it should be otherwise in the present times the equity and justice of it being still the same and the same reasons for it now as forcible as they could be then Had it been otherwise resolved of in the former ages wherein the Clergy were so prevalent in all publique Counsails how easie a matter had it been for them either by joyning with the Nobility to exclude the Commons or by joyning with the Commonalty to exclude the Nobles Or having too much conscience to adventure on so great a change an alteration so incompatible and inconsistent with the Constitution of a Parliament how easily might they have suppressed the potency and impaird the Privileges of either of the other two by working on the humours or affections of the one to keep down the other But these were Arts not known in the former daies nor had been thought of in these last but by men of ruine who were resolved to change the Government as the event doth shew too clearly both of Church and State Nor doth it help the matter in the least degree to say that the exclusion of the Bishops from the House of Peers was not done meerly by the practice of the two other Estates but by the asseâ—t of the King of whom the Laws say he can do no wrong and by an Act of Parliament wherof our Laws yet say quae â—ul doit imaginer chose dishonourable c Plowden in Commentar that no man is to think dishonourably For we know well in what condition the King was when he passed that Act to what extremities he was reduced on what terms he stood how he was forced to flye from his City of London to part with his dear Wife and Children and in a word so overpowred by the prevailing party in the two Houses of Parliament that it was not safe for him as his case then was to deny them any thing And for the Act of Parliament so unduly gained besides that the Bill had been rejected when it was first brought unto the Lords and that the greater part of the Lords were frighted out of the House when contrary unto the course of Parliament it was brought again it is a point resolved both in Law and reason that the Parliament can do nothing to the destruction of it self and that such Acts as are extorted from the King are not good and valid whereof we have a fair example in the Book of Statuers d 15 Ed. 3. For whereas the King had granted certain Articles pretended to be granted in the form of a Statute expresly contrary to the Laws of the Realm and his own Prerogative and rights royal mark it for this is just the case which he had yielded to eschew the dangers which by denying of the same were like to follow in the same Parliament it was repealed in these following words It seemed good io the said Earls Barons and other wise men that since the Statute did not proceed of our free will the same be void and ought not to have the name nor strength of a Statute and therefore by their counsail and assent we have decreed the said Statute to be void c. Or if it should not be repealed in a formal manner yet is this Act however gotten void in effect already by a former Statute in which it was enacted in full Parliament and at the self same place where this Act was gained that the Great Charter by which and many other Titles the Bishops held their place in Parliament should be kept in all points and if any Statute be made to the contrary it shall be holden for none e 42 Ed. 3. c. 1. CHAP. VI. That the three Estates of every Kingdom whereof CALVIN speaks have no authority either to regulate the power or controll the Actions of the Soveraign Prince I. The Bishops and Clergy of England not the King make the third Estate and of the dangerous consequences which may follow on the contrary Tenet II. The different influence of the three Estates upon conditional Princes and an absolute Monarch III. The Sanhedrim of no authority over the persons or the actions of the Kings of Judah IV. The three Estates in France of 〈◊〉 small authority over the actions of that King V. The King of Spain not over-ruled or regulated by the three Estates VI. Of what authority they have been antiently in the Parliaments of Scotland VII The King of England alwaies accounted heretofore for an absolute Monarch VIII 〈◊〉 part of Soveraignty invested legally in the English Parliaments IX The three Estates assembled in the Parliament of England subordinate unto the King not co-ordinate with him X. The Legislative power of Parliaments is properly and legally in the King alone XI In what particulars the power of the English Parliament doth consist especially XII The Kings of England ordinarily over-rule tâ—eir Parliaments by themselves their Counsel and their Judges XIII Objections answered touching the power and practice of some former Parliaments and the testimonies given unto them XIV No such Authority given by God in Holy Scripture to any such Popular Magistrates as CALVIN dreams of and pretends XV. The Application and Conclusion of the whole Discourse I Have been purposely more copious in the former Chapter because I thought it necessaâ—y to declare and manifest who made the three Estates in each several Kingdom which are pretended by our Author to have such power of regulating the authority and censuring the actions and the persons of their Soveraign Princes And this the rather in regard it is thought of late and more than thought presented to the world in some publick writings especially as it relates to the Realm of England that the King the Lords and Commons make the three Estates which brings the King into an equal rank with the other two in reference to the businesse and affairs of Parliament A fancy by what Accident soever it was broached and published which hath no consistence either with truth or ordinary observation or with the practice of this Realm or of any other For the proof of this my position that the King is none of the three Estates as is now pretended if all proofs else should fail I have one from Calvin whose judgement in this point amongst many of us will be instar omnium For where he saith in singulis Regnis tres esse Ordines e Calvin instâ—t 4. cap. ult that there are three Estates in each several Kingdom and that these three Estates convened in Parliament or by what other name soever they call their meeting are furnished with a power Regum libidinem moderandi of moderating the licentiousness of Kings and Princes and that they become guilty of perfidious dissimulation si Regibus impotenter grassantibus c. If they connive at Kings when they play the Tyrants or wantonly insult on the Common-people I trow it cannot be conceived that the King is any one of the three Estates who are here
Parliament and the time of 40 daies expresly specified to intervene between the summons and the beginning of the Parliament Which Commons being such as antiently did hold in Capite and either having a Knights fee or the degree of Knighthood did first promiscuously attend in these publick meetings and after were reduced to four quatuor discretos milites de Comitatu tuo as c Id. ibid. the writ ran unto the Sheriff and at last to two as they continue to this day 5. We have it thus in the Magna Charta of King Henry the 3d. the birth-right of the English Subject according as it stands translated in the book of Statutes First we have granted to God and by this our present Charter have confirmed for us and our heirs for ever that the Church of England shall be free and shall enjoy all her whole Rights and Liberties inviolable d Magna Charta cap. 1. But it was a known Right and Liberty of the Church of England that all the Bishops and many of the greater Clergy and peradventure also the inferiour Clergy wherof more anon had their Votes in Parliament and therefore is to be preserved inviolable by the Kings of England their Heirs and Successors for ever Which Charter as it was confirmed by a solemn Curse denounced on all the Infringers of it by Boniface Arch-bishop of Canterbury e Matth. Patis in Henr. 3. and ratified in no fewer man 30 succeeding Parliaments so was it enacted in the reign of Edward the first that it should be sent under the great Seal of England to all the Cathedral Churches of the Kingdom to be read twice a year before the people f 25 Edw. 1. c. 2. that they should be read four times every year in a full County-Court g 28 Edw. 1. c. 1. and finally that all judgements given against it should be void h 25 Edw. 1. c. 3. 6. We have the Protestation of John Stratford Arch-bishop of Canterbury in the time of King Edward the 3d. who being in disfavour with the King and denyed entrance into the House of Peers challenged his place and suffrage there as the first Peer of the Realm and one that ought to have the first Voice in Parliament in right of his See But hear him speak his own words which are these that follow Amici for he spake to those who took witness of it Rexme ad hoc Parliamentum scripto suo vocavit ego tanquam major Par Regni post regem primam vocem habere debens in Parliamento jura Ecclesiae meae Cantuariensis vendico ideo ingressum in Parliamentum peto i Antiqu. Bâ—itan in Joh. Stratford which is full and plain 7. And lastly there is the Protestation on Record of all the Bishops in the reign of King Richard the 2d at what time William Courtney was Arch-bishop of Canterbury who being to withdraw themselves from the House of Peers at the pronouncing of the sentence of death on some guilty Lords first made their Procurators to supply their rooms then put up their Protestation to preserve their Rights the sum whereof for as much as doth concern this business in their own words thus De jure consuetudine regni Angliae ad Archiepiscopum Cantuariensem qui pro tempore fuerit nec non coeteros Suffraganeos confratres compatres Abbates Priores aliosque Praelatos quoscunque per Baroniam de domino Rege tenentes pertinet in Parliamentis Regis quibuscunque ut Pares regni praedicti personaliter interesse ibidemque de regni negotiis ac aliis tractari consuetis cum caeteris dicti regni Paribus aliis ibidem jus interessendi habentibns consulere tractare ordinare statuere diffinire ac câ—etera facere quae Parliamento ibidem imminent facienda This put together makes enough abundantly for the proofs de jure k In vita Gul. Courtney and makes the Bishops right to have Vote in Parliament to be undeniable Let us next see whether this right of theirs be not confirmed and countenanced by continual practice and that they have not lost it by discontinuance which is my second kind of proofs those I mean de facto And first beginning with the reign of the Norman Conquerour we find a Parliament assembled in the fifth year of that King wherein are present Episcopi Abbates Comites Primates totius Angliae l Matth. Paris in Willielmo 1. the Bishops Abbats Earls and the rest of the Baronage of England In the 9th year of William Rufus an old Author telleth us de regni statu acturus Episcopos Abbates quoscunque Regni proceres in unum praecepti sui sanctione egit that being to consult of the affairs of the Kingdom he called together by his writ the Bishops Abbots and all the Peers of the Realm m Eadmer hist Nov. l. 2. During the reign of Henry the 2d for we will take but one example out of each King reign though each Kings reign would yield us more a Parliament was called at London wherein were many things dispatched aswell of Ecclesiastical as secular nature the Bishops and Abbats being present with the other Lords Coacto apud Londoniam magno Episcoporum Procerum Abbatumque Conciliâ— multa ecclefiasticarum secularium rerum ordinata negotia decisa litigia saith the Monk of Malmesâ—ury n Malmesb. hist reg Angl. l. 5. And of this Parliament it is I take it that Eadmer speaketh Hist. Novell l. 4. p. 91. Proceed we to King Henry the 2d for King Stephens reign was so full of wars and tumults that there is very little to be found of Parliaments and there we find the Bishops with the other Peers convened in Parliament for the determination of the points in controversie between Alfonso King of Castile and Sancho King of Navarre referred by compremise to that King of England and here determined by King Henry amongst other things habito cum Episcopis Comitibus et Baronebus cum deliberatione consilio as in Roger Hoveden o Hoveden Annal. pars poster in Hen. 2. Next him comes Rich. the first his Son during whose imprisonment by the D. of Austria his Brother John then Earl of Moriton indeavoured by force and cunning in Normandy to set the Crown on his own head which caused Hubert the Arch-bishop of Canterbury to call a Parliament Convocatis coram eo Episcopis Comitibus et Baronibus regni p Id. in Joh. wherein the Bishops Earls and Barons did with one consent agree to seize on his estate and suppress his power the better to preserve the Kingdom in wealth peace and safety After succeeded John and he calls a Parliament wherein were certain Laws made for the defence of his Kingdom Communi assensu Archiepiscoporum Episcoporum Comitum Baronum omnium fidelium suoâ—um Angâ—iae by the common counsell and assent of the Arch-bishops Bishops Earls Barons and the rest of
his Leiges Remember what was said before touching the writ of Summons in the said Kings time From this time till the last Parliament of King Charles there is no Kings reign of which we have not many though not all the Acts of Parliament still in print amongst us Nor is there any Act of Parliament in the printed Books to the enacting of the which the Bishops approbation and consent is not plainly specified either in the general Proeme set before the Acts or in the body of the Act it themself as by the books themselves doth at at large appear And to this kind of proof may be further added the form and manner of the writ by which the Prelates in all times have been called to Parliament being the very same verbatim with that which is directed to the temporal Barons save that the Spiritual Lords are commanded to attend the service in fide dilectione the temporal in fide homagio and of late times in fide ligeantia A form or copy of which summons as antient as King Johns time is still preserved upon Record directed nominatim to the Arch-bishop of Canterbury r V. Titles of hon pt 2. c. 5. and then a scriptum est similiter to the residue of the Bishops Abbats Earls and Barons Then adde the Privilege of Parliament for themselves and their servants during the time of the Sessions the liberty to kill and take one or two of the Kings Deer as they pass by any of his Forests in coming to the Parliament upon his commandement s Charta de Foresta cap. their enjoying of the same immunities which are and have been heretofore enjoyed by the Temporal Barons t Cambden in Britannia and tell me if the Bishops did not sit in Parliament by as good a title and have not sate there longer by some hundreds of years in their Predecessours as or than any of the Temporal Lords do sit or have sat there in their Progenitours and therefore certainly essential fundamental parts of the Court of Parliament 8. But against this it is objected first that some Acts have passed in Parliament to which the Prelates did not vote nor could be present in the House when the Bill was passed as in the sentencing to death or mutilation of a guilty person as doth appear both by the laws constitutions recognized at Clarendon and the following practice This hath been touched on before we told you then that this restraint was laid upon them not by the Common law of England or any Act or Ordinance of the House of Peers by which they were disabled to attend that service It was their own voluntary Act none compelled them to it but only out of a conformity to some former Canons ad sanctorum Canonum instituta x Antiqu. Brit. in Gul. Courtney as their own words are by which it was not lawfull for the Clergy men to be either Judges or Assessors in causa Sanguinis y Constitut Othobon fol. 45. And yet they took such care to preserve their Interests that they did not only give their Proxies for the representing of their persons but did put up their Protestation with a salvo jure for the preserving of their rights for the time to come jure Paritatis interessendi in dicto Parliamento z Antiqu. Britan. in Gul. Courtney quoad omnia singula ibi excercenda in omnibus semper salvo as the manner was Examples of the which are as full and frequent as their withdrawing themselves on the said occasions But then the main objection is that as some Acts have passed in Parliament absentibus Praelatis when the Bishops did absent themselves of their own accord so many things have been transacted in the Parliament excluso Clero when the Clergy have been excluded or put out of the House by some Act or Ordinance A precedent for this hath been found and published by such as envied that poor remnant of the Churches honour though possibly they will find themselves deceived in their greatest hope and that the evidence will not serve to evince the cause The Author of the Pamphlet entituled The Prerogative and practice of Parliaments first laying down his Tenet that many good Acts of Parliament may be made though the Arch-bishops and Bishops should not consent unto them a Printed at London 1628. p. 37. which is a point no man doubts of considering how easily their negative may be over-ruled by the far greater number in the House of Peers adds that at a Parliament holden at S. Edmundsbury 1196 in the reign of Ed 1. a Statute was made by the King the Barons and the Commons Excluso Clero for the proof herof refers us unto Bishop Jewell Now Bishop Jewell saith indeed that in a Parliament solemnly holden at St. Edmunsbury by King Edward 1. Anno 1296. the Arch-bishops and Bishops were quite shut forth and yet the Parliament held on and good and wholsome laws were there enacted the departing or absence of the Lords Spiritual notwithstanding b Defence of the Apolog. pt 6. c. 2. §. 1. In the Records whereof it is written thus Habito Rex cum Baronibus suis Parliamento Clero excluso statutum est c. the King keeping the Parliament with his Barons the Clergy that is to say the Arch-bishops and Bishops being shut forth it was enacted c. Wherein who doth not see if he hath any eyes that by this reason if the proof be good many good Acts of Parllament may be made though the Commons either out of absence or opposition should not consent unto them of whose consent unto that Statute whatsoever it was there is as little to be found in that Record as the concurrence of the Bishops But for Answer unto so much of this Record so often spoke of and applauded as concerns the Bishops we say that this if truly senced as I think it be not was the particular act of an angry and offended King against his Clergy not to be drawn into example as a proof or Argument against a most clear known and undoubted right The case stood thus A Constitution had been made by Boniface the 8th Ne aliqua collecta ex ecclesiasticis proventibus Regi aut cuivis alii Principi concedatur c Matth. Westm in Edw. 1. that Clergy men should not pay any tax or tallage unto Kings or Princes out of their Spiritual preferments without the leave of the Pope under pretence whereof the Clergy at this Parliament at S. Edmundsbury refused to be contributory to the Kings occasions when the Lay-Members of the House had been forwards in it The King being herewith much offended gives them a further day to confider of it adjourning the Parliament to London there to begin on the morrow after S. Hilaries day and in the mean time commanded all their Barns to be fast sealed up The day being come and the Clergy still
persisting in their former obstinacy excluso e Parliamento Clero Consilium Rex cum solis Baronibus populo habuit totumque statim Clerum protectione sua privavit d Antiqu. Brit. in R. Winchelsey the King saith the Historian excluding the Clergy out of the Parliament advised with his Barons and his people only what was best to be done by whose advise he put the Clergy out of his protection and thereby forced them to conform to his will and pleasure This is the summa totalis of the business and comes unto no more but this that a particular course was advised in Parliament on a particular displeasure taken by the King against the body of his Clergy then convened together for their particular refusal to contribute to his wants wars the better to reduce them to their natural duty Which makes not any thing at all against the right of Bishops in the House of Peers or for excluding them that House or for the validity of such Acts as are made in Parliament during the time of such exclusion especially considering that the King shortly after called his States together and did excuse himself for many extravagant Acts which he had committed e Walsingâ— in Edw. 1. anno 1297. against the liberties of the Subject whereof this was one laying the blame thereof on his great occasions and the necessities which the wars which he had abroad did impose upon him And so much as in Answer unto that Record supposing that the words thereof be rightly senced as I think they are not and that by Clerus there we are to understand Arch-bishops and Bishops as I think we be not there being no Record I dare boldly say it either of History or Law in which the word Clerus serves to signifie the Arch-bishops and Bishops exclusive of the other Clergy or any writing whatsoever wherein it doth not either signifie the whole Clergy generally or the inferiour Clergy only exclusive of the Arch-bishops Bishops and other Prelates Therefore in answer unto that so much applauded Cavil of Excluso Clero from what Record soever it either hath been hitherto or shall hereafter be produced I shall propose it to the consideration of the sober Reader whether by Clerus in that place or in any other of that kind and time we must not understand the inâ—eriour Clergy as they stand distinguished in the Laws from my Lords the Bishops For howsoever it be true that Clerus in the ecclesiastical notion of the word doth signifie the whole Clergy generally Arch-bishops Bishops Priests and Deacons yet in the legal notion of it it stands distinguished from the Prelates and signifieth only the inferiour Clergy Thus do we find the Ecclesiasticks of this Realm divided into Prelates men of Religion and other Clerks 3. Edw. 1. c. 1. the Seculars either into Prelates and Clerks 9 Edw. 2. c. 3. 1 Rich. 2. c. 3. or Prelates and Clerks beneficed 18 Edw. 3. c. 2. or generally into the Prelates and the Clergy 9 Edw. 2. c. 15. 14 Edw. 3. c. 1 3. 18 Edw. 3. 2. 7. 25 Edw. 3. 2. 4. 8 Hen. 6. c. 1. and in all acts and grants of Subsidies made by the Clergy to the Kings or Queens of England since the 32 of Henry 8. when the Clergy subsidies first began to be confirmed by act of Parliament So also in the Latin ideom which comes neerest home Nos Praelati Clerus in the submission of the Clergy to King Henry 8. f Regist Waâ—ham and in the sentence of divorce against Anne of Cleve g Regist Cranmer and in the instrument of the grant of the Clergy subsidies presented to the Kings of England ever since the 27 of Queen Elizabeth and in the form of the Certificates per h Statut. 8 Eliz. c. 17. ever since Praelatâ—s Clerum returned by every Bishop to the Lord High Treasurer and finally Nos Episcopi Clerus Cantuariensis Provinciae in hac Synodo more nostro solito dum Regni Parliamentum celebratur congregati i Stat. 1 Phil. Mar. c. 8. in the petition to K. K. Phillip and Mary about the confirmation of the Abby lands to the Patentees So that though many Statutes have been made in these later times excluso Clero the Clergy that is to say the inferiour Clergy being quite shut out and utterly excluded from those publick Counsails yet this proves nothing to the point that auy act of Parliament hath been counted good to which the Bishops were not called or at the making of which Act they either were shut out by force or excluded by cunning As for Kilbancies book which that Author speaks of k Prerâ—g pract of Paâ—l p. 38. in which the Justices are made to say 7 H. 8. that our Soveraign Lord the King may well hold his Parliament by him and his Temporal Lords and by the Commons also without the Spiritual Lords for that the Spiritual Lords have not any place in the Parliament chamber by reason of their Spiritualties but by reason of their Temporal possessions besides that it is only the opinion of a privat man of no authority or credit in the Common wealth and contrary to the practice in the Saxon times in which the Bishops sate in Parliament as Spiritual persons not as Barons the reason for ought I can see will serve as well to pretermit all or any of the Temporal Lords as it can serve to pretermit or exclude the Bishops the Temporal Lords being called to Parliament on no other ground than for the Temporal possessions which they hold by Barony 9. If it be said that my second answer to the argument of Excluso Clero supposeth that the inferiour â—lergy had some place in Parliament which being not to be supposed makes the Answer void I shall crave leave to offer some few observations unto the consideration of the sober and impartial Reader by which I hope to make that supposition probable and perhaps demonstrative First then we have that famous Parliament call it Concilium magnum or Concilium commune or by what other name soever the old writers called it summoned by King Ethelbert anno 605. which my l Concil Hen. Spelm. Author calleth Commune concilium tam Cleri quam Populi where Clerus comprehendeth the body of the Clergy generally aswell the Presbyters as the Bishops as the word populus doth the lay-subject generally as well Lords as Commons or else the Lords and Commons one of the two must be needs left out And in this sense we are to understand these words in the latter times as where we read that Clerus m Matth. Paris in Hen. 1. Angliae populus Vniversus were summoned to appear at Westminster at the Coronation of King Henry the first where divers Laws were made and declared subscribed by the Arch-bishops Bishops and others of the principal persons that were there assembled that Clero populo
