveraignty in the two Houses and from them transferred to the King by their joining and consenting with him but because every compleat and perfect Act of it is the Act of
and after by himself and his mock-Representatives by Councils of State and Safety and such new Names and Powers as our Laws never heard of and all this under pretence that they Acted by the Peoples Authority and suffrage and all the sad Devastations of that Age resulted from the confiding so much in the pretended Representatives of the People Which (a) England's Universal Distraction p. 4. one some Years before the sad Catastrophe plainly foretold tho' like belief was given to him as of old to Cassandra His Words are That the so much exalting the Power of the Representatives was first to destroy the King by the Parliament and next the Parliament and Kingdom by the People Thus ignorant Politicians that build upon such Quick-sands soon live to see their Insanae Structurae ruinously fall about their Ears Thirdly Whereas the Advocates for the Representatives would gladly have possessed the People that they could rely upon none so securely and safely as upon those they had themselves chosen they being less subject to private ends and affections than any particular man such a Body being not likely to counsel or consent to any thing but what is publickly advantageous It is to be considered that it is a false Postulatum Such a Body being but an Aggregate of particulars may have as many private ends as any other number of Subjects it being well known that Communities themselves are subject to dangerous Inclinations from private Incitements and I the Representatives subject to misleading Factions and Ambitions of private Men and by coalition of Parties when they fall into designs they are most dangerous and fatally violent and tho' it may at first View seem to be repugnant that an Universality should have private ends yet seeing it is not the number of Agents but the capacity in which they act and the quality of the Actors and the coherence or incoherence of what they pursue with the publick end and weal which makes the Actions of men public or private It must needs follow That if without Authority or out of the way of Public Ordinances men pursue any thing though the whole Community concur in the pursuit yet it is all of the nature of a private Action and done to a corrupt and private end Because the Author of some Observations upon some of K. Charles the 1st Messages was reputed the great Champion of the two Houses I shall content my self with culling out some of the daringest assertions Why Reason and Law were not hearkned to by the Advocates of the Long Parliament he and some other of their Triarii used and apply such of those Answers and Reasonings as the Learned and Loyal offered then against them though they could not be heard while the Torrent bore all down the stream The hideous noise of Tumults and after of Drums Trumpets Cannons and Fire-Arms hushed and silenced all the still voice of Law and Reason But now it is to be hoped when Mens Eyes are unsealed the Mask and Vizard dropped or pulled off the fatal Consequences of such pernicious Principles throughly manifested and the loud Thunder of the Two Houses Ordinance allayed mens Spirits will be better fitted to hear them refuted Besides what I have endeavoured to answer before concerning the Authority of the Representative which they would make an Assembly in which the People in underived Majesty are by these Proxies convened to affirm an Imaginary Power supposed to be theirs originally and in such a convention to be put in execution I say besides this which in several places I have refuted That filled all their Declarations Messages and Treatises when they were contriving the setting up the Commons House Topmost to prove That they were a Body that was not easily corrupted byassed tempted or prevailed upon to Act any thing but what was the best for the Peoples advantage Therefore I think fit in many particulars to shew how such Bodies may be warped to sinister ends and especially how that House not only deceived but tyrannized over the whole Nation Private (b) Answer to Observer p. 130 131. How Passions Affections Interests and Factions may sway Representatives Quarrels and the memory of former Sufferings may work upon some discontent and envy at other mens preferment may transport others the fear of the lash and desire to secure themselves have forced some to personate a part great Offices and Honours have been a Pearl in some Mens Eyes to hinder their Fight others have been like Organ Pipes to whom the wind of popular Applause hath only given a sound others who have premeditated their Parts before their design was discovered have upon some pretences or other suppose of an unlawful Election being Monopolists Abhorrers or such like got those excluded by Vote whom they conceived to be likely to oppose their designs The bewitching Power of Oratory prevails upon many In others there is a Speechless Humour of following the Drove The Ambition and Covetousness of Representatives Can we not easily conceive several of this Body may be ambitious which would prompt them to alter the old way of bestowing Offices and collating of Honours so by disservice as well as service in Parliaments some Men have obtained Honours Offices and Estates finding it a good way to get preferment by putting the King upon necessity of granting Good Woodmen say That some have used Deer-stealing as an Introduction to a Keepers place So we have seen a Non-conformist's mouth stopped I might instance in other Professions with a good Benefice whereas before he was satisfied he could gape as wide as his Neighbours Others by more only ways slip into Preferment for Covetousness and Ambition will sail with any Wind. The Covetousness of the Members of the long Parliament by woful experience was found insatiable witness their Voting for one anothers Offices Governments satisfaction for their losses out of Delinquents Estates sharing the Kings Lands and Revenue the Bishops Deans and Chapters Lands and the Estates of the Royal Party hence together with the itch of Arbitrary rule they drew the determination of Causes out of the ordinary Courts of Justice before their Houses and Committees of them and in every County had their Sub-committees to Tyrannize over the People and fleece them Their cruelty appeared in their erecting High Courts of Justice Major Generals and other Arbitrary Courts The Cruelty of the Long Parliament where many a Loyal and brave man for serving his King against such Rebels either lost his Life or his Liberty and Estate and when they were the gentlest yet they could show hatred enough by Imprisoning upon I know not what suspicion and at leasure prosecuting such as they had a pique against The partiality of Members in such Conventions are very frequent The Partiality in shielding their friends from being questioned though their Corruptions were notorious to all the World So in the fatal Parliament of 1641. A Monopolist if a Loyal man was sure to be
