Chancellor of the Exchequer Judges of his Courts at Westminster Justices in Eyre Justices Assignes Barons of his Exchequer Clerks Secretaries of his Council and sometimes his Serjeants at Law with such other Officers and Persons whom our Kings thought meet to summon The first Writ that Mr. Prynne finds extant in our Records and which Sir William Dugdale mentions is entred in the Clause-Roll 23 E. 1. dorso 9. directed to Gilbert de Thornton and thirty eight more whose Names are in Sir William Dugdale whereof there are eleven by the name of Magistri three Deans and two Archdeacons only I find them differently ranked in Mr. Prynne to what they are in Sir William Dugdale The Writ runs thus Rex dilecto fideâi suo Gilberto de Thornton salutem Quia super quibusdam arduis negotiis nos Regnum nostrum ac vos caeterosque de Concilio nostro tangentibus quae sine vestra eorum praesentia nolumus expediri c. Vobis mandamus in fide dilectione c. as in the usual Summons to the Bishops Sometimes as 25 E. 1. there (u) Cl. 25 E. 1. m. 25. dorso was no Writ directed to them but we find under the Name of Milites with a Lines space betwixt them and the Barons thirteen named which by other Records are known to be the King's Justices The differences in their Writs are mostly these Sometimes The difference in their Writs as in 27 E. 1. it is Cum caeteris de Concilio nostro habere volumus colloquium tractatum or as in 28 E. 1. (w) Cl. 28 E. 1. m. 3. dorso showing the special Cause Quia super Jure Dominio quae nobis in Regno Scotiae competit c. cum Juris peritis cum caeteris de Concilio nostro speciale colloquium habere volumus tractatum vobis mandamus c. cum caeteris de Concilio nostro super praemissis tractaturis vestrumque consilium impensuris At the same time there are Writs to the Chancellor of the University of Oxford to send four or five Persons skilful in the Law summoned from the Universities de discretioribus in Jure scripto magis expertis and to the Chancellor of the University of Cambridge to send two or three in the like manner qualified and then follow Writs to several Abbats Priors Deans and Chapters and all these Writs mentioned the Business of the King's Claim to the Jurisdiction of Scotland and in the Writs of Summons to the Archbishops Bishops Abbats Priors Temporal Lords Justices and Sheriffs of Counties that Particular is not mentioned which shows that the King summoned these particular Persons as most fit to search and â send their Chronicles to the Parliament The Occasion and Result whereof and of sending these Lawyers from the Universities you may read at large in (x) An. 13â2 p. 419. to p. 438. Matth. Westminster and (y) Hist Ang. p. 32. to 58. Walsingham In some Writs as that of 9 E. 2. (z) Cl. 9 E. 2. m. 20. dorso the Justices are appointed to expedite their Assizes that they may not fail to be present at the Parliament or to leave two to attend the Business of the King's Bench And the 7 of E. 2. (a) Cl. 7 E. 2. m. 25â dorso Justices to leave the Assâzes to attend the Parliament That whereas they had appointed the Assizes at Duresm and other Parts in the Northern Circuit at certain days after the time the Parliament was to convene at which he wondred he orders them to put off the Assizes and attend By which two Writs it appears their Summons by Writ to attend and counsel the King in Parliament was a Supersedeas to them to take Assizes during the Parliament and that the Assizes and Suits of private Persons ought to give place to the publick Affairs of the King and Kingdom in Parliament Whoever desires to know who were summoned in this manner and the further variety of Summons may consult Mr. Prynne and Sir William Dugdale's Summons From these Writs we may observe Observations from these Writs first That sometimes the Persons summoned were many in number sometimes very few and always (b) Brief Register part 1. a p. 366. ad p. 394. more or less at the King's Pleasure Secondly in latter times the Clergy-men were wholly omitted Thirdly That they were never licensed to appear by Proxies Mr. Prynne hath collected a great many Precedents to prove that these Persons thus summoned together with the King 's ordinary Council had a very great Hand Power and Authority not only in making Ordinances Proclamations deciding all weighty Controversies regulating most publick Abuses and punishing all exorbitant Offences out of Parliament in the Star-Chamber and elsewhere The Employment of these Assistants but likewise in receiving and answering all sorts of Petitions determining and adjudging all weighty doubtful Cases and Pleas yea in making or compiling Acts Ordinances Statutes and transacting all weighty Affairs concerning the King or Kingdom even in Parliaments themselves when summoned to them Yet these have no Vote but only are to speak to such Matters as their Opinions are required in and sit uncovered unless the Chancellor or Lord Keeper give leave to the Judges to be covered SECT 6. Concerning the House of Commons I Now come to consider the Honourable House of Commons and the Use The Summons of the Knights Citizens and Burgesses Constitution and Priviledges of it and shall first consider the Summons by which they have their Power to act as an House and third Estate in Parliament Mr. (c) Second Part of Brief Register a p. 1. ad 29. Prynn hath cleared that all the Writs of Summons directed to Sheriffs in King John and Henry the Third's time before 49 H. 3. to send Knights to the King at set times were either for Information of the Council what voluntary aid each particular County would grant the King in his great necessity or to assist with Men and Arms and were not elected as Representatives of the Commons till 49 H. 3. To whom I shall refer the curious for Satisfaction as also to Dr. Brady who hath by his own Inspection as well as the considerate application of what Mr. Prynn hath amassed in his Books since his late Majesties Restauration and after 1648 composed many most useful Observations for the understanding of the ancient customs usages and practices relating to Parliaments Therefore I shall endeavour to be as short as possibly I can and without obscurity contract what they and most others that treat of the House of Commons have at large filled Volumes with The form of the Writ 49 H. 3. to the Sheriffs is not (d) Cl. 49 H. 3. m. 11â dorso expressed but after the recital of the Writ to the Bishop of Duresm and Norwich and the eodem modo to the Bishops Abbats Priors Deans Earls Lords and Barons there follows this entry
ordained in the Premisses by the Common Council and so the Returns are ad faciendum quod tunc ibidem ordinabitur In 17 E. 2. (h) Cl. 17 E. 2. m. 27. dorso it is enjoyned that the Knights c. be there ad faciendum consentiendum hiis quae in dicto Parliamento ordinari contigerit super negotiis antedictis Anno 21 E. 3. (i) Cl. 21 E. 3. m. 12. dorso there is some more Power granted to the Knights c. ad tractandum consulendum consentiendum hiis quae tunc favente divina Clementia contigerit ordinari Whereas before it was only to hear and do what was ordained by the King the Prince or the great Council here it is to treat consult and consent to what then should be ordained But the Writ Anno 36. (k) Cl. 36 E. 3. m. 16. dorso explains who had the ordaining Power for it runs ad consentiendum hiis quae per nos ac dictos Praelatos Magnates Proceres ordinari contigerit So here the King the Bishops and the Nobles ordain and the House of Commons are to assent Anno 47 E. 3. (l) Cl. 47 E. 3. m. 13. dorso the words are ad faciendum consentiendum eis quae tunc de Communi Concilio Regni nostri favente Domino contingant ordinari which Form is continued to this day so that according to the import of the Writ the Commons are to do and assent to what shall be ordained in Parliament by which two words I suppose they have the full Power to frame Bills and to assent which also implies a Power of Dissent to the Bills sent to them by the House of Lords Having thus drawn into one Scheme the most material Alterations and variety of Expressions from all the Writs of Summons of Mr. Prynne and others that fill so great Volumes and truly as I hope quoted all the Records which illustrate these Particulars and in a very clear Landscape represented the most material Parts of the two so noble and wisely constituted Houses from whose great Wisdom with the Sovereigns Authority and Fiat all those wholesome and necessary Laws are derived that establish this great Monarchy I shall now pass to some general Remarques and from thence to the ancient and modern Priviledges of the House of Commons First it is very obvious Kings not confined to two Knights c. that the Kings of England formerly were not confined to summon only two Knights Citizens and Burgesses as now for Anno 22 (m) Cl. 22 E. 1. m. 6. dorso E. 1. the King issued out his Writs of Summons for two Knights of every County after which follows a second Writ entred immediately after in the same Dorse for other two Knights in these words Praeter illos duos Milites eligi facias alios duos Milites legales c. So 28 E. 1. three Knights or other three de probioribus legalioribus discretioribus Liberis Hominibus c. eligi These probi legales homines were such as held in Capite So in the (n) Cl. 26 E. 3. m 14. dorso Vâ hâmines ab ista occupaââone autumpâalibus quo minus possumus retrahamus 26 of E. 3. the King considering that it was Harvest time that he might not withdraw Men from that Employment unum tantum Militem de quolibet Comitatu ad dictum Concilium mittendum habere volumus ista vice So (o) Cl. 45 E. 3. m. 21. dorso Ordinavimus ut laboribus parâatur expensis 45 E. 3. the King in his Writ saith That he might spare the Labours and Expences he will have treaty with some only of the Magnates by which the Knights of Shires here are to be understood Citizens and Burgesses One Citizen and one Burgess therefore appoints one Knight for the County of Kent one Citizen for Canterbury and one for Rochester whom he names if they be alive otherwise the Companion of him that was before In 18 E. 3. the Writs issued only for two (p) Brevia Parl. rediviva p. 144. ad 147. Knights in every County and no Writ for Electing Citizens or Burgesses and 26 E. 3. the Writs are for one Knight in every County and no Citizens or Burgesses yet in (q) These things are now reduced to a certainty by the Statutes 5 R. 2. c. 4. and others Prynne's Brief Regisâ par 2 p. 32. this the King issued out particular Writs to Mayors and Bailiffs oâ Cities and Burroughs to elect and return one Citizen for every City and one Burgess for every Burrough Secondly That the Kings of England had a Power to supersede particular Persons being chosen to resummon those that returned without leave or appoint others in their places and omit sending Writs to some Cities and Burroughs that had formerly sent and to create new Burroughs So the Lord Camoys (r) See Brief Regist p. 118. ad 123. as I have instanced before being elected by the King 's first Writ the King by new Writ declared it null and ordered to proceed to a new Election and the King appears in that Age to be the sole Judge of void and double Elections So in the (s) Cl. 28 E. 1. m. 7. dorso 28 Ed. 1. Phillip de Geyton being chosen one of the Knights for the County of Northampton and could not attend the King orders another to be chosen So 5 (t) Cl. 5 E. 2. m. 26. dorso E. 2. because the Knights Citizens and Burgesses of Yorkshire went away for certain causes not there expressed it is probable without the Kings Leave therefore he sends his Precept to the Sheriff to cause them to return vel alios ad hoc idoneos loco eorum si ad hoc vacare non possint But this more especially is to be taken notice of when I come to discouse of Priviledges of Parliament As to the last particular of the King 's appointing new Burroughs The King makes new Burroughs impowering them by special Charters to send Citizens and Burgesses to all Parliaments to be afterwards held by the King his Heirs and Successors Judge (u) Reports p. 14 15. Hobarts hath cleared it and (w) Brief Register par 2. p. 170. Mr. Prynne hath reduce them all into Chronological Tables and he makes it a certain Note that where the Sheriff makes his Return nulli sunt Cives nec Burgenses in Com. praedict or non est alia Civitas vel Burgus or non sunt alii Burgi we may certainly conclude that every City or Burrough omitted then out of those ancient Returns and since returned for Cities or Burroughs were made Cities and Burroughs since that time as the curious may see at large in his (x) P. 223. ad 297. Brevia Parliamenta Rediviva But on the other side Old Burroughs discontinued for what reason we find many Burroughs who elected Burgesses in 26 E. 1. as particularly Pontefract and
Council being in the Charter to my judgment reckoned as one of their Franchises or rather something exceeding their municipal Liberties and Free Customs being coupled to them with an and to have a Priviledge to have some of them Members of the great Council of the Kingdom What the Tenents in Capite were summoned for for so I think the words ad habendum commune Concilium Regni de Auxiliis must be understood But then when it is restricted there with de Auxiliis only it may very well give a ground to their opinion that think the principal use was to proportion the Aid or Tax and assent to what the King the Bishops Abbats Priors Earls Barons and Peers did ordain However this was That such great Numbers sate not with the Lords it seems clear to me that this numerous body of so different an Order from the Barons majores must have a distinct Place for consulting apart and must select Committees to transact with the King and Lords and must for order sake appoint some to speak for them what they petitioned for or assented to and could not constantly sit with the Prelates and Lords and do rather believe that the Prelates had one place where they sate and the Barons another and these Tenents in Capite a third at least for their usual Consultations among their own Order and met in the public place when there was occasion or might have access by Committees which certainly was the practice in after-times as appears in that Parliament of 6 E. 3. (k) Rot. Parl. 6 E. 3. num 2. Cest assavoir les Prelââz par eux meâmes les ditz Countes Barouns autres Grantz par eux mesmes auxint les Chivalers des Countes par eux mesmes No mention of Citizens or Burgesses the morrow after the Nativity of our Lady the King requiring the advice of his Parliament touching his French Affairs and Voyage thither It is said they thereupon treated and deliberated that is to say the Prelates by themselves and the said Earls Barons and other great men by themselves and also the Knights of the Counties by themselves and then gave their advice From whence by the way we may observe the true ground of calling our Parliament Houses without the King the three Estates Having dispatched this I come now to consider the Speakers of the House of Commons Hackwel (l) Modââ tenendi p. 200. Method of Parl. 124. The first Speaker upon Record and Elsyng name the first that is found upon Record to be Sir William Trussel 13 E. 3. Num. 9. where it is said Les Chivalers des Countes les Commons responderent per Monsieur William Trussel but the Record names him not Speaker however he performed that Office then Hackwel names Scroope before him 6 E. 3. and Sir Peter de la Mare after him but the first that Mr. Elsyng or Mr. Prynne (m) Prynne's Abridgment p. 151. finds upon Record and by the name of Speaker is Sir Thomas Hungerford 51 E. 3. for it is said that the last day of the Parliament he declared that during the Parliament he had generally moved the King to pardon all such as were in the last Parliament unjustly convicted which imports that this was a Petition of the Commons presented by him their Speaker Anno 1 R. 2. Sir Peter de la Mare being Speaker made his Protestation that what he had to say was from the whole House therefore required if he should speak any thing haply without their consents that the same ought to be amended before his departure from the said place The first Petition we meet with that a Speaker (n) Abridgment of Records p. 174. Petition for Freedom of Speech made to the King from the Commons was 2 R. 2. by Sir James Pickering their Speaker that if he should speak any thing that haply might be ill taken it might be as nothing so as the Commons might at any time amend the same and the like he petitioned for himself which is the first Petition as to Liberty of Speech we meet with The first Speaker presented to the King in full (o) Id. p. 360. Parliament by the Commons 20 Ric. 2. was Sir John Bushey the King 's great Favourite In this Parliament the Houses sate together in a long (p) Hackwel Moâus p. 202. House built of Timber in the Palace-Yard at the Impeachment of the Duke of Gloucester the Earls of Arundel and Warwick Sir Arnold Savage was Speaker 2 H. 4. who is the first upon Record that the Commons were required by the King to chuse as Speaker and he was again in 5 H. 4. who desired the King in the name of the Commons that they might freely make complaint of any thing amiss in Government which was yielded to by the King Anno 7 H. 4. Sir John Tiptost was chosen Speaker who desired to be discharged because of his Youth but he was allowed he forgot to make the usual Protestation but came up the next day and made it with this Addition (q) Rot. Parl. 7 H. 4. num 6. That if any Writing were delivered by the Commons in this Parliament and they should desire to have it again to amend any thing therein it might be restored to them which was granted While he was Speaker he Signed and Sealed the Deeds of the entailing of the Crown on H. 4. (r) 7 H. 4. with these words Nomine totius Communitatis He was a Person of extraordinary Parts Son of John Lord Tiptost and for all the Apology for his young Age he was within three Years after made Lord Treasurer of Enggland and by H. 6. made Marquess of Worcester Anno 1 H. 5. William Sturton Esquire was chosen Speaker who without the assent of his Companions did agree before the King to deliver in Parliament certain Articles but three days after the Commons sent Sir John Doreword (r) 7 H. 4. with several of their Members to the House of Lords to declare to the King that their Speaker had no Authority from them to yield thereto and the King was pleased to accept of it There are three Petitions the approved Speaker makes to the King First That the Commons may have freedom of Speech as of (s) 25 H. 1. num 10. The Speakers of latter Times express the particular Privilege of Freedom from Arrest right and custom they have had and all their ancient and just Privileges and Liberties allowed them In Sir Thomas Moor's Speech 14 H. 8. it was thus worded That if in communication and reasoning any man in the Commons House should speak more largely than of duty they ought to do that all such offences should be pardoned and to be entred upon Record which was granted only I find that H. 4. (t) Rot. Parl. H. 4. num 10. said that the hoped or doubted not that the Members of Parliament would not speak any unfitting thing or abuse
Entries fol. 446 447. Trin. 1 Eliz. not in the Commons House as the Statutes and Precedents in the Law-Books resolve So that he saith how the Commons are now become sole Judges of all false Returns and Elections and that perlegem consuetudinem Parliamenti against all these Acts and Precedents let Sir Edward Coke and others resolve him and the Intelligent when they are able for late and arbitrary Priviledges are of no value but ancient usage and Law of our Parliaments and solid Reason which cannot be produced to justify these late Innovations and Extravagances The Statute of 8 H. 6. Rot. Parl. 8 H. 6. num 391. Petitions from the Commons to the King and Lords about Elections to prevent Tumults Uproars and Disorders in the Elections is grounded upon a Petition from the Commons that the King by advice and assent of the Lords Spiritual and Temporal would seclude all but Freeholders of forty Shillings a Year Lands above all Reprizals which was more than forty Pound a Year now being the twentieth part of a Knights Fee In 18 H. 6. Rot. Parl. 18 H. 6. m. 13. num 18. it was shewed to the King and the Lords Spiritual and Temporal That Gilbert Hore Sheriff of the County of Cambridge made no Return of Knights upon the King 's Writ Whereupon the King by Advice and Assent of the Lord Spiritual and Temporal ordered a new Writ So that then there were no other but the King that had the Power to cause new Elections with Advice and Consent of the Lords and so the King issued out new Writs Anno 29 H. 6. Nicholas Stynecle Knight Richard Bevel c. and other notable Esquires Gentlemen and other Men holding Fees who may expend 40 s. per Annum beyond Reprizes chose Robert Stonham and John Stynecle notable Esquires To this is annexed a Petition to the King our Gracious and Sovereign Lord Petition of Subjects to the King about Elections signed by 140 Gentlemen and Freeholders in behalf of those against one Henry Gimber who was not of Gentile Birth chosen by the number of 70. and the Under-Sheriff countenanced him and his Party and would not suffer these 140 to be examined about their Estates and give Voice thoue he might clearly yarely expend 20 Mark without that we should have offended the Peace of Yow our most doutye Soveraign Lord and so we departed for dread of the said Inconveniences that was likely to be done of Manslaughter and what the Sheriff will return in this behalf we can have no notice For which Causes we your true humble Suggets and Liegemen in our most lowly Wise beseeching you our most douty Sovereign Lord and King these Premisses may be considered for Your most Aid and our Freedom that the said Sheriff may be by Your great Highness streightly charged to return the said Robert Stoneham c. Thus far the Petition From this memorable Petition Mr. Prynne makes many observations the principal of which are that the King himself was to redress and rectify all false and undue Returns Secondly That this is the only clear Declaration and Record he hath met with complaining against a Sheriff giving of an Oath A Sheriffs denying the Poll petitioned against and Poll to some Freeholders and denying it to others Thirdly That when legal Electors cannot be sworn or polled without breach of the Peace or Manslaughter they may justly depart and ought to make such a complaint and declaration under their hands and Seals Fourthly That Ignoble persons who are not of Gentile birth ought not to be elected Knights of Shires Whoever desires to peruse more concerning the ancient usage in Elections may peruse Mr. Prynne's Plea for the Lords from page 371. to 416. his Second Part of Brief Register p. 118 119 139 140. and several other places I shall only add what Queen Eliz. Freeholders Grand Inquest p. 60. D' Ewes's Journal fol. 393. 18 Regni said in this case That she was sorry the Commons medled with chusing and returning Knights of the Shire for Norfolk it is to be presumed the like she might have said of any other County if there had been occasion a thing impertinent for the House to deal with and only belonging to the Office and Charge of the Lord Chancellor from whom the Writs issue and are returned Having thus given a brief account of the ancient Usage I come to the modern way which according to Mr. Hackwell Memorials c. 6. p. 20. The modern Use of Regulating Elections is that a general order hath usually been made in the beginning of the Session to Authorize the Speaker to give Warrant for new Writs in case of Death of any Member or of double Returns where the Party makes his choice openly in the House during that Session as it was ordered in the beginning of the Parliament 18 and 21 Jacobi primi and where such general Order is not made Writs have issued by Warrant of the Speaker by Vertue of special Order upon motion in the House and this Warrant is to be directed to the Clerk of the Crown in Chancery by order of Parliament 13 Nov. 1601. The Committee of Privileges 24 March 21 Jacobi making their Report a question was put Whether Sir Thomas Holland and Sir John Corbet were well elected Knights for Norfolk the House were divided and it was over-ruled by the House that the No's should go forth So that now the House of Commons are the sole Judges of the validity or invalidity of Elections and I suppose the King and Lords judging the House the competentest Persons to make enquiry and being willing to be eased of the trouble of such Matters as relate only to the Members of the House of Commons have rather by connivence than by any positive Ordinance in the House of Lords dismissed this to the House of Commons against which Mr. Prynne sadly complains Plea for the Lords p. 413. saying That since the Committees of Privileges have interposed in them their Proceedings have been very irregular and illegal in respect all the Witnesses they examine touching them are unsworn and give their Testimonies without Oath upon which they ground their Vote and for the most part very partially for which cause it is usually stiled the Committee of Affection In 35 Eliz. Sir Simon D' Ewes's Journal p. 494. In Queen Elizabeth's time Application made to the Chancellor or L. Keeper Sir Edward Coke being then Speaker he was ordered to attend the Lord Keeper to move his Lordship to direct a new Writ for chusing a Burgess for Southwark instead of Richard Hutton supposed to be unduly elected and another for allowing Sir George Carew who was duly elected but not returned to be Burgess of Gamelsford in Cornwal and a third for changing the name of John Dudley returned Burgess for New Town in the County of Southampton into the name of Thomas Dudley the Christened Name being mistaken But the L. Keeper would
allow no alteration but in that of Dudley Which makes some observe Lawyer out-lawed p. 12. That if the House of Commons had then known they had any Power to mend the said Returns or punish the Offenders or Sir Edward Coke had known it had been Law he had never been sent on that Message So that what Authority the House hath it hath accrued since SECT 11. Concerning the House of Commons Censuring Imprisoning and Expelling their own Members AS to the Commons Imprisoning and Punishing their own Members The Reasons for this Privilege for words by them spoken or Misdemeanors committed in the House there may be some reason for it First Stat. 4. H. 8. c. 8. Coke 4. Instit p. 25. 31 H. 6. c. 26 27. because by Law they are not Punishable elsewhere for any rash indeliberate and inordinate Speeches in Parliament which do not amount to Treason Felony or Breach of the Peace which it is supposed none in that rightly constituted House will protect though done in the House of Commons begun in 1641. Secondly It is to be supposed that the Members upon their entring into that House unanimously agree for order sake that the lesser number should always submit to the greater So by such Consent and original Compact every single Member submitting himself to the rest he hath no such reason to complain although they had no such Authority for scienti volenti non fit Injuria provided that they exceed not the common Rules of Justice nor the Bounds of Established Laws for then no private Act can bind a Subject though made with his own free Consent as appears in Clark's Case against the Mayor and Burgesses of St. Albans Coke lib. 5. p. 64. The first Precedent I find that any Member of the House of Commons was complained and Petitioned against for Misdemeanors and put to answer before the King and Lords in Parliament Rot. Parl. 16. R. 2. num 6. and there judged and fined was 16 R. 2. the Wednesday after the Parliament began when Sir Philip Courtney Members of the House of Commons punished for Misdemeanour by the King and Lords returned one of the Knights for Devonshire came before the King in full Parliament and said that he understood how certain people had accused and slandered him to the King and Lords therefore prayed to be discharged of the said Imployment until the accusations c. were tryed and because his said Prayer seemed honest to the King and the Lords the King granted him his Request and discharged him in full Parliament Exact Abridgment p. 417. and the Monday following at the Instance and Prayer of the Commons the King granted that he should be restored and remitted to his Place In the Parliament 4 H. 4. the accusations against him being re-inforced the King and Lords adjudged that he should be bound to his good Behaviour and committed to the Tower for his Contempt By which saith Mr. Prynne it appears Plea for the Lords p. 386 387. That only the King and Lords in full Parliament can suspend or discharge any Knights or Commoners sitting in Parliament and have Power of restoring and re-admitting a suspended Member of the Commons House and he answers the Precedents that Sir Edward Coke brings 4 Instit p. 23 and 3 Inst p. 22. Vide pag. 296 297 299 344 371 372 373. and many others which would be tedious here to insert The first Precedent he finds The first Precedent of the House of Commons secluding their Members that the Commons began to seclude one another upon Pretence of undue Elections and Returns was in Queen Elizabeth's time when Thomas Lucy 8 Eliz. was removed out of the House for giving four Pound to the Mayor of Westbury to be chosen a Burgess and the Mayor fined and imprisoned and 23 Eliz. Mr. A. Hâll for publishing the Conferences of the House and writing a Book to the dishonour of the House was committed to the Tower for six Months and fined five hundred Mark and expelled the House and in King Charles the First 's time this Power over their Fellow-Members was greatly improved in which how far Mr. Prynne then concurred I know not but after he was secluded he every where writes with great earnestness against this usage but whether with Judgment Law and Reason I shall leave others to judge only I think fit to insert some of his Invectives against the Proceedings of that unparallell'd house of Commons First he saith There can be no legal Trial or Judgment given in Parliament in Criminal Causes or others Id. p. 309. Mr. Prynne's Reasons against this Usage without Examination of Witnesses upon Oath as in all other Courts of Justice which the House of Commons cannot do Littleton sect 212. Coke ibid. Secondly That it is a Rule both of Law and Justice That no Man can be an Informer Prosecutor and Judge too of the persons prosecuted and informed against the Commons being in the nature of the Grand Inquest Coke 4. Inst p. 24. being summoned from all parts of the Kingdom to present Publick Grievances and Delinquents to the King and Peers for their Redress Plea for the Lords p. 373. Thirdly That all the objected Precedents are of very puny date within time of memory therefore unable to create a Law or Custom of Parliament or any right of sole Judicature in the House of Commons Fourthly Id. p. 387. That all these Precedents were made by the Commons themselves unfit Judges in their own Cases much less over one another being all of equal Authority so that in his opinion they could no more expel or eject any of their Members by their own Authority without the King and Lords concurrent consent See Legal Vindication p. 10. than one Justice of Peace Committeeman or Militia-man can unjustice or remove another since par in parem non habet potestatem neither in Ecclesiastical Civil Id. p. 373. Military or Domestick Affairs Fifthly That they are all against Law because coram non Judice he having throughout the whole Discourse endeavoured to prove That the Commons have no right or power of Judicature much less of sole Judicature in our Parliaments but only the King and Lords Sixthly That these Precedents are but few never judicially argued and rather connived at than approved by the King and Lords taken up with other more publick business therefore passing sub silentio they can make no Law or Right as is resolved in Long 5 E. 4. fol. 110. Cook 's four Rep. fol. 93 94. Slade's Case and six Rep. fol. 75. Drurie's Case Seventhly In the long Parliament of King Charles the First they began to seclude Projectors Exact Collections of Ordinances p. 541. to 558. Monopolists c. though duly elected then suspended and ejected such who were Royalists and adhered to the King then they proceeded to imprison and eject those Members Plea for the Lords p.
scarce one particular Branch of the Constitution of the Monarchy the black Parliament did not alter I have been obliged under all those Heads to examine their Principles detect their Frauds sinister designs and the mischievous Consequences of those alterations or subversions they made and have treated so much the largelier of those Pests of all Governments Faction Sedition and Rebellion as I conceived the quiet repose and tranquillity of the Government required it Yet I flatter my self that all concerned therein will take my advice reasoning and collections in good part Since I have no other design but to prevent their Personal Rain and the Calamities that have been so wastingly brought upon these Kingdoms by them and may be brought again if ever the like should be attempted For the effectual prevention of which I am in hopes that the right understanding the Constitution of the Government will be an useful Antidote and would wish all Male-contents to consider what the consulting of History and their own Experience may teach them that however the English Monarchy for a time by Faction Sedition or Rebellion may be weakned or Eclipsed yet the just Monarohy like the Sun ever dissipates all the Mists hazy Weather and Clouds and will at last though sometimes not without Thunder and Lightning clear the Air and shine with more Powerfullness and Splendor than before The rude shocks of popular Disturbance do but more securely establish the Throne It being the Prudence of every Governour to make more defensible that part of the Fortress which by any Assault hath been found most weak and untenable As I have endeavoured on the one hand to keep the Subjects in their Duty and by all Dehortments reclaim them from Sedition and Rebellion and have laid open the ancient State of the Government and the absoluteness of our Princes for some Ages after the Conquest nevertheless I would not be understood to intend the reducing the Subject to their Pristine Bondage This is far from my Thoughts What I have done in this kind is not only because the subject matter required the describing the ancient Model of the Government and that of late the Power of our Monarchs hath been endeavoured to be too much restrained but principally upon three Accounts First to discover the gradual Relaxations of the absoluteness of our Princes for the greater case of the Subjects Secondly to let all know that our Liberties Priviledges and Immunities have proceeded from the Grants Benevolences and Gracious Condescensions of our Kings Thirdly to induce the Subjects with due thankfullness to acknowledg the bountiful Favour of our Soveraigns and the Wisdom of our Ancestors in solliciting for and obtaining such Liberties as we enjoy beyond the degree of any Subjects either to Crowned Heads or Republicks There being such Barriers set in England betwixt the Soveraign and his Subjects as neither can remove without fatal Inconvenience For as the Princes greatest Ease Prosperity and Glory is when he Reigns not so much over the bodies as in the hearts of his Subjects and rules by the Laws So the Peoples Profit Plenty and Tranquillity is the most certain and established when they are content with the Enfranchisements the Laws allow and endeavour not to invade the Prerogatives of the Crown as the Houses of Parliament ãâã ãâã ãâã ãâã ãâã 6. Hist p. 452. C. convened 1641. did by their dethroning Propositions and Bills which if they had been granted would not only have unsoveraigned the King but rendred the condition of the Subject more miserable and enslaved than it had been for many centuries of years by-past I have endeavoured in the whole work to discover how much the English Monarchy excells other ancient and modern Governments and even the Utopia and Fictitious Ideas of the Philosophers The judicious Polybius hath a memorable observation That every Monarchy is not to be called a Kingdom but that only which is yielded to by the willing that is which is freely submitted to to distinguish it from Tyranny and which is governed by Counsel rather than by fear or force Also that every Government of few is not to be called the Principality of the Optimacy but that wherein the just and Prudent by Election have the Power That he saith further is not to be called the Empire of the People where every multitude hath Power of doing what they will or purpose but where the Countries Customes flourish where the Gods are worshipped Parents honoured the Elder Persons reverenced and the Laws obeyed All which I hope I have made apparent are better provided for in our Hereditary Monarchy than in any other known Government especially as to the Peoples benefit in the rare Constitution of the Legislative and yet the Soveraign hath retained sufficient Power to secure the Peace of his Countries and be able to bear the Port of a great and just Monarch In this Treatise I meddle not with the Arcana Imperii they have too much of Majesty impressed upon them to be described by such Pencils as I can use and like the Kings Coin are incircled with a Decus Tutamen may neither be clipped nor adulterated Neither have I medled with the Religious part of the Government that not being my Province I write abstractedly of the Soveraign and the Constitution without regard to the Religion of the Prince as being well satisfied that whatever Qualifications the Subjects may wish for in their Prince yet Religion qua Religion should neither influence the Succession nor their Obedience In so great an undertaking I hope it will be considered that as in a great Building all the Rooms are not alike richly furnished There are some Vtensils fit for the Kitchin which are not for the Dining Room Some Pictures suit the Hall others the Stair-case Such as are for Chimney-pieces are not agreeable to the Great Chamber The choicest are fit for the withdrawing Room and the enriched Closets So in this work I am obliged to keep a decorum In some places I have reason to use a more close and contracted in others a more free and loose way of Arguing Sometimes I am forced to use the significant though obsolete Saxon or the crabbed Terms of Law and Arts and intermix the less refined Sentences of old Authors according as the subject matter required so that I could no waies use that politeness of phrase or roundness of Periodâ the curious may expect I presume not that every one will be equally delighted with the researches I have made into the usages of remote Ages or with the Censures upon some mens later Actions But most I hope will find good use of either and when they consider I have endeavored to follow great Authors and have faithfully quoted them they will more readily acquit me Therefore I beg that the Ingenious Peruser will not pass his Censure upon parcels but after he hath perused the whole will be so charitable to believe that those Parts which are less acceptable to him
may be grateful to others and will allow that in so great a work wherein much variety of Reading and Argument was requisite I cannot expect to adapt things to the Genius of every one Yet as far as I am able even in this particular I have endeavoured it Non vero nudas sparsas sententias dedimus nediâ Huerent effet quod dicitur Arena sine Calce sed eas inter se haud indecentervinximus interdum velut cemento quodam commitimus nostrorum verborum Ut Phrygâones e varii coloris filo unum aliquod Aulaeum formant sic nos e mille aliquot particulis uniforme hoc cohaerens corpus Lipsii Polit. de Concilio Forma Operis by interspersing in every Chapter either Historical Remarques or the weighty Sentences of Grave Authors and though I lose some of the Elegancy and Emphasis in rendring them into English yet I hope the Reader will have recourse to the Margent where he will find I have not wittingly falsified any Quotation What Apologie Lipsius makes for himself I must crave the benefit of That though I have culled out from Learned Authors great variety of Sentences yet I have not so scatteringly strowed them that they might seem Sand without Lime but have with such Cement as I could not undecently inlaid them And as the workers of Hangings from threads of divers colours weave one piece of Tapistry So from a thousand Arguments and materials I have fashioned the uniform and connected discourse of the English Monarchy which though in single branches hath with great Judgment and Arts been composed by others yet that I know of hath not been so digested in one body before This consideration leads me to another necessary Apology for my self that whereas by an heedlesness I dare not excuse I had not in my first draught noted the Pages in some Modern Authors nor the Authors themselves yet have transcribed their whole Sentences I desire the candid Authors and Reader not to Interpret this a studied Plagiarism but rather impute it to the good Opinion I had of the vivacity and significancy of their expressions which made me insert them and no design to vend stollen Wares undiscovered for it will be easily found that I challenge them not as my own and if the attentive collate such places he will find that what ever rich Gemms or Metals I have borrowed I have endeavoured to place them with advantage and though I cannot say I have enriched them in the setting yet have mostly used some workmanship about them or have added some ancient Authority parallel to them This having been the product of many spare Hours and my Profession which no other studies have ever interfered with having often obliged me to leave the matter abruptly in the middle of a Paragraph whereby I returned not again to it with the same warmth and train of thoughts and the sending up my Copy in parcels at distant times to the Press I hope will prevail with the considerate to pardon what inconnexion broken ends or some small repetition may be found in it I must here also advertise the Reader that the whole Original was writ and the most part Printed before the last Session of Parliament Nov. the 9th So that what hath fallen out since he can expect no touches upon and though at present the Harmony be not the same that was formerly betwixt the King and his two Houses yet it is to be hoped that betwixt so Wise and Gracious a King and so Loyal a Parliament there can be no long discord especially when it is considered who will have the greatest advantage by it If this Treatise contribute any thing to it I shall think my self very happy However I hope Gentlemen and Scholars will find it a pleasing divertisement in their Closets and Studies it being fitted for the hours of such recess and upon every head there being variety of matter collected and great Volumes epitomized and several Authors noted who treat upon that Subject it will be a Promptuary or Common-place out of which many out of this Ore upon occasions of moment may digest for their own use refineder notions and having a competent store of Observations from Writers of good esteem laid before them may with more ease bring them to the Test of their own Judgments Having dealt thus frankly with all I hope Gentlemen will allow me that plea which most require that for some Moles Dimples or Scars an otherwise tolerable mien is not to be contemned and though I must expect the fate of all Builders that most will conclude they could have contrived better In magnis veluse yat est yet I hope three things First That the well-wishers to English Monarchy will have a favourable opinion of the design what ever they have of the performance Secondly That this may excite some who have more leisure greater helps and more refined Judgments to undertake this useful subject with happier Auspices And lastly That none will entertain a worse opinion of the Government by reason of my unskilful describing of it or despise the whole because I may for all my Circumspection have committed Errors in following the Sentiments of some Authors or mistaken the true sence of any of them which hath not been done willfully by N. Johnston OF THE EXCELLENCY OF Monarchical Government Especially of the English Monarchy WHEREIN Is largely Treated of the several Benefits of KINGLY GOVERNMENT and the Inconvenience of COMMON-WEALTHS c. CHAP. I. A Comparison of the Body Natural and Politic with an account of the subject Matter treated of FROM the Contemplation of our selves in the Faculties of our Souls and the Subservience of our Bodies no doubt wise Men have fram'd the Idaeas of Government with is agreeable to what the Great and Ancient Philosopher (a) ãâã ãâã ãâã ãâã ãâã Arist Polit. lib. 1. c. 5. notes That every living Creature consists of Body and Soul whereof the one by Nature commands and the other obeys and in another place (b) ãâã ãâã ãâã ãâã ãâã Ib. he distinguisheth the manner of the Soul's Rule in that it rules the Body by a Masterly and Absolute and the Mind rules the Affections by a Kingly Command As the Natural Body consists of Head and Members made stable and erect by the Bones tyed together and curiously interwoven by the Nerves Ligaments Tendons Muscles and Membranes Comparison of the natural with the Politic body pervaded by the nutritious juice Lympha and Blood irradiated by Natural Vital and Animal spirits animated and enlivened in all its motions by the Energy of a Rational Soul So in the Political the Sovereign the Head and the People the Members are held together by the strong Sinews and Nerves of good Laws and Political Constitutions actuated and enlivened in all their motions by the influence of the Prince and his Government as the Soul Archaeus and Coelestial fire whereby every Member performs its Offices in this
great Oeconomy the whole System is kept in regular and orderly Motion is firmly established and enabled to exert all those beneficial Powers that are admired in a well composed Body Politic. The Body without the Head being but a Trunk and inanimate Carcase and the Head without the Body as a curious piece of Clock-work without Motion It must be owned to be a noble Enterprise to make researches into the constituent Parts Harmony and Composure of Government which is that benign Supreme Power which influenceth vast Societies of men and combines all tempers constitutions and interests in one noble Machine for the benefit of the whole and every part and makes every Dominion a little World wherein Beauty Order and the Blessings of this Life are inspired into all the Members how minute soever with that calmness when no disturbances are given it that we scarce hear the motions of the (c) Sic orbem Reipubliâe esse conversum ut vix sonitum audire vix impressam orbitam viâere possumus Cic. ââ Attic. Ep. 36. Machine or see the Springs that move it But as in the Body Natural the (*) ãâã ãâã ãâã ãâã ãâã Philosopher observes That by the turbulence of depraved Appetites by heady Rashness and seducing Passions in the vitious and ill-affected the Body seems to command the Soul and Reason is dethron'd So in the Commonweal when from mistakes and misguided Zeal Discontent Ambition and other vitious Inclinations People are infected whereby the Malignant Fever of Sedition or the Pest of Rebellion rageth in a State the Sovereign is for a time kept from the Exercise of his Royal Power The Scheme of the whole work and sometimes dethron'd But to leave this pleasing Allegory which I could pursue in comparing all the Members of the Body and Faculties of the Soul with the constituent Parts and Offices of Government I shall instead of that draw a short Scheme of my design in this Work which I had never undertaken if it had not been that I was invited to it by a Great and Wise Minister of State My Lord President whose glorious Service to his Prince and Country will be celebrated in remotest Ages and having liv'd to make some Observations on the Causes and Managery of the Rebellion against King Charles the Martyr and the tendency to another Civil War of later date and revolving with my self that though many wise and judicious Persons both know and have learnedly writ of the secret Springs and Movements of them infinitely beyond what I can pretend to and that both our own Country-men have in Parts writ of all the branches of the English Government and many Foreigners of Politics in general or such as were fitted for the Governments under which they lived yet having met with none that had so particularly writ of the Excellency of the English Monarchy as to illustrate it so as it might be useful to the preventing Seditions and Rebellions and to clear the Commodiousness and Necessity of submitting to it and placing a great Portion of our happiness here in living under it I conceived it might be a profitable Essay to excite those who have not leisure and opportunity to peruse great and numerous Volumes to extract for their use such things as had occurred in my poor Reading to induce them to prize it as they ought and to furnish them with such Arguments as my low Reasoning was able whereby to answer the Objections of our late Republicans against it and discover their Methods of Proceedings towards the overthrowing it and to caution all the well-meaning Subjects against all the Arts of Factious and Seditious People and Principles And though I cannot promise my self the success I wish yet I hope I may excite some more knowing learned and judicious to furnish our little World with a more Copious and Elaborate Piece which may supply my defects and more abundantly satisfy the ingenious and curious Reader to whom I shall now draw the Curtain and expose the Model of the designed Work First Therefore (d) cap. 2. as a Foundation I shall treat of the necessity of Government in General In which Chapter I shall discourse of its Original in Families c. (e) cap. 3. Then that the People are not the original of Government Then (f) cap. 4. of the benefit of Government in instituting Laws In (g) cap. 5. securing Property and other particulars From this I proceed to treat of the (h) cap. 6. inconvenience of Democracy and of the several (i) cap. 7. Forms of Common Wealth Governments before and in Aristotle's time After which (k) cap. 8. of the inconvenience of all kinds of Republick Governments Then of the preference (l) cap. 9. of Monarchical Government before all others In all which Chapters I touch upon the Principles and Practices of our late Republicans which having dispatched I give the Character of a good (m) cap. 10. King in general Then that the care (n) cap. 11. of Religion is incumbent upon Kings Then of the (o) cap. 12. Clemency Prudence (p) cap. 13. Courage (q) cap. 14. and Military Conduct of Kings of the (r) cap. 15. burden and care of Kings (s) cap. 16. The Excellency of Hereditary Monarchy Then I proceed to the King's Authority and (t) cap. 17. Sovereignty in general and more (u) cap. 18. particularly according to our Laws by the Enumeration of many particulars (w) cap. 19. Then as a Corollary that the Sovereign is not accountable to any upon Earth That the King is not to be (x) cap. 20. Resisted or Rebelled against In what cases he may (y) cap. 21. dispence with the Execution of the Laws of his Country Then I treat of the King's Authority (z) cap. 22. in making Laws and of the Laws of the Romans in Britain and of the British and German Polity Next of the Saxons (a) cap. 23. great Councils of whom they consisted and how the Laws were established by the respective Kings Then of the great (b) cap. 24. Councils from the Conquest to the beginning of Hen. 3. Then of the great Councils (c) cap. 25. and Parliaments during the Reign of Hen. 3. to the end of Edw. 3. After which of the Parliaments (d) cap. 26. of England during the Reign of Edw. 2. to the 22. of King Charles the 2d Then of Modern (e) cap. 27. rightly constituted Parliaments and of the Factious (f) cap. 28. Members of Parliaments wherein I discourse at large of the Encroachments of some Parliaments especially of some Houses of Commons Then from the great Council I pass to the (g) cap. 29. Right Honourable the Privy Council their Qualifications to be at the King 's sole appointing Of Ministers (h) cap. 30. of State c. Then of the King's Sovereignty in appointing (i) cap. 31. Magistrates (k) cap. 32.