declared to have been fortified by sundry Laws and Ordinances made in former Parliaments k Ibid. and such as hath been since confirmed by a solemn Oath taken and to be taken by most of the Subjects of this Kingdom Which Oath consisting of two parts the one Declaratory and the other Promissory in the Declaratory part the man thus taketh it doth declare and testifie in his conscience that the Kings Highness is the only supreme Governor of this Realm and of all other his Dominions and Countries aswell in all spiritual or ecclesiastical things or causes as temporal c. l 1 Eliz. c. 1. And in the Promissooy part they make Oath and swear that to their power they will assist and defend all Jurisdictions Privileges Preheminences and Authorities granted or belonging to the Kings Highness his Heirs and Succcesseors or united and annexed to the Imperial Crown of this Realm Put all which hath been said together and it will appear that if to have merum imperium a full and absolute command and all the jura majestatis which belong to Soveraignty if to be so supreme as to hold immediatly of God to have all persons under him none but God above him if to have all authority and jurisdiction to be vested in him and proceeding from him and the material sword at his sole disposal for the correcting of offenders and the well ordering of his people if to have whole and entire power of rendring justice and final determination of all causes to all manner of Subjects us also to interpret and dispence with Laws and all this ratified and confirmed unto him by the solemn Oath of his Subjects in the Court of Parliament be enough to make an absolute Monarch the Kings of England are more absolute Monarchs than either of their Neighbours of France or Spain 8. If any thing may be said to detract from this it is the new devise so much pressed of late of placing the chief Soveraignty or some part thereof in the two Houses of Parliament concerning which Mr. Prynne published a discourse entituled The supreme power of Parliaments and Kingdoms and others in their Pamphlets upon that Argument have made the Parliament so absolute and the King so limited that of the two the Members of the Houses are the greater Monarchs But this is but a new devise not heard of in our former Monuments Records of Law nor proved or to be proved indeed by any other Medium than the Rebellions of Cade Tiler Straw Kett Mackerell and the rest of that rascall rabble m Prynnes book of Parl. c. pâ— 3. or the seditious Parliaments in the time of K. Henry the 3d. King Edward the 2d and King Richard the 2d when civil war and faction carried all before it For neither have the Houses or either of them enjoyed such Soveraignty de facto in times well setled and Parliaments lawfully assembled nor ever could pretend to the same de jure Or if they did as many have been apt enough to raise false pretences it would much trouble them to determine whether this Soveraignty be conferred upon them by the King or the people whether it be in either of the Houses severally or in both united If they can challenge this pretended Soveraignty in neither of these capacities nor by none of these Titles it may be warrantably concluded that there is no such Soveraignty as they do pretend to And first there is no part nor branch of Soveraignty conferred upon them by the King The writs of Summons which the Declaration of the Lords and Commons assembled at Oxon. 1643. doth most truly call the foundation of all power in Parliament n Declaration of the Treaty p. 15. tell us no such matter The writ directed to the Lords doth enable them only to confer and treat with one another consilium vestrum impendere and to advise the King in such weighty matters as concern the safety of the Kingdom But they are only to advise not compell the King to counsell him but not controll him and to advise and counsel are no marks of Soveraignty but rather works of service and subordination Nor can they come to give this Counsel without he invite them and being invited by his writ cannot choose but come except he excuse them which are sure notes of duty and subjection but very sory signs of power and soveraignty 'T is true that being come together they may and sometimes do on a writ of Error examin and reverse or affirm such judgements as have been given in the Kings Bench and from their sentence in the case there is no appeal but only to the whole body of that Court the King and both the Houses the Head and Members o Case of our Affairs p. 7 8. But this they do not as the upper house of Parliament but as the distinct court of the Kings Barons of Parliament of a particular and ministerial jurisdiction to some intents and purposes and to some alone which though it doth invest them with a power of judicature confers not any thing upon them which belongs to Soveraignty Then for the Commons all which the writ doth call them to is facere consentire to do and consent unto such things which are ordained by the Lords and Common Counsel of the Kingdom of England and sure conformity and consent which is all the writ requireth from them are no marks of Soveraignty nor can an Argument be drawn from thence by the subtillest Sophister to shew that they are called to be partakers of the Soveraign power or that the King intends to denude himself of any branch or leaf thereof to hide their nakednesse And being met together in a body collective they are so far from having any share in Soveraignty that they cannot properly be called a Court of Judicature as neither having any power to minister an Oath p Id. p. 9. or to imprison any body except it be some of their own Members if they see occasion which are things incident to all Courts of Justice and to every Steward of a Leet insomuch that the House of Coâ—mons is compared by some â—and not incongruosly unto the Grand Inquest at a general Sessions q Review of the Observat p. 22. whose principal work it is to receive bils and prepare businesses and make them fit and ready for my Lords the Judges Nay so far were they heretofore from the thoughts of Soveraignty that they were lyable to sutes and punishments for things done in Parliament though only to the prejudice of a private Subject untill King Henry 8. most graciously passed a Law for their indemnity For whereas Richard Strode one of the company of Tinners in the County of Cornwall being a Member of the Commons House had spoken somwhat to the prejudice of that Society and contrary to the Ordinances of the Stanneries at his return into the Country â—e was arested fined imprisoned Complaint whereof being
versari The States saith he of England have a kind of authority but all the rights of Soveraignty and command in chief are at the will and pleasure of the Prince alone 12. And to say truth although the Lords Commons met in Parliament are of great authority especially as they have improved it in these later times yet were they never of such power but that the Kings have for the most part over-ruled them made them pliant conformable to their own desires and this not only by themselves but sometimes also by their Judges by their counsel often For such was the great care and wisdom of our former Kings as not to venture single on that numerous body of the two Houses of Parliament whereby the Soveraignty might be so easily overmatched but to take with them for Assistants as well the Lords of their Privy Counsel with whom they might advise in matters which concerned them in their Soveraign rights as their learned Counsel as they call them consisting of the Judges and most eminent Lawyers from whom they might receive instruction as the case required and neither do nor suffer wrong in point of Law and by both these as well as by the power and awe of their personal presence have they not only regulated but restrained their Parliaments And this is easily demonstrable by continual practice For in the Statute of Bigamie made in the fourth k 4 Ed. 1. year of King Edward 1. it is said expreâ—ly that in the presence of certain reverend Fathers Bishops of England and others of the Kings Counsel the Constitutions under-written were recited and after published before the King his Couusel forasmuch as all the Kings Counsel as well Justices as others did agree that they should be put in writing and observed In the Articuli super Chartas when the Great Charter was confirmed at the request of the Prelates Earls and Barons l 28 Ed. 1. c. 2. we find these two clauses the one in the beginning thus Nevertheless the King and his Counsel do not intend by reason of this Statâ—te to diminish the Kings right m Ibid. c. 20. c. The other in the close of all in these following words And notwithstanding all these things mentioned or any part of them both the King and his Counsel and all they which were present at the making of this Ordinance do will and intend that the right and prerogative of his Crown shall be saved in all things In the 27th of King Edward the 3d. n 27 Ed. 3. The Commons presenting a Petition to the King which the Kings Counsel did mislike were content thereupon to mend and explain their Petition the form of which Petition is in these words following To their most redoubted Soveraign Lord the King praying the Commons that whereas they have prayed him to be discharged of all manner of Articles of the Lyre c. which Petition seemeth to his Counsel to be prejudicial unto him and in disherison of his Crown if it were so generally granted his said Commons not willing nor desiring to demand things of him which should fall in disherison of him or of his Crown perpetually as of Escheats c. but of trespasses misprisions negligences and ignorances c. In the 13 of the reign of King Richard the 2d when the Commons did pray that upon pain of forfeiture the Chancellor or Counsel of the King should not after the end of the Parliament make any Ordinance against the Common law o 13 Rich. 2. the King by the advise of his Counsel answered Let it be used as it hath been used before this time so as the Regality of the King be saved for the King will save his Regalities as his Predecessors have done In the 4th year of King Henry 4. p 4 Hen. 4. when the Commons complained against Sub-poenae's and other writs grounded upon false suggestions the King upon the same advise returned this answer that he would give in charge to his Officers that they should abstain more than before time they had to send for his Subjects in that manner But yet saith he it is not our intention that our Officers shall so abstain that they may not send for our Subjects in matters and causes necessary as it hath been used in the time of our good Progenitors Finally not to bring forth more particulars in a case so clear it was the constant custome in all Parliaments till the Reign of King Henry 5. q Henr. 5 that when any Bill had passed both houses and was presented to the King for his Royal Assent the King by the advise of his Privy Counsel or his Counsel learned in the Laws or sometimes of both did use to crosse ouâ— and obliterate as much or as little of it as he pleased to leave out what he liked not and confirmed the rest that only which the King confirmed being held for Law And though in the succeeding times the Kings did graciously vouchsafe to pass the whole Bill in that form which the Houses gave it or to reject it wholly as they saw occasion yet still the Privy Counsel and the Judges and the Counsel learned in the Laws have and enjoy their place in the House of Peers aswell for preservation of the Kings rights and Royalties as for direction to the Lords in a point of Law if any case of difficulty be brought before them on which occasions the Lords are to demand the opinion of the Judges and upon their opinions to ground their Iudgement As for example In the Parliament 28 of Hen. 6. The Commons made sure that VVilliam de la Pole Duke of Suffolk should be committed to Prison for many treasons and other crimes r 28 Hen. 6 and thereupon the Lords demanded the opinion of the Judges whether he should be committed to Prison or not whose Answer was that he ought not to be committed in regard the Commons had not charged him with any particular offence but with generals only which opinion was allowed and followed In another Parliament of the said King held by Prorogation one Thomas Thorpe the Speaker of the House of Commons was in the Prorogation-time condemned in 1000 l. dammages upon an Action of Trespass at the sute of Richard Duke of York and was committed to Prison for execution of the same The parliament being reassembled the Commons made suâ—e to the King and Lords to have their Speaker delivered to them according to the privilege of Parliaments t The privilege of the Barons p. 15. the Lords demanded the opinion of the Judges in it and upon their Answer did conclude that the Speaker should still remain in Prison according to Law notwithstanding the privilege of Parliament and according to this resolution the Commons were commanded in the Kings name to choose one Tho Carleton for their Speaker which was done accordingly Other examples of this kind are exceeding obvious and for numbers infinite yet neither more
made for the common use and benefit of the Subject they are left at liberty and may proceed in governing the people given by God unto them according to their own discretion and the advice of their Counsel New Laws are chiefly made for the Subjects benefit at their desire on their importunate requests for their special profit not one in twenty nay I dare boldly say not one in an hundred made for the advantage of the King either in the improvement of his power or the increase of his Revenue Look over all the Acts of Parliament from the beginning of the reign of King Henry 3. to the present time and tell me he that can if he finds it otherwise Kings would have little use of Parliaments and less mind to call them if nothing but the making of new Laws were the matter aimed at And as for raising monies and imposing taxes it either must suppose the Kings to be always unthrifts that they be always indigent and necessitous and behind-hand with the world which are the ordinary effects of ill husbandry or else this argument is lost and of little use For if our Kings should husband their estates to the best advantage and make the best benefit of such escheats and forfeitures conâ—iscations as day by day do fall unto them If they should follow the example of K. Henry 7. and execute the penal Laws according to the power which those Laws have given them and the trust reposed in them by their People if they should please to examine their revenue and proportion their expence to their comings in there would be litle need of subsidies and supplies of money more than the ordinary aids and impositions upon Merchandize which the Law alloweth of and the known rights of Sovereignty backed by prescription and long custom have asserted to them So that it is by Accident not by right and nature that the Parliament hath any power or opportunity to restrain their King in this particular for where there is no need of asking there is no occasion of denying by consequence no restraint upon no baffle or affronting offered to the Regal power And yet the Soveraign need not fear if he be tollerably carefull of his own estate that any reasonable demand of his in these mony matters will meet with opposition or denial in his Houses of Parliament For whilest there are so many Acts of Grace and favour to be done in Parliament as what almost in every Parliament but an enlargement of the Kings favours to his people and that none can be done in Parliament but with the Kings fiat and consent there is no question to be made but that the two Houses of Parliament will far sooner choose to supply the King as allwise Parliaments have done than rob the Subject of the benefit of his grace and favours which is the best fruit they reap from Parliaments Finally whereas it is objected but I think it in sport that the old Lord Burleigh used to say that he knew not what a Parliament in England could not do and that King Iames once said in a Parliament that then there were 500 Kings which words were took for a Concession that all were Kings as well as he in a time of Parliament they who have given us these Objections do either mis-understand their Authors or abuse themselves For what the Lord Burleigh said of Parliaments though it be more than the wisest man alive can justifie he spake of Parliaments according as the word is used in its proper sense not for the two Houses or for either of them exclusive of the Kings presence and consent but for the supreme Court for the highest Judicatory consisting of the Kings most excellent Majesty the Lords Spiritual and Temporal and the Representees of the Commons and then it will not serve for the turn intended And what King James said once in jest though I have often heard it used in earnest upon this occasion was spoke only in derision of some daring Spirits who laying by the modesty of their Predecessors would needs be looking into the Prerogative or finding errors and mistakes in the present Government or medling with those Arcana imperii which former Parliaments beheld at distance with the eye of reverence But certainly King James intended nothing lesse than to acknowledg a co-ordinative Soveraignty in the two Houses of Parliament or to make them his Co-partners in the Regal power His carriage and behaviour towards them in the whole course of his Government clearly shews the contrary there never being prince more jealous in the points of Soveraignty nor more uncapable of a Rival in those points than he 14. But yet the main objection which we may call the Objection paramount doth remain unanswered For if the three Estates convened in Parliament or any other popular Magistrate whom Calvin dreams of be ordaned by the Word of God as Guardians of the peoples Liberties and therefore authorised to moderate and restrain the power of Kings as often as they shall invade or infringe those liberties as Calvin plainly saies they were or that they know themselves to be ordained by Gods word to that end and purpose cujus se lege Dei Tutores positos esse norunt as he saies they do then neither any discontinuance or non-usage on their parts nor any prescription to the contrary alledged by Kings and supreme Princes can hinder them from resuming and exercising that Authority which God hath given them whensoever they shall finde a fit time for it But first I would fain learn of Calvin in what part of the Word of God we shall finde any such Authority given to those popular Magistrates by what name soever they are called in their several Countreys as he tels us of Not in the old Testament I am sure though in the institution of the seventy Elders there be some hopes of it For when Moses first ordained those Elders it was not to diminish any part of that power which was vosted in him but to ease himself of some part of the burthen which did lie upon him And this appears plainly by the 18. Chapter of the Book of Exodus For when it was observed by Jethro his Father in Law that he attended the businesses of the people from morning till night he told him plainly ultra vâ—res sâ—as negotium esse that the burthen was too heavy for him vers 18. and therefore that he should choose some Under-officers and place them over Thousands over Hundreds and ever Fifties and over Tens Vers 21. Leviusque sit tibi partito in alios onere that so it might be the easier for him those officers bearing some part of the burthen with him Yet so that these inferior Officers should only judge in matters of inferior nature the greater matters being still reserved to his own Tribunal Which counsel as it was very well approved by Moses so was it given by Jethro and approved by Moses with reference to the
against it V The principles of Disobedience in the supposal of some popular Officers ordained of purpose to regulate the power of Kings VI How much the practise of CALVINS followers doth differ from their Masters doctrine in the point of Obedience VII Several Articles and points of Doctrine wherein the Disciples of CALVIN are departed from him VIII More of the differences in point of Doctrine between the Master and his Scholars IX The dangerous consequences which arise from his faulty principles in the point or Article of Disobedience X The Method and distribution of the following work CHAP. II. Of the Authority of the Ephori in the State of Sparta and that they were not instituted for the ends supposed by Calvin I The Kings of Sparta absolute Monarchs at the first II Of the condition of that State when Lycurgus undertook to change the Government III What power Lycurgus gave the Senate and what was left unto the Kings IV The Ephori appointed by the Kings of Sparta to ease themselves and curb the Senate V The blundering and mistakes of Joseph Scâ—liger about the first institution of the Ephori VI The Ephori from mean beginnings grow to great Authority and by what advantages VII The power and influence which they had in the publick Government VIII By what degrees the Ephori incroached on the Spartan Kings IX The insolencies of the Ephori towards their Kings altered the State into a Tyranny X The Spartan Kings stomach the insolencie of the Ephori and at last utterly destroy them XI An application of the former passages to the point in hand CHAP. III. Of the Incroachment of the Tribunes on the State of Rome and that they were not instituted for the ends supposed by Calvin I The Tribunes of the People why first instituted in the State of Rome II The Tribunes fortifie themselves with large immunities before they went about to change the Government III The Tribunes no sooner in their Office but they sâ—t themselves against the Nobility and the Senate contrary to the Articles of their Institution V The many and dangerous Seditions occasioned by the Tribunes in the City of Rome VI The Tribunes and the People doe agree together to change the Government of the State VII By what degrees the People came to be possessed of all Offices in the State both of Power and Dignity VIII The Plots and practises of the Gracchi to put the power of Judicature and Supreme Majesty of the State into the hands of the People IX The Tribunes take upon them to commit the Consuls and bring all the Officers of the State under their command X The Office and Authority of the Tribunes reduced unto its antient bounds by Cornelius Sylla and at last utterly destroyed XI An Application of the former passages to the point in hand CHAP. IV. Of what Authority the DEMARCHI were in the State of ATHENS and of the danger and unfitness of the instances produced by CALVIN I Athens first governed by Kings and afterwards by one Sâ—veraign Prince under other Titles II The Annual Magistrates of Athens what they were and of what Authority III By whom and by what degrees the State of Athens was reduced to Democratie IV Of the Authority of the Senate and the famous Court of the Areopagites V What the Demarchi were in the State of Athens and of what Authority VI The Demarchi never were of power to oppose the Senate nor were ordained to that end VII Calvins ill luck in making choice of three such instances which if true would not serve his turn VIII The danger which lieth hidden under the design of such Popular Magistrates as are here instanced in by Calvin IX What moved Calvin to lay these dangerous Stumbling blockt in the Subjects way X The dangerous Seditions and practises which have hence â—nsued in most parts of Europe XI The Sectâ—â—f Calvin professed Enemies to Monarchy and the Power of Princes CHAP. V. What are the Three Estates in each several Kingdom of which CALVIN speaks and what they are particularly in the Realm of ENGLAND I Of the division of a people into Three Estates and that the Priests and Clergy have been always one II The Priests imployed in Civil Matters and Affairs of State by the Egyptians and the Persians the Greeks Gauls and Romans III The Priests and Levites exercised in Affairs of Civil Government by Gods own appointment IV The Prelates versed in Civil Matters and Affairs of State in the best and happiest times of Christianity V The Clergy make the third Estate in Germany France Spain and the Northern Kingdoms VI That antiently in the Saxons times the Ecclesiasticks of this Realm were called to all publick Councels VII The Prelates an essential fundamental part of the English Parliament VIII Objections answered and that the word Clerus in the Legal notion doth not extend unto the Prelates IX That the inferior Clergy of the Realm of England had antiently their votes in Parliament to all intents and purposes as the Commons had X Objections answered and that the calling of the Clergy to Parliaments and Convocations were after different manners and by several Writs XI The great Diffranchisement and Slavery obtruded on the English Clergy by the depriving of the Bishops of their Votes in Parliament XII A brief discussion of the question Whether that any two of the three Estates conspiring or agreeing together can conclude any thing unto the prejudice of the third CHAP. VI. That the three Estates of every Kingdom whereof CALVIN speaks have no authority either to regulate the power or controll the actions of the Soveraign Prince I The Bishops and Clergy of England not the King make the third Estate and of the dangerous consequences which may follow on the contrary Tenet II The different influence of the three Estates upon conditional Princes and an absolute Monarch III The Sanhâ—drim of no authority over the persons or the actions of the Kings of Judah IV The three Estaâ—es in France of how small authority over the actions of that King V The Kings of Spain not over-ruled or regulated by the three Estates VI Of what authority they have been antiently in the Parliaments of Scotland VII The King of England always accounted heretofore for an absolute Monarch VIII No part of Soveraigntie invested legally in the English Parliaments IX The three Estates assembled in the Parliament of England subordinate unto the King not co-ordinate with him X The Legislative power of Parliaments is properly and legally in the King alone XI In what particulars the power of the English Parliaments doth consist especially XII The Kings of England ordinarily over-rule their Parliaments by themselves their Counsel and their Judges XIII Objections answered touching the power and practise of some former Parliaments and the Testimonies given unto them XIV No such Authority given by God in holy Scripture to any populâ—r Magistrates as Calvin dreams of and pretends XV The Application and Conclusion