in such cases it is not to be wondred at that a majority of Votes might be opposite to more judicious and foreseeing Members judgments neither is the Maxim universally true for it must be caeteris paribus if all things be alike For it is not sufficient for an Adviser to see unless he can let another see by the light of Reason A man ought not implicitely to ground his Actions upon the Authority of other mens Eyes whether many or few but of his own One Physician may see more into the state of a mans body than many Empiricks One experienced Commander may know more in Military Affairs than ten fresh-water Souldiers One old States-man in his own Element is worth many new Practitioners One man upon a Hill may see more than an Hundred in a Valley And who will deny but among an Hundred one of them may have a stronger Eye and see clearer and further than all the Ninety Nine So one Paphnutius in the Council of Nice saw more than many greater Clerks And it is no new thing to find one or two men in the Parliament change the Votes of the House Therefore nothing is got by this way of arguing though it be one of the plausiblest and most improveable of any of the Topicks they choose And if we could be sure that all the Members of such Assemblies were free from all the imperfections such are liable to much might be yielded to it All these Arguments were used for that sole end that they might possess their Party with the reasonableness of their desires to the King that he would implicitly yield up his reason to the guidance of their Councils They were not so frontless at first Concerning the Negative Voice as positively to deny the Kings negative Vote in Parliament that had never been doubted and there is good reason it should be a most sure Fundamental of the Government since nothing can be Statute-law but that to which the King assents Le Roy le veult For who can be said to will that hath not the Power to deny Si vult is scire an velim efficite us possim nolle Seneca But they affirmed that in Cases extraordinary when the Kingdom was to be saved from ruine the King seduced and preferring dangerous men it was necessary for them to take care of the Publick And then the Kings denying to pass their Bills was a deserting of them Objection That in Cases of Extraordinary necessity the Houses to have Power to secure the People from Tyranny Otherwise they alledged Parliaments had not sufficient Power to restrain Tyranny and so they boldly affirmed they had an absolute indisputable Power in declaring Law and as their Observer words it they are not bound to Precedents since Statutes cannot bind them there being no obligation stronger than the Justice and Honour of Parliaments And to summ up all he tells us if the Parliament meaning the two Houses be not vertually the whole Kingdom it self if it be not the supreme Judicature as well in matters of State as matters of Law if it be not the great Council of the Kingdom as well as of the King to whom it belongeth by the consent of all Nations to provide in all extraordinary cases ne quid detrimenti capiat Respublica let the brand of Treason saith he stick upon it Indeed because by all these most false and impious assertions and those horrid Acts built upon them they brought so great a ruine to the Kingdom they are and ever will be uâ—less a Platonick year return again branded with Rebellion in the highest degree To answer this Accumulation of Treasonable Positions for such I hope I may call in some sence Answer what is against the Kings Crown and Dignity is no ways difficult from the discourse of right constituted Parliaments For those of them that carry any shew of Reason are such only as may be understood of Acts of Parliament compleated by the Royal Assent but being spoken of either or both Houses in opposition to the King they are most false as I shall shew in particular For First If the two Houses are not bound to keep any Law no man can accuse them of breach of any What obligation can Justice lay on them who by a strange vertue of Representation are not capable of doing wrong But it is well known that Statutes stand in full force to the two Houses as being not void till repealed by a joynt consent of the King and the two Houses It would be much for the credit of the Observers desperate Cause if he were able to shew one such Precedent of an Ordinance made by Parliament without the Kings assent that was binding to the Kingdom in nature of a Law Our Kings can repeal no Laws by their own Prerogative though they may suspend the Execution It seems the Houses would have Power to do both and our Author in another place thinks it strange that the King should assume or challenge such a share in the Legislative Power to himself as without his concurrence the Lords and Commons should have no right to make Temporary Orders for putting the Kingdom into a Posture of Defence These were strange Phrases never heard before by English Ears Our Laws give this Honour to the King That he can joyn or be sharer with no man The King like Solomon's true Mother challengeth the whole Child not a divisible share but the very life of the Legislative Power The Commons present and pray the Lords advise and consent the King Enacts Secondly The Houses have no Power to declare Law As to their claiming an absolute Power in declaring Law it is as bold and false an Assertion as the other when spoken of the two Houses They may vote in order to a new Bill the explaining or repeal of any Law formerly made or prepare a Bill for any New Law and that is all they can do but authoritatively to declare any Law is most contrary to the Constitution of the Houses and never was adjudged one of their Privileges Thirdly As to the Justice and Honour of a Parliament when the State is in quiet and the Conventions only for making wholsome Laws for the Publick weal there are no Factions in Court or Country no private Intriegues to be managed the People neither uneasie nor discontented then it is to be expected That none but the wisest and wealthiest of the Gentry will be chosen Members of that August Assembly and their Justice and Honour will be conspicuous in all their Actions But have we not known Houses of Commons composed of other kinds of Persons who have voted their own Justice and Honour to be to imprison their fellow Members and fellow Subjects in an Arbitrary way How (d) Address part 3. p. 121. could a generous Soul conscious to himself he had transgressed no Law kneel at the Bar of such a House with the same submission as if he believed the Speaker
as they foresaw would thwart their designs as Seducers of the King and men of Arbitrary Principles thereby to have them wholly removed from him as we have had Addresses of a later date from an House of Commons against some great wise and Loyal Lords by which severing from him such a body of his faithful Advisers Their Design to remove some Privy-Counsellors that some of their Party might be introduced and dangerously depriving him of the constant means which the Law hath specially ordained him for his support some of them endeavoured to get into their places as was notoriously known to have been proposed that if several of the leading men might have had chief places and honours they would have let the Earl of Strafford live as in another Treatise I hope to make clear and by that meanâ— not only have enriched themselves but have had the guidance of Affairs of State and so by little and little brought about the Promotion of their friends without regard to the Publick If we impartially consider the unreasonableness of this proposal we shall find The Mischiefs that would follow upon the Parliaments nominating Privy-Counsellors that by granting it we must expect to suffer all the evils which Faction can produce This were the ready way to kindle a fire in our bowels which would first break out in our Country Elections and divide the Families by irreconcileable hatred For it cannot be imagined but that Power would bandy against Power and Relations against Relations See Answer to Observations to put a Son or Kinsman into the road to preferment nor could the flames be quenched but burn more vehemently even in the house to which the insolence of some obtaining Offices to which they are not fit the shame and discontent of others repulsed and the ambition of all would be continual fuel and the greatest misery of all would be that were the corruption never so great we could have but slender hopes of redress since the prevailing Party jealous of their honour would constantly maintain their choice and perhaps it would be necessary for them one to wink at another as it was manifestly seen in the long Parliament when the most known Offenders and active Instruments of the Peoples miseries by striking in with the prevailing Party were more safe than innocency could make them It is enacted by King (i) 17 Car. 1. c. 10. The Limitations of the Power of the Privy-Council Charles the First that neither his Majesty nor his Privy-Council have or ought to have any Jurisdiction by English Bill Petition Articles Libel or any other Arbitrary way whatsoever to examine or draw into question determine or dispose of the Lands Tenements Hereditaments Goods or Chattels of any of the Subjects of this Kingdom but that the same ought to be tried and determined in the ordinary Courts of Justice and by the ordinary course of the Law In the Oath of a (k) Rot. Pat. 5. H. 4. num 14. Fleta