his Leiges Remember what was said before touching the writ of Summons in the said Kings time From this time till the last Parliament of King Charles there is no Kings reign of which we have not many though not all the Acts of Parliament still in print amongst us Nor is there any Act of Parliament in the printed Books to the enacting of the which the Bishops approbation and consent is not plainly specified either in the general Proeme set before the Acts or in the body of the Act it themself as by the books themselves doth at at large appear And to this kind of proof may be further added the form and manner of the writ by which the Prelates in all times have been called to Parliament being the very same verbatim with that which is directed to the temporal Barons save that the Spiritual Lords are commanded to attend the service in fide dilectione the temporal in fide homagio and of late times in fide ligeantia A form or copy of which summons as antient as King Johns time is still preserved upon Record directed nominatim to the Arch-bishop of Canterbury r V. Titles of hon pt 2. c. 5. and then a scriptum est similiter to the residue of the Bishops Abbats Earls and Barons Then adde the Privilege of Parliament for themselves and their servants during the time of the Sessions the liberty to kill and take one or two of the Kings Deer as they pass by any of his Forests in coming to the Parliament upon his commandement s Charta de Foresta cap. their enjoying of the same immunities which are and have been heretofore enjoyed by the Temporal Barons t Cambden in Britannia and tell me if the Bishops did not sit in Parliament by as good a title and have not sate there longer by some hundreds of years in their Predecessours as or than any of the Temporal Lords do sit or have sat there in their Progenitours and therefore certainly essential fundamental parts of the Court of Parliament 8. But against this it is objected first that some Acts have passed in Parliament to which the Prelates did not vote nor could be present in the House when the Bill was passed as in the sentencing to death or mutilation of a guilty person as doth appear both by the laws constitutions recognized at Clarendon and the following practice This hath been touched on before we told you then that this restraint was laid upon them not by the Common law of England or any Act or Ordinance of the House of Peers by which they were disabled to attend that service It was their own voluntary Act none compelled them to it but only out of a conformity to some former Canons ad sanctorum Canonum instituta x Antiqu. Brit. in Gul. Courtney as their own words are by which it was not lawfull for the Clergy men to be either Judges or Assessors in causa Sanguinis y Constitut Othobon fol. 45. And yet they took such care to preserve their Interests that they did not only give their Proxies for the representing of their persons but did put up their Protestation with a salvo jure for the preserving of their rights for the time to come jure Paritatis interessendi in dicto Parliamento z Antiqu. Britan. in Gul. Courtney quoad omnia singula ibi excercenda in omnibus semper salvo as the manner was Examples of the which are as full and frequent as their withdrawing themselves on the said occasions But then the main objection is that as some Acts have passed in Parliament absentibus Praelatis when the Bishops did absent themselves of their own accord so many things have been transacted in the Parliament excluso Clero when the Clergy have been excluded or put out of the House by some Act or Ordinance A precedent for this hath been found and published by such as envied that poor remnant of the Churches honour though possibly they will find themselves deceived in their greatest hope and that the evidence will not serve to evince the cause The Author of the Pamphlet entituled The Prerogative and practice of Parliaments first laying down his Tenet that many good Acts of Parliament may be made though the Arch-bishops and Bishops should not consent unto them a Printed at London 1628. p. 37. which is a point no man doubts of considering how easily their negative may be over-ruled by the far greater number in the House of Peers adds that at a Parliament holden at S. Edmundsbury 1196 in the reign of Ed 1. a Statute was made by the King the Barons and the Commons Excluso Clero for the proof herof refers us unto Bishop Jewell Now Bishop Jewell saith indeed that in a Parliament solemnly holden at St. Edmunsbury by King Edward 1. Anno 1296. the Arch-bishops and Bishops were quite shut forth and yet the Parliament held on and good and wholsome laws were there enacted the departing or absence of the Lords Spiritual notwithstanding b Defence of the Apolog. pt 6. c. 2. §. 