25. His Scholars sing another song and use all arts imaginable to excite the people to rise against them and destroy them The Author of that scandalous and dangerous Dialogue entituled Eusebius Philadelphus doth expresly say that of all good actions the murther of a Tyrant is most commendable r Euseb Philadelph Dial. Buchannan accounts it a defect in Polities proemia eorum interfectoribus non decerni Å¿ Buchannan de jure regni that publick honors and rewards are not propounded unto such as shall kill a Tyrant and some late Pamphleters conclude it lawful to rebel in the case of tyrannie because forsooth If a King exercising tyrannie over his subjects may not be resisted that is to say if the subject may not take up Arms against him he and his followers may destroy the Kingdom And now we are fallen upon the business of resistance CALVIN allows of no case for ought I can see in which the Subject lawfully may resist the Soveraign quandoquidem resisti magistratui non potest quin simul resistatur Deo t Sect. 23. for as much as the Magistrate cannot be resisted but that God is resisted also and reckoning up those several pressures whereof Samuel spake unto the Jews and which he calls jus Regis as himself translates it he concludes at last cui parere ipsi necesse esset nec obsistere liceret u Sect. â—6 that no resistance must be made on the Subjects part though Kings entrench as much upon them both in their liberties and properties as the Prophet speaks of His Scholars are grown wiser and instruct us otherwise Paraeus saith that if the King assault our persons or endevour to break into our houses we may as lawfully resist him as we would do a Theif or Robber on the like occasions x Paraeus in Rom. cap. 13. And our new Masters have found out many other Cases in which the Subject may resist and which is more then so is bound to do it as namely in his own behalf and in Gods behalf in behalf of his Countrey and in behalf of the laws and in so many more behalfs that they have turned most Christian Kings out of half their Kingdoms But to go on CALVIN determines very rightly that notwithstanding any contract made or supposed to be made between a King and his people yet if the King do break his Covenants and oppress the subject the subject can no more pretend to be discharged of his Allegiance then the wife may lawfully divorce herself from a froward husband or children throw aside that natural dutie which they owe their Parents because their Parents are unkinde and it may be cruel Those which doe otherwise conclude from the foresaid contract he calls insulsos ratio cinatores y Sect. 29. but sorrie and unsavorie disputants and reckoneth it for a seditious imagination that we must deal no otherwise with Kings then they do deserve nec aequum esse ut subditos einos praestemus qui vicissim Regem nobis non se praestet z Sect. 27. or to imagine that it is neither sense nor reason that we should shew our selves obedient subjects unto him who doth not mutually perform the dutie of a King to us His Scholars are grown able to teach their Master a new lesson and would tell him if he were alive that there is a mutual contract between King and Subjects and if he break the Covenant he forfeiteth the benefit of the Agreement and he not performing the dutie of a King they are released from the dutie of subjects As contrary to their Masters Tenet as black to white and yet some late Pamphlets press no doctrine with such strength and eagerness as they have done this Nor have the Pulpits spared to publish it to their cheated Auditories as a new Article of faith that if the Ruler perform not his dutie the contract is dissolved and the people are at liberty to right themselves What excellent uses have been raised from this dangerous doctrine as many Kings of Christendom have felt already so posteritie will have cause to lament the mischiefs which it will bring into the world in succeeding Ages Finally CALVIN hath determined and exâ—eeding piously that if the Magistrate command us any thing which is contrarie to the Will and Word of God we must observe S. Peters rule and rather choose to obey God then men and that withaâ—l we must prepare our selves to endure such punishments as the offended Magistrate shall inflict upon us for the said refusal Et quicquid potius perpeti quam a veritate defiectere a Sect. 32. and rather suffer any torments then forsake the way of Gods Commandements The Magistrate as it seems by him must at all times be honoured by us either in our active obedience or in our passive if we refuse to do his will we must be content to suffer for it His Scholars are too wise to submit to that and are so far from suffering for the testimony of the Gospel and a good conscience that they take care to teach the people that it is lawful to rebel in behalf of God to preserve the true religion when it is in danger or when they think it is in danger by force of Arms and to procure the peace of Hierusalem by the destruction of Babylon Which being so the difference being so great and irreconcileable between the Followers and their leader in the point of practise between the Master and the Scholars in the points of doctrine me thinks it were exceeding fit the man were either less admired or better followed that they who cry him up for the great Reformer would either stand to all his Tenets or be bound to none that they would be so careful of the Churches peace and their own salvation as not to swallow down his errors in his points of discipline and pass him by with a Magister non tenetur when he doth preach obedience to them and doth so solidly discourse of the powers of Government b Tully Philip. 2. Aut undique religionem suam tollant aut usquequaque conservent as Tully said of Antony in another case But of this no more 9. Hitherto CALVIN hath done well few better of the Genevian Doctors none ne unus quidem not so much as one But there 's an herb which spoils the pottage an HERB so venomous that it is mors in olla unto them that taste it The figs in the next basket are evill Ierem. 24. very evill not to be eaten as it is in the Prophets words they are so evill In that before he did exceeding soundly and judiciously lay down the doctrine of obedience unto Kings and Princes and the unlawfulness of Subjects taking Arms against their Soveraign In this to come he openeth a most dangerous gap to disobedience and rebellions in most States in Christendom in which his name is either reverenced or his works esteemed of For having fully
Sparta and that they were not instituted for the ends supposed by Calvin I The Kings of Sparta absolute Monarchs at the first II Of the declining of the Regal power and the condition of that State when Lycurgus undertook to change the Government III What power Lycurgus gave the Senate and what was left unto the Kings IV The Ephori appointed by the Kings of Sparta to ease themselves and curb the Senate V The blundering and mistakes of Joseph Scaliger about the first Institution of the Ephori VI The Ephori from mean beginnings grew to great authoritie and by what advantages VII The power and influence which they had in the publick Government VIII By what degrees the Ephori incroached on the Spartan Kings IX The insolencies of the Ephori towards their Kings altered the State into a Tyrannie X The Spartan Kings stomach the insolencie of the Ephori and at last utterly destroy them IX An application of the former passages to the point in hand I. I Know it is conceived by some that the Kings of Sparta were but titularie a Unlawfulness of resistance p. 90. that they were little more then Subjects at best of no more power and influence in the publick Government then the Duke of Venice at this day in that Republick And to say truth they were but little better in the latter times though not altogether so restrained after Lycurgus first and the Ephori afterwards had by their power and practises intrenched upon them and pared away so many of the fairest Jewels in the Regal Diadem But ab initio non fuit sic it was not so from the beginning the Spartan Kings being at first as absolute Monarchs as any other of those times ubi addictius regnabantur b Tacit. Annal. when men were most devoted to the will of Princes For if we look into the antient stories of the States of Greece it will there be found that at the return of the Heraclidae into Peloponnesus under the conduct of Temenus Ctesiphon and Aristodemus the sons of Aristomachus of the race of Hercules Temenus possessed himself of Argos Ctesiphon of Messene and Aristodemus conquered the City and Dominion of Sparta which dying very shortly after he left unto his two sons Eurysthenes and Procles c Pausanias in Lacon l. 3. with the authority and name of Kings So that acquiring the estate by conquest and claiming by no other Title then by that of Arms there is no question to be made but that they governed in the way of absolute Monarchs it being not the guise of such as come in by conquest to covenant and capitulate with their Subjects but to impose their will for a law upon them In the first times and in Dominion so acquired Arbitria Principum pro legibus erant d Justin hist l. 1. as we read in Justine 'T is true the Royal Familie was divided from the very first into two Regal Stems or Branches both honoured with the name of Kings both ruling the Estate in common by their mutual Counsels of which the eldest house was that of Agidae so called from Agis son and Successor unto Eurysthenes the second that of the Eurypontidae denominated from Eurypon the third from Procles e Pausanias l. 3. It was appointed so to be by Aristodemus confirmed by the Oracle of Apollo and so continued till the subjugating of all Greece to Macedon But this concludes no more against absolute Monarchie then if it should be said on the like occasion that the Roman Emperors were no Monarchs or that State no Monarchie because Carus and Numerianus Diocletian and Maximianus Constantius and Maximinus ruled the same together as after Valentinian and his Brother Valens and the two sons of Valentinian and Theodosius did by their example And so it seems it was conceived by Cleomenes who having rooted out the Ephori and being grown almost as absolute in the State of Sparta as any of his Predecessors caused his Brother Euclidas upon the expiration of the Eurypontidae to be made King with him f Plutarch in Agis Cleomen which certainly he would not have done had he believed that the assuming of a partner would have made him less For that the Spartan Kings were as absolute Monarchs as any others of those times when there was almost no form of Government in the world but that doth appear by Plutarch where speaking of the condition of that Government in the time of Eurypon whom he calls Eurytion he saith that it was 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 g Plutarch Lycurgo sufficiently Monarchical if it were not more And hereto Aristotle doth agree who stiles the Government of Sparta under Charilaus before whose times by reason of the negligence and connivence of some former Kings the people were become too head-strong to be kept in order by the name of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 h Aristot Polit. lib. 5. cap. 12. the tyrannie or absolute command of Charilaus in the State of Sparta But whatsoever it was in the first foundation it held not very long in so good condition For Eurypon the Nephew of Procles 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i Plutarch in Lycurg affecting to be plausible and gracious with the common people improvidently let loose the reigns of Government and was the first that laid aside that sole and absolute power of a King whereupon followed great disorder and distraction which continued long For the people finding themselves at liberty became very bold and disobedient some of the Kings which did succeed being hated to the very death because they did indevour the recovery of their old authoritie others being forced to dissemble and wink at any thing either in hope thereby to gain the love of the people or because indeed they were not strong enough to rule them And this did so increase the stomach of the dissolute and rebellious multitude that Eunomus the Father of Lycurgus being the fifth King from Procles and the third from Eurypon was slain amongst them in a tumult At such a dear and costly rate did Eurypon procure the favour and good will of the rascall rabble by which he purchased nothing but the losse of Royalty besides the empty honour of having the second house of the Royal Family to be called by his name the Eurypontidae Things growing thus from bad to worse and both the Kings and people waxing weary of that disorder and confusion which did reign amongst them both parties cast their eyes upon Lycurgus of whose integrity and wisdome they had conceived a great opinion For the people finding that their Kings had nothing but the name and title 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and nothing else whereby they differed from the rest sent many a several message to him to require his counsel And on the other side the Kings were as desirous that he should return being then gone abroad to travel in hope that the authority of his presence would bridle and restrain
the people from their insolency and disobedience towards them k Id. ibid. But herein they were both deceived For Lycurgus seeing how things stood resolved to apply himself to neither party but presently began to project and cast how he might change and alter the whole frame of Government which to effect he armed himself and his Associates and possessed the market-place and so proceeded to the alteration which he meant to make l Id. ibid. et in Agis Cleomen Charilaus who was then King being forced to fly for sanctuary to the Temple of Juno But Plato saith there was another motive which induced him to attempt this change which was the ill success the other Kings his kindred of the house of Hercules had found at Argos and Messene where by degrees degenerating from a Monarchy unto a Tyranny they were in a fair way 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to overthrow themselves their subjects and their whole estates To prevent this at Sparta which he dearly loved and to preserve his Family and the State together 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 m Pâ—at Epist 8. he set up the authority of the Senate as the only medicine to cure the miserable distemper which the State was in So far and somewhat further Plato of which more anon 3. What the authority and power of this Senate was we see best from Plutarch n In Lycurgo 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. In this change of State saith he which Lycurgus made his chiefest alteration was in the constitution of a Senate which he made to have a Regal power and equal authority with the Kings in matters of the greatest weight and importance and was to be the healthful counterpoise of the whole body of the Common-wealth The other State before was ever wavering sometimes inclining to tyrannie when the Kings were too mighty and sometimes to confusion when the people did usurp authority between which two the Senate was ordained as the fittest medium to keep even the scale and fortifie the State of the Common-wealth For taking sometimes the Kings part when it was needfull to pull down the fury of the people and sometimes holding with the people against the Kings to bridle their tyrannical Government they were the means that neither of the two did oppress the other This Court or Senate had the supreme direction and command in all things of moment which did concern the Common-wealth both for peace and war and had the highest jurisdiction and dernier resort from which there could be no appeal in which regard Pausasanias cals it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 o Pausanias in Lacon l. 3. the soveraign Court of the Republick It consisted of 28. Senators all chosen out of the Nobility and chief men of the City who together with the two Kings who were allowed their voices in it made up thirty in all and unto these it did belong to call the assemblies of the people to propound that to them which they thought convenient and to dissolve them too when they saw occasion p Plutarch ibid. But for the people so assembled it was not lawful for them to propound any thing to be debated or determined nor to deliver their opinion in the point proposed there being nothing left to them but to testifie their assent to the propositions which either by the Senate or the two Kings had been made unto them So that whatever the Kings lost the people got little by the alteration being left out of all imployment in affairs of State and forced to yeeld obedience unto thirty Masters whereas before they had but two And as for the authority which remained unto the Kings it consisted especially in the conducting of the Armies and the supremacy in matters that concerned Religion for this hath alwaies gone along with the Kingly office 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. q Xenophon de Repub. Lacedamon For it was ordered by Lycurgus that the King should offer sacrifice for the prospetity of the Common-wealth when the necessity of their affairs did require the same as one descended from the gods that they should participate of the thing sacrificed when the gods were served and have a pig of every litter that they might never want a sacrifice if upon any sudden accident the gods were to be advised withall 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. It also appertained to them to command the Armies as oft as they were sent abroad on any military imployment and had a Pavilion allowed them at the publick charge for entertainment of such company as repaired unto them In these two points the honour and authority of the Kings consisted principally which Aristotle also hath observed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 r Aristot Politic l. 3. c. 10. Supremacy in Divine command in Military matters was all in which they differed from the other Senators and this command I mean in military matters was both perpetual and hereditary as the same Author tels us there and in other places s Id. ibid. l. 2 c. 7. l. 3. c. 11. For matters which were meerly honourary they had some prerogatives the Kings being allowed a double Messe in all their Ordinaries the Senators and all the pople arising from their seats to do him reverence when he came amongst them yeelding him more then humane honours when he was deceased as to a Demi-god at least And for their maintenance and support when they were alive there was allotted to them a proportion of the richest lands in many of the Villages and fields adjoyning t Xerophon in Repub. Lacedaem enough to keep them out of want though not sufficient to make them either rich or powerful 4. The royalty and power of the Kings being thus impaired the people absolutely discharged from having any hand at all in the publick Government and the authority of the Senate growing every day more insolent and predominant then at first it was by reason that they held their place for term of life as we finde in u Plutarch in Agesilao Plutarch the Kings resolved upon a course of putting the people into such condition as might inable them to curb and control the Senators To this end Theopompus the ninth King of the second house with the consent of Polydorus his Associate ordained certain Officers being five in number x Aristot Pol. l. 2. 8. and chosen out of the body of the common people y Id. Polit. l. 2. c. 7. and annually renewed or changed as occasion was z Plutarch in Agesilao to whom authority was give 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 even in the highest points and of most importance as we are told by Aristotle a Aristot Politic l. 2. c. 7. and shall see anon These Offices he caused to be called by the name of Ephori that is to say the Overseers and Superintendents of the State 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 b Snidas because they had the charge and oversight of the