lib. 1. c. 17. Privy-Counsellor his duty is best manifested First That he shall as far forth as cunning and discretion suffereth First Particular of a Privy-Counsellor's Oath truely justly and evenly counsel and advise the King in all matters to be commoned treated and demanded in the Kings Council or by him as the Kings Counsellor Therefore Henry the Eighth wisht that his Counsellors would commit simulation dissimulation and partiality to the Porters Lodg when they came to sit in Council Secondly Second Branch uprightness That in all things generally which may be to the Kings honour and behoof and to the good of his Realm Lordships and Subjects without particularity or exception of persons not fearing or eschewing so to do for affection love meed doubt or dread of any person or persons that he shall with all his might and power help and strenghthen the Kings said Council in all that shall be thought good to the same Council for the â—niversal good of the King and his Land and for the peace rest and tranquillity of the same Therefore my Lord Cook (l) Instit par 4. fol. 53. saith these Counsellors like good Sentinels and Watchmen consult of and for the publick good and the honour defence safety and profit of the Realm they are his true Treasurers and profitable Instruments of the State Thirdly That he shall keep secret the Kings Counsel Third Branch Secresie and all that shall be commoned by way of Counsel in the same without that he shall not common it publish it or discover it by word writing or in any otherwise to any person out of the same Council or to any of the same Council if it touch him or if he be party thereof So Valerius M. (m) Nihil magis optâ—ndum quam ut rerum ger â—darum consdia qu 〈◊〉 ejus fieri poterit quam maxime 〈…〉 Lib. 4. saith Nothing is more to be desired than that the Counsels of things to be done as much as possible be secreet So Vegetius (n) Nulla sunt meliora consilia quam quae ignoraverit â—dversarius antequam facias Consilia nisi sunt abscondita exitum raro prospiciunt Lib. 3. de Re militari hath of old pronounced That no Counsels are better than those which the Adversary is ignorant of before they be executed for unless Counsel be hidden and secret they rarely attain their end Fourthly That (o) Rot. Pat. 11 H 4. num 28. he shall not for gift meed nor good nor promise of good by him nor by means of any other person receive or admit for any promotion favouring nor fordeclaring letting or hindring of any matter or thing to be treated or done in the Council Therefore the part of a Counsellor is Tu civem patremque geris tu consule cunctis Non tibi nec tua te moveant sed publica vota Fifthly That he shall withstand any person or persons of what condition estate or degree they be of that would by way of feat attempt or intend the contrary to the good of the King peace of the Land c. and generally that he shall observe keep and do all that a good and true Counsellor ought to do to his Soveraign Lord. CHAP. XXXI Of Ministers of State I Joyn to the Privy Council Ministers of State being they differ from them very little some in name others in degrees For there (a) St. Alban's Essays tit Honour and Reputation are several qualifications of Subjects that serve a Prince As first those that are participes curarum upon whom Princes discharge the greatest weight of their Affairs The several Qualifications of Ministers of Princes as Ministers of State and Privy-Counsellors Secondly Duces Belli such as Princes imploy in their Armies and Militia Thirdly Gratiosi Favourites such as are a solace to the Prince and harmless to the People Fourthly Negotii pares such as not only have great places under the Prince and execute them sufficiently but
saith That Enrollments (l) Pur le Enrolments de Pardon de Roy in le Chancery en temps le Roy Alfred of Pardons of the King were in the Chancery in the time of King Alfred Altho' Mauricius Regis Cancellarius by that title subscribes as witness to the Charter of King William the Conquerer to the Abby of Westminster yet none of these prove that such a Court was in those Ages constituted as we now call the Chancery For Sir Henry Spelman (m) Gless p. 107 ◠proves the Chancery was no Court but only the Ship as he calls it of the Kings Writs and Charters in old time now consisting of three Parts sc è Collegio Scribarum Regiorum è Foro Juris communis è Praetorio boni aqui Mr. Lambard (n) Archaion p. 62 63. hath proved that till the Reign of King Edward the First we find nothing of the Chancellors hearing and determining of Civil causes for till then the Justiciarius Angliae had the great Power Sir William Dugdale 's Origines Jurid fol. 36. b. which being then restrained ad placita coram Rege tenenda the King together with the trust and charge of the Great Seals appointed him to represent his own Royal and extraordinary Preheminence of Jurisdiction in Civil Causes and he gives this particular reason for his opinion That Britton a Learned Lawyer in Edward the First 's time writing of all other Courts from the highest Tribunal to a Court Baron maketh no mention of this Chancery Yet towards (o) 28 E. 1. c. 5. the latter end of his Reign we find it enacted The Chancellor and Justices of the King's-Bench to follow the King That the Chancellor and Justices of the Bench should follow the King that is remove with the Kings Court so that he might have at all times near him some Sages of the Law which were able to order all such matters as should come unto the Court at all times when need should require Yet this Act did not give an absolute Power to the Chancellor alone of determining in such Civil Causes as may seem by that Law which was made 20 Ed. 3. (p) Cap. 6. where it appears the Treasurer was joyned with him to hear complaints against Sheriffs Escheators c. something like this about Purveyors and Escheators that they might not oppress was enacted (q) Cap. 3. 36 Ed. 3. Nevertheless Mr. Lambard observes When Causes in Equity determined in Chancery that it doth not appear in the Reports of the Common Law that there is any frequent mention of Causes usually drawn before the Chancellor for help in Equity till from the time of King Henry the fourth nor are there found any Bills and Decrees in Chancery before the 20 of H. 6. such Causes as since that time were heard in that Court having formerly been determined in the Lords House of Parliament So Sir Edward Coke saith In the Chancery are two Courts First the ordinary coram Domino Rege in Cancellaria where in the Lord Chancellor or Lord Keeper of the Great Seal proceeds according to the right line (r) Secundum Legen Consuetudinem Angliae of the Laws and Statutes of the Realm Secondly extraordinary according to the Rule of Equity Secundum aequum bonum But it is not my business to enter into particulars The curious may consult Sir Edward (s) 4. Instit c. 8. Coke Mr. Richard Cromptom cap. 3. Sir Henry Spelman 1. glossar 1. de Cancellario à pag. 105. ad pag 113. Ryley's Appendix Ash's Repertory tit Courts Sect. 2. Roll's Abridgment p. 374. to 587. Prynne's Animadversions p. 48. Anno 5 Eliz. (t) Cap. 18. it was Enacted that the Lord Keeper for the time being hath always had used and executed and so may for the future The Lord Keeper equal to Lord Chancellor the like place Authority Preheminence Jurisdiction Execution of Law c. as the Lord Chancellor of England for the time being lawfully used The Oath of the Chancellor or Lord Keeper is to be found (u) Rot. Parl. 10 R. 2. col 8. 