acquired a Soccage Tenure and Fee-simple Estate Therefore the foresaid (q) Praefat. Reger Twysden fol. 155. The English possess their Lands by â—avour not otherwise Hereditarily So Mut. Paris saith Commilitonibus terras Anglorum possessiones affluentiori manu contulit illud parvum quod remansâ—rat sub jugo posuit perpetuae servitutis Gervase of Tilbury concludes this Observation thus Sic igitur quisquis de gente subacta fundos vel aliquid hujusmodi possidet non quod ratione successionis debere sibi videatur adeptus est sed quod solummodo meritis suis exigentibus vel aliqua pactione interveniente obtinuit viz. So every one of the conquered Nation possest their Lands or any thing else not that he should seem to get it by way of Succession but by his deserts or by some Compact or Covenant made with his Lord as it must be understood The most industrious Doctor Brady having on purpose writ so much of this Argument in his Answer to the Argumentum Anti-Normanicum and out of so many Historians confirmed it in the Answer to the Appendix Brady p. 313.314 I must refer the Reader that desires satisfaction to his Book being loth to crowd those matters which are not directly to my purpose Only I cannot but note that the reason why we so often find the same Lands that have been granted by a Father for him and his Heirs required and had a Confirmation by the Son was because the Tenure was so fickle for want of Homage or Omission of Service whereby they might be forfeited I now proceed to the great Councils that I have found in the Reign of William the Conquerour and shall begin with that wherein the Laws I have spoken before of out of Hoveden were made which are agreed by all to be in the Fourth year of his Reign In general we find Gervase of Tilbury telling us The Conqueror makes written Laws That when the famous Subduer of England King William had subjected to his Empire the utmost parts of the Island and by terrible examples had brought to perfect obedience the Minds of Rebels that they might not have liberty to fall into the same errors for the future he (r) Decrevit subjectum sibi populum Juri scripto legibusque sabjicere Quasdam reprobavit quasdam autem approbans Transmariâ—â—s Neustriae leges quae ad Regni pâ—â—â—m tuendam efficâ—teissionae videbantur adjecit Gerv. Tilb. lib. 1. c. 29. resolved to govern the People subjected to him by written Right and Law therefore the English Law being propounded according to their threefold distinction that is the Mercian Law Dane Law and West-Saxon Law he rejected some and approved others and added such Transmarine Norman Laws as seemed most efficacious to defend the Peace of the Kingdom In this account we may observe That the King solely is said to reject and approve and to add such of the Norman Laws as he thought fit for securing the Peace of the Kingdom and the Ingenious Dr. Brady thinks the 52 55 56 58 59 62 63 64. are those Norman Laws intimated Concerning the Oath which Frederick Abbat of St. Albans administred to the King on the Holy Gospel and the Reliques of the Church of St. Albans whereby he swore That for the good of Peace he would observe the good and approved ancient Laws of the Kingdom which the pious Kings of England and especially King Edward had inviolably observed I must refer the Reader to (s) Fol. 48. num 20 30 40. Matthew Paris to understand the occasion of it and Dr. (t) Argum. Antinorm p. 261. Brady's Exposition or Commentary upon it and how little he observed it What the Laws were that King William the First confirmed Authors agree not about as may be seen by comparing (u) Fol. 343. Hoveden (w) Fol. 138 149 Knighton Collect. 2354. N. 61. Lambard of Wheelocks Edition and Spelman in the First Tome of his Councils Fol. 624. Selden (x) In Eadmerum fol. 172. num 20. in his Notes upon Eadmerus writes very suspiciously of all the Laws that are attributed to King Edward except the Crowland Copy judging neither Hoveden Knighton or the Author of the Lichfield Chronicle well versed in Law matters and who writ long after Ingulphus of whom he gives this Character Qui in hac re testium non tam facile Princeps merito dicendus est quam solus forsan cui ut par fit credamus The Title of the Laws properly ascribed to William the Conquerour The Title of the Conqueror's Laws are in the Latin thus (y) Ces sont le Leis les Custumes que le Reis William grantut tut le peuple de Engleterre â—pres le Conquest de la Terre Ice les meismes que le Reis Edward sun Câ—sin tent devant luy LL. W. fol. 159. Hae sunt leges consuetudines quas Will. Rex concessit universo Populo Angliae post subactam terram Eaedem sunt quas Edwardus Rex cognatus ejus observavit ante eum In English thus These are the Laws and Customs (z) LL. W. 1. p. 170. which William the King granted to all his People of England after the subduing of the Land They are the same which Edward the King his Kinsman before him observed In this Preface we have only to note that the Laws are expresly said to be the Kings Grant and the Supplemental Laws after the 50th which were found in the Croyland Copy being writ in the Red Book of (z) LL. W. 1. p. 170. the Exchequer are by way of Charter or Grant thus Will. Rex Anglorum c. omnibus hominibus suis Francis Anglis salutem and all along the Authoritative parts expressed by statuimus volumus interdicimus prohibemus praecipimus decretum est The Terms used by the Conqueror in Law-giving The expressions Authors use concerning his Laws whereby the absolute Soveraignty of the Conquerour in the point of Law-giving is manifested are to be found in all those who have writ of his Life I shall content my self with a few Ordericus (a) Fol. 853. Vitalis saith eamque i. e. England Gulielmus Rex suis Legibus commode subegit that he subdued or rather subjected England profitably to his Laws Eadmer (b) Hist Nov. fol. 6. num 10 20 30. Vsus atque leges quas patres sui ipse in Normannia solehant in Anglia scribâ—re volens Cuncta divina simul humana ejus nutum expectabant Edit Gal. de Moulins saith That King William designing to establish in England those Usages and Laws which his Ancestors and he observed in Normandy c. all Divine and Humane Things he ordered at his pleasure The Chronology of Rouen saith Leges quas in hunc diem Angli observant idiomate Normanico promulgavit The Laws which at this day the English observe he published in the Norman Language Mr. Camden saith (c) Britan. fol. 109. That
according to the Title the Knights Agelnodus Walfricus Sywardus Godricus To the third Charter (d) Id. 636. when he dedicated St. Peter's Church Anno 1066. there are these more added to the Lay-Nobility besides Osbern Peter and Robert the King's Chaplain who are placed next after the Chancellor As to King Edward's Laws and their Confirmation by the Conqueror and the Addâ—â—ions and Amendments see Dr. Brady fol. 254. Aâ—gum Aâ—tinorm 296 298 299. As to the â—arallel betwixt the Saxon and Norman Laws see his Preface to the Norman Story before the Dukes Gud Comes Marheâ—â—s Comes Radulphus Minister Agelnodus Minister and besides that Wulfric Syward and Godrich in the aforesaid Charter are called here Knights there are added Colo and Wulsward Knights and the Conclusion of all is Omnes consentientes subscripsimus So that here may be noted the use of the Subscriptions of the Noblemen to the King's Charters which then were only by the mark of a Cross and in after times by their Seals to those we call Acts of Parliament as hereafter will be shown Having thus treated of the General Councils and such like Conventions under the Saxon and Danish Kings I shall pass to the Norman Kings and so descending to the present Age show the constituent Parts of the great Councils and Parliaments and by what variety of Expressions in the gradual Progress of the respective Kings Reigns the Soveraigns enacting of Laws was exhibited only before I enter I cannot but take notice that Mr. Selden by what compliance I know not Ab his vix alios ante Saxones comperio Custodes sub eis varie partitos c. Explent numerum Rex Conâ—â—â—â—â—ularius Cancellarius Thesaurarius Angliae Aldermannus Aldermannus Provinâ—â—arum Gravii Janus Angl. p. 40. with the mode of his time calls those which we make constituent Parts of the great Councils of the Saxon times Custodes and saith he scarce meets with any of these Guardians of the Laws different from these Lawmakers Yet he brings no Representatives of the Commons for he makes them the King the Lord High-Constable the Chancellor the Treasurer the Alderman of England the Aldermen of Provinces and the Graves I cannot but wonder that he should not at least give some hint what difference there was betwixt the King and his Graeve in the point of Law-making Surely he knew the Constitution of the great Councils as well as any but being a Sitting Member in that long Parliament was in that Particular tainted per contagionem uvaque livorem deducet ab uva CHAP. XXV Of the great Councils of the Norman Kings 'till the end of the Reign of King John WHAT Changes William the Conqueror made in the Government how he brought in the Feudal Laws of Normandy and many other Alterations Doctor Brady hath proved at large in his Argumentum Anti-Normanicum and the Preface to his Complete History so that I shall touch very little upon that Subject The Conqueror saith the learned Sir (a) Praefâ—tio ad LL. Willielmi primi pag. 155. Edit Wheeloch Three things the Conqueror designed Roger Twysden having obtained the Kingdom by dint of Sword and knowing that no Empire is firmly established by Arms without Justice applied his mind to three things First That he might have a sufficient Military Force Secondly That he might gratifie his French and Norman Adventurers yet so as the English might not by over much severity be instigated to rebel And Thirdly That the Husbandmen might live as Servants and to perform the Drudgery but not to be wholly extirpated As to the First He disposed the Militia so as (b) Lib. 4. p. 523. About his Militia and Revenue Ordericus Vitalis tells us it was reported That he could expend 1600 l. and 30 s. three Half-pence Sterling Money every day besides the Presents Fines for remitting of Punishments upon Transgressions of the Laws and many other ways whereby his Treasury was encreased and he made the Kingdom be surveyed and all his Tributes or Revenues Piscos as in the time of King Edward he made be truly described His Lands he so distributed to his Soldiers Disposed the Lands in Military Service and disposed them so that in the Kingdom of England he had 60000 Horsemen which he could with great readiness call together therefore in the 58 Law ascribed to him and which is in the Red Book of the Exchequer it is thus expressed We (c) Statuimus etiam sirmiter praecipimus ut omnes liberi homines totius Regni nostri sint fratres cenjurati ad Monarchiâ—m nostram ad Regnum nostrum pro viribus suis facultatihus contra inimicos pro posse suo defendendum viriliter servandum Pacem Dignitatem Coronae nostrae integram observandâ—m judicium rectum justitiam constanter omnibus modis pro posse suo sine delatione â—aciendam Fol. 171. appoint and firmly command that all the Liberi Homines such as held in Military Service to whom he had distributed all the Lands of the English except what he kept in his own Possession as in all Authors that treat of such matters is most evident of his whole Kingdom should be sworn Brothers to defend and manfully preserve his Monarchy and the Kingdom according to their Power against all Enemies and keeping entire the Peace and Dignity of his Crown and for the executing of right Judgment and Justice constantly in all ways according to their Power without Deceit or Delay I have inserted this at large because it seems the Primary Law upon which his Government was established and it seemeth to me to be the Substance of the Oath of Fealty that all the Subjects which held in Capite were to take or that the same Oath was to the same ends and purpose This Law is said to be made in the City of London But without doubt it was much according to the (d) Monsieur Berault Custom Norman fol. 86. usage of Normandy established by Rollo and what had been practised by the Francks when they conquered the Gauls in the declining of the Roman Empire who distributed their Lands among their Soldiers to whom was reserved the Dignity of Gentlemen and the Management of Arms and the use of them taken from the Ancient Gauls who were called Roturiers and they were only permitted to manage the matters of Husbandry and Merchandice So the Conqueror gave to some of his Followers (e) Brady's Preface Norm History p. 159. whole Counties to some two or three or more Counties with a great Portion of Land to others Hundreds Mannors or Towns who parcelled them out to their Dependants and Friends 'till at last though the Saxons most frequently held their own Estates of those new Lords and by new Titles from them some Soldiers and ordinary Men had some proportionable Shares for their Services though upon hard Conditions possessing them for the most part as Feudatories Of the Feudal Law and
proved that he brought in the Feudal Law of Tenures and much of the Norman Laws and that in his time and for an Hundred years after the Justiciaries or Chief Justices the Chancellors Lawyers Ministerial Officers and under-Judges Earls Sheriffs Bailiffs Hundredaries c. were all Normans likewise the Military Men and Lords of Mannors mostly were such and in his Preface to the Norman History and his Answers to the forementioned Authors every where clears it and proves That though the Conqueror See for proof of the whole Eadmer Hist Novel fol. 6. num 10 20 30. Ingulph fol. 512. a. num 50. That these Great Barons as Tenents in Capite had power to make Laws and Constitutions to bind their Sub-Feudataries is apparent by what Malmsbury de 〈◊〉 Reg. lib. 3. saith That the Laws of W. Fitz-Ozborn Earl of Hereford remained still in force That no Soldier for any Offence should pay above 7 s. The Conqueror's Liberality to the Normans in the first beginning of his Reign promised fair Matters yet he observed no more of those Laws than served for his own interest Yet he also saith That where any Relaxation of the Rigor of the Feudal Laws was the benefit principally accrued to the Norman English who indeed were as active as could be expected to obtain ease to themselves and claim the Advantage of all the favourable Laws had been used in the Saxon times but they themselves were great Oppressors of those under them These Matters therefore being so copiously discoursed of by the learned Doctor I shall pass that whole matter by and come to the third Particular Sir Roger Twysden notes in the Conquerors Policy and so directly speak to the Constitutions of his Great Councils and his Sovereignty in making or confirming Laws As to the third Particular First it is clear that the Conqueror divided the Land among his great Men the Officers and Soldiers for proof of which we need no more but the Testimony of Gervase of (n) Black Book of the Exchequer Post regni conquisitionem post justam Rebellium subversionem facta est inquisitio diligens qui fuerint qui contra Regem in bello dimicantes per fugam se salvaverint hiis omnibus haeredibus eorum qui in bello occubuerunt spes omnis c. praeclusa Tilbury who saith That after the Conquest of the Kingdom and just subversion of the Rebels when the King himself and his great Men had viewed and surveyed their new Acquists there was a strict enquiry made who there were that fighting against the King had saved themselves by flight From these and the Heirs of such as were slain in Fight all hopes of possessing either Lands or Rents were cut off But such as were called and urged to fight against King William and did not if in Process of time they could obtain the favour of their Lords and Masters by an humble Obedience and Obsequiousness they might possess something in their own Persons without hopes of Succession their Children only enjoying it afterwards at the will of their Lords to whom when they became odious they were every where forced from their Possessions Because some are prejudiced against the judicious Doctor Brady for asserting the Conquerours changes that he made I hope they will give ear to what the learned Selden affirms thus * Ex quo cis Normannorum adventum praeter ipsum Regem non fuit in Anglia is qui Allodii ut lequantur Jure sundum possederit cum scilicet aliis ad unum omnes siduciarios proâ—e dixeris Dominos superiorem investiâ—urae Anctâ—rem interpesita side perpetuo agnâ—scâ—ntes Lib. 2. Jan. Ang. That some while since the coming in of the Normans there was not in England except the King himself any one who held Land in right of Freehold as they term it since in truth one may call all others to a Man only Lords in trust of what they had as those who by swearing Fealty and doing Homage did perpetually own and acknowledge a Superior Lord of whom they held and by whom they were invested in their Estates So he Now this Fealty and Homage is now held no kind of Slavery but then it was as I have elsewhere noted Let us hear what the same Mr. Selden a little below saith That the Conqueror did not totally change the Constitution of the Laws Probe tametsi dixeris eversum secundum quod disputant Jurisconsulti Anglicum Imperium Id. Gervas Tilâ— c. 23. Oblatis vomeribus in signum desicientis Agriculturae although we may truly say according to what Lawyers dispute That the English Empire and Government was overthrown by him Thus far that learned Man Let us now return to the Exchequer-book where we find That when a common miserable Complaint of the Natives came to the King that they thus exposed and spoiled of all things should be compelled to pass into other Countries At length after Consultation upon these things it was decreed That what they could by their deserts and lawful Bargain obtain from their Lords The English compound with their Lords they should hold by unviolable Right but should not claim any thing from the time the Nation was conquered under the Title of Succession or Descent Therefore he saith they were obliged by studied Compliance and Obedience to purchase their Lords Favour It is true that in the 55th Law of (o) LL. Gulielm primi Edit Twysden p. 170. William the Conqueror it is said That he wills and firmly commands and grants that all Freemen liberi Homines of the whole Monarchy of his Kingdom may have and hold their Lands and Possessions well and in (p) In pace libere ab omni exactione injusâ—a ab omni tallagio Peace free from all unjust Exactions and Tallage that is extraordinary Impositions and Taxes so as nothing be exacted or taken unless their free services which of Right they ought and are bound to perform to us and as it was appointed to them and given and granted to them by us as a perpetual Right of Inheritance by the Common Council of the whole Kingdom In which we may observe The English have little Benefit by his Relaxation of the Feudal Law that this was no Magna Charta made to English Men these liberi Homines were such as held in Military Service as appears by the 58th Law following and those then were Normans and the Relaxations to them were that these Fees were made Hereditary which was not frequent among Feudataries in those days and the Complaints that were made after and the amendments that Hen. 1. promised were mostly about the hard Taxes and Exactions Therefore I may conclude That the ordinary English tho' many of them might live upon the Lands they and their Ancestors had enjoyed yet their Tenure was changed and they were but Vassals to other Lords 'till by little and little by the ways I have mentioned under the first Heads they
a se primo essent ordinata Eadmer tells us That when the Archbishop of Canterbury presided in a general Council of the Bishops the King permitted him not to appoint or forbid any thing but such things as were agreeable to his will and by himself were first ordained Also he saith in all his Dominions he would allow no Bishop of Rome to be accounted Apostolic but whom he commanded to be received nor any to receive his Bulls or Breves unless they were first shown to him I have in the beginning of this Chapter spoken something of the Mutations that William the Conqueror made in the Constitution of the Government of England concerning which I shall only note That the Conqueror took all the care that a great Commander and Conqueror of a great Nation could do for securing his Conqests (p) Pictav fol. 197. C. Ingulph 512. a lin 7. What the Conqueror did to secure his Conquest by building Fortresses and Castles within the City of London and placing Norman Garrisons and French Governours or Castellanes in the Castles in the Country and giving them great Estates and carrying the chief of the English Nobility with him as Hostages into Normandy and imposed his Laws as Pictavensis relates (q) Id. fol. 2â—6 a. 207 c. 2â—8 a. b. and though he who was Chaplain to the Conqueror speak of the Conqueror's smooth behaviour to the English ordering things as he saith prudently justly and mildly some to the Profit and Dignity of the City some to the advantage of the whole Nation and other some to the benefit of the Churches of the Land and whatever Laws he dictated he established with excellent reason and adds That no French-man (r) Nulli tamen Gallo datum est quod Anglo â—uiquam injuste fuecit ablatum Idem fol. 208. c. had any thing given him which was unjustly taken from any Englishman which last Ordericus Vitalis omits though in other things he follows Pictavensis exactly yet Pictavensis writing but to the Fourth of his Reign Anno 1070. as is noted by Ordericus we must look upon them as incompetent Witnesses of the severity the Conqueror after used when he had secured his Conquest So that what is urged by some of the Conqueror's lenity and his little change of Laws and Government is to be understood of those times while he was unsafe in his Conquests and doth not so interfere as they would make the World believe How he comported himself after he had secured his Conquest with the assertion of those who from credible Authors speak of his treating the English as a Conquered People For Pictavensis (s) Jure Belli possedit fol. 206. a. saith that he possessed the Country by the rights of War Ordericus (t) Adjutoribus suis inclytas Angliae Regiones distribuit ex insimis Normannorum Clientibus Tribunos Centuriones ditissimos erexit Orderic Vit. 251. Vitalis saith That having circumvented the two great Earls of Mercia and slain Edwin and imprisoned Morcas then he began to shew himself and gave the best Counties of England to his Assistants and of the lowest of the Norman Clients or very mean People he made very rich Colonels and Captains as he particularizes there and in another (u) Fundos eorum cum omnibus divitiis obtinâ—imus Id. fol. 853. place That having overthrown by Force and Arms the English Saxons they obtained their Lands and all their Riches Malmsbury (w) Malmsb. fol. 52. a. num 40. Vix aliquis Princeps de progenie Anglorum esset in Anglia sed omnes ad servitutem moerorem redacti essent ita ut Anglieum vocari opprobrjum saith That there was no Englishman Duke or Bishop or Abbat but Strangers do gnaw the Riches and very Bowels of England So (x) Hen. Hunt fol. 210 b. num 10. About the continuing the English Saxons but changing their Tenures Services c. Hen. of Huntingdon saith there was scarce any Prince of the Progenie of the English but all are reduced to Servitude and Sorrow so that it is a disgrace to be called an Englishman and Gervase of Canterbury saith That he used both Ecclesiastick and Secular Rights or Laws as he pleased tam Ecclesiastica Jura quam secularia sibi usurpavit As to King William's displacing of the Saxons I find in the Transcript of Doomsday-Book that I have for Yorkshire that very many enjoyed the same Lands they did in Edward the Confessors time but I remember no where that I do not find them hold of some Norman Lords which is agreeable to what Dr. Brady writes but I refer the Discourse of those to my Antiquities of Yorkshire if God give me life and ability to publish them As to the Conqueror's changing the holding of Lands here to the (y) Spelman Gloss Feodam Feudal Tenure used in Normandy begun by the Germans Longobards Francks and others and of which something seems to be hinted in the English Saxon Laws all Authors do conclude that the Conqueror brought the exacter use at least of them into England and divided the whole Land into several Knights-fees whereof there are reckoned 700 Tenants in Capite besides Bishops Abbats Priors and great Church-men and the Laws of King Edward that the Conqueror permitted to be used were either most of them Penal Laws from which he got profit or such as are properly his own and were efficacious for the preservation of the Peace and establishment of Government as the 52 55 56 58 59 64. whereof the 55 58 and 59. are Feudal How William the Conqueror brought in his other Norman Laws Dr. Brady in his Preface to the Norman Story hath at large discoursed so that in Justice I must refer the Curious Reader to his elaborate work and to Mr. Selden in his Second Book of his Janus Anglorum Of the Great Councils in William the Second's time IN the Reign of William Rufus we find few Great Councils So that Anselm Archbishop of Canterbury complains (a) Eadmer Hist Nov. lib. 1. fol. 24. lin 8. to him when he was preparing to pass into Normandy that since he was King there had been no General Council of the Bishops nor of several years before so that Christianity was much decayed The first great Council I have met with is that of Winchester (b) Idem fol. 20. num 30. Anno D. 1093. 5 W. Rusi The Contest betwixt William the Second and Anselm This Council is only thus expressed Rex adunato Wintoniae conventu Nobilium without specifying either Ecclesiasticks or Laicks In this Council the King declared Anselm Archbishop and he did Homage to him (c) Idem p. 26. num 10.6 Gul. 2. This Anselm sought leave of the King that he might go to Rome to receive the Pall from Pope Vrban whom the King did not own for Pope but Clement This and some other Matters occasioned sharp words and unkindness from the King to Anselm the King absolutely denying
