A TREATISE Shewing That the Soveraignes Person is required in the great Councells or Assemblies of the State as well at the Consultations as at the Conclusions Written by Sir ROBERT COTTON Knight and Baronet IN DOMINO CONFIDO Printed in the Yeare 1641. The right VVorshipfull Sir ROBERT COTTON Knight and Baronnet his Speech in Parlament That the Soveraignes person is required in the great Councells or Assemblies of the State as well at the Consultations as at the Conclusions SInce of these Assemblies few Dieries or exact Journall Books are remaining and those but of late and negligently entred the Acts and Ordinances only reported to posteritie are the Rolls This Question though cleare in generall reason and conveniencie must be wrought out of for the particular out of such incident proofes as the Monument of Storie and Records by pieces learne us And to deduce it the clearer downe some essentiall circumstances of Name Time Place occasion and Persons must be in generall shortly touched before the force of particular proofes be layd downe This noble body of the State now called the houses in Parliament is knowne in severall ages by severall names Concilia the Councells in the Eldest times afterwards Magnum commune et generale Concilium Curia magna Capitalis et curia Regis Sometimes Generale placitum and sometimes Synodus and Synodalia decreta although as well the causes of the Common wealth as Church were there decided The name of Parlament except in the Abbots Chapters was never heard of unto the reigne of King Iohn and then but rarely At the Kings Court were these Conventions usually and the Presence Privie Chamber and other room convenient for the Kings in former times as now then used For what is the present house of Lords but so at this day and was before the firing of the Palace at Westminster about 17. H. 8. who then and there resided Improbable it is to beleeve the King excluded his owne privie and unmannerly it is for guests to barre him their companie who gave to them their entertainment It was now at first as now Edicto Principis at the Kings pleasure Towards the end of the Saxon and in the first time of the Norman Kings it stood in Custome-Grace to Easter Whitsuntide and Christmas fixed the Bishops Earles and Lords ex more then assembled So are the frequent words in all the Annalls The King of course revested with his Imperiall Crowne by the Bishops and the Peeres assembling in Recognition of their preobliged faith and present dutie and service untill the unsafe time of King Iohn by over-potent and popular Lords gave discontinuance to this constant grace of Kings and then it returned to the uncertaine pleasure of the Soveraigne Summons The causes then as now of such assemblies were provision for the support of the State in Men and Money well ordering of the Church and Common-wealth and determining of such causes which ordinarie Courts nesciebant iudicare as Glanvill the grand Iudge under H. 2. saith Where the presence of the King was still required it being otherwise absurd to make the King assentor to the judgements of Parliament and afford him no part of the Consultation The necessitie hereof is well and fully deduced unto us in a reverend Monument not farre from that grave Mans time in these words Rex tenetur omnimodo personalitèr interesse Parliamento nisi per corporalem aegritudinem detineatur and then to acquaint the Parliament of such occasion by severall Members of either House Causa est quòd solebat clamor et rumor esse pro absentiâ Regis quia res damnosa periculosa est est toti Communitati Parliamento Regno cum Rex a Parliamento absens fuerit Nec se absentare debet nec potest nisi duntaxat in causâ supradictâ By this appears the desire of the state to have the Kings presence in these great Councells by expresse necessitie I will now endeavour to lead the practise of it from the darke and eldest times to these no lesse neglected of ours From the yeare 720. to neare 920. during all the Heptarchy in all the Councell remaining composed ex Episcopis Abbatibus Ducibus Satrapis et omni dignitate optimatibus ecclesiasticis scilicet secularibus personis pro utilitate Ecclesiae stabilitate Regni pertractatum Seven of them are Rege presidente and but one by deputy and incongruous it were and almost Non-sence to barre his presence that is President of such an Assembly The Saxon Monarchy under Alfred Etheldred Edgar in their Synods or placita generalia went in the same practise and since Thus Ethelwold appealed Earle Leofrick from the Countie ad generale placitum before King Etheldred and