10 R. 2. consisting of six Parts First That well and truly he shall serve our Soveraign Lord the King and his People in the Office of Chancellor The Oath of the Lord Chancellor or Lord Keeper Secondly That he shall do right to all manner of people Poor and Rich after the Laws and usages of the Realm Thirdly That he shall truly counsel the King and his Counsel he shall layen i. e. hide or keep secret Fourthly That he shall not know nor suffer the hurt or disheriting of the King or that the Rights of the Crown be decreased by any means as far as he may lett it Fifthly That if he may not lett it he shall make it clearly and expresly to be known to the King with his true Advice and Counsel Sixthly That he shall do and purchase the Kings profit in all that he reasonably may as God help him and by the Contents of this Book SECT 6. Of the Court of the Exchequer SIR Edward Coke saith the Authority of this Court is of original Jurisdiction without any Commission Bracton mentioneth nothing of this Court and Fleta giveth a very short account that the King hath his Court and his Justiciaries residing at his Exchequer but descends to no particulars of the Jurisdiction (w) Fol. 2 b. But x Britton who lived in Edward the First 's Reign and all along writes in the name of the King as if his whole work had been the Kings gives us an account of the Nature of this Court in several particulars To hear and determine all Causes which touch the Kings Debts his Fees and the incident Causes without which these cannot be tried So of Purprestures Rents Farms Customs and generally of whatever appertained to the Revenue of the Crown the Tenants and Receivers of it so that the Court is divided into two Parts viz. Judicial Accounts called Scaccarium Computorum and into the Receipt of the Exchequer The principal Officer is the Lord Treasurer of England who formerly had this great Office The Lord Treasurer principal Officer of the Exchequer by delivery of the Golden Keys of the Treasury and hath the Office this day by delivery of a white Staff at the Kings Will and Pleasure his Oath is much-what the same as the Chancellors differing principally in that clause That the Kings Treasure he shall truly keep and dispend The other great Officers are the Treasurer of the Exchequer the Chancellor and Chief Baron and other Barons of the Exchequer The rest of the Officers are particularly reckoned in Sir (x) 4. Instit fol. 106 107 108. Edward Coke The Oath of the Barons of the Exchequer is to be found in the Statutes (y) The Oath of 〈◊〉 Barons of the 〈◊〉 chequer 20 Ed. 3. cap. 2. whereof the principal parts are That he shall truly charge and discharge
the Commission of Sewers by Law (e) Discretio est discernere per Legem quid sit justum Coke Inst 4. fol. 41. 3 H. 8. allowing the Commissioners to make Orders c. according to their Judgments and Discretions the word Discretion is interpreted by Lawyers to discern by Law what is Just as appears when a Jury do doubt of the Law and desire to do what is Just they find the special matter and the entry is Et super tota materia petunt advisamentum discretionem Justiciariorum that is they desire that the Judges would discern by Law what is Just and give Judgment accordingly It was resolved in the Court of Common-Pleas when a new Court was (f) Whyte's Sacred Laws p. 33. erected 31 H. 8. to hear and determine according to Law and Custom or otherwise to their sound discretion That the last Clause was against Law For when Laws are writ and published Magistrates know what to command and the People to obey otherwise the Law must necessarily be errant wandring uncertain and unknown which is a (g) Miser servitus ubi jus vagum miserable yea the most miserable Slavery This was the ground of the taking away the most August and very Ancient Court of the Star-Chamber The Court of Star-chamber dissolved though appointed by Act of Parliament (h) 3 H. 7. c. 1. 21 H. 8. and consisting of very great Personages as the Lord Chancellor Lord President of the Council Lord Privy-Seal Bishops Lords and Justices For tho' there were other Reasons that moved the Houses to be so pressing to get that Act pass the grounds of its Repeal alledged in the (i) 17 Car. 1. c. 10. Preamble of the Act are That the Judges have not kept themselves to the points limited by the Statutes and have undertaken to punish where no Law doth warrant and to make Decrees for things having no such Authority and have inflicted heavier punishments than by Law warranted and that all matters Examinable and Determinable before them had their proper Remedy Redress and Punishment by Common Law and in the ordinary Courts of Justice elsewhere In the like manner and on the same reason were the Court of Request (k) Ibid. cap. 9. before the (l) Cap. 48. President of the Marches of Wales of the President and Council in (m) Cap. 49. the North and of the County-Palatine (o) Cap. 37. of Chester either totally abolished or much eclipsed Having thus far discoursed of the several standing Courts I think it necessary to give an account of the Oath the Judges of either Bench are enjoyned to take having before spoke of the Lord Chancellor Lord Treasurer and Barons of the Exchequers Oath SECT 10. Of the Judges Oath COncerning this Oath there is a Controversie betwixt Mr. (p) Animadv on Coke's 4. Inst fol. 38. Prynne and Sir Edward Coke the latter affirming it to be in our Printed Statutes but not upon Record which Mr. Prynne disproves thus That the Oath of the Judges Barons of the Exchequer and Justices Itinerant and the Ordinances annexed to the Oath were made by the King because of divers complaints to him by the assent of the great men and other wise men of his Council and commanded to be openly published by the Sheriffs of every County by (q) 7 May 20 E. 3. special Writs issued to them for the Reasons specified in the beginning and close of the Writs at least three Months before the Parliament was held that Year and they are all entred upon Record as they are Printed in the Statute Books at large (r) Cl. 20 E. 3. part 1. m. 12 13. 20 E. 3. in the Clause-Rolls but not in the Parliament or Statute-Rolls of that Year because not made in but before the Parliament From whence I note a good Argument of the Kings Prerogative in appointing Judges and Commissionating them himself without any Parliamentary concurrence since he appoints the very Oath which was to direct them in their Office out of Parliament We find the Commons so well pleased with this Oath that in the (s) Rot. Parl. 20 E. 3. num 25. Parliament 20 E. 3. they petitioned the King that the Justices of Assise and Enquiry might be sworn by the same Oath as the Justice of the Bench Abridgment of Records p. 48. and that the chief of them might have power to swear the rest which the King assented to with some Qualifications but when in the Twenty first of his Reign they petitioned that his other Ministers might take the Oath and might be sworn to take nothing from any other the King answered that he would advise what other Ministers shall be fit to take the Oath Mr. Prynne refers us to the Cl. 18 H. 3. m. 19. Cl. 35 E. 1. m. 7. Cl. 1 E. 2. m. 19. and Cl. 5 E. 3. m. 27. for some Clauses of the Oaths of Justices agreeing with those prescribed to the Kings Council But the Oath as it hath been after used is to this purpose That they shall swear well and lawfully to serve our Lord the King and his People in the Office of Justice and lawfully counsel the King in his Business not counsel or assent to any thing which may turn him in damage or disherison by any manner way or colour and shall not know of any such thing but cause the King to be warned thereof by themselves or others shall do equal Justice and Execution of Right to all the Subjects and take neither by themselves nor others privily or apertly Gift or Reward of Gold or Silver nor of any thing which may turn to their profit unless it be Meat or Drink and that of a small value of any man that shall have any Plea or Process hanging before them c. shall take no Fee as long as they are Justices nor Robes of any man great or small but of the King give no Advice to any man great or small where the King is Party If any of what condition soever come before them in their Sessions with force and Arms or otherwise against the Peace or against the Statute thereof made to disturb the execution of the Common Law or to menace the People that they may not pursue the Law That they cause their Bodies to be Arrested and put in Prison and if they cannot be Arrested that the King be certified That they themselves nor others maintain no Plea or Quarrel hanging in the Kings Court or elsewhere in the Country That they deny to no man Common Right by the Kings Letter nor none other mans nor for none other Cause and in case any other Letters come to them contrary to the Law they do nothing by such Letters but certifie the King thereof and proceed to execute the Law notwithstanding any such Letters That they shall procure the profit of the King and of his Crown and if in default shall be at the Kings Will of Body Lands and