〈◊〉 〈◊〉 〈◊〉 〈◊〉 and according to the Use of the Country for that the Barbarous Nations were more prone to Servitude than the Grecians and the Asiaticks endured with less trouble than the Europeans that Command which he calls Absolute as of Masters over Servants This he calls in reality 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Tyrannical Government but Kingly also in that it is firm legitimate and according to the Use of the Country For that he (s) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. lib. 3. cap. 10. Hâ—insii saith Citizens or Subjects defend Kings but Guards of Strangers are employed by Tyrants Kings commanding lawfully over the willing and Tyrants over the unwilling and without Rules of Law The third kind he calls that which among the Grecians was styled the Aesmynetian And this he (t) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Optiva tyrannis i. suffragio 〈◊〉 saith was an Elective Tyranny either perpetual for Life or for a time And this because it was a Command over the Willing such Persons being elected he styles a Kingly Government and instanceth in the Mitylenians who chose Pittacus to be their King against Alcaeus and Antimenides who were banished Such (u) Halicarnassâ—us lib. 5. Dionysius makes the Roman Dictators Such the Cumaeni by an honester Name styled their Tyrants and such were the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of Athens Such a Kingdom Timolio held at Syracuse which he as well as Pittacus spontaneously resigned and did not convert into a Tyranny as Dionysius did or as Sylla and Julius Caesar did at Rome and Aratus at Sicyon according to the (w) Lib. 3. de Officiis Orator The last kind he calls (x) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lib. 3. Polit. c. 10. Heinsii Heroic because it was used in the Heroick Ages and had three Characteristicks of true Kingly Government That it was a Power exercised over the Willing Fatherly and Legitimate For he saith the first Kings either for the Benefits they conferred on the Multitude by Invention of Arts Conduct in War or leading them out in Colonies or supplying them with Lands governing those who lonies or supplying them with Lands governing those who freely yielded to obey were in that esteem and had that Power and Authority which was requisite These had command in War and in things sacred where there were no Priests and did determine Causes and all these things some Kings administred without Oath others were sworn to the observation of them by the lifting up the Scepter and (y) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. concludes that in ancient times Kings had Rule and were Lords over all affairs of the City and those at home and abroad From whence and from what the Philosopher delivered in the beginning of this work and elsewhere (z) Commâ—nt in lib. 1. Polit. initic Giphanius with Thucydides concludes That these Hereditary Kings had such a Power as was restrained by certain Laws and they did not Reign as they listed and at their Pleasure but by certain Prescripts of Laws such we may presume as they ordained This was that Monarchy which was known in the first Ages of the World All People in all Ages and all places having by constant Experience found it most conducive to their Happiness and well-being For had there been any other form under which Mankind could have rationally promised themselves more or more certain Happiness than under this all humane care would long e're this have hit on it and there would have been an universal Regifugium But supposing we should quit these Topicks of Monarchy Other commendable Qualifications of Monarchy being according to the Law of Nature and that it is venerably for its Antiquity there are other Commodities wherein it excells other Forms As first that it is freest from the Canker of Faction which corrodes and consumes all other Governments Hence the most judicious (a) Tacitus 1. Annal. Historian tells us what Asinius Gallus replied to Tiberius That the Body of the Empire is one and so is to be governed by one Soul and in (b) Arduum sape eodem loci potentiam concordiam esse Idem another place tells us how difficult it is to find Concord among Equals in Power especially where not only as at Sparta there were two races of Kings governing at once but as many of them as there were Senators or Magistrates which by Bands and Confederacies are restlessly making Parties against each other whereby the Administration rowls from one Faction to another whereas Kingly Government is uniform and equal in it self and when by Factions Commonweals have been brought almost to utter ruin a (c) Omnem potestatem ad unum conferri pacis interfuit Tacitus 1. Histor single Persons Conduct hath restored all As (d) Perculsum undique ordinavit Imperii corpus quod ita haud dubie nunquam coire consentire potuisset nisi unius Praesidis nutu quasi anima mente regeretur Lib. 4. c. 3. Florus writes of Augustus Caesar that he ordered the shaken and distracted Body of the Empire which without doubt could never have been united in one Form again unless by the Direction of one President as a Soul and Spirit Even so we experienced in his late Majestie 's admirable yea miraculous Retauration which effected as great Blessings to these Islands as that of Augustus to the Roman Empire Besides it is a strong Argument for the Preference of Monarchical Government to all sorts of Republics that in all popular States we find all great affairs managed by some one leading Man who by the dexterity of his Address Power of his Eloquence or the Strength of his Arguments induceth so many as are necessary to join with him to effect them unless when by contrary renitency they are dissolved into Faction So when the Senate of Rome was in a most critical Debate An delenda esset Carthago Cato shewing them the Grapes which a few Years before grew there illustrated from thence the dangerous vicinity of so potent and opulent a State as had contended with them for the universal Empire and wanted only the skill of an uti Victoria to have effected it By which he cooled the warm Debates of the Senate and brought them to an affirmative Determination So Cicero often prevailed so Demosthenes and so the Daemagogues in popular States who are (e) Nalson's Common Interest pro tempore Monarchs the very head of every Faction in a Republic being a King in Disguise or a Tyrant in the dress of a Private Man The single Government being freed from the prime Cause of all intestine decay viz. Faction It necessarily follows that it must be of longer Duration Monarchy more durable as being built upon stronger and firmer Foundations than any other Model Ambitions Aemulations Hostile Parities popular Insolencies Senatorian Tyranny tumultuous Elections and infinite causes of Discords are the inseparable Associates and close Conomitants of all other Forms But in Monarchy hereditary
the Spaniards there were as many Obelisks or pointed Pillars set about their Graves as they had killed Enemies All which and infinite more Places in (c) The necessity of having a Standing Force is for preventing Rebellion and defending against Foreigners as appears in Aristotle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lib. 7. c. 8. him and other Authors produceable sufficiently clear the necessity of a Prince's both having and encouraging Military Force and all are as so many Arguments That it is very necessary and conducible to the Prince's Glory and Safety as well as his Peoples that he be not only valiant and couragious in his own Person but that he understand the Office of a great General There are none more famous in the World than such Princes as have themselves led and headed their own Armies as is most eminently proved in Alexander the Great and Julius Caesar So in our King Richard the First and Edward the First Hence it is that (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Diâ— l. 13. Caesar was wont to say There are two things which obtain keep and encrease the Princedom viz. Soldiers and Money For as the great (e) Non ignavia magna imperia continâ—ri sed virorum armorumque faciendum certamen Historian observes By Sloth no great Empires are held together but it must be done by Force of Men and Arms It being (f) Sua retinere privatae domus de alienis certare regiâ—m 〈…〉 15. Annal. the part of a Private Family to retain its own but to carry Arms abroad is a Kingly Praise Such a Prince who hath when a Subject hazzarded his Life for his King and Country shown his great skill in ordering and providing for his Army in disciplining it How a Military Prince prevents Rebellious of his Subjects hath been fortunate and successful hath a Genius to military Employment a brisk and vigorous Soul not only when he comes to be Sovereign himself puts a fresh Spirit into his People by raising their Hopes and Confidence that he will encrease the Glory of his Nation but it makes him secure at home from Seditions and Rebellions For he is very fool-hardy or desperately Revengeful that will challenge a single Man who is experimented to have Valour and Skill at his Weapon much more is he who knowing his Prince such an one and who hath the Power of his Kingdom to assist and defend him will offer to molest his peaceable Reign unless he find some advantagious opportunity strangely favourable to his Design or take some Season before such a Prince be well setled in his Throne as despairing ever after to effect any thing and be in that desperate Condition that if he then cannot push forward his Designs he must for ever live inglorious and miserable Such was the Case of the rash ingrateful and aspiring Duke of Monmouth who to the eternal discredit of the name of Protestant so unpolitickly as well as maliciously raised the late Rebellion against his Lawful Soveraign pretending a Legitimacy which his Father that the best of all Men living knew the falshood of disowned and more than once made publick Declaration of it How he prospered in this attempt the World knows and if He and his Advisers had not been besotted they might have easily foreseen Besides this great and happy advantage to a valorous and Military Prince How a couragious Prince secures his Subjects from Foreign Enemies in the securing his own Country in Peace within themselves the Benefit is likewise great in the preventing of any affronts injuries or Indignities to him or his People from any of his Neighbours for none dare (g) Nâ—mâ— provocare au let aut facere in juriam ei Regno aut populo quem intelligit expeditum atque promptum ad vindicandum Vita Alex. provoke or do Injury to a King his Kingdom or People saith Lampridius that knows the Prince prepared forward and ready to vindicate his People This military Genius in a Prince being supperadded to his other Royal Vertues and Qualifications furbisheth all their Arms sets a fresh Gloss and Lustre upon them and such a Prince being generally successful in his Attempts for that commonly gives the first notice of his Courage and Conduct will have every one readily flock to his Standard to (h) Objicient se mucronibus insidiantium se suaque jactabunt quocun que desideraverit Imperantis salus Sen. 1. de Clem. expose themselves betwixt him and the points of Traitors Swords will have them throw themselves and their Fortunes whereever the safety of their King requires it So Cicero notes that Fabius Maximus Marcellus Scipio Marius and other great Generals had the Emperors Office and Armies committed to them not only for their Vertues but also by reason of their fortunateness to whom (i) Cic. pro Manilio Quibus etiam venti tempeslatesque obsecundant the Winds and Tempests have been favourable It greatly (k) Vehementer enim pertinet ad bella administranda quid hosâ—es quid socii de Imperatoribus existiment Idem conducing to the management of War what opinion the Enemies and Allies have of such Generals as the same Orator notes and the like may be said of Warlike Kings What immortal Glory is it to England that it hath had King Richard the First Of King Richard the First who carried his victorious Ensigns to the Holy Land What a Memorial of his Name and of the Prowess of his People hath King Edward the First left to all Posterity by the advancing his conquering Armes into the very High-Lands of Scotland Of King Edward the Third and the Black Prince What renown did King Edward the Third and the Black Prince his Son win in France when they not only won so great Victories but brought the King Prisoner and what no Nation else can boast of had at the same time the King of Scotland also Prisoner It may be easily conceived that these two valiant Princes and the Sons of that great King spirited the whole English Nation and in that Age the Renown of it equalled what now the French ascribe to their great King The Annals swell with the Atchievements of Henry the Fifth who in so few Years Of Henry the Fifth upon the matter subdued all France So that his Infant Son was Crowned King at Paris It is not to be expected that many Ages can produce such Examples but every Reader of History may observe That in every Age some one or two Crowned Heads carry the Trophies from all the rest fill their Countries with Triumphal Arches and raise pyramids of Glory to their own and their Countries high Renown A strange Factiousness in the Reigns of our three last Kings and the dreadful Rebellion Why our three last Kings could not appear so Formidable abroad have deprived them of the opportunity of showing the English Prowess on the publick Theater as it had been before Yet when they were employed they
in the Assyrian Empire Nebuchodonosor is styled King of Kings Daniel c. 2. and after the translation of this Empire to the Persians Artaxerxes Mnemon in his Commission to Ezra for the Restitution of Jerusalem and the Temple thus salutes him Artaxerxes King of Kings to Ezra the Priest And on the Great Cyrus his Tomb this Epitaph was written in Persian Characters if you believe the Authors that have it (r) Eustach ad Dionys Strab. Geog. 15. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Here I Cyrus lie who was King of Kings And the bare Name of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the King without addition is especially used for the Persian whence the Nation is styled also 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The most Kingly Nation (s) Diodor. bibl 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Sesoosis the same with Sesostris in Herodotus King of Egypt attributed to himself the Title of King of Kings in his erected Columns of Victory And (t) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Earth and Water given as Tokens of Homage Plutarch reports That Tigranes King of Armenia was angry and would not vouchsafe to answer Lucullus because in his Letter he had styled him King only and not King of Kings The Acknowledgment of Regal Supremacy paid by way of Homage from Princes or People under the Subjection of such Kings was the Acceptance upon their Demand of Earth and Water A special Example of which is in (u) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Herâ—dot in Melpom. Darius's Letters to Indathyrsus King of the Scythians where he first invites him to the Field but if he would not then bringing to the Sovereign as Gifts Water and Earth come to a Parley as the Words run So in the Assyrian Empire the King commands (w) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lib. Judith Olophernes That he should bid all the Western Nations prepare him Earth and Water By the yielding up of these two Elements they acknowledged a giving up to those Sovereigns their Jurisdiction over them When William the Conqueror landed at (x) Malmesh de Gestis Reg. lib. 3. Hist Norman apud Camd. Hastings in Sussex as he came out of his Ship he fell down and one of his Knights told him Sir you have possession of England and shall be King and observing that he had took up Sand and Earth in his Hand he added And you have taken Livery and Seisin of the Country So when Land is sold in England the way of receiving Possession is by delivering a Clod of the Earth and a Twig of Wood if any be growing on it To denote also the Sovereignty of such Princes kissing of the Feet or embracing their Knees or Adoration was used Kissing the Teet Knees and Hands of Princes (y) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Herodotus saith When the old Persians meet you may know whether they be equal or not for in Salutation they kiss one another but if one be something inferiour they kiss only the Cheeks and if one be far more ignoble he falls down adoring the other The manner of which Adoration is yet observed in the Eastern Empires as may be seen in the Prints of them in Mr. Ogilby's Asia especially in Japan Thence we have Adorari more Persarum and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is expressed by Euripides thus personating Phrygius to Orestes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Falling down I adore thee O King after the Persian manner In Alexander's turning the Grecian Liberty into this Servitude Q. Curtius expresseth it by Venerari procumbere humi corpus prosternere and thereof Justin saith the (z) Retentus est a Macedonibus mos salutandi Reges explosa adoratione Jam coepisset Heliogabalus adorari Regum more Persarum Macedonians retained the manner of saluting their Kings exploding the Adoration Lampridius speaking of Alexander Severus saith That he forbad himself to be adored but Heliogabalus began to be adored after the Persian manner As to the Kissing the Learned (a) Tit. Hon. c. 3. Selden saith It was usual in Adoration among the Romans either to kiss the Images of their Gods or adoring them to stand somewhat off before them (b) Cicero in Varr. Act. 5. Lucret. lib. 1. Sape salutantum c. solemnly moving the Right-hand to the Lips and then casting it as if they had cast Kisses and turning the Body on the same Hand which was the right Form of Adoration and it grew by Custom first that the Emperours being next to Deities and by some accounted as Deities had the like done to them in acknowledgment of their Greatness After some of the Roman Emperours would be called Jupiter be supposed carnally to lie with Venus and the Moon and upon their infinite such-like frantick Conceits pretended themselves to be Divine they were not satisfied with Those usual Customs but thought themselves much wronged and their Majesty impaired if they who saluted them (c) Dio Cass Hist 59. presumed to kiss above the Knee We find Examples of Kissing the Hands and Feet in Caligula Therefore (d) Homo natus in hoc ut mores liberâ—â— civitatis Persica servitute mutaret 2. de Benef. c. 5. Seneca speaking of his offering his Feet to kiss says He was a man born to that so as to change the Customs of a Free City into Persian Servitude Maximinus Junior allowed the kissing the Knees Feet and Hands and Diocletian according to Pomponius Laetus published an (e) Vbi omnes sine generis discrimine proâ—â— rati pedes exosâ—ularentur exornans calceamenta auro gemmis margaritis Edict That all without distinction being prostrate should kiss the Feet therefore he adorned his Shoes with Gold Gems and Pearl Yet this was not allowed by all For Tiberius as Suetonius tells us oscula quotidiana prohibuit edicto and the elder (f) Dii prohibeant ut quisquam ingenuorum pedibus meis osculum figat Capitolin Maximin although a Tyrannical and most wicked Prince yet would suffer none to kiss his Feet saying The Gods forbid that any Freeman kiss my Feet And Alexander Severus was only saluted by his Name God save thee Alexander as Lampridius tells us who adds That if any bowed the Head or spoke any thing like a Flatterer if his Quality permitted he was spurned away or if his Dignity allowed not such an Injury to be done him he was laughed at aloud And (g) Lib. 10. Epig. 72. Martial in Trajan's time rejects those base Flatteries that had been used to Domitian thus Ad Parthos procul ite Pileatos Inopes humilesque supplicesque Pictorum sola basiate Regum Princes use now only the kissing of the Hand besides a profound Obeisance to them in stead of these forementioned Adorations and the kissing of the Hand is offered frequently as a Testimony of serviceable Love to other Great Persons according to that of (h) Inest in aliis partibus quaedam Religio sicut dextra osculis aversa appetitur fide