found the greatest perfections of Human Nature to ãâã the like They do so justly and clearly support the Grandeur of Majesty the Dignity of the Crown with the Peace Liberty and Property of the Subject Whether Property was before Government or not that all Nations round about envy us for that felicity they can never hope to enjoy To disturb this blessed condition of the English Subject there are two Extremes The one of a People fond of a Notion of the Primitive fundamental of Government in the People that they will needs have Property in order of Nature before Government without considering that nothing is gained to their advantage by the concession of it For it must also be (f) Bishop of Lincoln's Preface to Power of Princes proved that it was before it in order of time for as one of the principal ends of Government is the preservation of mens acquisitions of Cattle and Fields by their industry so we must suppose some Government first because the right which any man hath to the acquired stock and lands must be ascertain'd to him by some Law which supposeth Government So that the dispute saith the Reverend Bishop is de Lana Caprina and when men have crowded themselves into the Circle they reap nothing but a Brain-sick giddiness and it is like the dispute in Macrobius Whether the Hen or Egg were first All that believe the Creation must own that Adam's Government was before any Mans property and the like may be said of Noah so that there is no need to have recourse to Articles or capitulations with the People which those make such a noise with unless they can first evince the World to be Eternal and Men to have sprung in some rank Soil as Tubera terrae Mushroms after a fruitful shower Another Extreme is what Mr. Hobbs every where in his Leviathan Against Arbitrary Sovereignty endeavours to establish viz That the Sovereign should be so absolute and so arbitrary that he should upon Exigents of State or at his own pleasure have the disposal of every Subjects fortune which how necessary it may be for vast Empires such as the Ottomans I dispute not But the Soveraigns of Christendom especially of England take no such measures to the advantages of themselves or their Subjects slavery The most judicious Earl of Clarendon in his eleborate Treatise against (g) Survey of Leviathan p. 110. Mr. Hobbs hath with great judgment refuted this opinion from whose Armory I shall borrow some of the Artillery though I dare not presume to use them with the same dexterity and address his Lordship doth This Propriety saith he introduceth the beauty of building and the cultivating of the Earth by art as well as industry that they and their Children might dwell in the Houses they were at the charge to build and reap the Harvest of those lands they had been at the charge to sow whatsoever is of civility and good manners all that is of art and beauty of rule and solid wealth in the world is the product of this the Child of beloved property and they ãâã at would strangle this Issue desire to demolish all buildings eradicate all plantations to make the Earth barren and live again in Tents and nourish their Cattle by successive marches into the Fields where the Grass grows Nothing but joy in propriety redeemed us from this barbarity and nothing but security in the same can preserve us from returning to it again If there be no Propriety continueth the great Lord there is nothing worth defending from foreign Enemies or from one another and consequently it is no matter what becomes of the Commonwealth For the Government can never be so vigorously assisted by a People who have nothing to lose as by those who defending it defend their own Goods and Estates which if they do not believe their own they will not much care into whose hands they fall To this wise Lord I may add what a great (h) Seneca Jure civili omnia Regis sum tamen illa quorum ad Regem pertinet universa possessio in singulos dominos discerpta sunt unaquaeque res habet possessorem suum Itaque dare Regi domum mancipia pecuniam possumus nec donare illi de suo dicimur Ad Reges enim poâstas omnium pertinet ad sâgula proprietas Statesman and Scholar hath long since observed That though by the Civil Law all are the Kings yet even those things whereof the Universal possession belongs to the King have their peculiar Owners So that we may give the King House Freehold or Money yet are not said to give him his own For to the King the Power over all appertains but to every single Person his Property according to that of Bulgaris to Zeno Omnia Rex possidet Imperio singuli dominio If it were thus under the absolute Power of the Roman Emperors in Seneca's time how much more secure may we judge Propriety in ours when so guarded by the Royal Sword and Scepter that in several cases Actions may be brought in defence of a Mans right even against the Crown and the Judges have pronounced Sentence against some claims of the King and ought to do so Whatever pains Mr. Hobs takes to render those precious words of Property unvaluable and insignificant we see that a better Philosopher than He and who understood the Rules of Government having lived under just such a Soveraign as Mr. Hobs would set up gives his judgment otherwise where he expresly tells us that he is (i) Errat si quis tutum sibiesse Regem putat ubi nihil a Rege tutum est Securitas securitaâe paciscenda est much deceived that thinks that King is in safety from whom the Subject is not safe in what he enjoys the security of the one being from the stipulation of the security of the other That in former ages also the condition of the English Subject hath been happier in enjoying greater security as to their Persons and Estates than the Subjects of Foreign Countries and that the English Laws and Government have been very tender of them appears by what another (k) De laudibus Legum Ang. c. 37. Lord Chancellor writes who lived in a turbulent age and was forced into exile with the Prince eldest Son to King Henry the Sixth He in many places treats of the miseries of the Peasants in France and of the generality of the French Subjects too tedious here to relate and in his free way of Dialogue with the Prince he divides Kingly Government into that which is Regal and Absolute and that which is Political In which last are condescensions of Princes to bound their Prerogative and this he commends to his Prince saying (l) Quis enim potentior liberiorve esse potesi quam qui non solum alios sed seipsum sufficit debellare Ib. No Prince can be reputed powerfuller or freer than that Prince who
bottomed upon the securing of one Faction against another he (o) ãâã ãâã ãâã ãâã ãâã ãâã ãâã ãâã ãâã ãâã Polit. l. 5. c. 6. reckons the keeping up of a standing Army in War and Peace which he saith was by reason of the distrust among themselves whereby they were obliged to commit themselves to the custody of Soldiers and the Commander being by that means impowered to be a Judge or Arbiter betwixt them made himself Lord of both as he instanceth in the time of the Government of the Family of the Alvidi at Larissa and at Samos and Abydus and in Timophanes at Corinth For this reason the Romans fearing Camillus banished him So Julius Caesar for ten years having the command in Gaul was able to master the Senate with more ease If we had never heard of any such thing in the World before yet we had the too late calamitous experience of it in our late Republican Government which was no longer able to subsist but while it had an Army maintained at the charge of the enslaved People to secure them yet they falling into Factions themselves their Army did so likewise and the Houses and Army at last came to have several Interests and to have competitions for Sovereignty which any wise man might have foreseen and at last the Army being divided the happy Restauration of the King was thereby much facilitated Having thus cleared That a Common-wealth cannot so well defend it self against a Foreign Enemy I hope the point That a Commonwealth Government is less conducible than Monarchy to prevent intestine Discords I shall now proceed to discourse how difficult it is in this Form also to defend their Subjects from Foreign Invasions especially without the constituting of Dictators or Generals with unsociable Power which is in effect a temporary Monarchy In all Wars nothing is more requisite than Unity of Councils and Secrecy in the conduct of Affairs which is most difficult to be obtained where many are at the Helm Besides among so many different judgments as there must be in such a Body before they can arrive at a Resolution favourable opportunities for Action are by protractions irrecoverably lost and the fear they have of impowering their General too much lest he should establish himself in the Sovereignty makes them limit and restrain him so as he cannot take advantages when offered and thereby Commanders are cautelous and wary not to offend so many Masters whereby time is lost in procuring new Instructions and sometimes for the reasons aforesaid more Generals than one are appointed that one may be a check to the other So (p) Lib 8. Herodotus observes That the difference of Generals when in equal command hath lost victories as at Isthmus by the dissention betwixt Themistocles and Euribias the Persians had almost mastered all So Thucydides notes that so long as Pericles by his own judgment and will governed the Affairs of Athens so long all things were prosperous but after by the Factions of evil-disposed persons he was opposed he sped as ill Besides in the numerous Masters in a Commonwealth the saving of every one 's own Stake will be the principle of their (q) Nalson's Common Interest c. 3. care and sedulity So that if a Foreign Power give them a defeat they will be easily induced to follow as they of late used to call it Providence in all Revolutions and if they can obtain any assurance of enjoying their private Laws or obtaining an higher pitch of greatness under another power they will not easily resist the temptation of betraying the Liberty of their Country and so quitting the leaking Vessel of the Commonwealth will either fairly tack about in their private Shalop and stand in with the next Shore of safety or by striking Sail come under the Lee of the Conqueror or strike into the assistance of him in hope to have a share of the Plunder Besides in the Multitude of Councellors if there happen any notable miscarriages of State there is safety to themselves In Miscarriages the Authors difficultly known It being difficult to fix it upon any one single person every one shrowding himself in the complex Act of the whole So that though they singly put in for the glory of prosperous Atchievements yet in unfortunate or unlucky Councils and Actions they skreen themselves under the majority of Votes which because they always may do it must necessarily make some more Supine and less Vigilant over the Publick It is in these muddy Pools of Commonwealths the devouring Otters may safelier lodg here the gliding slippery Eel finds Covert the Horseleeches abound the Water-rats lodg in their Banks and the Uliginous parts swarm with Frogs and Toads every one preying upon other Here the Cockatrice breeds and the fiery Basilisks as well as Lizards and Newts Africk is not more fruitful of Monsters than they of Harpyes This is the common Sewer that receives all the sludg and filth of People the hopes and expectation of Liberty alluring all As to the Peoples living freer from oppression in a Republic Great Injustice and Oppression in Commonwealths than under Monarchy it is evidently found the contrary as I shall make it appear in the Chapter of Monarchy And there is strong reason for it since in this form these Lords the States will be continually striving to enlarge not only their Power but their Riches and the more they increase in either the more must the common and middle ranked Men be oppressed and exhausted It hath been from the insolence oppressing and engrossing of Estates by the Governing Party that the Thârians changed their (p) Polit. lib. 5. c. 6. Aristocracy to Democracy that the Messeniac War was occasioned that the Revolutions were at Lygdamus in the Isle of Nexos Maffilia Istria Heraclea and Enidus So the Philosopher says That the unjust Judgments or unusual Severities exercised by the revengeful temper of the Factions caused great Convulsions in the State as he particularly instanceth in Eurition at Heraclea and Archias at Thebes who both being justly condemned for Adultery yet because in an unusual way of Contumely they were tyed to Stakes in the Market place they out of revenge excited their Friends to assist them and overthrew the Oligarchy Besides when Men are thus established in Power few can have Redress for their private injuries and wrongs being that every complaint would but look like contempt of Authority because the Party oppressing being one of the Associates in Power Example in our late Republicans and joynt Rulers he would influence the residue to vindicate him Hence we saw in the late long Parliaments Members yea their Officers and common Soldiers that they were such Tyrants in their Residence and Quarters that none durst question their outrages lest they should be brought before Committees for Malignancy or Delinquency It being a characteristic note of a disaffected Person not to resign up ones self to an absolute slavery to
porrigitur The Romans after they were a Commonwealth hated the Name of King Pliny As the Back of the Right-hand with a kind of Religiousness is desired so with an assurance of Faith it is stretched out This Name of King was among the Romans after they setled themselves under the Government of a Commonwealth reputed so contrary to their Liberty as implying in its Office too great an Absoluteness of Power that in solemn memory of its being cast out by Brutus they yearly celebrated on the Seventh of the Kalends of March our Twenty third of February their Feast Regifugium And lest the giddy Multitude might desire again to have a King they prohibited that no Concourse for Merchandise should ever happen upon the Nones of any Month King Servius Tullius his Birth-day they knew was in the Nones but not of what Month therefore they provided it fearing saith (i) Veriti ne quid nunâinis collecta universitas ob Regis dâsiderium novaret Saturnal c. 13. Macrobius lest the Multitude gathered together at such Fairs should innovate any thing by the desire of a King And (k) Regem Romae posthac nec Dii nec homines esse patientur De Divinatione cap. 2. Cicero though he acknowledged that Caesar was revera Rex fully a King in Power yet upon hate that continued of that Title tells us That hereafter neither Gods nor Men would permit any to be King of Rome Therefore to palliate as Mr. (l) Tit. Hon. cap. 2. Augustus denies the Title of King Selden saith some part of his Ambitions Caesar himself being saluted King by the Multitude withal perceiving that it was very distasteful to the State by the Tribunes pulling of the white Fillet from his Laurel answered Caesarem se non Regem esse refusing it utterly and consecrating the Diadem which Anthony would have often put upon his Head to Jupiter Yet the whole People were sensible that his Authority differed only in Name from that of King as appeared by his Sentiment of it who subscribed Julius his Statue with Brutus quia Reges ejecit Consul primo factus est Hic quia Consules ejecit Rex postremo factus est Thus much may suffice to shew Because the Absoluteness of Kings was against their Liberty That the Romans judged a King to have such Absoluteness as in their Free-State was not to be endured when as in the Change to Emperours they underwent more by some of their Arbitrary Rulings than they did under Kings And though the Terms were milder yet the Yoke of them was heavier But such is the Nature of the Multitude that if their Governours keep but the old Name of the Magistracy they readilier yield Obedience to them such power hath Custom This Observation made Cromwel content himself with the Name of Protector under which by his Arts and Army he exercised more Arbitrariness than ever had been by any King of England I come now to the Title of Emperour This at the first only denoted a General or Leader of an Army Title of Emperour first as General So Julius Caesar having made himself Master of the Roman Free-State thought it safer to retain than innovate his Title of Supremacy Therefore having the perpetual Office of (m) Honores nimies recepit ut continuum consulatum perpetuam Dictaturam praefecturamque morum insuper praenomen Imperatoris Sueton. de Jul. Caesare Dictator and Consulship with the place of General or Imperator as the word had Relation to his Military Force he took that also being as willingly given as the rest for a perpetual Title this Title of Imperator being assumed both by Brutus and Cassius as appears in their Coins though they pretended to be the greatest asserters of the Roman Liberty and the like occurrs in the Coins of Antonius Lepidus and the thirty Tyrants and others This Title of Imperator is said to have been a (n) Vita Jul. Cas ãâã Praenomen by Suetonius but it was often used after it which when it was it denoted either only or chiefly some great performance by Arms in setling or encreasing the Empire but when a Sirname in those elder times it signified only the Emperor's Supremacy in the State so in the Coin of Augustus where the Inscription is IMP. CAES. AVG. IMP. IX TR. P.V. The Fore-name Imperator signifies his Supremacy and the latter signifies he had been General and as such it may be deserved a Triumph nine times The TR. P. V. For Tribunitiae potestatis quintum shews how often he had been Tribune of the People which was every Year renewed therefore in that the number of the Years of their Empire was expressed as (o) Cassius Hist 53. Dio observes So that what Tacitus relates of Tiberius was most true that eadem Magistratuum vocabula he retained the old Names of the Magistrates so that the first Emperors Authority and Soveraignty consisted in the Power of the Consuls Dictator Tribunes of the People and the Title of Prince Title of Prince The Title of Princeps Principatus and Principium were proper Names also for these Emperors and their greatness therefore (p) Augusius cuncta discordiis civilibusfessa nomine Principis sub Imperium accepit Tacitus saith that Augustus took the Empire under the name of Prince all being wearied with civil Discords though Suetonius saith of Caligula that Title was wanting but that he should suddenly take the Diadem and change the show of a Principality to the form of a Kingdom Now it is to be observed as the Title of Emperor was taken from the Military Employment of a General so this of Prince signified the Superiority of them in the Senate For the Title of Princeps Senatus was known familiarly in Rome and so might upon that Ground be used without Envy Concerning the Grecians using ãâã ãâã ãâã ãâã ãâã for Emperor the difference betwixt the Eastern and Western Empire about both their Titles and the more modern use of both I must referr the Inquisitive Reader to the often but never too much to be commended (q) Titles of Honour par 1. c. 2. Mr. Selden and shall only note out of him that divers Civilians especially of Italy and Germany which profess the old Laws of Rome tell us That the Emperor is at this day of Right Lord of the whole World or Earth as their Text also (r) ãâã ãâã ãâã ãâã ãâã F. ad Leg. Rhod. The Roman Emperours not Lords of all affirms besides divers other flattering Passages in good Authors of the ancient Empire as that of Corippus to the Emperor Justin Deus omnia Regna Sub pedibus debit esse suis And Julius Firmicus (s) Totius orbis terrarum spacium Imperatoris subjacet potestatibus etiam ipsum eorum Deorum numero constitutum esse quem ad sacienda conâervanda omnia Divinitas statuit universalis Mathes lib. 2. c. 33. hath this courtly Expression That the Compass of the whole Globe of
Particulars of Royal Abatements Edicts or make new Laws or change any of the old standing Laws without the mutual Consent of the two Houses of Parliament He may not oppress the People or in any Arbitrary way take from them their Liberties or Estates under any pretence whatsoever without due course of Law Nor can he impose upon their (m) Stamford's Pleas of the Crown Persons what Charges or Burthens he pleaseth but according to and by the Laws of the Kingdom He cannot do any thing against the Law of the Nation or against common Right cannot change Ancient Customs for a Legal (n) Hâghs 's Reports 254.263 Cousâuetudo lâgalis plus habet quam concessio Regalis Custom is more available than a Royal Concession yet on the other side that Custom which advanceth against the Prerogative of the King is void He cannot impose Arbitrary (o) Petit. of Right 3 Car. 1.7 Car. 1. c. 17. payments erect new Offices of Charge to the Subject may not deny or delay Justice may not compel his People to make Gifts Loan Benevolence or Tax without consent of the two Houses The King (p) 2 Car. 1. c. 1. Coke 12.46.2 part Brown lib. 2. c. 2. Coke Instit 2 part 47 48. Petition of Right Dyer 176. may not imprison without just Cause nor keep any Mans Cause from Tryal may not send any man out of the Realm without his own Consent may not in time of Peace Billet or Quarter Soldiers or Mariners upon his People against their Wills may not grant Commission to try Men by Martial Law in time of Peace nor to determine any matters of difference betwixt Subjects other ways than by ordinary (q) 21 Jac. c. 31. Coke 11.87 Plowden 497. course of Law and ordinary Courts may not by Patent or Licence make a grant of a Monopoly or the benefit of a Penal Law or give a Power to dispense with Penal Laws in some Cases (r) Coke 11.87 He may not have or take that he hath right to which is in the Possession of another but by due course of Laws and may not make new or alter old Courts of Justice unless to be kept after the Course of the Law and not in Course of Equity Nor (s) Sheppard's Grand Abridgment part 3. fol. 49. alter the Courts of Westminster that have been time out of mind nor erect new Courts of Chancery Kings-Bench Common-pleas or Exchequer (t) Fleetwood lib. 1. c. 8. He may not by his last Will and Testament under the great Seal or otherwise dispose of the Government or of the Crown it self nor give and grant away the Crown-Lands or Jewels which he hath in his Politic Capacity nor give away any of the incommunicable Prerogatives By these Abatements of Power and gracious Condescentions of the Kings of England for the Benefit and Security of the Subject No Power co-ordinate with the King 's we are not to conclude that there either is or can be any Co-ordination or Coaequality of any State Order or Degree of the Subjects with the Sovereign nor any Competition of the Subjects Power in his Concurrence with the Vertual and Primary Influence of the Sovereign but a plain Subordination and subjected Ministration of the one under the Sovereignty of the other For although there is a Co-operation of the Members with the Head for the performing some Acts of State and they may seem Orders or States coaequally Authorized in the Power of Acting with the Sovereign in Petitioning for advising or consulting about or consenting upon the Kings Summons to Laws And although in judging and determining matters of Private Interest the King hath not an Arbitrary Judgment but is restrained to the Judgment to be administred by the proper sworn Judges in his Courts whom he appoints to judge according to his Laws and in the making of Laws his Power and Judgment is restrained to the Concurrence of the Nobles and Commons in Parliament yet in all other things wherein he is not expresly restricted by any Law of his own or Progenitors granting he retaineth the absolute Power as in the particulars before mentioned and in the Chapters of Parliaments I shall further discourse In the Rebellion under King Charles the First the (u) Observations on His Majesty's Messages c. The Rebels in 1641. would have lessened the King's Sovereignty and placed it in the People or their Representatives Pencombatants for the Party knowing they had the whole Current of the Laws against them made a great noise and bustle with Sophisms and plausible specious Pretences to captivate the Populace and nothing was more frequent than the Misapplication of that of the Philosopher That the King was Singulis major but Vniversis minor Inferring from thence That the Collective Body of the People and their Representatives were Greater in Authority than the King In answer to which it may be observed That the Aphorism how true soever in any other sense is most false in any sense of Sovereignty For if it be meant That the King is a better Man only than any of us single this doth not tell us he is better than Two and this is no more than possibly he might be before he was King For we must needs look upon Princes as Persons of Worth Honour and Eminency when taken from the People which the superaddition of Royalty did not destroy Besides any Lord of the Land may challenge such a Supremacy over all the Knights and any Knight over all the Esquires Furthermore if Princes be Sovereigns to single Persons of Subjects only and not to the universality of them then every single Subject by himself is a Body Politick whereof the King as King is Head and so the Publick Community is out of the King's Protection he being no King as to them in a complex Body Such impudent Falsities and many more destructive Consequences flow from such absurd Principles And if the Maxim were true the People have placed a King not over but under themselves But they enforce the Argument still further That the Fountain and efficient Cause of Power is the People and from hence they say the Inference is just That he is less than the Universe But the (w) Answer to Observations p. 10. Consequence is rather the contrary For suppose the People were the efficient Cause of Power it can be no otherwise than by translating or deriving their divided Power and uniting it in him Since then they cannot retain what they have parted with nor have what they gave away it follows That he who hath all their Power and his own particular besides must needs be greater and more powerful than they it being a very great Truth That he is the only Fountain of Power and Justice Another of their Maxims was That quicquid efficit tale illud est magis tale And they assume But the King was made by the People therefore less than the People In answer to which it is
this State of the Empire and of absolute Sovereign Princes (x) Leges jubere universis singulis civilâs dare De Repub lib. 1. c. 10. lib. 3. Bodin saith it is the first and principal part of Majesty to command Laws and impose them on all and singular the Subjects and he saith That in the Emperors time the name of the Senate was inscribed only to testify such Laws were made and to render them more acceptable to the People by the opinion they would then have that they were made with Council and Prudence So (y) Polit. c. 11. Law-making the Prerogative of Sovereign Princes Anisaeus ranks it among the first of the Jura Majestatis to make Laws for that the Government saith he is for the most part by Laws therefore they should be in the hand of the Sovereign for that they have no Power but as they are inforced by his Authority who possesseth the Plenitude of Empire I shall only note a few things of the absoluteness of the Roman Emperors in point of Law-making or abrogating and so pass to the considerations of our English Monarchy referring the larger and more explicit treating of it to the Chapters of Parliaments In the Capitol now Lateran Palace is extant a Table of (z) Gruteri Inscript p. 142. A Fragment of the Lex Regia yet extant Brass where is to be seen a fragment of the Lex Regia renewed as to Vespasian confirming many things of Sovereign and sole Authority as descending upon him from his Predecessors and enacting That what he had done decreed or commanded before his Ratification should be held and taken for as good Law as if the People it self had done decreed or commanded it So that tho' he might make use of the Senate or Peoples Ratification yet his Right was as strong before So (a) Tit. De Legibus lib. 1. Constantine challengeth to himself alone Authority to judge betwixt Law and Equity and so in point of Repeal of Laws (b) Non ab aliis sed a sese leges abrogatas suisse Lib. 3. Theodosius and Valentinian say That the Laws were to be abrogated by no other but themselves It is not to be doubted but that great and vast Empires require for their better Government a more absolute Power in the Sovereign to make Laws suitable to Emergencies for the Preservation of the whole So the Ottoman Empire and those of China Persia and the Mogul could not well be conserved entire without it Yet in these there are established Laws agreeable to the Laws of Nature and of Nations whereby the Rights of meum and tuum to Strangers are adjusted and the Subjects though they have no Property like the Europaeans yet are kept in Order and under Protection of the Laws and their Absoluteness consists principally in the ordering the Execution of any Subject without Juridical Process in placing and displacing Governours or depriving Cities Provinces and Kingdoms of Priviledges I have enlarged upon this Head to show how happy we are in England The happy State of England in the disposing of the Legislative Power that though the Force and Vigor of all our Laws flow from our Sovereigns Paternal Care ââace and Bounty yet in the Point of making and abrogating Laws not only Consultation is had with so venerable a Body as the two Houses of Parliament are but nothing is done by the Sovereign without their own Preparation of Bills for his Royal Assent A wise and wealthy part of which are chosen by our selves and by the Kings Permission impowered in that particular to act for us in deliberating upon and fashioning such Bills as they petition the Sovereign to grant So that what the Judicious (c) Preface to the Reader Comp. History Dr. Brady after many other learned Men asserts is most true That by time and the Concessions of our Kings the Subjects of this Government have and may enjoy all Freedom and Happiness that sober rational Men can desire and such as is no where to be found but in this Island and the Dominions to it belonging nor can any Man that loves his Prince or Country wish for other than the present Constitution By the whole series of great Councils in the Saxon times until 49 Hen. 3. and the Parliaments succeeding I shall make it clear That the Royal Assent is that which forms the Preparatory Bills presented by both Houses into Laws and that in ancienter times the Laws were made by the Kings sole Grant by way of Charter I shall here only lay down some Preliminaries to shew in general what the ancient Usage was referring Particulars to the following Chapters First it appears That there were no certain (d) Sheringham's Supremacy p. 51. Anciently Kings called whom they pleased to advise them in making Laws Persons designed by Law whose Concurrence was required to constitute a great Council but the Kings used the Advice only of those whom they pleased to call unto themselves who were always such as they thought most able to counsel and direct them in the matters that were to be consulted of and whose assent was most likely to add most Credit and Estimation to the Laws that were to be divulged So we find in (e) Chron. Sax. Anno 670. fol. 516. And tha haefde getheal mid his witum freondam mid heora Teymenysse fultum gethafunge Christes geleassan onfeng Bed Eccl. Hist lib. 3. c. 22. Bede that Segebert or Sigbercht who was King of the East Saxons in the time of Oswi King of Northumberland who perswaded him to become a Christian held a Council with his Wites i.e. Nobles and Wisemen and his Friends and by their Advice Aid and Consent received the Christian Faith We find that Offa King of the Mercians made Laws without the Assent of his Great Council for he being at Rome (f) Mat. Paris vita Offae p. 171. Hoc autem per totam suam ditionem teneri in perpetuum constituit golng into the School of the English which was there out of his Royal Munificence He gave to the support of the People of his Kingdom that should come thither a Penny to be paid yearly for ever out of every Family by all whose Goods in the Fields exceeded the value of Thirty Pence and this he made a perpetual Constitution throughout all his Dominions excepting the Lands conferred upon the Monastery of St. Albans This Imposition and Law continued a long while in force though we find it not confirmed by any great Council in his own time or his Successors only in the Laws of King Edgar and King Edward it is enjoyned to be payed as the Kings Alms which implies it was the Kings Gift solely not by consent of a great Council So his Son (g) Matt. Paris Auct additam fol. 239 240. Ecgfrid grants Thyreseld to St. Albans with the Consent and Testimony of his Magnates which imports it to be granted by Consent of a Great
Council and the Optimates witnessing are Cynedrid the Queen three Bishops one Abbot and Brorda Wiega Cuthbert Eobing Esne Cydda Winbert Heardbert and Brorda Dukes besides Ethelbeard Archbishop Forthred Abbat and Sighore Son of Siger But I shall hereafter more copiously give an Account of the constituent Parts of the great Councils The King the Fountain of Laws The Legislative Power saith a learned (h) Sheringham's Supremacy p. 34. Leges vero Anglicanae consuetudines Regum Authoritate jubent quandoque quandoque vetant quandoque vindicant puniunt transgressores Bracton lib. 1. c. 2. Author belongs to the King alone by the Common Law for though the two Houses have Authority granted them by the King to assent or dissent yet the Power that makes it a Law the Authority that animates it and makes it differ from a dead Letter is in the King who is the Life and Soul of the Law by whose Authority alone the Laws command forbid vindicate and punish Transgressors This was resolved by divers Earls and Barons and by all the Justices in the Reign of King Edward the Third for one (i) Fuit dit que le Roy sist les Leis per assent des Peres de la Commune non pas les Peres le Commune qu'il ne avera nul Pere en sa terre demesne que le Roy per eux ne doit estre ajuge 22 E. 3. c. 1. Haedlow and his Wife having a Controversie with the King and desiring to have it decided in Parliament It was resolved That the King makes Laws by the Assent of the Lords and Commons and not the Lords and Commons and that he could have no Peer in his own Land and could not be judged by them This is further manifested that the Laws are primarily and properly made by the King and the two Houses have a Cooperation but no Co-ordination of Power for the breach of any Statute whether it be by Treason Murther Felony Perjury or by any other way is an offence against the (k) Encounter la Corone Dignitie le Roy. Stanford 's Pleas of the Crown lib. 1. c. 1. Kings Authority alone and Pleas made against such Offences are called The Pleas of the Crown because they are done against the Crown and Dignity of the King So that it is not the Dignity and Authority of the Lords and Commons which is violated but the Dignity and Authority of the King This appears also in the Power the (l) Sheringham p. 35. See Finch lib. 2. fol. 22. Coke 2 II. 7. lib. 7. fol. 14. Stanford lib. 2.101 King hath in dispensing with such Laws as forbid a thing which is not malum in se and in pardoning the Transgression of others as Treason Felony c. which in Reason he ought no more to do than to dispense with the Laws of Germany Spain or France or pardon the Transgressors thereof if they were not made by his Authority Furthermore it is a certain Maxim of the Law (m) Ejusdem est leges interpretari cujus est condere The Amendment was sealed by the Great Seal 2 May 9 E. 1. commanding the Justices to do and execute all and every thing contained in it though the same did not accord with the Statute of Gloucester in all things None can interpret the Laws but the same Power that makes them But the King may do this as appears by the Statute of Glocester 6ââ where immediately after the Statute are these words After by the King and his Justices certain Expositions were made upon some of the Articles above mentioned So the Judges are appointed by the King and they have from him a Power to interpret the Law judicialiter otherwise they could not proceed to Judgment and being called by the King with him and under him they have a Power to interpret the Law Authoritativé But the two Houses besides that they can do nothing singly or joyntly without the Kings Concurrence in (n) Sheringham ut supra their make and composition are unfit to interpret Law For such Power as interprets Law must be always existent or in being to act according to emergent Occasions which the two Houses are not And if they were a permanent Body yet they having a Negative upon each other the Interpretation of the Law must be retarded and all Controversies depending thereupon undecided And this Disagreement might perhaps endure for ever and so a final Determination in such Suits would be impossible Now these are Inconveniences which ought not to be admitted in any Commonwealth for it derogates both from the Honour and Wisdom of a Nation to be so moulded and framed that Justice cannot have a free Passage in all Contingencies Not only the Legislative Power it self but the very (o) Hem p. 36. The King may provide for all things necessary for Government where the Law hath not provided or contradicts not Exercise of the Power also so far as it is essential to Government is in the King alone for he can by Edicts and Proclamations provide for all necessary occasions and special Emergencies not provided for by fixed Laws which is one of the most excellent and eminent Acts of the Legislative Power and a sufficient Remedy against all Mischiefs in case the two Houses should refuse to concurr with him in those things which concern the Benefit of the Kingdoms For as (p) Ea quae Jurisdictioâis sunt pacis ea qâae sunt Justitiae paci annexa ad nullum pertinent nisi ad Coronam Dignitatem Regiâm Bracton lib. 2. c. 24. Bracton saith those things which belong to Jurisdiction and Peace and those which are annexed to Justice and Peace appertain to none but the Crown neither can they be separated from it because they make the Crown If the King should unwarily by Act of Parliament consent to any thing prejudicial and derogatory to His Royal Prerogative such Acts are void by the Common Law and the Judges are bound to declare them so as that of 23. H. 6. about Sheriffs not to continue longer than one Year was by the Judges declared void and all Kings since might with a Clause of non obstante against the manifest words of the Statute have granted that office for Life in Tail or in Fee But I need not enlarge upon this for all the Acts for the King's Supremacy all the Laws and Statutes that over were made put this beyond Dispute that the affirmative Voice is absolutely in the King that no Laws can be binding or be Laws at all without his special Consent and this being one of the great Rights of Sovereignty cannot be separated from the Person of the King although he (q) Suprema jurisdictio potestas Regia etsi Princeps volet separari non pessunt sunt enim ipsa sorma substantialis essentia Majestatis ergo manente ipso Rege ab eo abdicari non possunt
Cabedo Pract. Obs par 2. decis 40. would himself For it is essential to Majesty and Soveraignty and cannot be abdicated while he remaineth King nor separated without the diminution or destruction of Majesty How both King and People are obliged to defend the Rights of the Crown will appear in the Laws ascribed to King Edward the Confessor in the 17.35 and 56. As to the Particular How absolutely necessary the Royal Assent is to all Laws in the Act of Recognition to King James the First it is fully expressed thus Which if Your Majesty shall be pleased as an Argument of your Gracious acceptation to adorn with Your Majestie 's Royal Assent without which it can neither be Compleat and Perfect nor remain to all Posterity according to our Desire as a Memorial of your Princely and tender Affection towards us c. Against what I have laid down those who were for co-ordinate Powers in the two Houses object many things Answers to some Objections against the King's sole establishing of Laws some I have answered in the Chapter of the King's Sovereignty and I shall meet with others in the Chapters of Parliaments And shall here only take notice of some omitted or not fully answered there Against the assertion That the Liberties granted by King Henry the Third were by way of Charter they produce the Preamble (r) Coke 2 Instit fol. 525. to the Confirmation of King Edward the First of Magna Charta La Charte des Franchises la Charte de la Forest les queux fuerent faitz per Commen de tout Royalm en le temps le Roy Henry pier soient tenue c. and Charta de Foresta wherein he saith that the Charter of Liberties and the Charter of the Forest made by the Community of all the Realm in the time of King Henry our Father shall be kept c. To which with the Judicious Doctor (s) General Preface to Compleat History p. 41. The ancient Kings sealing of Charters of Liberties reputed Laws Brady may be answered that these were the Petitions and Requests of the Community of the Kingdom and may be said to be made that is digested by them into the form of a Charter So the Barons offered King John's Magna Charta to him ready drawn in a Schedule and forced him to grant it and cause his Seal to be put to it and the whole strength and validity of the Charter lay in his Grant and the Confirmation of it under his Seal This was the only Security they desired and demanded no other and the Tenour of all the Charters were accordingly We grant We confirm We give for us and our Heirs to them and their Heirs c. Which Grants and Concessious were always in these times accepted and acknowledged to be sufficient without the least doubting or scruple There was no other Power or Authority that gave them being but the King's so that it seemed the great Councils or Parliaments of those times owned the Kings Charters under Seal and the Grants made by them to the People to be of good force and effect and that their Petitions to which he gave his assent and caused to be put under his Seal were by them accepted and from time to time acknowledged as firm and valid Laws The same learned (t) Idem p. 67. The Laws planted by Kings Doctor Brady observes that Sir Edward Coke hath a formal way of speaking The Law doth this and The Law doth that This is Law That is by Common Law of England abstracting it from any dependance upon or Creation by the Government as if it had been here before there was any and had grown up with the first Trees Herbs and Grass that grew upon English Ground and had not been of our antient Kings and their Successors planting by assistance and advice of their great Councils in all Ages as it was found expedient either by them or upon Petition and Request of their People which is acknowledged by all the Bishops Earls Barons and People present at the (u) Claus 1 E. 2. m. 10. dorso Coronation of King Edward the Second in these words Sir Will you grant and keep and by your Oath confirm to the People of England the Laws and Customs granted to them by the antient Kings of England your Predecessors true and devout to God and namely the Laws and Customs and Liberties granted to the Clergy and People by the glorious King Edward your Predecessor Another Objection some make against the Absoluteness of the King's Power Second Objection when it is said in antient Statutes The King ordains The King wills that it hath been resolved by many of the Judges (w) Coke 8. Report s 20. b. that if these Statutes be entred in the Parliament Rolls and allowed as acts of Parliament it shall be intended they were by Authority of Parliament With the Judicious Dr. Brady I shall not enquire how such Entry and such Allowance without any Words in the Statutes to that purpose can make them to be by Authority of Parliament But we may he sure those Words The King ordains The King wills being pronounced in Parliament and recorded in the Rolls thereof do clearly prove the King's Authority and Power in making Laws to be far greater than many Men would allow him or have him to enjoy (x) Lib. 3. c. 9. Bracton and the Author of (y) Lib. 1. c. 17. âleta applying the Passage of the Civil Law Quod Principi placet Legis habet vigorem to the King of England say That Clause ought not to be understood of every thing that is rashly presumed to be his Will but of that which is justly determined upon good Advice and Deliberation by the Counsel of his Magistrates (z) Râge Authoritatem prastante the King giving it Authority and confirming it for a Law and from hence (a) Cum ipse sit Author Juris non debet inde Injuriarum nasci occasio unde Jura nascuntur infer That when he himself is the Author of the Law Injustice ought not to spring from the same Fountain from whence the Law doth spring It is no diminution of the Sovereignty of a Prince in the matter of making Laws or repealing them to have the Assent of the Nobles and such a select Body of Great and Wise Men as the House of Commons are But when as in the Parliament 1641. the Two Houses claim a Co-ordinate Power and would make their Advices be swallowed as Commands it is this that all Loyal Persons should oppose We generally understand that the Persian Monarchy was as Absolute as any yet in it we have a manifest Discovery of the Concurrence of the Nobles in preparing a Decree The Persian manner of making Laws yet they wanted the King's establishing the Decree by his signing it whereby it might not be changed and Grotius thinks they signed it also (b) Dan. cap. 6. v. 7 8
9. The Words are The Presidents and Princes assembled together to the King and told him That all the Presidents of the Kingdom the Governours and the Princes the Counsellors and the Captains have consulted together to establish a Royal Statute and to make a firm Decree c. Now O King establish the Decree and sign the Writing that it be not changed according to the Law of the Medes and Persians which altereth not Here the Presidents c. assembled consult about the Decree they propose it as they had framed it yet they own it was of no force without the King 's establishing and signing it Which is exactly parallel with the Constitution of the Legislative in England if we joyn the Commoners to the Presidents Princes c. No radical mixture of Power in the two Houses with the King But the Writers for the Long Parliament were so desirous to make the Two Houses to have a Radical Mixture of the Legislative Power equal with the King 's that they sought all the specious and plausible Arguments they could to enforce it having little regard to what was Law it self or ancient Usage Therefore one of them in his (c) Pag. 39. Answer to Dr. Fern saith A Legislative Power is not to be satisfied by a bare powerless Consent Third Objection and therefore demanâ Whether that Consent be causal and authoritative or meerly consiliary and unauthoritative That the Two Houses have an Enacting Authority he would prove from that Clause set in the beginning of Acts Be it Enacted by the King 's most Excellent Majesty This will appear a Form of Words lately made use of in the Twenty fourth Chapter and the Authority of the Lords and Commons assembled in Parliament For he saith this implies distinct Authorities for the Addition of the Authority of the Lords and Commons were superfluous if Laws be enacted by the King's Authority alone To which it may replied according to (d) King's Supremacy p. 89. Mr. Sheringham That though it be granted that they have an Enacting Authority in this particular of Law-making which how step by step it hath been brought to the state it is now in will be cleared in the following Chapters yet the Question is first Whether that be only a Power of assenting that such or such a Law shall be established or a Power that commandeth and giveth life and vigour to the Laws Secondly Whether the Power be radically in themselves or derived from the King As to the first It is agreed by the Judges (e) 2 H. 7.14.11 H. 7.25 Lambard Archeion fol. 271. That the Words Assenteth and Enacteth are equivalent in this Case For their Power of preparing Materials for a Law by framing Bills sufficiently denotes their Assent because they are Bills of their own framing and the Wisdom they show in these and the Care of the Government and People will always make that August Body of great use to the Government and valuable by their Fellow-subjects But secondly In this Particular the Writ of Summons is that which gives them all the Power of which in the Chapter of Parliaments I shall enlarge It must be considered from whom they have this Authority They have the Use and Exercise of the Legislative Power so far as is necessary for that Act although it be not radically in them for although the King's Authority cannot be separated from him privativè so as to deprive him of it yet cumulativè it may be inherent in his own Person and yet be in others too as the Light of the Sun is inherent in its own Body and yet diffused through the whole World And so we call it Moon-shine and Star-light when all their Lights are from the Sun And this Delegate Authority may be called theirs because for the time of their Sitting they are by the Sovereign and Constitution of Government so capacitated to act But since they are called by the King 's Writ and dissolved at his Pleasure they cannot be said to have the Power radically in themselves If this radical Power in the Two Houses were true How could the (f) 24 H. 8. 1 E. 6. c. 2. Statutes declare the King to have entire whole and plenary Power and to be so Supreme that all Authority is derived from him and all Obedience and Allegiance due to him and him alone An utmost Chiefty and Primity of Share as they used to speak in 1641. will not make out the Force of the Statutes Because the Kings of England desiring to rule their People by Lenity have out of Princely Clemency condescended so far as not to impose upon them as hereafter it will appear they anciently did any new Law or alter and repeal the old without their own Consents by their Representatives The Black Parliament of 1641. would have the People believe The Encroachments of the Black Parliament that their Authority was equal with the Kings But when Success had hardned them they were not content with a share they at first challenged but laid claim to all wholly excluding the King and denying him his Negative Voice usurping and taking upon them the whole Power of making Laws So that this Serpent of Co-ordinate Power is not to be suffered to wrigle in its Head lest the whole Body glide easily after But I leave the further discourse of this to its proper Place Preface to the following Chapters and shall now proceed to give some Light to the Government the Britans had among them by the Comparison is found betwixt them the Gauls and Germans Being desirous as much as I can to show the Ancientest usages and under the several Conquests of England how the Government hath received Growth and Alteration sometimes the People being under the Slavery of absolute Conquerors and other times factious Nobles bearding their Kings how the even Thred of Regular Government hath been carried on or interrupted how from an absolute Power of giving Law and ruling in a Military way by the Feudal Law and many other particulars the Government is brought to that Temperament whereby the Subjects may if they will be dutiful live happilier than any other do To illustrate all these it will be necessary to represent the State of the Britans under the Romans and to discourse of the Germans from whence our Saxon Ancestors came and of both of their Manners and Laws and from thence to proceed to illustrate the Legislative Power In all which if I carry my Reader out of his Country to view the State of our Ancient Neighbours I hope he will think it no ill spent time to make that pleasing as well as profitable towr And though I represent him his Ancestors rude and barbarous in Comparison of the Roman civilizedness yet he will find they had some Religion some Arts great and generous Souls as well as strong Bodies and their greatest mis-hap seems to be that those in Britan Gaul or Germany were not under one Monarchy
principal Magistrates sent into the Provinces bordering on the Enemy or Frontiers of the Empire were called Legati the Magistrates or Officers in Italy were Praetorian and Consular those abroad Propraetorian and Proconsular Whoever desires to see more of this or what was appointed under Constantine may have recourse to Pancirollus de Magistratibus Municipalibus Alciatus de Magistratibus and the Notitia Provinciarum where all the Officers are deseribed with the several Provinces and the Cities contained in them and the Ensigns or Symbols of the Officers Then Britain was divided into five parts viz. Britannia prima and secunda Flavia Caesariensis Maxima Caesariensis Valentia being all under the Vicar or Deputy of Britain under the Viceroy or Praetorian Prefect of Gaul we find in the Roman Coins exhibited by Camden a Colony at York Divana or Chester and others So that it cannot be thought that Britain was not as subject to the Roman Laws as other Conquered Countries Whence (s) Latias ab eo jurare Leges compulsam De Gestis Reg. l. 1. c. 1. Malmsbury saith That Julius Caesar compelled the Britans to swear Obedience to the Latin Laws And Gildas * Non Britannia sed Romania censebatur Excid Britanniae The Britans learn the Roman Arts and Language saith it was reckoned not Britannia but Romania And more particularly that Britain was subject to the Roman Law these Observations following will prove â Linguam Romanam abnuere postea eloquentiam concupiscere inde etiam habilus neslri honor frequens toga paulatimque discessum ad delinimenta vitiorum Balnea Porticus conviviorum elegantiam idque apud imperitos humanitas vocabatur cum pars esset servitutis Vita Agric. c. 21. Tacitus tells us that in his time the Britans began to learn the Arts and to exceed the Gauls in Wit and Learning and though they did at first reject the Roman Speech yet at length they did covet their Eloquence from thence they had in Esteem the Roman Habit and their Gown was frequently worn and by little and little they descended to the fashionableness of their Vices in their Portico's Baths and Beauty or sumptuousness of their Banquets which among the ignorant was called Humanity or good Breeding whereas it was a part of their Servitude If we add to this the Consideration of what I have noted out of Ramus of the change of the Gallick Language and Laws we may conclude that the ancient (t) In Catalect vet Poet. lib. 1. tit 7. Poet spoke Truth who saith Cernitis ignotos Latia sub Lege Britannos All these things are to be understood of the natural Britans who no doubt were not backward in affecting the Roman Laws as well as the other things mentioned by Tacitus For which the Language and Rhetoric were most useful otherwise what need was there of having Lawyers from Gaul which the Poet calls (u) Juvenalis Sat. 7. Nutricula Causidicorum and who tells us that (x) Satyra 15. Gallia Causidicos docuit facunda Britannos De conducendo loquitur jam Rhetore Thule So we find That Severus left his Son (y) Herodian lib. 3. Juri dicendo rebusque civilibus ut praeesset Geta when he made his Northern Expedition to be as Lord President of the North and Papinian the famous Civilian sate in the Tribunal at York and from thence Severus and Antonius set forth the Imperial Edict (z) Cod. lib. 3. tit 32. That Laws were not like to be made by the Britans while under the Romans de rerum Venditione Hitherto we find no probability of any Laws amongst the Conquered Britans but such as the Romans imposed or allowed of After the Britans embraced Christianity we have some imperfect accounts of King Lucius sending to Pope Eleutherius to send him the Roman Laws and of Caesar But Sir Henry Spelman (a) Cum has domi a Romanâ Praeside nec fugienâas quidem obtineret Concil Tom. 1. p. 35. and others do justly reject this as spurious because he could not want those nor avoid the obedience to them in his own Country for as he saith from the time of the Emperor Claudius who subdued most of Britain the Roman Laws were published in Britain and the Brigantes the Inhabitants of Yorkshire and the Countries beyond Humber according to Seneca (b) In ludo de morte Cl. Caes were subject to them who speaking of Claudius Caesar writes thus Ille Britannos ultra noti littora Ponti Et Coeruleos * Vel Scoto-Brigantas Senec. in Octav. scuta Brigantas dare Romuleis Colla catenis jussit ipsum nova Romanae Jura securis tremere Oceanum So in another place Cuique Britanni terga dedêre Ducibus nostris ante ignoti Jurisque sui There being nothing to be found of secular Laws of the Britans either before their expulsion by the Saxons into Wales Concerning the Laws of Hoel Dha and the Britans in Wales or after excepting some Ecclesiastical Constitutions in Synods till the Laws of Hoel Dha i. e. the Good I must refer the inquisitive Reader to Sir Henry Spelman's first Volume of Councils where he will find the first at Verulam or St. Albans Anno Christi 446. that by St. German against the Pelagian Heresy Anno 449. that in Wales near the Mountain Erir that under Dubritius and three at Landass before the year 560. and others at Landass after ann 887. Now as to the Laws of Hoel Dha the Preface to his Laws saith That he seeing his Welsh insolently to abuse the Laws he called out of every Kemut or Hundred of his Kingdom six (c) Laicos viros auctoritate scientia pollentes omnes Eâclesiasticos dignitate baculosos Spelm. Concil Tom. 1. fol. 408. Twy gwyn ar Tass the White House upon the River Tass Lay-men excelling in Authority and Wisdom and all the Ecclesiastics dignifyed with Pastoral Staves as Archbishops Bishops Abbats and Priors to a place called Guin sup Taff yn Deved which House he would have built with white Wands for an House to lodge in when he came to hunt in the parts of Demetie wherefore it was called Ty Gvyn there they stayed all Lent praying and fasting c. of those the King chose Twelve Lay-men most learned and one Clergy-man called Blangorid to instruct him in the Laws that they might come nearest to Truth and Justice and ordered them to be writ in three parts (d) Prima Lex Curiae ãâã quotidianae secunda Lex patria tertia usus utriusque One for his daily Court another to be the Law of the Country and a third to be of use for both The Laws printed are all Ecclesiastical only in (e) Cap. 25. one of them it is said that it is found in the Roman Laws That where the number of Witnesses are not determined there two are sufficient As to the other Laws I have not had the good Fortune to meet with any Transcript of them only in
Kindred and drives her through the Streets lashing or beating her as she goes along This as Juvenal saith was Ipsis Marti Venerique timendum So Antinous in Homer threatens Irus with the chopping off his Nose Ears and Privities and Vlysses inflicts that very punishment upon his Goat-herd Melanthius for his Pimping So in Canutus his Law the Wife who took other Passengers aboard her than her Husband is doomed she should have her Nose and Ears cut off Jââus Anglorum The curious may see more in Selden Tacitus observes another Law Hââredes successoresque sui cuique liberi nullum testamentum Si liberi non sunt pââximus gradus in possâssâoâe sratres patrui avunculi Idem that every ones Children were their Heirs and Successors and there was no Will to be If there be no Children then the next of kin shall inherit Brethren or Unkles by the Fathers or Mothers This seems to point out Gavil-kind otherwise there had been need of a Testament to dispose of something for younger Children So Selden observes that till our Grandfathers time it was not lawful to dispose of Land-Estates by Will unless it were in some Burroughs that had such priviledges but this hindred not but they might dispose by Deeds Another Law he mentions Suscipere inimicitias seu patris seu propiâqui quam amicitias necesse est Idem Nec implacabiles durant luitur enim etiam homicidium certo Armântorum ac pecorum numero recipitque satisfactionem universa domâs Idem which shews the use of those are called Deadly Feuds in the North was that to undertake the enmities rather than the friendships whether of ones Father or Kinsman is more necessary Yet he saith those do not hold on never to be appeased for even Murther is expiated by a certain number of Cattle and the whole Family of the murdered Person receives satisfaction So we find in our English Saxon Laws Murthers were formerly bought off with Head-money which was called Wââgild though one had killed a Noble-man yea a King himself which as I remember was valued at 60000 Thrimsas or Groats and so a Prince 30000 and others Proportionable Another Law we find thus The Lord imposeth upon his Tenant a certain quantity of Corn or Cattle or Clothes Frumenti modum Deminus aut pecoris aut vestis colâno injungit Idem Here we certainly find the usage of Country Farmholders In ââimitivo Regni sââtu pâst conquis âânem ãâ¦ã ãâ¦ã argenti ãâã sed sola ãâã solvebantur Dialog Scaccar So yet in Scotland a Gentleman of Quality or Lords Estate is not computed by Annual Rent but by so many Bolls of Victual So we find in Gervase of Tilbury that the Kings had payments made them out of their Lands not in Summs of Gold or Silver but only in Victuals or Provisions out of which the King's House was supplied with necessaries for daily use which the King's Officers accounting with the Sheriffs reduced into many payments viz. a Measure of Wheat to make Bread for 100 Men 1 s. the body of a Pasture-fed Beef 1 s. a Ram or Sheep 4 d. for Food for 20 Horses 4 d. Thus far I have thought fit to pick out of Tacitus the manners of the Germans and compare some of them with the English Saxon or Norman Customs to discover their Conformity But since in this account from Tacitus we find no satisfactory testimony as to the power of making Laws but that in general they used to meet in Consultation about the New or Full of the Moon where 2 (r) Alter tertius dies consultatione coâântium abâumitur Id. 636. or 3 Days were usally spent and the Turba or Common Body of those that met which elsewhere he saith was by hundreds being Armed the Priests commanded silence and had the power of keeping Matters in order and the Princes Authority was there as I have noted besore I say considering these things I must seek otherwhere for clearer discovery before which I will only note Judgments given in their Councils that at such Councils as (s) Liâââ apud concilium accusare quoque discrimen capitis intendere Tacitus describes Judgments were given upon offences for he saith here Accusations might be presented and Capital Matters tried the distinction of punishment * Distinctio paenarum ex ãâã proditores tranâfuâââ arâoribus suspendunt ignavââ imâeâââ ââpore Lips torpâââ Infames ãâ¦ã ãâã insupâr crate ãâã âacitus de moribus German In some Places of Germany Drowning is yet a Punishment as Platerus gives an Account of a Woman tied in a Sack and cast into the River near Basil who was found alive after being taken up at the usual place half a mile below where she was cast in Observat being according to the Crime Traytors and such as fled to the Enemy were hung upon Trees but the slothful unfit for War and such as are infamous for sluggishness as Lipsius will have it Torpore not Corpore infames were drowned in Morasses an Hurdle being laid upon them and the reason he gives of the divers punishments is that the first which he calls Scelera are to be shown while punished but the other which he calls Flagitia wicked and heinous crimes but particularizeth not what they were should be hid and punished by Drowning then follows Levioribus delictis pro modo poenarum equorum pecorumque numero convicti mulct antur pars mulctae Regi vel Civitati pars ipsi qui vindicatur vel propinquis ejus exolvitur and that for smaller faults the punishment was a Mulct of Horses or Cattle whereof a great part was pay'd to the King or City and part to him that was acquitted or his kindred By which we may note a Sovereignty in the Kings or Free Cities or People to whom these Mulcts were pay'd But I leave these obscurer times and proceed to greater light Therefore for the better clearing of the Authority of the Saxon Kings in giving Laws to their Subjects and the discovering who were the constituent parts of the great Councils I shall first note something of the several Laws made in Germany France Several Laws made in several King loms after the declining of the Reman Empire and the Northern Countries and so proceed to some general observations of our Saxon Laws and lastly to illustrate or expound by a short Glossary the Saxon Titles of Great Men found mentioned in the Councils First as the Ancientest I meet with I will begin with the Gothic Laws Gothick Laws These Goths overrun Europe and did not only cause great Wars and Destructions but made great alterations in the Laws and Kingdoms The Goths according to the custom of other Northern People used not written Laws but their Country Customs till (t) Sub Erudiââ Rege Gothi Legum instituta scriptis bahere cââperunt nam antea mâribus consuetudine tenebantur Isidor Chron. Goth. Aera 504.