Goods thereof to be done as shall please him There is in this Oath as great Security taken Observations on this Oath as morally can be that the Judges perform their Office uprightly and judge according to the Law and if this will not make them wary how they give Judgment contrary to Law there are other Constraints upon them As first That the King may displace them when he pleases they holding their Places only durante beneplacito Secondly The House of Commons may question them for any false Judgment and Miscarriage in their Office which must be a great Check and deterring of them from giving any unjust Judgment either for Lucre-sake by Bribes or Partiality of Affection There are besides others two illustrious Examples of punishment of Corrupt Judges the one of Sir William Thorp (t) Rot. Parl. 25 E. 3. Rot. 10. condemned for breach of his Oath in taking Bribes Judges punished for breaking their Oath He was Indicted before the Earls of Arundel Warwick and Huntingdon the Lord Gray and Lord Burghers 24 E. 3. and the Record saith Ideo consideratum per dictos Justiciarios assignatos ad judicandum secundum voluntatem Regis secundum Regale posse suum because he broke the Oath which he took to the King and so was adjudged to be hanged The (u) Exact Abridgment p. 74. Record of this Judgment was brought into the Parliament 25 E. 3. the King having by a Writ under the Privy-Seal stayed his Execution and it was read opeâ— before the Lords and all the Lords affirmed the Judgment to be good provided this Judgment should not be drawn into example against any other Officers who should break their Oaths but (z) Qui praedictum Sacramentum fecerunt fregerunt habent Leges Regales Augliae ad custodiendas only those that took the said Oath of Justices and broke it such to whom the Royal Laws of England are committed The other is the Famous Sir Francis Bacon Lord St. Albans who being Lord Chancellor was found guilty of taking Bribes by his Servants whom though many for his great Learning would acquit as leaving too much to his Servants yet he fell an illustrious example of Justice against the highest Judges and in the forecited Record against Sir William Thorp it is apparent that the Lords who in those days were the sole Judges in Parliament thought no persons breach of Oath was capitally to be punished but only the Justices Before I come to speak to some of the long Parliaments writing Champions misapplication of the Kings Power in his Courts I think it expedient to give some Characters I have met withall of the qualifications of Judges In a Speech made to Justice (a) MS. Speech penes Rad. Thoresby de Leedes Gen. Manwood when he was chosen Lord Chief Baron the Chancellor tells him There are four things requisite in a Judge First His knowledge of the Law which is presumed every one hath that the King appoints to be his Justiciary Secondly Discretion that though in his Judgment he may vary from the letter of the Law yet he may never judge contrary to the intention of it which is Animus Legis Thirdly Integrity for it were better to have a Judge of convenient learning and discretion that would command and rule his Affection and Judgment than one of excellent knowledge and discretion that will submit the same to his corrupt Affections Fourthly Care and diligence For if a judge be furnished with all the preceeding qualifications yet if he be slothful and do not expedite his Judgment all the former serve to little purpose for qui diâ— distulit diâ— noluit My Lord St. Albans (b) Essays though he fell as before I have noted under great censure yet in his Essays tells us that a Judge's Office is Jus dicere non Jus dare that they ought to be more wise than witty more reverend than plausible more advised than confident and above all things that Integrity was their Portion and proper Vertue The unjust Judge being a Capital remover of Land-marks Injustice making Judgment bitter and delay sowre Another famous (c) E. of Clarendon's Survey p. 125. Chancellor whose unexpected exile after he was raised to the happiest Estate of a Subject may teach all to judge no State of Felicity assured upon Earth tells us that Judges are presumed by Education to be fitted for the understanding of the Laws and by their Oaths bound to judge according to Right and so must be the most competent to explain the difficulties of the Law which no Soveraign as Soveraign can be presumed to understand and comprehend and that the judgments and decisions those Judges make are the Judgment of the Soveraign who hath not qualified them but Authoritatively appointed them to judge in his stead and are to pronounce their Sentence according to the reason of the Law not the reason or will rather he means of the Soveraign But now I proceed to other matters The Long Parliament impeached all the Judges that had voted the legality of Ship-mony The Long Parliaments Impeachment of Judges as also brought to their Bar the Lord Chancellor that thereby they might strike a greater terror on the Kings Loyal Subjects especially in the House to make them comply with them and though they would have had the Power of nominating and removing the Judges and have rent that branch of his Royal Prerogative from him yet they not trusting if they effected this that it would do them any service when they had put in such Judges as they liked if the King might still Commissionate them according to old form pro beneplacito Therefore they pressed hard They would alter pro beneplacito that every Judge should continue quamdiu se bene gesserit which I only note to show they were desirous to new model the whole Government As the long Parliament of 1641. by their dissolving of Church-Government gave birth to varieties of Opinions The Long Parliament endeavours to weaken the King's Prerogative Schisms and Heresies in Religion so by their design of unloosening mens Obligation to the Monarchy they were forced to make use of many false Inferences and Judgments of the known Laws Amongst which one was when they were beaten off from the several pretences of having some Paramount Power over the King whereby he stood obliged to resign his reason to their Votes they alledged that since the King could not reverse a Judgment given in an inferior Court a fortiori he could not frustrate their Votes being the Supreme Court as well as Council In Answer to which it is to be considered How Judges in their Judgments sustain the Person of the King that in other Courts the Judges sustain the Person of the King the Law is deposited in the hands of the King and all Justice is administred by him and in his name so that his consent is by Law involved in what by Law they
do Authoritas rei indicatae vim legis habet So that can be no Appeal from the King to himself the King delegates his Power to them quod Rex facit per Officiarios per se facere videtur they give Judgment for the King not for themselves to that the Laws Authorize them and none but them so that the Kings assent or dissent cannot frustrate their Judgment which they render in invitos against the will of one of the Parties at least because expedit Reipublicae ut finis sit datus Therefore as to the Power of declaring Law the King is restrained ordinarily to the Mediation of the Judges who are to give the genuine sence and Interpretation of the Law according to Art and rules of science and so by their Interpretation and Judgment therein they bind both King and Subject Yet in some (d) Case of our Affairs p. 4. cases the Judge do not only consult among themselves Judges to apply themselves to the King to determine a doubtful case but must have recourse to the King as the Fountain of Justice so (e) Postnati si disputatio oriatur Justiciarii non possunt interpretari sed in dubiis obscuris Domini Regis expectanda est Interpretatio voluntas cum ejus est Interpretari cujus est condere It is saith Sir Thomas Smith (f) Commonwealth part 2. c. 10. to be taken for a Principle that the Life and Member of an English man is in the Power only of the Prince and his Laws so that when any of his Subjects is spoiled either of life or limb the Prince is endammaged thereby and hath good cause to ask account how his Subjects should