Edgyra the Queen against Earle Goda to Eldred the King at London congregatis Principibus sapientibus Angliae In the yeare 1052. under Edward the Confessor statutum est placitum magnum extra Londinum quod Normanni ex Francorum consuet udine Parliamentum appellant where the King and all his Barons appealed Godwin for his brother Alureds death the Earle denyed it and the King replyed thus My Lords you that are my Liege men Earles and Barons of the Land here assembled together have heard my appeale and his answer unto you be it left to doe right betwixt us At the great Councell at Westminster 1072. in Easter week the cause of the two Arch-Bishops Lanfrank and Thomas Ventilata suit in praesentia Regis Gulielmi and after at Windsor sinem accepit in praesentia Regis At the same Feast Anno 1081. the usuall time of such assemblies the King the Arch-Bishops Bishops Abbots Earles and chiefe Nobilitie of the Kingdome were present for so are the words of the Record The cause betweene Arsast Bishop of Norway and Baldwin Abbot of Burie was also argued Et ventilata in publico Rex jubet teneri Iudicium causis auditis amborum The diligence of his sonne the learned H. 1. in executing of this part of his kingly function is commended to posteritie by Walter Maps a learned man trained up and dear in favour with H. 2. in these words Omnia Regali more decentique moderamine faciebat neminem volebat egere justitia vel pace constituerat autem ad tranaquillitatem omnium ut diebus vacationis vel in Domo magna sub dio copiam sui faceret usque adhoram sextam which was till 10 as wee now account secum habens Comites Barones Proceres et vavasores to heare and determine causes whereby he attained the sir-name of Leo Iustitiae in all Stories and so out went in quiet quiddance of the state his best Progenitors The next of his name that succeeded is remembred every where for the debates and disputes he heard in person with
Thomas the Arch-bishop and others of his part at the greatest Councels both at London Clarendon and Northampton for the redresse of the many complaints of the Commons against out-rages and extortions of Clergie men In the yeare 1057. die Pentecost Apud 8. Edmundum The same King diademate insignitus with the Bishops Abbots Earles and Barons of the Kingdome sate dayly himselfe and heard all the debates concerning the liberties Charters of Batell Abbie The interlocutorie speeches as well of the King as the Lords and parties are at full related in a Register of the Church The suit between the Church of Lincolne and S. Albans in praesentia Regis H. Archiepiscoporum Episcoporum omnium Angliae comitatum Baronum Regni was at Westmin debated and ended and had the love of Memorie and Truth bin a Protector to the publick Records of the state as the awe of the Clergies censure was a guard to theirs in tempestuous times we had not been now left to the onely friendship of Monkes diligence for example in this kinde At Lincolne the Arch-Bishop some Bishops but all the Earles and Barons of the Kingdome unà cum Rege Joanne congregati ad colloquium de concordia Regis Scotiae saith a Register of that Church This use under King H. 3. needeth no further proofe than the Writ of Summons then as some report framed expressing both the Kings mind and practice It is Nobiscum Praelatis Magnatibus nostris quos vocari fecimus super premissis tractare Concilium impendere which word Nobiscum implyeth plainly the Kings presence What the succeeding practice was from the 15. year of E. 4. the proper Records of this Inquirie the Iournall books being lost I am inforced to draw from out the Rolls of Acts wherein sometimes by chance they are remembred Edward the 2. was present in Parliament the 15. yeare of his reigne at the complaint against the Spencers and at a second Parlament that year for the repeale of their banishment In the 4. of E. 3. the King was present at the Accusation of Roger Mortimer but not the Triall and the next yeare in the treaty of the French affaires In the 6. yeare Intererat rex in causa Iohannis de Gray Guilielmi de la Zouch and the same yeare 2. die Parliamenti the King was present at the debate about his voyage into Scotland In the 15. yeare the King in the Painted Chamber sitting with the Lords in consultation the Arch-Bishop after pardon prayes that for better cleering himselfe hee may be tryed in full Parlament which was granted In the 17. in Camera alba now called the Court of Requests Rex cum magnatibus conveniunt communes super negotiis Regni In the 10. of R. 2. the King departed from the Parliament in some discontent