him liberty to go telling him that he owned not Vrban pro Apostolico and that it had neither been his nor his Fathers custom that any should own (d) Paternae consuetudinis eatenus extitisse ut praeter suam licentiam aut electionem aliquis in Regno Angliae Papam nominaret quicunque sibi hujus dignitatis potestatem vellet praeripere unum foret ac si coronam suam sibi conaretur auferre Idem num 50. any Pope in the Kingdom of England without his Licence or Election and whoever would take from him this Power of his Dignity did the same as if he endeavoured to despoil him of his Crown But Anselm persisted that he had declared before he would consent to be Bishop while he was Abbat of Becc that he received Vrban for Pope neither that he would in any manner depart from his Obedience and Subjection At which the King was very angry protesting that Anselm could not against the Kings good pleasure keep his Faith which he owed to him and his Obedience to the Apostolick See So Anselm saving his Reason or Argument which he declared concerning his Subjection and Obedience to the Roman Church desired Respite for the examining the Matter in Question till it might be defined by common consent the Bishops Abbats and all the Princes of the Kingdom meeting together whether saving his Reverence and Obedience to the Apostolick See he could keep his Faith to his Earthly Prince The Question moved Whether Archbishop Anselm could keep his âaith to thâ King saving his Obedience to the Apostolick See and if it be proved that both of them could not be done he had rather depart the Kings Land till the Pope was owned than for an Hour deny Obedience to St. Peter and his Vicar Then it follows Idem num 10. Dantur ergo Induciae atque ex Regia Sanctione ferme totius Regni Nobilitas 5. Id. Martii pro ventilatione istius causae in unum apud Rochingheham exit The Convention was on Sunday in the Church of the Castle The King and those (e) Rege suis secretius in Anselmum Concilium stuâiese texentibus Anselmus autem Episcopis Abbatibus Principibus ad se a Regio secreto vocatis that were of the Kings part secretly and studiously contriving their Councils against Anselm then follows a plain description who they were that constituted this Great Council Anselmus autem Episcopis Abbatibus Principibus ad se a Regio secreto vocatis Anselm calling the Bishops Abbats and Princes to himself from the Kings Secret Council or from the Consultation they had with the King By these I conceive we may understand the constituent Parts of this Great Council Then follows eos assistentem Monachorum Clericorum Laicorum numerosam multitudinem hac voce alloquitur Anselm makes his Speech to those that is to the Bishops Abbats and Princes and likewise to the numerous multitude of Monks Clerks and Laicks there present standing or sitting there as Auditors not Assessors as the sequel will show (f) Id. num 30 40 50. He tells them how he was forc'd to leave his Country by reason of the Kings desire that Council being taken it pleased the King and them to chuse him and that then he declared for Pope Vrbane and then tells them the straits he was in as before related and so desired their Counsel and prays them all especially his Brethren and Co-Bishops to give him advice The (g) Id. fol. 27. num 10. Bishops tell him They would advise him to submit to the King in all things as they were ready to do but if he commanded they would acquaint the King with his Discourse and return his Answer and the King (h) Anselmus ad hospitium suum Curiam manere petiturus reverteretur ordered that all things should be deferred till the next day because that was Sunday and Anselm should return to his Lodging he being about to petition that the Court might remain unless the words are to be read curiam mane repetiturus he to return to the Court in the Morning because the following words are Factum est ita mane juxta condictum reversi sumus It was so done and in the Morning according to agreement we returned Then it follows Anselmus in medio Procerum conglobatae multitudinis sedens ita orsus est Si juxta quod a vobis Domini Fratres hesterno die consilium de praesenti causa petivi vel nunc dare velletis acciperem Anselm sitting in the midst of the Nobles and the encompassing multitude begun thus If you my Lords and Brothers will give me counsel about the present Cause as I Yesterday desired or petitioned I will receive it In which we may observe that he applies himself principally to the Clergy unless we read the words disjunctively Domini Fratres as we shall presently find he doth They give him the same Answer they did the day before That he should submit to the Pleasure of the King but if he according to God expected Counsel from them which might in any thing gainsay the Kings Will it would be labour in vain for they would not assist him in it Then Anselm lifting up his Eyes aloft with a lively Countenance and a reverend Voice speaks to them thus Cum nos qui Christianae Plebis Pastores vos qui Populorum Principes vocamini When we that are the Pastors of the Christian People and you that are called the Princes of the People will give me Counsel not otherwise than according to the Will of one Man your Prince I will run to the chief Pastor and Prince of all to the Angel of the Great Council c. In which we may observe to my purpose In this Contest is discovered who were the Members of the Great Councils that he divides this Curia or Great Council into two parts the Pastors of the People or the Bishops and Abbats and the Princes of the People so as here are no Commons as in the acceptance of the word in this and later Ages they are understood For the Multitudo here mentioned are to be taken to be Spectators who flocked to hear the Cause as in other Courts and even at this day upon the hearing of Appeals at the Bar of the House of Lords it is usual for many to croud in as far as the Bar. That these Great Councils met where the King kept his Court at Christmas Easter and Whitsontide by custom often is mentioned in our Histories and needs no further Proof than what Doctor Brady hath produced therefore upon this occasion of Archbishop Anselm I shall only relate what Eadmerus saith Great Council at Pentecost de more That he attended the King at Pentecost sometimes at Dinner-time when he made his great Feasts and other times during the Holidays to try if the King's Mind was altered but found no change (i) Peractis igitur Festivioribus diâbus
called 50 Regni By the Statute of Marleburgh 52 H. 3. it is evident All the Barons not summoned but the more discreet and so of the lesser Barons That even all the great Barons were not summoned but only the more Discreet and such as the King thought fit to call and the like is observed of the lesser Barons or Tenents in Capite For if it had been by General Summons that Restriction of the more Discreet had been useless so that it appears that what (z) Britannia fol. 122. Quibus ipââ Rex dignaâus est brevia summonitionis dirigere venirent c. non alii Mr. Camden's ancient Author observes is true That after the horrid Confusions and Troubles of the Barons Wars those Earls and Barons whom the King thought worthy to summon by his Writ to meet came to his Parliaments and no other The Preamble to this Statute of (a) Stat. Edit 1576. p. 15. Marlebridge runs thus in Tottel Providente ipso Domino Rege ad Regni sui Angliae meliorationem exhibitionem Justitiae prout Regalis Officii poscit Vtilitas pleniorem convocatis discretioribus ejusdem Regni tam majoribus quam minoribus provisum est statutum ac concordatum ordinatum According to Pulton the (b) Fol. 14. Preamble is thus That whereas the Realm of England of late had been disquieted with manifold Troubles and Dissentions for Reformation whereof Statutes and Laws be right necessary The Use and Benefit of Laws whereby the Peace and Tranquillity of the People must be observed wherein the King intending to devise convenient Remedy hath made these Acts Ordinances and Statutes underwritten which he willeth to be observed for ever firmly and inviolably of all his Subjects as well high as low Thus we see in the whole Reign of H. 3. excepting in that Parliament of Montfort's Faction the Bishops and dignified Clergy Earls Barons and Tenents in Capite were only summoned as Members of the great Councils and there were no Representatives of the Commons and the Kings Authority in summoning dissolving and making Laws is most manifest Of Parliaments in King Edward the First 's Reign I Shall now glean out of Tottel and Pulton's Editions of the Statutes the most material Preambles which give light to the constituent Parts of Parliaments to the Legislative Power in the King with the Concurrence of the two Houses and how that in the Series of the Kings Reign hath been expressed and such other matters relating to the Parliament as may shew the gradual Progress of their Constitution to the usage of this present Age leaving the Reader to make his own remarques from the matters of Fact and the expressions used by my Authors and explaining some The Preface to the Statute of (a) Ceux sont les establishments le Roy Ed. fitz Roy Hen. fait a Westminst c. par son Councel par Passentments des Archevesques Evesques Abbes Priores Countes Barons tout le Commonalty de la terre illonques summons Tottel Stat. fol. 24. Pulton p. 19. Westminster begins thus These are the Establishments of King Edward Son to King Henry made at Westminster at his first General Parliament after his Coronation c. by his Council and by the Assent of the Archbishops Bishops Abbats Priors Earls Barons and the whole Commonalty of the Land thither summoned This Parliament was prorogued before it met and the Writ of Prorogation mentions only Quia generale Parliamentum nostrum quod cum Praelatis Magnatibus Regni nostri proposuimus habere c. Therefore having prorogued it mandamus c. Intersitis ad tractandum ordinandum una cum Praelatis Magnatibus Regni nostri (b) Brady against Petyâ fol. 147. c. So that all the Members are included in the two general Terms of Praelati Magnates which great Men very frequently comprehended as well the Barones Majores as Minores the Earls Barons and greater Tenents in Capite and the less which then were called the Community of the Kingdom The rest of the Preamble of the Statutes made at (c) Pulton's Stat. An. 1275.3 E. 1. f. 19. Westminster runs thus Because our Lord the King hath great Zeal and desire to redress the State of the Realm c. the King hath ordained and established these Acts under written The Preface to the Statute de Bigamis 4 Oct. 4 Ed. 1. is thus (d) In prasentia venerabilium purum quâruâdam Episcoporum Angliae aliorum de Concilio Râgis ââcitatae sââerunt constitutiones âub âriptae postmodââm coram Domino Rege Concilio sâo auditae publicatae Quia omnes de consiliââam âusââââarii quam alii concordaverunt c. Tottel p. 39. b. expressed In the Presence of certain Reverend Fathers Bishops of England and others of the Kings Council the constitutions under written were recited and after heard and published before the King and his Council for as much as all the King's Council as well Justices as others did agree that they should be put in writing for a perpetual memory and that they should be stedfastly observed In the First Chapter it is said Concordatum est per Justiciarios alios sapientes de Concilio Regni Domini Regis It was agreed by the Justices and other wise or sage Men of the Council of the Kingdom of the Lord the King Perhaps saith the judicious Doctor Brady the best understanding of the preamble and first Chapter may be that the Laws and Constitutions were prepared by the King and his (e) Answer to Pâtyt fol. 148. Council with the Assistance of the Justices and Lawyers that were of it or called to assist in it and declared afterwards in Parliament (f) Praeâiââae autem constitutiones eâiââ suerunt c. exâune lââum habeanâ Tottel fol. 40. for it is said in the close of the Statute The aforesaid Constitutions were published at Westminster in the Parliament after the Feast of St. Michael the 4th of the Kings Reign and thence forward to take place The Preamble to the Statute of Gloucester Anno 1278. 6 E. 1. is thus (g) Pour amendment de son Roialm pur plus pleinir exhibition de droit si comââââ prâsit dâ Office demanâ appâlles le plues discretes de son Roialme auââ bien des Granders comâ des Meindres establie est concordantment ordine Tottel fol. 50. The King for the amendment of the Realm and for the more full Exhibition of Justice according as the benefit of his Office requires having called the most discreet of his Realm as well the greater as the smaller It is established and unanimously ordained as Pulton adds after by the King and his Justices certain Expositions were made The Statute of Mortmain is thus prefaced Nos pro (h) Tottel p. 48. Vtilitate Regni volentes providere Remedium de Concilio Praelatorum Comitum Baronum aliorum fidelium
Regni nostri de Concilio nostro existentium providimus statuimus ordinavimus which (i) Pulton fol. 35. Anno 1279. 14. Nov. 7 E. 1. Pulton renders by the Advice of our Prelates Earls Barons and Subjects of our Kingdom being of our Council the King hath provided made and ordained whereas by Fideles is to be understood the Tenents in Capite The Statute of Acton Burnel or Statute Merchant 11 E. 1. according to Tottel was made by the (k) Ce Roy per luy per tout son Counsel ad ordain establâe Tottel fol. 49. 82. King himself and his whole Council That this was done in Parliament appears by the Statute of Merchants made in the 13th of the same King wherein it is said Our Lord the King by himself and by his Council at his (l) A son Parliament quâil âââât a Acton-Burnel c. Parliament which he held at Acton Burnel 11 Regni made and ordained these Establishments or as (m) Pulton fol. 36. Pulton hath it The King caused the Statute made by the King and his Council at Acton Burnel to be rehearsed and hath ordained and established Since the 49 of H. 3. to the 18 of Ed. 1. we find (n) Rât Pat. 20 E. 1. m. 15. no Writs for summoning of Knights Citizens and Burgesses but the 14 of June 18 Ed. 1. The King issued out the following Summons Rex c. The Form of Summons of Knights Citizens and Burgesses renewed at the Petition of the Nobles Two or three Knights to be chosen cum per Comites Barones quosdam alios de Proceribus Regni nostri nuper fuissemus super quibusdam specialiter requisiti tam cum ipsis quam cum aliis de communitatibus Regni illius colloquium habere volumus tractatum c. Tibi praecipimus quod duos vel tres de discretioribus ad laborandum potentioribus Militibus de Comitatu praedicto sine dilatione eligi eos ad nos c. venire facias c. cum plena potestate pro se communitate Comitatus praedicti ad consulendum consentiendum pro se communitate illa hiis quae Comites Barones Proceres praedicti tum duxerint concordanda vel concorditer ordinaverint in praemissis The English of which is Whereas we have been especially petitioned and requested by the Earls Barons and others of the great Men of our Kingdom concerning certain matters upon which we will have Conference and treat as well with themselves as with others of the Counties of that Kingdom We command thee that without delay thou makest to be chosen two or three of the most discreet and ablest Knights for dispatch of business of the Counties aforesaid and cause them to come to us c. with full Power for themselves and the whole Community of the County aforesaid to consult and consent for themselves and that Community to such things which the Earls Barons and great Men aforesaid shall think fit to agree upon From this we may observe That by Vertue of this Writ No Citizens and Burgesses but only Knights for Counties no Citizens or Burgesses could be chosen or sent to Parliament But only Knights for Counties Secondly The Scutage was granted in this Parliament as Doctor Brady hath noted fourteen days before the Writ for Election of Knights issued out and it is (o) Tottel's Stat. p. 85. apparent That the Statute of Westminster the Third was made the Eighth of July which was a week before they were to appear and consequently was made without them for the Preamble runs Dominus Rex in Parliamento suo apud Westmonasterium post Pascham Anno Regni sui 18. viz. in quindena S. Johannis Baptistae i.e. 8 July ad instantium Magnatum Regni sui concessit providit statuit From this Writ and the Variation of the following Writs and other Records the judicious Doctor Brady (p) Answer to Petyt fol. 151. notes That it was from the Kings Authority and at this time that the House of Commons came to be fixed and established in the present constant form it now is and hath been for many Kings Reigns and it doth appear that King Edward the First was not altogether confined to any certain number of Knights Citizens or Burgesses nor were several strict forms and usages now practised ever then thought of or some legal Niceties or Punctilioes now in use then judged of absolute Necessity The Statute of Quo (q) Pulton An. 1290. fol. 58. Warranto in the Eighteenth Year of Edward the First saith that the King of his special Grace and for the affection he beareth to his Prelates Earls and Barons and others of his Realm hath granted c. The Statute de (r) Idem Anno 1293. fol. 61. Malefactoribus in Parcis in the Twenty first Year of Edward the First saith Our Lord the King at his Parliament c. at the instance of the Nobles of the Realm hath granted c. Anno 1294. the King issues out his (s) Cl. 22 E. 1. m. 6. dorso Four Knights for a County Writs to cause two Knights out of every County to be chosen c. Dated the Eighteenth of October and the next day issues out Writs for other two to be chosen to meet at the same time and place Out of Mr. Ryley's (t) Fol. 241. Placita Parliamentorum it is clear that the Parliament which met on the Octaves of St. * Claus 28 E. 1. m. 3. dorso Hilary or the Twentieth of January in the Twenty eighth Year of Edward the First sate but eight days the Writ for the Commons Expences bearing date January the Thirtieth of the same Year and the Letter to the Pope signed by the Temporal Lords for themselves and the whole Community of the Kingdom of England is dated February the twelfth next following after the Commons had been dismissed fourteen days so that the Barons still continued to stile themselves the Community of England The Barons stay after the Commons dismissed and both Spiritual and Temporal Barons and others of the King's Council did stay and dispatch much Business after all others were dismissed as further appears in a (u) See Brady's Answer to Petyt fol. 152. Proclamation 21 March 33 Ed. 1. Wherein the King gives the Archbishops Bishops and other Prelates Earls and Barons Knights of Counties Citizens and Burgesses and other Persons of the Commons which by our Lord the King's Command came to this Parliament many Thanks for their coming and willeth that at present they return into their Counties so as they readily and without delay do come again at the time when they shall be remanded except the Bishops (w) Sauve les Evesques Countes Barons Justices autres qui sont du Conseil nostre Seigneur le Roy que ceux ne sen allient saunz especial conge du Roy. The King's Council prepare Laws Earls and
Barons Justices and others which are of the King's Council who may not depart without special leave of the King I shall not here enter into the enquiry how far the extent of the Power of the King's Council was in those days but it is very apparent that the King with advice of his Council proposed Laws and that others proposed by the Houses were considered by the King and Council as no doubt they are now considered before the King gives his Assent to Bills So in the Statute of the Definition of (x) Pulton An. 1304. fol. 72. Conspirators in the three and Thirtieth Year of King Edward the First it is said This Ordinance was accorded by the King and his Council in his Parliament Also in the Ordinance of (y) Idem Anno 1305. Enquests the Eighteenth of Sept. in the thirty third Year of Ed. the First It is said it is agreed and ordained by the King and all his Council that is his Parliament As to the special Prerogative of the King in giving the ultimate Character and fiat to the Laws every Act expresseth it so the Statute of (z) 18 Sept. 33 E. 1. Champerty the Statutes are called by the King Our Statutes and Our Lord the King hath commanded and in the Statute de Conjunctim feoffat it is said It is no new thing that among divers Establishments of Laws which we have ordained in our time so in the Ordinatio Forestae 34 Ed. 1. The King Ordains (a) Id. Anno 1306. fol. 73. We have ordained for our selves and our Heirs So in the Statute De asportatu Religiosorum 35 Ed. 1. it is said by the Council of his Earls Barons great Men and other Nobles of his Kingdom at his Parliament Our Lord the King hath Ordained and Enacted I shall only note first That in the Twenty eighth of this King those the (b) Cl. 28 E. 1. m. 3. dorso King had appointed being ready to give an account of the Perambulation of the Forests the King put a present stop to their report and his determination because the Prelates Earls Barons The Reason the King will determine nothing without advice in Parliament and the rest of the Magnates of the Kingdom in whose Presence his own and others Reasons should be propounded and heard and by whose Councils he intended to work especially seeing they were bound by Oath as well as himself to observe and maintain the Rights of the Kingdom and Crown were not then present and those were not summoned who should propound their Reasons so far as the matters concerned them and the King was not willing without their advice to put an end to the matters therefore he orders the Sheriffs to cause the two Knights that came to the last Parliament by his Precept now to come and the like for the Cities and Burroughs and if any were dead or infirm so that he could not come then to cause another to be chosen By which it appears that it was only from the King's Indulgence and that he might more deliberately resolve for the best advantage of his Subjects and for their satisfaction that he would have the advice of a fuller Assembly We may also further note from hence that it was in the King's Power to summon the same Knights Citizens and Burgesses without a new Choice except the Persons were dead or infirm Of the Parliaments in King Edward the Second's time IN this King's Reign these following Particulars are most observable In the Statute for (a) Pulton An. 1307. fol. 79. Knights 1 Regni it is said Our Lord the King hath granted In the Summons 5 Ed. 2. the Precept to the Sheriff The same Knights c. to come that were before is to cause to come to the Parliament to be held at Westminster those Knights Citizens and Burgesses in his Bailiwick which he caused to come lately to the present Parliament at London and which for certain causes went from the said Parliament (b) Cl. 5 E. 2. m. 26. dorso Vel alios ad hââ idoneos loco ipsorum si ad hoc vacare non possunt or others fit for the Imployment if they cannot be at leisure Dated Octob. 11. In the sixth of Ed. 2. we have an example of the King 's (c) Cl. 6 E. 2. m. 27. dorso A Form of Prorogation proroguing the House of Commons in these Words Dominus Rex praecepit quod Milites Cives Burgenses qui ad Parliamentum Regis ibidem summonitum convenerunt pro Comitatibus Civitatibus Burgis Angliae ad propria remearent ita quod reverterentur ibidem in crastino S. Mich. prox futuro sub poena qua decet So that as they were commanded to return home so they were appointed a time to return under the Intimation of a Punishment The Preamble to the (d) Pulton An. 1315. fol. 80. The King with his Council revise Articles after the Parliament ended Articuli Cleri runs thus That by the Kings Progrenitors and himself at the Instance of the Prelates certain Articles were made and in the Parliament at Lincoln 9 Regni he caused them to be rehearsed before his Council and made certain answers to be corrected and to the residue of the Articles answers were made by him and his Council and so by way of Charter they are published at York 24 Nov. 10 Regni The Statute of (e) Id. 1316. fol. 83. Gavelet at London saith It is provided by our Lord the King and his Justices In the Statute de Terris (f) Id. Anno 1323. 17 E. 2. fol. 91. Templariorum it is said Great conference was had before the King himself in the presence of the Prelates Earls Barons Nobles and great Men of the Realm and others present whereupon the Greater part of the King's Council The King's Council and Justices affirm as well the Justices as other Lay-men being assembled the Justices affirmed precisely c. After the recital of Particulars the words are It is ordained and agreed in the same Parliament Anno 1326. the last of Ed. 2. There is a Prorogation of the (g) Claus 20 E. 2. m. 4. dorso A Prorogation before Meeting Parliament before meeting which runs thus That though the King had intended Colloquium Tractatum Conference and Treaty in the Quindene of St. Andrew by Isabel the Queen and Edward his eldest Son Custos of the Kingdom the King then being beyond Sea and the Prelats Proceres Magnates Regni and so had commanded two Knights of the Community of the County two Burgesses of every Burrough (h) Quia tamen quibusdam de causis necessariis utilibus praedict Parliamentum Tractatum usque in crast inum Epiphaniae prox jam futur c. duximus prorogandum yet for certain causes necessary and profitable he hath prorogued the said Parliament and Treaty unto the day after Epiphany c. Of the Parliaments in King Edward the Third's
time THE Preface to the Statutes at (a) Pulton An. 1327. fol. 93. Westminster 1 Ed. 3. is thus To the Honour of God c. King Ed. 3 at his Parliament held at Westminster c. Petition made by the Commonalty to the King and his Council at the request of the Commonalty of his Realm by the Petition made before him and his Council in the Parliament by assent of the Prelates Earls Barons and other great Men assembled at the said Parliament hath granted for him and his Heirs for ever these Articles The title of the Statute made at (b) Idem Anno 1329. fol. 97. Westminster 27 Nov. 4 Ed. 3. is thus At the request of the Commons these things be Established and Enacted by our Lord the King his Prelates Established and enacted by the King Prelates c. Earls and Barons and other of the same Parliament So that at Westminster (c) Idem Anno 1331. fol. 100. 5 Ed. 3. Our Lord the King by the Assent of the Prelates c. and other Great Men and at the request of his People hath granted and established The Preamble to the Statutes at York (d) Idem Anno 1335. fol. 103. Shewed by the Knightsâ c. for the Commons assented to by the Lords with the Advice of the King's Council 9 E. 3. runs thus It was shewed to our Lord the King by the Knights of the Shires Citizens of the Cities and Burgesses of Burroughs which come for the Commons of the said Shires Cities and Burroughs Our Lord the King c. by the Assent of his Prelates c. and other Nobles of this Realm summoned at this Parliament and by the Advice of his Council being there Upon the said things disclosed to him Ordains c. So the Statute at (e) Idem Anno 1336. p. 105. Westminster 10 E. 3. is Our Lord the King by the Assent of the Prelates c. and at the Request of the Knights of Shires and his Commons by their Petition hath Ordained Established c. The Preamble to the Statute for the Clergy 16 Apr. 14 E. 3. runs thus At the Petition of John Archbishop of Canterbury and other Prelates upon deliberation had with the Peers of our Realm and other of our Council and of the Realm summoned to our said Parliament Thus far we find the King Establishing and Ordaining upon the Petition of the Commons as also of the Prelates with the Assent of the Prelates and Nobility and his Council Before I proceed to those Statutes which mention the assent or advice of the whole Parliament I think fit to insert at large the Repeal of an imperfect Statute made 15 E. 3. There having been (f) Idem Anno 1541. 15 E. 3. fol. 115. a Statute made That Ministers of the Church should not answer before the Kings Justices for things done touching the Jurisdiction of the Church For what reasons and in what manner this was repealed Repeal of Law unduely prâcured will best appear by the Kings Precept to the Sheriff of Lincoln which runs thus Whereas at our Parliament summoned at Westminster in the Quindene of Easter last past certain Articles expresly contrary to the Laws and Customs of our Realm of England and to our Prerogatives and Rights Royal were pretended to be granted by us in the manner of a Statute And considering how by the Bond of our Oath we be tied to the observance and defence of such Laws Customs Rights and Prerogatives and providently willing to revoke such things to their own State which be so improvidently done Upon Conference and Treatise thereupon with the Earls Barons and other Wise Men of our said Realm and because we never consented to the making of the said Statute but as it then behoved us we dissimuled in the Premisses by Protestations of Revocation of the said Statute if indeed it should proceed to eschew the danger which by denying the same we feared to come for as much as the said Parliament otherwise had been without dispatching any thing in discord dissolved and so our earnest business had likely been ruinated which God prohibit and the said pretended Statute we promised then to have sealed It seemed to the said Earls Barons and other Wise Men that sithence the Statute did not of our Free Will proceed the same be void and ought not to have the name or strength of a Statute and therefore by their counsel and assent we have decreed the said Statute to be void and the same as much as it proceeded of Dread we have agreed to be adnulled Nevertheless that the Articles contained in the said pretended Statute which by other of our Statutes or of our Progenitors Kings of England have been approved shall according to the form of the said Statute in every point as convenient is be observed and the same we do only for the Conservation and Redintegration of the Rights of our Crown as we be bound and not that we should in any wise grieve or oppress our Subjects whom we desire to rule in lenity and gentleness So the King commands all these things to be openly Proclaimed 1 Oct. 15. Regni From this Statute we may 1st Observations upon iâââ observe That without the Kings free and express consent there can be no Law pass'd 2ly The Bishops are not mentioned in this it being contrary to some Liberties Churchmen claimed by the Canons 3ly The Kings assent was not compleat but only a temporary one like a Salvo Jure lest his earnest business for which he called them should miscarry for want of a seeming compliance therefore he is said to promise the Sealing of it which was in that Age the Characteristick of Confirmation but never did it but rather made some kind of Protestation in the presence of some that what he did was unwillingly 4ly That seeing it did not proceed of his Free Will therefore by the advice and consent of the Earls Barons and other Wise Men it is declared void Lastly The principal reason why he gave not his free consent to it was because it was against his Coronation Oath whereby he was tied to the observance and defence of the Laws Customs Kings not bound to consent to what Bills the Houses propose Rights and Prerogatives So that upon the whole they that would advise their Princes to consent to whatever Bills the Houses should tender as in the Chapter of Factious Members of Parliament I shall have occasion to discourse may learn from hence That the King found himself obliged to consent to no Bills contrary to the Law Customs Rights and Prerogatives such were those the unhappy Parliament of 41 in the point of the Militia and their other dethroning Bills and of late another Parliament in the Bill of Seclusion endeavoured to impose upon their Soveraigns contrary to the fundamental Laws and Prerogatives of the Crown To proceed The Preface of the Statute at (g) Id. 1346. fol. 118. Westminster
7th May 20 E. 3. runs thus Because that by divers complaints made to us we have perceived that the Law of the Land which we by our Oath are bound to maintain is the less well kept c. we greatly moved of Conscience in this matter c. by the assent of the great Men and other Wise Men of our Council We have ordained c. The Preamble to the Statute of Labourers (h) Idem Anno 1349. fol. 120. repealed 23 E. 3. was thus Upon deliberation and treaty with the Prelates and the Nobles and learned Men assisting us of their mutual assent ordained and that Statute for Labourers which remains in force 25 E. 3. saith Whereas it was ordained by our Lord the King and by assent of the Prelates Earls Barons and others of his Council c. It is apparent by several Records So one Knight for a County when two Burgesses 27 E. 3. So the King names one Knight one Citizen and one Burgess to be sent 43 E. 3. m. 2. That the Kings of England have not been tied to the certain number of Knights Citizens and Burgesses though for a long while two only have been chosen of each but heretofore sometimes but one other times two or three as that 18 E. 1. and 4 Knights 22 E. 1. Besides which liberty there is a (i) Cl. 24 E. 3. p. 2. m. 3. memorable Record in this Kings Reign wherein the King appointed the qualifications of such as were to be chosen Members of the House of Commons The Writ is directed to all the Sheriffs of England Quod de Comitatu tuo duos Milites c. de discretioribus probioribus Militibus Civibus Burgensibus ad laborandum potentioribus qui non sint Placitatores querelarum manutentores aut ex hujusmodi quaestu viventes c. sed homines valentes bonae sidei publicum commodum diligentes eligi Qualification of Members to be elected Pleading Lawyers Maintainers of Plaints and such as lived of such like gain were forbid to be chosen upon some particular Reason of State then inducing it of which I shall write something in the Chapter of Parliaments The other Preambles most (k) Pulton An. 1350. fol. 121.25 E. 3. Idem Anno 1350. fol. 125. Assent of the Commonalty remarkable in this Kings Reign are mostly By the assent of the Prelates Earls Barons and other great men and all the Commons or of all the Commonalty of the Kings Realm The King hath Granted Ordained Established c. The Statute for the Clergy (l) Idem Anno 1350. fol. 122. 25 Regni saith Our Lord the King seeing and examining by good deliberation the Petitions and Articles delivered to him in his Parliament c. by Simon Archbishop of Canterbury and other Bishops of his Province upon certain Grievances c. By the Assent of his Parliament by the assent of his Parliament for him and his Heirs willeth and granteth the Points underwritten The Statute of Provisors 25 E. 3. is (m) Id. 1350. fol. 129.25 E. 3. The King bound by his Oath to remedy Mischiefs and Damageâ to his Realm by accord of his People in Parliament singular in its Preamble That whereas in the Parliament 15 E. 1. at Carlisle the Petition heard put before the said King and his Council in his said Parliament by the Commonalty of the said Realm containing c. whereupon the said Commons have prayed our Lord the King that sith the right of the Crown of England and the Law of the said Realm is such That upon the Mischiefs and Damages which happen to his Realm he ought and is bound by his Oath with the accord of his People in his Parliament thereof to make Remedy and Law and remove the Mischiefs and Damages which thereof ensue so pray the King thereupon to ordain Remedy The Statute of Provisors (n) Id. 135â fol. 131. 27 E. 3. runs Our Lord the King by the Assent and Prayers of the Great Men and Commons of this Realm c. hath ordained The Statute of (o) Idem Anno 1353. fol. 133. Staple 27 E. 3. hath a singular Preface whereas good deliberation had with the Prelates Dukes Earls Barons and Great Men of the Counties that is to say of every County one One Knight for a County and so for Cities and Burroughs for all the Counties and so of Cities and Burroughs c. by the Council and common consent of the said Prelates c. Knights and Commons the King hath ordained c. In the 28. Princes are named after Prelates The Preamble of the Statute at (p) Idem Anno 1362. fol. 152. The Request of the Commons Westminster 36 E. 3. runs thus The King at the request of the Commons by their Petition delivered to him in the said Parliament by the Assent of the Prelates Dukes Earls Barons and other Great Men in the Parliament assembled have granted for him and his Heirs for ever the Articles underwritten In the Second Chapter of which it is said The King of his own Will without motion of the Great Men or Commons hath granted in ease of his People The Statutes made (q) Idem Anno 1368. fol. 159. 42 E. 3. have only At the Parliament of our Lord the King it is assented and accorded So in (r) Idem Anno 1369. fol. 190. 43 E. 3. The Prelates Great Men and Commons seeing the Mischiefs pray the King in this present Parliament thereupon to ordain Remedy The Preamble to the Statutes (s) Idem Anno 1376. fol. 191. 50 E. 3. runs thus The Prelates Dukes Earls Barons and others assembled at the Parliament c. Our Lord the King desiring much that the Peace of his Land be well kept and his faithful Subjects in quietness and tranquillity maintained hath therefore made and ordained certain Ordinances and also granted certain Graces and Pardons to his Commons of England In all which it is evident the Two Houses had no more but an Advising or Petitioning and Assenting Power It is every where expressed that the King solely Ordaineth Establisheth Granteth However he owns an obligation by his Coronation Oath to make good Laws for his Subjects CHAP. XXVII Of the Parliaments of England during the Reigns of King Richard the Second to the First Year of King James the Second THE Preface to the Statutes at (a) Pulton An. 1377. fol. 163. Westminster 10 R. 2. is thus Richard by the Grace of God c. to the Sheriff of Nottingham Greeting Know you That to the Honour of God c. by the whole Assent of the Prelates Dukes Earls and Barons of this our Realm Special Instance and Request of the Commons at the instance and special Request of the Commons of our Realm assembled at our Parliament We have ordained and established certain Statutes in amendment and relief of this our said Realm That at (b) Idem Anno 1378.