come to that mischief and forasmuch as the Prince who governeth the Scepter and holdeth the Crown of England hath this in his care and charge to see the Realm well governed the Life Member and Possessions of his Subjects kept in peace and assurance he that by violence shall attempt to break that Peace and assurance hath forfeited against the Scepter and Crown of England So that from hence it appears how equal and just it is that the King should have the appointment of Judges Justices of Peace Why the King only to appoint Judges c. that neither his Peace should be broken his Subjects injured in their Persons or Estates nor his Laws be violated What Judges are to observe There being sufficient Provision in the Law against the violating of Justice by the Judges who are to observe these following statutes 1. Magna Charta That no Freeman shall be taken or Imprisoned or disseised of his freehold or liberty or Customs or be Out-lawed or exiled or otherwise destroyed That the King (g) Cap. 9. will not pass upon him or condemn him but by lawful Judgment of his Peers or by the Law of the Land and by another 5 E. 3. That no man shall be Attached by any Accusation nor fore-judged of Life or Limb nor his Lands Tenements Goods nor Chattles seized into the Kings hands against the form of the Great Charter and the Law of the Land and 25 Ed. 3 (h) Cap. 4. Stat. 5. That none shall be taken by Petition or Suggestion made to the King or to his Council unless by Indictment or Presentment of good and lawful People of the same Neighbourhood where such deed be done in due manner or by Process made by writ original at the Common Law and so by (i) 24 E. 3. c. 3. another That no man of what State and Condition soever he be shall be put out of his Lands or Tenements nor taken nor Imprisoned nor disinherited without being brought to answer by due Process of Law and in another (k) 41 E. 5. c. 1. That no man be put to answer without Presentment before Justices or matter of Record or by due Process or Writ original according to the old Law of the Land But I must leave this to the Learned in our Municipal Laws and shall note some few things from old Authors that may discover how much just Judgment hath ever been valued The impartiality and yet the tenderness and compassion in inflicting Punishment is notorious in Zeleucus Impartiality requisite in a Judge who while he governed the Locrians made a Law That whoever committed Adultery should have both his Eyes put out and his Son being found guilty he commanded the Law to be put in Execution and the body of the Citizens interceding he ordered one of his Sons Eyes to be put out and likewise one of his own that the Law might not be broken and yet that he might not be over rigid to his Son The (l) Neque inflecti gratia neque perfringi potentia neque adulterari pecunia possit Pro Cecinna Orator tells us That Justice should neither be warped by Favour nor broken by Power nor adulterated by Money and in another place (m) Exuit personam Judicis quisquis Amici personam induit saith That he puts off the person of a Judge who assumes that of a friend He indeed is an upright Judge in whose hand the Ballance of Justice neither totters nor falls by the Authority of any Person Talis debet esse Juris minister ut in ejus manu nullius authoritate personae titubet aut vacillet librae Justitiae Besides the avoiding of Partiality Pâ—ecipitancy to be avoided it is necessary in every Judge that he fully examine what is brought before him and not with too great Precipitancy determine matters upon (n) Qui statuiâ— aliquid parâ—e inâ—udita altera 〈…〉 siatuit 〈◊〉 tamen aequus est Senec. Medaea the hearing only of one side for though he may chance to do Justice in such a Case yet he doth not do justly that fully hears not both Parties Allegations It is a very mischievous things when Judges delay the Executing of Justice (o) Holy Court Tom. 1. lib. 3. p. 90. Delays in doing Justice mischievous Causinus out of the Chronicles of Alexandria tells us That Juvenalis a Widow complaining to Theodorick King of the Goths and Romans that a Suit of hers in Court was drawn out for the space of three Years Theodorick called the Judges before him and acquainted them with the Complaint and commanded them to do her speedy Justice which within two days they did and being again called by the King he asked them how it came to pass that they had dispatched that in two days which had not been done in three Years They answered that His Majestie 's Recommendation had made them finish it so soon To whom the King replied That when he put them into Office he consigned all Pleas to them and other Proceedings and since they had spun out the Business for three Years that required but two days dispatch they should die and at that Instant commanded their Heads to be smitten off Court to redress Delays We find in Sir Edward Coke
Capitularia Caroli (e) See Fred. Lindebrogus Codex Legum Antiq. magnis the Burgundian Alman Bavarian Saxon Longobard Ripuarian and Frisons Laws mention such Officers for preserving the publick Peace and (f) See Prynne 's Irenarch Redivivus p. 1. ad 5. punishing all Malefactors and infringers of the publick Peace as we have At the Common-Law before Justices of Peace were made there were sundry Persons to whose Charge the maintenance of the Peace was recommended and who with their other (g) Dalton's Justice of Peace c. 1. Conservators of the Peace Offices had and yet still have the Conservation of the Peace annexed to their Charge as incident to and inseparable from their said Offices yet they were only stiled and so now are by their Offices the Conservation of the Peace being included therein First the King is the principal (h) Idem Conservator of the Peace within his Dominions The King the principal Conservator of Peace and is properly Capitalis Justiciarius Angliae in whose Hands at the beginning the Administration of all Justice and all Judicature in all Causes first was and afterwards by and from him only was the Authority derived and given to all yet the Power nevertheless remains still in himself insomuch that he may himself sit in Judgment as in ancient times the Kings here have done and may take Knowledg of all cases and causes Before I leave this Head I cannot pass by the Act of (i) 20 H. 7. c. 11. H. 7. wherein is so fully declared the King's Care to have due Administration of Justice as in the close of the last Chapter I have only hinted The Reasons why Justices of Peace made The King's Care for right and easie Administration of Justice The Preamble saith The King considereth that a great part of the Wealth and Prosperity of the Land standeth in that that his Subjects may live in Surety under his Peace in their Bodies and Goods and that the Husbandry of this Land may encrease and be upholden which must be had by due Execution of Laws and Ordinances and so commandeth the Justices to execute the tenor of their Commission as they will stand in Love and Favour of his Grace and in avoiding the pains that he ordained if they do the contrary If they be lett or hindred they must show it to the King which if they do not and it come to the Kings knowledg they shall be out of his Favour as Men out of Credence and put out of Commission for ever Moreover he chargeth and commandeth all manner of Men as well Poor as Rich which be to him all one in due Administration of Justice that is hurt or grieved in any thing that the said Justice of Peace may hear determine or execute in any wise that he so grieved make his complaint to the next Justice of Peace and if he afford no remedy then to the Justices of the Assise and if he find no remedy there then to the King or Chancellor c. and as a further security it is added And over that his Highness shall not lett for any favour affection costs charge nor none other cause but that he shall see his Laws to have plain and true execution and his Subjects to live in security of their Lands Bodies and Goods according to his said Laws Thus we see who is the Principal Other Conservator of the Peace and Royal Conservator of the Peace others are the Lord Chancellor or Lord Keeper Lord Treasurer Lord High Steward of England Earl Marshal Lord High Constable of England every Justice of the Kings Bench and Master of the Rolls who have the power included in their Office and over all the Realm when they are present may award Precepts take Recognisances for the Peace of which and others Lambard in his Eirenarche may be consulted and how far Justices of Assise Stewards of the Sheriffs Turn and Court of Pye-powders the Sheriffs Chief Constable Coroners and Petty Constables may commit to Ward breakers of the Peace in their view though they cannot take surety at the request of any man that being peculiar to the Justices of Peace's Office Sir Edward Coke (k) Term. Pasch fol. 176. 