WEST SEAXNA CYNING I Ine by the Grace of God King of the West Saxons in his preamble to his Laws But until about our Henry the Third it was not of so constant use as that the Stile of the King necessarily required it This Stile of Dei Gratia is frequently given in old time Given to Spiritual Lords and yet in use to Spiritual Lords nothing being more common in the Instruments of Bishops and Abbats in the Chartularies of Monasteries and it is given from Kings to them in the Summons of Parliament and Writs to Assemble or Prorogue Convocations in this form Jacobus c. Reverendissimo in Christo â—â—tri praedilectoque fideli Consiliario nostro Georgio eadeâ—◠〈…〉 Archiepiscopo Cantuariensi c. But at this day though it 〈◊〉 â—â—ven to them they use it not in the first Person but Deâ— (i) Rosula Novella 〈◊〉 cap. 111. â—â—mentia or Providentia Divina and in older times when they writ to the Pope Emperor or King they were not to write Dei Gratia of themselves but only such or such licet indignus vel immerens Bononiae Episcopus c. By all these Titles we cannot but observe that the dignity of Kings and Sovereigns was looked upon in all Ages as deriving Authority from God Almighty and his Vicegerents here upon Earth having the Attributes of God that as he was Supreme over all things in Heaven and Earth so they within their Districts upon Earth I shall end this Chapter with this Observation That the Attribute of Dei Gratia applied to Sovereigns and Bishops might probably have Authority from the Constitution of Justinian (k) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Just Noâ— 6. init 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. which runs thus The greatest Gifts which Gods goodness from above hath conferred on Men are the Priesthood and Empire both of which proceed from one and the same Principle and are for the ordering and disposing of the Affairs of Mankind Concerning the peculiar Title of our Kings of England Defender of the Faith the learned Spelman having given us thâ— Copy of the Bull and discoursed so fully of it I shall 〈◊〉 the curious Reader to him for satisfaction CHAP. XVII Of the Soveraignty of the Kings of England according to our Histories and Laws THE Titles and Attributes which other Soveraign Princes have either assumed The Kings of England have used all the Titles proper to Sovereign Princes or have been given to them our Kings of England have used as might be made appear by innumerable Examples But I shall treat but of a few and shew wherein the Soveraignty is discovered and what ancient Prerogatives they have by their acts of Grace quitted and lastly how the long Parliament of 1641. would have cramped the King's Authority First as to the Title of King or Emperor promiscuously So our Edgar frequently in his Charters calls himself Albionis Anglorum Basileus As King Emperour Lord. and I have noted before that the Grecians esteemed the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to be of full as eminent Signification as Emperor So in a Charter (a) Cod. Wigorn. to Oswald Bishop of Worcester he is called Anglorum Basileus omniumque Regum Insularum Oceanique Britanniam circumjacentis cunctarumque Nationum quae infra eam includuntur Imperator Dominus In which we may note that one of our Kings of England writ himself not only Basileus according to the Grecian usage which signified King and Emperor but also Emperor and Lord three of the fullest Attributes either the Grecian or Roman Emperors ever used as also Lord of the British Sea as Canutus his Successor challenged So in a Charter to (b) Mon. Ang. par 1. p. 64. Peterburg Ego Edgar sub ipso sidereo Rege praesidens Regno Magnae Britanniae I have seen another (c) Lib. MS. Roberti de Swapham c. Fundationis Burgensis Coenobii p. 38. of his Charters prefaced thus Gratia Domini nostri Jesu Christi omnium seculorum omnia suo Intuitu distribuentis Regna terrarum moderantis habenas rerum Ego Edgar sub ipso eodem Rege praesidens Regno Britanniae c. So King (d) Id. p. 39. Edward in the same Book stiles himself Ego Edwardus Rex Anglorum Monarchiam Regiminis tenens hoc decretum Patris mei per deprecationem Abbatis Aidulfi perhenniter affirmavi In which we may note that Edgar owns himself subject to Jesus Christ God And King Edward saith he holds the single Command of Government So King Edward in a (e) Coke Praefat. 4. Reports Rex Anglorum totius Britanniae Telluris Gubernator Rector Angligenum Orcadarum necnon in Gyro jacentium Monarcha Anglorum Induperator Charter to Ramsey stiles himself Totius Albionis Dei moderante Dominatione Basileus King of all Albion and King Edwin in a Charter to Crowland calls himself King of England and Governour and Ruler of all the Land of Britain So Ethelred in his Charter to Canterbury stiles himself Of all the English born and the Oreades lying in Circuit about it Monarch and Emperor of the English So that by Orcades must be understood all the Isles about Britain So William Rufus dates his Charter to the Monastery of Shaftsbury secundo Anno Imperii mei By all which it appears that the Kings of England have justly assumed the Supream Imperial Command in their own Dominions and though the Title of Emperor hath been disused Kings of England as much Sovereigns as Emperours yet we shall find the substance of it sufficiently challenged in that of (f) Ipse omnes libertaâ—â—s 〈◊〉 Râ—gno habebat suo quas Imperator vendicabat in Imperio Matt. Paris in vita Willielmi 2. William Rufus to Arch-Bishop Anselm when he told him That he had all the Liberties in his Kingdom which the Emperor challenged in the Empire And in a Constitution (g) Râ—gâ—um Angliae ab omâ—i subjectione Imperiali liberrimum Claus 13 E. 2. m. 6. dorso of King Edward the Second it is declared That the Kingdom of England is most free from all Imperial Subjection which excluded all public Notaries who were made by the Emperor or Popes and by this Constitution were utterly rejected The Statutes for it This further appears in the (h) Stat. Anno 23 E. 3. c. 1. Vide Coke Instit 2. 111. 4 part 6. 8. 3. Instit 120 125. Statute of Praemunire made 23 Ed. 3. which runs thus That it being shown by the grievous and clamorous Complaints of the great Men and Commons how that divers of the People be and been drawn out of the Realm to answer of things whereof the Cognizance pertaineth to the King's Court and also that the Judgments given in the same Court be impeached in another Court in prejudice and dis-inherison of our Lord the King and of his Crown c. Therefore it was enacted That none of the King's Liege-People of
what condition soever shall draw any out of the Realm in Plea whereof the Cognizance appertaineth to the King's Court or of things whereof Judgments be given in the King's Court c. This Statute as well as that of Provisors 25 Ed. 3. was made to hinder the Subjects Appeals to Rome or to any other Court in such things whereby the King's Soveraignty might be diminished and this Statute relates to one made by King Edward the First Also in the Statute of Provisors 25 Ed. 3. reference is made to the (i) Anno 35 Regni Statute made at Carlisle by King Edward the First The Statute of (k) 16 R. 2. c. 5. Praemunire for purchasing Bulls from Rome gives an account of the preceding Statutes and further saith Whereas our Lord the King and all his Liege-People ought of right and of long time were wont to sue in the King's Court to receive their Presentments to Churches Prebends and other Benefices of Holy Church which they had right to present to the Conisance of Plea of which Presentment belongeth unto the King's Court of the old right of his Crown used and approved c. then particularly enumerates the Encroachments of the Bishop of Rome by Processes Excommunications of Bishops for executing Judgments given in the King's Courts and the translating of Prelates out of the Realm or from one spiritual Living to another against the King's Laws and Regality c. The Statute expresly declares That the Crown of England hath ever been so free that it is in no Earthly Subjection but immediately subject to God in all things touching the Regality of the Crown and to no other Under King Henry the Eighth (l) 24 H. 8. c. 12. the whole Parliament say that by sundry old and authentick Histories and Chronicles it is manifesty declared and expressed that this Realm of England is an Empire and so hath been accepted in the World governed by one Supream Head and King having the Dignity and Royal Estate of the Imperial Crown of the same unto whom a Body Politick compact of all sorts and degrees of People divided in Terms by names of Spirituality and Temporalty have bounden and owen to bear next to God a natural and humble Obedience The next (m) 25 H. 8. c. 21. Year in another Statute it is stiled the Imperial Crown and Royal Authority recognizing no Superior but only Your Grace and in the Chapter following the Kings of England are stiled Kings and Emperors of this Realm and in (n) 28 H. 8. c. 7. another of the same King it is called The most Royal Estate of the Imperial Crown of this Realm So in the same (o) Stat. Hilâ—â—◠〈…〉 8. c. 2. Year before the Title of Lord of Ireland was altered into King the Stile is Kings and Emperors of the Realm of England and of the Land of Ireland and in several other Statutes it is called the Imperial Crown I have inserted these to clear that by our Laws the Kings of England are under no Subjectjon to any foreign Prince or Potentate whatsoever And Mr. (p) Tit. Hâ—â— p. 21 22. Selden saith that the Supremacy is not only used by the English Sovereigns but hath been challenged by the Kings of Spain Denmark Poland the Czars of Muscovy and other free Princes over all within their own Dominions exclusive of all foreign Powers and upon the like ground of Supremacy was that Law made by King James the Third of Scotland in these words Our Sovereign Lord has full Jurisdiction and free Empire within this Realm c. A Confirmation of this Supremacy of our Kings appears in what is reported of our King Edward the Third That when Lewis (q) Quod Râ—x Anglix non se submisit ad osâ—ula pedum suorum of Bavier the Emperor had an Interview with him the Emperor stomached that the King of England submitted not himself to kiss his Feet But the King answered That he was (r) Rex inunctus habet vitam membrum in potesâ—ate sua ideirâ—â— non debet se submittere tantum sicut Rex alius an anointed King and had Life and Member in his Power therefore he ought not to submit himself to him as other Kings Whence it was that Alsonso the ninth King of Castile defining what Kings were after he had dispatched the Particulars that belonged to the Emperor says That they are every one in their Kingdoms the Vicars or Vicegerents of God placed over the People to govern them (s) Bien assi come el Emperador en su Imperio Partid 2. tit 1. Ley 5. 8. no otherwise than as the Emperor is in his Empire Whoever desires further Satisfaction in this Point may have recourse to the voluminous Collections of Mr. Pryn and other Authors that have treated of the Kings Supremacy Most of what I have hitherto discoursed relates to the King's Supremacy ab extra that he hath no foreign Superior that ought to impose any thing upon him or his Subjects contrary to his Pleasure and his Laws in his Dominions I shall now give a short Abridgement of what I find our learned Lawyers have writ concerning the King's Authority and Sovereignty in his Kingdom of England and how Wherein the King's Sovereignty consists according to our Laws in former Ages Kings have quitted some of their Royal Prerogatives In our Laws the King is stiled in Ecclesiastical matters the Supreme Ordinary (t) Cokâ— 11. 86. Calvin's Case 215. in Civil matters caput Reipublicae Pater Patriae totius Regni Pater-Familias Chief Justice c. being furnished with plenary Power to render Justice and Right to every Member and part of the whole Body (u) Coâ—â— 2 part 1 2. 24 H. 8. c. 1. 24 Eliz. c. 1. without the help of Foreign Jurisdiction Some Attributes of God in a similitudinary way say (w) 〈◊〉 8◠〈◊〉 177 2â—8 212 〈…〉 the great Lawyers are aseribed to him for the Excellency of his Person and the greatness of his Office as Sovereignty and Power Omnipresence Majesty Immortality c. In his Political (x) 〈…〉 Grand Abâ—iâ—gment part 3. p. 44. Capacity not subject to the Infirmities of others as Nonage Death Attainder c. So no Laches Negligences Defects or Stops of Blood can be imputed to or fastned upon him as is well known in the case of King Henry the Seventh (y) St. Albans vita â—en 7. p. 29. wherein it was unanimously resolved by the Judges That his Natural Capacity doth so far participate with the Politic which is superadded to the Body natural of the King that these become consolidate consubstantiate and indivisible in one and the same Royal Person and the Body Politic which is the more worthy and of a sublimer Nature is in no ways obnoxious to the Humane Imbecillity of Death Infamy Crime or the like but doth draw from the Natural Body all Imperfections and Incapacities whatsoever So that there is
by the Law said to be in the King (z) Sheppard ut supra a threefold greatness of Perfection First of being freed from Infamy and all kind of Imperfections common to Man Secondly of Power in having the command of all his People Thirdly of Majesty being the Fountain of Honour Justice and Mercy The King is Gods immediate Viceroy (a) Câ—k 2.44.5.29 within his Dominions Vicarius Dei As his Protection and Government reacheth to all his People as Subjects so the Allegiance and Obedience of them all is due to him as their Sovereign whether Ecclesiastical or Civil and so he is Persona mixta his Prerogatives are called Jura Regalia Insignia Coronae Ancient Prerogatives and Royal Flowers of the Crown so inseparably annexed to the Crown that none but the King may have them nor can they be communicated to or taken by any Subject (b) Bracton lib. 1. c. 8. Stat. 25 H. 8. c. 21. Nemo terram nisi Authoritate Râ—gia possiâ—et Plowden 136. Jenkins Cent. 7. Case 77. 2. Case 16.17 E. 2. c. 17. Nevil 101.174 All Lands are said to be held of him immediately or mediately he can hold of no Man or any be equal to him as to be joynt Tenant of Land with him and his Jurisdiction is over all places within his Dominions both on the dry Land and on the Sea The Judges are to observe it as a certain Rule That whatever may be for the benefit of the King and his profit shall be taken most largely for him and what against him and for his disprofit be taken strictly neither is it only the duty of Judges but of all other his Subjects in their Stations to help the King to his Right The Perogatives are many and great yet such as are his by the Ancient Law of the Land and what the Kings of England have time out of mind used and are such as are of absolute (c) Coâ—e 12.8.30.2 part Instit 262.496.5 part 11.2.8 necessity for the security of the Government and the Public weals As to call and dissolve Parliaments give his Royal Assent to Laws command the Militia coyn Moneys grant Honors make and dispose of the great Seal dispense with penal Laws pardon Felonies and Treasons make and appoint great Officers Justices of Eyre and Assize of the Peace Gaol-delivery and Sheriffs to grant Charters to Corporations and other Persons or Fraternities He hath the sole Power of appointing ratifying and consummating all Treaties with Foreign Princes making War and Peace granting Safe-Conduct and Protection and all these and many other are firmly ascertained (d) Quod Rex est 〈◊〉 Lex est Regi Rex est Amma 〈◊〉 Lex est Anima Regi by Laws and have ever been and still are in the King alone and at his own Discretion Although there is no need in describing the Sovereignty of our Kings to carry it up to that absoluteness of Monarchy where all things are appointed and reversed by the Sovereigns fiat yet (e) Jus Regium p. 42. we must on the other side consider That the Monarchy which is subject to the impetuous Caprices of the Multitude when giddy or to the incorrigible Factiousness of the Nobility when interested is in effect no Government at all it must be owned That in all Governments a Sovereignty must reside some where and a Monarch can 〈◊〉 no Participants For then it would cease to be a Monarchy and in things that relate immediately to Government the King hath as much right to regulate them as to instance to restrain the Licence of the Press or secure Peace as we have to regulate and dispose of our Property Government being the Kings Property for with the Monarchy the King must enjoy all things that are necessary for the Administration of it according to that just Maxim (f) Quando aliquid â—oneditur omnia concessa videntur sine quibus concessum explicari nequit of the Law When any thing is granted all things seem to be granted without which the thing granted cannot be explained Which warrants the Kings Advocate of Scotland to lay that down as a general (g) Jus Regium p. 77. Rule That their Kings can do every thing that relates to Government and is necessary for the Administration thereof though there be no special Law or Act of Parliament for it if the same be not contrary to the Law of God Nature or Nations The Power and Authority of the Kings of England have been much more unbounded than they are at present (h) Part 1. c. 16. sol 34. Bracton speaking of his time saith That neither the Justices or private Persons might dispute the Kings Charter but if there were a doubt of it the Resolution must come from the Kings own Interpretation If Justice be demanded of the King saith (i) Idem lib. 1. c. 8. p. 5. he seeing no Writ lies against him one must petition that he would correct and amend what he hath done By the Condescensions of gracious Princes such Restrictions have been made of their Sovereign Absoluteness By the Grants and Condescensions of our Kings their Absoluteness lessened that they have obliged themselves to govern their Kingdoms transmitted to them with such Limitations by their numerous Ancestors by Rules of Law Equity Justice and right Judgment in Imitation of their Supreme Head and Omnipotent Monarch That therefore it may demonstratively appear how happily the Government of England is constituted for the Benefit of the Subjects who under so benign a Monarchy enjoy more Advantages in the Security of their Persons and Proprieties than under the most free Commonwealth that ever we read of I shall lightly touch upon some of those Particulars which the Kings of England by reason of several Acts of Parliament they have given their Royal Assents to have precluded themselves from the single Disposal of as in Absolute Monarchies are used yet I hope to make it clear in several Branches of this Discourse That there is no such thing as Co-ordinacy of any other Power or such a mixture as vitiates the Monarchy by a debasing Alloy much less that the Government can be Arbitrary or Tyrannical which hath sheathed the Sword of Justice within the Velvet Scabbard of the Laws and lined the Scarlet Robes of Majesty with the softest Ermine of Indulgence to well deserving Subjects who by their Obedience and Considerateness make their Princes and their own Happiness most perfect For it is equally unhappy to Princes and Subjects where (k) Alii Principes Reges hominum ipse Rex Regum Maximilian's Jest is true That whereas other Princes were Kings of Men he was King of Kings because his Subjects would do but only what they list But to come to the Particulars of Royal Abatements and Indulgences The Kings of England may not rule their People by their Will or by Proclamation as the Roman Emperors by their (l) 〈◊〉 lib. 2. c. 8. The
Particulars of Royal Abatements Edicts or make new Laws or change any of the old standing Laws without the mutual Consent of the two Houses of Parliament He may not oppress the People or in any Arbitrary way take from them their Liberties or Estates under any pretence whatsoever without due course of Law Nor can he impose upon their (m) Stamford's Pleas of the Crown Persons what Charges or Burthens he pleaseth but according to and by the Laws of the Kingdom He cannot do any thing against the Law of the Nation or against common Right cannot change Ancient Customs for a Legal (n) Hâ—ghs 's Reports 254.263 Cousâ—uetudo lâ—galis plus habet quam concessio Regalis Custom is more available than a Royal Concession yet on the other side that Custom which advanceth against the Prerogative of the King is void He cannot impose Arbitrary (o) Petit. of Right 3 Car. 1.7 Car. 1. c. 17. payments erect new Offices of Charge to the Subject may not deny or delay Justice may not compel his People to make Gifts Loan Benevolence or Tax without consent of the two Houses The King (p) 2 Car. 1. c. 1. Coke 12.46.2 part Brown lib. 2. c. 2. Coke Instit 2 part 47 48. Petition of Right Dyer 176. may not imprison without just Cause nor keep any Mans Cause from Tryal may not send any man out of the Realm without his own Consent may not in time of Peace Billet or Quarter Soldiers or Mariners upon his People against their Wills may not grant Commission to try Men by Martial Law in time of Peace nor to determine any matters of difference betwixt Subjects other ways than by ordinary (q) 21 Jac. c. 31. Coke 11.87 Plowden 497. course of Law and ordinary Courts may not by Patent or Licence make a grant of a Monopoly or the benefit of a Penal Law or give a Power to dispense with Penal Laws in some Cases (r) Coke 11.87 He may not have or take that he hath right to which is in the Possession of another but by due course of Laws and may not make new or alter old Courts of Justice unless to be kept after the Course of the Law and not in Course of Equity Nor (s) Sheppard's Grand Abridgment part 3. fol. 49. alter the Courts of Westminster that have been time out of mind nor erect new Courts of Chancery Kings-Bench Common-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