in this present Parliament assembled and by the Authority of the same Of the Parliaments in Queen Elizabeth's time WE may observe something new in the Acts of this Queen we have noted once in Henry the Eighth's time the two Houses pray that it may be enacted and so in Edward the Sixth but in the first (a) Id. fol. 873. Chapter of the Acts of this Queen it is more full thus Most humbly beseech Your most Excellent Majesty Most humbly beseech your most excellent Majesty your faithful and obedient Subjects the Lords Spiritual and Temporal and the Commons of this your present Parliament assembled and in another (b) Id. fol. 874. Paragraph That it may please your Highness that it may be further enacted and in another place If some redress by Authority of this your High Court of Parliament High Court of Parliament with the assent of your Highness be not had and provided 5 Eliz. Cap. 1. it is thus expressed Be it therefore Enacted Ordained and Established by the Queen our Sovereign Lady and the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by Authority of the same And in the Eighth Be it now Declared and Enated by the Authority of this present Parliament Most of all the rest of the Acts of her Reign are expressed after some of these forms The 43 of her Reign in the First Chapter it is thus In most humble wise beseechen your most excellent Majesty the Lords Spiritual and Temporal and the Commons of your Highness's Parliament assembled Of the Parliaments in King James the First 's Reign THE Title of his first (a) Id. fol. 1085. Acts is at the Parliament begun c. To the pleasure of Almighty God the Weal publick of this Realm were Enacted c. In the First Chapter We therefore your most Humble and Loyal Subjects the Lords Spiritual and Temporal and the Commons in this present Parliament assembled In most humble and lowly manner do beseech in most humble and lowly manner do beseech your most excellent Majesty that it may be published and declared in this High Court of Parliament and Enacted by Authority of the same In the Second Chapter it is said Be it further (b) Id. fol. 1086. Enacted by the Kings most Excellent Majesty by and with the Assent and Consent of the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by Authority of the same In the Seventh of King James is only expressed Be it Enacted by the Authority of this present Parliament c. The rest agrees with some of these Of the Parliaments in King Charles the First 's Reign THE Preface of his First (a) Id. fol. 1226. Parliament is At the Parliament c. To the high pleasure of Almighty God and to the weal publick of this Realm were enacted c. In the First Chapter (b) Id. fol. 1227. Be it enacted by the King c. it is said Be it Enacted by the Kings most excellent Majesty the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by the Authority of the same In the beginning of the Petition (c) Id. fol. 1229. Petition of Right of Right it is thus worded Humbly shew unto our Soveraign Lord the King the Lords Spiritual and Temporal and Commons in Parliament assembled c. and the close of it is All which they most humbly pray your most excellent Majesty as their Rights and Liberties according to the Laws and Statutes of this Realm c and that your Majesty would be graciously pleased In the Seventeenth of the said King (d) Id. fol. 1237. Chap. 6. it is thus expressed Therefore the Kings most excellent Majesty out of his Princely care c. by the Assent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled and by the Authority of the same Ordaineth Enacteth and Establisheth Of the Parliaments in King Charles the Seconds Reign THE Preface to the Acts of the two Houses (a) Id. fol. 1249. begun 25 Apr. 1660. not summoned by the Kings Writ is much the same with that of King Charles the First and King James mutatis mutandis In the Third Chapter it is said Be it Enacted by the Kings most excellent Majesty and the Lords and Commons assembled in Parliament In the Fourth Chapter (b) Id. fol. 1251. The Commons do by and with the Advice and Consent of the Lords in this present Parliament and by Authority of the same give and grant unto you our Supreme Liege Lord and Soveraign one Subsidy c. Supreme Liege-lord and Sovereign In the First Chapter 13 Car. 2. the (c) Id. fol. 1300. enacting part is thus worded Do most humbly beseech your most Excellent Majesty Most humbly beseech Your most Excellent Majesty c. that it may be Enacted and be it Enacted by the Kings most Excellent Majesty by and with the Advice and Consent of the Lords and Commons in this present Parliament Assembled and by Authority of the same The rest of the Acts in King Charles the Second's Reign are continued in the same form The Titles of the Acts of Parliament 1 Jac. 2. our most Gracious Soveraign are At the Parliament begun at Westminster the 19th Day of May Anno Dom. 1685. in the First Year of the Reign of our most Gracious Soveraign Lord James c. The Enacting part of the granting an Imposition c. thus Most Gracious Soveraign We your Majesties most Dutiful and Loyal Subjects the Commons Assembled in Parliament towards a Supply c. and with an humble and thankful acknowledgment of your Majesties favourable and tender regard to us your Commons have chearfully and unanimously given and granted unto your Majesty an Aid and Assistance and we do humbly beseech your Majesty that it may be Enacted and be it Enacted by and with the Advice and Consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled and by the Authority of the same All the other Acts which are not Grants of Aid Assistance or Supply are conceived in the latter words By this full enumeration of the most considerable Expressions either of Records or Historians relating to the Great Councils or Parliaments from William the Conqueror's time to this present Age which in a continued series of time I have deduced it appears that till King John's time only the Prelates Earls and Barons and such of the great Tenents in Capite as were not Barons were summoned and at the Kings pleasure by special Writ and after King John's Charter the lesser Tenents in Capite by General Summons Also that the Charters of Kings wherein they granted Liberties to their Subjects were received as Laws and gave as ample Satisfaction as now The King willeth doth to pass a Bill tendred for his Royal Assent by both Houses and there was good
reason because it passed under his Broad Seal Likewise when the Constitution of Parliament was altered 49 H. 3. whereby in place of the Tenents in Capite which were numerous two Knights were chosen probably by the rest of the Tenents in Capite for the Shires and two Citizens and two Burgesses for Burroughs to represent all those that held in Capite and it is likely all other their Subfeudatary Tenents yet the number was not constantly observed there being sometimes Knights and no Citizens or Burgesses sometimes one Knight one Citizen and one Burgess other times two or three Knights left as it seems to the Sheriffs or the Chusers Election till after it was fixed as it now is for two Knights two Citizens and two Burgesses unless in some places of Wales where to this Day some two or three Burroughs chuse but one or two Burgesses Likewise it is worth the observing how gradually the Advice and Assent hath pass'd from the Advice of the Bishops and Nobles to the Assent likewise and sometimes at their request only the King ordains and then from the Potition of the Commons to their joyning in Advice and after to their Assent and many other material progressive alterations which in this recapitulation I cannot insist upon till it hath come to that constitution so much to be valued by all wise Englishmen as it is the product of the generous condescensions of Gracious Kings and the wise contrivance of our considerate Ancestors Therefore I shall now pass to consider our present Constitution of Parliaments CHAP. XXVIII Of the modern rightly constituted Parliaments SECT 1. Of the General Vse of Parliaments I Have before given an account how the Persian Laws were made by the (a) Daniel cap. 6. v. 7 8. King his Princes Governours Nobles and Captains as in a great Council of several Orders with the Sovereign but we have an older example in Scripture Great Councils in Scripture that seems to be the Pattern of all great Councils such as we call Parliaments under a Monarchy For it is said (b) Legem praecepit nobis Moyses haereditatem multitudinis Jacob. Erit apud rectissââum Rex congregatis Principibus populi cum Tribubus Israel Deââ cap. 33. v. 4 5. Moses commanded us a Law even the Inheritance of the Congregation of Jacob and he was King in Jesurun when the Heads of the People and Tribes of Israel were gathered together Here is the King Moses commanding a Law and the Heads of the People the Princes or House of Lords and the Tribes that is some to represent the chief of the Tribes like our House of Commons The Roman Senate under the Emperors resembled our ancient Great Councils that consisted of such as the King convened and of the Patrician and Equestrian Order The Comitia bore no resemblance with our Commons and the Amphictyonican (c) ãâã ãâã ãâã ãâã ãâã Assemblies the Achaian Booââan and Pan Aetolian were Assemblies of Deputies as the States General of Holland Such Assemblies in all sorts of Governments are necessary Necessary in all Governments for be the Empire never so vast and the Sovereigns Power never so great and uncontroulable yet without Consultation had with the Princes and wise Men for the constituting Laws and modelling the frame and methods of his Government it would soon without such (d) Vis consilii expers mole ruit sua Horat. lib. 3. Od. 4. Buttresses and Undersetters sinking in its Foundation by its own weight with an hideous rush be crushed into an heap of Rubbish In Democracy Great Councils are needful that thereby the (e) Plato de LL. In Democracy Male cuncta ministrat impetus Statius Precipitancy and fury of the Common-People by their gravity may be attempered the common sort being apt to do every thing with a willful Violence which never succeeds well when not directed to a right end If their publick affairs were not committed to a select number of Trustees nothing would be brought to any Issue since none can be heard where all speak nor any good Product be from a jumble of those Atoms Aristocracy it self consists in a select number of the wisest and ablest to govern In Aristocracy who in publick Consultations have no private ends Yet in the great Councils of neither of these forms of Government is there to be found that stayedness orderliness or resolution for the public good as in Monarchy Why such Assemblies are not only convenient In Monarchy but necessary under Monarchy there are many weighty Reasons (f) ãâã ãâã ãâã ãâã ãâã Xenoph. Cyropaed 8. Satisfactory to the Subject Xenophon observes that a single Person sees or hears but little and Princes must have many Eyes and Ears which in a special manner these Great Councils are from all parts of the Dominions bringing notice of what is amiss and wants redress as well as what is orderly and wants encouragement Besides Princes thereby have the opportunity to give their Subjects satisfaction in their Administration preventing the surmises and jealousies of the Nobility Gentry and common People that he sleights them in not calling them sometimes to consult about affairs of Moment Furthermore the Prince by such congress The Prince thereby knows the Worthy Subjects consults his own Interest in coming to the Knowledg of the most able active and popular Subjects whereby he may single out such as are most fitted for public Imployments to serve him in the several offices of Government and all who thus have a share in the debating and consulting about Laws will not only be witnesses of the Prince's Grace and Favour in granting such as they have desired and assented to but will be so many Heralds of his Wisdom and care of his Peoples good Government and so many vigorous enforcers of the Execution of those Laws they have so lately assisted to prepare Likewise The Prince is skreened from Obloquy as Privy-Counsellors and other Officers are sometime as Skreens to Princes to ward off the Obloquy of the Mobile when something is imposed that may be wholesome though something bitter to their Palates So especially are these great Conventions necessary where useful Laws though severe are to be enacted Money to be raised or other Impositions laid upon the People who do much more chearfully and less repiningly obey when they know (g) Tum caetera parit Turba libens subit propriis quia legibus acta the Nobility and their own Representatives have judged them convenient All Men naturally loving that such Impositions may immediately result from themselves rather than they should be enjoyned by the Princes Arbitrary power according to that of Claudian Observantior aequi Fit Populus nec ferre negat cum viderit ipsum Auctorem parere sibi The General use of good Parliaments is summed up in the (h) MS. Speech An. 1562. The general Benefits of Parliaments Chancellors Speech 2 Eliz. thus That the principal cause of their
together with Judges and King's Council Citizens Burgesses of Parliament and Barons of the Cinque-Ports being usually summoned to the one but to the other some few Spiritual and Temporal Lords only without (x) Brief Register part 1. pag. 187. to 192. any Judges Assistants Knights Citizens Burgesses or Barons of the Cinque-Ports or some few of them only and divers who were no usual Lords or Barons of Parliament as Mr. Prynn hath made evident and the Rolls themselves in the Margin notes them by de Concilio summonito or deveniendo ad Concilium which some Antiquaries having not noted have confounded them SECT 4. Of the Judicature of the House of Lords IT is evident that the Lords in Parliament have ever been the usual Judges not only in all criminal and civil causes 6. The Lords Judicature proper for Parliaments to judg or punish and Writs of Errors but likewise in all cases of Precedencies and Controversies concerning Peers and Peerage which Power was in them as the King 's Supreme Court before there were any Knights Citizens or Burgesses summoned to our Parliaments So Hoveden (y) Annal. pars poster p. 561. ad 566. is express in the case of Sanctius King of Navar and Alphonsus King of Castile Comites Barones Regalis Curiae Angliae adjudicaverunt Anno 1177. 23 H. 2. So Fleta in Ed. the First 's time writes (z) Habet enim Rex Curiam suam in Concilio suo in Parliamentis suis praesentibus Pralatis Comitibus Baronibus Proceribus aliis viris peritis ubi terminatae sunt dubitationes judiciorum Lib. 2. c. 2. p. 66. thus The King hath his Court in his Council in his Parliaments there being present the Prelates Earls Barons Nobles and other skillful Men viz. the Judges Assistants where are ended the doubts of Judgments This Particular of the Jurisdiction of the House of Lords is so fully in every Branch of it proved by Mr. Prynn in his Plea for the Lords House that it were an Injury to the inquisitive Reader not to referr him to that Treatise for full Satisfaction therefore I shall only pick out a very few out of a Manuscript I have of the Priviledges belonging to the Baronage of England and Mr. Prynn In the fourth of King (a) Roâ Parl. 4 E. 3. m. 7. num 3. Judgment of Lords on John Mautravers Edward the Third the Peers Earls and Barons assembled at Westminster saith the Record have strictly examined and thereupon assented and agreed that John Mautravers is guilty of the death of Esmon Earl of Kent Uncle of our Lord the King that now is wherefore the said Peers of the Land and Judges of Parliament judged and awarded that he the said John should be drawn hanged and beheaded In the first of R. 2. John Lord of (b) Rot. Par. 1 R. 2. m. 6. num 38 39. Gomenys and William de Weston were brought before the Lords sitting in the white Chamber On John Lord of Gâmenys and William Weston for delivering up Forts to the Enemy and were severally charged at the Commandment of the Lords by Sir Richard Scroop Knight Steward of the Kings House William Weston being accused for rendring the Castle of Outhrewike and John Lord of Gomenys for rendring the Castle of Ards. They both made plausible defences and Sir Rich. Scroop Steward tells William that the Lords sitting in full Parliament do adjudge him to death But because our Lord the King is not yet informed of the manner of this Judgment the execution thereof shall be respited till the King be informed thereof and the like Sentence he passed upon John Lord of Gomenies only adding that he being a Gentleman and Banneret should be beheaded There are many more Examples of Judgments given in Capital matters upon Bergo de Bayons 4 E. 3. m. 7. num 4. Thomas de Gurny eadem membrana num 5. and others and for Offences not Capital of Richard Lions 59 E. 3. m. 7. William le Latymer 42 E. 3. m. 2. William Ellis ibid num 31 John Chichester and Botesha 1 R. 2. num 32. Alice Piers Ibid. num 41. Mr. Antiquity of Judgment by Peeâs Prynn (c) Plea for Lords p. 203. Hist lib. 4. shews this Jurisdiction out of Historians even from Cassibellan out of Geoffrey of Monmouth Also Anno 924. of Elfred a Nobleman who opposed King Aethelstan's Title and had his Lands adjudged by the Peers forfeit to him the Words of the King are Et eas accepi (d) Malmsb. de Gest is Reg. lib. 2. c. 6. p. 62. Spelman Conc. Tom. 1. p. 407 408. Anno 1043. quemadmodum judicaverunt omnes âptimates Regni Anglorum So Earl Godwin having murdred Prince Alfred Brother to King Edward the Confessor being fled into Denmark and hearing of King Edward's Piety and Mercy returned and came to London to the King who then held a Great Council and denied the Fact and put himself upon the (e) vnde super hoc pono me in consideratione Curiae vestrae Chron. Brompton col 937 938. consideration of the Kings Court and the King speaks to the Earls and Barons thus Volo quod inter nos in illa appellatione rectum judicium decernatis debitam justiciam faciatis and after it is said Quicquid judicaverint per omnia ratificavit So in the Constitutions of (f) An. 1164. M. Paris 94. Sicut Barones caeteri debent interesse judiciis Curiae Regis cum Baronibus quousque perveniatur in judicio ad diminutionem membrorum vel ad mortem The House of Lords the King's Court of Barons Clarendon it is appointed That the Archbishop Bishops and those Clergy that held in Capite as by Barony should be Parties in the Judgments of the Kings Court as other Barons ought with the other Barons till it come in Judgment to the loss of Member or to Death So in the Case of Tho. Becket Archbishop of Canterbury Anno 1165. 11 H. 2. we find in Hoveden parte post p. 494 495. that Barones Curiae Regis judicaverunt eum esse in misericordia Regis and afterwards when he would not yield to the Kings Will he (g) Dixit Baronibus suâs Cito facite mihi judicium de illo qui homo meus Ligeus est stare Juri in Curia mea recusat saith to his Barons Quickly make to me Judgment of him who is my Liege Man and refuseth to stand to the Law in my Court The Barons going out judg'd him fit to be seiz'd on and sent to Prison and the Historian saith tunc misit Rex Reginaldum Comitem Cornubiae Robertum Comitem Leicestriae ad indicandum ei judicium de illo factum Anno 1208. King (h) Anno 10 Johan Mat. Paris p. 218. John exacted Pledges of his Subjects and amongst others of William de Breause who said If he had offended the King he would be ready to answer his Lord and that without Hostages secundum judicium
Curiae suae Baronum Parium suorum So Anno 1240. 24 H. 3. (i) Graviter accusatus coram Rege Curia tota Lond. Mat. Westm 153. Matthew Paris saith That Hubert de Burgo Earl of Kent was grievously accused before the King and his whole Court and it was adjudged he should resign to the King four of his Castles I cannot omit one memorable passage that (k) Mat. Westm Anno 1260. p. 295 296. Anno 1260. 44 H. 3. there falling out a difference betwixt King Hen. 3. Prince Edward his Son Simon Montfort and other Nobles the King called his Baronage to St. Pauls and there it being urged that Prince Edward had done some injuries to the King he offered to prove himself innocent before the King and his Uncle who was King of the Romans saying Who are Peers of Prince Edward That none of (l) Omnes alios Barones Comites sibi de âure non esse Pares nec sââs in eum excercerâ disâussiones the rest of the Barons and Earls were by right his Peers nor ought to exercise upon him their Discussions of the matter By which it appears that he judged himself to be something more than a Peer of the Realm being the Heir apparent of the Crown I might fill a large Volum with the Histories and Records to prove this but since Levellers and the House of Commons that voted the House of Lords dangerous and useless have received such deadly wounds by Mr. Prynne in his Plea for the Lords who was once one of their own Champions I think it needless to whet those Weapons again since they always will be in readiness for any one to make use of if need require and shall only obviate one objection that may be urged That whatever the usage was before the Representatives of the Commons An Objection That after the House of Commons were admitted the Jurisdiction of the Lords House was lessened Answered yet the Commons after were often admitted to a share of Judicature in some cases But I shall give a few Instances how after this change of the Constitution of Parliament still this power of Judicature remained in the King and House of Lords Roger de (m) 4 E. 3. num 11.28 E. 3. num 9 10. Mortimer being accused of High Treason 4 E. 3. for the Murther of King Edward 2. after his resignation and unlawful deposition Knighton (n) De Event Angliae lib. 3. c. 16. col 1556 1557. giving an account of the proceedings agreeable to the Parliament Roll saith Rex praecepit Comitibus Baronibus caeteris Magnatibus Regni justum judicium ferre super praedicto Rogero de Mortimer So at the Parliament held at Salisbury 7 R. 2. W. de Zouch is said to be called to the Parliament to stand to the Judgment (o) Ad standum judicio Regis Domincrum Walâingham p. 334. Hist Ang. Hypodig Neust p. 141. of the King and the Lords So Michael de la Pole Earl of Suffolk and Chancellor of England 10 R. 2. (p) Rot. Parl. 10 R. 2. num 6. ad 18. was accused by the Commons in full Parliament before the King Bishops and Lords and at last it is said The Lords in full Parliament gave judgment against him In the Parliament 11 R. 2. Thomas Duke of Gloucester offered to put himself upon his Tryal as the Lords of the Parliament would award c. After which the Lords as well Spiritual as Temporal claimed their Liberties and Franchises namely That all weighty matters in the same Parliament which should be after moved touching the Peers of the Land should be judged and determined by them by the course of Parliament and not by the Civil Law nor yet by the Common Law of the Land used in other Courts of the Realm Yet this seems a very high Demand for they have not Juris dandi but dati Jurisdictionem as they are a Court of Ministerial Jurisdiction being the Court of the King's Barons in Parliament And though when upon Writ of Error (q) Egerton sect 4.22 23. any Judgment in the King's Bench is examined in the House of Lords and there affirmed or reversed the Judgment is said to be affirmed or reversed in Parliament yet we cannot conclude they have the Power of the High Court of Parliament that their Decrees if against the Law should be as binding as Acts of Parliament How the Lords judge ministerially And though the same House in the same Session may not have Power to review again their own Judgment nor to restore again any Judgment they have reversed because they judge ministerially and not sovereignly and so bind their own Hands as well as their Inferiors whereas an Absolute Supreme Court is never at the last Period of Jurisdiction yet we see Attainders in one Parliament reversed in another and so may their Judgments be But this obiter I shall but add one proof more being full and express to the purpose to prove the House of Lords sole Jurisdiction with the King who must always be understood to give Judgment by them The Record is 1 H. 4. (r) Rot. Par. 1 H. 4. num 79. Exact Abridgment p. 392. where it is said That 3 Nov. the Commons in this Parliament shewed to the King Come les joggements du Parlement apperteignent soulement au Roy Seignieurs nient aus Communes c. That the Judgments of Parliament appertained only to the King and to the Lords and not unto the Commons Thereupon they prayed the King out of his special Grace to shew unto them the said Judgments and the cause of them that so no Record might be made in Parliament against the said Commons which are or shall be parties to any Judgment given or hereafter to be given in Parliament without their Privity Whereunto the Archbishop of Canterbury gave them this Answer by the Kings Commandment That the Commons themselves are Petitioners and Demanders and that the King (s) Et que le Roy les Seigniours de tout temps ont eues averont de droit les Juggement in Parliament en manere come mesmes les Communes soât monstres and Lords from all times have had and shall have of right the Judgments in Parliaments in manner as the Commons have shewed How far the King and House of Lords have been Judges of the Priviledges of the House of Commons I shall declare in that part of this Chapter wherein I treat of that House SECT 5. Of the Assistants to the House of Lords HAving thus far treated of the Constituent Parts of the House of Lords I come now to the Assistants to this most Honourable House which were mostly the (t) Prynne's Brief Register part 1. sect 3. p. 240. The Judges and other Assistants of the House of Lords King 's Great Officers as well Clergy-men as Secular Persons who were no Lords or Barons of the Realm as namely his Treasurer
by Sir Edward Coke (m) 4. Instit p. 12.1 Inst p. 69.2 Inst 7 8. Preface to ninth Report beyond all bounds of Truth and Modesty as also the great mistake of our learned judicious Antiquary (n) Archaion p. 257. Mr. Lambard and (o) Doderidge of the Antiquity of Parliaments others of great note who affirm that the true original Title and Right of all our ancient Cities and Burroughs electing and sending Burgesses and Citizens to our Parliaments is Prescription time out of mind long before the Conquest it being a Privilege they actually and of right enjoyed in Edward the Confessor's time or before and exercised ever since Indeed the whole series of the great Councils in the Saxon Danish and Norman Kings Reigns to the Forty Ninth of Henry the Third evince the contrary As to the Wages of the Knights Citizens and Burgesses The Wages of Knights Citizens and Burgesses it being a thing now obsolete though not out of force by those that would claim them I shall only note that the first Writ for them is coeval with our Kings first Writs of Summons and the reason given in the Writ is That whereas the King had summoned two Knights c. and they had stayed (p) Ac iidem Milites moram diuturniorem quam credebant traxerint ibidem propter quod non modicas fecerint expensas Cl. 49 H. 3. m. 10. dorso longer than they believed they should do by reason of which they had been at no small Expence therefore the King appoints the Sheriff by the counsel of Four lawful Knights to provide for the Two Knights of the Shire their reasonable Expences The Writ of the 28 Ed. 1. (q) Rot. Claus 28 E. 1. m. 12. dorso commands that they have rationabiles expensas suas in veniendo ad nos ibidem morando inde ad propria redeundo their reasonable Expences in coming to the King staying there and returning to their homes The like we find for the Citizens and Burgesses in the 1 Ed. 2. there was Four Shillings a day allowed for every Knight and Two Shillings for every Citizen and Burgess Mr. Prynne (r) Brief Parliamentary Writs part 4. p. 4. gives many good reasons why these Wages were allowed some of which I shall recite As first that all Laws allow Sallaries for Services and those being public Servants and Representatives or Atturneys for the Counties Cities Burroughs to consult about the great and arduous Affairs necessary Defence Preservation and Wellfare of the King and Kingdom and theirs for and by whom they were intrusted it is reason as they receive the benefit of their good Service in giving their good Advice towards the redressing of Grievances and making wholsom Laws that they should have allowed their necessary Expences Secondly It appears in ancient times there was no such ambition to be Parliament-men as of late but the Persons elected thought it a burthen therefore lest being elected they should neglect to repair to the Convention they had Sureties called Manucaptors for their Appearance Thirdly This obliged the Counties Cities and Burroughs to be carefuller in electing the discreetest ablest fittest and most laborious persons who would speediest and best dispatch all Public business which occasioned the shortness of Sessions Fourthly It begat a greater confidence correspondence and dependance betwixt the Electors and Elected Fifthly It kept poor petty Burroughs unable to defray the Expences of their Burgesses from electing or sending Members to our Parliaments and oblig'd some to Petition to be eased of the Charge whereby the number of Burgesses was scarce half so many and Parliaments were more expeditious in Councils Aids Motions and their Acts and Debates and so the Sessions were much shortned the Elections were then fairer and for the most part unquestionable the Commons House less unwieldy Privileges of Parliament less enlarged beyond the ancient Standard abuses in Elections Returns and Contests about them by reason of the Mercenary and Precarious Voices less troublesom whereas now in every new Parliament a great part of the time is spent in the regulating Elections But Mr. Prynne hints little upon one great cause of that usage which was that in Burroughs as well as Cities most what the persons elected were the Inhabitants in the Cities and Burroughs Merchants Tradesmen or the most popular Burghers as will appear to whoever peruseth the Chronological Catalogue Mr. Prynne (s) P. 900. to 1072. with no small pains hath collected into his Fourth Part of his Brief Register where I believe one can pitch upon no City of Burrough from the time of Ed. 1. to the 12 Ed. 4. but he will find by the very names that they were such as I have mentioned I am well assured of it for Yorkshire and particularly for the City of York they being generally such as we find in the List of their Mayors Beverly hath Four of the Sirnames of good Families and Kingstone upon Hull hath (t) 8 E. 3. William a S. Pole from whom the great Family of Suffolk sprung but it is well known he was a Merchant there Now since every part of the Country abounds with Gentlemen of Plentiful Fortunes Why wages not now paid to Knights Citizens and Burgesses Generous Education such as are versed in Affairs of their Country as Justices of the Peace Deputy Lieutenants and have been Sheriffs Members of Parliament and born Publick Offices there can be no expectation or Fear that those that are Candidates for Parliament Men for Burroughs will expect any Sallary or Reward so long as they chuse them There being generally Competitors who instead of expecting Wages are generally obliged now to vast expences to purchase the Votesâ of the Electors so that now the Honourable House of Commons is quite another thing than what it was wont to be in elder Ages when they were summoned principally to give Assent to what the King and the Lords did to assent to Aids and Taxes and apportion their own Taxes bring up their Petitions concerning Grievances to be redressed by the King and his Council or the King and Lords and draw up Impeachments against great Offenders and such like Having thus considered the Writs of Summons to the Members of the House of Commons before Henry the Seventh's time in all its branches Copy of VVrits of Summons now used to the Sheriffs I shall give a Transcript of the Writ of Summons used at this day whereby may be seen how much of the old form is continued which I shall insert in Latin and English that the Emphasis of the Original may not be lost REX Vicecomiti Salutem c. Quia de advisamento assensu Concilii nostri pro quibusdam arduis urgentibus negotiis nos statum defensionem Regni nostri Angliae Ecclesiae Anglicanae concernentibus quoddam Parliamentum nostrum apud c. die c. proxime futuro teneri ordinavimus ibidem cum Praelatis
Magnatibus Proceribus dicti Regni nostri colloquium habere tractatum Tibi praecipimus firmiter injungentes quod facta Proclamatione in proximo Comitatu tuo post receptionem hujus Brevis nostri tenendo die loco praedicto duos Milites gladiis cinctos magis idoneos discretos Comitatus praedicti de qualibet Civitate Comitatus illius duos Cives de quolibet Burgo duos Burgenses de discretioribus magis sufficientibus libere indifferenter per illos qui Proclamationi hujusmodi interfuerint juxta formam Statutorum inde editorum provisorum eligi nomina eorundem Militum Civium Burgensium sic electorum in quibusdam Indenturis inter te illos qui hujusmodi Electioni interfuerint inde conficiendis sive hujusmodi electi praesentes fuerint vel absentes inseri eosque ad dictum diem locum venire facias ita quod iidem Milites plenam sufficientem potestatem pro se Communitate Comitatus praedicti Cives Burgenses pro se Communitate Civitatum Burgorum praedictorum divisim ab ipsis habeant ad faciendum consentiendum his quae tunc ibidem de communi Concilio dicti Regni nostri favente Deo contigerint ordinari super negotiis ante dictis Ita quod pro defectu potestatis hujusmodi seu propter improvidam Electionem Militum Civium aut Burgensium praedictorum dicta negotia infecta non remaneant quovis modo Nolumus autem quod tu nec aliquis alius Vicecomes dicti Regni nostri aliqualiter sit electus Et Electionem illam in pleno Comitatu factam distincte aperte sub Sigillo tuo Sigillis eorum qui Electioni illae interfuerint nobis in Cancellariam nostram ad dictum dâem locum certifices indilate remittens nobis alteram partem Indenturarum praedictarum praesentibus consutam una cum hoc Brevi Teste meipso apud Westmonast THE King to the Sheriff Greeting Whereas by the Advice and Consent of our Council Advice of Privy Council for certain difficult and urgent business concerning us and the State and defence of our Kingdom of England and the English Church we have ordained a certain Parliament of ours to be held at our City of c. the day c. next ensuing and there to have conference Conference with Prelates c. and to treat with the Prelates Great Men and Peers of our said Kingdom We command and straitly enjoyn you Proclamation at County-Court that making Proclamation at the next County Court after receipt of this our Writ to be holden the day and place aforesaid Two Knights girt with Swords c. you cause two Knights girt with Swords the most fit and discreet of the County aforesaid and of every City of that County two Citizens Two Citizens and of every Burrough Two Burgesses two Burgesses of the discreeter and most sufficient Indifferently chosen by those present at the Proclamation according to Statutes to be freely and indifferently chosen by them who shall be present at such Proclamation according to the tenure of the Statutes in that case made and provided Their Names inserted in Indentures betwixt the Sheriff and the Electors and the names of the said Knights Citizens and Burgesses so chosen to be inserted in certain Indentures to be then made between you and those that shall be present at such Election whether the parties so elected be present or absent and shall make them to come at the said day and place To cause them to come at the Day and Place The Knights from the County the Citizens and Burgesses from their Cities Burroughs to have full power to do and consent so that the said Knights for themselves and for the County aforesaid and the said Citizens and Burgesses for themselves and the Commonalty of the aforesaid Cities and Burroughs may have severally for them full and sufficient power to perform and to consent to those things which by the favour of God shall there happen to be ordained by the Common Council of our said Kingdom concerning the businesses aforesaid Lest for want of that Power or improvident Election the Business be undonâ so that the business may not by any means remain undone for want of such power No Sheriff to be chosen or by reason of the improvident Election of the aforesaid Knights Citizens and Burgesses Election to be in full County But we will not in any case you or any other Sheriff of our said Kingdom shall be elected The Indentures to be sealed by the Sheriff and Electors And at the day and the place aforesaid the said Election made in the full County Court A Counterpart tacked to the VVrit returned into the Chancery you shall certify without delay to us in our Chancery under your Seal and the Seals of them which shall be present at that Election sending back unto us the other part of the Indenture aforesaid affiled to these Presents together with this Writ Witness our self at Westminster SECT 7. Concerning the Speaker and the Privileges of the House of Commons IT is not my design to treat of all things relating to the Constitution My Design not to controvert the Privileges of the House of Commons but to shâw the gradual Alterations Laws and Customs of the House of Commons there are several useful Books extant which are fit for the Honourable Members of the House to consult What I most aim at is to shew what the Ancient Usage hath been and how from time to time things have been refined to the Mode and State they are now in and I hope those great Spirits that honour their Countries with their Service will pardon one that designs nothing more than to give them a Profile of the whole Model both in the days of our remotest Ancestors and what it was in more Modern times under just and undoubted Soveraigns as also how much it was transformed when the pretended House of Commons being confederated with a successful Army murthered their Soveraign voted away the House of Lords and assumed the Title of the Supream Authority of the Nation of which last I shall treat in the next Chapter The Members being according to the Kings Command come to the place appointed sometimes the Soveraign with the Lords in their Robes have rid in State to the Parliament which is generally yet observed in Scotland and Ireland The Solemnity at the Opening of the Parliament However at the opening of the Parliament the King is seated on his Throne under the Canopy with his Royal Crown on his Head the Chancellor standing something backward on his Right-hand and the great Officers as Lord Treasurer Lord President of the Kings Council Lord Privy Seal Great Chamberlain the Lord Constable Marshal Lord Admiral Lord Steward and Kings Chamberlain attend on either side the State or in their Seats
with the Ensigns of their Offices some of the Nobles being appointed to carry the Sword and the Cap of Maintenance Three great Gilt Maces are carried See for this more fully Elsyng's Method of holding Parliaments p. 86. and all the Heralds attend in their Cloth of Gold Coats The two Archbishops and Bishops in their Robes sit upon Benches next the Wall on the Right-hand and the rest of the Great Officers that stand not by the State and all the Nobility in order upon the Bench on the Left-hand or on the Forms that stand in the middle where also sit the Judges Master of the Rolls Secretaries of State twelve Masters of Chancery Atturney General Solicitor General and Clerk of the Crown and the other Clerks Assistants which it is not my business exactly to describe The King being Seated when it 's his pleasure Leave given to the Commons to chuse their Speaker the House of Commons are sent for who standing bare at the Lords Bar attend the King's Speech and the Chancellor's and then have leave to chuse their Speaker whom commonly some of the Members of the House that are of the King's Privy-Council propose and if any one oppose it (u) Hackwel p. 127. he is to name another But I shall refer the curious to Mr. Elsyng and others that treat of this at large Sir Edward Coke (w) 4. Instit p. 8. saith That though the Commons are to chuse their Speaker yet seeing that after their choice the King may refuse him for avoiding expence of time and contestating about it the use is as in the Conge de eslier of a Bishop that the King by some of his Privy-Council as in this present Parliament was done by the Earl of Middleton on of his Majesty's Principal Secretaries doth name a discreet and learned Man whom the Commons elect for without their Election no Speaker can be appointed for them because he is their Mouth and trusted by them and so necessary as the House of Commons cannot sit without him So that if he be totally disabled by grievous Sickness another must be chosen in his place as he instanceth in Sir John Cheney 1 H. 4. and Sir John Tirrel Whether the two Houses sate together 15 H. 6. But whereas (x) 4. Instit c. 1. sect 2. he affirms that in antient time the two Houses sate together and the surest mark of the time of the division of them was when the House of Commons had a continual Speaker Mr. Prynne (y) P. 8 9. in his Animadversions hath made the contrary very clear by several Records wherein it 's expresly said they consulted apart as particularly in 6 E. 3. (z) Et les Chivalers des Countez Gents du Communs par eux mesmes Rot. Parl. 6 E. 3. num 6. at York the Prelates Earls Barons and great Men by themselves and the Knights of the Counties and the People of the Commons by themselves treated of the Business propounded to them Another (a) Freeholders Grand Inquest p. 19. saith That if Sir Edward means the Lords and Commons did sit and vote together in one Body few will believe it because the Commons never were wont to lose or forgo any of their Liberties or Priviledges and for them to stand now bare where they were used to sit and vote upon this Supposal is an alteration not imaginable to be indured by them and when we consider the sole Power of Judicature in the Lords and who the Burgesses were in old times it still makes it more improbable and it is to me a very remarkable thing that neither in History or Record any thing is to be found that will clear this doubt However it is certain that (b) Rot. Parl. 50 E. 3. num 8. 50 and 51 E. 3. the Commons had a Speaker and Sir Edward Coke (c) Coke Instit 4. p. 255. saith that the accustomed (d) Ancient Place saith Elsyng p. 84. place of that thrice worthy Assembly of the Knights Citizens and Burgesses of Parliament when held in Westminster was in the Chapter-house of the Abbat of Westminster and it continued so till the Statute of 1 Ed. 6. c. 14. which gave the King Colleges free Chappels c. whereby the King enjoyed the beautiful free Chappel of St. Stephen founded by King Stephen which had Lands and Revenues of the old yearly value of 1089 Pound ten Shillings five Pence since which time the Chappel thereof hath served for the House of Commons when Parliaments have been held at Westminster As Sir Edward Coke because he believed the two Houses sate together will not allow them to have had a Speaker before 50 E. 3. so on the other hand Mr. (e) Id. p. 123. Elsyng saith That the Commons ever had a Speaker none will doubt for their Consultation apart from the Lords though he thinks they often met and did sit together in one Room and then a Speaker was necessary to avoid Confusion of Speech and Argument But he brings no better Argument for it (f) Lib. Sti. Albani Bibl. Cotton fol. 207. than that Petrus de Mountfort (g) It should be 42 H. 3. That Peter Mountfort was not Speaker of the Commons House 44 H. 3. signed the Letter to Pope Alexander touching the recalling of Adomar elect Bishop of Winchester from Banishment Wherein they say if the King and the Regni Majores hoc volent Communitas tamân ipsius in Angliam jam nullatenus sustineret and this was sealed by all the Lords and by Peter de Mountford vice totius Communitatis which he saith sheweth plainly they had a Speaker In answer to which I suppose it a great mistake to say that Petrus de Mountfort signed the Letter vice Communitatis which either ignorantly or willfully is Printed in Mr. Elsyng Comitatus for (h) Additament Math. Paris 1132 1133. Anno Dom. 1258. 42 H. 3. ult Edit Matthew Paris who relates the whole Story saith it was signed by ten Persons who were all great Barons vice totius Communitatis and the Preface of the Letter shews it was Communitas Comitum Procerum Magnatum aliorumque Regni Angliae and this aliorum can mean only the Milites which held by Military Service of the great Barons and the lesser Tenents in Capite which were no Representatives of the Commons as our Knights Citizens and Burgesses at this day are and the Inscription of the Popes Letter shews who he understood this Communitas to be when he superscribes it dilectis Filiis Nobilibus viris Consiliariis clarissimi in Christo Filii nostri illustris Regis Angliae ac caeteris Proceribus Magnatibus Regni Angliae Now the Persons that subscribed this are thus ranked by Matthew Paris R. de Clare Gloverniae Herefordiae S. de Monteforti Legriae E. Bigod Marescallus Angliae H. de Bohun Hertfordiae Essex W. Albemarle J. de Placeto Warewici Comitis H. Bigod Justiciarius Angliae P.