Commonwealth And as amongst the Archontes in the State of Athens which were nine in number one of them was called the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or the Archon in the way of excellency after whose name the year was called and their reckonings made as Titio Sempronio Coss in the State of Rome so had the Ephori their Eponymus one who by way of eminency was called the Ephorus c Pausan lib. 3. in Lacon But for this first reason of their institution take it thus from Plutarch d Plutarch in Lycurgo 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Lycurgus having thus tempered the form of his Common-wealth it seem'd notwithstanding unto those which came after him that this small number of thirty persons which made the Senate was yet too mighty and of too great authority Wherefore to bridle them a little they gave them as he cites from Plato a bit in their mouthes which was the authority of the Ephori erected in the time of King Theopompus about 130 years after the death of Lycurgus A second reason which induced those Kings to ordain these Ephori was to ease themselves and delegate upon them that remainder of the Royal power which could not be exercised but within the City For the Kings having little or no command but in wars abroad cared not for being much at home and thereupon ordained these Officers to supply their places Concerning which Cleomenes thus discourseth to the Spartans e Id. in Agis Cleomenes after they had destroyed the Ephori and suppressed the Office informing them that Lycurgus had joyned the Senators with the Kings by whom the Common-wealth was a long time governed without help of any other Officers that afterwards the City having great wars with the Messenians the Kings were alwaies so imployed in that war that they could not attend the affairs of the State at home and thereupon made choice of certain of their friends to sit in judgement in their stead whom they called the Ephori 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and for a long time did govern only as the Kings Ministers though afterwards by little and little they took unto themselves the supreme authority Another reason hath been given of the institution which is that if a difference grew between the two Kings in a point of judgement there might be some to arbitrate between them and to have the casting voice amongst them when the difference could not be agreed And this is that which Lisander and Mandroclidas two that had been Ephori suggested unto Agis and Cleombrotus the two Kings of Sparta declaring f Id. ibid. That the office of the Ephori was erected for no other reason 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. But because they should give their voices unto that King who had the best reason on his side when the other would wilfully withstand both right and reason and therefore that they two agreeing might lawfully do what they would without controlment that to resist the Kings was a breach of law considering that the Ephori by law had no power nor priviledge but only to arbitrate between them when there was any cause of jarre or controversie And this was so received at Sparta for an undoubted truth that Cleomenes being sole King upon the death of Agis of the other house recalled called Archidamus the brother of Agis from his place of banishment with an intent to make him King not doubting but they two should agree together and thereby make the Ephori of no power nor use So then we have three reasons of the institution and more then these I cannot finde of which there is not one that favoureth the device of CALVIN or intimateth that the authority of the Ephori was set up to pull down the Kings And to say truth it is a most unlikely matter that the Kings of Sparta having so little power remaining should need more Officers to restrain them then they had before that they should make a new rod for their own poor backs and add five Masters more to those eight and twenty which Lycurgus had imposed upon them Which makes me wonder much at Tully who doth acknowledge that the Ephori were ordained by Theopompus as both Aeristotle h Aristot Polit. l. 5. c. 11. and Plutarch do affirm and yet will have them instituted for no other cause nisi ut oppositi sint Regibus but to oppose and curb the Kings i Cicero de legibus l. 3. but more that Plato who had so much advantage of him both in time and place should ascribe the institution to Lycurgus and tell us that he did not only ordain the Senate 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 k Plato Ep. 8. edit gr lat To. 3. but that he did also constitute the Ephorate for the strength and preservation of the Regal power 5. For out of doubt it is affirmed by Plutarch l Plut. in Lycurgo confirmed by Scaliger m Scalig. animadvers in Euseb Chron. and may be gathered from some passages in Eusebius Chronicon and the authoritie of Aristotle who refers the same to Theopompus as before was shewed that the first Institution was no less then 130 years after the death of Lycurgus Who was the first that bore this Office hath been made a question but never till these later times when men are grown such Sceptics as to doubt of every thing Plutarch affirms for certain n Plutarch in Lycurgo 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that the first Ephorus that is to say the first 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 who had the name of Ephorus by way of excellencie for otherwise there were five in all was called Elatus and hereto Scaliger did once agree as appears expressly pag. 67. of his Annotations on Eusebius where he declares it in these words Primus Elatus renunciatur 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But after having a desire to controll Eusebius he takes occasion by some words in Diogenes Laertius to cry up Chilo for the man first positively Primus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 fuit Chilon and next exclusively of Elatus Quibus animadversis non fuerit Elatus primus Ephorus sed Chilon To make this good being a fancie of his own and as his own most dearly cherished he produceth first the testimony of Laertius and afterwards confirms the same by a new emendatio temporum a Calculation and accompt of his own inventing The words produced from Laertius are these verbatim 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 o Diogen Laeâ—t l. 1. in Chilo Which is thus rendred in the Latine and I think exactly Fuit autem Ephorus circa quinquagesimam quintam Olympiada Porro Pamphila circa sextam ait primumque Ephorum fuisse sub Euthydemo autore Sosicrate primumque instituisse ut Regibus Ephori adjungerentur Satyrus Lycurgum dixit If it be granted in the first place that Chilo was not made Ephorus until the 55 Olympiad as 't is plain he was not and Scaliger affirms as much it must
needs follow upon true account that either Chilo was not the first Ephorus or that the Ephori were not instituted in more then twice an hundred and thirtie years after Lycurgus had new molded the Common-wealth contrary unto that which is said by Plutarch and out of him repeated by Joseph Scaliger For from the time wherein Lycurgus made his Laws which was in the 25 year of Archelaus the eighth King of the elder house unto the death of Alcamenes which was the year before the first Olympiad p Euseb Chron. lib. post p. 114. of Scaligers edit were 112 years just none under From thence unto the last year of the 55. 220 years complete which put together make no fewer then 332 years full a large misreckoning Whereas the second year of the fifth Olympiad in which Eusebius puts the Institution of the Ephori both in the Greek and Latine Copies set out by Scaliger himself q Pag. 115. of the Latine 35. of the Greek Edition that second year I say being added to the 112 before-remembred in which King Alcamenes died makes up the full number of 130 which we finde in Plutarch and agrees punctually with the time of Theopompus who as it is confessed by Scaliger did first ordain them Nor doth Laertius say if you mark him well either that Chilo was the first that was ever Ephorus or the first that joyned the Ephori to the Kings of Sparta both which absurdities are by Scaliger imposed upon him For unto any one who looks upon Laertius with a careful eye it may be easily discerned that he speaks no otherwise of the Ephorate then of an Office instituted a long time before with the condition of the which Chilo was well acquainted and therefore thought himself more fit to undergo it then his Brother was who very earnestly desired it r Laertius in visa Chilon All that Laertius saith is no more but this that Chilo was made Ephorus first not the first Ephorus which was made as Scaliger would have it under Euthydemus and that as Satyrus affirmed who therein questionless was misled by Plato Lycurgus was the first who joyned the Ephori to the Spartan Kings which words viz. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he hath left out of purpose to abuse his Author and make him speak the thing which he never meant His other blunderings and mistakes to make good this business first laying the dissolution of the Ephorate by Cleomenes non multo ante vel post initium Philippi s Pag. 67. of the Animadvers either not long before or shortly after the beginning of the reign of Philip the last King of Macedon but one which indeed is true and within nine lines no more laying it in the 13. year of the self same King Philip most extremely false the changing of his Authors words from Fuit autem sub Regibus Lacedaemon annis 350 as they occur in the Translation of S. Hierom printed at Basil into Fuit sub Regibus Lacedaemoniorum Annis 350 against the Authors minde and the rules of Grammar only to bring about his device of Chilo and blinde his Readers eyes with a new Chronologie and others I could point to if my leisure served I purpose to forbear at the present time Nor had I been so bold with Scaliger at all or at least not now but that the proud man is more bold with the Antient Fathers whom he is pleased to look on with contempt and scorn as often as they come before him for which see pag. 255 of his Annotations And so I leave him with that censure which he gives Eusebius as learned and industrious an Antiquarie as any Scaliger of them all no man dispraised Erratis hujus Autoris enumerandis charta non suffecerit t Animadvers in Euseb p. 255. and so fare him well 6. But to proceed the Ephori being thus ordained by Theopompus became not presently of such authority and power as by degrees they did attain to For being chosen by the Kings as their proper Ministers as before was said and many times 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 even from their very neerest friends as we read in Plutarch u Plutarch in Agis Cleomen they were hard thrust at by the Senate and forced to put up many an affront from that mightier body And this was it that Chilo aimed at when he told his Brother who at the same time desired the Office and seemed offended that he lost it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 x Laertius in vita Chilon that he was better skilled in bearing injuries and affronts then his Brother was But this continued for no longer then whilest the Kings served their turns upon them to oppose the Senate and kept the nomination of them in their own hands For afterwards the Kings relinquishing the election to the common people upon a forlorn hope of gaining their affections by so great a benefit they began to set up for themselves and in a very little time gained all the custom of the City And of this new election I am apt to think that Chilo whom before we spake of was the first 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Which I propose not so much out of a desire to comply with Scaliger who for ought I can see aimed at no such matter as on the credit of Eusebius whom he so much slighteth For in Eusebius Chronicon of Joseph Scaligers own Edition after he hath put down the institution of the Ephori in the second of the fifth Olympiad as before I told you he gives this Item in the third of the five and fiftieth which is the very same that Laertius speaks of Chilo qui de Septem Sapientibus fuit Lacedaemone Ephorus constituitur y Euseb Chronic. lib. poster p. 127. dispositione communus gentis that Chilo one of the seven wise Masters was ordained Ephorus at Sparta by the general consent of all the people But whether this were so or not I am not able to determine absolutely All I observe from hence is this that it is past all question that from this time they took upon them more then they had done formerly and were intent on all advantages to improve their power For whereas at the first they were appointed by the Kings to sit in judgement in their steeds as before was said by little and little 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 z Plutarch in Agis Cleom. they drew that power unto themselves and exercised it in their own name by their own authoritie not as the Ministers of the Kings they would none of that but as the Officers of the Common-wealth And to that end they did erect a Court of Judicature which for power and greatness of authoritie was little inferiour to the Senate drawing unto them all such businesses as were 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Pausan l. 3. in Laconicis most worthy of care and consideration By means whereof as they drew many of the people to depend
this means he hoped to leave it stronger and more durable then it was before But the event declared unto all the world that the woman was the better Prophet and had the greater insight into things to come The power of Soveraigntie when once communicated to the common people or otherwise usurped by such popular Officers as depend wholly on the people for their place and being is seldom times recovered into Regal hands And though some Kings may be perswaded by some subtile artifices as it seems Theopompus was that by this means the Chair of State will stand the faster yet the proceedings of the Ephori in the State of Sparta will inform us otherwise and easily lay open the apparent danger of such weak surmises For being made Officers of State one of the first points they obtained was that the Kings made Oath unto them once in every moneth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 q Xenophon de Repub. Laced that they would govern the Estate according to the laws established in the Common-wealth and that they would preserve the Kindom in the best condition that they could the Ephori making oath to them in the name of the Citie whose Officers they were and by whom intrusted Next they attempt to place such Counsellors about the Kings as they might confide in beginning with such Kings as were under Age and the first trial which they made was in appointing one Cleandrides to be about King Plastonax the 19. of the elder House as his chief Counsellor and Director without whose approbation nothing must be done r Plutarch in Pericles Another of their usurpations and incroachments was to restrain their Kings in the point of marriage and to impose some fine or disgrace upon them if they presumed to marrie against their liking Anaxandrides the 15. of the elder house had married a Lady of brave parts but it was her ill fortune to be barren a long time together The Ephori command him without more ado 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 s Pausan lib 3. in Lacon to give her a Bill of divorce and send her going Archidamus the 17. of the second House maried a wife which brought him children But fault was found she was too little and thereupon the Ephori condemned him in a sum of money saying 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that she would not bring them Kings but demy Kings t Plutarch in Agesilao And that you may perceive how difficult a thing it was to please them in this point Leonidas had married one that was neither barren nor too little and yet was quarrelled by the Ephori and in fine condemned for marrying with a woman of another Nation u Id. in Agis Cleomenes The fundamental laws of Sparta conferred upon the Kings the Supreme command over the Militarie men in all wars abroad The Ephori did not only dispose it otherwise and gave it unto such whom they desired to oblige unto them as you heard before but kept the Kings at such a bay that they neither could lead forth the Armies without their consent nor tarrie longer in the camp then they liâ—t to let them and if the action did miscarrie the Kings were either fined or imprisoned for it Agesilaus being a very stirring Prince and desirous to get honor in the wars was not permitted to set forwards till he had bought the Ephori with a sum of money x Id. in Agesilaâ— and yet being in the height of his good success was called bâ—ck again and glad to be conformable to the said commands And so it fared with Agis and Cleomenes both on the like occasions And for the fining of their Kings besides what we have seen before in the former instances Plistoâ—ax being betrayed by Cleandrides whom the Ephâ—ri themselves had placed about him and his Army forced to disband and turn home again is presently condemned in so great a sum that he was not able to discharge it y Id. in Periâ—les By means whereof the Kings were brought at last unto that condition 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as Aristotle truly noteth z Aristot Polit. l. 2. cap. 7. that they were forced to court and bribe the Ephori upon all occasions to the great disservice of the State and sometimes to the fatal overthrow of their chief designes So that it is no marvail if considered rightly either that the Ephori kept their state and rose not up to reverence their King when he came before them though all the residue of the people and the Senate did it as we read in Xenophon a De Repub. Lacedaem or that Agesilaus used to rise up to them as often as they came unto him about any business as we finde in Plutarch b Plut. in Agesilaâ— or that the Kings esteemed it such a point of Soveraigntie that when they were commanded to attend the Ephori 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 they did refuse to goe upon the first and second summons and stirred not till the third command as Cleomenes bragged in the said Historian c Id. in Agis and Cleomen Which trust me was a point of no small importance 9 And yet they staid not here they went further still They thought it not enough to condemn their Kings in vast and unproportionable sums of money unless they laid restraints on their persons also and had command upon their bodies And therefore it is noted by Thucydides not without good reason that they did not only punish with imprisonment their great and principal Commanders 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 d Thucydid hist l. 1. but that it was lawful for the Ephori to do the like unto their Kings Which to avoid Pausanias was inforced to retire himself and live a voluntary exile in another Countrey e Plutarch in Lysander Nothing remains but they take authoritie to depose and in fine to murther them and if they gain not this all the rest is nothing And this they are resolved to gain or be folulie foiled nor did they fail in the attempt when they went about it They quarrelled at Leonidas as before I told you for marrying with a woman of another Countrey without so much as seeking for their approbation And that they may be sure to effect their business Religion is pretended and a star must fall only to warrant their proceedings Which preparations being past they cite him to appear before them and on default of his appearance they deposed him instantly and conferred the Kingom on Cleombrotus f Id. in Agis Cleomenes Bâ—t these men being out of Office he came out of Sanctuarie and was restored again by the next years Ephori Who to make proof that their anthoritie was as great as their Predecessors thought it not argument enough to restore one King except they did depose and destroy another And thereupon laid hands on Agis of the other House and inhumanelie haled him to the common Prison and there most barbarously murdered him with his
been employed in the like affairs under the Gospel of Christ and that too in the best and happiest times of the Christian Church In search whereof it is not to be looked for by the ingenuous Reader that we should aim fo high as the first 300 years after Christs Nativitie The Prelates of the Church were suspected then to have their different aims and interesses from those who had the government of the Civil State and therefore thought uncapable of trust and imployment in it But after that according to that memorable maxime of Optatus Ecclesia erat in Republicâ i Deschismat Denâ—â—â—st l 3. the Church became a part of the Commonâ—wealth and had their ends and aims united there followed these two things upon it first that the Supreme Government of the Church depended much upon the will and pleasure of the Supreme Magistrate insomuch as Socrates observeth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 k Socrat. Eccl. hist lib. 5. c. 1. that the greatest Councels have been called by their authoritie and appointment And 2 ly that the Governours and Rulers of the Church of God came to have place and power in disposing matters that appertained to the well ordering of the Civil State And this they did not out of any busie or pragmatical desire to draw the cognizance of secular causes into their own hands or to increase their power and reputation with the common people but meerly for the ease and benefit of those who did repair unto them for their help and counsel and to comply with the command of the Apostle who imposed it on them S. Austin tells us of S. Ambrose with how great difficultie he obtained an opportunitie of conversing with him privately and at large as his case required Secludentibus â—um ab ejus aure atque ore catervis negociosorum hominum the multitude of those who had business to him l August Confes l. 6. c. 3. and suits to be determined by him debarring him from all advantages of access and conference Which took up so much of his time that he had little leasure to refresh his body with necessary food or his minde with the reading of good Authors And Posidonius telâ—s us of S. Austin causas audisse diligenter piè that he diligently and religiously attended such businesses as were brought before him not only spending all the morning in that troublesome exercise m Posidon in vita August c. 19. but sometimes fasting all day long the better to content the suitor and dispatch the business The like S. Austin tells us of himself and his fellow Prelates first that the Christians of those times pro secularibus causis suis nos non raro quaererent n August in Psalm 1 8. serm 74 Epist 147. did ordinarily apply themselves unto them for the determing of secular causes and cheerfully submitted unto their decisions next that the Prelates did comply with their earnest solicitations and desires therein Tu multuosissimas causarum alienarum perplexitates patiendo o Id. de opeâ—e Monach c. 29. by intermitting their own studies to ingage themselves in the determining of such secular causes as were brought before them for the contentation of the people and the discharge of their own duty both to God and man And this is that which both S. Ambrose and S. Augustine tell us in their several writings viz. that they did undergoe this trouble for no other reason then out of a conformitie and obedience to the words and intimation of S. Paul 1 Cor. cap. 6. touching the ending of such suits and differences as did arise amongst the Faithful S. Austin saying Constituisse Apostolum talibus causis Ecclesiasticos cognitores p Id. in Psal 118. serm 174. and iisdem molestiis eos affixisse Apostolos q Id. de opere Monach. 29. S. Ambrose that he had undertook the businesses which were brought before him Secundum sacrae formam praeceptionis qua eum Apostolus induebat r Amb. Epist 24. which did impose such a necessitie upon him that he was not able to decline it Both of them doe agree in this and Posidonius doth agree with both in the same particular s Posidon in vita August c. 19. that they were not only warranted but obliged by S. Pauls injunction to undertake the cognizance of such secular causes as were from time to time committed to their care and trust and that they had not done their dutie had they made any scruple of the undertaking But these being only private matters let us next see whether their service was not used in affairs of State and we shall finde that Constantine did always take some Bishops with him when he went to war not only for their ghostly counsel in spiritual matters but for advise in matters which concerned the occasion t Euseb in vita Constant l. 4. c. 54. the prosecution of the war which was then in hand that Ambrose was twice sent Ambassadour from Valentinian the younger to the Tyrant Maximus which he performed to the great contentment of his Prince and the preservation of the Empire u Amb. Epist 27. lib. 5. whereof he gives us an accompt in an express unto the Emperour that when Firmus had rebelled in Africk and saw himself too weak to resist the Forces which were raised against him under Theodosius Antistites ritus Christiani pacem oraturos misit x Ammian Marcel hist l. 29. he sent the African Prelates his Ambassadours to treat of peace that Marutha Bishop of Mesopotamia was in like nature sent to the Court of Persia y Socrat. Eccles hist l. 7. c. 8. in the time of the Emperour Honorius I. as after that Epiphanius Bishop of Ticinum which we now call Pavie employed from the Ligurians to Athalaricus King of the Gothes in Italy from him unto the Court of Burgundie as Cassiodorus and Ennodius doe describe at large that James the godly Bishop of Nisibis a frontier Town against the Persians was also 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 both Governour of the place and Captain of the Souldiers which were there in Garrison z Theodoret. hist Eccl. l. 2. c. 30. and did most manfully defend it against all the force and fury of the Persian Armies An. 338. or thereabouts and finally which was an argument of great power and trust that the Bishops in Justinians time were by him appointed to oversee the Civil Magistrates and to give notice to the Emperour if they failed in any thing which did concern the Government oâ— the Estate in their several places of which the very Edicts are still extant in the Book of Novels a Novel 56. in Append. ad Novel 8. 5 The Prelates being grown into this esteem for their integritie and wisdom with the Roman Emperours it is no wonder if they were imployed in the greatest Offices of trust and counsel after the Empire was dismembred and shared betwixt such several Princes as grew