(q) Power of the Prince p. 81. Primate is obvious because the inflicting of a punishment is an Act of a Superior to an Inferior and to make one upon Earth Superior to the Supreme Governour would imploy an absolute contradiction though a Father or Master were never so faulty none would be so absurd as to think that their Servants or Children might chastise them When I reflect on that dismal Day when the wicked High Court of Justice arraigned and sentenced the most Innocent Just and Religious King that possibly hath worn a Crown since our Saviours time I always stand amazed and read or meditate on that Tragical Act with a concern next to that of our Saviour's suffering All that black and bloody Scene was acted by Men of and upon the Principles successful Rebels made use of The Preamble to the Treasonable Charge against King Charles the First That Kings are admitted and trusted with a limited Power to govern by and according to the Laws of the Land and not otherwise and by their Trust Oath and Office are obliged to use the Power committed to them for the Good and Benefit of the People and for the Preservation of their Rights and Liberties which they charged that Blessed King to have designedly violated To which I shall give only some k short Heads of his Majesties Answer (r) His Majesty's Speeches and Tryal p. 429. which if they had been weighed were enough to confound all their arguing He demanded by what lawful Authority he was seated there he had a trust committed to him by God by old and lawful Descent that he would not betray Pag. 431. to answer to a new unlawful Authority That England was an Hereditary Kingdom He tells them how great a sin it is to withstand lawful Authority and submit to a Tyrannical or Unlawful That Kings can be no Delinquents That Obedience unto Kings is strictly commanded in the old and new Testament pag. 435. particularizing that one place Where the word of a King is there is Power and who may say unto him What dost thou Eccl. 8.4 That no Impeachment can lye against him all running in his Name That the King can do no wrong the House of Commons never being a Court of Judicature can erect none He owns an Obligation to God to defend and maintain the Liberties of his People against all such Illegal and Arbitrary Proceedings Pag. 439. But 't was to no purpose to show such Crown-Jewels before such Wolves and Bears that were gaping for his Blood and would not admit his only request to them to be heard for the Welfare of the Kingdom and Liberty of the Subject before they precipitated Sentence against him before the Lords and Commons and pressed it That it may be it was something he had to say they had not heard before Hand But nothing his sacred Majesty could say would move those who under a vile and notorious Lye in the Name of the People the Supreme Authority as they called it passed that barbarous Sentence against that sacred Head to the amazement of the whole World sufficient to raise the utmost Indignation of all good Men against such barbarous Principles and Proceedings CHAP. XIX That the Sovereign may dispense with the Execution of the Laws of his Country in several Cases HAving discoursed of the Kings being unaccountable to any but God Almighty when he governs not according to the Laws of God Nature or his Dominions The Connexion of this with the foregoing Chapter upon that Foundation That there cannot be two Supremes here upon Earth in one Kingdom I come now to discover what Power Kings in general and our Kings in particular have to dispense with the Execution of the Laws upon some cases for it is far from my thoughts ever to suggest any such dangerous assertion That Princes in general may dispense with the Execution of the Laws Plutarch (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Compar Flaminii Philopaemenis setteth this down as a chief point of that natural skill which Philopoemen had in Government That he did not only rule according to the Laws but over-ruled the Laws themselves when he found it conducing to the Weal publick For as the (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Justin Jun. Imp. praef Constit 3. Emperor saith whilst the Laws stand in force it is fit that sometimes the Kings Clemency should be mingled with the severity of them especially when by that means the Subject may be freed from much Detriment and Damage Princes according to the (c) Princeps est supra legem adeo quod secundum conscientiam suam judicare potest Cyrus in L. Rescript c. Judgment of great Lawyers have Power to judge according to their own Conscience and not according to the Letter of the Law and no doubt it was such written Laws as these that (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Justinian Novel 105. Justinian the Emperor meant when upon the enacting of a Constitution of this kind he added thereunto this Limitation From all these things which have been said by us let the Emperors State be excepted whereunto God hath subjected the very Laws themselves sending him as a living Law unto Men who therefore in another place assumeth to himself the Title of a Father of the Law Whereupon the (e) Nota Imperatorem vocari patrem Legis under c Leges sune ei subjecte Gloss in Novel 12. c. 4. Glossator maketh this Observation Note That the Emperor is the Father of the Law whereupon the Laws also are subject to him So the great (f) Princeps est supra legem in quantum si expediens est potest legem mutare in ea dispensare pro loco tempore Vid. Thom. in 1.2 q. 96. Artic 5. ad 3. Schoolman saith The Prince is above the Law so far that if it be expedient he may change the Law and dispense with Time and Place as when a Man is condemned to banishment the Prince if he see cause may revoke him from thence and therein saith (g) Gloss in lib. 4. de Poenis Accursius his own Will is accounted a great and just cause Magna justa Causa est ejus Voluntas The Reason of these Assertions is couched in what Aeneas (h) Convenit Imperatori Juris rigorem aequitatis fraeno temperare cui soli inter aequitatem jusque interpositam interpretationem licet incumbit inspicere De Ortu Authoribus Imperii Sylvius observes That there is a certain other thing to which the Emperor is more obnoxious than to the Law and that is Equity which is not always found written Now if the Law doth command one thing and Equity perswade another It is fit the Emperor should temper the Rigor of the Law with the Bridle of Equity as he who alone may and ought to look unto that Interpretation which lyeth interposed betwixt Law and Equity since no Law can sufficiently
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 6â—â— 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 Jurisdictioâ—is sunt pacis ea qâ—ae sunt Justitiae paci annexa ad nullum pertinent nisi ad Coronam Dignitatem Regiâ—m 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
the Prince's Liberality (m) Exigunt enim Principis sui liberalitate illum bellatorem equum illam cruentam victricemque â—rameam Id. 538. Sir Henry Spelman derives Vassal from the old German Gessel Comes vel simpliciter vel qui pro mercede servit Glossar Fidelis the Warlike Horse and the bloody and conquering Framea or Spear For plentiful Food and Entertainments are to them in stead of Wages Thus far Tacitus Methinks in this description of the Comites and Comitatus there appears something like the Feudal dependence of the Milites upon the Prince they are bound by Oath to defend him they have Horse and Lance or Spear have liberal entertainment both in constant Food and Banquets for Wages and that they had also Lands set out for the service the following words seem to imply viz. That one cannot so (n) Nec arare terram aut expectare Annum tam facile persuaseris quam locare hostes vulnera mereri pigrum quinimo inters videtur sudore acquirere quod possis sanguine parare Id. P. 538. easily perswade them to plough land or expect the Fruits of the Year as to provoke the Enemy and to deserve wounds for it is sluggish to them and dull to acquire that by Sweat that they may obtain by Blood Whether this imply'd a Feudal Tenure or not I will not determine but it shews a rudiment of it And in Scotland not only in the Highlands but the Lowlands that which they call the Great-back i.e. to be attended whereever they travel when they please to command it with a great train of their Vassals and Tenants especially in military expeditions is yet in use and till the Law of H. 7. against Retainers this was as much used by the ancient English Nobility Their Princes presented with Gifts (o) Mâ—s est civitatibus ultro ac viritim conferre Principibus vel armentorum vel frugum quod pro â—â—nore acceptum etiam necessitatibus subvenit publice mittâ—â—tur electi equi magna arma phalerae torquesque Idem Tacitus further saith concerning their Princes That it was a custom for their Cities of their own accord and Man by Man to bestow upon their Princes Cattle and Corn which is received as an Honorary Gift and serves them for their House-keeping and the Princes most rejoyce in the Gifts of the neighbouring Nations which are not sent by single persons but as Publick Presents viz. Chosen Horses great Armes Horse-trappings and Collars or Chains and of late Money Here we may note that where Tacitus mentions Civitates he means some distinct Government or Country under one Government For he is positive that the Germans had not such places as were called Vrbes Cities nor did they endure conjoyned Seats of Habitation but did inhabit severally as a Fountain a Field or Wood pleased them their Cities being only fenced Woods or Morasses They went always armed I might note many other things in which the Saxons agreed with the description (p) Nihil neque publiâ—â— neque prâ—vaâ—â—â— râ—i nisi armati agunt tum ad negoâ—â—â— nec minus sape ad conviâ—ia procedunt armati Tacitus gives of the Germans and some usages we retain still but I shall only add two particulars more and so conclude He saith that they neither went about publick or private Affairs unarmed not only where business required but to their Feasts they went armed and to drink at them a Day and Night was no disgrace and often at these were quarrels which seldom passed without reproaches but often with death and wounds At these Feasts they consult saith he of reconciling Enemies De reconciliandis invicem iâ—imicis jungendis affinitatibus adsciscendis Principibus de pace denique aâ— bâ—â—â— plerumque in conviviis consulcant tanquam nullo magis tempore aut ad simplices cogitationes pateat animus aut ad magnas incale cat Deliberant dum â—ingere ne ciunt constituunt dum errare non possunt Id. 642. De minoribus rebus Principes consultant dâ— majoribus omnes ita tamen ut ea quoque quorum pâ—nes plehem arbitrium est apud Principes pertrectentur Id. 636. Their Consultations of joyning Affinities and chusing Princes and for the most part of Peace and War as if at no other time either the Mind is more open to receive simple thoughts or is more warmed to great ones yet however upon these occasions they unbosom themselves the next day they treat again of these matters deliberating when they know not how to dissemble and firmly resolve on a thing when they cannot err As to their publick Consultations Tacitus observes further That of lesser matters such as I suppose concerned not the Publick State of Affairs in War or Peace but the particular ordering the matters of their private Jurisdictions the Princes consult about greater business all yet so as those things of which the lowest sort of the People are Judges are first treated of by the Princes By which I understand Tacitus means by greater matters the Consultations about the defending themselves against their Enemies especially against the Romans where the unanimous suffrage of the greatest multitude was requisite By all which it is apparent that there were several Principalities in Germany and that the Souldiery made up a great part of the People and where we read of suffrages it is to be understood of theirs and whatever freedom of Votes c. we read of was principally in debating Military Affairs and that Germany doth yet retain free Princes and free Cities though under one Emperour De Moribus Germanorum as ancient Germany did is well known Another of their laudable Customs is thus remembred by Tacitus Insignis Nobilitas aut magna Patrum merita Principis dignationem etiam adolescentulis assignant which I render Great Nobility or the great merits of their Fathers gives the dignity of Princes even to their Youth In this we may note the propagation of Gentry through true Virtue deserving Honour to whose Memory is dedicated that Worship which is often bestowed on unworthy Posterity Haec debeamus virtutibus ut non praesentâ—s solum illas sed eâ—â—am ablatas eâ—conspectu colamus Senec. lib. 4. de Benef. c. 30. Dotem non uxor marito sed uxori maritus affert Idem Tacitus 〈◊〉 supra Accisis criâ—ibus nudatam Adulâ—eram coram propinquis expellit dâ—mo maritus ac pâ—r omnem vicum verbera agit Idem This saith Seneca we owe to Virtues that we do not only worship them present but worship them taken out of our sight Another of the German Laws or Usages was as Tacitus mentions That the Wife doth not bring the Husband a Portion but the Husband gives the Wife a Dowry Yet we find the Husbands severity in case of abusing his Bed thus The Husband if the Wife prove an Adultress cuts off her Hair strips her naked and turns her out of doors in presence of her
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 Jâ—â—us Anglorum The curious may see more in Selden Tacitus observes another Law Hâ—â—redes successoresque sui cuique liberi nullum testamentum Si liberi non sunt pâ—â—ximus gradus in possâ—ssâ—oâ—e 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 propiâ—qui quam amicitias necesse est Idem Nec implacabiles durant luitur enim etiam homicidium certo Armâ—ntorum ac pecorum numero recipitque satisfactionem universa domâ—s 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 Wâ—â—gild 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 colâ—no injungit Idem Here we certainly find the usage of Country Farmholders In â—â—imitivo Regni sâ—â—tu pâ—st conquis â—â—nem 〈…〉 〈…〉 argenti 〈◊〉 sed sola 〈◊〉 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 coâ—â—ntium abâ—umitur 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) Liâ—â—â— 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 〈◊〉 proditores tranâ—fuâ—â—â— arâ—oribus suspendunt ignavâ—â— imâ—eâ—â—â— â—â—pore Lips torpâ—â—â— Infames 〈…〉 〈◊〉 insupâ—r crate 〈◊〉 â—acitus 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 Erudiâ—â— Rege Gothi Legum instituta scriptis bahere câ—â—perunt nam antea mâ—ribus 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 â—aith 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 stuâ—iese 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 diâ—bus
times appointed through England and by his writing and Seal confirmed to Bishops and Abbats Charters of Priviledges whose Charter runs thus Hen. c. Baronibus fidelibus suis Francis Anglis salutem Sciatis me ad Honorem Dei Sanctae Ecclesiae pro communi emendatione Regni mei concessisse reddidisse praesenti Charta mea confirmasse c. and so confirms the Charter of King Henry the First his Grand-father As to the Council of Clarendon about (b) Answer to Petyt fol. 31. ult Edit See Selden's Correction of Matt. Paris in his Epinomis Thomas Becket Archbishop of Canterbury after he had once promised and his after refusing to set to his Seal in Confirmation of the Ancient Laws I must refer the Reader to what Doctor Brady hath collected and shall only touch upon that of (c) Matt. Paris fol. 84. num 20. ult Edit Clarendon Anno 1164. 10 Hen. 2. where those present by the King's Mandate were the Archbishops Bishops Abbats Priors Earls Barons and Noblemen of the Kingdom and there was a Recognition of parts of the Customs and Liberties of King Henry the King's Grandfather and of other Kings which were comprised in sixteen Chapters Concerning the Laws of this King see Selden's Epinomis These Matthew Paris calls wicked Customs and Liberties because they subjected the Clergy-men more to the Crown than he and others would have had them yet he saith the Archbishops Bishops Abbats Priors Clergy with the Earls Barons and Nobility swore to them all Proceres and promised firmly in the word of Truth to hold and observe them to the King and his Heirs in good Faith and without Evil and then adds decrevit etiam Rex by which it appears that the Members of the Great Council did not only assent but did bind themselves by Oath and solemn Promise obligatory to themselves and their Posterity to keep and observe them and upon the whole it is the King that decrees appoints and constitutes In all the great Councils of this King it is manifest that the Members were only such as in former Kings Reigns only in that of the 22 H. 2. (d) Ben. Abb. p. 77. Anno Dom. 1176. it is said Rex congregatis in urbe Londoniarum Archipraesulibus Episcopis Comitibus Sapientioribus Regni sui where Sapientiores are instead of Barones and for the Kings Summons it is always said Rex convocat congregavit praecepit convenire or mandavit as is most expresly said in that great Council Anno 1177. 23 H. 2. (e) Ben. Abbas p. 86. That the King sent Messengers through the whole Isle of England and commanded the Archbishops Bishops Earls and Barons of all England that they should be with him at London the next Sunday after the beginning of Lent Of the Great Councils in King Richard the First 's time THere are few great Councils met withal in his short Reign he being so great a part of it out of the Kingdom The first I find is in (a) Fol. 129. num 16 Matthew Paris Anno 1189. 1 Reg. That in the day following the Exaltation of the Holy Cross at Pipewel Archiepiscoporum Episcoporum aliorum Magnatum suorum fretus Concilio He supplied the Vacances of several Bishops Sees The Second I find is (b) Hoved. fol. 376. a. num 30. when he and the King of France agreed to go to the Holy Land where it is said that his Earls and Barons who took the Crusado in the General Council at London swore c. of which it is that (c) Fol. 155. num 50. Matthew Paris saith That the King of England convocatis Episcopis Regni Proceribus received the Oath from the Messengers of the King of France In the Fifth of King Richard (d) Hoved. fol 418. b. num 20. we have a full Example of the holding a Great Council by Commission for during the Imprisonment of King Richard Adam de Sancto Edmundo Clerk was sent from Earl John the Kings Brother to his Friends in England to defend his Castles against the King and dined with Hubert Archbishop of Canterbury boasting much of the French Kings assisting Earl John After Dinner the Mayor of London seized on him in his Lodgings and upon all his Breves and Mandates who delivered them to the Archbishop This occasioned the Archbishop being the Kings Commissioner to convene a great Council the next day A Great Council called on a Days warning but surely Summons had issued out before or else it is a great Instance that the great Councils might be called of such of the Clergy and Nobility as were nearest at Hand for my Author expresly saith (e) Qui iâ— crastino convocatis coram co Episcopis Comitibus Baronibus Regni ostendit eis literas Comitis Johannis earum tenuras statim per commune concilium Regni desinitum est quod Comes Johannes dissaisiretur Idem That the Archbishop the next day called before him the Bishops Earls and Barons of the Kingdom and showed to them the Letters of Earl John and the Tenor of them and adds that instantly by the Common Council of the Kingdom it was defined that Earl John should be disseised This Adam saith Hoveden came into England not long before King Richard's release from his Imprisonment The next great (f) Idem 419. â— 30. A Great Council of four Days Council I find was upon the Thirtieth of March summoned to meet the King at Nottingham and at this were present Alienor the Kings Mother Hubert Archbishop of Canterbury Geoffery Archbishop of York and seven Bishops more Earl David brother to the King of Scots Hamelin Earl Warren Ralph Earl of Chester William Earl Ferrers William Earl of Salisbury and Roger Bigot and names no more but saith the same day the King disseized (g) Rex dissaisivit Gerardum de Canvil de Comitatu Linc. Hug. Bardolf de Castro Comitat. Ebor. Gerard de Canvil and others It appears that this Council sat but four days on the second day the King required Judgment against Earl John his Brother on the third day the King (h) Rex constituit sibi dari c. deinde praecepit exigit Concerning the Form of Proceeding in the Pleas of the Crown the Assize of the Forest wherein the Laws made in this King's time are set down see Selden's Epinomis appointed to be given him 2 s. of every Carucate of Land through England and that every one should perform the third part of Military Service according to their respective Knights Fees to pass over Sea with him into Normandy and then exacted of the Cestertian Monks all their Wool of that year for which they compounded and the fourth and last day Complaints were heard against the Archbishop of York and further Prosecution of Gerard de Canvil Hoveden gives an account of the King's Progress till the 11th of the same Month to which time the
injuries which were brought upon the King beyond Sea by which not only the King but many of the Earls and Barons were disinherited therefore the King required Counsel and Aid of them of a Fifteenth Upon this the Archbishop and the whole number of Bishops Magna Charta granted Earls Barons Abbats and Priors having had deliberation answered the King That they would willingly yield to the Kings desire if he would grant them the long desired Liberties The King saith my Author being led by Covetousness or as he means being desirous of a supply yielded to what the Magnates desired so he granted that which is called Magna Charta so deservedly priz'd by all Englishmen ever since and the (f) Idem num 30. Charta de Foresta and presently Charters were got drawn and the King sealed them and they were sent into all Counties two one of the Liberties and the other of the Forests Matth. Paris saith expresly That they (g) Ita quod chartae utrorumque Requm in nullo invâ—niuntur dissimiles were the same that King John had granted and so refers the Reader to peruse them in what he had writ on his Reign It is to me very strange that since so many Original Grants of the Kings of England and other ancienter Deeds being every where to be found among the ancient Evidences of many Noble and Gentlemens Families yet no where that I can learn any of these Original Charters are to be found except one at Lambeth as Mr. Pryn hath observed That upon Record being only an Exemplification in King Edward the First 's time Anno 1232. on the Nones of March the King called a Great Council to (h) Idem fol. 314. num 20.17 H. 3. Westminster where there met Magnates Angliae tam Laici quam Praelati The King required an Aid for the payment of his Debts contracted by his Expeditions beyond Sea To which Ralph Earl of Chester on behalf of the Nobility answered That the Earls Barons and Knights that held of the King in Capite being with the King personally in that Expedition and having fruitlesly spent their Money were poor so that of (i) Vnde Regi de Jure auxilium non debebant Idem num 30. The Tenents in Capite having personally served according to the Tenure of their Service deny the King Aid right they ow'd not Aid to the King And so my Author saith the Laics having asked leave all departed and the Prelates answered That many Bishops and Abbats being absent they desired respite till some other meeting which was appointed fifteen days after Easter By this we may observe who they were that had the power of giving consent or granting aid for if there had been any other Members of the Lay Order besides Earls Barons and Knights that held in Capite the Earls of Chester's Argument had been of no validity In the Statute of Merton (k) Pulâ—on Stat. p. 1. In one part it is said Our Lord the King granted by the Consent of his Magnates 20 H. 3. it is thus expressed Before William Archbishop of Canterbury and other his Bishops and Suffragans and before the greater part of the Earls and Barons of England there being assembled for the Coronation of the said King and Helioner the Queen about which they were called thus it was provided and granted as well of the foresaid Archbishop Bishops Earls and Barons as of the King himself and others I shall only cull out some few of the Great Councils in this Kings Reign wherein most fully are expressed the true Members of them or such wherein something remarkable was transacted Anno 1237. 21 H. 3. The King keeping his Christmas at Winchester sent his (l) Matt. Paris fol. 367. num 30. Misu c. scripta Râ—galia pracipiens omnibus ad Regnum Angliae spectantibus c. ut omnes sine omissiâ—ne conveairent Regni negotia tractaturt totum Regnum contingentia Royal Writs through all England commanding all that appertained to the Kingdom of England that is all who were to be Members of the great Council which my Author explains particularly thus viz. Archbishops Bishops Abbats Priors installed Earls and Barons that without failure they should meet at London on the Octaves of the Epiphany to treat of the Affairs of the Kingdom concerning the whole Kingdom then he adds That on the day of St. Hilary there met at London an (m) Insinita Nobilium multitudo viz. Regni totalis universitas infinite Multitude of the Nobles viz. The whole University of the Kingdom which were the Persons of those Orders before particularized Anno 1246. 30 H. 3. By the Kings (n) Edicto Regio convocata convenit ad Parliamentum generali â—â—mum â—otius Regni Anglicani totalis Nobilitas Idem p. 609. num 10. Edict was called to the most general Parliament saith Matthew Paris all the Nobility of the whole Kingdom of England viz. of the Prelates as well Abbats and Priors as Bishops also Earls and Barons and a few Pages after concerning the same Parliament he saith All the Magnates of the Kingdom met and the King himself first spake to the Bishops apart then to the Earls and Barons and last to the Abbats and Priors In this The word Parliament now used that which frequently in Matthew Paris is called Colloquium now he gives the Title of Parliament to from the French word parler to confer or speak together and we find what is meant also by totalis Nobilitas Anno 1253. 37 H. 3. By the (o) Tota edicto Regio convocata Angliae Nobilitas convenit de arduis Regni Negotiis simul cum Râ—ge tractatura Idem fol. 745. num 40. Kings Edict the Nobility of England being summoned met at London to treat together with the King of the arduous Affairs of the Kingdom and there were present with most of the Earls and Barons the Archbishop Boniface and almost all the Bishops of England In this great Council were the Tenents in Capite according to King John's Charter The King in this Parliament or Colloquium requires Money for an Expedition into the Holy Land but for fifteen days there were great Contests about it till the King de novo confirmed King John's Charters and a solemn Excommunication was agreed upon to be pronounced against the Infringers of it and my Author saith Rex Magnates Communitas Populi protestantur in the Presence of the Venerable Fathers c. That they never consented or do consent that any thing be added or altered in the Charters but plainly contradict it so 3 May (p) Pat. 37 H. 3. m. 13. Anno 1253. in Westminster-Hall the Exemplification passed the Seal of the King and other great Men. But it is principally to be considered what is expressed in the Patent * Praefatus Dominus Rex in prolatione praefatae sententiae omnes libertates consuetudines Regni sui Angliae usitatas dignitates Jura Coronae