de Sabaudia J. Filius Galfridi Jacobus de Audel Petrus de Monteforti vice totius Communitatis praesentibus Literis sigilla nostra apposuimus in Testimonium praedictorum So that it is plain it was not Peter de Montefort that signed vice Communitatis but they all did it and he was a great Baron himself the Head of whose Barony was Beldesent Castle in Warwickshire I think it not amiss here to offer my Opinion concerning this Question and the great Controversie betwixt Dr. Concerning the Commons first summoning to Parliament Brady and Mr. Petyt and those that are so earnest to find the Commons summoned to Parliament before the 49 H. 3. before King John granted his Charter wherein he grants that he will cause to be summoned the Archbishops Bishops Abbats Earls and greater Barons of his Kingdom singly by his Letters and besides (i) Et Praeterea faciemus submoneri in generali per Viâecomites Ballivos nostros omnes alios qui in Capite tenent de nobis Matt. Paris fol. 216. Edit ult num 20. will cause to be summoned in general by his Sheriffs The Tenents in Capite in stead of the Representative Commons as now and Bayliffs all others which hold of him in Capite at a certain day there is no doubt but the Tenents in Capite such of them at least as were eminent for Parts or as the King pleased were summoned to the great Councils and it being in that Charter said that the cause of the Meeting should be expressed in the Summons and that Forty days warning should be given and in the same Charter that the City of London should have all its ancient Liberties and free Customs and that all other Cities Burghs and Villa's which was of the same import as a Free Burrough as we find in Pontefract which is always stiled Villa Some summoned from Cities and Burroughs before King John's time but not as our Citizens and Burgesses now by Representation and the Inhabitants Burgenses who held a certain Land called Burgage Land and the Barons of the Cinque Ports and all the Ports should have all their Liberties and their Free Customs ad habendum commune concilium Regni de Auxiliis c. that is as I suppose to have some of their Members at the great Councils where Aids were to be granted to the King other ways than in three cases before excepted that is to redeem the Kings body to make his Eldest Son a Knight and to marry once his Eldest Daughter excepting which three Particulars reserved before in his Charter he had granted that no Scutage nor Aid should be laid on his Kingdom unless by the Common Council of his Kingdom From whence I think may be inferred that such Cities Burroughs and Villa's which held in Capite or the Lord that was principal owner of them by his Praepositus Ballivus or some that held immediately under him and so some for the Dominicae Civitates Burgi Regis might be summoned with the lesser Barons or the other Tenents inc Capite But this doth not prove them to come by way of Representatives nor that they had any more Power than the Knights Citizens and Burgesses had in after-times which as I have made it apparent by the several expressions in the Summons was only to hear and assent to what the King and Magnates ordained Since there are now extant no Summons in King John's time or before the 49 H. 3. except some few that are about the Tenents in Capite aiding the King in his Wars the subsequent Practices are the best Expounders of ancient Usages Upon the whole I do judge that before King John's Charter there were many of the Tenents in Capite summoned to the great Councils but so as the King had his liberty to summon whom he pleased and that some from Cities Burghs Villa's and other Ports did come to the great Council but still at the Kings pleasure and that in King John's time the body of the Kingdom siding with the Lords that so often rebelled against him the Lords thinking to make their Party stronger got the Clause for other Tenents in Capite to be summoned by general Summons After King John's Charter the Tenents in Capite so numerous as might be reputed an House of Commons Now whatever number were convened before King John's Charter this general Summons must greatly encrease the House of Commons as I may call it and there needs no such strife about the want of Freemen in these Councils for after this Charter all who were properly Freemen were capable the other were generally Tenents to them and Homagers which was a Tenure that though it might free their Persons yet their Lands were obnoxious to forfeiture upon every breach of Homage and their Lords had the power of taxing them so that in some sense they were their Tenents Representatives and as long as they were Freeholders themselves and were a more numerous body if they all appeared as for any thing I see they might do if not hindred by Impotence Nonage or the Kings service they far exceeded the number of Representatives in the Reigns of King H. 3. E. 1. and E. 2. So that it amounts to the same thing as to the general Freedom of the Nation when all these were Members of the Great Councils Who properly Freeholders in Kâ John's time whether the common Freeholder were represented or not as now which Dr. Brady hath so nervously confuted every where in his Introduction that they were not that I think the Freedom Mr. Petyt Mr. Pen and others make so great a coyl about no ways impaired by Dr. Brady who like a judicious Person would have us use propriety of Speech and rather be thankful for the Freedom we now enjoy and our Ancestors have from time to time obtained by the grant of Kings than to make such Claims to native Freedoms and Liberties as Mr. Pen would have it that our Ancestors contended for as if their Ancestors had enjoyed them before we had any Kings and stipulated with their Kings for them before they admitted them to Soveraignty which no considering person that will impartially read ancient History either of our Country or others can find any certain footsteps of To return now to the business which the foregoing observation gives some light to I conceive as the Thegns the Kings Prepositi and Reeves As the Thegns in the Saxon-times so the Praepositi Reeves c. of Burroughs after by reason of their Imployments about the Kings Demesn Lands governing of Burroughs Stewards of Hundreds Wapentakes and men employed in other civil Affairs of the Kingdom did meet in the Saxon Councils so from Cities and Burroughs where great Lords had Fees as most if not all of them may be easily proved to have been held immediately of the King or of some of the very great Barons there might come before King John's time some Members to the great
this Freedom and Privilege The second is Sir Tho. Smith saith The Speaker used to add a Promise in the Commons Names That they shall not abuse these Privileges but have such regard as most faithful true and loving Subjects ought to have to their Prince Commonwealth p. 41. That if he shall commit any Error in any thing he shall deliver in the name of the Commons no fault may be imputed to the Commons and that he may resort again to them for Declaration of his good Intent and that his Error may be pardoned The third is That as often as necessity for his Majesties Service and the good of the Common-wealth shall require he may by direction of the House of Commons have access to His Majesty SECT 8. Of Priviledges of the House of Commons concerning Liberty of Speech HAving thus brought this Honourable Assembly together and their Speaker placed in his Chair I shall touch something of their Privileges which since the days of Sir Edward Coke and much by his Influence have been enlarged beyond what was used in antient times I shall begin with that of Freedom of Speech in their Debates It cannot be conceived in so great a Body as the House of Commons Why Liberty of Speech necessary to be allowed that what is proposed by one and seconded by others shall not admit of Debate Though all may aim at the same end the good of the King and People yet they may differ in the ways and methods of attaining it and whoever would straighten a crooked Rod must bend it as far on the contrary side I doubt not but the nemine contradicente was put into the Printed Votes when Mr. Williams had the Chair rather ad faciendum populum than that there was such an Harmonious Concurrence as then was blazed abroad Anno 4 (u) Stat. 4 H. 8. c. 8. Strowde's Case H. 8. An Act was made concerning Richard Strowde Esquire which declareth that all Suits Accusements Condemnations c. to be put or had upon any Member of that or succeeding Parliaments for any Bill speaking reasoning or declaring of any matter or matters concerning the Parliament to be communed or treated of be utterly void and of none effect This by (w) Lords Journal the Lords 11 Decemb. 1667. was declared a dâclaratory Law of the antient and necessary Rights and Priviledges of Parliament and so the Judgment against Denzil late Lord Hollis was nulled and against others in King Charles the First 's time Yet it is manifest that Queen Elizabeth in two Cases shewed how far even motions in Parliament contrary to her Laws Prerogative and Pleasure expressed were to be treated The (x) Prynne's Plea for the Lords Sir Sym. D' Ewe's Journâl How Queen Elizabeth curbed and punished those that made Motions in the House contrary to her Prohibitions in Mr. Paul and Mr. Pet. Wentworth's Case first was a motion by Mr. Paul Wentworth 23 Eliz. for a publick set Fast and for a Preaching every Morning at Seven of the Clock before the House sate and the Preachers to be appointed by the Privy-Council that were of the House but the Queen sent them a Message by the Vice-Chamberlain that she had in great admiration the rashness of the House in committing such an apparent contempt of her express Command and to put in Execution such an Innovation without her Privity and Pleasure first known so that by Mr. Vice-Chamberlain they sent their Submission to her Anno 35 Eliz. Mr. Peter Wentworth and Sir Henry Bromley delivered a Petition to the Lord-Keeper desiring the Lords of the upper House to be suppliants with them of the lower House to her Majesty for entailing the Succession of the Crown whereof a Bill was ready drawn by them The Queen was highly displeased as being against her express Order and charged the Lords of her Council to call the parties before them and Mr. Wentworth was by them committed to the Tower and others with Sir Hen. Bromley to the Fleet the Parliament then sitting and when Mr. Wroth moved That the House might be humble Suitors to the Queen for their Liberty it was answered by the Privy Counsellors in the House that the causes of Commitment were best known to her self and the House must not call the Queen to account for what she doth of her Royal Authority for her Majesty liked no such Questions neither did it become the House to search into those matters So Mr. In Mr. Morrice's Case Morrice Atturney of the Court of Wards was taken out of the House Feb. 28. and committed to Prison for delivering in a Bill against the abuses of the Bishops the Queen sending for Sir Edward Coke then Speaker and charging him upon his Allegeance if any such Bill were exhibited not to read it At another time long before this she told the Speaker and the body of the House of Commons moving her to Marriage That if it had been with limitation of place or person she must needs have misliked it and thought it a great presumption in those to take it upon them to bind and limit whose duty it was to Obey King Charles the First was very infortunate to have so many Firebrands in some if not all of his Parliaments Liberty of Speech in King Charles the First 's time abused which if the rest of the Houses had been pleased to have extinguished by timely and nipping reprehensions we had never seen the Government of Church and State so reduced into Ashes that there was nothing remained of the beautiful Pile In some of his Speeches he calls those evil Members Vipers but it was his misfortune to anger and exasperate them rather than suppress them so that at last they stung him to Death It is a very ill condition when a Prince hath such Wolves by the Ears that he is in danger whether he hold them or let them go The Attacque upon the five Members and letting fall the pursuit was one of the false thrusts that left him unguarded In the Close of one of the Parliaments of Queen Elizabeth the (y) MS. Speeches 13 Eliz. 1571. Queen Elizabeth's Reprehension of some Members for moving things she had forbid Chancellor tells them There be certain of the House of Commons though not many who have shewed themselves Audacious Arrogant and Presumptuous calling her Majesties Grants and Prerogatives into question contrary to the express admonition given in her Majesties name in the beginning of the Parliament which it might very well have become them to have regard to but her Majesty saith That seeing they thus willfully forget themselves they are otherwise to be remembred Indeed there seems good reason that such who make advantage of their being Members of Parliament to sow their Seditious Discourses and under the Protection of being Members take the boldness to calumniate the Government and raise Jealousies betwixt the King and his People to alienate their Affections and Allegeance from him after the
expiration of their Protection if the House will not call them to an account should not only lose the Favour of their Prince but should be punished for Sedition as far as by Law is allowed as well as they are liable to other proceedings in Law It becomes therefore all lovers of the excellent Constitution of Parliaments to be very wary in this point lest as Mr. Justice Hutton said in another Case Things being carried disastrously by some Members Ambition may bring such a distast against the course of Parliaments as we and all that love the Commonwealth have just cause to be sorry for it SECT 9. Of the Privilege from Arrests ALthough the Speakers formerly petitioned only That all their Ancient and Just Privileges and Liberties be allowed them yet we (z) Hackwell Catal. 213 215. Elsyng p. 137 138. This Privilege petitioned for by the Speaker find that Sir Tho. Gargrave Sir Tho. Richardson Sir Thomas Crew Sir Heneage Finch and all later Speakers have expressed this Privilege particularly that for better attending the Publick and Importunate Service of the House themselves and their necessary Attendants may be free both in Person and Goods from all Arrests and trouble according to our Ancient Priviledges and Immunities which Sir Tho. Gargrave 1 Eliz. is said first to make the first of any This indeed is one of the ancientest Privileges the House of Commons may claim and Mr. Prynne labours to prove it the only Privilege properly so to be called and Sir Edward (a) 4. Instit p. 24. Coke mentions no other The first thing that appears upon Record is the Petition of (b) Petitiones coram Domino Rege ad Parliam c. 18 E. 1. Rot. 7. Thesaur Recept Sâaccarii The first Grant of Freedom from Arrest the Master of the Temple in which he desires Quod habeat licentiam distringendi tempore Parliamenti to which the King answers thus Non videtur honestum quod Rex concedat quod illi de Concilio suo distringantur tempore Parliamenti set alio tempore distringat per hostia fenestras ut moris est that is The Master petitions that he may have power to distrein for Rent in time of Parliament to which the King answers That it seems not honest that the King should grant that they of his Council should be distrained in time of Parliament but that he may distrain at another time by the Door and Windows as the Custom was Mr. (c) P. 478. ad 483.625 to 699.817 to 869.989.1213 to 1220. How Mr. Prynne qualifies this Privilege Prynne in his Fourth Part of his brief Register would have the Privilege to be Personal and so to necessary Servants attending and but to take place the first day he is a Member after he hath taken the Oath and not to extend to Chancery Suits and I know not how many diminutions of this Privilege so I shall only recommend the Inquisitive Reader to his Collections and for the full enumeration of all Cases that have been determined by the House of Commons to (d) Memorial p. 88. ad 116. Mr. Hackwel who hath collected all Modern Precedents it being a Book very useful to understand the modern usage of the House of Commons in passing Bills and other necessary points that such as are not versed in the practice of may find very beneficial to them and shall add upon this Head the Summary of King Edward the Second's Writ to the Sheriff of Yorkshire to take Pledges of Walter Fleming of York and three others to appear the next Easter Term to show why they Arrested the Prior Malton returning from the Parliament at Lincoln to his Priory How the King is obliged to protect the Members from Arrests whenas the King ought to protect and defend the Members of Parliament in their coming to staying there and returning from the Parliament the words are Cum ad Parliamenta in quibus tam nostri quam Regni nostri negotia debent pertractari Praelatos Comites Barones alios tam Clericos quam Laicos per quorum industriam super negotio hujusmodi Consilium salubrius poterit adhiberi ad mandata nostra vocatos comparentes in veniendo ad eadem Parliamenta ibidem morando exinde redeundo ab omnimodis injuâiis oppressionibus gravaminibus nos oportet protegere tueri How grounded upon Edward the Confessor's Law This Privilege seems to be grounded upon King (e) Hoveden Annal. pars poster p. 601. Lambard Archaion Spelman Conc. tom 1. p. 689. Edward the Confessor's Laws properly applicable to Liberty to attend Divine Worship Synods and Chapter-meetings the words are Si quispiam devote ad celebrationem Sancti pacem habeat eundo subsistendo redeundo item omnibus ad Ecclesiam causa Orationis euntibus pax in eundo redeundo sit eis similiter ad Synodum ad Capitula venientibus The curious may see more in the Leges Saxonicae Sect. 9. and in Frederick (f) Cod. ex Legum Antiq. p. 475. Lindebrogus It is to be noted that this as all other Privileges in from the Kings Grant Fol. 60. This Privilege of the King's Grant as Dyer is express in his Argument on this Case That the person of every such Member ought to be privileged from Arrest at the Suit of any private Person during the time that he is busied about the Affairs of the King and the Realm and this (g) Et tiâl Privilege ad estre touts foits grant per le Roy a ses Commoners al Request del Prolocutor del Parlement le primer jour Privilege is always granted by the King to his Commons at the Request of the Speaker of Parliament the first day and those that had the benefit of this Privilege obtained it by a Writ of Privilege issuing out of Chancery but of late it is done by the Houses verbal Order Serjeant or Mace without any Writ of Privilege Habeas Corpus previous complaint Petition to or Order from the King and Lords as in former times against which usage Mr. Prynne makes loud Complaints The first Precedent Mr. Prynne or others can discover being that of Mr. Ferrers recited at large in (h) Hist p. 1584.33 H. 8. Mr. Ferrers Case the first when the Commons had liberty to punish the Breakers of this Privilege Holingshed which in short is this Mr. George Ferrers being the Kings Servant and Burgess for Plymouth was Arrested by a Process out of the Kings Bench carried to the Counter Byorder of the House the Serjeant of the Parliament was sent to demand delivery but was forceably resisted and the Crown of the Mace of Arms was beaten off in defending the Serjeant This being declared to the House of whom there were not a few as well of the Kings Privy Council as also of his Privy Chamber they would sit no longer without their Burgess but retired to the Upper House where the whole Case was declared by Sir
Thomas Moile their Speaker before Sir Thomas Audley Lord Chancellor and all the Lords and Judges there assembled judging the contempt to be very great referred the punishment thereof to the Order of the Commons House The Lord Chancellor offered to grant them a Writ to the Sheriffs of London to require delivery which the House refused being clear in opinion that all Commandments and other Acts proceeding from the nether House were to be done and executed by their Serjeant without Writ only by shew of his Mace which was his Warrant The House applying it self to the Lords who were saith Mr. Prynne (i) Brief Register part 4. p. 860. the ancient proper Judges of the Violations and Violators of the Commons Privileges was the right Parliamentary way for their Members Release and if they had applied themselves to them at first they had prevented all Affronts to (k) Id. p. 862 863. themselves and Officers and met with no opposition And Mr. Prynne humbly apprehends that this Precedent will not warrant an absolute Jurisdiction in the House of Commons without any antecedent Complaint or (l) See Freeholders Grand Inquest from p. 50. to 64. Petition to the King or Lords in Parliament to punish any breach of their Members Privileges not first complained of to Application to be made to the King and Lords for punishment of Violators of this Privilege and adjudged by the King or Lords to be an actual breach or referred to themselves by the Lords or King to punish or without their subsequent Ratification or that it will justifie the Enlargement of any of their Members or menial Servants out of Execution by their Mace alone without an Habeas Corpus Writ of Privilege or special Act of Parliament or matter of Record for the Sheriff or Officers Indemnity against Actions of Escape or for the Plaintiffs relief to recover his Debt by a second Execution for the proof of all this I must refer the inquisitive Reader to Mr. Prynne's (m) Sect. 10. a p. 622. ad 870. Fourth Part of his Brief Register wherein he hath largely examined most of the then claimed Privileges of the House of Commons and disallows of them when not judged by the King and Lords In which Controversie I shall not presume to write any thing because it will be more pleasant and satisfactory to have recourse to himself SECT 10. Concerning Regulating Elections THE first thing I find concerning new Elections in the place of Absents and Defaulters is in the 5 E. 2. Cl. 5 E. 2. m. 26. dorso as I have touched before divers Knights Citizens and Burgesses departing from the Parliament the King thereupon issued out Writs to several Sheriffs to summon them to return to the Parliament Vel alios ad hoc idoneos loco ipsorum sâ ad hoc vâcare non possunt eligere or to chuse other fit persons in their places if they cannot be at leisure to come up The Commons in this Age medled not with the re-summoning or causing new ones to be Elected in the rooms of those that could not come I have before instanced in several Summons The King anciently only ordered new Elections wherein the Kings ordain the Sheriffs to re-summon the Members of former Parliaments or others for those who were dead or unable and sometimes but one of those By which it appears that in those days the King solely Authorized new Elections where any were dead or disabled The first Petition against an undue Election First Petition against undue Elections Prynne 's Brevia Parl. rââiviva p. 286. A nosâre tres excellânt tres gracious Seignior nostre Seignior le Roy les âres nobles Seigniors Sâges Comuns c. pleignont les Major c. that I have met with is Anno 7 R. 2. from the Mayor Bailiffs and Commons of Shaftsbury To our thrice Excellent and thrice Gracious Lord our Lord the King and the thrice noble Lords and sage Commons of this present Parliament That whereas they had chosen Walter Henly and Thomas Steward the Sheriff of Dorsetshire for the last had returned Thomas Camel to the great dammage of our Lord the King and contrary to the Will of the Mayor c. So that here the Complaint is to the King the Lords and Commons jointly and the name of this Camel is not endorsed returned in the Writ but the other two In all the Statutes made for regulating Elections they run See Freeholders Grand Inquest p. 15 16. The King willeth and commandeth 5 Ric. 2. c. 4. Our Lord the King at the grievous complaint of the Commons hath ordained 7 H. 4. c. 15. and so Our Lord the King ordained 11 H. 4. c. 1.5 H. 5. and such like in all the Statutes to 8 H. 6. So in the Statute 5 R. 2. Par. 2. c. 4. All Persons which shall from henceforth receive the Summons of Parliament Prynne's Plea for Lords p. 393. and come not at the said Summons except he may reasonably and honestly excuse himself to our Soveraign Lord the King shall be amerced and otherwise punished as of old time c. So that here the Excuse is to be made to the King so that it was not then in use for the Commons to fine and tax their Members In the Parliament holden at Westminster 5 H. 4. Id. 391. Rot. Parl. 5 H. 4. num 38. because the Writ of Summons of Parliament returned by the Sheriff of Rutland was not sufficiently or duly returned as the Commons conceived the said Commons prayed our Lord the King The Commons petition the King and Lords to examine and order undue Returns and the Lords in Parliament that this matter may be duly examined in Parliament c. Whereupon our Lord the King in full Parliament commanded the Lords in Parliament to examine the said matter and to do thereupon as to them should seem best in their Discretions So the Lords called before them the Sheriffs and Parties and it was agreed by the said Lords that the Sheriff should amend his Return and the Sheriff for his default should be discharged of his Office and committed Prisoner to the Fleet and make Fine and Ransom at the King's pleasure Upon this and other Precedents Mr. Id. p. 364 365. Mr. Prynne's Opinion Prynne saith That no Statute doth give the Commons House the least Power or Authority to judg or determine the Legality or Illegality of any Elections but leaves this to the King and Lords to redress as at first before their making and gives the Knights duly chosen but not returned a hundred Pound Damages against the Sheriffs and Citizens and Burgesses forty Pound against Mayors and Bailiffs who make false Returns by way of Action of Debt in the Kings Courts at Westminster or in the Star-Chamber when in being or before the King Lords and Council as in Bronker's case Dyer fol. 113 168. Plowden fol. 118. to 131. Old Book of
414 415. How the House of Commons of the Parliament 1641. seduded their Members till there were not above 70 left whom the Army-Officers impeached or disliked as a corrupt Party or corrupt Majority and so fifty or sixty by the power of the Army secured secluded and expelled near 400 Members and made themselves the Commons House without them and so proceeded to vote down and seclude both King and House of Lords and voted themselves to be the Parliament of England and sole Legislators and Supream Authority of the Nation The consequences of all which are too well known to the whole Kingdom whose Calamity of Civil War and all the unspeakable Tragedies of it flowed from the packing of Members in the Commons House and the Assistance the People relying upon their Sageness and Authority afforded them How this revived against Abhorrers We had of later Years a fresh revival of the same method in the House of Commons expelling those they called Abhorrers which is so well known that I need say nothing of it yet I would recommend to all interessed Persons the perusal of two Treatises which though they pass for Pamphlets yet have been writ by Judicious Authors and those are The Lawyer outlawed and the Three parts of the Addresses which are Books very fit for Gentlemen to peruse How full and unquestioned a power the Commons have to represent Grievances to the King and petition for Redress The unquestioned Rights of the Commons to impeach any Person of the highest Quality that is a Subject for Treason or high Misdemeanors to have the sole Power in having all Bills for Subsidies Aids and Supplies to begin and I think be perfected in their House and the Privileges they petition for by their Speaker are so well known that they need no Discourse upon But I find several Judicious Persons will not allow the House of Commons to be a Court which Sir Edward Coke affirms 4. Instit p. 28. Whether the House of Commons be properly a Court. and uses this only one Argument for it Because it is not Prorogued or Adjourned by the Prorogation or Adjournment of the Lords House but the Speaker upon signification of the Kings Pleasure by the Assent of the House of Commons doth say This Court doth Prorogue or Adjourn it self But to this it is answered Lawyer outlawed p. 18. That if this were sufficient to denominate a Court every Committee of Lords and Commons though never so few in number must upon this account be a distinct Court because they may thus adjourn and prorogue themselves without their respective Houses In another place 4. Instit p. 23. the same Chief Justice offers to prove the House of Commons not only a Court but a Court of Judicature and Record for that the Clerks Book of the House of Commons is a Record and so declared by Act of Parliament 6 H. 8. c. 16. But this House had no such Book as a Journal much less any Authentick Record When the House of Commons had a Journal first before the first Year of Ed. the Sixth all their material proceedings till then being drawn in Minutes by a Clerk appointed to attend them for that purpose and by him entred of Record in the House of Lords Therefore the Words of the Statute are That the Speakers Licence for Members going into the Country be entred of Record in the Book of the Clerk of the Parliament appointed for the Commons House and this Journal is rather a Register of what passeth than such a Record as denotes a Court of Judicature as the Author of The Lawyer outlawed endeavours to prove P. 17 18 19. Plowd Com. fol. 319. Coke 1. Inst fol. 260. because there is no Court but what is established by the Kings Patent by Act of Parliament or by the Common Law i. e. the constant immemorial Custom of former Ages for by that the House of Lords is the sole supream Court of Judicature it having never been heard of before Sir Edward Coke's fancy That there were two distinct Courts in the same Parliament Also there is no Court without a power of tryal but the House of Commons have no power to try any Crime or Offence because they cannot examine upon Oath and there can be no legal Tryal without Witnesses nor are any Witnesses of any force in Law unless examined upon Oath But I shall not enter into these Controversies Some Observations on the Privileges of the House of Commons in general but shall now lay down some general Observations and Rules which Judicious Persons have noted as worthy the consideration of the Honourable House in point of their claims of Privileges and Judicature First King James the First in his Declaration touching his proceedings in Parliament 1621. resolves That most Privileges of Parliament grew from Precedents which rather shew a Toleration than an Inheritance therefore he could not allow of the Stile calling it their Ancient and undoubted Right and inheritance but could rather have wished that they had said All Privileges from the Crown Their Privileges were derived from the Grace and permission of his Ancestors and him and thereupon concludes That he cannot with patience endure his Subjects to use such Antimonarchical Words concerning their Liberties except they had subjoyned That they were granted unto them by the Grace and Favour of his Predecessors yet he promiseth to be carefull of whatsoever Privileges they enjoy by long Custom and uncontrolled and lawful Precedents Secondly C. 29. None to be punished but by Legal Trial. It is to be considered That by the Great Charter it is declared That no Freeman shall be taken or imprisoned or diseised of his Freehold or Liberties or his Free Customs or be Outlawed or Exiled or in any manner destroyed but by the lawful Judgment of his Peers or by the Law of the Land Stat. 28 E. 3. c. 3. So 28 E. 3. it is Enacted That no Man of what estate or condition he be shall be put out of his Land or Tenements nor taken nor imprisoned nor dis-inherited nor put to death without being brought to answer by due Process of Law So 42 E. 3. c. 3. it is assented and accorded for the good Government of the Commons that no Man be put to answer without presentment before Justices or matter of Record or by due course of Law or Writ Original according to the Old Laws of the Land Nulla Curia quae Recordum non habet potest imponere finem neque aliquem mandare carceri quia isla tantummodo spectant ad Curias de Recordo Mar. Sess 3. So Sir Edward Coke saith Courts which are not of Record cannot impose a Fine or commit any to Prison because these only belong to Courts of Record for which see Beecher's Case fol. 60. 120. Bonham's Case and lib. 11 fol. 43. Godfrey's Case So in the First Parliament of Q. Mary it is declared That the most Ancient
Statutes of this Kingdom do give assign and appoint the correction and punishment of all Offenders against the Regality and Dignity of the Crown and the Laws of this Realm unto the King which manifests P. 23 that all such things are to be tried in his Courts So that surely the Commons Privileges must be included for to trouble any saith the Author of The Lawyer outlawed that doth not offend against the Crown or Laws of the Land is very Illegal and Arbitrary Id. p. 16. and an high breach of the Liberty of the Subject It would therefore be considered how improbable it is that after our Ancestors have struggled for many Ages Infoeliciter aegrotat cui plus mali venit a Medico quam a Morbo to preserve themselves and posterity from the unbounded Rule of Arbitrary Pleasure and having obtained that from their Soveraigns in so much that they can neither be fined or imprisoned by their Soveraign unless for transgressing some known Penal Law of the Land should leave any Arbitrariness in the House of Commons who are but the Peoples honourable Deputies Trustees and Atturneys Thirdly The Law hath provided where the Breach of the greatest Privileges are to be tried It is to be considered that the Law hath expresly provided where and how Breaches of Privilege ought to be punished 5 H. 4. c. 6. and 11 H. 6. c. 11. about any Assault upon a Parliament man or his menial Servant to be in the Kings Bench. Since therefore such Assaults are far more Criminal than Arrests of them or words spoken against them or inferiour misdemeanours to argue a majori ad minus it should seem rational that in the Courts of Justice being open to redress all sorts of Illegalities matters should be rather tryed than that persons should be punished by Imprisonments of the House of Commons alone For if this Arbitrariness were allowed it would argue a great defect in our Laws that they are not the entire Rule of the Subjects Civil Obedience and if the ordinary Courts of Justice can try the greater they may certainly try the lesser Crime as they have done in the Case of Done against Welsh River against Cosyn Shewish against Trewynnard Mich. 12. E. 4. Rot. 20. Excheq Hil. 14. E. 4. Rot. 7. Dyer fol. 59. But I have sufficiently shewed before that in old time the determination and knowledge of the Privileges did belong to the Lords How agreeable these ways of Proceedings were to the Usage of the House of Commons in 1640. and 1680. The Proceeding of the Houses in Anno 1640. and 1680. are fresh in every ones memory when not only they ejected and imprisoned their own Members but by Messengers sent for several Gentlemen and others no Members for acting according to the known Laws and King's Proclamations and often for Persons having spoke angrily or slightingly of some Member as in the Case of Abhorrers It is to be hoped those very Gentlemen now wish it might be forgot as I hope it will never be put in practice again when after a chargeable sending for up by the terrible Messengers after being detained in Custody during the Pleasure of the House and brought to receive their Sentence on their Knees at the House of Commons Bar they were dismissed So that I knew one who principally to avoid the Charge his Crime being for speaking Words against a Member in his Cups was forced upon notice of the Messenger 's coming for him to fly into Ireland Fourthly That the Law and Custom of Parliament may be declared It is worthy great Consideration by all the Members of the Honourable House of Commons that it is an undoubted Maxim both in Law and Reason and is necessary to the Obligation of all positive Constitutions That they should be published in express Words The immediate Laws even of God Almighty in the Opinion of Learned Men being not obligatory where they were never promulged Now since it hath not been hitherto published to the People what this Lex Consuetudo Parliamenti is 4. Inst it p. 15. Illa lex ab omnibus quarenda a multis ignorata a paucis cognita Fleta l. 2. c. 2. which Sir Edward Coke saith out of Fleta is to be enquired into of all is understood by many and known to few it would not only be obliging but most necessary that the Honourable House would give a true and full Description of this Law and Custom of Parliament and an exact Account of their Privileges that People might in some measure for the future shun those dangerous Rocks and not be surprized or shipwrack'd on such hidden Shelfs I shall close this long Chapter wherein according to my Talent I have endeavoured to comprise what hath been voluminously treated of by all the Authors I am furnished withal and digested things into an easie Method with some Assertions of Mr. Prynne whose Writings in this Particular are better esteemed than many others He saith Brief Register part 4. p. 685. Mr. Prynne's Opinion concerning the great Privilege the Commons The Parliament being the Supremest Court of Law and Justice ought to proceed legally according to the Course of Law and not to enlarge or extend the Privileges of Parliament beyond their Ancient Just and Legal Bounds nor alter the Law therein by their absolute Power Much more ought the House of Commons themselves to follow their Precedent and not to extend their old or vote up new Privilege to the delay Ibid. p. 1210. retarding or deluding of Common Right and Justice Therefore he condemns the writing of Letters by the Speaker 18 Jacobi 1. 14 Feb. 18 Jac. fol. 24. b. to stay a Tryal betwixt Sir William Coxe and Mr. Humphrey Aylworth as likewise in other Cases the same Year Ibid. fol. 51. b. fol. 137. 3 March and 20 April which he saith is diametrically opposite to the Judges Oath and against the Great Charter which saith See Stat. 2 E. 3. c. 6. 14 E. 3. c. 14.20 E. 3. c. 1 2. Nulli negabimus nulli differemus Justitiam Rectum To which I may add the Hardship used to Mr. Sherridon Lawyer outlawed p. 28. who being in the Custody of the Serjeant at Arms the Warrant of Commitment being during the Pleasure of the House of Commons Mr. Sherridon's Case who was denied the Benefit of the Habeas Corpus Act. without any Cause shown now the Habeas Corpus Act is express That all Persons are Bailable by what Person soever committed not excepting the King and Council much less the House of Commons unless for Treason or Felony One of the Judges made application to the House of Commons to know whether he might grant the Writ of Habeas Corpus to him The Debate lasted three days by reason of the Difficulty of the Cause For if they openly declared against the Habeas Corpus the Nation would be much alarm'd and suspect these Gentlemen instead of securing
intended to invade the Subjects Liberties but if they allowed the Writ the delicious Power of Imprisoning such as they had a Pique to was utterly lost and all Persons referred to the ordinary Courts of Justice or upon their failure to the House of Lords Sir William Jones against any ones Release by Habeas Corpus if they were imprisoned by the House of Commons the Supreme Tribunal of England Sir William Jones insisted much upon the Power of the House and that they did not intend by that Act to bind themselves which yet must bind the King though it might as well be alledged That he did not intend to bind himself by it However Sir William persisted urging See Debates of the House p. 217. That whatever Reasons may be given for discharging such as are not committed for Breach of Privilege if grounded on the Act for the Habeas Corpus will hold as strong for discharging of Persons for Breach of Privilege and so consequently deprive the House of all its Power and Dignity and so make it insignificant and said That was so plain and obvious that all the Judges ought to take notice of it and so judged it below the House to make any Resolution therein but rather to leave the Judges to do otherwise at their peril and let the Debate fall without any Question But Baron Weston had the Courage to grant the Habeas Corpus Baron Weston grants the Habeas Corpus as rather willing to expose himself to the Displeasure of the House than deny or delay Justice contrary to his Oath I could not omit this remarkable Passage as a Specimen of the Arbitrariness of the Leading Party in that House Brief Register part 4. p. 846. and now shall proceed to Mr. Prynne's Remarks upon the Proceedings of the long House of Commons He observes Privilegia omnino amittere meretur qui sibi abutitur concessa penestate Ejus est interpretari cujus concedere Summa Rosella Privilegium 3. That Privileges may be lost by the abuse of the Power and that whatever Privilege the House hath is from the King's Grant or Toleration Therefore according to the Canonists Rule If the Privilege granted be expressed in general dubious or obscure Words then it is in the power of him to interpret who hath the power to grant Now the Petition of the Speaker is That the Commons in this Parliament may and shall have all their Ancient and Just Privileges allowed them Therefore the King Nemini liceat Chartas Regias nisi ipsis Regibus judicare Placita Parl. 18 E. 1. num 19. p. 20. being the sole Granter of these Privileges must be the only proper Interpreter and Judge of them as he is of all his other Charters of Privileges Liberties Franchises and Acts of Parliament themselves after his Regal Assent thereto not the Commons or Persons to whom they are granted and that both in and out of Parliament by Advice of his Nobles or Judges of the Common-Law Therefore he saith first How the Breach of Privilege to be punished according to Mr. Prynne See the Authority Brief Regist part 2. p. 847. That if the Commons by Petition to the King and Lords in Parliament complain of the Breach of their ancient Privileges and Liberties as they ever did in the Cases of Lark Thorp Hyde Clerk Atwyll and others the King by Advice of his Lords in Parliament assisted with his Judges hath been and as he humbly conceives is the sole proper Judge of them and their violations not the Commons who being Parties Prosecutors and Complainants are no legal indifferent Judges in their own or Menial Servants cases if they will avoid partiality which is the reason the Law allows Challenges to Jurors in Civil and Criminal causes Therefore he observes Ibid. p. 1206. that the House of Commons taking Informations without Oath may be easilier abused by misinformation and sometimes thereby are put upon over hasty Votes which upon finding out evil Combinations they are forced to retract Secondly The Chancellor or Lord Keeper to grant the Writ If the complaint of the breach of Privilege be made in the Commons House and thereupon an Habeas Corpus Writ of Privilege or Supersedeas prayed under the great Seal for the Members or menial Servants release whose Privilege is infringed the Lord Chancellor or Keeper of the great Seal representing the Kings person in Chancery the Court for relief in cases of Privilege is the properest Judge and Examiner of the claimed Privilege and its violations upon Oath and other sufficient Evidence assisted by all the Kings Judges in cases of difficulty who thereupon will grant or deny the Writs Thirdly The Judges of the Courts to which the Writ is directed to judge of the validity of the Privilege When these Writs of Privilege Supersedeas or Habeas Corpus are granted to any Member or menial Servants and directed to any of the Kings Courts to enlarge their restrained Persons or stay any Arrests Process or Judgments against them the Kings own Judges in his respective Courts to which they are directed are then the proper Judges of the Privileges of Parliament and of their breaches suggested in these Writs who may examine not only all matters of Law or Fact comprised in them which are Traversable but likewise adjudge allow or disallow the very Privilege it self if no real ancient Parliamentary Privilege allowed by the Laws and Customs of the Realm How far he is in the right I will not undertake to judge but I remember somewhere he wisheth an Act of Parliament to pass to adjust these matters which possibly would prevent many of those chargeable attendances about false Returns and save much expence of time in the discussing of them and enable the Subjects to pay a right and due obedience to them SECT 12. Concerning the Royal Assent to Bills I Have treated so much of this elsewhere as to the sole Power in the King the ancient Custom of Sealing the Acts with the Kings Seal and of some of the Prelates and Nobles as Witnesses of their Assents that I shall only now speak as to the usual formality of passing the Bills into Acts by the Kings last Act. See also his Memorials For Mr. Hackwell hath given a full account of the manner how Statutes are enacted in Parliament by passing of Bills to which Book I refer the curious Reader that would understand the order that is used in the debating and passing of them When Bills are passed by both Houses upon three several Readings in either House Hackwell of Passing of Bills p. 179. ad 182. they ought for their last approbation to have the Royal Assent whereby every Statute is as Mr. Hackwell observes like Silver seven times tryed The Royal Assent is usually deferred to the last day of the Session and because some have been of opinion that the passing of Bills The Royal Assent determines not the Session
puts an end to the Sessions so that what ever Bills are ready and pass not the Royal Assent must be again read three times in either House for the more security it is usual to insert a Proviso That the Session is not thereby concluded The Royal Assent is given two ways First Royal Assent by Patent by Commission since the Statute of the 33 H. 8. c. 21. wherein it is expressed That the Kings Royal Assent by his Letters Patents under the Great Seal Signed by his hand and declared and notified in his absence to the Lords Spiritual and Temporal and to the Commons Assembled in the higher House is and ever was of as good strengh and force as if the King had been there personally present and assented openly and publickly to the same The manner of the King 's giving his Publick Assent is in this manner The King cometh in Person in his Parliament-Robes Royal Assent when the King present and sitteth in his State and the Upper House sit in their Robes The Speaker with all the Commons House cometh to the Bar of the Lords House and in Sir Thomas Smith's time Sir Th. Smith's Commonwealth p. 45. Speeches used to be made there the Chancellor for the Lords and the Speaker for the Commons in set Speeches returned the Prince Thanks for that he hath so great Care of the good Government of his People and for calling them together to advise of such things as should be for the Reformation Establishing and Ornament of the Commonweal After which the Chancellor in the Prince's Name giveth Thanks to the Lords and Commons for their Pains and Travel taken which he saith the Prince will remember and recompense when Time and Occasion shall serve and that the Prince is ready to declare his Pleasure concerning their Proceedings whereby the same may have perfect Life and Accomplishment by his Princely Authority I think now mostly Hackwell of Passing of Bills p. 181 182. the Speaker of the House of Commons makes a Speech acquainting the King with the purport of the Bills Then the Clerk of the Crown readeth the Title of the Bills in such Order as they are in Consequence After the Title of every Bill is read singly The Clerk of the Crown pronounceth the Royal Assent or Dissent the Clerk of the Parliament pronounceth the Royal Assent according to certain Instructions given from his Majesty in that behalf If it be a Publick Bill to which the King assenteth the Answer is Le Roy le veult The King willeth If a Private Bill allowed by the King the Answer is Soit fait comme il est desire Let it be done as it is desired And upon a Petitionary Bill the like is used If it be a Publick Bill which the King forbeareth to allow he saith Le Roy se avisera The King will advise To a Subsidy Bill the Clerk pronounceth Le Roy remercie ses loyaux Subjects accepte leur Benevolence aussi le veult The King thanks his Loyal Subjects accepts their Benevolence and also willeth To a general Pardon is pronounced Les Prelates Seigneurs Communs en cest Parlement assembles au nom de touts vous autres Subjects remercient tres humblement vostre Majesty prient Dieu vous donner en sante bone vie longe The Prelates Lords and Commons in this Parliament assembled in the name of all your other Subjects thrice humbly give thanks to your Majesty and pray God to give you in health a good Life and long These P. 46. saith Sir Thomas Smith be taken now as perfect Laws and Ordinances of the Realm of England and none other and as shortly as may be are printed except it be some Private Acts made for the Benefit or Prejudice of some Private Man these be only exemplified under the Seal of the Parliament CHAP. XXIX Of Factious Combinations in Parliaments I Hope in the foregoing Chapters I have so explained the Constitution of Parliaments and the Legislative Power that unbiassed and unprejudiced Persons will no more be misled by the Sophisms and plausible pretences which to aggrandize the Power of the two Houses at first and after of the Commons House only the Penmen of the long Parliament made use of yet because many of late were furbishing the rusty Armour of their Demagogues and trimming their Helmets with fresh Plumes I conceive it necessary to take notice of some of their chiefest Arguments and examine those which had greatest Influence upon the People The great and venerable name of Parliament and its Authority was constantly used as Shield and Buckler to ward off all the Force of the Loyal Assaults and Mr. Prynne writ a large Volume which he stiled The Soveraign Power of Parliaments and when the very Lees and Dregs of the Commons House was put in Ferment that very Kilderkin would admit no lower Stile than the supreme Authority of the Nation to be pearched on its Bunghole Therefore to disabuse the less considerate The various Acceptation of the word Parliament and to detect the Frauds of those which under that great Name applyed whatever they met with in the Laws or History to the House of Commons I think it necessary in the first place to clear the acceptation of the Word Appropriated to the Lords House Sometimes the word Parliament is used for the House of (a) Egerton sect 4. 22 23. Lords only as when upon Writ of Error any Judgment in the King's-Bench is examined in the House of Lords the Judgment is said to be affirmed or reversed by Parliament The Appellation of Parliament is likewise used for the two Houses To both the Houses in regard they are the gross Body whereof the Parliament consists there only wanting the Sovereign Head to compleat it But they are so far from being the High Court of Parliament that they cannot co-unite to be an entire Court either of Sovereign or Ministerial Justice but only in concurring in Votes in their several Houses for preparing of matters in order to an act of all the Body which when they have done their Votes are so far from having any legal Authority in the State as in Law there is no Stile or Form of their joynt Acts further than Bills nor doth the Law so much as take notice of them till they have Royal Assent without which the Votes of the two Houses dye in the Womb like an Embryo So that the proper use of the word Parliament How properly the High Court of Parliament as Authority of Law-making is annexed to the name is only when the King and the two Houses concurr in one Act and in that sence only is the Parliament the Supream Court the highest Judicatory and the most Sovereign Power Not for any Soveraignty in the two Houses and from them transferred to the King by their joining and consenting with him but because every compleat and perfect Act of it is the Act of
the personal Will and Power of the Sovereign himself standing in his highest Estate Royal. Therefore whoever reads the Authors that writ in defence of the Parliament must consider this Fallacy they frequently used that he do not apply the Authoritative Act of the King with the Consent of the two Houses to the Houses without the King From the Co-operation of the two Houses in preparing Laws (b) Freeholder's Grand Inquest p. 34. the late ãâã since King Charles the First 's time of the words The King is not one of the Three Estates Be it endâed by the King the Lords Spiritual and Temporal and Commons as if they were all Fellow-Commissioners and the unwariness of some of the Penners of the King's Answers to some of the Papers of the two Houses wherein they stiled the King the third Estate the Commonwealths-Men have taken the advantage to reckon the King but as a third Legislator Therefore I think it necessary to remove this Rub e're I proceed further Although the Author of the Imposture The Modus makes the Parliament to consist of six Parts called the modus tenendi Parliamentum makes six degrees of constituent Members of the Parliament viz. The King first then Secondly the Archbishops Bishops Abbats Priors and other Clerks who held Baronies Thirdly the Proctors of the Clergy Fourthly the Earls Barons and other great Men who held to the value of a County or Barony Fifthly the Knights of Shires Sixthly the Citizens and Burgesses to which he might have added the Barons of the Cinque-Ports yet he saith the King is the Head Beginning and End of the Parliament and so hath no (c) Ita non habet Parem in suo gradu Peer in his degree Yet it plainly appears that these we now call the two Houses were by reason of their distinct Orders most frequently divided into three For in (d) As queux Prelats ou la Clargie par eux mesmes les Countes Barons par eux mesmes Chevalers Gentz de Countez Gentz de la Commune par eux mesmes entreteront Prynne Animadv p. 10. 6 E. 3. at his Parliament at York the Record saith That on the Friday before the Feast of St. Michael the Prelates or the Clergy by themselves the Earls and Barons by themselves the Knights of the Counties and the Commons by themselves treated c. Othertimes we find the Prelates Earls Barons and great Men and the Knights Citizens and Burgesses to have separate Consultations by themselves and to give their several answers to Articles and business propounded to them in Parliament as Mr. Prynne out of the Abridgment of the Records of the Tower hath given us above twenty instances At the making of the Statute of Praemunire 16 R. 2. the Commons pray The Lords Spiritual Lords Temporal and Commons make the Three Estates That the Lords as well Spiritual as Temporal severally and all the Estates of Parliament might be examined how they thought of that matter and the Lords Spiritual answered by themselves and the Lords Temporal by themselves and the King was Petitioned to make this Examination So in 40 E. 3. the King asking the Houses Whether King John could have subjected the Realm as he did the Prelates by themselves and the Dukes Earls and Barons by themselves gave their Answer Besides we find as at large I have before instanced in the last Chapter the Writs of Summons of the Bishops and Clergy were only in side dilectione and the Barons generally (e) Stat. 18. â 6. c. 1. in fide homagio or Ligeancia and the Clergy granted their Subsidies apart and distinct from the Nobles Besides that the Bishops are to be esteemed the Third Estate is clear by Act of Parliament for it being questioned (f) 8 Eliz. c. 1. whether the making Bishops had been duly and orderly done according to Law the Statute saith That the questioning of it is much tending to the slander of all the Clergy being ãâã of the greatest States of the Realm So Sir (g) P. 36. Thomas Smith as in the last Chapter I have noted distinguisheth the two Houses into three Estates and Sir Edward (h) 4. Instr p. 1. Coke saith expresly That the High Court of Parliament consisteth of the Kings Majesty sitting in his Royal Politick Capacity and the three States of the Realm viz. the Lords Spiritual Lords Temporal and Commons the like the learned (i) Interpreter tit Parliament Cowel affirms Sir Henry Spelman (k) Solenne collequium omnium Ordinum Regni Authoritate solius Regis ad consulendum statuendumque de negotiis Regni indictum Gloss p. 449. calls it a Colloquy of all the Orders of the Kingdom convened by the sole Authority of the King to consult and appoint in the Affairs of the Kingdom This was also known to Foreigners uninteressed Persons for the Lord Argenton speaking how Subsidies were granted in England saith * Lib. 5. p. 253. Convocatis primis Ordinibus Clericis Laicis assentiente Populo And Bodin â De Repul lib. 6. whenever he speaks of the Constitution of our Parliament calls it the King and the three Estates of the Realm But to put all out of doubt in King Charles the Second's Reign it is determined in the Act for the Form of Prayers for the Fifth of November For the Preservation of the King and the Three Estates Now the reason why in King Charles the First 's answer Why in some of King Charles the First 's Writings the King was called the Third Estate we meet with the expressions of making the King the third Estate was because at that time the Bishops being voted out of the House of Lords and the two Houses setting themselves in all the points of Controversie in opposition to the King the notion of a Triumvirate was more intelligible as it may be thought to the People and those who were so bitter Enemies to the King and had such a Rebellious force would have still increased the Peoples aversion if the King had asserted his Royal Prerogative otherwise Whether this were the true reason or the oversight of the Penners of his Majesties Answers I will not undertake to determine but I am induced to believe the first because I find the King and those that writ in defence of his Cause using frequently this way of Argument In every State there are three Parts saith (l) Review of Observations one the King ordered to write for him capable of just or unjust Soveraignty viz. the Prince Nobles and People Now through the Piety of our Lawgiving Princes a just and regular course of Government being obtained the stability of which being found to be more concerned in the Power of making Laws than in any other Power belonging to the Soveraign for preventing of Innovations that might subvert that setled regularity the frame and state of Government was in such a sort established as that the
Prince should be limited from using the legislative Power without concurrent assent of the Peers and Commons By which means the constitution of our Parliaments is so equal and geometrical and all parts so equally contribute their Offices that no part can have an extream predominance over other Therefore to prevent any evil that might come by the admission of two such Bodies to a participation of Power in this particular of making Laws if they should combine against the Soveraign the Law gives them an equal Power to assent or dissent The Ballancing of the Powers in Parliament so that opposing the single Power of every one of them to the Votes of every other two there might be so secure a balancing of the Power of one against the other that no practice of any two of them should do any prejudice and diminution to the third without the third Party it self did give consent unto it otherwise the King and Peers might oppress the Commons the King and Commons oppress the Peers or the Peers and Commons oppose the King and the Peers being easily oppressed by the Commons as we saw in our late calamitous Times an Appian Decemvirate or the 30 or 300 Tyrants might get the Power into their own hands In another place he saith Though properly Laws be the Acts of the King in Parliament yet are they also truly the Acts of the whole Parliament because every of the Estates contribute their Power according to the diversity of their Office and Interest and so as from a sacred Tripos the civil Oracles of the Law are delivered It is therefore to be considered saith a Judicious (m) King's Supremacy asserted c. 9. p. 96. where the Reader may find a full Answer to the Deductions they make from the King's way of arguing Author in answer to some other passages of his Majesty that the Parliamentarians wrested That if his Majesty out of a desire to save the effusion of Blood used such gracious Expressions as were most likely to prevail with the People and consolidate their Minds they ought not in Equity to prejudice the Rights of the Crown although he had abdicated therein some parts of his Authority and granted things destructive to his own Prerogative From his Majesties saying That the Power legally placed in both Houses is more than sufficient to prevent and restrain the Power of Tyranny they infer This cannot be made good without a Power of Resistance for that Tyranny cannot otherwise be restrained Which is easily answered For it cannot be understood that the King means by this a forceable resistance or restraint (n) Id possit quisquam quod jure possit but a legal one so far as Humane Prudence can by lawful and just ways provide The Power they have by Law being to inflict punishments on evil Instruments whereby others may be afraid to take upon them such Imployments and they may refuse to give the King Subsidies and other necessary Assistance if he refuseth to moderate excesses which are Powers more efficacious than resistance the success of the one being more probable and likely than the other However The not asserting of King Charles the First 's Prerogative disadvantagious in my poor opinion it had been more honourable and probably more efficacious to have spent less time in this kind of defending the Kings Interest by the Pen and have imployed it in asserting the true Prerogative of the King and his undoubted Rights to have let the People as well as the Houses know what he would reform and out of Princely Clemency grant for his Peoples ease and at their earnest Petition but neither to have depreciated or descended so much below the Majesty and Dignity of his place to enter into Reply and Duply Altercation and Apologies with his Subjects But that King composed all of Mercy Justice and Tenderness to his Subjects judging others by his own Royal Standard of Integrity let the Houses seize his Ships Magazines and left them the City of London's Purse while he retired to the North and plied the Houses with Declarations and Messages to have reduced them to their Duties and though his condescensions were great and the way of Argument such as before I have instanced in yet I cannot find except in that particular of making himself one of the three Estates that he yielded any part of his Royal Prerogative till he was made Prisoner that in his restraint he condescended to a temporary divesting himself of the Militia and other things which all sorts of Subjects except the very chief of those in Rebellion against him found infinitely more tending to the enslaving and utter ruine of the People than ever they could have been if the King had managed all by his absolute Will and the direction of those they accounted his worst Instruments I having in several places cleared the Kings Soveraignty shall only on this Head endeavour to answer the principal of those popular Reasons the Writers for the Parliament used not grounded upon any Law or Constitution of the Government but only upon the false supposition That the Wisdom of the two Houses was to be valued above the Wisdom of the King and Council in proposing matters for the Royal Assent which were conducible to the Liberty of the Subject which they pretended was their whole design and that they would establish the Kings Throne in more Glory and Splendor than had ever been in any Ages The first and principal Topick they used was The Monarchy of England not mixed That the Monarchy of England was in its Constitution allayed and the Power of the two Houses in making Laws had such a Copartnership and radical mixture that they had something more than a Consultive and Assenting part and that the King was oblig'd in the duty of his Office and by his Coronation Oath to grant what they desired Mr. Sherringham (o) King's Supremacy asserted p. 74. hath culled out the prime Arguments of the Author of the Treatise of Monarchy The fuller Answerer and others upon this Head and so fully answer'd them that I must refer the Reader to him for satisfaction and shall only select some of the chiefest of these Arguments more for the orderly continuance of this Discourse than for any need of repeating them First They say That King Charles the First owned the Law (p) Declaration from Nâwmarket 9 March 1641. to be the Measure of his Power and if so it is limited But this concludes no more than that his Power is of such a size and bigness as the Law hath ordained and if the Law give the King absolute full and entire Power and limits him only in the exercise of it this is a restraint and limitation according to such Laws as the Soveraign hath established in that particular alone and is the happiness of the English Subject that Kings act not Arbitrarily but this gives no Power to the two Houses to be any checks upon
the King who by the same Laws hath the Power of putting in execution and suspending the execution of the Laws in many Cases or that Aristocracy or Democracy have any such mixture with the Monarchy as they can impose their Laws upon him For to suppose a mixed Monarchy consisting of Three Estates independent for their Authority upon one another and to have several shares in the Rights of Sovereignty and to say The Government of three Estates is the Government of one Monarch is perfect nonsence for when (q) Besold Synopsis Polit. Doct. l. 1. c. 6. Monarchy Aristocracy and Democracy are melted and allayed together that which resulteth can take its name from none of the simple species or kinds of Government but must have some other Appellation Whoever will consider aright of the concurrence of the two Houses in preparing Bills will find How the two Houses concur in making Laws That though the Houses be as the Causa sine qua non yet the efficient procatarctick Cause and the Authoritative Power in passing these into Laws is the King only and what the two Houses do without his Assent is but as the Counsellor at Law 's framing a Deed and the Clerks Ingrossing the Indenture of Conveyance but till the Seal be set to it and delivery made as the Act and Deed of Donor or Conveyor it is of no force and virtue neither do we call it the Act and Deed of the Counsellor or Clerk but of the Person that seals it Another Objection those Champions for the two Houses made great noise with was (r) King's Supremacy p. 84. Objection That the Mixture is in the Supremacy of Power That the Power where the Legislative is in all Three is in the very Root and Essence of it compounded and mixed of those three so that where this height of Power resideth in a mixed Subject that is in three concurrent Estates the consent and concursus of all being most free and none depending on the Will of the other that Monarchy is in the most proper sence and in the very model of it a mixed Constitution And that such is the State of the Monarchy of England the Objector thinks clear because the House of Peers are an Aristocracy and the Commons a Democracy and this mixture of Interests and Powers being in the very Legislative Power he concludes the mixture is in the Root and Supremacy of Power and not in the exercise alone In answer to which it must be considered Answer That is only in the Exercise of the Power That though the concurrence of both the Estates with the Monarch in the making and promulgation of Laws be such as our Laws describe yet it is no otherwise than in the precedent Chapters by undeniable proofs I have made it out That what participation soever the two Houses have with the King in the Legislature it is only derivative from the Crown by the King's Summons and the restriction of those Summons to do and consent It is known to be the common Assertion of (s) Panorm cap. Gravem de Sent. Excom Canonists (t) Bertol. in Lomnes Populi sect de Justitia Jure q. 2. Civilians and (u) Suarez lib. 1. de Leg. c. 8. n. 9. Schoolmen That the Legislative Power is communicable by the Princes allowance and that such a concurrence as our Kings have allowed is no Argument of Supremacy such a mixture of the three Estates hath been in other Monarchies * Besold de Juribus Magist c. 2. which every where are owned to be absolute in respect of Power For as they are summoned by the Princes single Authority and dissolved at his own pleasure they can claim no sort of Right during their Session further than to consult about and prepare Bills for the Royal Assent Therefore (w) De Imperio Summarum Potestatum circa sacra c. 8. num 11. Grotius saith Istam Legislationem quae aliis quam Summae Potestati competit nihil imminuere de jure Summae Potestatis quod in Scholis dicunt cumulative datum censeri non privative So in our Kingdom every Corporation hath Authority to make Ordinances and Constitutions within their own Liberties for the good Order and Government of the Body and the Inhabitants (x) Coke 5. part tit Cases de By-Laws Ordinances of every Parish to make By-Laws and Ordinances among themselves for their own profit where they have Custom for it and for the Publick Good where they have no Custom Surely this is a sort of Legislative Power yet thereby it cannot be inferred that they have any Co-ordinate Power with the King in the Rights of Soveraignty So that allowing the Power of the two Houses as large as can be proved by the Laws for the stretch that the Parliamentarians would make is by the Tenters they only have set up the whole latitude of the Nomothetical Power is not jointly in the two Houses for none but Strangers to our Laws can deny That the King hath sole Power to dispense with the Statutes and abate their Rigour where a mischief would otherwise insue he alone hath Power by Edicts and Proclamations to order all Affairs for which there is no order taken by certain and perpetual Laws The Legislative Power is either (y) King's Supremacy p. 88. Of Architectonical and Preceptive Power Architectonical or Preceptive The Architectonical is that which layeth Materials of Law and consisteth in two things First in determining what is just convenient or necessary Secondly in declaring and promulgating that to be actually made a Law and Enacted which upon consultation is thought to be just convenient or necessary The first shews no Jurisdiction in the Persons who have it but only an Office and Imployment to deliberate and consult But whoever hath the Second Power hath a Jurisdiction to define Authoritatively what shall be Law and this Preceptive Power is that which makes the Law sacred and inviolable and which giveth it force to oblige the Conscience Now it is evident by undeniable Testimony and Authority that the exercise of the Architectonical Power is only committed to the two Houses who have votum consultivum decisivum but it is derived from the King who hath only the Preceptive Power So that the Writers for the two Houses generally did use a Sophistical way of arguing not discovering what they could not but know the difference betwixt the King's and the two Houses Powers in the making of Laws For subordinate Agents that are but Instruments of another and work by a derived Power when they concur with the Principal and supream Agent have their causality in producing the Effect yet this doth not prove the Authority to be radically in them As in an Estate of Lands saith (z) Idem p. 91. Mr. Sherringham wherein a Man hath a perpetual Right in Fee his Right is distinguished from the King 's Right of whom he holds the King having the demean of the