when after some time Lords are sent to pray his presence and to informe his Majestie that if hee forbeare his presence amongst them 40. dayes that then ex antiquo Statuto they may returne absque domigerio Regis to their severall homes Henrie the 4. began his first Parlament the first of November and was the 27. day of the same moneth at a debate about the Duke of Britanie the 30. day the cause of the Arch-Bishop was before him proposed onely The 3. of Nov. he was at the debate whether the Commons had right of Iudicature yea or no On the 10. hee was with the Lords in their Consultation about the expedition against the Scots the creation of the Duke of Lancaster and the prohibition of a new Sect from entring this Kingdome Some Ordinances were at this time consulted of concerning the staple and the sentence against Haxey after dispute revoked This King began his second Parliament the 20 of Ianuarie and on the 9. of Februarie was present to make agreement betwixt the Bishop of Norwich and Thomas of Erpingham On the 20. day of the same moneth hee was present at Councell for repressing of the Welch Rebells for revocations of stipends and concerning the Priors Aliens On the 26. they advise before the King of the Sestertian Order On the 2. of March of the Statute of Provisions the keeper of the privie Seale and relieving of the two Vniversities On the 9. of March they mediate before the King a reconciliation betwixt the Earle of Rutland and the Lord Fitzwaters He also began a parliament in his fifth yeare upon the 15. of Ianuarie and the 10. they advise before the King of guarding of the Seas and the Welch Rebellion On the 8. of Februarie the Earle of Northumberland is charged before the King and in his presence and by his permission divers of whom hee knew no harme were removed from the Court The next day at the petition of the Commons hee tooke upon him to reconcile the Earles of Northumberland Westmerland and on the 22. of Februarie of Northumberland and Dunbar In a parlament of the 27. of H. 6. a challenge of Seat in parliament betwixt the Earles of Arundell and Devonshire was examined and appoynted by the K. with the advice of the Lords In that great capitall cause of the Duke of Suffolke 28. H. 6. I find not the King once present at the debates but the Duke appealing from his tryall by Peerage to the K. is brought from out the house of Lords to a private chamber where the King after the Chancellor in grosse had declared his offence and refusall himselfe but not in place of judgement adjudged his banishment By the Rolls of K. Ed. 4. it appeareth that hee was many dayes besides the first and last in parliament and there are entred some Speeches by him uttered but that of all the rest is most of marke the Reporter then present tells it thus of the Duke of Florence and the King Tristis disceptatio inter duos tantae humanitatis Germannos Nemo arguit contra Ducem nisi Rex nemo respondit Regi nisi Dux Some other testimonies were brought in with which the Lords were satisfied and so formârunt in eum sententiam damnationis by the mouth of the Duke of Buckingham then Steward of England All which was much distasted by the house of Commons The reigne of H. 7. affords upon the Rolls no one example the journall Books being lost except so much as preserves the passages of eight dayes in the 12. of his reigne in which the King was some dayes present at debates and with his owne hand the 31. day of the parlament delivered in a Bill of Trade there read but had the Memoriall remained it is no doubt but hee would have beene found as frequent in his great Councell of Parlament as hee was in the Starre-Chamber where by the Register of that Court appeareth aswell in debate at private causes that touch neither life nor member as those of publick care he
everie yeare of all his reigne was often present Of H. 8. memorie hath not been curious but if he were not often present peradventure that may be the cause of the disorder which the learned Recorder Fleetwood in his preface to the Annalls of E. the 5. R. 3 H. 7. H. 8. hath observed in the Statutes made in that Kings dayes for which cause hee hath severed their Index from the former and much lay in the will of Wolsey who was ever unwilling to let that King see with his owne eyes Edward the sixt in respect of his yong yeares may be well excused but that such was his purpose appeares by a memoriall of his owne hand who proposing the affaires of Councell to severall persons reserved those of greatest weight to his owne presence in these words These to attend the matters of