suae â—re proprio specialiter sibi Regno suo salvavit excepit That the King in the Declaration of the said Sentence did by his own Mouth specially save and except to himself and his Kingdom all the Liberties ancient Customs of his Kingdom and Usages Dignities and Rights of his Crown By which it is apparent how cautious the King was in these liberal Concessions not to prejudice his Prerogative They are neither few in Number nor of mean repute for judgment and learning in our Laws who assert Such like Protestation King Richard the Second made 10 Reg. Rot. Parl. 10 R. 2. num 32. See in King Stephen that as Acts of Parliament made contrary to Magna Charta are void so likewise are all such as diminish the Prerogative in any part of it which is necessary for the support of the Government So upon the passing the Petition (q) His Majesty's Speeches fol. 368. of the Basilica of Right King Charles the First the King said The King willeth that Right be done according to the Laws and Customs of the Land and that the Statutes be put in due Execution that the Subjects may have no cause to complain of any Wrong or Oppression contrary to their Just Rights and Liberties to the Preservation whereof he holdeth himself obliged as well as of his Prerogative But this would not please and so he pronounced Le droit soit fait comme il est desire and adds that he is sure is full but no more than he granted in his first Answer his meaning in that being to confirm all their Liberties knowing according to their Protestations they neither meant nor can hurt his Prerogative The Peoples Liberty strengthens the Kings Prerogative and the Kings Prerogative is to defend the Peoples Liberties The rest of the Parliaments of this Kings Reign are said to be called (r) Id. 435. num 10.21 H. 3. Id. 693. num 20.26 H. 3. Id. fol. 579. num 40. Id. fol. 696. num 30. Id. fol. 698. num 40. Vide Brady's Appendix fol. 59 60. per scripta Regalia submonitione Regia or that scripsit Rex praecipiens or missis literis convocavit Anno 1246. 30 H. 3. or Edicto Regio convocat c. which denotes the Authority convening them and for the Members they are either stiled Magnates omnis Regni Nobilitas or Clerus Populus cum Magnatibus Magnates tam Laici quam Praelati Episcopi alii Ecclesiarum Praelati cum Proceribus Regni or else they are particularly numbred to be Archbishops Bishops Abbats Priors for the Clergy and the Comites Barones for the Laity In one I find Archiepiscopus cum Suffraganeis suis for the rest of the Bishops and (s) M. Paris fol. 397. num 10.10 H. 3. another runs thus Anno 1247. 31 H. 3. fecit Dominus Rex Magnates suos nec-non Angliae Archidiaconos per scripta sua Regia Londinum convocari Yet though Matt. Paris only mention the Magnates Archidiaconi yet he saith when the prefixed day was come the Bishops all willingly absented themselves and he gives the Reason ne viderentur propâ—iis factis eminus adversari sciebant enim corda omnium usque ad animae amaritudinem non immerito sauciari Then when he (u) Id. 629. Edit ult num 10. Archdeacons summoned to Parliament gives an Account of the business of this great Council he saith that the Archdeacons of England as also not the least part of the whole Clergy of the Kingdom with the Magnates complained of the Popes exaction and so Letters were writ to the Pope and Cardinals It may be noted also That in those Days the Kings summoned other dignified Clergy besides Bishops Abbats and Priors I shall insist no longer upon these Matters The new Constitution of Parliament by Representatives but pass to the great Mutation which was made in the Constitution of our English Parliaments It seems to be clear that before King John's time the Members of the Great Councils were summoned by special Writ and they were only the Archbishops Bishops Abbats and Priors for the Clergy and the Earls and Barons and such of the Tenents in Capite as were of greatest quality as the King pleased But in King John's Charter all the Tenents in Capite were convened by a General Summons which did much encrease the number of the Members of these great Councils and by so much as they were more numerous it is likely the Popular Barons hoped to make their Party the stronger against the King for we find it introduced when the Barons were propense to rebel So the Second great Alteration on the Constitution of Parliament was introduced Montfort's Rebellion when Simon Montfort Earl of Leicester and the Rebellious Barons had the King and the Prince Prisoners Simon Montford to strengthen his Interest first in the Kings Name summons the Earls and Barons which were in Arms against the King also at other times summoned more Abbats and Priors than had been used for that the Clergy at that time had a great Opinion of him and he was their Minion as is apparent in Matthew Paris and fully in the judicious (w) Answer to Petyt fol. 137 138 139. Doctor Brady to whom I must specially refer the curious Reader in this particular The 14th The Form of the Writ of Summons of Dec. 48 H. 3. the first Writ issued out thus Item mandatum est singulis Vicecomitibus per Angliam quod venire faciant duos Milites de legalioribus discretioribus Militibus singulorum Comitatuum It is commanded to all the Sheriffs of England that they make or cause to come two Knights of the more Legal and Discreet Knights of every County to be at London on the Octaves of St. Hilary next So in the like manner (x) Cl. 49 H. 3. m. 11. dorso schedulae Writs were directed to Cities and Burroughs to send two of the more Discreet Legal and Honest Citizens and Burgesses This is without Date that to the Barons of the Cinque Ports is Jan. 20. It doth not appear by the Writ to the Sheriffs whether they or the Counties were to elect and send those Knights or who were Electors It is the Opinion of most learned (y) Brady against Petyt fol. 143. Dugdale's Baronage fol. 759. col 3. Men that Simon Montfort apprehended from the Concourse of the Nobility and their great Retinues and the Example of his and the Barons Practices at Oxford some danger to himself and his Affairs and so altered the ancient Usage Upon the 5th of August 49 H. 3. Simon Montfort was slain at Evesham and all his Party routed and the 8th of September following the King convened his Parliament at Winchester which according to the old form The old Form again used consisted only of the Bishops Abbats Priors Earls Barons and Great Men nor did he continue Montfort's Method after as appears by that Parliament he
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 ipâ—â— Rex dignaâ—us 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 quâ—ruâ—dam Episcoporum Angliae aliorum de Concilio Râ—gis â—â—citatae sâ—â—erunt constitutiones â—ub â—riptae postmodâ—â—m coram Domino Rege Concilio sâ—o auditae publicatae Quia omnes de consiliâ—â—am â—usâ—â—â—â—arii 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 Pâ—tyt 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) Praeâ—iâ—â—ae autem constitutiones eâ—iâ—â— suerunt c. exâ—une lâ—â—um 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 comâ—â—â—â— prâ—sit dâ— Office demanâ— appâ—lles le plues discretes de son Roialme auâ—â— 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
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.
fol. 165. Gloucester 2 R. 2. is thus Our Lord the King at his Parliament c. amongst other things there assented and accorded hath made certain Statutes and Ordinances The Preface to the Statutes at (c) Anno 1379. fol. 167. Westminster the same year runs thus Our Lord the King c. of the Assent of the Prelates Dukes Earls Barons and other great Men and of the Commons of this Realm summoned c. hath ordained In the first Chapter of the Statutes at (d) Idem Anno 1380. fol. 169. Northampton 4 R. 2. it is thus The Commons of our Parliament have prayed us by their Petition delivered to us at our present Parliament c. We considering the said Supplication will and grant by the Assent of the Prelates and Lords aforesaid In the Fourth Chapter of the Statutes at (e) Idem Anno 1382. fol. 175. Westminsterâ— 5 R. 2. The Members accustomed to be summoned to Parliament are particularly by their Degree distinguished viz. Archbishops Bishops Abbats Priors Dukes Earls Barons Bannerets Knights of the Shires Citizens and Burgesses which last are frequently comprehended by the words Others or Commonalty The Preamble to the Statutes 8 R. 2. at (f) Idem An. 1384. fol. 179. Westminster is to the Honour of God and at the Request of the Commonalty of the Assent of the Prelates Great Men and Commons aforesaid Assent of Commons Our Lord the King hath caused to be made The Statutes 9 R. 2. at (g) Idem Anno 1385. fol. 179. Westminster are thus prefaced Our Lord the King of the Assent of the Prelates Dukes Marquesses Earls Barons and Commons hath ordained and established The (h) Idem Anno 1386. fol. 180. Preface to the Statute 10 R. 2. is very full in the Expressions of the kindness of the King to his Subjects in this Form Know ye for the Reverence of God and to nourish Peace Unity and good Accord in all Parties within the Realm and especially for the common Profit and Ease of our People and good Government of the same which we chiefly desire of the Assent of the Lords and Commons assembled in Parliament Assent of the Lords and Commons we have caused to be made a Statute So in the 11th Regni (i) Idem Anno 1387. fol. 181. the King heartily desiring That the Peace of the Land be well holden and kept and his faithful Subjects nourished and governed in Quietness and Tranquillity and in that at Westminster (k) Idem Anno 1388. fol. 182. 13 Regni For the Honour of God and Holy Church and for the common profit of his Liege People In the First Chapter of the Statute at (l) Anno 1389. fol. 189. Westminster 13 R. 2. it is thus expressed That our Lord the King at his Parliament holden at Westminster c. Grievous Complaints of the Commons hearing the grievous Complaints of his said Commons c. the more because Charters of Pardons have been easily granted in such Cases the Commons requested that such Charters might not be granted To whom the King answered The King will save his Liberty and Regality That he will save his Liberty and Regality as his Progenitors have done heretofore But to nourish the more Quietness and Peace within this Realm by the Assent of the Great Men and Nobles he hath granted c. In the (m) Idem Anno 1396. fol. 199. Statute 20 R. 2. By the Assent of the Prelates Lords and Commons The Title of the Statutes at (n) Idem Anno 1397. fol. 200. Westminster 21 R. 2. is thus It is to be understood that our Lord the King c. of the Assent of the Prelates Dukes Earls Barons and Commons of his Realm there assembled hath made certain Statutes and Ordinances Repeal of Statutes made by Threats Amongst the rest is a Repeal of the Statutes made 10 R. 2. For that they were made by Threats given to the King and by constraint So it may be noted That Henry the Fourth repealed all the Statutes made in the last Parliament 21 R. 2. Of the Parliaments in King Henry the Fourth's time THE Preamble to the Statute at (a) Idem Anno 1399. fol. 200. Westminster 1 H. 4 runs thus Henry by the Grace of God c. to the Laud and Honour of God and Reverence of Holy Church for to nourish Unity Peace and Concord of all Parties within the Realm of England and for redress and recovery of the same Realm of England which now of late hath been dangerously put to great Ruin Mischief and Desolation of the Assent of the Prelates Instance and special Request of the Commons Dukes Earls Barons and at the Instance and special Request of the Commons of the same Realm assembled c. hath made ordained and established certain Ordinances and Statutes Throughout all this Kings Reign most of the Prefaces are much the same By the Assent or Advice and Assent of the Prelates c. At the Request or special Instance and Request of the Commons Only in the Preface to some Assent of the Lords Spiritual and Temporal it is By the Assent and Advice of the Lords Spiritual and Temporal this Distinction being mostly brought into use in his time as may be seen in the 4th 6th and 9th of his Reign Of the Parliaments in King Henry the Fifth 's time THE Preamble to the Statutes at (a) Idem Anno 1413. fol. 224. Westminster 1 H. 5. runs thus Our Lord the King at his Parliament c. by the Advice and Assent of the Lords Spiritual and Temporal and at the special Instance and Request of the Commons of this Realm hath ordained established c. and so much like all the rest except the Statutes 4 H. 5. (b) Idem Anno 1416. fol. 234. which hath Our Lord the King with the Assent of the Prelates Dukes Earls Barons and at the special Instance and Request of the Commons Of the Parliaments in King Henry the Sixth 's time THE Preamble to the First Statute of (a) Idem Anno 1422. fol. 239. Westminster 1 H. 6. is thus At the Parliament held at Westminster c. Our Sovereign Lord the King Sovereign Lord the King by the Advice and Assent of the Lords Spiritual and Temporal and at the special Instance and Request of the Commons of the Realm c. hath caused to be ordained and established c. The 2d 3d. 4th and 6th of H. 6. are the same As the first Statutes call him Our Sovereign Lord which was not used formerly so in that of the 8th of H. 6. he is stiled Our most Noble Christian Lord Henry c. 11 Regni (b) Idem Anno 1433. fol. 261. part of a new Phrase was used By Authority of Parliament which after some while is now familiarly used that Preface runs thus By the Assent of the Lords Spiritual and Temporal and at the special Request of the
Homagio Ligeancia quibus nobis tenemini is peculiar to the Temporal Lords But that in fide dilectione is not so peculiar to the Ecclesiastical Lords but is inserted into the Lay Lords Writs sometimes The reason why Archbishops Bishops Deans Parsons Prebends and other Ecclesiastic Bodies Politic when they do Homage saith (h) Littleton Cap. de Homagio â—ect 86. Littleton do not say Jeo deveign vostre Home I become your Man from whence Homagium or Hominium comes is (i) Par estre tant solement le home de Dieu because he is solely the Homager of God and so Glanvil Lib. 9. c. 1 2. Bracton fol. 78. F. Britton c. 68. lesta L. 3. c. 16. resolve that no Man (k) Post consecrationem hom â—gium non faciunt quiequid fecerunt ante sed tantum â—idelitatâ—m elected Bishop after Consecration doth Homage whatever he hath done before but only Fealty and no Convent or Abbat or Priâ—r ought to do Homage because they hold in anothers name viz. the name of the Churches But that these Ecclesiastics swore Fealty appears by many examples produced by Mr. Prynn (l) Brief Register part 1. fol. 196. to 206. p. 427 657 663. and what Oaths they took in his abridgment of the Records of the Tower But this is now of little use and so I leave it and shall observe some Particulars which Mr. Prynn and others have noted from the several Writs of Summons to Temporal Lords First it may be observed 1. Observations upon the Writs to Temporal Lords That it alone did not ennoble that a Summons by Writ though for two or three Generations from Father to Son did not ennoble the Blood to make them Barons So Ralph de Camois 49 H. 3. was summoned by Writ and ranked in the Roll above all Barons and Ralph his Son Anno 7 E. 2. But (m) Claus 7 R. 2. m. 32. dorso Thomas the Grandchild being chosen one of the Knights for Surry was discharged by the King 's Writ because he and many of his Ancestors were Bannerets and King Richard the Second summoned him to that very Parliament and he was summoned ever after during Life yet his Posterity as others were omitted which if they had been Barons properly as those by Creation and Tenure of Lands had not been omitted but might have challenged Summons ex debito Justiciae But I cannot enter into this long Controversy First and secondâ— Brief Register the curious may peruse Mr. Prynn and Elsyng's ancient method of holding Parliaments Page 33. who is of opinion that every degree of Baron passed with actual Ceremony and those Patents some had whereof the first upon Record he saith was 11 R. 2. to the Lord John Beauchamp of Rolt was an entailing of the Honour rather than the Creation because the words are ipsum Johannem in unum Parium Baronum Regni praeficimus whereas if he had been then created the words should have been per praesentes praefecimus Besides we find Henry Bromflet Knight was created by special Writ and his Heirs Males Barons de Vescy 27 H. 6. (n) Claus 27 H. 6. m. 26. dorso â—ntred after the names of the Temporal Lords in the very Summons in common Form to which is added Volumus enim vos haeredes vestros masculos de Corpore vestro legitime exeuntes Barones de Vescy Now this special Writ and Clause of Creation had been meerly void and nugatory had the general Writ alone ennobled him and his Posterity Yet in all the (o) Prynne part 1. Brief Register p. 228. subsequent Summons 28 29 31 33 38 H. 6. He is only called Dominus not Baro de Vescy as also may be noted of Beauchamp Secondly 2. The use of Barâ— in Writs how rare It may be observed that the word Baro and Barones are frequently met withal in Histories the Clause-Rolls of King John and H. 3. and in the Preface of Magna Charta and several Statutes applied to all the (p) Ibid. p. 218. Temporal Lords of Parliament yet in all the Clause-Rolls and Writs of Summons Mr. Prynn hat not observed any particular Persons amongst them summoned by the Title of Barons but only the Barons of Graystock and Stafford from Ed. 1. to H. 6. as Johanni Willielmo Radâ—â—pho Baroni de Graystock and so in Ed. 1. and 3. Edmundo Radulpho Baroni de Stafford Thirdly 3. Title of Dominus in Writs of Summons as to the Title of Dominus Mr. Prynn saith It is not to be found given to any but two before the time of H. 6. The first is John de (q) Cl. 16 E. 3. par 2. m. 13. dorso Moubray stiled Dominus Insulae de Axholm none else having this title till after the Reign of Richard the Second The next so stiled is 11 H. 4. (r) Cl. 11 H. 4. m. 32. dorso where a Writ issued Johanni Talbot Domino de Furnival which though omitted in some Summons after was again used in the Summons to him (s) Cl. 4 H. 5. m. 16. dorso 4 H. 5. and H. 5. after which none is found stiled Dominus till (t) Cl. 22 H. 6. m. 21. dorso 22 H. 6. that Robert Hungerford Chevalier is stiled Dom. de Mollins as he is in 25 H. 6. which gave the Title of Dom. de Poynings to Henry Percy and in Cl. 27 H. 6. m. 21. dorso this Title Dominus is given to Hungerford Percy and four more after which it grew more common to them and others summoned as may be seen in Sir William Dugdale's Summons lately Printed who (u) Cl. 49 H. 3. m. 5. 49 H. 3. reckons Dom. Hugo Dom. Humet and Dom. Stanford Fourthly 4. Title of Chevalier Another Title given to Barons of the upper House is that of Chevalier which was not given to any Temporal Lords or Barons in any Writs or Lists of Summons to Parliament before 49 Ed. 3. (w) Cl. 49 E. 3. n. 4.6 dorso 50 E. 3. part 2. m. 6. dorso wherein Summons issued Willielmo de Morle Chevalier Willielmo de Aldburgh Chevalier Joh. de Welle Chevalier Hugoni de Dacre Chevalier After which it grew more common under King Richard the Second Henry the Fourth and Fifth After the beginning of H. 6. and during the Reign of H. 6. and Ed. 4. there was scarce any Temporal Lord in the lists of Summons but was stiled Chevalier or Miles and so it continues to this day though not as Mr. Prynn saith because they were all generally Knighted for their greater Honour for it is apparent in the Lists exhibited by Sir William Dugdale that most of the Barons by descent though never Knighted had the Title Fifthly 5. Of Councils that were not Parliaments There is great difference betwixt Writs of Summons to general Parliaments and particular Councils upon emergent occasions which are not properly Parliaments All Bishops Abbats Priors Earls Lords Barons
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 Gâ—menys 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 Peeâ—s 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 â—ptimates 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 suâ—s 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