Repub lib. 3. c. of Curia the Court 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or by way of ominencie consisting of the Clergie the Nobilitie and the Commissioners of the Provinces and most antient Cities But we must tell you by the way that long before the institution of these Courts and long before the division of Spain into so many Kingdomes the Prelates of that Church were of such authority that a chief stroke in the election of their Kings did belong to them For in the eighth Council of Toledo summoned by Recesvinthus the 25. of the Gothish race of the Kings of Spain An. 653. so long agoe in which were present 52 Bishops 12 Abbots and the Delegates or Vicars of ten other Bishops who could not personally attend the service it was ordered with the Kings consent that from thenceforth the Kings of Spain should be elected in the Regal City or in what other place soever the King should happen to decease by the joynt suffrages of the Prelates and the great Lords of the Court Majores Palatii as the Canon calls them i Concil Tolet. VIII Can. 10. But take the whole Canon with you for the more assurance and you finde it thus Abninc ergo deinceps ita erunt in Regni gloria praeficiendi Rectores ut aut in urbe Regia aut in loco ubi Princeps decesserit cum Pontificum Majorumque Palatii omnimodo eligantur assensu But after Spain became divided into several Kingdomes and that each Kingdome had its Court or Curia as they call their Parliament the Clergie were esteemed in each for the third Estate the first indeed of all the three and either in person or by their Proxies made up the most considerable part in those publick meetings For proof of which we need but look into the General history of Spain translated out of French by Grimston and we shall finde a Court or Parliament for the Realm of Aragon consisting of the Bishops Nobles and Deputies of Towns and Commonalties having place in the said Estates conveened by King James at Saragossa Anno 1325. for setling the Succession and declaring the Heir k Gen. hist of Spain l. 14. another at Monson where the Estates of Aragon and Catalogne did conveen together 1236 to consult about the conquest of Valentia l Id. lib. 11. and before that another Assemblie of the Bishops and Noblemen called at Saragossa by Alfonso the Great touching the War against the Moores m Id. lib. 9. And as for the Realm of Naples and Sicily being appends on this Crown there is little question to be made but that the Bishops and Clergie of both enjoyed the place and priviledges of the third Estate both Kingdomes being antiently holden of the Pope and of his Erection and the Italian Bishops as lying directly under his nose more amply priviledged for the most part then in other Countries Thus for Castile we finde a Parliament of Lords Prelates and Deputies of Towns summoned at Toledo by Alfonso the Noble An. 1210. upon occasion of an invasion made by the Moores n Id. lib. 10. another before that at Burgos under the same King Anno 1179. for levying of money on the people to maintain the Wars n that great Convention of the States held at Toledo by Ferdinand the Catholick 1479. for swearing to the succession of his Son Don John in which the Prelates the Nobility and almost all the Towns and Cities which sent Commissioners to the Assembly are expressly named o Id. lib. Thus finally doe we finde a meeting of the Deputies of the three Estates of Navarre at the Town of Tasalla Anno 1481. for preserving the Kingdome in obedience to King Francis Phoebus being then a minor under age p Id. lib. 22. and that the Deputies of the Clergie Nobilitie Provinces and good Towns of Portugal assembled at Tomara An. 1581. to acknowledge Philip the second for their King and to settle the Government of that Kingdome for the times to come q Id. lib. 30. Now let us take a view of the Northern Kingdomes and still we finde the people ranked in the self same manner and their great Councels to consist of the Clergie the Nâ—bilitie and certain Deputies sent from the Provinces and Cities as in those before In Hungarâ—e before that Realm received the Gospel we read of none but Nobiles Plebeii r Bonfinius in hist Hungar. Dec. l. 1. the Nobilitie and common people who did concur to the election of their Kings but no sooner was the Faith of Christ admitted and a Clergie instituted but instantly we finde a third Estate Episâ—opos Sacerdotum Collegia s Id. ibid. Deâ— 2. l. 2. Bishops and others of the Clergie super-added to them for the election of the Kings and the dispatch of other businesses which concerned the publick t Id. Decad. 2. l. 3. as it continueth to this day In Danemark we shall finde the same if we mark it well For though Pontanus seem to count upon five Estates making the Regall Family to be the first and subdividing the Commons into two whereof the. Yeomanry makes one and the Tradesman or Citizen the other u Pontan in Doriae descript yet in the body of the History we finde only three which are the Bishops the Nobility and Civitatum delegati x Id. in histor Rerum Danic l. 7. the Deputies or Commissioners of Towns and Cities Take which of these Accompts you will and reckon either upon Five or on three Estates yet still the Ecclesiastick State or Ordo Ecclesiasticus as himself entituleth it is declared for one and hath been so declared as their stories tell us ever since the first admittance of the Faith amongst them the Bishops together with the Peers and Deputies making up the Comitia or Conventus Ordinum In Poland the chief sway and power of government next to the King is in the Councell of Estate Secundum Regem maxima Augustuissima Senatus autoritas as Thuanus hath it y Thuan. hist sui temp l. 56. And that consisteth of nine Bishops whereof the Archbishops of Guisna and Leopolis make alwaies two of fifteen Palatines for by that name they call the greater sort of the Nobility and of sixty five Chastellans which are the better sort of the Polish Gentry who with the nine great Officers of the Kingdome of which the Clergy are as capable as any other sort or degree of subjects doe complete that Councell The Common people there are in no authority a procuratione Reipub. omnino summota not having any Vote or suffrage in the great Comitia a Thuan. hist sui temp l. 56. or generall Assemblies of the Kingdome as in other places For Sweden it comes neer the government and formes of Danemark and hath the same estates and degrees of people as amongst the Danes that is to say Proceres Nobiles the greater and the lesse Nobility Episcopi Ecclesiastici
the Bishops and inferiour Clergy Civitates universitates the Cities and Towns Corporate for so I think he means by vniversitates as Thuanus b Id. lib. 131. mustereth them And in this Realm the Bishops and Clergy enjoy the place and priviledges of the third Estate notwithstanding the alteration of Religion to this very day the Bishops in their own persons and a certain number of the Clergy out of every Sochen a division like our Rurall Deanries in the name of the rest having a necessary Vote in all their Parliaments And as for Scotland their Parliament consisted anciently of three Estates as learned Camden doth informe us that is to say the Lords spirituall as Bishops Abbots Priors the Temporall Lords as Dukes Marquesses Earles Vicounts Barons and the Commissioners of the Cities and Burroughs c Camden in descript Scotiae To which were added by King James two Delegates or Commissioners out of every County to make it more conforme to the English Parliaments And in some Acts the Prelates are by name declared to be the third Estate as in the Parliament Anno 1597. Anno 1606 c. for which I do referre you to the Book at large 6 And now at last we are come to England where we shall find that from the first reception of the Christian Faith amongst the Saxons the Ecclesiasticks have been called to all Publick Councels and their advice required in the weightiest matters touching the safety of the Kingdome No sooner had King Ethelbert received the Gospell but presently we read that as well the Clergy as the Laity were called unto the Common Councell which the Saxons sometimes called Mycell Synoth the Great Assembly and sometimes Wittenagemots d Coke on Liâ—l 2. sect the Councell or Assembly of the Wise men of the Realm Anno 605. Ethelbertus Rex in fide roboratus Catholica c. Cantuariae convocavit commune concilium â—am Cleri quam populi c. e H. Spelman in Concil p. 126. King Ethelbert as my Author hath it being confirmed in the Faith in the year 605. which was but nine years after his conversion together with Bertha his Queen their Son Eadbald the most Reverend Archbishop Augustine and all the rest of the Nobility did solemnize the Feast of Christs Nativity in the City of Canterbury and did there cause to be assembled on the ninth of January the Common-Councell of his Kingdome aswell the Clergy as the Lay Subject by whose consent and approbation he caused the Monastery by him built to be dedicated to the honour of Almighty God by the hand of Augustine And though no question other examples of this kinde may be found amongst the Saxon Heptarchs yet being the West Saxon Kingdome did in fine prevail and united all the rest into one Monarchy we shall apply our selves unto that more punctually Where we shall finde besides two Charters issued out by Athelstan Consilio Wlfelmi Archiepiscopi mei aliorum Episcoporum meorum f Ap. eund p. 402 403. by the advice of Wlfelm his Archbishop and his other Bishops that Ina in the year 702. caused the great Councell of his Realm to be assembled consisting ex Episcopis Principibus proceribus c. of Bishops Princes Nobles Earls and of all the Wise men Elders and People of the whole Kingdome and there enacted divers lawes for the Weal of his Realm g Apud eund p. 219. Thus do we read that Egbert who first united the seven Kingdomes of the Saxons under the name of England did cause to be conveened at London his Bishops and the Peers of the highest rank pro consilio capiendo adversus Danicos Piratas h Charta Whitlafii Merciorum Regis ap Ingulf to advise upon some course against the Danish Pirates who infested the sea coasts of England Another Parliament or Councell call it which you will called at Kingsbury Anno 855. in the time of Ethelwolph the Son of Egbert pro negotiis regni i Chart. Bertulfi Merc. Regis ap Ingulf to treat of the affaires of the Kingdome the Acts whereof are ratified and subscribed by the Bishops Abbots and other great men of the Realme The same King Ethelwolph in a Parliament or Assembly of his States at Winchester Anno 855. Cum consilio Episcoporum principum k Ingulfi Croyland hist by the advice and counsell of the Bishops and Nobility confirmed unto the Clergy the tenth part of all mens goods and ordered that the Tithe so confirmed unto them should be free ab omnibus secularibus servitutibus for all secular services and impositions In the reigne of Edred we finde this Anno 948. In Festo igitur nativitatis B. Mariae cum universi Magnates regni per Regium edictum summoniti tam Archiepiscopi Episcopi ac Abbates quam caeteri totius regni proceres optimates Londoniis convenissent ad tractandum de negotiis publicis totius Regni l Id ibid. p. 497 edit Lond. viz. That in the Feast of the Nativity of the blessed Virgin the great men of the Realm that is to say Archbishops Bishops Abbots Nobles Peeres were summoned by the Kings Writ to appear at London to handle and conclude about the publick affaires of the Kingdome Mention of this Assembly is made againe at the foundation and endowment of the Abbie of Crowland m Id. p. 500. and afterwards a confirmation of the same by Edgar Anno 966. praesentibus Archiepiscopis Episcopis Abbatibus Optimatibus Regni n Id pag. 501. 502. in the presence of the Archbishops Bâ—shops Abbots and Peers of the Kingdome Like convention of Estates we finde to have been called by Canutus after the death of Edmund Ironside for the setling of the Crown on his own head of which thus the Author o Rog. Hoveden Annal pars prior p. 250. Cujus post mortem Rex Canutus omnes Episcopos Duces nec non principes cunctosque optimates gentis Angliae Londoniae congregari jussit Where still we finde the Bishops to be called to Parliament as well as the Dukes Princes and the rest of the Nobility and to be ranked and marshalled first which clearly shewes that they were alwaies reckoned for the first Estate before the greatest and most eminent of the secular Peers And so we finde it also in a Charter of King Edward the Confessor the last King of the Saxon race by which he granted certain Lands and priviledges to the Church of Westminster Anno 1066. Cum consilio decreto Archiepiscoporum Episcoporum Comitum aliorumque Optimatum p Ap. H. Spelman in Concil p. 630. with the counsell and decree of the Archbishops Bishops Earls and others of his Nobles And all this while the Bishops and other Prelates of the Church did hold their Lands by no other tenure then in pura perpetua eleemosyna q Camden in Brit. or Frank almoigne as our Lawyers call
it and therefore sate in Parliament in no other capacity then as spirituall persons meerly who by their extraordinary knowledge in the word of God and in such other parts of learning as the world then knew were thought best able to direct and advise their Princes in points of judgement In which capacity and no other the Priors of the Cathedrall Churches of Canterbury Ely Winchester Coventry Bath Worcester Norwich and Durham the Deans of Exceter York Wells Salisbury and Lincoln the Officiall of the Archbishop of Canterbury and the Dean of the Arches the Guardian of the Spiritualties of any Bishoprick when the See was vacant and the Vicars generall of such Bishops as were absent beyond the Seas r Selden Titles of hon part 2. c. 5. had sometimes place and suffrage in the house of Lords in the Ages following 7. But when the Norman Conqueror had possest the State then the case was altered The Prelates of the Church were no longer suffered to hold their Lands in Frankalmoigne as before they did or to be free from secular services and commands as before they were Although they kept their lands yet they changed their tenure and by the Conqueror were ordained to hold their Lands sub militari servitute Å¿ Maâ— Paris in Will 1. An. 1070. either in â—apite or by Baronage or some such military hold and thereby were compellable to aid the Kings in all times of war with Men Arms and Horses as the Lay-subjects of the same tenures were required to do Which though it were conceived to be a great disfranchisement at the first and an heavy burden to the Prelacy yet it conduced at last to their greater honor in giving them a further Title to their place in Parliament than that which formerly they could pretend to Before they claimed a place therein ratione Officii only by reason of their Offices or spiritual Dignities but after this by reason also of those antient Baronies which were annexed unto their Dignities en respect de lour possessions L'antient Baronies annexes a lour dignities t Stamfords Plâ—es l. 3 c. 1. as our Lawyers have it From this time forwards we must look upon them in the House of Parliament not as Bishops only but as Peers and Barons of the Realm also and so themselves affirmed to the Temporal Lords in the Parliament holden at Northampton under Henry 2. Non sedimus hic Episcopi sed Barones nos Barones ves Barones Pares hic sumus u Ap Selden titles of hon pâ— 2. c. 5. We fit not here say they as Bishoâ—ps only but as Barons We are Baroâ—s and you are Barons here we sit as Peers Which last is also verified in terminis by the words of a Statute or Act of Parliament wherein the Bishops are acknowledged to be Peers of the Land x Stat. 25 Edw. 3. c. 5. Now that the Bishops are a fundamental and essential part of the Parliament of England I shall endeavour to make good by two manner of proofs wherof the one shall be de jure the other de facto And first we shal begin with the proofs de jure and therin first with that which doth occur in the Laws of King Athelstan amongst the which there is a Chapter it is Cap. 11. entituled De officio Episcopi quid pertinet ad officium ejus and therein it is thus declared Episcopo jure pertinet omnem rectitudinem promovere dei scilicet seculi c. z Spelm. concil p. 402. et convenit ut per consilium testimonium ejus omne legis scitum Burgi mensura omne pondus sit secundum dictionem ejus institutum that is to say it belongeth of right unto the Bishop to promote justice in matters which concern both the Church and State and unto him it appertaineth that by his counsel and award all Laws Weights and Measures be ordained thorowout the Kingdom 2. Next we will have recourse to the old Record entituled Modus tenendi Parliamentum In which it is affirmed ad Parliamentum summoniri venire debere Archiepiscopos Episcopos Abbates Pricres alios majores cleri qui tenent per Comitatum aut Baroniam ratione hujusmodi tenurae * modus tenendi Parliament that all the Arch-bishops Bishops Abbats Priors and other Prelates of the Church who hold their lands either by an Earls fee or a Barons fee were to be summoned and to come to Parliament in regard of their tenure 3. Next look we on the chartularies of King Henry the first recognized in full Parliament at Clarendon under Henry the 2d where they are called avitas consuetudines which declare it thus Archipiscopi Episcopi universae personae qui de Regetenent in Capite habeant possessiones suas de Rege ficut Baroniam c. sicut caeteri Barones debent interesse judiciis Curiae Regis cum Baronibus quousque perveniatur ad diminutionem membrorum vel ad mortem * Matth. Paris in Hen. 2. The meaning is in brief that Arch-bishops Bishops and all other ecclesiastical persons which hold in Capite of the King are to have and hold their lands in Barony and that they ought as Barons to be present in all Judgements with the other Barons in the Court of Parliament untill the very sentence of death or mutilation which was very common in those times was to be pronounced And then they commouly did use to withdraw themselves not out of any incapacity supposed to be in them by the Law of England but out of a restraint imposed upon them by the Canons of the Church of Rome 4. In the great Charter made by King John in the last of his reign we have the form of summoning a Parliament and calling those together who have votes therein thus expressed at large Ad habendum commune consilium Regni de auxilio assidendo c. de scutagiis assidendis faciemus summoneri Archiepiscopos Episcopos Abbaâ—es Comites Majores Barones Regni sigillatim per liâ—eras nostras Et praeterea summoneri faciemus in generali per Vice-Cemites Ballivos nostros omnes alios qui in Capite tenent ad certum diem sc ad terminum 40 dierum ad minus et ad certum locum c. a Id. in Ioh. In which we have not only a most evident proof that the Bishops are of right to be called to Parliament for granting subsidies and Escuage and treating of the great affairs which concern the kingdom but that they are to be summoned by particular Letters as well as the Earls and Barons or either of them A former Copy of which summons issued in the time of the said King John is extant on Record and put in print of late in the b Pt. 2. c. 5. Titles of Honour And we have here I note this only by the way a brief intimation touching the form of summoning the Commons to attend in
Titles of hon part 2. cap. 5. to give the King their best advice in his great affairs So that the Prelates and Nobility conveened in Parliament made the Kings great Counsel and were called thither to that end What then belonged unto the Commons 1. No more than did belong to the Clergy also that is to say the giving of their consent to such Laws and Statutes as should there be made VVhich notwithstanding in tract of time gave them such a sway and stroak in the course of Parliaments that no law could be made nor no tax imposed without their liking and allowance And this is that which is expressed in the last clause of the said writ by which the Knights and Burgesses are to come prepared g Form a Brevis c. ad faciendum et consentiendum iis quae tune ibidem de consilio dicti Regni nostri super negotiis antedictis contigerint ordinari VVhich is the very same which you had before in the writ directed to the Bishops for summoning the Clergie of their several Diocesses and that here is a faciendum which the other had not A word which if you mark it well hath no operation in the Construction of the text except it be in paying subsidies or doing such things as are appointed to be done by that great Counsel of the Kingdom VVhich clause though it be cunningly left out that I may say no worse in the recital of the writ by the Author of the Book entituled the Prerogative and practice of Parliaments is most ingenuously acknowledged in the Declaration of the Lords and Commons assembled at Oxon h Declaration of the treaty P. 15. where it is said that the writs of summons the foundation of all power in Parliament are directed to the Lords in expresse termes to treat and advise with the King and the rest of the Peers of the Kingdom of England and to the Commons to do and consent to those things which by that Common councell of England should be ordained And thus it stands as with the Common people generally in most states of Christendom so with the Commons antiently in most states of Greece of which Plutarch telleth us i Plutarch in Lyeurgo that when the people were assembled in Counsell it was not lawful for any of them to put forth matters to the Counsel to be determined neither might any of them deliver his opinion what he thought of any thing but the people had only authority 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to give their assent unto such things as either the Senators or their Kings do propound unto them 10. But against this it is objected first that it is not to be found at what time the Clergie lost their place and vote in Parliament and therefore it may reasonably be presumed that they had never any there and 2ly that if they had been called ad consentiendum though no more than so we should have found more frequent mention of their consent unto the Acts Statutes in our printed Books For answer unto which it may first be said that to suppose the Clergie had no voice in Parliament because it is not to be found when they lost that Privilege is such a kind of Argument if it be an argument as is made by Bellarmine k Bellarm. de Eccl. lib. 4. cap. 5. to prove that many of the controverted Tenets of the Church of Rome are neither terroneous nor new because we cannot say expressely quo tempore quo autore when and by whose promoting they first crept in And though we cannot say expressely when the inferiour Clergy lost their place in Parliament in regard it might be lost by discontinuance or non-usage or that the clause was pretermitted for some space of time the better to disuse them from it or that they might neglect the service in regard of their attendance in the Convocation which gave them power and reputation both with the Common people yet I have reason to beleeve that this pretermission and disuse did chiefly happen under the government of the Kings of the house of Lancaster who being the true heirs and successours of Iohn of Gaunt cast many a longing eye on the Church revenues and hardly were perswaded to abstain from that height of sacrilege which Henry the 8 did aftercome to And this I am induced to beleeve the rather in regard that in the confirmation of the Churches rights so solemnly confirmed and ratified in all former Parliaments there was a clog put to or added in these times which shaked the Fabrick the confirmation being first of such rights and liberties as were not repealed 3. Hen. 5. cap. 1. 4 Hen. 5. cap. 1. and afterwards of such as by the Common law were not repealeable 2 Hen. 6. cap. 1. which might go very far indeed And secondly I find that in the 8 of Henry the 6. an Act of Parliament was passed that all the Clergy called to Convocation by the Kings writ and their servants and Family shall for ever hereafter fully use and enjoy such liberty and defence in comming tarrying and returning as the great men and Comminalty of the Realm of England called to the Kings Parliament do enjoy l 8 Hen. 6. cap. 1. c. Which being an unnecessary care or caution when the Clergie had their voice in Parliament and very necessary to be taken formerly if they had never had such voice makes me conceive that it was much about this time that they lost that privilege But this I leave as a conjecture and no more than so For answer to the second argument that if they had been called of old ad consentiendum we should have found more frequent mention of their consent unto the Acts and Statutes of the former times besides that it is a negative proof and so non concludent it strikes as much against the presence and consent of the Knights and Burgesses in the elder Parliaments as it can do against the Clergie For in the elder Parliaments under K. Henry 3. and K. Edward the first there is no mention of the Commons made at all either as present or consenting nor much almost in all the Parliaments till K. Henry 7. but that they did petition for redresse of greivances and that upon their special instance and request m In the Proem to the several Sessions several laws were made for the behoof and benefit of the Commonwealth which part the Clergie also acted in some former Parliaments as before was shewed So that this negative Argument must conclude against both or neither But secondly I answer that in these elder times in which the Proctors for the Clergy had their place in Parliament they are included generally in the name of the Commons And this I say on the authority of the old modus tenendi Parliamentum in which the Commons are divided in the Spiritualty and the Temporalty and where it is expressely said that the Proctors for