Land and the other the demean of the Fee So it is in an Estate of Power and Authority If the King granteth an Estate of Power Authority and Jurisdiction in Fee-simple or in Fee-tail for term longer or shorter the King hath the demean of Power and the other the demean of Use the King hath Dominium directum the other Dominium utile which he applies to the two Houses but it must be likewise considered that this distinct Authority they have is wholly derivative and so much the more depending on the Sovereign as he can at his Pleasure totally deprive them of the Exercise of it by Prorogation or totally annihilate it by Dissolution Another Objection they made Objection The Three Estates to restrain the Excess of each other was from the Answer the King authorized a Gentleman to make to the Observer That the three Estates are constituted to the End that the Power of the one should moderate and restrain the excess of the Power in the other From which he infers That this is an Allay and mixture in the Root and essence of the Constitution To this it may be answered Answer to it That there is no such Power in the two Houses they are called to consult and to consent All they can do is that they have the opportunity of having grievances redressed because they may otherwise deny the King the assistance he desires But they have no Authority of themselves to redress them or to restrain and moderate his Excesses by Force nor can they moderate the Excesses of one another by any Act of their own singly further than the exorbitant Estate shall be willing to be moderated It is a most absurd thing to imagine that when the Law hath placed the Sovereign Power in the King it should again for a space of time during the Session of Parliament unsovereign Him and place in the two Houses the same Sovereign Trust and with a second absurdity leave in the King's Hands the summoning and dissolving the Power by which himself should be constrained and to make up all should by Authority of that Power constrain all the Heads of the People and even the Representative Body of that Power by Solemn Oath to declare that the King is not only supreme Governour but that he is only supreme Governour Besides the Arguments they sued upon this Head of a debased Monarch that was not only to admit some of his Subjects into the Participation of his Burthen but of his Soveraignty whereby they pleaded for both the Houses being joynt-Sovereigns for the time they used other Arguments singly for the House of Commons which they endeavoured to aggrandize and raise to a strange over-towring heighth above both King and Lords and they grounded all their Arguments upon the immense Power of their being the Peoples Representatives The Observer saith Objection concerning the Power of Representatives That the vertue of Representation is the great Privilege of Privileges that unalterable Basis of all Honour and Power whereby the House of Commons claims the entire Right of all the Gentry and People and that there can be nothing under Heaven next to renouncing of God which can be more perfidious and more pernicious to the People than the withdrawing from them and doth acknowledge that the Arbitrary Rule was once most safe for the World But now since most Countries have found out an Art and peaceable Order for publick Assemblies he means by Representatives whereby the People may assume its own Power and do it self Right without the disturbance of it self or injury to Princes he is very unjust that will oppose this Art and Order In answer to which it ought to be considered That the Representative Body deserves the highest Honour and Observance that can be given to the Body Represented Answer What Honour is due to Representatives of the Subjects but this Honour will depend upon two things First the quality and condition of the Body represented and Secondly on the quality of the Representative it self If therefore the Body at large were an absolute Sovereign as in Republicks the true Representative of that Body were to be observed with all Sovereign Honour and due Subjection But when the Body at large it self is but a Subject as it is in Monarchy the Honour and Authority of the Representative cannot exceed the Honour and Authority of a Subject for none can make the Image more than the Original or without Adulterating Arts appear so Therefore however abhorrent a Crime he makes it in such as concurr not in their Judgment with their Representatives that exceed their Authority and Commission yet all sober and just Persons ought to consider that the Subjects by giving Authority to some of their own Order to represent them and advise and consent for them gave them no such Power above that of Subjects yea so much above the condition of their Sovereigns that neither breach of Faith nor the Oaths of Allegiance and Supremacy which they never took to them or any other Duty to their King was comparable to the withdrawing from the Vote or Act of their Representators as if the Rights of the Crown and Kingdom and the Laws made by the King with the assent of the three Estates in Parliament did not so much concern the Commons of the Land but that against all these they stood solely bound to the Representatives as the only Sovereign of their Obedience I shall now offer some Reasons against this dangerous Opinion First It is to be considered Reasons against the Power of Representatives That in our Kingdom the Representors are not equally chosen as in the united Provinces and other Commonwealths but it lies in the Power of the Sovereign here to make a Town equal in number of Burgesses to a County which doth vehemently demonstrate That the first Institution and end of such Representatives was rather to minister Information of the State and Condition of that particular place and advise and assist the Sovereign and to consent with him and not to determine Sovereignly Secondly The cockering the People in that Opinion that the Soveraignty lies in Materia prima in them and by their Representatives that they may exert it is the certain way to ruin not only Monarchy but all government as was evident in the case of the Rebellious House of Commons in King Charles the First 's time who prided themselves so much with the Title of Representatives and by pretext of that and the Assistance of their Army having unyoked themselves from all Subjection to their Lawful King and disengaged themselves from their dangerous and useless Collegues the Lords as they then voted them after some while they lost their Honour and Reverence with their own Army who then would be the People and pulled them out of their House justly charging them with a design to perpetuate themselves And so the Tyrannical Supremacy was exercised by Cromwell and his Council of Officers a while
expelled the House but if a favourer of the Cause he was never recriminated with that or any other by-past or present ill disposition In such Assemblies there often happen one sort of People who are always representing grievances complaining of Male-administration troubling the Church and State shaking up the Lees and Dregs in the richest Vessel of Wine these have learned to catch Eels Tacitus notes the corruptions of the Roman Senate The Corruptness of the Roman Senate which necessitated the change of that State into a Monarchy under Augustus fully significantly and concisely after his manner Suspecto Senatus Populique imperio ob certamen Potentium avaritiam Magistratuum invalido legum auxilio qua vi ambitu postremo pecuniaturbabantur The Provinces observing in this Supremacy of the Senate and People the contests of the most Powerful the Covetousness of the Magistrates the feeble help the Laws afforded by the Arbitrariness of the Senate we may presume by what force and moyen and lastly how all things were distracted by Bribery they were the more easily induced to admit of one Soveraign These particulars were most obvious in the fatal House of Commons Besides these things I have hinted at Of cunning and designing Men. in such a body as we are speaking of where there cannot want men designing some dangerous Revolutions for the establishing their own greatness though some few wise men may be apprehensive of their designs yet we know maxima est pars artis celare artem Such contrivers will be sure by all imaginable Arts to conceal their intentions and obtain an Ascendent over the Judgment of the gross Body who either are not so quick-sighted or aiming at no such things themselves judge others candor by their own and so by their helps the designers may carry the Vote against even such as penetrate further into the aims of the Contrivers than the Majority do so that those that have good ends may be hood winked by others whose ends are worse Fallit enim vitium specie virturis umbra and private ends will steal upon well affected for all grand Conspiracies are veiled under the Mask of Reformation of removing Grievances and evil Counsellors Gallant and vertuous actions do not more often ingratiate men with such a mixed body than a rolling Tongue a precipitate Head vain-glorious profusion oyly insinuations feigned devotions sufferings though deserved from Superiours and above all opposition to the present State So the memorable long Parliament of 1641. by the specious pretences of redressing Grievances The specious Pretences of the Long Parliament taking care of the Public and particularly of the Liberty of the Subject and their Privileges together with vehement Expressions of their Resolutions of Establishing the Kings Throne upon more firm foundations of the peoples Hearts and Affections by insensible Screws wound themselves into the credit of Patriots and being thereby able to carry a numerous party with them in all their Votes by little and little made such encroachments upon the Soveraignty that having undermined it past support they took the advantage of its fall and ruine out of the same specious pretence that the Commonwealth might suffer no detriment to propose their long designed Model of Government not as by them forethought on but as a necessary expedient to accomplish the end as they pretended they had all this while been aiming at viz. the Peoples prosperity which ãâã they endeavoured to make the World believe they were most Zealous for when God knows the upshot of all was the total dissolution of the best constituted Government and the Establishing themselves a fattened Commonwealth out of the rich spoils of Monarchy Yet these very men were they who some years before possessed as many as they could delude with an opinion Their Hypocritical Promises that none knew better nor affected more the sweetness of so well ballanced a Monarchy than they and that the Kings just Authority was Sacred to them that they would make him more rich and glorious than any of his Predecessors The Observer told the World That it had been often in the Power of former Parliaments to load the Government with greater Fetters and Clogs but they would not and that change of Government could not be in their desires because the advantage of the Lords and Commons in the State was so great that no change of Government could better them except each one could obtain an hereditary Crown But these were but vain flourishes and empty aiery offers success altered their Principles and they were ill troubled to find out excuses and evasions after the Murther of the Blessed King and change of Government for these their so hypocritical Declarations From all which I shall only desire that Posterity may be cautious how they credit the truth of those who in such Conventions are the most active for any Innovation if they see that they zealousliest pretend some greater happiness to the People by lessening the Authority of the Crown It is reported of Frederick the Emperour (c) Aeneas Sylvius de diaetis Fred. Imp. that in the Speech to the Senators he desired them before they entred into the House of their Assembly they would leave two things behind them and then they would give right Judgment and being asked what those were he told them Simulatio dissimulatio Counterfeiting and Dissembling Another of their Arguments How many Counsellors may mislead for the preference of the Houses Counsel before all other Councils was that many Eyes of so many choice Gentlemen from all parts see more than fewer which Sophism easily midwived in the conclusion that then the two Houses judgment of Affairs was to be preferred before the King and his Privy Councils and the Commons before the Peers and by a parity of Reason though they desired not it should be urged so far home that the body of the People was to be preferred before the Commons House which might be urged upon as common a Proverb That By-standers see more than Gamesters But who are so blind as those that will not see Those very Seers if they would have made use of their Eyes to have perused the Histories of former Ages on what specious pretensions Rebellions had begun and how the Laws had settled the Government in an unparallel'd security of the Peoples Rights as well as the Prerogative of the Crown or by serious consideration foreseen the certain and inevitable miseries that would follow the weakning of the Crown and the necessitating the King for his defence to take up Arms these quick-sighted Commoners might have prevented all those Calamities that ensued The Elected like the Electors Whoever considers how easie it is to possess a People with prejudices against the Government of which elsewhere I must enlarge will soon find that it is no difficult matter to have such Elections of Members as were like to be of the same perswasion with the Electors So that
in such cases it is not to be wondred at that a majority of Votes might be opposite to more judicious and foreseeing Members judgments neither is the Maxim universally true for it must be caeteris paribus if all things be alike For it is not sufficient for an Adviser to see unless he can let another see by the light of Reason A man ought not implicitely to ground his Actions upon the Authority of other mens Eyes whether many or few but of his own One Physician may see more into the state of a mans body than many Empiricks One experienced Commander may know more in Military Affairs than ten fresh-water Souldiers One old States-man in his own Element is worth many new Practitioners One man upon a Hill may see more than an Hundred in a Valley And who will deny but among an Hundred one of them may have a stronger Eye and see clearer and further than all the Ninety Nine So one Paphnutius in the Council of Nice saw more than many greater Clerks And it is no new thing to find one or two men in the Parliament change the Votes of the House Therefore nothing is got by this way of arguing though it be one of the plausiblest and most improveable of any of the Topicks they choose And if we could be sure that all the Members of such Assemblies were free from all the imperfections such are liable to much might be yielded to it All these Arguments were used for that sole end that they might possess their Party with the reasonableness of their desires to the King that he would implicitly yield up his reason to the guidance of their Councils They were not so frontless at first Concerning the Negative Voice as positively to deny the Kings negative Vote in Parliament that had never been doubted and there is good reason it should be a most sure Fundamental of the Government since nothing can be Statute-law but that to which the King assents Le Roy le veult For who can be said to will that hath not the Power to deny Si vult is scire an velim efficite us possim nolle Seneca But they affirmed that in Cases extraordinary when the Kingdom was to be saved from ruine the King seduced and preferring dangerous men it was necessary for them to take care of the Publick And then the Kings denying to pass their Bills was a deserting of them Objection That in Cases of Extraordinary necessity the Houses to have Power to secure the People from Tyranny Otherwise they alledged Parliaments had not sufficient Power to restrain Tyranny and so they boldly affirmed they had an absolute indisputable Power in declaring Law and as their Observer words it they are not bound to Precedents since Statutes cannot bind them there being no obligation stronger than the Justice and Honour of Parliaments And to summ up all he tells us if the Parliament meaning the two Houses be not vertually the whole Kingdom it self if it be not the supreme Judicature as well in matters of State as matters of Law if it be not the great Council of the Kingdom as well as of the King to whom it belongeth by the consent of all Nations to provide in all extraordinary cases ne quid detrimenti capiat Respublica let the brand of Treason saith he stick upon it Indeed because by all these most false and impious assertions and those horrid Acts built upon them they brought so great a ruine to the Kingdom they are and ever will be uâless a Platonick year return again branded with Rebellion in the highest degree To answer this Accumulation of Treasonable Positions for such I hope I may call in some sence Answer what is against the Kings Crown and Dignity is no ways difficult from the discourse of right constituted Parliaments For those of them that carry any shew of Reason are such only as may be understood of Acts of Parliament compleated by the Royal Assent but being spoken of either or both Houses in opposition to the King they are most false as I shall shew in particular For First If the two Houses are not bound to keep any Law no man can accuse them of breach of any What obligation can Justice lay on them who by a strange vertue of Representation are not capable of doing wrong But it is well known that Statutes stand in full force to the two Houses as being not void till repealed by a joynt consent of the King and the two Houses It would be much for the credit of the Observers desperate Cause if he were able to shew one such Precedent of an Ordinance made by Parliament without the Kings assent that was binding to the Kingdom in nature of a Law Our Kings can repeal no Laws by their own Prerogative though they may suspend the Execution It seems the Houses would have Power to do both and our Author in another place thinks it strange that the King should assume or challenge such a share in the Legislative Power to himself as without his concurrence the Lords and Commons should have no right to make Temporary Orders for putting the Kingdom into a Posture of Defence These were strange Phrases never heard before by English Ears Our Laws give this Honour to the King That he can joyn or be sharer with no man The King like Solomon's true Mother challengeth the whole Child not a divisible share but the very life of the Legislative Power The Commons present and pray the Lords advise and consent the King Enacts Secondly The Houses have no Power to declare Law As to their claiming an absolute Power in declaring Law it is as bold and false an Assertion as the other when spoken of the two Houses They may vote in order to a new Bill the explaining or repeal of any Law formerly made or prepare a Bill for any New Law and that is all they can do but authoritatively to declare any Law is most contrary to the Constitution of the Houses and never was adjudged one of their Privileges Thirdly As to the Justice and Honour of a Parliament when the State is in quiet and the Conventions only for making wholsome Laws for the Publick weal there are no Factions in Court or Country no private Intriegues to be managed the People neither uneasie nor discontented then it is to be expected That none but the wisest and wealthiest of the Gentry will be chosen Members of that August Assembly and their Justice and Honour will be conspicuous in all their Actions But have we not known Houses of Commons composed of other kinds of Persons who have voted their own Justice and Honour to be to imprison their fellow Members and fellow Subjects in an Arbitrary way How (d) Address part 3. p. 121. could a generous Soul conscious to himself he had transgressed no Law kneel at the Bar of such a House with the same submission as if he believed the Speaker
infallible and every Member an Angel But the Observer Objection That if the King have a Negative Voice there will be no need of Parliaments and his Pewfellows urge That if the Houses can do no Act for publick good without the King's consent and if the King may reject their Counsels and Advice it were needless to put the Country to the charge of choosing Members of Parliament And if the King may prefer other opinions before Parliamentary Motives then Parliaments are vain and useless helps Princes are unlimited and the People miserable These Objections are of such an odious nature Answer That no good Subject can take delight in them whose duty is to pray for the like consent among the several Orders of the Kingdom as is supposed to be among the several Orbs of Heaven The King undoubtedly the Primum movens the Great and Privy Council the lower Spheres The usual but not the only form of the Kings Answers to such Bills as they were not willing to pass Le Roy s'avisera proves (e) Answer to Observations p. 56. That after the advice of this his Great Council he is yet at liberty to advise further with persons or occasions as his own Wisdom shall think meet But these Authors will by no means take notice That the use of Council is to perswade not to compel as if a Man in business of great concernment might not very prudently consult with many Friends and yet at last follow the advice perhaps of one if it appear more proportionable to the end he aims at If it were because they are a more numerous body therefore their Counsel is upon that account to be yielded to then the liberty of dissenting may be denied to the House of Peers in comparison of the House of Commons and to that House too in comparison of the People and so both King Lords and Commons are voted out of Parliament Besides Natural Wisdom and Fidelity there is a thing called Experience of high concernment in the managery of Publick Affairs He that will steer one Kingdom aright must know the right Constitution of all others their Strength their Affections their Counsels and Resolutions that upon each different Face of the Skie he may alter his Rudder The best Governments have more Councils than one One for the Publick Interest of the Kingdom another for the Affairs of State a Council for War and a Council for Peace Let them be as wise and faithful Counsellors as the Observer pleaseth only let them be but Counsellors Necesse est us Lancea in libra ponderibus impositis deprimi sic animum perspicuis cedere Let their conlusions have as much credit as the premisses deserve and if they can necessitate the Prince by weight of Reason and convincing Evidence of experience let them do it on Gods name But it is not to be done upon the Authority of a bare Vote as I think all uninterested persons are satisfied in the Votes of the Houses in 1641. about the Militia Church-Government and the voted Nineteen Propositions or the late Votes about the Bill of Seclusion the Repealing of the branch of the Statute of Queen Elizabeth against Protestant Dissenters and the Loans upon the Kings Revenue There are other ends besides Counsel for which Parliaments are called as consenting to new Laws furnishing the Public with Moneys and maintaining the Interest of the Government and liberty of the Subject from the removing one social end to inferr that an Action is superfluous deserves no answer but silence and contempt This should teach the Electors Wisdom not to chuse such as have Factious Bents or are not truly qualified in their Allegiance to their Prince or Malecontents who render such Conventions useless to the Publick Ends of Government and the Peace Tranquillity and Prosperity of both Prince and People Because the Long Parliament Writers would have no Stone unturned nor any specious Argument uninforced Concerning the Coronation-Oaths of the King of England that might bring the King to their Lure to consent to what they proposed they endeavoured to make the World believe that the King was bound by his Coronation Oath to pass all such Bills as they presented or tendered to him grounding as Mr. Prynne and others alledged on a promise of the Kings at his Coronation to grant and keep the Laws and Customs which the Commonalty shall chuse Before I come to give the particular Answer I think it not unfit to take this opportunity to give a full account of the Coronation Oaths of our Kings and how the same from Age to Age were varied by which the Ingenious Reader will find what the respective Kings by their Oaths did promise That I may deduce as high as I have yet found the Original of Soveraign Princes taking Oaths at their Coronations it may be noted that the first Emperor that was Crowned and had any Coronation Oath prescribed was (f) Evagrius Hisâ Eccles lib. 3. c. 32. Who first took a Coronation-Oath Anastasius the Greek Emperor who being elected by the Senate and Soldiers about Ann. 486. Euphemius Patriarch of Constantinople suspecting him to be addicted to the Heresy of Eutychius and the Manichees would not consent to his Coronation till he should deliver him a Writing under his Hand ratified with his Oath wherein he should plainly declare That if he were Crowned Emperour he would maintain the true Faith and Synod of Chalcedon during his Reign and bring in no Novelty to the Church of God This Writing ratified with his Oath Macedonius the Treasurer was to keep and after he was made Patriarch the Emperor demanded it and said It was a great discredit unto his Subjects that his Hand-writing should be kept to testifie against him or that he should be tied to Pen and Paper There is no mention of any Coronation Oath used from thence to the Year 804. that (g) Eutrop. lib. 24. p. 145 146. Zonar Annal. tom 3. fol. 142 143. Imperatorio Diademate est ornatus postulato prius scripto quo promitteret se nulla Ecclesiae statuta violaturum Stauratius Son to Nicephorus slain in his Wars against the Bulgarians being declared Emperor by some Michael Curopolata was adorned by the Patriarch with the Diadem a Writing before being desired in which he promised to violate none of the Statutes of the Church c. Which is the first Precedent of a Promise not an Oath demanded from or given by any Roman King for confirming the Laws of the Church c. The first Emperor Crowned at Rome by any Pope (h) Onuphr was Charles the Great Anno 800. but without an Oath and Henry the Fifth (i) Dicens Imperatorem nemini jurari debere cum juramentorum sacramenta ab omnibus sint sibi adhibenda Hermold Chron. Scl. l. 1. c. 40. Sim. Dunelm 232 237. refused to take any Corporal Oath saying That an Emperor ought to Swear to none for that Oath i. e. of Fealty
Second as they found it in the Latin (o) Cl. 1. R. 2. m. 44. Records therefore before I apply those it is needful to note the Latin which as we find it 1 R. 2. was this Capto per Archiepiscopum Cantuar. Sacramento Dom. Regis Corporali de concedendo servando cum sucra confirmatione Leges consuetudines ab antiquis justis Deo devotis Regibus Angliae Progenitoribus Plebi Regni Angliae concessas praesortim leges consuetudines libertates a gloriosissimo sanctissimo Rege Edwardo Clero Populoque Regni praedicti concessas servando Deo Ecclesiae Sanctae Domini Cleroque Populo pacem concordiam integre in Deo juxta vires suas de faciendo fieri in omnibus judiciis suis aequam rectam Justitiam discretionem in misericordia veritate otiam de tenendo custodiendo justas Leges Consuetudines Ecclesiae de faciendo per ipsum Dom. Regem eas esse protegendas ad honorem Dei corroborandas quas vulgus juste rationabiliter elegerit juxta vires ejusdem Dom. Regis This is an additional Clause This is verbatim the Latin for the preceding French except in the additional Clause and the Conclusion which makes the just Laws and Customs both to relate to those of the Church and those that the Vulgar shall have justly and reasonably chosen The like we find (q) Rot. Parl. 1 H. 4. num 16 17. 1 H. 4. and in the Pontificale of the Archbishops and Bishops and it is added after the King hath King Henry the Fourth's Oath as before expressed answered to the Proposals Pronunciatis omnibus confirmat Rex se omnia servaturum Sacramento super Attari praestito coram cunctis i. e. that the King by his Oath taken upon the Altar before all present to observe these confirms them The Solemnities and Ceremonies used at the Coronation of King Richard the Second may be perused at large in Tho. (r) Hist Aug. fol. 194 195. Juravit coraem Archiepiscopo Proceribus qui ibi aderant quoniam ipsi solum ejus Juramentum audire potuerunt Walsingham and he saith he swore before the Bishops and Nobles there present for they only could hear his Oath that he would permit the Church to enjoy its Liberties and would honour it and its Ministers that he would hold right Faith and would forbid Rapines and all Iniquities in all their Degrees 2ly That he would make to be kept every where the good Laws of the Land and especially the Laws of St. Edward King and Confessor who was buried in that Church and would make all evil Laws to be abrogated 3ly That he would not be an accepter of Persons but would make right Judgment betwixt man and man that especially he (s) Praecipue misericordiam observaret sicut sibi suam indulgeat misericordiam clemens misericors Deus would observe Mercy as the Clement and Merciful God might grant Mercy to him Having thus given an account of these Coronation Oaths I come to the Objections First They (t) Prynne's Treachery and Disloyalty Answer to the Objections about the Words Quas vulgus elegerit say that the word Vulgus doth signifie the two Houses and the word elegerit is to be taken in the Future Tense so that the King is obliged to consent to such Laws as the two Houses especially the Commons do chuse It is a wonder to me how men that pretended to any reading or learning in Antiquities or in the Constitution of the Government could defend their Cause with such pitiful Reasonings especially against King Charles the First who neither had taken such an Oath nor many of his Predecessors before him The Latin Translation of two French words gave all the occasion of dispute for that which is called Communate is rendered Plebs and Vulgus and aura eslu is translated elegerit whereas were it to have been understood in the Future Tense it should have been eslira and agreeable to that in all the Authentick Records of the Exchequer the word elegerit is Englished in the Preterperfect Tense Thus much may suffice as to the word elegerit Dr. Brady's Glossary will satisfie the Curious about the import of the word it self Concerning the word Vulgus one solid (u) Freeholders Grand Inquest b. 46. What meant by Vulgus according to the Opinion of some Author saith That we may be confident that neither the Bishops Privy Council Parliament or any other whosoever they were that framed or penned this Oath ever intended in this word the Commons in Parliament much less the Lords they would never so much disparage the Members of Parliament as to disgrace them with a Title both base and false It had been enough if not too much to have called them Populus the People but Vulgus the Vulgar the rude multitude which hath the Epithete of ignobile vulgus is a word as dishonourable to the Composers of the Oath to give or for the King to use as for the Members of the Parliament to receive therefore he judgeth that by Vulgus must be meant the Common People not the Lords and Commons But then saith the same Author the doubt will be what the Common People or Vulgus out of Parliament have to do to chuse Laws In answer to which the preceding word is to be considered Consuetudines quas Vulgus elegerit the Customs which the Common People have chosen If we observe the nature of Custom Customs chosen by the Vulgar or Common People it is the Vulgus or Common People only who chuse Customs Common usage time out of mind creates a Custom and the commoner the usage is the stronger and the better is the Custom No where can so common an usage be found as among the Vulgar who are still the far greatest part of every multitude If a Custom be common through the whole Kingdom with us it is all one with the Common Law of England which is often called Common Custom so that to protect the Customs which the Vulgar chuse is to swear to protect the Common Laws of England Agreeable to this is what the learned Dr. Brady (w) Glossary p. 36. notes That upon the whole it signifies no more than that the Community had chosen that is owned submitted to and desired still to use their Old Customs which by use time out of mind they had enjoyed for the better management of Affairs and Conveniency betwixt Man and Man all the Nation over or in any particular County Hundred Town City or Burrough such long practices being the foundation of all Customs but these are to be just which intrench not upon the Government or Laws and by permission and sufferance only become Laws But the same (x) Id. p. 35. Author judiciously affirms That the Community here intended was the Community of the Bishops What meant by the Community Abbats Priors
will shew it self when extream necessity is disputable it is a sign it is not real Secondly The Agent must be proper otherwise it cuts in sunder the very Sinews of Government to make two supremes in a Society and to subject the People to contrary commands But to claim such a Power over the King in extraordinary cases alone That the Houses should be Judges of this Necessity doth not much vary the case for at the same time they voted themselves the proper Judges of such necessities and the erecting of any superintending Power in the circumstances of those times and in all parallel cases would not only unsoveraign the King by making this Power the Soveraign but the exercise of it would be subject to more dangerous extravagances than Regal Power is and yet less capable of Regulation than it For the Law knowing there is none but God qui custodiat ipsos custodes concludes from the weakness and imperfection of every other form of Government that the Soveraignty of Law-making was better placed in the hands of a sole Prince than in a Popular or Aristocratical hand and that a positive known Law without any coercive Superintendent was a sufficient and the best boundary of Regal Power For the Law and the Transgression of it being both at once made manifest and notorious it will be so sufficient (c) Review of Observations security of the future observance of the Law that Princes will not offer to violate it Now if such a Supreme Power as these would have in the two Houses in what case soever be once enacted that must either be boundless or circumscribed by a Laws and if that be circumscribed with a Law then must that Law also have a Superiour Power to enforce it and so there must be a Superiour Power over Superiour Power in infinitum and yet at last leave the most Superiour Power in that liberty which the Observer calleth boundless Arbitrary and Tyrannical If this Principle were true By the Arguments of the Parliamentary Writers the Sovereignty is not in the King but in the People all is but misleading formality of Law the Soveraignty is not in the King but in the People the King is the only Subject and but a common Voucher whose concurrence is unavoidably implied his Will his Understanding and his Power are all subject to the Body of the very Subject that in Parliament doth swear subjection to him and these pretended Rights being hid ever since the beginning of the Kingdom the whole generation of the Subject ever since hath by the injury of our Laws been most impiously mis-sworn in their Allegiance And whereas the trust is irrevocably committed to the King and his Heirs for ever how can it be conceived it should sleep during the sitting of a Parliament unless that jocular saying of King James were to be understood really That during the Sessions of a House of Commons there were five hundred Kings And if any such Power were in the Houses it was a strange oversight to leave it to the Kings disposal when to call the Body together and when to dissolve it as before I have touched whereby the King might solely determin where and how long he would be over-ruled and when King again whereas by the false suggestion of the Observer that it was fit the Houses should have a Superintendent Power in case of extraordinary danger and they only to be Judges of that danger he cunningly turns the Tables and makes the Houses to be Soveraigns as long as they pleased and when they were weary of reigning the Kingdom should be out of danger and then it should be the Kings turn to command again But to draw to a conclusion on this subject which cost so much Blood and Treasure There (d) Answ to Observ p. 72 73. neither is nor can be the same necessity of observing an old Law to which a King is obliged by his Charter and his Oath and of a new Law to which he hath not given his Royal Assent If Magna Charta extended to this it were Charta Maxima the greatest Charter that ever was granted To be be denied nothing is a Privilege indeed as good as Fortunatus his Purse or as that old Law which one found out for the Kings of Persia That he might do what he would The King 's Negative Voice Necessary The taking away the Kings Negative Voice may indeed secure us against Tyranny which never can come in upon us as long as the two Houses (e) Idem p. 136. Negatives ballance it but it leaves us open and stark naked to all those Popular evils and Epidemical diseases which flow from Popular Government as Tumults Seditions Civil Wars and the Ilias of Evils which attends them the Negative Voice being the Soveraignest remedy against such great Mischiefs One Wheedle I find more they used since the King was so tender of violating his Coronation Oath in giving Assent to their new Bills which were diametrically opposite to the old fundamental Laws made in defence of Episcopacy and the Kings Prerogative in the Militia c. they quit their Title of Parliament men That the King is not bound to consent where what is desired is more inconvenient to the People than himself and would be Casuists to resolve his Conscience telling him that where the People by Publick Authority will seek inconvenience to themselves and the King is not so much interested as themselves it was more inconvenience and injustice in the King to deny than to grant it Thus the Houses would have granted the King a Dispensation to have acted against the dictates of his Reason Conscience and the fundamental Laws And because he would not own their Commission for it they persecuted him to the Scaffold This was an unheard of Villany to be offered to so Pious and Religious a Prince that as Father of his People would not give them a Stone instead of Bread or a Scorpion instead of a Fish The Heathen was much honester who prayed Jupiter to give him good things though he never opened his Mouth for them and to withhold bad and prejudicial things though he petitioned never so earnestly for them This was a strange Principle that the King should be bound by Law to destroy his People or not preserve their Right unless he not only violate his own Conscience but their very Liberties Can a man imagine those People of whom Juvenal speaks evertere domos totas optantibus ipsis Dii faciles if they had understood their own Prayers would have accused the Gods for denying them As they thus sought to hush the Kings Conscience so that endeavoured to find a quaint salvo for their own more brawny ones For when it was urged that to deny the Kings Negative Voice was to dissolve the excellent constitution of Parliaments and was directly against the settlement of it upon the true basis of the Ballance and the mutual stipulation of the King
and his People as they loved to phrase it they answer by their Prolocutor that those who contract to their own ruin or esteem such Contracts before their own preservation are felonious to themselves and rebellious to Nature Inferring from thence That if the legal Constitution of Government The Writers for the Parliament affirm That where the Houses think the Constitution of the Government is not agreeable to the Liberty of the People they may alter it be not agreeable to the Liberties the House conceives needful for them they are obliged to contend to alter them which is no more nor less than if a Criminal being condemned to be hanged should be guilty of another Felony and Treason against Nature to yield to the Sentence but that he ought in his own defence to kill as many as he could that he might thereby save his life by escape Thus I hope I have made apparent the falshood of the Positions ranged in defence of that dismal Parliament How the Long Parliament voted all the Power into their own Hands who made use of them as Platforms upon which to plant the Artillery of their Acts and Ordinances For under the pretext of their obligation to preserve the Kingdom they voted to put it in a posture of defence and they voted from the King his Navies Officers Privy Counsellors and Revenues pretending the Navies were still reserved for the King in better hands than he would put them and for the other they would furnish him with better principled Ministers Whereas by the same Precedent the Subjects were bound to give up their Estates to their ordering as often as they pretended they could dispose of them more wisely For they might alledge the State which they reputed themselves had an interest paramount in them in case of publick extremity so that as they pretended the Head without the Body was the State before so now it was fit the Body should be without the Head whereas the Law hath provided against either exorbitances and if there was necessity we must fall into one we ought in reason to chuse the former because being better acquainted with that we could better digest it and it would be less burthensom to our Estates to satisfie one than five hundred nay ten thousand as it appeared when the greedy Commonwealths men with their Committees Armies c. was that flat Vermine in the Bowels which how true soever it is of the lumbricus latus was certainly true of this Monster That it was every where Head and Mouth It is to be well weighed When Parliaments beneficial when not that as Parliaments are in the highest degree beneficial when they keep within the bounds of duty and sobriety so when they will have their Ordinances to have the force of Laws and not govern themselves by known Laws they are the cause of many Distempers in a Kingdom and the Subjects condition is most unhappy in the Multitude of Physicians for extraordinary Remedies such as they always pretend to use are saith Sir Henry Wotton like hot Waters which may help at a pang but being too often used spoil the Stomach A Compleat Parliament is that (f) Answer to Observ p. 150. Panchreston or Soveraign Salve for all Sores but some would make the name of Parliament a Medusa's Head to transform reasonable men into Stones and subordinate Monarchy to the two Houses who must be denied nothing but with their good will would claim for them a paramount interest with the Soveraign whom they would advance only to the height and mighty Dignity of a Doge of Venice or a Roman Consul whilest they must be the Tribunes of the People their Supervisors So that we cannot be content to gather the blessed fruits right constituted Parliaments would afford us but we must rend away the top Branch yea stub up the Tree that we may scramble for the Fruit. Tacitus (g) 10 Annal. gives a Caution how a Prince may support his Authority that he do not vim Principatus resolvere cuncta ad Senatum revocando Kings not to grant away their Prerogatives at the Importunity of Parliaments It is fit a Prince should have the Glory of performing those things himself which are his Prerogatives and not to refer such things to Conventions of Parliament which properly belong not to their Cognizance Since therefore by the condescensions of our Wise and Gracious Princes there are several things in England the King cannot by Law do alone it is a most requisite Wisdom in Princes that as they observe the Laws in securing the Peoples Liberties and Privileges so by no Arbitrary Assumption of either or both Houses to let their Prerogatives be invaded for those are now no more than are rationally and politically necessary for orderly and established Government The Encroachments of the never to be forgotten long Parliament several of which I have in this and the foregoing Chapter hinted may be sufficient documents to Princes not to yield such a body too much Power for if the ballance once decline a little weight will sink it Therefore though Princes are not to enlarge their Prerogatives nova siti ad alia aliaque properare yet they ought to preserve those that remain For any Raveling once yielded will make the Royal Cittadel defenceless Testudo ubi collecta est in suum tegmen tuta est ad omnes ictus ubi exerit partes aliquas quodcunque nudavit obnoxium infirmum est The Tortoise as long as it keeps within its shell and coverture is safe but if it unbare any part it is obnoxious to danger Above all things a Prince should he careful never to part with the Prerogative of Summoning and Dissolving Parliaments For we cannot forget that the Houses of 1641. not content with a Bill for Triennial Parliaments got an Act for perpetuating themselves and that would not satisfie but they prepared a Bill for the certainty of future Parliaments whether the King had occasion for them or not so that if the King omitted the sending out of Writs and Summons the Chancellor might and for failure the Sheriff and I know not what inferiour Officers of which the Blessed King complains I cannot dismiss this Subject without taking notice of the Fundamental cause of Factious Members of Parliament The fundamental Cause of Factious Members in Parliament In England there is no such powerful Engine to make Faction and Sedition formidable and dangerous to Government as when the Majority of the Freeholders are wrought upon by the Arts I have in some measure hinted before and shall more largely in the Chapter of Faction to chuse Members of the House of Commons of their own Temper for such a Number being imbodied in that House give and receive mutual strength from one another For when such are met they do not take care to unite the minds of the Subjects to their Prince or one to another or imploy their time upon the great concerns of
the Command of their Armies This as well as other Reasons must needs demonstrate That if ever any two Houses of Parliament should by Arts of Insinuation as that of 1641. did That unless the King would grant they might not be dissolved without their Consents Kings never to yield what the Long Parliament were so earnest for they could not have time to settle his Throne and redress Grievances or by denying necessary Supplies force a King to grant them a Power of prolonging their own Sitting or meeting at stated times without his Writ or yielding to their Bills implicitly as the Black Parliament of 41. endeavoured and then to have the Power of nominating the Great Ministers of State and the Officers of the Militia an end would be soon put to Monarchy Therefore every one that loves their Country The Care to be had in Elections the continuance of that most excellent Frame of Government for the Subjects security as no other Country enjoys those who would avoid the sad Ravages of Civil War who would make their Prince Glorious their Country Renowned themselves and their Posterities Happy let them be careful to elect Loyal and Judicious Members neither tainted with Faction Ambition or Self-ends and if any such be elected let the Wise and Loyal when they meet in that Great Assembly watch over the Designs of such ill Members discover their Intriegues be careful not to be circumvented by their Artifices stick close to the Fundamentals of Government and then all things will be prosperous and they will have the honour of being stiled True Patriots of their Country Sir (n) 4. Instit p. 35. Edward Coke hath noted That Parliaments succeed not well in five Cases Several Cases where Parliaments succeed not well when the King is displeased with the Two Houses First when the King hath been in displeasure with his Lords or Commons therefore it was one of the Petitions of the Commons to Edw. 3. That he would require the Archbishop and all other of the Clergy to pray for his Estate for the Peace and good Government of the Land and for the continuance of the King 's Good-will towards the Commons to which the (o) Rot. Parl. 25 E. 3. num 15. 43 E. 3. num 1. 50 E. 3. num 2. King replied The same prayeth the King The like Petition he saith many times the Lords have made and further adds That the King in all his weighty affairs had used the advice of his Lords and Commons always provided that both Lords and Commons keep within the Circle of the Law and Custom of Parliament The second is when any of the great Lords are at variance among themselves as he instanceth in the third (p) Rot. Parl. 3 H. 6. num 18. When Variance among the Lords of H. 6. in the Controversy betwixt John Earl Marshal and Richard Earl of Warwick and 4 H. 6. betwixt the Duke of Gloucester and Bishop of Winchester whereby little was done in any Parliamentary Court and that little of no moment The third When no good Correspondence betwixt the Lords and Commons when there is no good Correspondence betwixt the Lords and Commons which happens when some People out of design to render the meeting of the two Houses ineffectual do project some matters whereby the Houses may clash about Privileges as was lately in Shirley's Case about the Mony-Bill from the House of Lords and many other Particulars might be instanced in therefore Sir Edward Coke saith That when it was demanded by the Lords and Commons what might be a principal Motive for them to have good success in Parliaments Sitis insuperabiles si fuertis inseparabiles it was answered They should be insuperable if inseparable Cum radix vertex Imperii in Obedientium consensu rata sunt The very root and top of Government consists in the consent of the Obedient and the Subjects Happiness is in that Harmony when it is betwixt the two Houses and among themselves but much more happy when it is likewise betwixt the Sovereign and the two Houses It is that which compleats their own and the Peoples Felicity But when the two Houses or one of them are for wresting the Sovereigns Prerogative from him as in Forty one then it is the most fatal and ill-boding sign of any other The fourth is When Disagreement in the House of Commons when there wants Unity in the House of Commons as we had not long since Experience when within those Walls from whence wholesome Counsels are expected and all things tending to the preservation of the King's Peace Crown and Dignity such Heats were amongst the Members that if one Sword that was half drawn had been wholly unsheathed it was thought a very bloody Battel had been fought The last he makes When no Preparation for the Parliament is when there is no preparation for the Parliament before it begin for which purpose the Summons of Parliament is forty Days or more before the Sitting to the end that Preparations might be had for the considering the arduous and urgent affairs of the Realm And Sir Edward saith it was an ancient custom in Parliament in the beginning thereof to appoint a select Committee to consider of the Bills in the two preceding last Parliaments that passed both Houses or either of them and such as had been preferred read or committed and to take out of them such as were most profitable for the Commonwealth To these may be added a most material one When Redress of Grievances are preferred to the Supply of the King that makes unfortunate Congresses of Parliaments viz. When the Members come up with strong Resolutions to provide Remedies for some Grievances either real or surmised and at the same time the Sovereign is in great Straights for supplies for the safety repute or necessary occasions of the Government for then as in most of the Parliaments of King Charles the First the Houses are for redress of Grievances before supply how pressing and urgent soever and do not credit the King that he will give them time to redress them after he is supplied and they from design rather than this diffidence will not suffer supply and grievances to go pari passu Hand in Hand as we may remember in those Parliaments wherein the popular Men made such Harangues that they would know whether they were Freemen or Slaves or had any thing to give before they entred upon the giving part The like we saw in King Charles the Second's Reign in some of his last Parliaments whereby all their Consultations were abortive and both the Kings had no other Expedient but Prorogation or Dissolution and disuse of Parliaments for some Years followed How much happier have we been in the last Session of the Parliament under our most Wise The happy Harmony in the last Session of Parliament June 1685. Magnanimous and Gracious King wherein no strife or contention was but who
should be forwardest to supply the necessities of the Crown to shew all Loyal Dutifulness to their Sovereign whereby a most dangerous Rebellion in both Kingdoms was the easilier crushed and which endears them to the King that there can be no danger but whatever good and wholsome Laws they shall propose for the general good of the Kingdom will find a chearful allowance by him How happy had our Forefathers been if King Charles the First had met with such considerate Parliaments who by a seasonable supply and compliance might have had without that vast effusion of Blood and Treasure all their Grievances redressed and the flourishing State of the Kingdom preserved and the Memories of a great many Noblemen and Gentlemen had been transmitted without stain to their remote Nephews But to draw towards a Conclusion of this Discourse Some not willing to hear of the Miscarriages of Parliaments think this Discourse needless Some that may not be willing to hear of the Miscarriages of some Parliaments wherein probably they were concerned may say what need is there now to bring again upon the Stage the rigorous Proceedings of the two Houses of Parliament or more properly of the leading and designing Men in the House of Commons in the Years 1640 and 1680. since we are now happily past these Rocks Quicksands and treacherous Shores All the World indeed must acknowledg we have a Royal wise Pilot Because we have a most wise King and good Parliament who knows full well to steer the Soveraignty of the Commonweal He hath weathered out high going Seas so that neither their over-whelming liquid Mountains nor the terrible Shot from the floating Castles have daunted him magnanimity unparallel'd Courage and an Experience beyond most Crowned Heads have raised him great Trophies of his Victorious toils He is served with sage Councils both private and National So that all must confess we have less cause to fear any more dangers of Hurricanes and Shipwracks But though we now enjoy Halcyon days Yet we are not secure but that in after-Ages evil Members of Parliament may be under a Sovereign enriched with Royal abilities to the heighth of our Wishes though he is blessed with a Parliament as Loyal as can be desired betwixt whom there is no other Strife but who shall out-pass the other in mutual Obligations Yet are we secure that no ill Exhalations may be gathered in after-Ages Can we expect always temperate Weather pleasing Sunshine and fruitful Showres No in small revolutions of Years we find Epidemical Diseases return excesses of Drought Rains or Frosts are often marked in our Annals even after promising Configurations of the Coelestial Bodies I write not an Almanack for a Year The Design of the Author in writing against the Exorbitances of some or Pamphlet for a time my Design is not Infandum renovare Dolorem out of any Pique but as much as in me lies to show from the by-past Irregularities and Exorbitances of some Men how Loyal good and Just Men may measure things by the Golden Standard of the Laws how mischievous Practices and Principles may be obviated how every one may see what the upshot of rebellious Principles will be how to detect and how to avoid the same kind of Rocks and Sands in after-Ages I know some Persons recovered from a valitudinary Condition Some love not to hear of their Distempers love not to hear of the Torments they have undergone nor of the Extravagances of their delirous State Yet this should not hinder but the Healthful and those that would avoid the Calenture should patiently endure to hear a Description of the Causes and Symptoms In this Discourse I have only culled out such Particulars The Author's Apology for himself as I find Judicious Authors have insisted upon against the unprecedented Proceedings of some late Houses of Commons which I think all Loyal Persons disapprove and I believe a great many as well as my self have heard many of the then sitting Members dislike when things were carried with an impetuous Torrent that it was more dangerous to speak against their proceedings or question the unlimited Power assumed by that House than it was to speak Seditious I had almost said Treasonable Words against the King Therefore I hope none of this present Honourable House of Commons who have so signalized their Loyalty in the last Session will take offence at what from such judicious Persons as I have met with I have delivered the Sentiments of My intention is no ways to lessen the Rights or necessary Privileges of that venerable Assembly which never can be unbeneficial to the King or People but when Discontent Faction and Sedition hath too spreadingly infected the Electors The continuance of that worst of Parliaments of 1641. What evil Principles taught during the Long Parliament in their disloyal Practices so long by the overgrowing of the Tares which were only suffered to thrive occasioned so much corrupt seed to be sown as in twenty years there was no wholesom grain left We saw too late how by some evil Seedsmen a fertile but dangerous Crop was shooting up apace It is not a little Labour nor small diligence will howe and weed out the Briars Thistles and destructive Shrubs and poysonous Weeds that shoot their spreading Roots so far But I hope the great Wisdom of this Loyal Parliament will find out ways and methods to prevent the danger of their thriving in a Soil worthy of better Plants than any will be set by Republican Hands CHAP. XXX Of the Kings most Honourable Privy-Council I Find by several Authors Four kinds of the King's Councils The First that there are reckoned Four Councils of the King First The Magnum Concilium consisting of the Prelates and Nobles in Parliament of which Bracton (a) Lib. 1. c. 2. may be consulted and what I have writ in the Chapter of Parliaments Secondly A Convention of the Peers of the Realm The Second Lords of Parliament yet not meeting as a Parliament which appears manifestly in the Record 25 Aug. 5 H. 7. upon an exchange made of some Lands betwixt the King and the Earl of Northumberland the King promiseth to deliver the Earl Lands to the value c. by (b) Per advice assent du Estates de son Realm de son Parliament parensi que Parliament soit devant le Feast de St. Lucy ou autrement per advice de son Grand Council autres Estates de son Realm que le Roy serra assemblez devant le dit Feast in case que le Parliament ne soit Coke 1. Instit lib. 2. c. 10. sect 164. the Advice of the Estates of his Realm of his Parliament if the Parliament be convened before the Feast of St. Lucy or otherwise by the Advice of his Great Council and other Estates of his Realm which the King shall Assemble before the said Feast in case the Parliament be not called which well
agreeth with the Act of Parliament 37 E. 3. c. 18. where it is said before the Chancellor Treasurer and Great Council Thirdly The Kings Privy Council which appears to be different from the last Great Council by many Records and particularly by that of (c) Rot. Claus 16 E. 2. m. 5. dorso 16 E. 2. where it is said Hen. de Bellomont Baron of the Kings Great and Private Council was sworn This Council is called Concilium Privatum secretum continuum Regis The Privy Council properly so called Lord President The First Member of this Council is the Lord President who was anciently called Principalis Consiliarius and sometimes Capitalis Consiliarius The first Lord President Sir Edward Coke (d) 4. Instit c. 2. fol. 55. 1. par Pat. num 22. John Bishop of Norwich is mentioned 7 Jo. by Matt. Paris fol. 205. mentions was the Earl of Lancaster 50 E. 3. 1 R. 2. then he reckons these in order the Duke of Bedford 1 H. 6. the Duke of Gloucester 10 H. 6. the Duke of York 11 and 22 H. 6. John Russel Bishop of Rochester and after of Lincoln is called President 13 E. 4. John Fisher Bishop of Rochester 12 H. 7. Charles Brandon Duke of Suffolk from the 25th to the 37th of H. 8. the Lord Pawlet 1 E. 6. the Duke of Northumberland 5 and 7 of E. 6. the Earl of Arundel 1 and 2 Ph. and M. in Q. Elizabeth's time we find none but in this Catalogue Mr. Prynne (e) Animadv p. 45. Pat. 13 E. 4. part 1. m. 3. hath truly noted That the Bishop of Rochester was not made President of the Kings Council but of the Prince's and was his Tutor as appears by the Patent it self there cited dated the 10th of Nov. This Office of Lord President was never granted but by Letters Patents under the Great Seal durante beneplacito In the Statute of 21 H. 8. c. 2. he is said to be attendant on the Kings most Royal Person the reason of which saith Sir Ed. Coke is That of latter times he hath used to report to the King the Passages and the State of the business at the Council Table The Lord Privy Seal is the next Principal Person that hath Precedence in the Kings Council Lord Privy-Seal concerning whose Office my Lord (f) 4. Instit c. 2. fol. 56. Coke hath discoursed at large to whom I must refer the Curious Reader as also to him for the Acts of Parliament Orders of the same and Acts of Council together with Mr. Prynne's (g) P. 45. Animadversions whereby the Privy-Council was to be regulated and concerning the Jurisdiction and Proceedings of the Kings Council Mr. Lambard's (h) P. 108. to 116. fol. 29. Archaion and Mr. Crompton's Jurisdiction of Courts may be consulted the several Bundels of Petitions to the King and his Council in the Tower of London and the Answers to them the Placita Parliamentaria coram Rege Concilio in the Tally Office of the Exchequer and in the Parchment Book of them in the Tower under King Edward the First printed by Mr. (i) In Placit Parl. Append. Those summoned to Parliaments as Assistants called the King's Council and in Parliament-time joyned with the King's Council in several Cases Ryley Of this Privy Council there seems to me to be two sorts one constantly attending the King and his Affairs the other in Parliament time only which had their particular Summons as I have before at full discoursed of and these two I find so obscurely distinguished that it is difficult in some places to understand which are meant but I think in time of Parliament these were joyned to the Kings Council for besides that they had a distinct Summons and in them as a specifical distinction the word caeteris was omitted in that part of the Summons which runs dictis die loco personalitor intersitis nobiscum ac cum caeteris Praelatis Magnatibus c. because they were not Parliamentary Barons there was also added in proceedings and judgments upon them these words coram ipso Domino Rege ejus concilio ad Parliamenta sua or ad Parliamentum suum or coram Concilio nostro in praesenti Parliamento For the particular Instances of which being they are very numerous Mr. Prynn's (k) A pag. 363. ad pag. 393. brief Register may be consulted wherein it seems to me upon the perusal of the several Records that these Assistants to the House of Lords were likewise joyned to the rest of the Kings standing Council in Parliament time so it is expressed in the Case of (l) Idem pag. 378. John Salâeyn and Margaret his Wife and Isabel her Sister Daughters and Heirs of Robert de Ross de Work thus Habito super praemissis diligenti tractatu per ipsum Dom. Regem totum Concilium and in the same it is thus also worded videtur Dom. Regi Concilio suo concordatum est consideratum per ipsum Dom. Regem Concilium suum So in others per Concilium Archiepiscoporum Episcoporum Comitum Baronum caeterorumque (m) Idem pag. 380. de Concilio suo existentium singulis de Concilio suo totius Concilii Domini Regis So in 21 E. 1. the Archbishop of York's Case videtur Domino Regi in pleno Parliamento praedicto Comitibus Baronibus Justiciariis similiter toti Concilio ipsius Dom. Regis and so it is said Magnates alios de Concilio ipsius Domini Regis rogavit This is further cleared by sundry (n) Idem pag. 383. The Court of Star-chamber was said to be coram Rege Concilio suo See Coke Inst 4. c. 5. Prefaces to and passages in our Printed Statutes as formerly I have noted So the Statute of Bigamy 4 Oct. 4 E. 1. saith In the presence of certain Reverend Fathers Bishops of England and others of the Kings Council the constitutions under written were recited after heard and published before the King and his Council for as much as all the Kings Council Justices and others did agree So the Statute of Quo Warranto 30 E. 1. Cum apud Westminster per nos Concilium nostrum provisum So 33 E. 1. it is agreed and ordained by the King and all his Council So 42 E. 3. c. 3. the Statute made on Petition of the Commons in Parliament begins (o) Plese a nostre Seigneur le Roy son bon Counsel pur droyt Government de son Peuple ordeigner Pleaseth it our Lord the King and his good Council for the better Government of his People to ordain By great store of Records it is apparent that in old times the Kings and their Councils gave Judgment in divers Cases of difficulty and other Common Cases concerning the Law of the Realm (p) See 11 H. 4. num 28. 63. Respectuatur per Dom. Principem Concilium Pryn. Animadv p. 39. 264 265 267 296.