in the Record Item mandatum est singâ—lis Vicecomitibus per Angliam quod venire faciant duos Milites delegalioribus probioribus discretioribus Militibus singulorum Comitatuum ad Regem London in forma praedicta Item in forma praedicta scribitur Civibus Ebor. Lincoln caeteris Burgis Angliae quod mittant in forma praedicta duos de discretioribus legalioribus probioribus tam Civibus quam Burgensibus suis and so to the Barons of the Cinque-Ports which runs thus Rex Baronibus Ballivis Portus sui de Sandwico Cum Praelati Nobiles Regni nostri tam pro negotio Liberationis Edwardi Primogeniti nostri quam pro aliis Communitatem Regni nostri tangentibus ad instans Parliamentum c. Vobis mandamus in fide dilectione quibus nobis tenemini firmiter injungentes omnibus aliis praetermissis mittatis ad nos ibidem 4 de legalioribus discertioribus Portus vestri c. Nobiscum cum praefatis Magnatibus Regni nostri tractatum super praemissis consilium impensuri From all which it is observable first Observations on the first Writ to the Barons of the Cinque-Ports that in all probability the Writs then issued to the Knights Citizens and Burgesses were the same in form and substance with those to the Spiritual and Temporal Lords and in those to the Sheriffs c. Secondly the Qualifications of those to be elected are limited Thirdly It doth not appear whether the Counties themselves or the Sheriffs alone were to elect Fourthly The Writs for electing Citizens and Burgesses were directed immediately to the Citizens and Burgesses themselves not to the Sheriffs of the Counties Lastly that no Writ issued to the Citizens of London their Liberties then being seized into the King's Hand and that York and Lincoln are the only Cities mentioned particularly in the Roll. The first Writs entred at large in the Rolls are those (e) Cl. 22 E. 1. m. 6. dorso 22 E. 1. wherein is expressed that the King intending a Colloquium Tractatum with his Barons and great Men he commands that the Sheriffs cause to be elected two Knights De diâ—â—retioribus ad laborandum potentioribus cum plena potestate pro se tota communitate Com. praedicti ad consulendum consâ—ntiendum pro se communitate illa Hiis quae Comites Barones Proceres praeâ—icti concorditer ordinaverint in praemissis c. of the more discreet and more able to take Pains c. to come to Westminster c. with full Power for themselves and the whole Community of the said County to consult and consent each for himself and the said Community to those things which the Earls Barons and Nobles aforesaid unanimously ordain in the Premisses so that for want of such like Power the Business remain not undone I shall now insert what Variations I find in the Writs of Summons promiscuosly whether to Knights Citizens or Burgesses unless there be some remarkable difference to be observed First The Qualifications in the Writs As to their Qualifications generally both Knights Citizens and Burgesses are to be de legalioribus discretioribus ad laborandum potentioribus In the Writ 25 E. 1. (f) Cl. 25 E. 1. m. 6. dorso it is probioribus legalioribus and some two or all of these Epithetes are generally used till (g) Cl. 22 E. 3. m. 7. dorso 22 E. 3. m. 7. dorso where it is expressed that the Knights be gladio cinctos ordinem militarem habentes non alios de qualibet Civitate de quolibet Burgo duos Burgos de aptioribus discretioribus probioribus fide dignis Militibus Civibus Burgensibus Cl. 24 E. 3. par 2. m. 3. dorso and in the Twenty fourth of E. 3. there is an addition and limitation No Maintainers of Sâ—its c. to be choâ—â—n Qui non sunt Placitorum aut querelarum manutentores aut ex hujusmodi quaestu viventes sed homines valentes bonae fidei publicum commodum diligentes eligi and the self-same Limitations are in the 25 28 and 29 E. 3. So that it was used so long as the King thought fit In (h) Cl. 26 E. 3. m. 14. dorso 26 Ed. 3. it is unum Militem de provectioribus discretioribus magis expertis Militibus and so for Citizens and Burgesses by which it appears the King desired not any under Age as now is allowed to be chosen In 31 Ed. 3. besides (i) Cl. 31 E. 3. m. 2. dorso the usual words de discretioribus probioribus there is added de elegantioribus personis eligi Which in no Writ else before or after is to be found In the 36 E. 3. (k) Cl. 36 E. 3. m. 16. dorso it is de melioribus validioribus Militibus c. That of the Forty fourth of (l) Cl. 44 E. 3. m. 12. dorso E. 3. runs Duos Milites gladiis cinctos in Armis Actibus Armorum magis probatos circumspectos discretos It appears by the Parliament Roll 46 (m) Nul home de Ley pursuont busoignes en la Courte de Roy ne Viscount pur le Temps que il est Viscount soient retournez ne acceptez Chevalers des Countees neque ves qui sont Gentz de Ley Visâ—ounts ore retournez au Parlement eient Gages Rot. Parl. 46 E. 3. cum 13. E. 3. That it was accorded and assented to in that Parliament and an Ordinance made That no Lawyer pursuing Business in the Court of the King nor any Sheriff while he was Sheriff should be returned or accepted Knights of the Counties and if any were so returned they should have no wages Therefore in the fourteenth Number of the said Roll it is thus expressed Mes voyet le Roy que Chevalers Serjaunts i. e. Esquires not Serjeants at Law des meulieur valeurs du paiis soiz retornez desore Chevalers en Parlement quils sount esluz en plein Counts That Knights and Esquires of greatest value in their Country should be chosen in the full County The very next Writ 47 E. 3. (n) Cl. 47 E. 3 m. 13 dorso To be Knights giâ—t with Swords and skilful in Arms. runs thus Duos Milites gladiis cinctos seâ— Armigeros which explains the word Serjaunts before as in that Age being reputed Servants to Knights as holding Lands in such a Tenure of them de dicto Com. digniores probiores in Actibus Armorum magis expertos discretos non alterius conditionis duos Cives Burgenses qui in navigo exercitio mercandisarum notitiam habeant meliorem eligi and then in the Close follows Nolumus autem quod tu seu aliquis alius Vicecomes Regni praedicti aut aliquis alteriâ—s conditionis quam superius specificatur aliqualiter sit electus and the last Clause
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 tamâ—n 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 Viâ—ecomites 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
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
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
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
and after by himself and his mock-Representatives by Councils of State and Safety and such new Names and Powers as our Laws never heard of and all this under pretence that they Acted by the Peoples Authority and suffrage and all the sad Devastations of that Age resulted from the confiding so much in the pretended Representatives of the People Which (a) England's Universal Distraction p. 4. one some Years before the sad Catastrophe plainly foretold tho' like belief was given to him as of old to Cassandra His Words are That the so much exalting the Power of the Representatives was first to destroy the King by the Parliament and next the Parliament and Kingdom by the People Thus ignorant Politicians that build upon such Quick-sands soon live to see their Insanae Structurae ruinously fall about their Ears Thirdly Whereas the Advocates for the Representatives would gladly have possessed the People that they could rely upon none so securely and safely as upon those they had themselves chosen they being less subject to private ends and affections than any particular man such a Body being not likely to counsel or consent to any thing but what is publickly advantageous It is to be considered that it is a false Postulatum Such a Body being but an Aggregate of particulars may have as many private ends as any other number of Subjects it being well known that Communities themselves are subject to dangerous Inclinations from private Incitements and I the Representatives subject to misleading Factions and Ambitions of private Men and by coalition of Parties when they fall into designs they are most dangerous and fatally violent and tho' it may at first View seem to be repugnant that an Universality should have private ends yet seeing it is not the number of Agents but the capacity in which they act and the quality of the Actors and the coherence or incoherence of what they pursue with the publick end and weal which makes the Actions of men public or private It must needs follow That if without Authority or out of the way of Public Ordinances men pursue any thing though the whole Community concur in the pursuit yet it is all of the nature of a private Action and done to a corrupt and private end Because the Author of some Observations upon some of K. Charles the 1st Messages was reputed the great Champion of the two Houses I shall content my self with culling out some of the daringest assertions Why Reason and Law were not hearkned to by the Advocates of the Long Parliament he and some other of their Triarii used and apply such of those Answers and Reasonings as the Learned and Loyal offered then against them though they could not be heard while the Torrent bore all down the stream The hideous noise of Tumults and after of Drums Trumpets Cannons and Fire-Arms hushed and silenced all the still voice of Law and Reason But now it is to be hoped when Mens Eyes are unsealed the Mask and Vizard dropped or pulled off the fatal Consequences of such pernicious Principles throughly manifested and the loud Thunder of the Two Houses Ordinance allayed mens Spirits will be better fitted to hear them refuted Besides what I have endeavoured to answer before concerning the Authority of the Representative which they would make an Assembly in which the People in underived Majesty are by these Proxies convened to affirm an Imaginary Power supposed to be theirs originally and in such a convention to be put in execution I say besides this which in several places I have refuted That filled all their Declarations Messages and Treatises when they were contriving the setting up the Commons House Topmost to prove That they were a Body that was not easily corrupted byassed tempted or prevailed upon to Act any thing but what was the best for the Peoples advantage Therefore I think fit in many particulars to shew how such Bodies may be warped to sinister ends and especially how that House not only deceived but tyrannized over the whole Nation Private (b) Answer to Observer p. 130 131. How Passions Affections Interests and Factions may sway Representatives Quarrels and the memory of former Sufferings may work upon some discontent and envy at other mens preferment may transport others the fear of the lash and desire to secure themselves have forced some to personate a part great Offices and Honours have been a Pearl in some Mens Eyes to hinder their Fight others have been like Organ Pipes to whom the wind of popular Applause hath only given a sound others who have premeditated their Parts before their design was discovered have upon some pretences or other suppose of an unlawful Election being Monopolists Abhorrers or such like got those excluded by Vote whom they conceived to be likely to oppose their designs The bewitching Power of Oratory prevails upon many In others there is a Speechless Humour of following the Drove The Ambition and Covetousness of Representatives Can we not easily conceive several of this Body may be ambitious which would prompt them to alter the old way of bestowing Offices and collating of Honours so by disservice as well as service in Parliaments some Men have obtained Honours Offices and Estates finding it a good way to get preferment by putting the King upon necessity of granting Good Woodmen say That some have used Deer-stealing as an Introduction to a Keepers place So we have seen a Non-conformist's mouth stopped I might instance in other Professions with a good Benefice whereas before he was satisfied he could gape as wide as his Neighbours Others by more only ways slip into Preferment for Covetousness and Ambition will sail with any Wind. The Covetousness of the Members of the long Parliament by woful experience was found insatiable witness their Voting for one anothers Offices Governments satisfaction for their losses out of Delinquents Estates sharing the Kings Lands and Revenue the Bishops Deans and Chapters Lands and the Estates of the Royal Party hence together with the itch of Arbitrary rule they drew the determination of Causes out of the ordinary Courts of Justice before their Houses and Committees of them and in every County had their Sub-committees to Tyrannize over the People and fleece them Their cruelty appeared in their erecting High Courts of Justice Major Generals and other Arbitrary Courts The Cruelty of the Long Parliament where many a Loyal and brave man for serving his King against such Rebels either lost his Life or his Liberty and Estate and when they were the gentlest yet they could show hatred enough by Imprisoning upon I know not what suspicion and at leasure prosecuting such as they had a pique against The partiality of Members in such Conventions are very frequent The Partiality in shielding their friends from being questioned though their Corruptions were notorious to all the World So in the fatal Parliament of 1641. A Monopolist if a Loyal man was sure to be
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
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) Novanâ—is 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
as they foresaw would thwart their designs as Seducers of the King and men of Arbitrary Principles thereby to have them wholly removed from him as we have had Addresses of a later date from an House of Commons against some great wise and Loyal Lords by which severing from him such a body of his faithful Advisers Their Design to remove some Privy-Counsellors that some of their Party might be introduced and dangerously depriving him of the constant means which the Law hath specially ordained him for his support some of them endeavoured to get into their places as was notoriously known to have been proposed that if several of the leading men might have had chief places and honours they would have let the Earl of Strafford live as in another Treatise I hope to make clear and by that meanâ— not only have enriched themselves but have had the guidance of Affairs of State and so by little and little brought about the Promotion of their friends without regard to the Publick If we impartially consider the unreasonableness of this proposal we shall find The Mischiefs that would follow upon the Parliaments nominating Privy-Counsellors that by granting it we must expect to suffer all the evils which Faction can produce This were the ready way to kindle a fire in our bowels which would first break out in our Country Elections and divide the Families by irreconcileable hatred For it cannot be imagined but that Power would bandy against Power and Relations against Relations See Answer to Observations to put a Son or Kinsman into the road to preferment nor could the flames be quenched but burn more vehemently even in the house to which the insolence of some obtaining Offices to which they are not fit the shame and discontent of others repulsed and the ambition of all would be continual fuel and the greatest misery of all would be that were the corruption never so great we could have but slender hopes of redress since the prevailing Party jealous of their honour would constantly maintain their choice and perhaps it would be necessary for them one to wink at another as it was manifestly seen in the long Parliament when the most known Offenders and active Instruments of the Peoples miseries by striking in with the prevailing Party were more safe than innocency could make them It is enacted by King (i) 17 Car. 1. c. 10. The Limitations of the Power of the Privy-Council Charles the First that neither his Majesty nor his Privy-Council have or ought to have any Jurisdiction by English Bill Petition Articles Libel or any other Arbitrary way whatsoever to examine or draw into question determine or dispose of the Lands Tenements Hereditaments Goods or Chattels of any of the Subjects of this Kingdom but that the same ought to be tried and determined in the ordinary Courts of Justice and by the ordinary course of the Law In the Oath of a (k) Rot. Pat. 5. H. 4. num 14. Fleta lib. 1. c. 17. Privy-Counsellor his duty is best manifested First That he shall as far forth as cunning and discretion suffereth First Particular of a Privy-Counsellor's Oath truely justly and evenly counsel and advise the King in all matters to be commoned treated and demanded in the Kings Council or by him as the Kings Counsellor Therefore Henry the Eighth wisht that his Counsellors would commit simulation dissimulation and partiality to the Porters Lodg when they came to sit in Council Secondly Second Branch uprightness That in all things generally which may be to the Kings honour and behoof and to the good of his Realm Lordships and Subjects without particularity or exception of persons not fearing or eschewing so to do for affection love meed doubt or dread of any person or persons that he shall with all his might and power help and strenghthen the Kings said Council in all that shall be thought good to the same Council for the â—niversal good of the King and his Land and for the peace rest and tranquillity of the same Therefore my Lord Cook (l) Instit par 4. fol. 53. saith these Counsellors like good Sentinels and Watchmen consult of and for the publick good and the honour defence safety and profit of the Realm they are his true Treasurers and profitable Instruments of the State Thirdly That he shall keep secret the Kings Counsel Third Branch Secresie and all that shall be commoned by way of Counsel in the same without that he shall not common it publish it or discover it by word writing or in any otherwise to any person out of the same Council or to any of the same Council if it touch him or if he be party thereof So Valerius M. (m) Nihil magis optâ—ndum quam ut rerum ger â—darum consdia qu 〈◊〉 ejus fieri poterit quam maxime 〈…〉 Lib. 4. saith Nothing is more to be desired than that the Counsels of things to be done as much as possible be secreet So Vegetius (n) Nulla sunt meliora consilia quam quae ignoraverit â—dversarius antequam facias Consilia nisi sunt abscondita exitum raro prospiciunt Lib. 3. de Re militari hath of old pronounced That no Counsels are better than those which the Adversary is ignorant of before they be executed for unless Counsel be hidden and secret they rarely attain their end Fourthly That (o) Rot. Pat. 11 H 4. num 28. he shall not for gift meed nor good nor promise of good by him nor by means of any other person receive or admit for any promotion favouring nor fordeclaring letting or hindring of any matter or thing to be treated or done in the Council Therefore the part of a Counsellor is Tu civem patremque geris tu consule cunctis Non tibi nec tua te moveant sed publica vota Fifthly That he shall withstand any person or persons of what condition estate or degree they be of that would by way of feat attempt or intend the contrary to the good of the King peace of the Land c. and generally that he shall observe keep and do all that a good and true Counsellor ought to do to his Soveraign Lord. CHAP. XXXI Of Ministers of State I Joyn to the Privy Council Ministers of State being they differ from them very little some in name others in degrees For there (a) St. Alban's Essays tit Honour and Reputation are several qualifications of Subjects that serve a Prince As first those that are participes curarum upon whom Princes discharge the greatest weight of their Affairs The several Qualifications of Ministers of Princes as Ministers of State and Privy-Counsellors Secondly Duces Belli such as Princes imploy in their Armies and Militia Thirdly Gratiosi Favourites such as are a solace to the Prince and harmless to the People Fourthly Negotii pares such as not only have great places under the Prince and execute them sufficiently but
Oyer and Terminer Gaol-Delivery and Justices of Peace are determined by the Death of the Predecessor that made them Therefore the Statute of 25 Ed. 3. declares it to be Treason if any man kill the Chancellor The Judges represent the King's Person Treasurer or the Kings Justices of the one Bench or the other Justices in Eyre or Assise or any other Justices assigned to hear and determine being in their places doing their Offices The (f) Id. 3. Instit p. 18 140. reason whereof is assigned because all these represent the King 's Royal Person in his own Courts by his own Commission under the Great Seal in the very Execution of the Kings Royal Office viz. Administration of publick Justice to his People As therefore the King at his Coronation (g) Facies fieri in omnibus Justiciis tuis aequam rectam Justitiam discretionem in misericordia veritate secundum vires tuas taketh an Oath to make to be done in all his Judgments equal and right Justice and Discretion in Mercy and Truth according to his Power So he lays the Burthen thereof upon the Judges according to that of E. 3. for the Pleasure of God and quietness of our Subjects as to save our Conscience and keep our Oath by the assent of our great Men and other of our Council we have commanded our Justices that they shall from henceforth do even Law and Execution of right to all our Subjects Rich and Poor without having regard to any Person c. Therefore before this in (h) Nulli vendemus nulli negabimus aut differemus Justitiam vel Rectum c. 29. Magna Charta we find that the King will sell deny or defer Justice to none Yet from hence it doth not follow that if in the opinion of some the King doth not do Justice that therefore any Subject should conclude as the Master of the Hospitallers of Jerusalem in England at Clerkenwell Anno 1252. 37 H. 3. did The Story is thus told by (i) Hist p. 826 827. Edit prioris Matthew Paris The Master waiting a time when he might discourse with the King he complained of some Injuries done him The King loseth not his Authority tho' he do not Justice and shewed the King some Charters of Protection of himself and his Ancestors The King answered with an Oath and in Wrath You Prelates and Religious especially Templars and Hospitallers have so many Liberties and Charters that they make you proud c. Therefore they ought prudently to be revoked which imprudently have been granted to you for even the Pope oftentimes revokes his Grants with a non obstante and the King told him so he would do To all which the (k) Cui Magister Hospitalis respondit alacâ—iter vultu elevato Quid est quod diciâ— Domine Rex Absit ut in ore tuo recitetur hoc verbum illepidum absurdum Quamdia Justitiam observas Rex esse poteris quam cito bane infregeris Rex esse desines Master saith Matt. Paris answered chearfully and with a lifted up Countenance What is this you say my Lord the King far be it from you to speak so absurd a thing As long as you observe Justice you may be a King and as soon as ever you break this you cease to be a King Thus he would make Dominion founded in Justice as others in Grace But I need not add many Authorities upon this Head for by the universal Suffrage of the profound Lawyers the Kings of England solely nominate create and (l) Dyer fol. 56. appoint all the Judges of the great Courts at Westminister and may remove them at their Pleasure and alone make (m) Davis 45. and appoint Justices of Oyer and Terminer of Gaol-delivery Justices of the Peace Sheriffs and the like Officers and (n) Coke 4. Inst n. 4. 14. 114. 117. remove them when they see Cause and the (o) Bulstrod 3. 296. 1 H. 7. c. 25. Prerogative of making Judges cannot be given or claimed by a Subject The King hath also Power to name create make (p) Sheppard's Grand Abridgment part 3. p. 53. and remove the great Officers Ecclesiastical and Civil by Sea and Land as Archbishops Bishops by way I suppose of Conge deslier The King 's placing and displacing all Great Officers and Translation Lord Chancellor or Keeper Lord Treasurer Lord President Lord Privy-Seal Lord High Steward Lord Admiral Lord High Constable Earl Marshal Lord Chamberlain Privy Counsellors the Marshal or Steward of the Kings House and the rest of the Officers of his Houshold Master of the Horse Officers of the Mint of the Castles Port-Towns and Shipping Lord Lieutenants and many more too tedious to be named So that either mediately or immediately all Officers are by the Kings appointment which is not only a manifest badge but a necessary appurtenance of the Soveraignty SECT 2 The Court of High-Steward THE Kings Courts have been various The Court of the High-Steward as that of the Privy-Council called the Council-Board of which I have spoke before The Court of the High-Steward of England intituled Placita Coronae coram Seneschallo Angliae disused since the Reign of Henry the Fourth and now a Lord High-Steward is only appointed pro hac vice with limitations for the Tryals of some Peers of the Kingdom upon Inditement His Power anciently was (q) Coke 4 Inst c. 4. Supervidere regulare sub Rege immediate post Regem totum Regnum Angliae omnes Ministros Legum infra idem Regnum temporibus Pacis Guerrarum The next Court which is now totally suppressed was the Honourable Court of Star-Chamber The Star-chamber Court of ancient time stiled Coram Rege Concilio suo coram Rege Concilio suo in Camera stellata of which I shall have occasion to write something in the Chapter below SECT 3 The Court of King's-Bench AS to the great and standing Courts The King's-Bench the first of them that is mentioned in Ancient Writers is that of the Kings Bench coram Rege This (r) Rex illarum Curiarum habet unam propriam sicut Aulam Regiam Justiciarios Capitales qui proprias Causas Regias terminant Bracton saith was the Kings proper Court called the Kings Hall and had for Judges in it Chief-Justices which determined the Kings proper Causes c. The same (s) Justiciariorum quidam sunt Capitales generales perpâ—tui majores a latere Regis residâ—ates qui emnium aliorum corrigere tenentur injurias errores Lib. 3. c. 7. fol. 108 b. Author speaking of the Justices of this Court saith That some of them were Capital General perpetual and the greater sitting by the Kings side which were to correct the injuries and errors of all others Fleta in describing this Court saith My Lord Coke gives this account That the King in this Court hath his Justiciaries as well Knights as Clergy-men as