the Clergie the Knights the Citizens and the Burgesses did represent the whole Comminalty of the Realm of England a Cap. ult And this holds good in law for ought I find unto the contrary to this very day Certain I am that Crompton in his book of the Iurisdiction of Courts where he fpeakes of Parliaments doth tell us that the Knights Citizens Burgesses and Barons of the Cinque ports b Grompton Iurisd des Courts caâ— ove le Clergie qu' eux assemble au Pawles represent le corps de tout le Comminalty Dengliterre together with the Clergie which assembled at S. Pauls doe represent the body of the whole Comminalty of England So then the Clergie were not only called but were present also according to that clause in the writ of Summons which before I spake of directed to their several and respective Bishops as the Kings spiritual Sheriffs if I may so say inabled by the Laws to that end and purpose Which some endeavouring to avoid have at last found out that the clause before recited out of the Writ to the Bishops is not a calling of the Clergy to attend in Parliament but to command them to attend in the Convocation which I have heard much pressed by those who pretend unto some knowledge in the course of things Which though it be a gross mistake and inconsistent with the words and circumstances of the VVrit it self which relates meerly to the Parliament and business of a Parllamentarie nature yet for the clearing of the point and undeceiving such as have been deceived they may please to know that besides this VVrit by which the Clergy are commanded to appear in Parliament there is another writ and another form of calling them unto the service of the Convocation which is briefly this The King sends out his VVrit or Mandat to the Arch-bishop of Canterbury requiring him super quibusdam arduis urgentibus negotiis c. n Regist Warham for divers great and weighty reasons concerning the Kings honour the Churches safety and the publick peace of his dominions to summon all the Bishops Deans and Chapters Arch-deacons and the whole Clergy of his Province to meet in Convocation at a day and place appointed On the reception of which Writ the Arch-bishop sendeth out his Monitory to the Bishop of London who by his place is Dean of the Episcopal College o Antiqu. Britan. in initio and to disperse the Mandates of the Metropolitan requiring him to appear himself in person and to send out his warrant unto every Bishop of the Province to appear there also and to take order that the Deans of the Cathedrals and Arch-deacons personally the Chapter by one Procurator the Clergy of the Diocese by two whom we usually call Clerks of the Convocation do attend that service p b Regist Warham VVhich comming to the hands of each several Bishop they do accordingly give intimation to their Deans and Chapters to their Arch-deacons and the Clergy and they accordingly prepare themselves to obey the Monitory and to return Certificate of their doings in it The like proceeding is observed also for the Province of York So that the calling of the Clergy to the Convocation being by a different VVrit and another form which hath no reference to nor dependance on the writs directed by the K. to each several Bishop for their attendance in the Parliament it must needs be as I conceive it that by that clause remaining in the VVrits aforesaid the Clergy have good right and title to a voice in Parliament though they have lost their jus in re the benefit the use and possession of it 11. But I speak this as once the Apostle said in another case not by commandement but by permission For I perswade my self the Clergy do not aim so high at the recovery of a right so long antiquated and disused but would be well enough content with the restitution of the Bishops to their vote in Parliament of which they stood possessed by so strong a Title as the very constitution of the Parliament and the fundamental laws of the English government could confer upon them For though the Bishops sate in Parliament in their own personal capacities and not as the representative body of the Clergy yet the poor Clergy found it some respect unto them to be thus honoured in their heads and were the more obliged to obey such Acts as were established in that Court wherein these heads had opportunity of interceding if perhaps any thing were propounded which might be grievous to the Clergy and many times a power of hindering and diverting if not by voice and numbers yet by strength of reasons They were not altogether Slaves and Bond-men whilest the Church held that remnant of her antient rights for whilest the heads retained that honor the body could not choose but rejoyce in it and be cherished by it But since they have been stripped of that by what unworthy Acts the world knows too well they are become of such condition that the most despicable Tradesman in a Corporate Town is more considerable in the eye of the State and hath a greater interesse in the affairs thereof than the greatest Prelate and to say truth than all the Clergy of the Realm For being there are three Ingredients which make up a Freeman as S. Francis Bacon well observed in his speech concerning the Post-nati that is to say 1. jus Civitatis which did inable a man to buy and sell and to take Inheritances 2. jus suffragii a voice in the passing of Laws and Election of Officers and 3. jus honoris a capability of such offices and honors as the State could give him the Clergy by this means are limited to the first right only utterly excluded from the other two and therby put into a worse condition than the meanest Freeman in the Kingdome Insomuch that whereas every needy Artizan if he be free of any Corporate Town or City every Cottager that dwelleth in an antient Burrough and every Clown which can lay claim to sorty shillings per Annum of free hold either for life or of inheritance hath a voyce in Parliament either in person or by Proxie and is not bound by any law but what himself consents to in his Representatives the Clergy only of this Realm as the case now stands being one of the greatest States of this Kingdom as is acknowledged expresly in terminis by Act of Parliament p 8 Eliz. c. 1. are neither capable of place there in their personal capacities nor suffered to be there in their Procuratours as of old they were nor have so much as any voice in choosing of the Knights and Burgesses which represent the body of the people generally I know it hath been said in reply to this that the Clergy may give voices at the election of the Knights and Burgesses and that it is their own neglect if they do it not But I know too
trusted or at least supposed to be intrusted with sufficient power as well to regulate his authority as to controll his actions If Calvin be allowed to have common sense and to have wit and words enough to expresse his meaning as even his greatest Adversaries do confesse he had it must be granted that he did not take the King of what Realm soever to be any of the three Estates or if he did he would have thought of other means to restrain his insolencies than by leaving him in his own hands to his own correction Either then Calvin is mistaken in the three Estates if he be mistaken in designing the men he aims at may he not be mistaken in the power he gives them or else the King is noâ—e indeed can be none of the three Estates qui primarios conventus peragunt who usually convene in Parliament for those ends and purposes before remembred But not to trust to him alone though questionlesse he be ideoneus testis in the present case Let us behold the Assembly of the three Estates or Conventus Ordinum in France from whence it is conceived that all Assemblies of this kind had their first Original and we shall find a very full description of them in the Assemblie des Estats at Bloys under Henry 3. Anno 1577. of which thus Thuanus f Thuanus in histor sui temp l. 63. Rex insublimi loco sub uranisco sedebat c. The King saith he sate on an high erected Throne under the Canopy of State the Queen-mother and the Queen his wife and all the Cardinals Princes Peers upon either hand And then it followeth Transtris infra dispositis ad dextram suam sacri Ordinis Delegati ad laevam Nobilitas infra plebetus ordo sedebat that on some lower forms there sate the Delegates of the Clergy towards the right hand of the King the Nobility towards the left and the Commissioners for the Commons in the space below We may conjecture at the rest by the view of this Of those in Spain by those Conventions of the States which before we spoke of at Burgos Monson Toledo and in other places in which the King is alwaies mentioned as a different person who called them and dissolved them as he saw occasion For Scotland it is ordinary in the stile of Parliaments to say the King and the Estates do ordain and constitute g Statutes of Scotland for which I do refer you to the Book of Statutes which clearly makes the K. to be a different person from the Estates of that Kingdome And as for England besides what may be gathered from the former Chapter we read in the History of Titus Livius touching the Reign and Acts of K. Henry the 5th that when his Funerals were ended the three Estates of the Realm of England did assemble together and declared his Son K. Henry the 6. being an Infant of 8 months old to be their Soveraign Lord h Tit. Liv. M. S. in Bibl. Bodl. as his Heir and Successor And in the Parliament Rolls of K. Richard the 3d. there is mention of a Bill or Parchment presented to that Prince being then Duke of Glocester on the behalf and in the name of the three Estates of this Realm of England that is to wit of the Lords Spiritual and Temporal and of the Commons by name which forasmuch as neither the said three Estates nor the persons which delivered it on their behalf were then assembled in form of Parliament was afterwards in the first Parliament of that King by the same three Estates assembled in this present Parliament I speak the very words of the Act it self and by authority of the same enrolled recorded and approved i Ap Speed in K. Rich. 3â— And at the request and by the assent of the three Estates of this Realm that is to say the Lords Spiritual and Temporal and Commons of this Land assembled in this present Parliament and by authority of the same it be pronounced decreed and declared that our said Soveraign Lord the King was and is the very and undoubted heir of this Realm of England c. And so it is acknowledged in a k 1 Eliz. cap. 3. Statute of 1 Eliz. ca. 3. where the Lords Spiritual and Temporal and the Commons in that Parliament assembled being said expresly and in terminis to represent the three Estates of the Realm of England did recognize the Queens Majesty to be their true lawfull and undoubted Soveraign Liege Lady and Queen This makes it evident that the King was not accounted in the times before for one of the three Estates of Parliament nor can be so accounted in the present times For considering that the Lords and Commons do most confessedly make two of the three Estates and that the Clergy in an other Act of Parliament of the said Queens time are confessed to be one of the greatest States of the Realm l Statut. 8 Eliz. cap. 1. which Statute being still in force doth clearly make the Clergy to be the third either there must be more than three Estates in this Kingdome which is against the Doctrine of the present times or else the King is none of the Estates as indeed he is not which was the matter to be proved But I spend too much time in confuting that which hath so little ground to stand on more than the dangerous consequences which are covered under it For if the King be granted once to be no more than one of the three Estates how can it choose but follow from so sad a Principle that he is of no more power and consideration in the time of Parliament than the House of Peers which sometimes hath consisted of three Lords no more or than the House of Commons only which hath many times consisted of no more than 80 or an hundred Gentlemen but of far lesse consideration to all intents and purposes in the Law whatever than both the Houses joyned together What else can follow hereupon but that the King must be co-ordinate with his two Houses of Parliament and if co-ordinate then to be over-ruled by their Joynt concurrence bound to conform unto their Acts and confirm their Ordinances or upon case of inconformity and non-complyance to see them put in execution against his liking and consents to his foul reproach And what at last will be the issue of this dangerous consequence but that the Lords content themselves to come down to the Commons and the King be no otherwise esteemed of than the chief of the Lords the Princeps Senatus if you will or the Duke of Venice at the best no more which if Sir Edward Dering may be credited as I think he may in this particular seems to have been the main design of some of the most popular and powerfull Members then sitting with him for which I do refer the Reader to his book of Speeches Which dangerous consequents whether they were observed at
first by these who first ventured on the expression or were improvidently looked over I can hardly say Certain I am it gave too manifest an advantage to the Antimonarchical party in this Kingdome and hardned them in their proceeding against their King whom they were taught to look on and esteem no otherwise than as a Joynt-tenant of the Soveraignty with the Lords and Commons And if Kings have partners in the Soveraignty they are then no King such being the nature and law of Monarchy that si divisionem capiat interitum capiat necesse est m Lactant Institut Div. l. 1. c. if it be once divided and the authorities thereof imparted it is soon destroyed Such is the dangerous consequence of this new Expression that it seemeth utterly to deprive the Bishops and in them the Clergy of this Land of all future hopes of being restored again to their place in Parliament For being the Parliament can consist but of three Estates if the King fall so low as to pass for one either the Bishops or the Commons or the Temporal Lords must desert their claim the better to make way for this new pretension and in all probability the Commons being grown so potent and the Nobility so numerous and united in blood and mariages will not quit their interesse and therefore the poor Clergy must be no Estate because lesse able as the world now goeth with them to maintain their title I have often read that Constantine did use to call himself 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 n Euseb de vita Constant the Bishop or Superintendent of his Bishops and I have oft heard our Lawyers say that the King is the general Ordinary of the Kingdome but never heard nor read till within these few yearrs that ever any King did possess himself of the Bishops place or vote in Parliament or sate there as the first of the three Estates as antiently the Bishops did to supply their absence By which device whether the Clergy or the King be the greater losers though it be partly seen already future times will shew 2. This rub removed we next proceed to the examination of that power which by our Author is conferred on the three Estates which we shall find on search and tryal to be very different according to the constitution of the Kingdome in which they are For where the Kings are absolute Monarchs as in England Scotland France and Spain l Bodin de Repub. l. 1. c. the three Estates have properly and legally little more authority than to advise their King as they see occasion to represent unto his view their common grievances and to propose such remedies for redresse therof as to them seem meetest to canvass and review such erroneous judgements as formerly have passed in inferiour Courts and finally to consult about and prepare such laws as are expedient for the publick In other Countries where the Kings are more conditional and hold their Crowns by compact and agreement betweeen them and their Subjects the reputation and authority of the three Estates is more high and eminent as in Polonia Danemark and some others of the Northern Kingdomes where the Estates lay claim to more than a directive power and think it not enough to advise their King unless they may dispose of the Kingdome also or at least make their King no better than a Royal Slave Thus and no otherwise it is with the German Emperors who are obnoxious to the Laws m Thuan. hist sui temp l. 2. and for their Government accomptable to the Estates of the Empire insomuch that if the Princes of the Empire be perswaded in their consciences that he is likely by his mal-administration to destroy the Empire and that he will not hearken to advice and counsel n Anonym Script ap Philip Paraeu in Append. â—d Rom. 13. ab Electorum Collegio Caesaria potestate privari potest he may be deprived by the Electors and a more fit and able man elected to supply the place And to this purpose in a Constitution made by the Emperor Jodocus about the year 1410. there is a clause that if he or any one of his Successors do any thing unto the contrary thereof the Electors and other States of the Empire sine rebellionis vel infidelitatis crimine libertatem habeant o Goldast Constit Imperial Tom. 3. p. 424. should be at liberty without incurring the crimes of Treason or Disloyalty not only to oppose but resist them in it The like to which occurs for the Realm of Hungary wherein K. Andrew gives authority to his Bishops Lords and other Nobles sine nota alicujus infidelitatis p Bonfinius de Edict publ p. 37. that without any imputation of disloyalty they may contradict oppose and resist their Kings if they do any thing in violation of some Laws and sanctions In Poland the King takes a solemn oath at his Coronation to confirm all the Privileges rights and liberties which have been granted to his Subjects of all ranks and orders by any of his Predecessors and then addes this clause quod si Sacramentum meum violavero incolae Regni nullam nobis obedientiam praestare tenebuntur which if he violates his Subjects shall no longer be obliged to yield him obedience q Bodin de Rep. lib. 1. cap. 8. Which oath as Bodine well observeth doth savour rather of the condition of the Prince of the Senate than of the Majesty of a King The like may be affirmed of Frederick the first King of Danemark who being called unto that Crown on the ejection of K. Christian the 2d An. 1523. was so conditioned with by the the Lords of the Kingdome that at his coronation or before he was fain to swear that he would put none of the Nobility to death or banishment but by the judgement of the Senate that the great men should have power of life or death over their Tenants and Vassals and that no Appeal should lye from them to the Kings tribunal nor the King be partaker of the confiscations nec item honores aut imperia privatis daturum c r Id. ibid. nor advance any private person to commands or honors but by authority of his great Counsel Which oath being also taken by Frederick the second made Bodinus say that the Kings of Danemark non tam reipsa quam appellare Reges sunt were only titular Kings but not Kings indeed Which character he also gives of the Kings of Bohemia Å¿ Id. ibid. p. 88. But in an absolute Monarchy the case is otherwise all the prerogatives and rights of Soveraignty being so vested in the Kings person ut nec singulis civibus nec universis fac est c. that it is neither lawful to particular men nor to the whole body of the Subjects generally to call the Prince in question for life fame or fortunes t Id. ibid. p. 210. and amongst these he reckoneth the kingdoms of France