ei nihil turpe cui nihil satis 3ly That he should be Avarus Rei Publicae covetous for the Kings Treasure and Commonwealth 4ly That he super omnia sit expertus that he be expert in what place the King shall imploy him for great Offices are never well managed by a Deputy When quick and when deliberate Counsels are best where the Officer himself is but a Cypher As to Counsels themselves Livy (p) In rebus asperis tenuis spei fortissima quaeque consilia tutissima sunt Lib. 22. excellently notes That in matters that are ground to an edge or drawn to a sharp point and where hope is only left in the bottom the boldest and quickest Counsels are safest yet it must be with great circumspection well considered when and upon what occasions such Counsels must be taken for the same (q) Consilia calida audacia prima specie laeta sunt tractatu dura eventu tristia Idem lib. 31. Author notes elsewhere That subtile and bold Counsels on the first view may be pleasing but are difficult in handling and in the event often Calamitous therefore rashness can never consist with Counsel duo adversissima rectae menti saith (a) Lib. 3. Male cuncta ministrat impetus Statius Thucydides Celeritas Ira Haste and Passion are of all things most opposite to Right Counsel therefore Curtius (b) Novanâis quam gerendis rebus aptiora ingenia illa ignca speaking of such saith Fiery and furious Spirits are more fit to innovate things and create Factions than to manage Affairs steddily (c) Praepropera consilia sunt raro prospera So hasty Counsels are rarely Prosperous because Resolution should never go before Deliberation nor Execution before Resolution When (d) Prinsquam incipias consuli o ubi consulueris mature fado opus est Sallust upon Debate and Deliberation it is by the Council-Table well resolved the change thereof upon some private information is neither safe nor honourable nor that after timely Resolution timely Execution be delay'd Violent (e) Coke Inst 4. p. 57. courses are like to hot Waters that may do good in an extremity but the use of them doth spoil the Stomach and it will require them stronger and stronger and by little and little they will lessen their own operation To leave this great Theme as too illustrious and sublime a Subject for one to treat of that hath lived in the Shade I shall now proceed to make some other remarks why our Laws give our Kings the sole power of chusing to themselves a Privy-Council and how the designers of 41. would have wrested that Power from the King Besides (f) Review of Observations p. 10. The King's Prerogative to chuse his Privy-Council what is common to all men to have a free liberty to whom they will impart their private Affairs and desire Counsel upon them our Laws being built upon firm foundations of reason considering that in the power of making of Laws the power of two numerous bodies were opposed against the Person of the single Soveraign it foresaw and found that by the Soveraigns consenting to Laws for the ease and benefit of the Subject things might pass to the prejudice and diminution of the Soveraignty If his single Person surcharged with the care of the manifold Affairs of the Kingdom should be left all alone to advise and dispute his right against all the Wisdom and Solicitation of the Representative Body of the Subject See Prynne's Brief Register sect 3. from p. 341. to the end concerning the King's Council in Parliament and out of it Therefore to prevent that it ordered That the King should at his discretion swear to himself a Body of Council sometimes in our Laws called his Grand Council to advise him in matters of State and concernments of his Soveraign Right and safety and a Body of Council at Law to advise him in matters of Justice that he might neither do or suffer contrary to the Rule of Laws especially sitting the two Houses when the wrong might be perpetual and seeing the Government must be continually upon its Guard and Watch without intermission molding and forming all things for its safety and prosperity and consequently of the Peoples this Council must be constantly attending upon the Kings pleasure and daily and hourly considering the best ways and methods of promoting the Kings and Commonweals advantage As to the (g) Pulton 37 56. 72. first particular we find it frequently in several Statutes expressed That the King by himself and by his Council at his Parliament made and ordained The necessity of a Privy-Council That this was not the great Council of Parliament appears by that of Edward the First (b) Idem p. 80. These are the Establishments of the King by his council and by the Assent of the Archbishops Bishops Abbats Priors Earls Barons and the whole Commonalty of the Land thither summoned and Edward the Second saith he caused the Articuli Cleri to be rehearsed before his Council and Answer given c. and much more may be observed in the Acts of the great Councils not fit here to be repeated From hence it is that the Law defines The King can do no wrong Privy-Counsellors responsible for if any evil be committed in matter of State the Privy-Council and if in matters of Law the Justices and Judges must answer for it As to the second particular the Parliament of 1641. cast the odium of most of the management of Affairs of State The Votes of the Long Parliament to traduce the King under the pretence of using Evil Counsellors that were ungrateful to them upon the Kings evil Counsellors as they called them which was a great artifice of the designers of that Rebellion for thereby being then not hardned enough to caluminate the King openly they would make the World believe they paid a just deference to his Majesty yet slily wounded his Reputation through his Counsellors sides leaving the application to the People Tacitly insinuating that the King being mis-led by such Councils was not so Just or Wise as to be wished and when afterwards they had got Power they always made it one of their propositions That the two Houses should have the nominating That the two Houses should have the nominating of Privy-Counsellors So in Henry the Third's time we find Mountfort's Model of Twenty four to redress the Kingdom to chuse Counsellors c. or approving and removing the Privy-Council or great Officers of State pretending they would set such just and righteous Persons in those places as would execute them for the publick good only and upon the same score though on another pretence they were importunate that the Judges should hold their places tam diu quam se bene gesserint rather than be removeable at the Kings pleasure Thus by vote without legal proof of Crimes they blackned as many of the Kings Privy-Council
Oyer and Terminer Gaol-Delivery and Justices of Peace are determined by the Death of the Predecessor that made them Therefore the Statute of 25 Ed. 3. declares it to be Treason if any man kill the Chancellor The Judges represent the King's Person Treasurer or the Kings Justices of the one Bench or the other Justices in Eyre or Assise or any other Justices assigned to hear and determine being in their places doing their Offices The (f) Id. 3. Instit p. 18 140. reason whereof is assigned because all these represent the King 's Royal Person in his own Courts by his own Commission under the Great Seal in the very Execution of the Kings Royal Office viz. Administration of publick Justice to his People As therefore the King at his Coronation (g) Facies fieri in omnibus Justiciis tuis aequam rectam Justitiam discretionem in misericordia veritate secundum vires tuas taketh an Oath to make to be done in all his Judgments equal and right Justice and Discretion in Mercy and Truth according to his Power So he lays the Burthen thereof upon the Judges according to that of E. 3. for the Pleasure of God and quietness of our Subjects as to save our Conscience and keep our Oath by the assent of our great Men and other of our Council we have commanded our Justices that they shall from henceforth do even Law and Execution of right to all our Subjects Rich and Poor without having regard to any Person c. Therefore before this in (h) Nulli vendemus nulli negabimus aut differemus Justitiam vel Rectum c. 29. Magna Charta we find that the King will sell deny or defer Justice to none Yet from hence it doth not follow that if in the opinion of some the King doth not do Justice that therefore any Subject should conclude as the Master of the Hospitallers of Jerusalem in England at Clerkenwell Anno 1252. 37 H. 3. did The Story is thus told by (i) Hist p. 826 827. Edit prioris Matthew Paris The Master waiting a time when he might discourse with the King he complained of some Injuries done him The King loseth not his Authority tho' he do not Justice and shewed the King some Charters of Protection of himself and his Ancestors The King answered with an Oath and in Wrath You Prelates and Religious especially Templars and Hospitallers have so many Liberties and Charters that they make you proud c. Therefore they ought prudently to be revoked which imprudently have been granted to you for even the Pope oftentimes revokes his Grants with a non obstante and the King told him so he would do To all which the (k) Cui Magister Hospitalis respondit alacâiter vultu elevato Quid est quod diciâ Domine Rex Absit ut in ore tuo recitetur hoc verbum illepidum absurdum Quamdia Justitiam observas Rex esse poteris quam cito bane infregeris Rex esse desines Master saith Matt. Paris answered chearfully and with a lifted up Countenance What is this you say my Lord the King far be it from you to speak so absurd a thing As long as you observe Justice you may be a King and as soon as ever you break this you cease to be a King Thus he would make Dominion founded in Justice as others in Grace But I need not add many Authorities upon this Head for by the universal Suffrage of the profound Lawyers the Kings of England solely nominate create and (l) Dyer fol. 56. appoint all the Judges of the great Courts at Westminister and may remove them at their Pleasure and alone make (m) Davis 45. and appoint Justices of Oyer and Terminer of Gaol-delivery Justices of the Peace Sheriffs and the like Officers and (n) Coke 4. Inst n. 4. 14. 114. 117. remove them when they see Cause and the (o) Bulstrod 3. 296. 1 H. 7. c. 25. Prerogative of making Judges cannot be given or claimed by a Subject The King hath also Power to name create make (p) Sheppard's Grand Abridgment part 3. p. 53. and remove the great Officers Ecclesiastical and Civil by Sea and Land as Archbishops Bishops by way I suppose of Conge deslier The King 's placing and displacing all Great Officers and Translation Lord Chancellor or Keeper Lord Treasurer Lord President Lord Privy-Seal Lord High Steward Lord Admiral Lord High Constable Earl Marshal Lord Chamberlain Privy Counsellors the Marshal or Steward of the Kings House and the rest of the Officers of his Houshold Master of the Horse Officers of the Mint of the Castles Port-Towns and Shipping Lord Lieutenants and many more too tedious to be named So that either mediately or immediately all Officers are by the Kings appointment which is not only a manifest badge but a necessary appurtenance of the Soveraignty SECT 2 The Court of High-Steward THE Kings Courts have been various The Court of the High-Steward as that of the Privy-Council called the Council-Board of which I have spoke before The Court of the High-Steward of England intituled Placita Coronae coram Seneschallo Angliae disused since the Reign of Henry the Fourth and now a Lord High-Steward is only appointed pro hac vice with limitations for the Tryals of some Peers of the Kingdom upon Inditement His Power anciently was (q) Coke 4 Inst c. 4. Supervidere regulare sub Rege immediate post Regem totum Regnum Angliae omnes Ministros Legum infra idem Regnum temporibus Pacis Guerrarum The next Court which is now totally suppressed was the Honourable Court of Star-Chamber The Star-chamber Court of ancient time stiled Coram Rege Concilio suo coram Rege Concilio suo in Camera stellata of which I shall have occasion to write something in the Chapter below SECT 3 The Court of King's-Bench AS to the great and standing Courts The King's-Bench the first of them that is mentioned in Ancient Writers is that of the Kings Bench coram Rege This (r) Rex illarum Curiarum habet unam propriam sicut Aulam Regiam Justiciarios Capitales qui proprias Causas Regias terminant Bracton saith was the Kings proper Court called the Kings Hall and had for Judges in it Chief-Justices which determined the Kings proper Causes c. The same (s) Justiciariorum quidam sunt Capitales generales perpâtui majores a latere Regis residâates qui emnium aliorum corrigere tenentur injurias errores Lib. 3. c. 7. fol. 108 b. Author speaking of the Justices of this Court saith That some of them were Capital General perpetual and the greater sitting by the Kings side which were to correct the injuries and errors of all others Fleta in describing this Court saith My Lord Coke gives this account That the King in this Court hath his Justiciaries as well Knights as Clergy-men as
and Laity met it seemed most profitable that love and mutual benevolence through his whole Dominion should be cherished for it was (q) Et us eallum tha unribtlican menigfealdan gefrohâe the betwux us svlsum syndon irksom to them all that there should be unjust fighting among Christians and begins the Seventh Law thus It is the part (r) Witan seylon faeb the settan of the prudent to extinguish Capital Enmities For the better preservation of Peace King Aethelred appointed that every (s) That aele sreoman getreowne borb bebbe Freeman have sureties that if he be called in question for any Crime these Sureties may do justice to each one that is satisfie for the offender the Title of which is Be Borgum In the Law the duty of these Sureties is described at large and it appears by other Laws in after times that Nine Men were bound for every Tenth Man Whoever desires further satisfaction in this particular may consult the 19th Law of Canutus wherein he appoints (t) Et we willath that aele freoman beo on hundrede on Teothung gebrobt viz. the Tything security that every Free-man enter himself into an Hundred or into the Collegueship of the Ten. In other matters of preserving Peace they may consult the Second the Eighth and Twelfth Laws of the same Canutus the which Eighth Law is thus expressed Peace is so to be considered as that nothing can be more desirable that it to the Inhabitants and nothing more contrarily is offensive as Thieves which in the Saxon is thus Swa ymbe frythesbote Swathan bundan si selost tham Theoffon sy lathost swa ymb Heosbote Having met with a passage in the Laws of King (u) LL. Aethelstani fol. 53. Ethelstan which both illustrates the Care of the King to have the Peace preserved and likewise shews the readiness according to their duty of the Subjects to assist the King with their Persons and Estates I thought it not amiss to insert it as a Close to this Chapter and an Introduction to the next The words as to be rendred from the Saxon and the Latin Version of Mr. Lambard run thus I Aethelstan King do to all clearly signifie Cyth that I have diligently enquired the Cause wherefore our (w) Vre sryth is wyrs gehealden thonâe we lyst Peace was not kept as I desired and at Grantelee it was appointed and I received this Answer from (a) Et mine witan seigâh my Wise Men that it happened by my (b) That le hit to long forboren baebbe forbearance i.e. too much lenity in not punishing now of late when I staid at Exceter in the (c) Middum wintre Feast of the Nativity of our Lord attended by my Wise Men I found (d) ât tha ealle syn ãâã mid bire sylfum midyfre which I signifying Heritage and though mis-placed in Lambard is by him translated Children mid wife mideallum thingum by Lâmbard translated properly all their Fortunes to faerenne thider thider le thonne will them â most ready themselves with their Heirs with their Wives and all their Estates to go thither whither I will and will purge out or expel those Outlaws i. e. breakers of the Peace that are against this in such order or with such wisdom and consideration that they never after come on the Earth again i.e. that they be banished The Saxon of the latter part is thus Bretan hi offer this geswican willan on tha gerade the heo naefre aest on sorda ne cumen which Mr. Lambard translates thus Vt isti tandem pacis violatores Regno hand unquam redituri pellerentur Then it further is added And if these Men (e) And gif hi mon afre afâ on thaem eorda gemit that hi syn swa seildig swa se the at hebbendra banda gefougen syn hereafter in these Lands be met with or found that they shall be so guilty as they are that are found hand having that is Stealing which Mr. Lambard renders Ac si eorum aliquis postea in Regno deprehenderetur pariter ac qui est in furto manifeste deprehensus plecteretur From all which we may observe That the Counsel of the Witan Nobles and Wise Men was at one of the times the King kept them in course viz. at Christmas called here Mid-winter Secondly That the King asks the Members of the Council their advice Thirdly They tell him that it happened that his Peace was not kept because of his forbearance in not putting the Laws in Execution that were established at Grantelee From whence we may observe that the King was to put these in Execution and that his Remisness Clemency or Indulgence increased the numbers of the breakers of the Peace Fourthly That for the suppressing of these breakers of the Peace the Nobles who met in Council at Exceter promiâe they will be in readiness provided themselves and their whoâe Families and all things they have to faerenne that is from faer to go forth in Expedition Armed as the King will appoint the signification of which word I have found in several Letters about the Wars betwixt England and Scotland in Henry the Eighth's and Edward the Sixth's time where when any considerable party of the Scots made an inrode into England to seize upon Men burn Towns or Houses or carry away Cattel it was called running a Forray Fifthly We may note that this shews that the Militia of the Subjects was at the Kings disposal to go whither then the King will which saves me a labour in the following Chapter to deduce the Kings Power over the Militia higher though I doubt not but a little looking into the Saxon Laws would afford me more Precedents as the Fifty ninth Law of William the (f) Statuimus etiam sirmiter praecipimus ut omnes liberi homines totius Regni noslri praedicli sint fratres conjurati ad Monarchiam nostram ad Regnum nostrum pro viribus suis facultatibus contra inimicos pro posse suo defendendum viriliter servandum Facem Dignitatem Coronae noslrae integram observandam ad Judicium rectum Justiciam constanter omnibus modis pro posse suo sine dolo sine dilatiene faciendam LL. Gul. 1. 59. fol. 171. Edit Wheeloch Conqueror doth expresly as before I have touched on another occasion but here think fit to recite it at length viz. The King appoints and firmly commands all the Free-men of his Kingdom that they be sworn Brothers to their Power to defend and manfully to keep his Monarchy and his Kingdom according to their might and Estates against Enemies and to observe or maintain the Peace and Dignity of his Crown entire and without delay without deceit to do right Judgment and Justice constantly all manner of ways according to their Power So that here we find these liberi Homines Conservators of the Peace also which I suppose was incumbent on them as well as
the Justices in Queen Elizabeth's time the Chancellor tells them that the Queen had levied Forces and Reason willeth and the obedience of good Subjects requireth that all things that the Prince commandeth for defence of the State should by the Subjects diligently and obediently be performed for dutys sake either not examining the cause or presuming the best cause but at that time she was pleased to signifie the cause of her doings As to the King of England's making War and Peace abroad it hath always been owned as the King 's sole Prerogative and when some Parliaments have addressed to our Kings to make War or Peace contrary to what the Soveraign judged convenient they have been advertised of their Duties yet when War is to be made in remote Countries which cannot be performed without great Expence much time and the exhausting of the Kingdoms Forces That the People may more chearfully serve their Prince and Country and that the Exchequer may not be too much diminished whereby the usual Charges of the Government may not be substracted Kings have upon good Reason proposed the Matter to their Parliaments whereby necessary Aids might be sufficiently supplied The Laws now in force concerning the Militia are That the (k) 13 Car. 2. c. 6. 14 Car. 2. c. 3. King hath the Prerogative alone to dispose of the Militia of the Nation to make War and Peace Leagues and Truces to grant Safe-Conduct without the Parliament and he may issue out Commissions of Lieutenancy impowering them to form into Regiments to lead them and employ them as well within their own as other Countries as the King shall direct to suppress Insurrections Rebellions and Invasions He hath the Command of all the Forts and places of Strength and alone to have the keeping and Command of the Magazins of Arms he alone to give Letters of Mark and Reprizal in times of War to give Safe-Conduct for Merchants to make a stop of Trades as he sees cause In the time of danger and for defence of the (l) Coke 7. 25. Realm may command all his Subjects to Arm and they are to assist him and for this the Commission of Array may be made use of and all the Courts of Officers of War in a time of War are his Prerogative and the Subjects are to serve the King within the Kingdom against Rebels and Traytors (m) Jenkins Cent. 6. Case 14.26.89 without Pay or Wages and this as it seems in any part of the Nation especially if the King go himself The Subject except in an extraordinary (n) Coke 7.8 Case is not to be forced out of the Realm unless it be to go with the Kings Person nor in any case unless upon the sudden Invasion or Assault of an Enemy to serve the King without wages and the King in time of War may take any mans (o) I e. 3. Stat. 1. 2 Eliz. c. 2. House to build a Fort or make a Bulwark upon any mans Land But the King may not rate the Nation to pay any money towards any War of his It is true in time of Peace the King cannot quarter his Military Forces without the consent of the respective Subjects nor raise money without Act of Parliament for the maintenance of any Army so that the Subject while they keep dutiful are in no danger of oppression by such a Power yet without a competent Standing Force and Guard Some Standing Forces necessary at the Kings absolute pleasure what Livy saith of the Senate (p) Timor inde Patres incessit ac si dimissus exercitus foret rursus câtus occultaeque conjurationes fierent Lib. 6. The Long Parliaments Claim of the Militia would be most true of all Soveraigns That if the Forces were dismissed unlawful Assemblies and covert Conspiracies would be again set on foot The longest lived mischievous Parliament that any English History can record knowing that they could not effect their designs of weakning the King without the Power of the Militia though they had a numerous Party prepared to espouse their Interest and as ready for Rebellion as they could desire yet that they might have some colour for justifying their proceedings pretended necessity of putting the Kingdom into a posture of defence against foreign Invasions which by subtile Plots they possessed the people they had Intelligence of and for fear of any violence to be offered to themselves or that the King seduced by evil Counsellors should set up Arbitrary Power so having obtained that Fatal Act of not being to be dissolved without their own consent issued out their Commissions for Levying Trayning and Exercising Forces in all Counties where they had power by no Law or colour of Law but that of pretended imminent danger wherein the King refused to grant Commissions to such as they could confide in for their aforesaid purposes All which was but colour and shew to wrest the Power out of the Kings hands To obviate such like mischievous practices for the future upon his Majestys happy Restauration it was enacted and declared The Claims of any Right of the Two Houses to the Militia totally vacated That the sole supreme Government Command and disposition of the Militia and all Forces by Sea and Land and of all places of strength c. is and by the Law of England ever was the undoubted right of his Majesty and his Royal Predecessors Kings and Queens of England and that both or either of the Houses of Parliament cannot nor ought to pretend to the same nor can or lawfully may raise or levy War offensive or defensive against his Majesty his Heirs and lawful Successors So that now that great Controversy which wasso violently disputed to the loss of so much English Blood and Treasure is I hope eternally determined never again to be revived without an horrid prosperous Rebellion and this Prerogative of the Crown being thus guarded by Law will never more be attacked while the Royal line continues which is to be hoped and wished will without interruption be prolonged while the British Soil exists CHAP. XXXVI Concerning raising of Money upon the Subject and the obligation of Subjects to supply the Soveraign AS to the raising of Money for the support of Government I have discoursed something in the Title of Property and shall here only treat of the necessity in all Government That the Soveraign be plentifully supplyed with a Revenue suitable to the charge Although Darius the Persian be reckoned by Herodotus one of the first that exacted Tribute The necessity of Tributes and Aids yet it cannot be conceived but that ever since there was a Prince who commanded large Countrys and had potent Neighbours Tribute Aid and such like provision was exacted of the people for the defraying the necessary charges of it So Tacitus (a) Nec enim quies gentium sine armis nec arma sine stipendiis nec stipendia sine tributis 4. Hist tells us That we may be
Act for that purpose yet that prevented not the Inundation of blood and we found those men that moved Heaven and Earth with their clamours against the King as governing arbitrarily when they got the Power made it their dayly practice to lay what unprecedented illegal Taxes they pleased on their fellow Subjects to the value as some compute of Forty Eight Millions Therefore all Judicious persons lovers of their King The Advantages to Prince and People when the Crown is liberally provided for Country and Posterity finding the sad effects those disputes brought to the Blessed King and the whole Kingdom will think it a necessary prudence in a Prince to have always such a provision of Money ready as will enable him in all difficulties that may occur in the Administration of the Government without being obliged to part with any of his Royal Prerogatives when any discontented or designing Factious Members shall be able to take advantage of his Wants whereby to drive their barter with the Crown for thereby he shall defeat their ends On the other side it will be the most prudent and dutiful course both for their own security and the Princes honour for Parliaments upon all just and honourable Wars or occasions of assisting Allies preparing Fleets in readiness upon necessary defence to assist the Prince liberally and repay out of the Publick what for publick Service he hath expended out of his own Revenue rather than he should be in disesteem with his Neighbours and Allies whereby the honour of the Prince and consequently of his Subjects should be Eclipsed or he be necessitated to take any unusual course for raising Money or be compelled to make any inglorious Peace for we can never forget how the want of supplies to King Charles the First brought not only Ship-money and Knight-hoodmony Monopolies and the long disuse of Parliaments but at last that most calamitous War upon the whole Nation We cannot forget how zealous an House of Commons was of late to prevent any Arbitrariness as it was insinuated Decemb. 17.1680 The Care of some Parliaments to keep the King poor in the late King so that they voted a Bill to be brought in against illegal Exaction of Money upon the People under the Penalty of Treason not foreseeing that the Charters of the City of London and many other Corporations were forfeitable upon that account which if it had been made Treason the King had got a good Revenue against the intentions of those who in all appearance voted for a contrary end which further appeared in their Vote Jan. the 7th following (h) Address part 3. That whosoever should lend or cause to be lent by way of advance any Money upon the branches of the Kings Revenue arising by Customs Excise or Hearth-money the three principal branches should be judged to hinder the sitting of Parliament and be responsible for the same in Parliament So that they would give nothing themselves but as much as in them lay terrified others from lending or advancing any Money to him which was not according to their Writ to advise but by duress and force to compel the King to submit to their Judgments and instead of giving him Assistance to support his Allies and enable him to preserve Tangier they tended to the disenabling him from contributing to either by his own Revenue and Credit not only exposing him to the dangers that might happen either at home or abroad but endeavouring to deprive him of the Possibility of supporting the Government it self and reduce him to a more helpless Condition than the meanest of his Subjects as the King sadly and justly complained and in that Vote the Subjects Liberty and Property was invaded in that he could not dispose of his Money to his own Profit and the Benefit of the Government if either Insurrection or Rebellion happened in the interval of Parliament or a foreign Force on a sudden should attacque us yet these Gentlemen would be counted Loyal and Dutiful Subjects It is not to be denyed but that if a Prince's standing Revenue were so great that by it he might not only support the ordinary expences of the Government but lay by a summ sufficient to defray all extraordinary incident Charges either occasioned by intestine Rebellions or foreign Invasions that a King should not have occasion to have so often recourse to Parliaments for Aids Yet when we confider that there would be many other occasions of frequent convening that great Council for making wholesom Laws which is one great Portion of their Business and that the Subjects never can be happy under a poor Prince who thereby should be brought into contempt and how much greater mischiefs accrue to the Subjects by rendring their Prince impotent and unable to preserve them from factious disturbers of their Peace and Repose and the preserving their Properties as well as the defending them from the designs of foreign Princes who would injure our Merchants lock us in our Island and force us to sell our own native Commodities and receive theirs at what Rates they pleased if our Soveraign were not able to keep a sufficient Fleet and infinite other Mischiefs which would accompany a starved Exchequer we should too late find that the Expence of many Millions would not again restore us to that condition of Prosperity and Renown that one timely bestowed on our Prince would preserve us in It is much less Charge to keep in good Repair a well-built Fort Castle or Man of War than to build a new one especially if upon the demolishing of the old we were to fight for the Ground and Materials whereupon and wherewith we should build the new It is a singular Security to the English Subject that no Money can be levied upon him but by Act of Parliament to which in his Representatives he gives his Consent and the House of Commons is generally careful that they understand a great necessity ere they pass any Money-bill yet we have known in our Age some that have stood upon such terms with their Sovereign that either he hath chosen rather to want Supplies than have them upon such hard Terms or their Principals have suffered a thousand times more by such denials than they had done if they had been granted So was Constantinople lost to the Turks for want of furnishing the Emperor with the hundredth part of that which the victorious Enemy plundered the Citizens of and so the Count Palatine elected King of Bohemia lost that Kingdom and all his Hereditary Seigniories by unfurnishing his Soldiers with present Pay when he had it by him And how many suffer by the want of a liberal and proportionable Supply to pay off the Debts of the Exchequer is too sadly felt by many and if the Parliament of 1639. had furnished King Charles the First with twelve Subsidies as it appears by the sequel the Expence of four times as many Millions besides the infinite quantity of Christian Blood shed in the
ensuing War had been prevented in all humane probability Therefore it is to be hoped that both Parliaments will be careful to supply the wants of the Crown and Princes will for the future be as careful so to imploy the Monies given that they may encourage their Subjects as often as the urgency of Affairs may require it to give freely what may be useful and sufficient for their Kings urgent occasions (i) Nec juvântam armis civilibus aut domesticis discordiis imbutam nulla odia nullas injuri is nec cupidinis ultionem afferre 13. Annal. c. 1. It is noted by Tacitus that Nero coming to the Empire told the Senate that he being not brought up in Civil Wars or domestical discords would bring with him neither hatred nor grudge nor desire of Revenge and promised them many good things which were very acceptable (k) An cuncta vectigalia omitti juberet Idque pulcherrimum donum generl mortalium daret Sed impetum ejus multum prius laudata animi magnitudine attenuere Senatores dissolutionem Imperii docendo si fructus quibus Respublica sustineretur diminuerentur Lib. 13. c. 12. to the Senate and People but doubting with himself whether it were best to command that no more Subsidies or Tributes should be levied but he should bestow so fair a Donative on the World though this commended the Bounteousness of his Mind yet the Lords of the Senate stayed him from such a Resolution telling him It would be the Dissolution of the Empire if the Revenues by which it was sustained should be diminished These and such Considerations that ever to be Renowned House of Commons convened 23 May 1685. have had and with an unaccustomed speed supplied the King plentifully which was a most effectual means to stifle the Rebellion of the late Duke of Monmouth and the Earl of Argile and such chearful Aids will render his Majesty able to pursue his most Princely Design not only of making the English Name more considered and respected abroad The King's Speech 30 May 1685. but of carrying the Reputation of it yet higher in the World than it has been in the time of many of his Royal Ancestors Which induced the most wise King to tell them That the readiness and chearfulness that attended the dispatch of it was as acceptable to him as the Bill it self and that he would not call upon them for Supplies but when they should be of publick use and advantage and that he would manage what they gave with good Husbandry and take care to employ them to the uses for which he asked them So long as such a considerately liberal Mind continueth in the two Houses and the Money is lodged in the Exchequer of such a Prince we may presage a most happy time and neither fear intestine Rebellions nor foreign Enemies and besides the unspeakable Benefits to our selves the advantage must redound to his Majesties Allies and the general Repose of Christendom may depend much upon it there being little doubt to be made but if our late Soverereign of Blessed Memory had been seasonably and effectually supplied the Lilies of France had not been so rankly planted and secured in Flanders nor been watered with so much Christian Blood nor probably had we at home been in so imminent a danger of a Civil War as we were by the subtile Devices of those who knew that the Royal Eagle could make no extraordinary flight when his Golden Pinions were shortned CHAP. XXXVII Of the Nobility HAving hitherto treated of the Excellency of Government and particularly of that of England and the just and beneficial Soveraignty of the Prince under several Heads Method requires that I speak something of the Subjects who they are and their Duties and lastly of the causes of Disturbance or Dissolution of Government by Faction Sedition Conspiracy and Rebellion of which in order and first of the Nobility as those who justly make the greatest Figure in the Government next to the Royal Lineage The (a) ãâã ãâã ãâã ãâã ãâã Polit. l 4. c. 4. Philosopher makes four kinds of Nobility First such as have the Possession of great Riches Several kinds of Nobility and are abbe to bear a great Port. Secondly such as have been so from great Antiquity Thirdly those that by Vertue and great Atchievements have acquired Honour and Renown Lastly such as in Learning are Eminent Under these Heads the Nobility may yet be ranked if we take it in a large Sence as the fit Subject upon which the Sovereign may impress that Character But my design is to speak of the second and third Order only How the Word Nobiles hath been used in the Latin and Greek Empire when it was the addition to Caesar in the Branches of the Emperors Families and how in later times I shall not trouble the Reader with but refer the curious to the most Learned Selden and to what I shall note in the Chapter of the Gentry Great Vertues have sublimed their Bloods A Character of the Nobility and separated them from the dregs of the Crowds Others are Vessels of Common Clay they are all China and Porcellane others of Lead Iron Brass or Silver they of pure Gold or Diamonds of the old Rock They are Stars of the first Magnitude in the Firmament of Government yea the Firmament it self betwixt the upper and the nether Waters betwixt the pure Aether of Celestial Intelligences the Sovereign and Princes of the Blood and the terrestrial Waters of the Commons The Blessed Medium the double Trench to defend the Crown and the People That there should be such illustrious Persons is absolutely necessary for that in a Multitude there must be some Necssity of a Nobility who designing to live vertuously and having Souls of a richer Composition by their own proper uncommon Atchievements and the transcendency of their Vertues shall lay the Foundation of that Nobility which afterwards enriched and augmented by the noble Actions of their Successors will make their Families splendid and Illustrious So that Soveraigns the Fountains and Disposers of all Honours justly reward them with the Ensigns of Nobility The present Nobility or their noble Ancestors by fidelity and their great Capacities to serve the Crown and Commonweal have been gilded with those Rayes and have Characters impressed upon them undefaceable by any thing but Treason which taints their Blood or Degeneracy which smuts their Esteem They are the Buttresses of the Throne the Gold and Silver work of the Regalia (b) St. Alban's Essays c. 14. It is a Reverend thing saith the ingenious Chancellor to see an ancient Castle or Building not in Decay Of Ancient Nobility or a fair Timber Tree firm and sound how much more to behold a noble ancient Family which hath stood against the waves and weather of Time New Nobility is but the Act of Power the ancient the Act of Time Those who are first raised to Nobility are commonly more
will have more honourable and contented Thoughts and own not only the Truth but yield to the necessity of that of (g) Fato quodam aut sorte nascendi ut caetera ita Principum inclination in hos ossensio in illos Annal. lib 4. Tacitus That as our Birth s are ascribed to Fate or Chance so the Inclinations of Princes to some and their dislike to others as he instanceth in Lepidus under Tiberius We see in the great Oeconomy of the World which we must believe is disposed by the Universal Monarch some noble Families in every Age are Extinct and other new ones by their Vertues and great Accomplishments are raised and the Cadets of others like some Rivers are hid for some space under Ground till when they appear again they are know by their refined Parts to be of noble Abstract Not to repine at the Prince's Favours bestowed on others The Sun is the same most luminous Body though some Maculae are observed in it by curious Telescopes and if Princes Beams shine not always with the same Serenity upon the district of some Families that it hath done it is no more than the Sun in the great Vortex doth and is no more to be repined at Therefore it becomes those noble Souls to be content with their large allotments and shake off all those Vipers that would sting them with Envy and Discontent It is well worth such Noblemens Consideration how their Interests are interwoven with that of the Crown and if any unhappily have loosened the twine or frozen the Zeal they have for its support let them call to Mind the Vertue and Bravery of their Ancestors and observe what Gemms or Gold-work they were of it and strive to fasten themselves there again and out of the Embers kindle again that Loyalty they have derived ex traduce from their generous Ancestors so that (a) Lucan 1.2 v. 557. Fervidus hac iterum circa praecordia Sanguis Inacleat And as the Crown hath bestowed Honour and Wealth upon their noble Families so let them never be wanting with their utmost Industry to support it in all its splendid Prerogatives and of all the Infamy of Mortals let not ingratitude be laid to their Charge How the Nobility may honourably acquaint their Prince with Grievances The Nobility are Conciliarii nati and as their Birth and places give them easy access to the Princes Privy-Chamber and Cabinet though they be not of his secret Council so they have opportunities to present the State of Affairs and ill managery or grievances of the People when they conceive them concealed from their Prince both better and more effectually than others of a lower Rank But then it should be done like Persons of Honour with all Respect and Duty to their Prince and the ostentation of this sort of Charity should not lessen the usefulness of it much less should they blow a Trumpet when they perform it either to aggrandize the Enterprize or to raise discontent at the denial In every Kings Reign it hath been a flourishing time and happy when the Nobility studied with a refined laudable Contention to aemulate one anothers Vertue striving to out-do one another in the Service of their King and Country uniting in that glorious Testudo to defend their Princes Prerogative and the Laws that adjust their own and the Peoples Priviledges It is never to be forgot how in our late Commonwealth How Common-wealths depress the Nobility the House of Peers was by the very Posteriors of the Commons Voted useless and dangerous No sooner was that sacred Head separated from them but they were degraded to Commoners as to any Legislative Power and though those Noblemen that were content to fit in the lower House were highly caressed and applauded yet a few Years hath changed the note and their Names will be recorded to Posterity in far less Lustre than if they had more strenuously espoused the afflicted Kings Quarrel and it is not to be doubted but the Sence of that will be a most prevalent Antidote against the Defection of any of the Nobility that will consider the naturalness of such a degrading if the Commonwealth-Men should ever appear again without their Vizors and it will be an excellent amulet to keep them from the Infection of such Principles and Practice It is worth noting that William the Conqueror giving to his Nobility great Fees to be held of him in Capite How the Nobility had greater Power anciently than now for some Ages the Nobility had great Interests and numerous dependences and had special Jurisdiction over great Baronies and while they served the Crown according to their Tenures the inferior Gentry and Commoners being one way or other Tenents to them could do little in opposition to the Crown But when in King John and Henry the Third's time their greatness was dangerous to the Crown the Commons were brought in to be a part of the Parliament Yet for some while after they retained their Grandeur till as I have hinted Henry 7. retrenched them and Queen Elizabeth preferring so many new Men makeing less use of the ancient Nobility studied to gain the common Peoples Affections by all Arts and Bounties she could use and in after-Ages the Nobility being less valued by the Freeholders and encreased in Number and some of them adhering to the two Houses against their Sovereign their interests both with the Parliament and People grew less But now under a Prince who sets a true value upon the Nobility if they he not wanting to themselves they may hope to attain the lustre of their noble Ancestors and the Commoners be no ways abridged of their Priviledges For then the Government is in the happiest Condition when the Nobility are great without Ambition rich without Oppression eminent in Vertue as in Character The Gentry so deporting themselves to the Commonalty as they desire the Nobility may to them and the Commonalty with humble Industry peaceably enriching themselves and enjoying that freedom and liberty which may keep them in Heart and Courage to serve their Prince and Country with chearful Alacrity and out-do those of their Rank in all other Dominions which in the English Soldiery is observed in all Wars to be their peculiar Excellency ascribable principally to the Benignity of the Government which dispirits them not and when this liberty is not abused to Licentiousness but restrained within the Bounds of humble Candor and Modesty Reverence to their Superiors and thankfulness to their Prince all is in an happy Frame CHAP. XXXVIII Of the Gentry of England I Shall not detain the inquisitive Reader upon the derivation of the Word Gentilhom or Gentleman but refer him to (a) Titles of Honour P. 861 862. Whence the Name Mr. Selden who at large discusseth the point whether with Velserus and some others it be derived from Gentilis or Heathen as introduced when the Goths Hunns and Vandals having overrun the Roman Provinces were in a
secret Speeches as is usual in matters forbidden then with wandring Rumours fitted for the open ears of the most unskilful and then adapted for the turbulent and those that are desirous of change Thus they raise their Trumpets till they sound to Arms and Onset Fifthly These are open contagious Airs Clubs and Consults Shafts flying by Night and Day but they arise from the hollow Caverns where Clubs and Associations sit brewing of them and feathering those Bolts So Tacitus (n) Per conciliabula caetus seditiosa disserebant Lib. 3. Annal observes of the Gaâls In little Consults they debated Seditious Matters Where obiter we may note how congenial the Actions of Seditious Persons are in all Ages which he further describes in the method of (o) Nocturnis colloquiis aut flexo ad vespâum die delapsis melioribus deterrimum quemque congregantes Idem 1. Annal. Porcennius when he excited the Souldiers of Pannonia to Rebellion That by Nightly Conferences and Evening Clubs when the better sort were retired he gathered the worst and such as he could confide in to work them to his purpose and confederate them to carry on his Designs Sixthly The Method (p) Studiâ militum affectaverat contubernales appellando alios agnoscere quosdam requirere pecunia aut gratia juvare inserendo querelâs ambiguos de Galba sermones quaeque alia turbamenta vulgi Lib. 1. Histor Otho took to supplant Galba Calumnies the same Judicious Historian describes thus That he had practised before to get the Favour and good will of the Souldiers calling them Mates and Companions relieving and being bountiful to them inserting now and then complaints and glancings at Galba with Speeches of doubtful Construction or what other way he could bethink him to stir up and alter the Vulgar sort by disquieting and affrighting them Thus the Designers of changes in any State fit their Discourses to the present emergencies of Affairs and finding any sorts of grievances to complain of with innuendo's aggravate them and excite the People to believe that they only are forward to redress them Seventhly It is a sign of a Seditious Spirit Calculating a Princes Nativity when he is busie in Calculating the Nativity of a Prince Therefore Firmicus gives it in charge to his Astrologer not to answer such Questions Tertullian (q) Cui opus est perscrutari super Caesaris salute nisi a quo aliquid adversus eum cogitatur vel optatur aut Apologia 35. Sueton in Domitiano tells us That there is no need that any curiously enquire after the health of Caesar unless it be one that meditateth or wisheth something against him or hopes for some advantage after him So Tribonius was sent into Exile because he enquired of the Chaldaeans the end of the Prince So Domitian slew Pomposian because he had the Emperors Nativity and carried about him the Speeches of Kings and Captains out of Livy and called his Servants by the names of Mago and Hannibal Although Prophecies Prodigies and Prognostications are like Mercenary Souldiers that may be listed to fight on any side yet every Mans Superstition interprets them to his own advantage or according to his wishes hopes or fears So that when the Designers have a mind to make impressions of fear on the People they bring in some ill-boding Signs as Apparitions raining of Blood Oxen speaking Battels in the Air and such like to keep the People either in fear of Calamities or in hopes of more prosperous times by changes both which would be equal disturbances to Government Tacitus (r) Genus hominum pâtentibus insidum spârantibus fallax quod in Civitate nostra vetabitur semper retinebitur 1. Hist speaking of Otho's confiding in the predictions of the Astrologers tells us They are a sort of men unfaithful to the Great deceitful to the Hopers which always will be forbid and always retained That the Romans judged such as gave credit to the Chaldaean Promises the Ceremonies of the Magicians and Interpreters of Dreams to be practicers against the State and guilty of Treason we have a memorable example of Libo (s) 2. Annal. ad Chaldaeorum promissa Magorum sacra somniorum etiam Interpreres impulit c. plenam imaginibus domum ostentat hortaturque ad luxum as alienum c. Infernas umbrâs carminibus eliceret Drusus of the Scribonian family whom the Astrologers put in mind that Pompey was his Great-Grandfather Scribonia wife of Augustus his Great Aunt the Caesars his Cousin Germans that his House was full of Images and Monuments of his Predecessors then they brought him to Licentious Riot and Debaucheries and to raise Infernal Spirits by Inchantments And though my Author judge there were some of Tiberius's Arts in his Accusation before the Senate yet we find he killed himself to avoid the infamy of a Sentence of the Senate and upon it a Decree was made to expell Astrologers and Magicians out of Italy Facts de Mathematicis Magisque Italia pellendis Senatus consulta Before I come to treat of the Prognosticks of the Mischiefs of Factions I must take notice of two of the certainest most demonstrative and dangerous signs of Faction running up to Seed that can be and those are Tumultuous Petitioning and Tumults These will the better be illustrated both separately and in conjunction The Method the Long Parliament used by laying open the Methods the Long Parliament took to effect their designs against their Gracious King First With great shew of Compassion and Commiseration for their fellow Subjects sufferings they eagerly debate the Grievances which by a correspondence betwixt the Members of the House of Commons and their Friends in the Country by Petitions many thousands strong were daily represented to them every one striving to be foremost in representing and outstrip his Neighbour in exaggerating the Grievances as they called them that they lay under In these Petitions to the Houses but mostly to the House of Commons were Bead-rolls of Complaints against the oppression of the Subject both by the Kings Council President and Ecclesiastical Courts the Star-Chamber High Commission Court the Judges countenancing exorbitant Power that the Property and Liberty of the Subject was invaded by Monopolies Ship-money Knight-hood-money c. illegal Sentences in the Star-Chamber the Innovations of the Bishops their severity against pious Nonconformists and People of peaceable and tender Consciences as they called them and the baser sort of the People were permitted or rather invited to come to the Parliament-House to back these strong Petitions By this Artifice they exposed the Government to obloquy and contempt among the People and raised in them a confident Opinion that their only Redress was to be hoped from the Parliament and so brought themselves into a popular esteem by so much more loosening the Peoples Affections and Allegiance to the King by so much as they faster knit the Peoples Hearts and Hands to their