all manner of People as well Poor as Rich that for Highness nor for Riches nor for Hatred nor Estate of no manner of person or persons nor for any Deed Gift nor Promise of any person the which is made to him nor by Craft nor by Ingen he shall let the Kings Right nor none other Persons right he shall disturb let or respite contrary to the Laws of the Land nor the Kings Debts he shall put in respite where that they may goodly be levied that the Kings need he shall speed above all others that neither for gift wages nor good deed he shall layne disturb nor let the profit or reasonable advantage of the King in the advantage of any other person or of himself that he shall take of no person for to do wrong or right to delay or to deliver or to delay the People that have to do before him c. where he may know any wrong or prejudice to be done to the King he shall put and do all his power and diligence that to redress and if he may not do it that he tell it to the King or to them of the Council that may make relation to the King if he may not come to him Sir Edward Coke (z) 4. Instit p. 103. 110 111. hath commented on the Mirror to explain all the Power and particular business of the Court and further observeth that the Patent of the King to the Chief Baron the rest of the Barons Atturney General and Sollicitor are not so long as the King pleaseth but quam diu se bene gesserint which is interpreted a place for life and there is good reason being too many changes would give too many an insight into the Kings Revenue There is a Manuscript (a) Codex niger c. 1. Nulli licet statutum Scaccarii infringere vele is quavis temeritate resistere Habet enim hoc commune cum ipsa Dom. Regis Curia in qua ipse in propria persona Jura decernit quod nec Recordationi nec Sententia in eo latae liceat alicui contradicere of Gervasius Tilburiensis writ in the time of Henry the second which gives an account how it came to be called the Exchequer from a checked Covering of the Table at which the Officers of the Court sate and saith That it is lawful for none to infringe the Statutes of the Exchequer or by any rashness to resist them it having that common with the Court of the Lord the King in which he in his proper person gives Judgment that it is not lawful for any to contradict either the Record or Sentence By which it appears that this Court was distinct from the Kings Bench where the King sate in person and that by the Institution of William the Conqueror not only the great Barons of this Realm as well Ecclesiastical as Secular but also the Justice of England as President thereof by his Office were Members of this Court and so continued to do long after as the Judicious (b) Origines Jurisâ—ic fol. 50. Sir William Dugdale hath by Precedent shown Mr. Prynne hath given us two Records out of the Exchequer (c) Commun Term. Mich. 35 H. 3. Rot. 2. 34 H. 3. and Rishanger 40 H. 3. that that King in his proper person sate and gave judgments in the Court of Exchequer and gave not only Rules to be observed about the Revenue Sheriffs and Bailiffs but also concerning punishing Blasphemy defending Pupils Orphans and Widows and how the Magnates deported themselves to their Tenents and if (d) Inquirant qualiter Magnates se gerunt erga homines suoâ— si forte non possunt plenarie corrigere tunc ostendant easdem transgressiones Dom. Regi they found them transgressing that they correct them as they can and if they cannot fully correct them they show the same transgressions to the King He hath also given an account how 54 H. 3. (e) Pat. 54 H. 3. m. 22. dorso Incep 55. Rot. 3. dorso the accounts of the Sheriffs into the Exchequer were to be digested and in Michaelmass-Term the same Year how the Barons of the Exchequer were to administer the new Oath to the Mayor Elect of the City of London likewise in the same (f) Animadv fol. 55 56. Author there is a large refutation of Sir Edward Coke's Opinion that the Statute of Rutland as he calls it was a Statute made by the King Lords and Commons where it is proved against Sir Edward that it was made for the ordering of the Exchequer at Rothelan in Wales by the King and his Council and not at Rutland but I shall not enter into such Particulars There are several other Courts which have peculiar Jurisdictions by the King's Grants and Prescription as the Court of Requests abolished 17 Car. 1. The Court of Chivalry Court of Marshalsea of the Admiralty and that for redress of delays of Justice which Sir Edward Coke and others have treated of at large and fall not so necessarily for me to discourse of So I shall proceed to the Itinerant Justices and of Assizes and Gaol-delivery SECT 7. Of Itinerant Justices and Justices of Assize and Nisi Prius SOme Shadow of this we find in the time of the Conqueror when Geofrey Itinerant Justices Earl of Constance and some other Barones Regis did sit at (g) Regist Ecclesiae Eliensis fol. 24 b. Kenteford to hear and determine the Claim touching the Rights and Liberties of the Church of Ely at that time disputed before them But the settlement of the Constitution of them was not till 22 H. 2. Anno 1176. as Roger Hoveden (h) Annal. pars post p. 148 149 150. hath related when the King held his Great Council at Nottingham communi omnium Consilio divisit Regnum suum in 6 partes per quarum singulas Justiciarios Itinerantes constituit and the Twenty fifth of his Reign at his great Council at Windsor (i) Idem p. 590 591. Et unicuique partium praefecit viros sapientes ad faciendam Justitiam ad audiendum clamorem populi he divided England into four Parts and over every Part he appointed Wisemen to do Justice and hear the Complaints of the People The Form of the special Writ from the King to impower them to act and of the Writ directed to the Sheriffs to summon all such Persons as were concerned in this Service to appear before the Justices may be seen in Sir William Dugdale's Origines Juridiciales fol. 52. a.b. In which latter Writ (k) Cl. 3 H. 3. m. 13. dorso the Persons summoned to appear were Archbishops Bishops Abbats Earls Barons Knights libere tenentes and in every Village four Legales Homines Praepositum de quolibet Burgo 12 Legales Burgenses Sir Ed. Coke (l) 4. Instit p. 184. calls these Justices in Eyre and saith they had Jurisdiction in all Pleas of the Crown and of all Actions real personal and
the Commission of Sewers by Law (e) Discretio est discernere per Legem quid sit justum Coke Inst 4. fol. 41. 3 H. 8. allowing the Commissioners to make Orders c. according to their Judgments and Discretions the word Discretion is interpreted by Lawyers to discern by Law what is Just as appears when a Jury do doubt of the Law and desire to do what is Just they find the special matter and the entry is Et super tota materia petunt advisamentum discretionem Justiciariorum that is they desire that the Judges would discern by Law what is Just and give Judgment accordingly It was resolved in the Court of Common-Pleas when a new Court was (f) Whyte's Sacred Laws p. 33. erected 31 H. 8. to hear and determine according to Law and Custom or otherwise to their sound discretion That the last Clause was against Law For when Laws are writ and published Magistrates know what to command and the People to obey otherwise the Law must necessarily be errant wandring uncertain and unknown which is a (g) Miser servitus ubi jus vagum miserable yea the most miserable Slavery This was the ground of the taking away the most August and very Ancient Court of the Star-Chamber The Court of Star-chamber dissolved though appointed by Act of Parliament (h) 3 H. 7. c. 1. 21 H. 8. and consisting of very great Personages as the Lord Chancellor Lord President of the Council Lord Privy-Seal Bishops Lords and Justices For tho' there were other Reasons that moved the Houses to be so pressing to get that Act pass the grounds of its Repeal alledged in the (i) 17 Car. 1. c. 10. Preamble of the Act are That the Judges have not kept themselves to the points limited by the Statutes and have undertaken to punish where no Law doth warrant and to make Decrees for things having no such Authority and have inflicted heavier punishments than by Law warranted and that all matters Examinable and Determinable before them had their proper Remedy Redress and Punishment by Common Law and in the ordinary Courts of Justice elsewhere In the like manner and on the same reason were the Court of Request (k) Ibid. cap. 9. before the (l) Cap. 48. President of the Marches of Wales of the President and Council in (m) Cap. 49. the North and of the County-Palatine (o) Cap. 37. of Chester either totally abolished or much eclipsed Having thus far discoursed of the several standing Courts I think it necessary to give an account of the Oath the Judges of either Bench are enjoyned to take having before spoke of the Lord Chancellor Lord Treasurer and Barons of the Exchequers Oath SECT 10. Of the Judges Oath COncerning this Oath there is a Controversie betwixt Mr. (p) Animadv on Coke's 4. Inst fol. 38. Prynne and Sir Edward Coke the latter affirming it to be in our Printed Statutes but not upon Record which Mr. Prynne disproves thus That the Oath of the Judges Barons of the Exchequer and Justices Itinerant and the Ordinances annexed to the Oath were made by the King because of divers complaints to him by the assent of the great men and other wise men of his Council and commanded to be openly published by the Sheriffs of every County by (q) 7 May 20 E. 3. special Writs issued to them for the Reasons specified in the beginning and close of the Writs at least three Months before the Parliament was held that Year and they are all entred upon Record as they are Printed in the Statute Books at large (r) Cl. 20 E. 3. part 1. m. 12 13. 20 E. 3. in the Clause-Rolls but not in the Parliament or Statute-Rolls of that Year because not made in but before the Parliament From whence I note a good Argument of the Kings Prerogative in appointing Judges and Commissionating them himself without any Parliamentary concurrence since he appoints the very Oath which was to direct them in their Office out of Parliament We find the Commons so well pleased with this Oath that in the (s) Rot. Parl. 20 E. 3. num 25. Parliament 20 E. 3. they petitioned the King that the Justices of Assise and Enquiry might be sworn by the same Oath as the Justice of the Bench Abridgment of Records p. 48. and that the chief of them might have power to swear the rest which the King assented to with some Qualifications but when in the Twenty first of his Reign they petitioned that his other Ministers might take the Oath and might be sworn to take nothing from any other the King answered that he would advise what other Ministers shall be fit to take the Oath Mr. Prynne refers us to the Cl. 18 H. 3. m. 19. Cl. 35 E. 1. m. 7. Cl. 1 E. 2. m. 19. and Cl. 5 E. 3. m. 27. for some Clauses of the Oaths of Justices agreeing with those prescribed to the Kings Council But the Oath as it hath been after used is to this purpose That they shall swear well and lawfully to serve our Lord the King and his People in the Office of Justice and lawfully counsel the King in his Business not counsel or assent to any thing which may turn him in damage or disherison by any manner way or colour and shall not know of any such thing but cause the King to be warned thereof by themselves or others shall do equal Justice and Execution of Right to all the Subjects and take neither by themselves nor others privily or apertly Gift or Reward of Gold or Silver nor of any thing which may turn to their profit unless it be Meat or Drink and that of a small value of any man that shall have any Plea or Process hanging before them c. shall take no Fee as long as they are Justices nor Robes of any man great or small but of the King give no Advice to any man great or small where the King is Party If any of what condition soever come before them in their Sessions with force and Arms or otherwise against the Peace or against the Statute thereof made to disturb the execution of the Common Law or to menace the People that they may not pursue the Law That they cause their Bodies to be Arrested and put in Prison and if they cannot be Arrested that the King be certified That they themselves nor others maintain no Plea or Quarrel hanging in the Kings Court or elsewhere in the Country That they deny to no man Common Right by the Kings Letter nor none other mans nor for none other Cause and in case any other Letters come to them contrary to the Law they do nothing by such Letters but certifie the King thereof and proceed to execute the Law notwithstanding any such Letters That they shall procure the profit of the King and of his Crown and if in default shall be at the Kings Will of Body Lands and
do Authoritas rei indicatae vim legis habet So that can be no Appeal from the King to himself the King delegates his Power to them quod Rex facit per Officiarios per se facere videtur they give Judgment for the King not for themselves to that the Laws Authorize them and none but them so that the Kings assent or dissent cannot frustrate their Judgment which they render in invitos against the will of one of the Parties at least because expedit Reipublicae ut finis sit datus Therefore as to the Power of declaring Law the King is restrained ordinarily to the Mediation of the Judges who are to give the genuine sence and Interpretation of the Law according to Art and rules of science and so by their Interpretation and Judgment therein they bind both King and Subject Yet in some (d) Case of our Affairs p. 4. cases the Judge do not only consult among themselves Judges to apply themselves to the King to determine a doubtful case but must have recourse to the King as the Fountain of Justice so (e) Postnati si disputatio oriatur Justiciarii non possunt interpretari sed in dubiis obscuris Domini Regis expectanda est Interpretatio voluntas cum ejus est Interpretari cujus est condere It is saith Sir Thomas Smith (f) Commonwealth part 2. c. 10. to be taken for a Principle that the Life and Member of an English man is in the Power only of the Prince and his Laws so that when any of his Subjects is spoiled either of life or limb the Prince is endammaged thereby and hath good cause to ask account how his Subjects should come to that mischief and forasmuch as the Prince who governeth the Scepter and holdeth the Crown of England hath this in his care and charge to see the Realm well governed the Life Member and Possessions of his Subjects kept in peace and assurance he that by violence shall attempt to break that Peace and assurance hath forfeited against the Scepter and Crown of England So that from hence it appears how equal and just it is that the King should have the appointment of Judges Justices of Peace Why the King only to appoint Judges c. that neither his Peace should be broken his Subjects injured in their Persons or Estates nor his Laws be violated What Judges are to observe There being sufficient Provision in the Law against the violating of Justice by the Judges who are to observe these following statutes 1. Magna Charta That no Freeman shall be taken or Imprisoned or disseised of his freehold or liberty or Customs or be Out-lawed or exiled or otherwise destroyed That the King (g) Cap. 9. will not pass upon him or condemn him but by lawful Judgment of his Peers or by the Law of the Land and by another 5 E. 3. That no man shall be Attached by any Accusation nor fore-judged of Life or Limb nor his Lands Tenements Goods nor Chattles seized into the Kings hands against the form of the Great Charter and the Law of the Land and 25 Ed. 3 (h) Cap. 4. Stat. 5. That none shall be taken by Petition or Suggestion made to the King or to his Council unless by Indictment or Presentment of good and lawful People of the same Neighbourhood where such deed be done in due manner or by Process made by writ original at the Common Law and so by (i) 24 E. 3. c. 3. another That no man of what State and Condition soever he be shall be put out of his Lands or Tenements nor taken nor Imprisoned nor disinherited without being brought to answer by due Process of Law and in another (k) 41 E. 5. c. 1. That no man be put to answer without Presentment before Justices or matter of Record or by due Process or Writ original according to the old Law of the Land But I must leave this to the Learned in our Municipal Laws and shall note some few things from old Authors that may discover how much just Judgment hath ever been valued The impartiality and yet the tenderness and compassion in inflicting Punishment is notorious in Zeleucus Impartiality requisite in a Judge who while he governed the Locrians made a Law That whoever committed Adultery should have both his Eyes put out and his Son being found guilty he commanded the Law to be put in Execution and the body of the Citizens interceding he ordered one of his Sons Eyes to be put out and likewise one of his own that the Law might not be broken and yet that he might not be over rigid to his Son The (l) Neque inflecti gratia neque perfringi potentia neque adulterari pecunia possit Pro Cecinna Orator tells us That Justice should neither be warped by Favour nor broken by Power nor adulterated by Money and in another place (m) Exuit personam Judicis quisquis Amici personam induit saith That he puts off the person of a Judge who assumes that of a friend He indeed is an upright Judge in whose hand the Ballance of Justice neither totters nor falls by the Authority of any Person Talis debet esse Juris minister ut in ejus manu nullius authoritate personae titubet aut vacillet librae Justitiae Besides the avoiding of Partiality Pâ—ecipitancy to be avoided it is necessary in every Judge that he fully examine what is brought before him and not with too great Precipitancy determine matters upon (n) Qui statuiâ— aliquid parâ—e inâ—udita altera 〈…〉 siatuit 〈◊〉 tamen aequus est Senec. Medaea the hearing only of one side for though he may chance to do Justice in such a Case yet he doth not do justly that fully hears not both Parties Allegations It is a very mischievous things when Judges delay the Executing of Justice (o) Holy Court Tom. 1. lib. 3. p. 90. Delays in doing Justice mischievous Causinus out of the Chronicles of Alexandria tells us That Juvenalis a Widow complaining to Theodorick King of the Goths and Romans that a Suit of hers in Court was drawn out for the space of three Years Theodorick called the Judges before him and acquainted them with the Complaint and commanded them to do her speedy Justice which within two days they did and being again called by the King he asked them how it came to pass that they had dispatched that in two days which had not been done in three Years They answered that His Majestie 's Recommendation had made them finish it so soon To whom the King replied That when he put them into Office he consigned all Pleas to them and other Proceedings and since they had spun out the Business for three Years that required but two days dispatch they should die and at that Instant commanded their Heads to be smitten off Court to redress Delays We find in Sir Edward Coke