there be a body of Laws in use amongst them partly made up of some old Gothish Laws and Constitutions and partly of some parts of the Law imperial yet for the explanation of the Laws in force if any doubt arise about them or for supplying such defects which in the best colllection of the Laws may occur sometimes the Magistrates and Judges are to have recourse to the King alone and to conform to such instructions as he gives them in it And this is it which was ordained by Alfonso the tenth qui etiam magistratus ac judices Principem adire jussit quoties patrio jure nihil de proposita causa scriptum esset p Bodin de Rep. lib. 1. cap. 8. as Bodinus hath it 'T is true that for the raising of supplies of mony and the imposing of extraordinary taxes upon the subject the Kings of Spain must be beholden to the three Estates without whose consent it cannot legally be done But then it is as true withall that there are customary tributes called Servitia q Id. ibid. p. 90. which the King raiseth of his own authority without such consent And their consenting to the extraordinary is a thing of course the Spanish Nation being so well affected naturally to the power and greatness of their Kings whom they desire to make considerable if not formidable in the opinion of their Neighbours that the Kings seldome fail of monies if the Subjects have it Finally that we may perceive how absolute this Monarch is over all the Courts or Curias of his whole dominions take this along according as it stands verbatim Å¿ Spanish hist 67. by Tyrannell in the Spanish Historie The King of Spain as he is a potent Prince and Lord of many Countries so hath he many Counsels for the managing of their affairs distinctly and apart without any confusion every Counsel treating only of those matters which concern their Jurisdiction and charges with which Counsels and with the Presidents thereof being men of chief note the King doth usually confer touching matters belonging to the good Government preservation and increase of his Estates and having heard every mans opinion he commands that to be executed which he holds most fit and convenient .. 6. Next let us take a view of Scotland and we shall find it there no otherwise I mean in reference to the point which is now in question than in France or Spain For besides that Bodinus makes it one of those absolute Monarchies ubi Reges sine controversia omnia jura Majestatis habent per sese t Bodin de Repub. l. 2. c. 7. in which the Kings have clearly all the rights of Majesty inherent in their own persons only it is declared in the Records of that very Kingdome that the King is directus totius dominus u Camden n Britan. deicript â— the Soveraign Lord of the whole State and hath all authority and jurisdiction over all estates and degrees aswel Ecclesiastical as lay or temporal And as for those Estates and Degrees convened in Parliament we may conjecture at their power by that which is delivered of the form or order which they held it in which is briefly this x Form of holding the Parl. in Scotl. Assoon as the Kings writ is issued out for summoning the Estates to meet in Parliament he maketh choyse of eight of the Spiritual Lords such on whose wisdom and integrity he may most rely which eight do choose as many of the Temporal Lords and they together nominate eight more out of the Commissioners for the Counties and as many out of the Commissioners for the Towns or Burroughs These 32 thus chosen are called Domini pro Articulis Lords of the Articles and they together with the Chancellor Treasurer Keeper of the Privy Seal and Principal Secretaries of state and the Master of the Rolls whom they call Clerk Register do admit or reject every bill but not before they have been shewn unto the King if they pass there they are presented afterwards to the whole Assembly where being thorowly weighed and examined put unto the votes of the house such of them as are carried by the major part of the Voices for the Lords and Commons sit together in the same house there are on the last day of the Sessions exhibited to the King who by touching them with his Scepter pronounceth that he either ratifieth and approveth them or that he doth disable them and make them void But if the business be disliked by the Lords of the Articles it proceeds no further and never comes unto the consideration of the Parliament or if the King dislikes of any thing in it when they shew it to him it either is razed out or mended before it be presented to the publick view King James of blessed memory who very well understood his own power and the forms of that Parliament describes it much to the same purpose in his Speech made at Whitehall March 31. Anno 1607. About twenty daies saith he before the Parliament Proclamation is made throughout the Kingdom to deliver unto the Kings Clerk of Register all Bils to be exhibited that Session before a certain day Then are they brought unto the King and perused and considered by him and only such as he alloweth of are put into the Chancellors hands to be propounded to the Parliament and none others And if any other man in Parliament speak of any other matter than is in this sort first allowed by the King the Chancellor telleth him that the King hath allowed of no such Bill Besides when they have passed them for Laws they are presented to the King and he with his Scepter put into his hands by the Chancellor must say I ratifie and approve all things done in this present Parliament And if there be any thing that he disliketh it is razed out before So the eldest Parliament-man as he said himself at that time in Scotland This was the form of holding Parliaments in Scotland which whosoever doth consider with a serious eye may perceive most plainly that it is wholly in the Kings power to frame the Parliament to his own will or at the least to hinder it from doing any thing to the prejudice of his Royal Crown and Dignity in that the nominating of the Lords of the Articles did in a manner totally depend on him Which being observed by the Scots they took the opportunity when they were in Arms to pass an Act during the Presidency of the Lord Burley Anno 1640. y Acts of Parliaments 16 Carol. for the abolition of this Order and for reducing of that Parliament to the forms of England as being thought more advantagious to their purposes than the former was So that the violent disloyalty of the Scotish Subjects their Insurrections against their Kings and murdering them sometimes when their heels were up which makes that Nation so ill spoke of in the Stories of Christendom are not to
made in Parliament the King passed a Law to this effect viz. r 4 Hâ—n 8. c. 8. That ull sutes condemnations executions charges and impositions put or hereafter to be put upon Richard Strode and every of his Complices that be of this Parliament or aâ—y other hereafter for any Bill speaking or reasoning of any thing concerning the Parliament to be communed and treated of shall be void and null but neither any reparation was allowed to Strode nor any punishment inflicted upon those that sued him for ought appears upon Record And for the Houses joyned together which is the last capacity they can claim it in they are so far from having the supreme authority that as it is observed by a learned Gentleman they cannot so unite or conjoyn as to be an entire Court either of Soveraign or Ministerial jurisdiction no otherwise co-operating than by concurrence of Votes in their several Houses for preparing matters in order to an Act of Parliament s Case of our Affairs p. 9. Which when they have done they are so far from having any legal authority in the State as that in Law there is no stile nor form of their joynt Acts nor doth the Law so much as take notice of them until they have the Royal Assent So that considering that the two Houses alone do no way make an entire Body or Court and that there is no known stile nor form of any Law or Edict by the Votes of the two Houses only nor any notice taken of them by the Law it is apparent that there is no Soveraignty in their two Votes alone How far the practise of the Lords Commons which remaind at Westminster after so many of both Houses had tepaired to the King c. may create Precedents unto posterity I am not able to determine but sure I am they have no Precedent to shew from the former Ages But let us go a little further and suppose for granted that the Houses either joynt or separate be capable of the Soveraignty were it given unto them I would fain know whether they claim it from the King or the people only Not from the King for he confers upon them no further power than to debate and treat of his great Affairs to have access unto his person freedome of Speech as long as they contein themselves within the bounds of Loyalty authority over their own Members which being custumarily desired t Hakewell of passing bils in Parliament and of course obtained as it relates into the Commons shews plainly that these vulgar privileges are nothing more the rights of Parliament than the favours of Princes but yet such favours as impart not the least power of Soveraignty Nor doth the calling of a Parliament ex opere operato as you know who phrase it either denude the King of the poorest robe of all his Royalty or confer the same upon the Houses or on either of them whether the King intend so by his call or otherwise For Bodin whom Mr. Prynne hath honored with the title of a grand Politician u Pryn of Parliam par 2. p. 45. doth affirm expresly Principis majestatem nec Comitorum convocatione nec Senatus populique praesentia minui x Bodin de Repub. that the majesty or Soveraignty of the King is not a jot diminished either by the calling of a Parliament or Conventus Ordinum or by the frequency and presence of his Lords and Commons Nay to say truth the Majesty of Soveraign Princes is never so transcendent and conspicuous as when they sit in Parliament with their States about them the King then standing in his highest Estate as was once said by Henry 8. who knew as well as any of the Kings of England how to keep up the majesty of the Crown Imperial Nor can they claim it from the people who have none to give for nemo dat quod non habet as the saying is The King as hath been proved before doth hold his Royal Crown immediately from God himself not from the contract of the people He writes not populi clementia but Dei gratia not by the favour of the people but by the grace of God The consent and approbation of the people used and not used before the day of coronation is reckoned only as a part of the solemn pomps which are then accustomably used The King is actually King to all intents and purposes in the Law whatever immediately on the death of his Predecessor Nor ever was it otherwise objected in the Realm of England till Clark and Watson pleaded it at their arraignment in the first year of King James y Speeds History in K. James Or grant we that the Majesty of this Kingdom was first originally in the people and by them devolved upon the King by their joynt consent yet having given away that power by their said consent and setled it upon the King by an Act of State confirmed by Oaths and all solemnities which that Act requires they cannot so retract that grant or make void that gift as to pass a new conveyance of it and settle it upon their Representees in the House of Commons Or if they could yet this would utterly exclude all the Lords from having the least share or portion in this new found Soveraignty in that they represent not the common people but sit there only in their own personal capacities and therefore must submit at last to these new made Soveraigns who carry both the Purse Sword at their own girdles So then the people cannot give the Soveraignty and if they have no power to give it the Lords and Commons have no claim thereunto de jure See we next therefore how much of this Soveraignty they or their Predecessors rather have enjoyed de facto in peaceable and regular times fit to be drawn into example in the Ages following The chief particulars in which the Soveraignty consists we have seen before and will now see whether that any of them been exercised and injoyed in peaceable and regular times by both or either of the two Houses of Parliament And first for calling and dissolving Parliaments making of Peers granting of liberty to Towns and Cities to make choyse of Burgesses which antiently had no such liberty treating with forein States denouncing war or making Leagues or Peace after war commenced granting safe conduct and protection indenizing of Aliens giving of honors unto eminent and deserving persons rewarding pardoning coyning printing making of corporations and dispensing with the Laws in force they are such points which never Parliament did pretend to till these later times wherein every thing almost is lawfull I am sure more lawâ—ull than to fear God and honor the King Nor do I find that Mr. Prynne hath laboured to entitle them to these particulars For levying of Arms and the command of the Militia besides that the Kings of England have ever been in possession of it and that possession never disturbed
or interrupted by any claim of right made in the behalf of the two Houses which is as sure a title as the Law can make the Houses have declared by a Act of Parliament a Sâ—at 7 Ed. 1. cap. 1. that of right it belongs unto the King streightly to defend that is prohibit all force of Arms and that the Parliament is bound to aid him in that prohibition Touching the Royal navy and the ports and forts the Kings prescription to them is so strong and binding that in the 3d. of Edward 3. Edw. 3. the House of Commons did disclaim the having cognisance of such matters as the guarding of the Seas and marches of the Kingdome which certainly they had not done had they pretended any title to the ports and navy As for suppressing tumults and providing for the safety of the Kingdom against sudden danger the Law commits it solely to the care of the King obliging every Subject by the duty of his allegeance to aid and assist him at all seasons when need shall require b 11 Henr. 7. c. 18. And for their power of declaring law in the House of Peers wherein they deliver their opinion in the point before them in true propriety of speech they have none at all c Case of our Affairs p. 4. And this is that which was affirmed by his Majesty at the end of the Parliament Anno 1628. saying that it belonged only to the Iudges under him to interpret laws and that none of the Houses of Parliament joynt or separate what new Doctrine soever might be raised had any power either to make or declare law without his consent d 3 Car. And if it be done with his consent it is not so properly the declaring and interpreting of an old law as the making rather of a new saith a learned Gentleman e Case of our affairs P. 5. 9. Others have found out a new way to invest the Parliament with the robes of Soveraignty not as superiour to the King but co-ordinate with him and this say they appears sufficiently in that the two Houses of Parliament have not only a power of consulting but of consenting and that too in the highest office of the Monarchy whereof they are a Coordinative part the making of Laws f Fuller Answer to D. F. p. 2. Which dangerous doctrin as it was built at first on that former error which makes the King to be one of the three Estates in Parliament so it is super-structed with some necessary consequents whether more treasonable or ridiculous it is hard to say For on these grounds the Author of the Fuller Answers hath presented us with these trim devises g Id. pag. 1. viz. that England is not a simple subordinate and absolute but a coordinative and mixt Monarchy that this mixt Monarchy is compounded of three coordinate Estates a King and two Houses of Parliament that these three make but one supreme but that one is a mixt one or else the Monarchy were not mizt and finally which needs must follow from the premises that although every Member of the Houses sâ—orsim taken severally may be called a Subject yet all collective in their houses are no Subjects Auditum admissi risum teneatis Can any man hear these serious follies and abstain from laughter or think a fellow who pretends both to wit and learning should talk thus of a Monarchy which every one that knoweth any thing in Greek know to imply the supreme government of one compounded of three coordinate Estates and those coordinate Estates consisting of no fewer than 600 persons Or that a man who can pretend but to so much use of reason as to distinguish him from a beast could fall on such a senselest Dotage as to make the same man at the same time to be a Subject and no Subject a Subject in the Streets and in his private House no Subject when he sits in Haberdashers Hall for advance of moneys or in either of the two Houses of Parliament And yet this senseless Doctrine is become so dangerous because so universally admired and hearkned to that the beginning and continuance of our long Disturbances may chiefly be ascribed unto this opinion to which they have seduced the poor ignorant people The rather in regard that some who have undertook the confutation of these brainless solies have most improvidently granted not only h As in the book called Conscience satisfied that the two Houses of Parliament are in a sort coordinate with the King ad aliquid to some Act or exercising of the supreme power that is to the making of Laws but that this coordination of the three Estates of which the King is yielded every where for one is fundamental and held by the two Houses on no worse a title than a fundamental Constitution which is as much as any reasonable Parliamentarian need desire to have Therefore in Answer to the Fuller not taking notice of his foolish and seditious inferences we will clear those points 1. That the two Houses of Parliament are not coordinate with the King but subordinate to him And 2. that the power of making laws is properly and legally in the King alone As for the first we had before a Recognition made by Act of Parliament by which the Kingdom of England is acknowledged to be an Empire governed by one supreme head and King to whom all sorts and degrees of people ought to bear next to God a natural and humble obedience i 24 H. 8. c. 12. which certainly the Lords and Commons had not made to the dethroning of themselves their heirs and successors from this coordinative part of Soveraignty if any such coordination had been then believed Or if it be supposed to excuse the matter that K. Henry the 8th being a severe and terrible Prince did wrest this Recognition from them which yet will hardly serve for a good defence what shall we say to the like recognition made in the beginning of Queen Elizabeths reign k 1 Eliz. c. 1. when she was green in State and her power unsetled and so less apt to work upon her people by threats and terrors Assuredly had the Houses dream't in those broken times of that coordinative Soveraignty which is now pretended they might have easily regained it and made up that breach which by the violent assaults of King Henry the 8th had been made upon them which was a point they never aimed at Besides if this coordinative mâ—jesty might be once admitted it musts needs follow that though the King hath no Superiour he hath many Equalls and where there is Equality there is no Subjection But Bracton tells us in plain terms not only that the King hath no Superiour in his Realm except God almighty but no Equal neither and the reason which he gives is exceeding strong Quia sic amitteret praeceptum cum par in Parem non habeat potestatem l Bracton de leg Aâ—gl
l. 1. c. 8 because he could not have an Equal but with the losse of his Authority and Regal Dignity considering that one Equal hath no power to command an other Now lest the Fuller should object as perhaps he may that this is spoken of the King out of times of Parliament and of the Members of the Houses seorsim taken severally as particular persons but when they are convened in Parliament then they are Soveraigns and no Subjects first he must know that by the Statute of Queen Elizabeth all of the House of Commons are to take the oath before remembred for the defending of all preheminences and authorities united and annexed to the Imperial Crown of this Realm and for bearing faith and true allegiance to the King his Heirs and lawfull Successours and that if any of them do refuse this Oath he is to have no voice in Parliament m Stat. 5 Eâ—iz 1. 2. He cannot choose but know that even sedente Parliamento both the Lords and Commons use to address themselves to his sacred Majesty in the way of supplication and petition and certainly it is not the course for men of equal rank to send Petitions unto one another and that in those Petitions they do stile themselves his Majesties most humble and obedient Subjects Which is not only used as the common Complement which the hypocrisie of these times hath taken up though possibly it might be no otherwise meant in some late addresses but is the very phrase in some Acts of Parliament n â—25 Hen. 8. c. 22. c. as in the Acts at large doth at full appear 3. They may be pleased to know how happy a thing it was for the Realm of England that this Fuller did not live in former times For had he broached this Doctrine some Ages since he would have made an end of Parliaments Princes are very jealous of the smallest points of Soveraignty and love to reign alone without any Rivals their Souls being equally made up of Pompeys and Caesars and can as little broke an Equul as endure a Superiour And lastly I must let him know what Bodinus saith who telleth us this Legum ac edictorum probatio aut publicatio quae in Curia vel Senatu fieri solet non arguit imperii majestatem in Senatu vel Curia inesse o Bodin de Rep. l. 1. c. 8. viz. That the publishing and approbation of Laws and Edicts which is made ordinarily in the Court or Parliament proves not the Majesty of the State to be in the said Court or Parliament And therefore if the power of confirmation or rejecting be of a greater trust and more high concernment than that of consulting and consenting as no doubt it is the power of consulting and consenting which the Fuller doth ascribe to the two Houses of Parliament will give them but a sory Title to Co-ordinative soveraignty 10. This leads me on unto the power of making Laws which as before I said is properly and legally in the King alone tanquam in proprio Subjecto as in the true and adequate subject of that power And for the proof thereof I shall thus proceed When the Norman Conqueror first came in as he wonne the Kingdom by the sword so did he govern it by his power His Sword was then the Scepter and his will the Law There was no need on his part of an Act of Parliament much less of calling all the Estates together to know of them after what form and by what Laws they would be governed It might as well be said of him as in the flourish and best times of the Roman Emperors p Justin Institut l. 1. c. Quod Principi placuerit legis habet vigorem that whatsoever the King willed it did pass for Law This King and some of his Successours being then 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and having a despotical power on the lives and fortunes of their Subjects which they disposed of for the benefit of their friends and followers Normans French and Flemangs as to them seemed best But as the Subjects found the yoke to be too heavy and insupportable so they addressed themselves in their Petitions to the Kings their Soveraigns to have that yoke made easier and the burden lighter especially in such particulars of which they were most sensible at the present time By this means they obtained first to have the Laws of Edward the Confessor contain'd for the most part in the great Charter afterwards and by this means that is to say by powring out their prayers and desires unto them did they obtain most of the Laws and Statutes which are now remaining of the time of King Henry the 3d. and King Edward the first Many of which as they were issued at the first either in form of Charters under the Great Seal or else as Proclamations of Grace and favour so do they carry still this mark of their first procuring the King willeth the King commandeth the King ordaineth the King provideth the King grants c. And when the Kings were pleased to call their Estates together it was not out of an opinion that they could not give away their power or dispence their favours or abate any thing of the severity of their former government without the approbation and consent of their people but out of just fear lest any one of the three Estates I mean the Clergy the Nobility and the Commons should insist on any thing which might be prejudicial to the other two The Commons being alwaies on the craving part and suffering as much perhaps from their immediate Lords as from their King might possibly have asked some things which were as much derogatory to the Lords under whom they held as of their Soveraign Liege the King the chief Lord of all In this respect the Counsel and consent as well of the Prelates as the Temporal Lords was accounted necessary in passing of all Acts of Grace and Favour to the people because that having many Royalties and large immunities of their own a more near relation to the person and a greater interesse in the honour of their Lord the King nothing should passe unto the prejudice and diminution of their own Estates or the disabling of the King to support his Soveraignty And this for long time was the Stile of the following Parliaments viz. q Preface an 1 Ed. 3. To the honour of God and of holy Church and to the redresse of the oppressions of the people our Soveraign Lord the King c. at the request of the Commonalty of his Realm by their Petition made before him and his Counsel in the Parliament by the Assent of the Prelates Earls Barons and other great men assembled in the said Parliament hath granted for him and his Heirs c. To this effect but with some little and but a very little variation of the words was the usual Stile in all the Prefaces or Preambles of the Acts of Parliament from the