Representatives using all their industry to make the Subjects believe they were the only Patriots and Liberators They pass Votes conformable to the Petitioners desire animate them to search for more and especially to fix them upon Persons they were mindful to remove out of places of trust Then they begun to impeach several Ministers of State and the Judges that they might weaken the King in his Councils and terrifie others into compliance always taking care to charge the misdeeds upon the Kings evil Counsellors magnifying the Kings Natural Goodness and declaring That if he would consent to redress those Grievances and to punish the Authors they would make him a richer and more glorious King than any of his Predecessors Seditious (t) Address Pamphlets daily came out and the Printing-Press laboured Night and Day to abuse the King and his Ministers and bring the Government Ecclesiastical and Civil into obloquy Their Preachers in the mean time like so many Demagogues plied their business so effectually blowing the Trumpet as they phrased it for the Lord and Gideon that by them the Houses Interest prevailed every where especially in the Populous City which was in a manner wholly at the Houses devotion Having removed the Great and Noble Earl of Strafford by great Industry and Art and the Midwifery of Tumults and got themselves by as strange an Art as oversight perpetuated they set themselves to Remonstrate in which they odiously recount all the miscarriages as they called them in the Blessed Kings Reign charging him though covertly with them and all the very Misfortunes of his Reign They revive the Bill against the Bishops sitting in the House of Lords which had been rejected and in a Parliamentary way ought not again to be set on foot that Session the better to effect which they cause the Rabble and their Confederates to menace and assault them and other Loyal Members of the House they Post up several names of Lords and Commons who opposed their proceedings and having driven the King and his whole Family away by most outragious Tumults they declare their Ordinances to be binding during their sitting and assume the Power of interpreting and declaring what was Law and by all these Arts they brought the People not (u) Culpae vel gloriae socii Tacit. 3. Hist so much to joyn with as to conspire with them Then they pretend a necessity of putting the Kingdom into a posture of defence to secure it against Popery and Arbitrary Government and the Invasion of Foreigners which they pretend were to be brought in to assist these They single out the most confiding and daring in every County to be their Commissioners of the Militia so (w) Quanto quis audacia promptior tanto magis sidus rebusque motis potior babetur Idem 1. Histor much as every one was forwarder in boldness and more hardy by so much the more he was to be confided in and sitter to help forward the turbulent work they were about Having first got the Peoples affections to revere them as their Deliverers they the more easily obtained their Bodies Armour and Moneys and so prosecuted a Rebellious War openly yet with that shameful pretence that they were fighting for the King against his Evil-Counsellors and amongst hands court him with most Dethroning Propositions and success Crowning their arms they wholly destroyed that Monarchy they had all along pretended to establish upon surer foundations for the Honour of the Crown and benefit of the People than former Ages had known Instead of which they made themselves Masters of all their Fellow-Subjects seizing their Estates Imprisoning and Murthering their Persons altering the established Ecclesiastical Government and all the fundamental Laws enriching themselves and over-awing the Kingdom by a standing Army Thus I have drawn that in Miniture which was the Tragedy of many Years and the Subject of numerous Volumes and I shall tack to it something parallel in later Years to let all Posterity see what a Characteristick Mark it is of Turbulent and Factious Inclinations when Petitions against the Will of the Government are violently promoted The great mischief of tumultuous Petitions being considered by the Loyal Parliament The Act against Tumultuous Petitions upon the late Glorious King 's happy Restauration Provision was made that the number of deliverers of Petitions should not exceed ten that three of the Justices of Peace in the County or the major part of a Grand Jury at an Assize or General Sessions or in London the Lord Mayor Aldermen and Common-Council have the ordering and consent to such Petitions which shall be for alteration of things established by Law in Church or State by way of Petition Complaint Remonstrances Declaration or other Address to the King or either Houses of Parliament It cannot be forgot in the interval of a later Parliament how zealous and busy multitudes were to get Petitions with Hundreds and Thousands of Hands to the late King for the sitting of a Parliament before the King in his Wisdom thought sit This occasioned the King to issue forth a Proclamation against tumultuous Petitions and other Loyal Persons to express an abhorrence of such Petitions that would press the King to precipitate their Sitting Those that petitioned the King for convening of a Parliament could not but foresee the ungratefulness of such Petitions to the King yet the Designers gave it not over for they had other Ends. As first to engage Men by their Subscriptions to be more fast to them Secondly to try whether the People might be brought to Tumults Thirdly to incense the People more against the Government if their Petitions were denied Fourthly to shew in terroreon the number of their Adherents Fifthly That through every County the confiding and zealous might be known each to other and Lastly that whenever that Parliament should sit they might have their Thanks and by their Numbers the Parliament might be encouraged to proceed in such things as they desired knowing hereby the Strength of the Party When the House of Commons met nothing was so much clamoured against as the Proceedings upon the late Proclamation as if all the Liberties of the Subjects of England had consisted in this Therefore they vote that it ever hath been the undoubted Right of the Subjects of England See the Votes to Petition the King for the Calling and Sitting of Parliaments for redressing of Grievances and to traduce such Petitioning was a violation of Duty and to represent it to his Majesty as tumultuous and Seditious was to betray the Liberty of the Subject and contribute to the design of subverting the Legal ancient Constitution of the Kingdom and introducing Arbitrary Power and so a Committee called of Abhorrence was appointed to enquire of all such Persons as had offended against the Rights of the Subjects This was it that explained their Vote for all the Controversy was Whether a sew private Men might agree upon a Petition then send Emissaries abroad to
procure the Subscriptions and then tender them as it were by their number to affright the King to a Compliance or that the King to whom the Execution of the Laws or suspension in some measure surely appertains might not forbid such Petitions They singled out Sir Francis North then Lord Chief Justice of the Common-Pleas after Lord Keeper and Earl of Guilford Sir George Jefferies then Recorder of London now Lord Chancellor Mr. Justice Withins and others as Subjects of their displeasure for disliking and abhorring the irregular dangerous way of Petitioning But they received more Lustre and Regard in the Eyes of their Soveraign and all Loyal Subjects by their Censure than they did discredit by it It seems worth the while for Persons that have regard to the quiet and repose of the Subject to the Honour and Establishment of the Government and for the Tranquillity and Liberty of their Posterity to consider whether any mortal Man can either produce Precedent or Law to justify the Imprisonment of those Gentlemen Abhorrers of which I have spoken something before in the Chapter of Parliaments I shall now conclude with the last and formidablest sign of Sedition Of Tumults viz. Tumults which are but unarmed and Pen-feathered Rebellion They have the Mien and Standard of it only want the Artillery The fatal black Parliament disciplined them to be ready at any watch word and whatever they voted against the King or Church was ushered in by thousands of all sorts flocking out of the City and Country braving and threatning all along as they went by White-Hall and so in Sholes crowding to the Houses promising to stand by them and crying out for Justice They were so insolent and rude that they forced the Merciful King to withdraw from his Pallace to which he never returned till they brought him to his Barbarous Tryal and Murther That Blessed Kings Sence of them can be expressed by none so emphatically as by himself therefore I shall extract some of his feeling Expressions I (x) ãâã ãâã ãâã ãâã ãâã c. 4. never thought any thing except our Sins more ominously presaging all those mischiefs which have followed than these Tumults And this was not a short Fitt or two of an Ague but a quotidian Feaver always encreasing to higher Inflammation impatient of any Mitigation restraint or remission Those who had most mind to bring forth Confusion and Ruin upon Church and State used the Midwifery of Tumults by which they ripped up with barbarous Cruelty and forcibly cut out abortive Votes to crowd in by force what reason would not lead Some Mens Petulancy was such as they joyed to see their Betters shamefully and outragiously abused So the Blessed King finding they invaded the Honour and Freedom of the two Houses and used such contemptuous words and Actions against him thought himself not bound by his Presence to provoke them to higher Contempt and Boldness For he saith it was an hardiness beyond Valour to set himself against the breaking in of the Sea being daily baited with Tumults he knew not whether their Fury and Discontent might not fly so high as to worry him and tear him to pieces whom as yet they played but with in their Paws Therefore thinks himself not bound to prostitute the Majesty of his Place and Person c. to those who insult most when they have Objects and opportunity most capable of their rudeness and petulancy Our late gracious Sovereign in later times when some Men were endeavouring to practise the same Methods found some offers of the like at Windsor a place of all others in which one would have thought he should have had the most Honour for the Benefits he did to that Town by his so frequent residence when first the Boys and then the Rabble were set on to shout for a Burgess of Parliament in opposition to a Loyal Person His Majesty favoured even in his own Presence The Prophetick Observation of the Martyred King is worth noting That he believes the just Avenger of all Disorders will in time make these Men and that City see their Sin in the Glass of their Punishment which needs no application but only to desire they would be so just to themselves and their Posterity as to follow no such Precedents and that none will encourage such outragious doings I shall dismiss this ingrateful Subject with the Description (y) Vââibus truculentis strepere rursum viso Casare trepidare Murmur incertum atrox clamor repente quies diversis animorum moribus pavebaret terrebaââ 1. Annal. Tacitus gives of the mutinous Tumult of Drusus's Soldiers That the Ring-Leaders when they looked to the multitude with outragious Voices made terrible noises but viewing Caesar shrunk again and of the whole multitude he saith an uncertain Murmur an horrible cry and suddenly a calm by divers emotions of Mind they feared and did affright CHAP. XLIV Prognosticks of Sedition and Faction BOdinus (a) Seditio semel accunsa quasi scantilla impetu populari repente agitatur ac totum prius inflammari solet quam extingui possit De Repub. c. 4. tells us That Sedition once kindled is suddenly fanned and blown by popular fury into a Flame which is wont to set all on Fire ere it can be extinguished The danger therefore of Faction is not to be sleighted but the Government should be watchful over the least Sparks which no Man can forbid or tell whence they may come or how far they may ravage when there is a Propensity to Faction Therefore Governours should not suffer matter of Trouble to be prepared or hatched but crush the Cockatrice in the Egg and the Monster in the Embryo especially (b) Vbi Respublica aegra quave vix cicatrices clade intestina acceptas obduxerit Clapm. de Arcanis dominationis lib. 3. c. 16. When Danger less when the Scars of late Wounds are not healed or hardned as after a Civil War when Factions are most dangerous The danger is less saith my Lord (c) Essays St. Albans when it springs only from the Discontent of the People being slow of Motion and the greater sort of small Strength without the Multitude can do little but the danger is greatest when those of higher Rank wait but for the troubling of the Waters So Jupiter by Pallas's Advice when the other Gods would have bound him sent for Briarous with his Hundred Hands an Emblem to show how safe it is for Monarchs to make sure of the Good Will of their People The motions of the greatest Persons in Government ought to be as the motion of the Planets under the Primum Mobile according to the old Opinion that every of them is carried swiftly by the highest Motion and slowly by its own Therefore when great Men in their own particular motion move violently Liberi usque ut Imperantium meminissent as Tacitus speaks It is a sign the Orbs are out of Frame Where Factions are not Combinations against the Government
The Advantage of Hereditary Succession in Private Families Aristotle's Opinion Philosopher dividing Kingly Government into four kinds as I have before instanced allows all to be Haereditary except the Aesymnaetian which was Elective and since in many places he affirms Kingdoms to be more durable than Commonwealths we may conclude that the fundamental cause of that duration is the Lineal Succession We experience in private Families where a long Series of Ancestors have transmitted Inheritances to Posterity how by the settledness and encrease of their Estates their alliances and the Employments they have had in their respective Ages they have acquired Honour Renown Interest and Stability that not only a greater Respect is payed to them than to others of a later Rise but they are thereby enabled upon many accounts to manage publick or private affairs with more sure success and repute than those than have not acquired such a nodosam Aeternitatem (b) ãâã ãâã ãâã ãâã ãâã De Repub. l. 3. c. 11. Aristotle makes that ãâã ãâã ãâã ãâã ãâã or natural Love of Parents to their Children to be one reason of the Succession of Sons to Fathers in their Kingdoms thence he makes it improbable that they who have obtained the Soveraignty should not deliver it to their Children because it would discover a Vertue beyond the ordinary Elevation of humane Nature to prefer the Benefit and good of the People by leaving them the Liberty of chusing upon every avoidance the most worthy if such a Prince's Son appeared not so rather than to establish the Principality in their own Family (c) ãâã ãâã ãâã ãâã ãâã pâly ãâã lib. 6. p. 455. D. Edit Wickl 1509. Several Reasons why Succession is to be preferr'd before Election Polybius speaking of Kings being most eminent for Wisdom Polybius his Opinion Justice and Valour whereby they drew the People to reverence them and consequently to submit themselves to their Conduct and Command saith That the Son having his education under such a vertuous wise Father whereby he had been present with him when affairs of the greatest Importance had been debated in common presumption was judged to be better capacitated to govern than any of a strange Family and so none would envy him his dignity but all readilier judged him the fittest to succeed And there is good reason to consider the cause of it for Government is an Art not easily attained to and by the unskilfullness in the proper Rules and Maxims the wrong Applications the Ignorance in pursuing the right Methods and chusing fit Instruments the Factious and Populace get advantages to make unfortunate times Therefore those Monarchs who from their Infancies are trained up and accustomed to Instructions in the Rudiments of Government as they grow up must more readily comprehend them must attain the better understanding of the great affairs and secret reasons of Stâââ be more quick apprehensive and sagacious in perceiving what is conducive to the common good and what not and so more ready in all publick Dispatches than such who have not been educated with all these Advantages Besides Governours at first must be to seek in understanding the nature of great Affairs so that one may as well expect (c) Dr. Nalson's Common Interest p. 113. a Man taken from the Plough should be able to Conn a Ship and carry her an East-India Voyage as that a Person though of the greatest natural and acquired Parts should at first be fit to Pilot the Government or skilful and dexterous in the steerage of the important affairs of a publick State and as in Republicks it falls out by that time he hath arrived at a competent Skill he must resign his Place and Power to others as raw and unexperienced as he was Whereas Succession in Monarchy doth effectually prevent this Inconvenience and which is of great moment it gives them an Interest and desire of designing well for the publick good safety and security of the People and the opportunity of finishing whatever is well begun For though it have happened by the Succession of a weak or vitious Prince that damage and infelicity have befallen the People yet it is very rare in History that two such succeed one another So we find in this Kingdom that Ed. 1. and Ed. 3. brought as great Honour and Renown to their Countries as their Fathers had Misfortunes and even in such Princes Reigns the Calamities that have befallen their Kingdoms have rather sprung from the Potency of Factions that took the advantage by the weakness of the Prince to bring him to Contempt that they might obtain the managery of affairs than from other Causes For even under such unfortunate Princes if it were not for factious Disturbances the Laws and good Order might during their Reigns conserve their Kingdoms in Peace Whereas in Kingdoms that are Elective The Inconveniences that happen where Right Succession is not observed Competitors and Candidates cause not only great Disturbances and Mischiefs at the Instant as we have infinite Examples when the Roman Emperors were chosen by the Factions of the Senate or Army as also in Germany before the expedient of chusing a King of the Romans and in the Miseries that have befallen Poland but Aemulations and Animosities have been continued for Ages among the prime Nobility and thence it is that the (d) ãâã ãâã ãâã ãâã ãâã Lib. 5. Polit. c. 10. Giphanii Comment Philosopher so long since hath ascribed it one of the Principal Causes of the Destruction of a Kingdom when there is Discord in the Royal Family or as his Interpreter saith among the participes Regni as Brethren and Kindred of the Royal Family as (e) In vita Cleomenis Aegidis Plutarch tells us in the Kingdom of Sparta and as Justin gives us an account of the slaughter of Brethren and Kinsmen in the Kingdom of Syria and as it occasioned the Destruction of the flourishing Kingdom of Egypt by the Competition betwixt Ptolomy and Cleopatra and as our Ancestors sadly experienced in the Civil Wars betwixt the Houses of York and Lancaâââ and France in the Faction of Orleance and Burgundy and of later Date in the Kingdom of Hungary betwixt King John and the Emperor Ferdinand If therefore such Calamities befal Countries where Factions ruine their Peace how much more shall we judge the miserable Confusions will be when any shall challenge a Power to make a Breach in the Royal Chain of Succession especially when we find even at Rome upon the Election of the Pope by custom the People plunder the Pallace of the Cardinal who is elected Pope and since that outrage is committed where such an one is chosen as is owned by so great a part of Europe to be Christ's Vicar we are not to wonder that at the Death of the Ottoman Heir the Janizaries and Soldiery rifle and plunder Jews and Christians and cease not to commit all manner of Outrages till the new Grand Signior by his
a name of Continuance which as the Law presumes shall always remain as Head and Governour of the People For the English Monarchy (x) Coke 4. Report Praef. knows no Interregnum being Successive by inherent Birthright whereby infinite inconveniences are avoided so that the young Phenix stays not to arise out of the Spicy ashes of the old but the Soul of Royalty by a kind of Transmigration passeth immediately out of one body into another and in the same manner will every right Heir acquire the Royalty after his Predecessor ceaseth to be Therefore the judicious Lord (y) Interregnum aut tituli suspensionem âaeges Regni non permittere Hist H. 7. p. 26. Verulam observes That H. 7. knowing that the Laws permit not any interim suspension or stay of the Title and having no mind to own his Queens Title the best She being the Heiress of the house of York as he in some respects was Heir of the House of Lancaster he ordered the Act so that it should neither be by recognition nor his Title be established by a new Law (z) Potius media via institit simplicis stabilimenti Ideo verbis tectis utrinque nutantibus his ut haereditas Coronae resideres remaneret continuaretur in Rege but chose a milder way viz. of simple Establishment in covert words interpretable several ways that the inheritance of the Crown should reside remain and continue in him So King James in his ãâã ãâã ãâã ãâã ãâã p. 209. tells the Prince That at the very moment of the expiring of the King Reigning the nearest and lawful Heir entreth in his place and so to refuse him or intrude another is not to hold out the Successor from coming in but to expel and put out their Righteous King So Sir (a) Report 7 8 10 11. Calvin ' s Case Watson and Clark ' s Case 1 Jac. 1. Edward Coke affirms That it is a known Maxim of the Laws That in the moment of the descent of the Crown the person on whom it descends which is the next immediate Heir only becomes complete and absolute King to all intents and purposes And so he saith The second Son of the King of England after (b) 3. Instit 8. the death of the first-born is eldest Son within the Statute of 25 E. 3. as it was resolved in the case of Prince Charles concerning the Dutchy of Cornwall It would be a tedious work to recite all the Authorities in this Case may be found in the Statutes and Law-Books I will content my self instead of all others with the Act of (c) Cap. 2. Recognition 1 Jacobi primi wherein The Recognition of King James the First after the two Houses had enumerated the benefits by the Conjunction of the Houses of York and Lancaster and the uniting of England and Scotland in the Kings Person and that They agnize their constant Faith Obedience and Loyalty to him and his Royal Progeny The worlds of the Act are In most humble and lowly manner do beseech your most Excellent Majesty as a memorial to all posterity among the Records of your High Court of Parliament for ever to endure of our Loyalty Obedience and hearty humble affection it may be published and declared in the High Court of Parliament and enacted by Authority of the same That we being bound thereunto by the Laws of God and man do recognize and acknowledge and thereby express our unspeakable joyes that immediately upon the dissolution and decease of Elizabeth late Queen of England the Imperial Crown of the Realm of England c. did by inherent Birthright and lawful undoubted Succession descend and come to your most Excellent Majesty as being lineally justly and lawfully next and sole Heir of the blood Royal of this Realm as is aforesaid c. and thereunto we most humbly and faithfully do submit and oblige our selves our Heirs and Posterities for ever until the last drop of our blood be spent and do beseech your Majesty to accept the same as the first-fruits of this High Court of Parliament of our Loyalty and Faith to your Majesty and your Royal Progeny and Posterity for ever By which it first appears that the Crown of England is an unalterable Entail and the reversion in him only by whom Kings reign without any Election or consent of the People otherwise than by acknowledging the lawful Right of the Kings derived from God by their blood to them Also from this Recognition we may consider How to understand the Act made by Queen Elizabeth against the Claims of Mary Queen of Scots Secondly what to think of that Act of Queen Elizabeth That if any Person shall affirm that the Parliament of England has not full power to bind and govern the Crown in point of Succession and descent that such a Person during the Queens life shall be guilty of High Treason For we must consider that by the words bind and govern we may conceive the sence to be That the Parliament is Judge where there are differences (d) Jus Regium p. 181. betwixt Competitors in nice and controvertible points which cannot be otherwise decided So that such temporary Acts as these are to be interpreted and restrained by other uncontroverted Laws We must also look upon it as made to secure the Queen against Mary Queen of Scots and to let her know it was to no purpose for her to design any thing against the Right or Person of Queen Elizabeth upon that ground as may be presumed the Queen of Scots might claim for that Queen Elizabeth by Act of Parliament had been declared a Bastard Therefore to let her know that it was to no purpose to insist upon any such claim and that her other Right as next undoubted Heir by blood to the Crown might be altered or governed this Act was made So that we must from hence conclude That it was to be reckoned only as one of those Statutes which the Law says are made ad terrorem ex terrore only which may appear the more evidently because it was never made use of For it is to be mainly considered that this Law being made to exclude Queen Mary and the Scotish Line as appears by that clause wherein it is declared That every Person or Persons of what degree or Nation soever they be who shall during the Queens life declare or publish that they have Right to the Crown of England shall be disinabled to enjoy the Crown in Succession Therefore it was never valid (e) Id. p. 183. For if it had been good King James might have thereby been excluded by that person who should have succeeded next to the Scotish Race For it is undeniable that Queen Mary did during Queen Elizabeth's life pretend Right to the Crown upon the account that Queen Elizabeth was declared Bastard Therefore the calling in of King James after this Act and the acknowledging his Title do clearly evince that the
Parliament of England knew they had no Power to make such an Act and we may conclude That such Politick and Temporary provisions find no approbation either by the Laws or succeeding ages who in all such cases judge more impartially therefore it is much more honourable for the Legislative Power to found their Laws upon Justice and Right rather than upon the humours and Interests of those who desire but the shadow of a Law to countenance their designs It must be owned that King Edward the Second was deposed The Injustice in deposing Kings for making use of Gaveston and the Spencers But how illegally all succeeding ages have acknowledged and it rather shews how extravagant the People and their Representatives are in their humors than how just their Powers are For by the same parity of Reason the horrid Murther of the blessed Martyr or the Murther of Edward the Second may be justified as his deposing may be and the like may be said of King Richard the Second against whom the Fourteenth Article was that he refused to allow the Laws made in Parliament which had been in effect to consent that the two Houses should have been the Soveraign and that he had transferred the Royal Power on them Whoever desires further satisfaction may consult Arnisaeus in that Treatise Quod nulla ex causa subditis fas sit contra legitimum Principem arma sumere Whereas Richard Duke of York in Henry the Sixth's time after he had been declared Heir Apparent was by another Act of Parliament declared uncapable of Succession all that can be inferred from it is When Acts of Parliament to be less esteemed That Acts of Parliament when they are bottomed upon private affections to Parties in times of Faction and civil War are not to be looked upon with that veneration as when they regularly pass in times that are calm when no potent Persons oppress Justice or usurping Powers hinder faithful Judges from expounding the Laws soundly Therefore we find in the claim of the said Duke of York that it is more consentaneously to Law expressed That no Act taketh place or is of force against him that is right inheritor of the Crown as accordeth saith the Record with Gods Laws and all natural Laws and we may observe that though there was a Succession of three Kings of the House of Lancaster who had usurped the Crown for Sixty Years yet all our Historians and the Laws call those Kings de facto and not de jure Such a true sence of just and right the uninterested Ages have had of that Usurpation ever since although there were Acts of Parliament carefully penned to corroborate âhe Title of the house of Lancaster during that time and all ways and means used to have established that Line yet by vertue of the Right of Lineal Succession Edward the Fourth Son to the said Duke of York came to be owned lawful King of England though the Right of his Family had been interrupted ever since Henry the Fourth usurped the Crown which might have been a sufficient document to all Ages not to have attempted any sort of praeterition of the Right Heir Yet we find that unsuccessful attempts were made by H. 8. contrary to the fundamentals of Succession which when rightly considered I hope will convince all of how little validity even such Acts are to be reputed Therefore because these have been made use of for Precedents I shall speak a little more fully to them In the 25 of H. 8. (f) Cap. 22. the Marriage with Queen Katherine is made void Concerning the several Entailings of the Crown by King Henry the Eighth and that with Queen Anne's declared good and an Entail made on the Issue Male or Female and the Penalty for hurting the Kings Person disturbing his Title to the Crown or slandering the present Marriage is judged High Treason and Anno 26. (g) Cap. 2. a strict Oath is injoyned to observe the Succession there appointed But 28 H. 8. (h) Cap. 7. it is declared that the former Act was made upon a pure perfect and clear foundation thinking the Marriage then had between his Majesty and the Lady Anne they are the words of the Act in their Consciences to have been pure sincere and perfect and good c. till now of late that it appeareth that the said Marriage was never good or consonant to the Laws but utterly void and of none effect and so both the Marriage with the Princess Katherine and the Lady Anne are declared void and their Issue made illegitimate and the perils are enumerated that might ensue to the Realm for want of a declared lawful Successor to the Crown and the Act impowers the King if he dye without Issue of his body that he may limit the Crown to any by his Letters Patents or his last Will in Writing and it is declared Treason to declare either of the Marriages to be good or to call the Lady Mary or Lady Elizabeth Legitimate and the former Oath is made void and this may be judged to be procured when he resolved to settle the Crown on Henry Fitz Roy Duke of Richmond his natural Son But after the Birth of Prince Edward 38 H. 8. (i) Cap. 1. another alteration is made whereby the Crown is entailed on Prince Edward and for want of his Issue on the Lady Mary and for want of her Issue on the Lady Elizabeth and for want of Issue of the King or them then the King is impowered by his Letters Patents or last Will to dispose of the Crown at his free will It is therefore to be considered that in such a juncture of affairs when the legality of the Kings Marriages were so disputable by reason that two of the legal Successors upon niceties not of nature but of the Popes ãâã for Divorcing were declared Bastards there was some âeason (k) 25 H. 8. c. 22. that the Act should express that the Ambiguity of several Titles pretended to the Crown then not perfectly declared but that men might expound them to every ones sinister affection and sence contrary to the right legality of Succession and Posterity of the lawful Kings and Emperours of the Realm hath been the cause of that great effusion and destruction of mens blood and the like cause will produce the like effect as the words are Upon such grounds it was very plausible to declare by Act of Parliament the Succession But this does not prove that where the Right of nature is clear that the Parliament may invert the same and they teach us how dangerous it is to leave Parliaments to the Impression of Kings when it is too obvious the first of these Laws was made to gratifie the Kings affection to Queen Anne in the case of naming a Successor as it is also to expose Kings to the Arbitrariness of Parliaments And we may well infer H. 8. taking such care by his Parliaments to legitimate and illegitimate his
his Uncles Death was declared Tutor and Governour without any remission or being restored and if his Cousin King James had died without Issue he had been declared the true Successour of the Crown We have a memorable Instance of this in H. 7. who when he came to the Crown called his Parliament and the Judges having determined that those Members of the House that had been outlawed by the Parliament in Richard the Third's time and been declared Rebels should absent themselves till a Bill were brought in for their restoring It was moved among the Judges what should be done about the King who had been condemned and declared Traytor c. and it was by the unanimous consent of all the Judges saith the learned (q) St. Alban's Hist H. 7. p. 29. Chancellor declared That the Crown removed all the obstructions in the Blood which might in any manner impede its descent and from that time the King took the Crown Coronam ipsam omnes sanguinis oppilationes quae descensum Coronae ullatenus impediunt deobstruere Vt Regi opera Parliamentaria non fuisset opus the fountain of his Blood was purged and all the Corruptions and Impurities taken away so that he had no need of any Parliamentary help to supply him Thirdly The Consideration of the Oaths which the Subjects are bound to take and observe gives some further Proof of the Obligation of all the Subjects to maintain this lineal Succession The Oaths of Allegiance and Supremacy bind the Subjects to bear Faith and true Allegiance to the King's Highness The Oaths of Allegiance and Supremacy against altering Succession his Heirs and lawful Successors and that to their Power they shall assist and defend all Jurisdictions Priviledges Preheminences and Authorities granted to the King's Highness his Heirs and lawful Successors or united and annexed to the Imperial Crown of this Realm and of those Priviledges c. I think none will deny but that Hereditary Succession is one of the principal Prerogatives intended by those Oaths We are not in these only sworn to His Majesty but his Lawful Successors which word Lawful is inserted to cut off the Pretences of such as should not succeed by Law and the insolent Arbitrariness of such as being but Subjects themselves think they may chuse their King These being promissory Oaths as well to the Successors when their Right shall fall as to the present King they have every of them in their respective degrees and orders and indispensible Right confirmed to them by this Oath So that the Predecessor hath no legal right to deprive his Successor as hereafter I shall clear nor to remit the Peoples Obligation to him as lawful Heir and Successor (r) Address part 3. p. 64. much less can the two Houses do it for they are all within the Obligation of this Oath and it is unreasonable that Men should dispence with their own promissory Oaths to others for this would destroy all Faith and Confidence amongst Men and pull up the very roots of Society and Government Whereas some object out of my Lord (s) Coke on Littleton p. 8. Coke Objection That none is Heir before the death of his Ancestor but Heir apparent It is to be considered Answered that it must be the Heir presumptive or apparent that is here understood otherwise the inserting the word Heir were superfluous if by the Oaths were not intended he that is next Heir upon the Death of the King and if any Person think to evade it by affirming that if the Parliament declare any Person to be no next Heir he ceaseth to be so as also not to be lawful Successor because by such an Act he is outlawed Let such Persons consider that this is neither better nor worse than palpable Aequivocation For we swear in the common Sence of the words and so by Heir we understand such as by proximity of Blood have greatest right to succeed in the Inheritance It may be farther considered that the Lord Chancellor Treasurer and Judges (t) See 18 E. 3. all the great Officers of State the Privy-Council c. are all sworn to defend the Rights of the Crown and that they shall not concurr or assent to any thing which may turn to the King in Damage or Dis-herison How then can any of these much less the Judges who are to expound and interpret the Law consent without palpable violation of their Oaths to the changing of the Essence of the Monarchy I shall now endeavour to prove Acts of Parliament cannot alter Lineal Succession that no Parliament by a compleat Act can legally alter the Succession in an Hereditary Monarchy For first all (u) Jus Reg. p. 153. Kings and Parliaments are subordinate to the Laws of God the Laws of Nature and Nations So that unless we give the Inferior Power and Jurisdiction over the Superior no Act of Parliament can be binding to overturn what those three Laws have have established and I hope I have proved under all these Heads in the preceding part of this discourse that the right of Succession is founded on them As to the Law of God it is clear not only from the general dictates of Religion but 28 H. 8. c. 7. the Parliament uses these words For no Man can dispence with God's Laws which we also affirm and think As to the Laws of Nature they are acknowledged to be immutable from the Principles of Reason So the (w) Sect. sed naturale Institut de Jure naturali Law it self confesseth Naturalia quaedam Jura quae apud omnes gentes observantur divina quadam providentia constituta semper firma atque immutabilia permanent Certain natural Laws which are observed by all Nations and such is that of Primogeniture by Divine Providence being constituted remain always firm and immutable So when the Law declares that a supreme Prince is free from the obligation of Laws solutus Legibus yet Lawyers (x) Voet. de Statutis sect 5. c. 1 Accursius in L. Princeps F. de Leg. Clementina pasturalis de re Judicata still acknowledge that this does not exclude these Supream Powers from being liable to the Laws of God Nature and Nations as is evident by all that treat of that Point Nor can the Law of Nations be overturned by private municipal Laws so all Statutes to the prejudice of Ambassadors who are secured by the Law of Nations are confessed by all to be null and the highest Power whatsoever cannot take off the denouncing of a War before a War can be lawful Besides secondly a Parliament cannot do more than (y) Jus Reg. p. 154. any absolute Monarch in his own Kingdom for they when joyned are but in place of the supreme Power sitting in Judgment We must not think our Parliaments have an unlimited Power de jure so as they may make a forfeiture or take away Life without a cause or pass Sentence against the Subjects
his two Sons Proclus and Euristhenes to an equal share in the Lacedemonian Throne The like observations are to be made in the Succession of Ptolomaeus Lagus and Ptolomaeus Phisco In the Sons of Severus in the Succession of Sinesandus who killed his brother Suintill rightful Heir of Spain and that of Sforza and Francis Duke of Milain and thousands more in all which either the Usurpers or the Kingdoms that obeyed them perished utterly or were brought to great ruine In Britain the whole nation of the Picts were extirpated by the endeavour of that People to hinder Keneth Son of Alpinus from possessing the Kingdom as right Heir of Fergusiana Sister of Mordred their King In England the Usurpation of Harold upon the Right of Edgar opened the passage to William the Conqueror The Usurpations of William Rufus and Henry the First upon their Brother Robert and of King Stephen upon the Empress Maud were accompanied with great effusion of Blood So that a great part of the ancient Norman Nobility both such as resided there or were transplanted hither were slain or grievously harassed The Usurpation of King John upon his Nephew Arthur caused great disquiets during his Reign and the effects lasted a great while after The removal of King Richard the Second by Henry the Fourth occasioned those lasting Wars and most miserable devastations betwixt the Houses of York and Lancaster during which Usurpation before the Crown was setled upon Edward the Fourth Historians reckon no less than seventeen pitched Battels and eight Kings and Princes of the Blood slain and put to death and that forty six Dukes and Earls besides innumerable Barons and Gentlemen and above 200000. common People were slain and destroyed in the space of Sixty Years To which we may add the cruel death of Edward the Fifth and his Brother by their bloody Unckle and his own miserable end and the calamitous fall of the Lady Jane Grey and her Noble Relations All which Princes although for the supporting their unjust Claims Invasions and Usurpations of the Crown they procured Parliamentary concurrence and popular Establishments yet after so great effusion of blood could not in reality transfer the Right from the next Heir of the blood but at last all centred again in the Right Heir ERRATA PAge 7. line 31. for Babarous read Barbarous for und r. and l. 24 for wins r. wires p. 13. l. 6. for Resumption r. Presumption p. 17. l. 5. for who r. where p. 44. l. 45. for removeable r. removal p. 47. l. 27. for purity r. parity p. 63. l. 26. for Herds r. Hords p. 81. l. 18. for third r. fifth p. 83. l. 46. for than r. not p. 92. marg l. 5. for mediocrita r. mediocriter and below for ad Clement r. ad Cluentem p. 133. l. 48. after before r. l. p. 141. l. 36. dele That p. 150. l. 28. for Peace r. Grace p. 152. l. 27. for 68. r. 6. E. 1. p. 160. l. 43. for Sarson r. Sarron p. 162. l. 12. for Fenix r. Ferrix l. 48. after rewards add he p. 167. l. 18. after find add 4 p. 176. l. 5. for implied r. imployed l. 32. for Frameae r. Framiae p. 180. l. 46. for Wargild r. Weregild p. 181. l. 10. for many r. money p. 194. marg l. 17. for King Edward's r. King Edmund's p. 197. l. 41. for Northrigena r. Northwigena p. 199. l. 19. for Markesus r. Markerus p. 216. l. 11. for Silvanset r. Silvanect p. 222. l. 36. for Aubert r. Hubert p. 245. l. 18. for Bochan r. Boetian p. 266. l. 3. for whereas r. where l. 18. for Mauleveren r. Mauleverer p. 291. l. 36. for Hull r. Hall p. 321. l. 13. dele having p. 335. l. 12. for Privileges r. Prerogatives p. 341. l. 8. for Salteyn r. Salveyn p. 376. l. 33. for dies twice r. diu p. 380. l. 24. for ele r. aelc and in marg for vpp r. App. p. 387. l. 6. for lye r. tye p. 389. l. 5. after finishing add a Period l. 7. for almost r. all most l. 13. for Bretan r. ââââan l. 14. for sorda r eorda p. 400. l. 28. for albe r. able p. 419. l. 2. for Hisparians r. Hipparians l. 3. for Cleotimac r. Cleotimas l. 17. for Peleponensian r. Peleponesian and for Ob r. Obe p. 427. for Fifthly Sixthly and Seventhly r. Fourthly Fifthly Sixthly p. 430. l. 13. for keep r. help p. 437. l. 24. for hopes r. hops p. 446. l. 37. for end r. and. p. 452. l. 31. for Fung r. Fangs p. 459. l. 1. for Brats r. Brutâ p. 461. l. 7. for Colbar r. Cobbam l. 25. for Rebellious r. Rubellius p. 462. l. 43. for rare r. race p. 467. l. 28. for Praeter r. Praetor p. 468. l. 1. for discovered r. described p. 469. l. 11. for milder r. middle A Catalogue of Books Printed for and Sold by Robert Clavel at the Peacock in St. Paul's Church-yard Books in Folio A Companion to the Temple or a Help to Devotion in the Use of the Common Prayer divided into Four Parts 1. Of Morning and Evening Prayer 2. Of the Litany with the Occasional Prayers and Thanksgivings 3. Of the Communion-Office with the Offices of Baptism Catechism and Confirmation 4. Of the Occasional Offices viz. Matrimony Visitation of the Sick c. The whole being carefully corrected and now put into one Volume By Thomas Comber D. D. Praecentor of York A Practical and Polemical Commentary or Exposition upon the Third and Fourth Chapters of the latter Epistle of St. Paul to Timothy By Thomas Hall B. D. A Course of Divinity or An Introduction to the Knowledge of the True Catholick Religion especially as professed by the Church of England In Two Parts The one containing the Doctrine of Faith the other the Form of Worship By Matthew Scrivener Etymologicon Linguae Anglicanae seu Explicatio Vocum Anglicarum Etymologica ex propriis Fontibus scil ex Linguis duodecim Anglo-Saxonica seu Anglica prisca notata A. S. Runica Gothica Cimbrica seu Danica antiqua notata Run Dan. Franco-Theotisca seu Teutonica vetere notata Fr. Th. Danica recentiori notata Dan. rec Belgica notata Belg. Teutonica recentiori notata Teut. Cambro-Britannica notata C. Br. Franco-Gallica notata Fr. Italica notata It. Hispanica notata Hisp Latina notata Lat. Graeca notata Gr. Authore Stephano Skinner M.D. The Voyages and Travels of the Ambassadors sent by Frederick Duke of Holstein to the Great Duke of Muscovy and the King of Persia begun in the Year 1633. and finished in 1639. Containing a compleat History of Muscovy Tartary Persia and other adjacent Countries with several Publick Transactions reaching near the present Times In Seven Books Whereto are added the Travels of John Albert de Manstelslo a Gentleman belonging to the Ambassie from Persia into the East-Indies containing a particular Description of Indosthan the Mogull's Empire the Oriental Islands Japan China and the Revolutions which hapned in those Countries within these