Capitularia Caroli (e) See Fred. Lindebrogus Codex Legum Antiq. magnis the Burgundian Alman Bavarian Saxon Longobard Ripuarian and Frisons Laws mention such Officers for preserving the publick Peace and (f) See Prynne 's Irenarch Redivivus p. 1. ad 5. punishing all Malefactors and infringers of the publick Peace as we have At the Common-Law before Justices of Peace were made there were sundry Persons to whose Charge the maintenance of the Peace was recommended and who with their other (g) Dalton's Justice of Peace c. 1. Conservators of the Peace Offices had and yet still have the Conservation of the Peace annexed to their Charge as incident to and inseparable from their said Offices yet they were only stiled and so now are by their Offices the Conservation of the Peace being included therein First the King is the principal (h) Idem Conservator of the Peace within his Dominions The King the principal Conservator of Peace and is properly Capitalis Justiciarius Angliae in whose Hands at the beginning the Administration of all Justice and all Judicature in all Causes first was and afterwards by and from him only was the Authority derived and given to all yet the Power nevertheless remains still in himself insomuch that he may himself sit in Judgment as in ancient times the Kings here have done and may take Knowledg of all cases and causes Before I leave this Head I cannot pass by the Act of (i) 20 H. 7. c. 11. H. 7. wherein is so fully declared the King's Care to have due Administration of Justice as in the close of the last Chapter I have only hinted The Reasons why Justices of Peace made The King's Care for right and easie Administration of Justice The Preamble saith The King considereth that a great part of the Wealth and Prosperity of the Land standeth in that that his Subjects may live in Surety under his Peace in their Bodies and Goods and that the Husbandry of this Land may encrease and be upholden which must be had by due Execution of Laws and Ordinances and so commandeth the Justices to execute the tenor of their Commission as they will stand in Love and Favour of his Grace and in avoiding the pains that he ordained if they do the contrary If they be lett or hindred they must show it to the King which if they do not and it come to the Kings knowledg they shall be out of his Favour as Men out of Credence and put out of Commission for ever Moreover he chargeth and commandeth all manner of Men as well Poor as Rich which be to him all one in due Administration of Justice that is hurt or grieved in any thing that the said Justice of Peace may hear determine or execute in any wise that he so grieved make his complaint to the next Justice of Peace and if he afford no remedy then to the Justices of the Assise and if he find no remedy there then to the King or Chancellor c. and as a further security it is added And over that his Highness shall not lett for any favour affection costs charge nor none other cause but that he shall see his Laws to have plain and true execution and his Subjects to live in security of their Lands Bodies and Goods according to his said Laws Thus we see who is the Principal Other Conservator of the Peace and Royal Conservator of the Peace others are the Lord Chancellor or Lord Keeper Lord Treasurer Lord High Steward of England Earl Marshal Lord High Constable of England every Justice of the Kings Bench and Master of the Rolls who have the power included in their Office and over all the Realm when they are present may award Precepts take Recognisances for the Peace of which and others Lambard in his Eirenarche may be consulted and how far Justices of Assise Stewards of the Sheriffs Turn and Court of Pye-powders the Sheriffs Chief Constable Coroners and Petty Constables may commit to Ward breakers of the Peace in their view though they cannot take surety at the request of any man that being peculiar to the Justices of Peace's Office Sir Edward Coke (k) Term. Pasch fol. 176. 4. Inst Coram Rege prima fuit Institutio Justiciariorum pro Pace conservanda Ad Pacem nostram conservandam saith that the first institution of Justices for the preserving the Peace was 6 Ed. 1. but Mr. Prynne will have it of older date because he finds that King Henry the Third by several Patents or Writs from the 17th to the end of his Reign did constitute and appoint several persons in most Counties of the Realm to be Guardians and Preservers of the Peace of the Realm and in the Patent 51 H. 3. m. 10.13 dorso it is dilectis fidelibus suis custodibus pacis Com. Linc. North. Ebor. Vicecom eorundem Comitat. and the like 54 H. 3. m. 21. d. But the first regular settlement of them seems to be Anno 1327. 1 Ed. 3. c. 16. The Authorities afterwards were further explained 4 Ed. 3. c. 2. 18 Ed. 3. c. 2. 34 Ed. 3. c. 1. Sir Edward Coke (l) Ibid. 171. tells us that the Commission of Peace stood over-burthened and incumbered with divers Statutes some whereof were before and some since repealed and stuffed with many vain and unnecessary repetitions and many other corruptions crept into it by mistaking of Clerks c. for amendment and correction whereof (m) Mich. 32 33 Eliz. Sir Christopher Wray Chief Justice of England assembled all the Judges of England and upon perusal had of the former Commission of Peace and due consideration had thereupon and often conferences betwixt themselves they resolved upon a reformation of the form with divers additions and alterations both in matter and method as it stood in Sir Edward's time and he saith It needed another Reformation by reason of Statutes since repealed and others expired of which he gives several instances Therefore he saith It is a good rule for all Judges and Justices whatsoever that have Jurisdiction by any Statute which at the first was Temporary or for a time to consider well before they give Judgment Whether that Statute hath been continued or made perpetual and if at first it was made perpetual Whether it be not repealed or altered by any later Statute What Commissions Patents and Writs were issued out by King Edward the First for preserving the Peace of the Realm suppressing seising and punishing of those who disturbed it may be found Cl. 9 Ed. 1. m. 10. d. in Rylies (n) P. 443 451 to 457 433 480. Prynne's Animadv fol. 149. Appendix so there is a Patent 14 Ed. 1. m. 15. 15 Ed. 1. m. 13. de militibus constitutis ad Articulos in Statuto de conservatione pacis edito contentoâ— observandos constituting persons of note in every County to observe them named in the Record and so for other Kings Reigns
the rest and leave all in unsecurity How can saith he Justice banish (t) MS. Speech at the end of the Parliament Anno 1559. Justices of Peace to be active Enormities when her Ministers are slothful making no account of any of the Common Causes of their Country and under the notion of being accounted quiet men they seek only ease profit and pleasure to themselves and to be sustained by other mens care and labour whereas the Horse-Master provideth for the good Government of his Horse Bits or Brakes according to the hardness or tenderness of his Mouth If continues he in the richest soil the usefullest and delightfullest Flowers The necessity of punishing evil Men. Shrubs and Fruits be planted and no care be taken to weed out what would choak and over-grow them what pleasure or benefit could be had of all ones cost and labour a crop of weeds would soon such out all the nourishment from their roots over-shadow them from the cherishing Sun and smother the curious Plants so that they would soon dye and wither Therefore is there a great need of chusing able careful and active Gardiners to howe and root out all such rank Weeds In another (u) MS. Speech second Parl. 1562. Speech after advising great care in chusing Officers as Justices of Peace c. that have the Execution of the Laws he tells the noble Assembly That sharp Laws should be made for banishing sloth and corruption A Visitation of the Justices of Peace proposed and adviseth there should be through the Kingdom Biennial or Triennial Visitations of all the Temporal Officers and Ministers that ought to see to the Execution of the Law by Commission to try the Offences of those that have not seen to the due Execution of the Laws according to the Office and charge committed to them as in Church-Visitations and that a Roll should be kept See something of this nature 2 H. 5. 8. wherein all the Justices names should be set down to every Offence he hath caused to be punished that it might appear who is diligent and that those that are negligent might be removed to their perpetual Ignominy and such pains set upon them as by Law may be Another time (w) MS. Speech Star-chamber 1568. he urgeth that it ought to be considered whether it be a greater Cruelty to execute the Penal Laws so as thereby a few shall be unwhipped and many hanged or some shall be whipped and thereby few hanged In another (x) MS. Speech second Session of Parliament 1571. I find this swasive It would be strange to make Laws to reform manners and prune away the ill branches and Members of the Commonweal and then to â—ye them in boxes and books it were better to have no Laws than them not Executed for besides other inconveniences it breeds contempt of Laws and Law-makers (y) Idem A Prince continueth he that is careful of the discharge of his great Office leaveth nothing undone meet for him to do for the Execution of the Laws making choice of Persons of most Credit and best understanding through the Kingdom to whom for the great trust he reposeth in them he giveth Authority by Commission to Execute a great part of the Law Therefore the Burthen of all Enormities Absurdities and Mischiefs that grow in the Commonwealth for the not executing of Laws must needs light upon those Persons that have Authority to execute them and if remisness be if the Prince should be driven to commit the Execution of the Laws to those who in respect of Practice and gain would see them executed with all severity what a burthen would that bring to the Realm In this manner Queen Elizabeth caused the Execution of her Laws to be recommended both to the Justice of Assize and to the Members of Parliament that at their recess they might take care to see them put in Execution As a close to this Chapter and an Introduction to the next I shall give a short account of the Laws in the Saxons time that were made by several Kings for the preservation of the Peace and of how great value the due keeping of the Peace was The Sixth Law of King Ina appoints that he that fights in the Kings (z) Cuninges hus Palace shall lose all his Goods and it shall be at the Kings pleasure whether he shall be Capitally punished or not it also ordains several Mulcts of Money for fighting in the (a) Mynster Church in an Aldermans House or the House of a (b) Gefolgylden hus Country-man And the next Law is against Theft and in the 13th against Thieves and Robbers from the number of Seven if they be 35 they are counted a (c) Klothum Troop if more an (d) Herge Army and so in the 26th Law appoints a Reward for apprehending (e) Theoffes onfeng a Thief So in the 46th Law of the Peace violated in (f) Burghbryce a Town of the Kings or a Bishops 120 s. and so proportionable in the Town of an Alderman of the Kings (g) Cyninges Thegnes Minister or any Land-holders (h) Land hebbendes Town So in the 15th Law of King Alfred 150 s. punishment is laid upon his that (i) De gefeohtum fights in the presence of an Archbishop and 100 if in the presence of a Bishop or alderman and in the next against the stealing a Mare or Cow the price and 40 s. Mulct and in the 26th against (k) Mansliht mid blothe Man-slaying in Companies to pay the price of his Head and all present 30 s. a piece and in the 35th against breaking the Peace in a Town as before fore The 38th Chapter is long That no Man assault his Enemy in his House till he hath (l) Aeâ—hon be him ribtes bidde demanded right of him which if he deny he may besiege him seven Days but not (m) Be gefeobte assault the House and if he yield he must keep him Thirty Days and then restore him to his Friends This care was taken to pre\vent Bloodshed There are many particulars besides worth observing in this as well ad the 40th Chapter (n) Be wundum against wounding I shall speak of that of King Edward hereafter The first Law of King Aethelstan is against Theft that is manifest where the (o) The of thâ—at thâ—ebbendse thing stolen is found in the Thieves Hand hand gefangen sy and so of other particulars worth reading The Third Law of King Edmund prohibits any Man-killer to come into the Prince's presence altho' his Servant till he have made satisfaction (p) Aef he on daedâ—ote ga swa Bisceop him Tace his serift him wisâ—ge for the Crime as it is appointed him by the Bishop and he makes Seven particular Laws together against Man-killing those that assault other in Towns holy places c. and the several punishments prefacing these Laws thus That to him and the Clergy
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 câ—tus 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
better Condition though Gentiles than the Christians under the Romans or that it is derived from Gens I am more inclined to be of the latter Opinion finding it more agreeable to the common Use For Cicero (b) In Topicis calls those Gentiles qui ex eadem Gente Ingenui qui nunquam Capite sunt diminuti Gens consisting of a multitude which have sprung from one Generation and of many of these Gentes consists a Nation to which agrees that of (c) Gentilis dicitur ex eodem genere ortus is qui simili nomine appellatur Festus ad Verbum Festus that Gentilis is one born of the same Gens or Kindred and who is called by the like Name So we find the Horatii the Corvine Julian Flavian Family c. So the Greeks use the words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for one nobly descended from great Parentage So 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 was Nobility which (d) Polit. lib. 4. c. 8. lib. 5. c. 1. Aristotle calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Antient Wealth and Vertue or the (e) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Rhetor. ad Theod lib 2. c. 5. Dignity of the Ancestor The first Authors of it being stiled famous Men and Honourable 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 In the largest acceptation of the Word as it is now used saith the judicious (f) Tiles of Honour p. 852. Selden it denotes one that either from the Blood of his Ancestors or the Favour of his Sovereign or of them that have Power from the Sovereign or from his own Vertue Employment or otherwise according to the Laws and Customs of Honour in the Country he lives in is ennobled made Gentile or so raised to an eminency above the Multitude perpetually inherent in his Person These are stiled the Nobiles minores for distinction sake The use of the word Nobilis the word Nobiles being now appropriated to those of the higher Rank The ancient use of Nobilis especially before the Roman Monarchy was such that it was justly given to none but him that had Jus imaginum or some Ancestor at least that had born some of the great Offices or their Magistratus Curules as (g) 〈…〉 1. cap. 19. Censorship Consulship c. From whose Image kept he had the Jus Imaginum Therefore the preceding Ancestor was called novus Homo or Ignobilis Some Ages after the Romans were under a Monarchy the Title of Nobilis was given to such as by the Emperors Patents of Offices or their Codicilli Honorarii were first raised out of the lowest Rank After that Arms of Ensigns of Distinction born upon Shields grew to be in may Families Hereditary which was about four hundred Years since as Sir Edward Bish in his Aspilogia avoucheth it came into frequent use that he who was either formerly ennobled by Blood or newly by acquisition either assumed or had by Grant from his Sovereign or those deputed by him some special note of Distinction by Arms also to be transmitted with his Gentry to his Posterity Yet (h) 〈◊〉 Mr. Selden notes that in the Proceedings in the Court of Chevalry betwixt Reginald Lord Grey of Ruthin Plaintiff and Sir Edward Hastings Defendant concerning the bearing of a Manch Gules in a◠Field Or in the depositions taken in the Moote Hall at Bedford it is recorded that John Botiler of the County of Bedford and Roger Tenstal Mayor of Bedford having been the Plaintiffs Servants severally deposed Il est Gentilhom d' Auncestrie mas nad point d' Armes Gentlemen without coats of Arms. That he was a Gentlemen of antient time but had no Arms. But I shall pass from this That which I desire the Gentry to observe is Advice to the Gentry That they are the Seminary of our greater Nobility and that from Loyal Wise Learned Valiant and Fortunate Persons of their Order in all Princes Reigns the Nobility have sprung Therefore as some of them are derived from as numerous Ancestors as any in other Kingdoms and have by Hereditary Succession greater Estates than many foreign Counts and as they desire either to conserve the Repute their Ancestors have honourably entailed on them or to transmit them to their Posterities so it will be their Interest and Glory to accomplish themselves in all sorts of useful Learning whereby they may be Serviceable to their King and Country There are Bodily Exercises they should be well skilled in as Fencing Riding the great Horse and all Military Exercises to enable them to serve in the Militia of the Nation and their diligent perusing all sorts of History and the Laws of the Land will fit them for the managing of Civil affairs and dispensing the Kings Laws as Justices of Peace Sheriffs Commissioners Representatives in Parliament as also for the greater Offices of State Since they are born to large Patrimonies and thereby have a more generous Education and derive a more refined Spirit from their Ancestors they can with infinite more Ease enter into publick Employment having none of those sinking (i) Hand facile emergunt quorum virtutibus obstat Res angust a domi weights of Poverty and mean Education which enforce others to use extream Diligence e're they can mount the first half Pace the Gentleman is seated on by that time he leaves his tutors It is true the Priviledges of the Gentry of England properly so called are not so great as in some Countries where they have power of Life and Death over their Servants or are exempted from Taxes and enjoy other Immunities which are denied to the Commons yet they have others as beneficial in that they make up a great share of the Ministerial parts of the Government It is required by God and their Prince that they should so deport themselves as they may be singular (k) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dio lib. 2. Examples to their Tenants and Neighbours of Wisdom Temperance Justice Loyalty and all the System of Vertues and by a generous Hospitality without Debauchery preserve their Interest in the affection of their Neighbors and that the Poor may daily and zealously pray for them being made the Voiders and receiving the Sportula of their plentiful Tables By this way of living they will sow among their Neighbours the Seeds of all useful Vertues and enrich their Countries and be able in time of need to serve their Prince with their numerous Dependants It is for the use of the blooming Gentlemen I write this The more sage and ancient need only such Intimations to refresh their Memories I have made Observations how fatal it hath been to themselves and the whole Kingdom when the Gentry have been seduced to sleight at first and after as they have been wrought upon by Designers to over-awe or overturn the Government and either by Piques among themselves or Aemulations Envies and Discontents have been brought into the Combinations and Conspiracies with those who under the specious Pretences
Issue according to the present interests of his Affairs and Passions that such contradictory Acts could not be all true and though the Responses from Delphos or any Oracles of the Gentile ages might miss the truth as much yet by their dubious answers they forfeited not their reputations so much We may also note (l) Jus Regium p. 178 179. that by God Almighty's Providence and the care of his own Laws the Duke of Richmond was removed by death to prevent the unjust Competitors and Prince Edward was born and by the same Providence and the sence the Subjects had of the great Fundamental of Hereditary Succession contrary to some of these Acts and what Edward the Sixth did in setling the Crown upon the Lady Jane Grey proved of no force for Queen Mary succeeded though she was a Papist and Queen Elizabeth succeeded her though she was declared Bastard The rights of Blood prevailing over the Formalities of Divorce and the Dispensations of the Popes and the Laws made to gratify Henry the Eighth's pleasure as the strength of nature doth often prevail over Poisons and to evince the greater certainty of their being void so little notice was taken of those and the subsequent Acts Anno 1535. that the Heirs of the Blood succeeded without repealing that Act as an Act in it self invalid from the beginning For such Acts are past by without being repealed as we find in the Act of Recognition of Queen Elizabeth no notice was taken of the Act of Parliament against her and Blackwood (m) P. 45. observes very well that so conscious were the makers of these Acts Jus Regium p. 179. of the illegality of them and of their being contrary to the immutable Laws of God Nature and Nations that none durst produce that Kings Testament wherein he did nominate a Successor conformable to the power granted by those Acts but that as soon as they were freed by his Death from the violent oppressions that had forced them to alter a Successor three several times and at last to swear implicitly to whomsoever he should nominate they proclaimed first Queen Mary and after her decease Queen Elizabeth Therefore all these Acts both of Henry the Eighth and Edward the Sixth are to be looked upon as Politick interims to serve for some present ends And as we observe the trepidations vibrations and as we may say uneasiness of things in all that have been displaced till reseated again whereby we have a certain Indicium of any thing Natural so may we note the naturalness of Hereditary Succession by the Tragical Convulsions and unsetledness of things in any State where great force and policy have usurped the Crown till it hath returned to the right owner So we see after the force was removed by the expiration of Henry the Eighth and Edward the Sixth things returned again into their pristin State according to the Laws of the Crown I shall now pass to consider other Reasons and First it may be observed Fundamentals in Government not to be altered That the Venerable Age of such Fundamental Laws should have another kind of respect pay'd to them than to be made obsolete because they will not sort with some new-fashioned Intrigue For it is a most true Maxime Non magis aliunde floret respublica quam si legum vigeat Authoritas So in the first Parliament (n) Cap. 2. of King James the First it is fully expressed That to alter and innovate the Fundamental ad Ancient Laws See Commission for Union 16â—4 Priviledges and good Customs of the Kingdom whereby not only the Kings Regal Authority but the Peoples securities of Lands Livings and Priviledges both in general and particular are preserved and maintained and by the abolishing or alteration of the which it is impossible but that present confusion will fall upon the whole State and frame of Government is of most dangerous consequence whence we may well infer That to endeavour to alter the right of Succession of the Crown in the direct line is one of the most dangerous Innovations of all others as drawing innumerable mischiefs after it Now there can be no greater fundamental right than the Succession of our Monarch The Hereditary Succession is a Fundamental That our Monarchy is Hereditary is the great Basis upon which most of all the positions of the Laws are established which every where we meet with in the Writings of Lawyers viz. That the King never dies the next Successour in Blood is legally King from the very moment in which the last King dies that there needs neither Coronation or Recognition of the People to intitle him to the exercise of his Regal Authority that his Commissions are valid all Men are liable to do him Homage and hold their rights of him and his Heirs he may call Parliaments dispose of the Lands belonging to the Crown and all that oppose him are Rebells Generally this Principle runs through all the Veins of our Laws it is that which gives Life and Authority to our Statutes but receives none from them which are undeniable marks and Characters of a Fundamental Right in all Nations Secondly Such further provision hath the Law made to secure the Succession in the direct line that if the right Heir of the Blood or the Father or Mother of the right Heir be attainted of High Treason by Parliament the Attainder is no obstruction to the descent If he who were to succeed had committed Murther or were declared Traytor formerly to the Crown for open Rebellion against the King and Kingdom yet upon his coming to the Crown he need not to be restored by Act of Parliament but his very right of Blood would purge all these Imperfections For tanta est Regii sanguinis praerogativa dignitas ut vitium non admittat nec se contaminare patiatur saith a (o) Craig learned Lawyer and the Reasons given are For that no Man can be a Rebel against himself nor can the King have a Superior and consequently there can be none whom he can (p) Jus Reg. p. 169. offend and it would be absurd that he who can restore all other Men should need to be restored himself Also the Punishments of Crimes such as Confiscations c. are to be inflicted by the Kings Authority or to fall to the Kings Treasury and it would be most absurd that a Man should exact from himself a Punishment So Richard Plantaginet Duke of York and Edward the Fourth his Son were both attainted yet Edward the Fourth was rightful King and no impediment in the Succession accrued by it So Charles the Seventh of France though banished by Sentence of Parliament did afterwards succeed to the Crown and though Lewis the Twelfth forfeited for taking up Arms against Charles the Eighth yet he succeeded and Alexander Duke of Albany and his Descendants being declared Traytors by his Brother King James the Fourth yet his Son John being called home 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