in number nor more obvious than those of our Kings serving their turns by and upon their Parliaments as their occasions did require For not to look on higher and more Regal times we find that Richard the 2d a Prince not very acceptable to the Common people could get an Act of Parliament t 21 Ric. 2. to confirm the extrajudicial opinion of the Iudges given before at Notingham that King Henry 4th could by an other Act reverse all that Parliament u 1 Hen 4. entayl the Crown to his posterity and keep his Dutchy of Lancaster and all the Lands and Seigneuries of it from being united to the Crown that King Edward the 4th could have a Parliament to declare all the Kings of the House of Lancaster to be Kings in fact but not in right x 1 Ed. c. 1. and for uniting of that Dutchy to the Crown Imperial notwithstanding the former Act of separation that King Richard the 3d. could have a Parliament to bastardize all his Brothers Children to set the Crown on his own head though a most bloody Tyrant and a plain Usurper y Speeds hist in K. Richard 3. that King Henry 7. could have the Crown entayled by an Act of Parliament to the issue of his own body z Verulam hist of K. Hen 7. without relation to his Queen of the house of York which was conceived by many at that time to have the better Title to it another for paying a Benevolence which he had required of the subject a 11 Hen. 7. c. 10. though all Benevolences had been damned by a former Statute made in the short but bloody reign of King Richard the 3d. that King Henry 8. b 65 Hen. 8. c. 22 28. c. 7. 35 H. 8. c. 1. could have one Act of Parliament to bastardry his Daughter Mary in favour of the Lady Elizabeth another to declare the Lady Elizabeth to be illegitimate in expectation of the issue by Queen Jane Seymour a third for setling the succession by his Will and Testament and what else he pleased that Queen Mary could not only obtain several Acts in favour of her self and the Sâ—e of Rome c 1 Mar. sâ—s 2. c. 1 2. 1. 2 Ph. M. c. 8. 10. but for the setling of the Regency on the King of Spain in case the Children of that Bed should be left in nonage And finally that Queen Elizabeth did not only gain many several Acts for the security of her own Person which were determinable with her life but could procure an Act to be passed in Parliament for making it high treason to affirm and say That the Queen could not by Act of Parliament bind and dispose the Rights aâ—d Titles which any person whatsoever might have to the Crown d 13 Eliz. c. 1. And as for raising monies and amassing treasures by help of Parliaments he that desires to know how well our Kings have served themselves that way by the help of Parliaments let him peruse a book intituled the Privilege of Parliaments writ in the manner of Dialogue between a Privy Counsellor and a Iustice of Peace and he shall be satisfied to the full Put all that hath been said together and sure the kingdom of England must not be the place in which the three Estates convened in Parliament have power to regulate the King or restain his actions or moderate his extravagances or where they can be taxed for perâ—idious treachery if they connive at Kings when they play the Tyrants or wantonly insult on the Common-people or otherwise abuse that power which the Lord hath given them Calvin was much mistaken if he thought the contrary or if he dreamt that he should be believ'd on his ipse dixit without a punctual enquiry into the grounds and probability of such a dangerous intimation as he lays before us 13. But against this it is objected that Parliaments have disposed of the Militia of the Kingdom of the Forts Castles Ports and the Navie Royal not only without the Kings leave but against his liking that they have deposed some Kings and advanced others to the top of the Regal Throne And for the proof of this they produce examples out of the reign of K. Henry 3. K. Edw. 2. and K. Richard the 2. e Prynnes Book of Parl. part 2. Examples which if rightly pondered doe not so much prove the power as the weakness of Parliaments in being carried up and down by the privat conduct of every popular pretender For 't is well known that the Parliaments did not take upon them to rule or rather to over-look K. Henry 3. but as they were directed by Simon Montfort Earl of Leicester who having raised a potent faction in the State by the assistance of the Earls of Glocester Hereford Derby f Maâ— Paris Henr. 3. and some others of the great Lords of the kingdom compelled the King to yeeld unto what terms he pleased and made the Parliaments no other than a means and instrument to put a popular gloss on his wretched purposes And 't is well known that the ensuing Parliaments which they instance in moved not of their own accord to the deposing of King Edward the 2. or King Richard the 2. but sailed as they were steered by those powerfull Counsels which Queen Isabel in the one and Henry Duke of Lancaster in the other did propose unto them g Walsingham in Hist Angl. Hypodig Neustriae It was no safe resisting those as their cold wisdoms and forgotten loyalties did suggest unto them qui tot legionibus imperarent who had so manany thousand men in arms to make good their project and they might think as the poor-spirited Citizens of Samaria did in another case but a case very like the present Behold two Kings stood not before him how then can we stand h 2 Kings 10. 4. For had it been an argument of the power of Parliaments that they deposed one King to set up another dethroned King Richard to advance the Duke of Lancaster to the Regal diadem they would have kept the house of Lancaster in possession of it for the full demonstration of a power indeed and not have cast them off at the first attempt of a new plausible pretender declared them to be kings in fact but not in right whose lawfull right they had before preferred above all other titles and set the Crown upon the heads of their deadly Enemies In the next place it is objected that Parliaments are a great restraint of the Soveraign power according to the Doctrine here laid down by Calvin in that the King can make no laws nor levy any money upon the Subject but by the counsel and assent of the Lords and Commons assembled in Parliament But this objection hurts as little as the former did For Kings to say the truth need no laws at all In all such points wherein they have not bound themselves by some former laws
they reduced all matters they commonly declin'd the Kings judgement and his Courts of Judicature as altogether incompetent appealing from them either to their own Presbyteries or to the next general Assembly of their own appointing and standing so wilfully to those Appeals that some of them had like to have paid dear for it after that Kings coming into England if the King had not been more mercifull to them then they deserved at his hands If no man whatsoever he be can lawfully acquit himself from this subjection as is said by Chrysostome what will become of Calvins popular Magistrates and of the great authority which he gives them over Kings and Princes those popular Officers being included equally with the rest of the people in St. Pauls injunction It 's true that Calvins popular Officers may seem to have some colour for it both from our English Translation and the vulgar Latine by which obedience is required sublimioribus potestatibus to the higher powers and all such popular Officers whatsoever they be may warrantably be lookt upon as higher powers in respect of the residue of the people But first the words in the original viz. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 do not so properly signifie the higher as the supreme powers and so the word is rendred in the first of St. Peter cap. 2. vers 13. in which submission is required to every ordinance of man for the Lords sake whether it be unto the King 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as to the Supreme or unto such as are sent by him c. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 saith St. Peter in the singular 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 saith St. Paul in the plural number both words proceeding from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the Nominative Case and consequently being of the same sense and signification But secondly permitting them the benefit of these translations yet will they finde but little colour for that coercive power that soveraign Authority and Jurisdiction which Calvin hath assigned to the three Estates or any other popular Officers over Kings and Princes For though such popular Officers may warrantably be lookt upon as higher powers in respect of the residue of the people as before was said yet are they lower powers in respect of the King from whom as they receive all the Authority which they have whatsoever it be so unto him they are to render an accompt of their actings in it whensoever he pleaseth So that these popular Officers may be compar'd not unfitly unto the Genera subalterna in the Schools of Logick each of them being subordinate to one another the Constable to the Maior or Bayliff in a corporate Town or to the Justices of the Peace in the County at large the Maiors and Justices to the Judges in their several Circuits the Judges in their several Circuits and their Courts of Judicature to the Lord Chancellor for the time being and he unto the three Estates when convened in Parliament till they end all in genus summum in that supreme power which is subordinate to none and unto which the rest are Species subalternae as the Logicians phrase it in their several orders till they end all in Specie infimâ even in the lowest of the People Less comfort can I give them from the Apostle of the Jewes from the words of St. Peter in which submission is required as before was said to every ordinance of man whether it be unto the King as unto the Supreme or unto Governors as unto them that are sent by him for the punishment of evill doers and for the praise of them that do well Now those which are thus authorised and sent by Kings to the ends and purposes before mentioned may very properly be resembled unto Jehosophats Commissioners in the Kingdome of Judah 2 Chron. 17. 7. or the itinerary Judges in the Realm of England and can neither claim nor exercise any other Authority then what in their Commissions and instructions is assigned unto them And certainly no King did or will ever grant any such Commission whereby his Vnder-officers and inferior Magistrates may challenge any power above him or exercise any jurisdiction or Authority over him If any thing in this Text may be thought to favour Calvin in this strange opinion it is that Kings are said to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 humana creatura saith the vulgar Latin an ordinance of man as the English reads it and being but a Creature of the peoples making the rest may think themselves as good men as he The Rhemists will have Kings to be called humane creatures because elected by the people or holding their Soveraignty by birth and carnall propagation ordained for the wealth peace and prosperity of the Subjects to put a difference betwixt that humane Superiority and the spiritual Rulers and Regiment guiding and governing the people to an higher end and instituted by God himself immediately Christ having expresly constituted the form of Regiment used ever since in the Church Whereunto Dr. Fulk for want of a better doth return this Answer viz. That though there be great difference between the government of Princes and Ecclesiastical Governors yet the Apostle calleth not Princes an humane creation as though they were not also of Gods Creation for there is no power but of God but that the form of their Creation is in mans appointment All the Genevians generally do so expound it and it concerns them so to do in point of interesse The Bishop of that City was their Soveraign Prince and had jus utriusque gladini as Calvin signified in a Letter to Cardinal Sadolet till he and all his Clergy were expelled the City in a popular Tumult Anno 1528. and a new form of Government established both in Church and State So that having laid the foundation of their Common-wealth in the expulsion of their Prince and the new model of their Discipline in refusing to have any more Bishop they found it best for justifying their proceedings at home and increasing their Partizans abroad to maintain a parity of Ministers in the Church of Christ and to invest the people and their popular Officers with a chief power in the concernments and affairs of State even to the deposing of Kings and disposing of Kingdoms But for this last they finde no warrant in the Text which we have before us For first admitting the Translation to be true and genuine as indeed it is not the Roman Emperor and consequently other Kings and Princes may be said to be an humane Ordinance because their power is most visibly conversant circa humanas Actiones about ordering of humane Actions and other civill affairs of men as they were subjects of the Empire and Members of that Body politick whereof that Emperor was head Secondly to make soveraign Princes by what name and Title soever called to be no other then an humane Ordinance because they are ordained by the people and of their appointment must needs create an irreconcileable difference
convocato n Rog. Hov. in Hen 2. the Clergy and people of the Realm were called to Clarendon anno 1163. by King Henry the second for the declaring and confirming of the Subjects liberties that in the year 1185 towards the later end of the said Kings reign Convocatus est Clerus populus cum tota Nobilitate ad fontem Clericorum o Matth. paris in Hen. 2. the Clergy Commons and Nobility were called unto the Parliament held at Clerkenwell and finally that a Parliament was called at London in which the Arch-bishop of Canterbury was present cum toto Clero tota secta Laicali p Quadrilog ap Selden Tit. of Hon. pt 2. c. 5. in the time of King John Hitherto then the Clergy of both ranks and orders as well as Populus or tota secta Laicalis the Subjects of the Laity or the Lords and Commons had their place in Parliament And in possession of this right the Clergy stood when the Magna Charta was set out by King Henry the 3d wherein the freedoms rights and privileges of the Church of England of which this evidently was one was confirmed unto her q Magna Charta cap. 1. of the irrefragable and inviolable authority whereof we have spoke before The Cavill of Excluso Clero which hath been used against the voting of the Bishops in the house of Peers comes in next for proof that the inferiour Clergy had their place or vote with the house of Commons if in those times the Lords and Commons made two houses which I am not sure of the Clergy could not be excluded in an angry fit or out of a particular design to deprive them of the benefit of the Kings protection if they had not formerly a place amongst them if we will not understand by Clerus the inferior Clergy which much about that time as before we shewed began to be the legâ—l English of the word we must needs understand the whole Clergy generally the Clergy of both ranks and orders But our main proofs are yet to come which are these that follow First it is evident that antiently the Clergy of each several Diocese were chargeable by Law for the expences of their Proctors in attending the service of the Parliament according as the Counties were by Common law since confirmed by Statute 23 H. 6. c. 11. to bear the charges of their Knights the Burroughs and Cities of their Representees which questionless the Laws had not taken care for but that the Clergy had their place in Parliament as the Commons had And this appears by a Record z Rotul Parent 26 Ed. 3. pt 1. M. 22. of 26 of King Edward the 3d. in which the Abbat of Leieester being then but never formerly commanded to attend in Parliament amongst others of the Regular Prelates petitioned to be discharcharged from that attendance in regard he held in Frank-Almoigne only by no other tenure Which he obtained upon this condition ut semper in Procuratores ad hujusmodi Parliamenta mittendot consentiat ut moris est eorundem expensis contribuat that is to say that he and his Successors did give their voyces in the choyse of such Procuratours as the Clergy were to send to Parliament and did contribute towards their charges as the custom was Next in the Modus tenendi Parliamentum which before we spake of there is amodus convocandi Clerum Angliae ad Parl. Regis r Modus tenendi Parl. Mâ— a form of calling the English Clergy that is the Prelates Clergy as John Selden e renders it to the Court of Parliament said to be used in the time of Edward the Son of Ethelred s V. Titles of hon pt 2. presented to the Conquerour and by him observed which shews the Clergy in those times had their place in Parliament Which being but a general inference shall be delivered more particularly from the Modus it self which informs us thus Rex est caput principum finis Parliamenti c. t Modus tenendi Parl. Ms. c. 12. The King is the head the beginning and end of the Parliament and so he hath not any equal in the first degree the second is of Arch-bishops Bishops and Priors and Abbats holding by Barony the third is of Procurators of the Clergy the fourth of Earls Barons and other Nobles the fifth is of Knights of the Shire the sixt of Citizens and Burgesses and so the whole Parliament is made up of these six degrees But the said Modus tells us more and goeth more particularly to work than so For in the ninth chapter speaking of the course which was observ'd in canvassing hard and difficult matters it telleth us that they used to choose 25 out of all degrees like a grand Committee to whose consideration they referred the point that is to say two Bishops and three Proctors for the Clergy two Earls three Barons five Knights five Citizens and as many Burgesses And in the 12th that on the fourth day of the Parliament the Lord high Steward the Lord Constable and the Lord Marshal were to call the house every degree or rank of men in its several Order and that if any of the Proctors of the Clergy did not make appearance the Bishop of the Diocese was to be fined 100 l. And in the 23d chapter it is said expresly that as the Knights Citizens Burgesses in things which do concern the Commons have more authority than all the Lords so the Proctors for the Clergy in things which do concern the Clergy have more authority than all the Bishops Which Modus if it be as antient as the Norman Conquerour as both Sir Edward Coke conceiveth u Preface to the 9th part of Reports and the title signieth it sheweth the Clergies claim to a place in Parliament to be more antient than the Commons can pretend unto but if no older than the reign of King Edward third as confidently is affirmed in the Titles of Honour x Titles of hon pt 2. c. 5. if sheweth that in the usage of those later times the Procurators of the Clergy had a right and place there as well as Citizens and Burgesses or the Knights of the Shires And this is further proved by the writs of Summons directed to the Arch-bishops and Bishops for their own comming to the Parliament in the end whereof there is a clause for warning the Dean and Chapter of their Cathedralls and the Arch-deacons with the whole Clergy to be present at it that is to say the Deans and Arch-deacons personally the Chapter and Clergy in their Proctours then and there to consent to such Acts and Ordinances as shall be made by the Common counsail of the Kingdom The whole clause word for word is this y Extant ibid. pt 2. c. 5. Praemunientes Priorem Capitulum or Decanum Capitulum as the case might vary Ecclesiae vestrae N. ac Archidiacanos totumque Clerum vestrae Dioceseos
quod iidem Decanus Archichidiaconi in propriis personis suis ac dictum Capitulum per unum idemque Clerus per duos Procuratores idoneos plenam sufficientem potestatem ab ipsis Capitulo Clero habentes praedicto die loco personaliter intersint ad consentiendum iis quae tunc ibidem de communi consilio ipsius Regni nostri divina favente clementia contigerit ordinari Which clause being in the Writs of King Edward 1. and for the most part of the reign of his next Successorsâ— till the middle of King Richard the second at which time it began to be fixt and formal hath still continued in those writs without any difference almost between the Syllables to this very day z Id. ibid. Now that this clause was more than Verbal and that the Proctors of the Clergy did attend in Parliament is evident by the Acts and Statutes of King Richard the second the passages whereof I shall cite at large the better to conclude what I have in hand The Duke of Glocester and the Earl of Arundel having got the mastery of the King obtained a Commission directed to themselves and others of their nomination to have the rule of the King and his Realm a Statur 21 R. 2. c. 2. and having their Commission confirmed by Parliament in the 11 year of his reign did execute divers of his Friends and Ministers and seized on their Estates as forfeited But having got the better of his head-strong and rebellious Lords in the one and twentieth of his reign he calls a Parliament in the Acts whereof it is declared That on the Petition of the Commons of the assent of all the Lords Spiritual and Temporal and of the Proctors of the Clergy he repealed the said Statute and Commission b Ibid. c. 2. and with the assent of the said Lords and Commons did ordain and establish that no such Commission nor the like be henceforth purchased pursued or made This done the heirs of such as had been condemned by vertue of the said Commission demanded restitution of their Lands and Honors And thereupon the Lords Spiritual and Temporal and the Procuratours of the Clergy the Commons having prayed to the King before as the Appellants prayed severally examined did assent expresly that the said Parliament and all the Statutes c. should be voyd c. and restitution made as afore is said c Ibid. c. 12. And also the Lords Spiritual and Temporal the Procuratours of the Clergy and the said Commons were severally examined of the Questions proposed at Notingham and of the Answer which the Judges made unto the same which being read aswell before the King and the Lords as before the Commons it was demanded of all the States of the Parliament what they thought of the Answers and they said that they were lawfully duly made c. And then it followeth whereupon the King by the assent of the Lords Spiritual and Temporal and the Procuratours of the Clergy and the said Commons and by the advise of the Justices and Sergeants aforesaid who had been asked their opinion in point of Law ordained and established that the said Parliament should be annulled and held for none Adde unto this that passage in the 9 of Edward 2. where it is said that many Articles containing divers grievances committed against the Church of England the Prelates Clergy were propounded by the Prelates and Clerks of our Realm in Parliament and great instance made that convenient remedy might be appointed therein d Proem ad articulos Clâ—ri that of the complaints made to the King in Parliament by the Prelates and Clergy of this Realm 50 Ed. 3. 5. 8 Rich. 2. c. 13. and that of the Petition delivered to the King in Parliament by the Clergy of England 4 Hen. 4. c. 2. Selden hist of Tithes c. 8. 33. And finally that memorable passage in the Parliment 51 Edw. 3. which in brief was this The Commons finding themselves agrieved aswell with certain Constitutions made by the Clergy in their Synods as with some laws or Ordinances which were lately passed more to the advantage of the Clergy than the Common people put in a Bill to this effect viz. That no Act nor Ordinance should from thenceforth be made or granted on the Petition of the said Clergy without the consent of Commons and that the said Commons should not be bound in times to come by any constitutions made by the Clergy of this Realm for their own advantage to which the Commons of this Realm had not given consent The reason of the which is this and 't is worth the marking car eux ne veullent estre obligez a nul de vos estatuz ne Ordinances faitz sanz leur assent because the said Clergy did not think themselves bound as indeed they were not in those times by any Statute Act or Ordinance made without their Assent in the Court of Parliament Which clearly shews that in those times the Clergy had their place in Parliament as the Commons had Put all which hath been sayd together and tell me if it be not cleer and evident that the inferiour Clergie had their place in Parliament whether the Clause touching the calling of them thither were not more than verbal in the Bishops writs and is true that in the writ of summons directed to their several and respective Bishops they were called only ad consentiendum to manifest their consent to those Acts and ordinances which by the Common counsell of the Realm were to be ordained But then it is as tru withall that sometimes their advice was asked in the weighty matters as in the 21 of K. Richard the 2. and sometimes they petitioned and remonstrated for redress of grievances as in the instances and cases which were last produced And 't is as true that if they had been present only ad consentiendum to testifie their assent to those Acts which by the common Counsell of the Realm were proposed unto them their presence was as necessary and their voice as requisite to all intents and purposes for ought I can see as the voice and presence of the Commons in the times we speak of For in the writs of summons issued to the several Sheriffs for the electing of Knights Citizens and Burgesses to attend the Parliament it is said expressely first that the King resolveth upon weighty motives touching the weal and safety both of Church and State to hold his Parliament e Foâ—ma Brevis pro fammonit Parliamenti et ibidem cum Praelatis Magnatibus et Proceribus dicti regni nostri colloquium habere et tractare then and there to advise and treat with the Prelates Peers and Nobles of this Realm Which words are also expressely used in the writs of summons directed to the Bishops and to every of them who also are required in a further clause consilium suum impendere f