State that I will sit with them once a weeke to heare the debating of things of most importance Vnfitnesse by Sexe in his two succeeding Sisters to be so frequently present as their former Ancestors led in the ill occasion of such opinion and practise Most Excellent Majestie YOur most humble servant in discharge of Obedience and Zeale hath hastned up this Abstract which in all humilitie he offers up unto your gracious pardon Presumption to enter the closet of your Counsell is farre from his modestie and dutie What hath been your powerfull command he hath made his worke what is fit to be done with it is onely your divine judgement He dares not say that Presidents are Warrants To direct the successe is as worthy observation as the knowledge thereof sometimes have made ill examples by extension of Regall power through ill councells with ill successe Some as bad or worse when the people have had too much of that and the King too little the danger no lesse To cut out of either of these paternes to follow were but to bee in love with the mischiefe for the example The cleerer I present this to your Highnesse the nearer I approach the uprightnesse of your heart the blessed fortune of your happy subjects Pardon most sacred Majesty that I offer up to your admired wisedome my weake but dutifull observations out of all the former gathering In Consultations of State and decisions of private plaints it is cleare from all times the King was not onely present to advice and heare but to determine also In the cases Criminall and not of blood to barre the King apart were to seclude him the Star-Chamber as far from reason as example The doubt is then aloud in crimes meer capitall I dare not too much commend the times that left these Patternes either for the causes or effects but wish the one and the other never more To proceed by publick Act of Commons Peeres and King was most usuall Appeales are gone by the Law of Henrie the fourth Of this now in debate the way I feare is yet obscure As great advise of State is as needfull for the manner as for the Iustice The example in the cause of the Duke of Suffolke 28. H. 6. where the King gave judgement was protested against by the Lords That of the Duke of Clarence 6. E. 4. where the Lords and the High Steward the Duke of Buckingham gave judgement was protested against by the House of Commons In both of these the King was sometimes present but which of these may suit these times I dare not ghesse That of 1. R. 2. of Gomenys and Weston accused by the Commons plaint for Treason was tryed by the Lords in absence of the King but sentenced by the Lord Scroop Steward for the King The Accused were of the ranke of the Accusers Commons and not Lords How this will make a president to judge in causes Capitall a peere of Parliament I cannot tell but I should conceive a way answerable as well to Parlament as other Courts If the King and the Lords were Traytors and the common Assentors to the Iudgement to heare together the charge and evidence the Lords as doth the Iurie in other Courts to withdraw to find the verdict and then the Steward for the K. to pronounce the sentence it passeth so by way of Act a course that carryeth with it no exception and likely to avoyd all curious Questions of your Highnesse presence there If your humble Servant hath in this expression of his desire to doe you service presumed too farre his comfort is that where Zeale of Dutie hath made a fault Benignitie of Goodnesse will grant the pardon FINIS Ex Conciliis Reg. Saxon. Cantuar. Glanvill Liber Ely Leges Etheldredi regis Ingulphus Croylandensis registr. monast. Palat Regale Westmonast Regist. Eliense Annales Monaster Liber de Bello registr. Wigorniense Ioannes Ewegden Matth. Parls Hoveden Bracton Glanvill Fleta Modus tenendi Parliament Ex registr. Concili r. Cantuar. Ex Concilio Withredi R Ex Synodis legibus Alfredi Etheldredi Edgari Ex Regist Abâ—ington Gesta St. Edâ— Gaâ—iâ—è Allured Rivalens vita Edâ— Confessoris registr. Cantuar 10â—1 Registrum Sancti Edmundi Walterus Maps de Râ—gis 〈◊〉 Henr. Hunting Malmsbury Vita Tho. Cantuariensis Fitz-Stephan Gesta H. 2. Benedic Abbate Authore Reg. monast. de bello Reg. Lincolniense Lib. Burton-Monaster Rot. claus. a. 59. H. 3. Rot. Parl. 15. E. 2. Rot. Parl. 4. E. 3. Rot. parl. 5. E. 3. Rott Parl. 15. E. 3. Rot. Parl. 17. E. 3. Chronicon Henvici Knighton Rot. Parl. 3. H. 4 Rot. Parl. 2. H. 4. Rot. Parl. 4. H. 4. Rott Parl. 27. H. 6. Rot. Parl. E. 4. Regist. Croylandense Ex cartis Parlamen 12. 11. 7. Ex regist. Camerae Stellatae Ex Annalib Fleetwood Recorderi London