4. Inst Coram Rege prima fuit Institutio Justiciariorum pro Pace conservanda Ad Pacem nostram conservandam saith that the first institution of Justices for the preserving the Peace was 6 Ed. 1. but Mr. Prynne will have it of older date because he finds that King Henry the Third by several Patents or Writs from the 17th to the end of his Reign did constitute and appoint several persons in most Counties of the Realm to be Guardians and Preservers of the Peace of the Realm and in the Patent 51 H. 3. m. 10.13 dorso it is dilectis fidelibus suis custodibus pacis Com. Linc. North. Ebor. Vicecom eorundem Comitat. and the like 54 H. 3. m. 21. d. But the first regular settlement of them seems to be Anno 1327. 1 Ed. 3. c. 16. The Authorities afterwards were further explained 4 Ed. 3. c. 2. 18 Ed. 3. c. 2. 34 Ed. 3. c. 1. Sir Edward Coke (l) Ibid. 171. tells us that the Commission of Peace stood over-burthened and incumbered with divers Statutes some whereof were before and some since repealed and stuffed with many vain and unnecessary repetitions and many other corruptions crept into it by mistaking of Clerks c. for amendment and correction whereof (m) Mich. 32 33 Eliz. Sir Christopher Wray Chief Justice of England assembled all the Judges of England and upon perusal had of the former Commission of Peace and due consideration had thereupon and often conferences betwixt themselves they resolved upon a reformation of the form with divers additions and alterations both in matter and method as it stood in Sir Edward's time and he saith It needed another Reformation by reason of Statutes since repealed and others expired of which he gives several instances Therefore he saith It is a good rule for all Judges and Justices whatsoever that have Jurisdiction by any Statute which at the first was Temporary or for a time to consider well before they give Judgment Whether that Statute hath been continued or made perpetual and if at first it was made perpetual Whether it be not repealed or altered by any later Statute What Commissions Patents and Writs were issued out by King Edward the First for preserving the Peace of the Realm suppressing seising and punishing of those who disturbed it may be found Cl. 9 Ed. 1. m. 10. d. in Rylies (n) P. 443 451 to 457 433 480. Prynne's Animadv fol. 149. Appendix so there is a Patent 14 Ed. 1. m. 15. 15 Ed. 1. m. 13. de militibus constitutis ad Articulos in Statuto de conservatione pacis edito contentoâ— observandos constituting persons of note in every County to observe them named in the Record and so for other Kings Reigns
of enlarging their Priviledges have subjected themselves as well to the slavery of Red-coats and the Tyranny of a Corps du guard or Council of War as they had their Prince under their Committees and Armies which considerations I hope will be worth their remembring What I have writ in most of the Chapters of this Treatise less or more appertains to the Gentry out of a true and cordial desire that if any such Critical time should in any Age return as that of Forty and Forty one or Eighty and Eighty one the Gentry may consider the History of former Ages and be able to distinguish betwixt Realities and feigned Pretences and will well weigh what I have writ in the preceding Chapter of the Nobility for that it is in most particulars applicable to to them which makes me shorter in this and that above all things they will seriously consider that though in every (l) Mâ—gis alii 〈◊〉 nes quâ—m alii mores Taâ—it 1. Histoâ— Generation new Men do arise that to carry on their Factious Design pretend different Causes yet the ends of all that are Male-contents and seditiously displeased with the Government is the same and commonly their Fate is parallel Therefore above all the Infections let them study to avoid that of murmuring and repining against the Government or that of being seduced by those who cover their dark Thoughts and Designs too close to be discovered by common Eyes The more such pretend Zeal for the common Good the more they pretend publick Spirits and care of Religion If they be found to have any the least Tincture of Immorality Envy Ambition Revenge Cruelty or aspiring in their Tempers the more they are to be suspected and avoided CHAP. XXXIX Of the Commonalty of England of the lower rank especially THESE are more especially the subject matter of Government The Employments they are engaged in The Common Peoples Duty makes it more profitable for them to look downwards and cultivate their Freeholds and Tenements and reap the golden Fruits of their Toil than to spend their time in the fruitless enquiries after the managery of States and Empire for whereover Soveraignty lodgeth they must still be Subjects Obedience saith a well observing (a) Cornwallis's Es says 46. Author not Examination is the destined Function of the Common People which Laws preserve them in The Industrious would soon be ruined by the Free-booters in every Hamlet if the Laws and Government were not their Guard By the several Rebellions properly of the Commons in Richard 2. H. 8. The Miseries of Insurrections and Edward the Sixth's time we have sad Examples of the Calamities they brought not only on their Neighbours and the disturbance they gave the Government but likewise the ruins they brought upon themselves and when they had wearied themselves with Rapine Murthers and a Hundred cruel Ravages and Butcheries they were at last either totally subdued and their Chieftains Executed and the rest Fined or they perished in the Fight being never able to effect any of their pretended Liberties they made the Insurrections to have obtained It is for want of Consideration that they are decoyed into such barbarous Outrages which in such Rebellions they generally commit They ought to consider Their Obligations to their Prince and that very seriously that it is from their Princes sollicitous Care that they enjoy Peace and Plenty to them they owe not only Allegiance and Obedience as they are their Soveraigns but especially Gratitude Loyalty and all dutiful Services For the good Laws from time to time have been confirmed by their Kings for their Prosperities without which they would be in a continual State of War and Feuds one against another They owe to the Paternal Care and Prudence of the Sovereign and his Government those Methods and Rules whereby they are so benignly ruled in England especially whereby they are in a freer and more plentiful Estate than any other Commoners in the World By the vertue of those Priviledges granted to them by their Kings they have Propriety in their Goods none can out them of their Possessions imprison or molest them while they observe the equitable Laws Their Privileges They have according to their several Capacities and Abilities a participation of Offices in their particular Hamlets Parishes Wapentakes or Counties either relating to the assistance to the Justice of the Land in Juries or conserving of the Peace in being petty or chief Constables or other Officers and have a peculiar Priviledge many other Commoners want of chusing their Representatives whereby they are only subject to such Laws as they or their Ancestors have given consent to The Government worthy Country-men makes fertile your Enclosures protects your Flocks and Herds secures your going out and coming in makes your Sleeps undisturbed guards your home-bred Commodities when you send them abroad secures those are brought home to you appoints you Markets for buying or selling your Corn and Cattle and your own Manufactures Let those among you The Calamities they sustained in the late War that are not ashamed they were Sequestrators Membrs of the Parliaments Army or active Officers Oppressors Plundereres or Informers against their Loyal Neighbours consider what they reaped in the late unhappy Wars begun with all the specious Pretences of redressing grievances securing Propriety and reforming Religion precious Names most wickedly abused Remember how unsupportable were the Taxes and Sequestrations What affrightments were you continually in by the Quartering of imperious Soldiers and their Plunders where they neither left Food nor Rayment for your Wives and Children and what they could not devour or carry away they destroyed Consider the effusion of so much Blood in the cruel Battles and their most unjust high-High-Courts of Justice how all the Laws either were stifled or miserably distorted The best Preservatives against the relapse into such miserable times Advice to the Commonalty is to reflect upon them often to live quietly under your Sovereign to give him no occasion to unsheath any of his Swords against you to reduce you to Obedience Avoid all Factious Whisperers of discontent You were within these six Years by past wrought so upon by cunning Designers of a Commonwealth that you made choice of such Representatives as neither would supply that Prince o immortal Memory who had preserved them and you in that Peace he had restored them to when nothing but War and miserable Devastations were in all the Countries of the Continent nor admit our present Gracious Soveraign who had adventured his Life so often for their Safety to succeed in the Throne of his Royal Ancestors Remember I beseech you dear Countrymen these things and consider how near the Gulph and Pits Brink of inevitable Miseries you were Be thankful to those Loyal Persons who by their Counsels and Addresses withheld you from the imminent Ruine Be mis-led no more by such as can sow nothing but Darnel Cockle Poppy and Tares among
Curiae suae Baronum Parium suorum So Anno 1240. 24 H. 3. (i) Graviter accusatus coram Rege Curia tota Lond. Mat. Westm 153. Matthew Paris saith That Hubert de Burgo Earl of Kent was grievously accused before the King and his whole Court and it was adjudged he should resign to the King four of his Castles I cannot omit one memorable passage that (k) Mat. Westm Anno 1260. p. 295 296. Anno 1260. 44 H. 3. there falling out a difference betwixt King Hen. 3. Prince Edward his Son Simon Montfort and other Nobles the King called his Baronage to St. Pauls and there it being urged that Prince Edward had done some injuries to the King he offered to prove himself innocent before the King and his Uncle who was King of the Romans saying Who are Peers of Prince Edward That none of (l) Omnes alios Barones Comites sibi de â—ure non esse Pares nec sâ—â—s in eum excercerâ— disâ—ussiones the rest of the Barons and Earls were by right his Peers nor ought to exercise upon him their Discussions of the matter By which it appears that he judged himself to be something more than a Peer of the Realm being the Heir apparent of the Crown I might fill a large Volum with the Histories and Records to prove this but since Levellers and the House of Commons that voted the House of Lords dangerous and useless have received such deadly wounds by Mr. Prynne in his Plea for the Lords who was once one of their own Champions I think it needless to whet those Weapons again since they always will be in readiness for any one to make use of if need require and shall only obviate one objection that may be urged That whatever the usage was before the Representatives of the Commons An Objection That after the House of Commons were admitted the Jurisdiction of the Lords House was lessened Answered yet the Commons after were often admitted to a share of Judicature in some cases But I shall give a few Instances how after this change of the Constitution of Parliament still this power of Judicature remained in the King and House of Lords Roger de (m) 4 E. 3. num 11.28 E. 3. num 9 10. Mortimer being accused of High Treason 4 E. 3. for the Murther of King Edward 2. after his resignation and unlawful deposition Knighton (n) De Event Angliae lib. 3. c. 16. col 1556 1557. giving an account of the proceedings agreeable to the Parliament Roll saith Rex praecepit Comitibus Baronibus caeteris Magnatibus Regni justum judicium ferre super praedicto Rogero de Mortimer So at the Parliament held at Salisbury 7 R. 2. W. de Zouch is said to be called to the Parliament to stand to the Judgment (o) Ad standum judicio Regis Domincrum Walâ—ingham p. 334. Hist Ang. Hypodig Neust p. 141. of the King and the Lords So Michael de la Pole Earl of Suffolk and Chancellor of England 10 R. 2. (p) Rot. Parl. 10 R. 2. num 6. ad 18. was accused by the Commons in full Parliament before the King Bishops and Lords and at last it is said The Lords in full Parliament gave judgment against him In the Parliament 11 R. 2. Thomas Duke of Gloucester offered to put himself upon his Tryal as the Lords of the Parliament would award c. After which the Lords as well Spiritual as Temporal claimed their Liberties and Franchises namely That all weighty matters in the same Parliament which should be after moved touching the Peers of the Land should be judged and determined by them by the course of Parliament and not by the Civil Law nor yet by the Common Law of the Land used in other Courts of the Realm Yet this seems a very high Demand for they have not Juris dandi but dati Jurisdictionem as they are a Court of Ministerial Jurisdiction being the Court of the King's Barons in Parliament And though when upon Writ of Error (q) Egerton sect 4.22 23. any Judgment in the King's Bench is examined in the House of Lords and there affirmed or reversed the Judgment is said to be affirmed or reversed in Parliament yet we cannot conclude they have the Power of the High Court of Parliament that their Decrees if against the Law should be as binding as Acts of Parliament How the Lords judge ministerially And though the same House in the same Session may not have Power to review again their own Judgment nor to restore again any Judgment they have reversed because they judge ministerially and not sovereignly and so bind their own Hands as well as their Inferiors whereas an Absolute Supreme Court is never at the last Period of Jurisdiction yet we see Attainders in one Parliament reversed in another and so may their Judgments be But this obiter I shall but add one proof more being full and express to the purpose to prove the House of Lords sole Jurisdiction with the King who must always be understood to give Judgment by them The Record is 1 H. 4. (r) Rot. Par. 1 H. 4. num 79. Exact Abridgment p. 392. where it is said That 3 Nov. the Commons in this Parliament shewed to the King Come les joggements du Parlement apperteignent soulement au Roy Seignieurs nient aus Communes c. That the Judgments of Parliament appertained only to the King and to the Lords and not unto the Commons Thereupon they prayed the King out of his special Grace to shew unto them the said Judgments and the cause of them that so no Record might be made in Parliament against the said Commons which are or shall be parties to any Judgment given or hereafter to be given in Parliament without their Privity Whereunto the Archbishop of Canterbury gave them this Answer by the Kings Commandment That the Commons themselves are Petitioners and Demanders and that the King (s) Et que le Roy les Seigniours de tout temps ont eues averont de droit les Juggement in Parliament en manere come mesmes les Communes soâ—t monstres and Lords from all times have had and shall have of right the Judgments in Parliaments in manner as the Commons have shewed How far the King and House of Lords have been Judges of the Priviledges of the House of Commons I shall declare in that part of this Chapter wherein I treat of that House SECT 5. Of the Assistants to the House of Lords HAving thus far treated of the Constituent Parts of the House of Lords I come now to the Assistants to this most Honourable House which were mostly the (t) Prynne's Brief Register part 1. sect 3. p. 240. The Judges and other Assistants of the House of Lords King 's Great Officers as well Clergy-men as Secular Persons who were no Lords or Barons of the Realm as namely his Treasurer