1. In the Records whereof it is written thus Habito Rex cum Baronibus suis Parliamento Clero excluso statutum est c. the King keeping the Parliament with his Barons the Clergy that is to say the Arch-bishops and Bishops being shut forth it was enacted c. Wherein who doth not see if he hath any eyes that by this reason if the proof be good many good Acts of Parllament may be made though the Commons either out of absence or opposition should not consent unto them of whose consent unto that Statute whatsoever it was there is as little to be found in that Record as the concurrence of the Bishops But for Answer unto so much of this Record so often spoke of and applauded as concerns the Bishops we say that this if truly senced as I think it be not was the particular act of an angry and offended King against his Clergy not to be drawn into example as a proof or Argument against a most clear known and undoubted right The case stood thus A Constitution had been made by Boniface the 8th Ne aliqua collecta ex ecclesiasticis proventibus Regi aut cuivis alii Principi concedatur c Matth. Westm in Edw. 1. that Clergy men should not pay any tax or tallage unto Kings or Princes out of their Spiritual preferments without the leave of the Pope under pretence whereof the Clergy at this Parliament at S. Edmundsbury refused to be contributory to the Kings occasions when the Lay-Members of the House had been forwards in it The King being herewith much offended gives them a further day to confider of it adjourning the Parliament to London there to begin on the morrow after S. Hilaries day and in the mean time commanded all their Barns to be fast sealed up The day being come and the Clergy still
there be a body of Laws in use amongst them partly made up of some old Gothish Laws and Constitutions and partly of some parts of the Law imperial yet for the explanation of the Laws in force if any doubt arise about them or for supplying such defects which in the best colllection of the Laws may occur sometimes the Magistrates and Judges are to have recourse to the King alone and to conform to such instructions as he gives them in it And this is it which was ordained by Alfonso the tenth qui etiam magistratus ac judices Principem adire jussit quoties patrio jure nihil de proposita causa scriptum esset p Bodin de Rep. lib. 1. cap. 8. as Bodinus hath it 'T is true that for the raising of supplies of mony and the imposing of extraordinary taxes upon the subject the Kings of Spain must be beholden to the three Estates without whose consent it cannot legally be done But then it is as true withall that there are customary tributes called Servitia q Id. ibid. p. 90. which the King raiseth of his own authority without such consent And their consenting to the extraordinary is a thing of course the Spanish Nation being so well affected naturally to the power and greatness of their Kings whom they desire to make considerable if not formidable in the opinion of their Neighbours that the Kings seldome fail of monies if the Subjects have it Finally that we may perceive how absolute this Monarch is over all the Courts or Curias of his whole dominions take this along according as it stands verbatim Å¿ Spanish hist 67. by Tyrannell in the Spanish Historie The King of Spain as he is a potent Prince and Lord of many Countries so hath he many Counsels for the managing of their affairs distinctly and apart without any confusion every Counsel treating only of those matters which concern their Jurisdiction and charges with which Counsels and with the Presidents thereof being men of chief note the King doth usually confer touching matters belonging to the good Government preservation and increase of his Estates and having heard every mans opinion he commands that to be executed which he holds most fit and convenient .. 6. Next let us take a view of Scotland and we shall find it there no otherwise I mean in reference to the point which is now in question than in France or Spain For besides that Bodinus makes it one of those absolute Monarchies ubi Reges sine controversia omnia jura Majestatis habent per sese t Bodin de Repub. l. 2. c. 7. in which the Kings have clearly all the rights of Majesty inherent in their own persons only it is declared in the Records of that very Kingdome that the King is directus totius dominus u Camden n Britan. deicript â— the Soveraign Lord of the whole State and hath all authority and jurisdiction over all estates and degrees aswel Ecclesiastical as lay or temporal And as for those Estates and Degrees convened in Parliament we may conjecture at their power by that which is delivered of the form or order which they held it in which is briefly this x Form of holding the Parl. in Scotl. Assoon as the Kings writ is issued out for summoning the Estates to meet in Parliament he maketh choyse of eight of the Spiritual Lords such on whose wisdom and integrity he may most rely which eight do choose as many of the Temporal Lords and they together nominate eight more out of the Commissioners for the Counties and as many out of the Commissioners for the Towns or Burroughs These 32 thus chosen are called Domini pro Articulis Lords of the Articles and they together with the Chancellor Treasurer Keeper of the Privy Seal and Principal Secretaries of state and the Master of the Rolls whom they call Clerk Register do admit or reject every bill but not before they have been shewn unto the King if they pass there they are presented afterwards to the whole Assembly where being thorowly weighed and examined put unto the votes of the house such of them as are carried by the major part of the Voices for the Lords and Commons sit together in the same house there are on the last day of the Sessions exhibited to the King who by touching them with his Scepter pronounceth that he either ratifieth and approveth them or that he doth disable them and make them void But if the business be disliked by the Lords of the Articles it proceeds no further and never comes unto the consideration of the Parliament or if the King dislikes of any thing in it when they shew it to him it either is razed out or mended before it be presented to the publick view King James of blessed memory who very well understood his own power and the forms of that Parliament describes it much to the same purpose in his Speech made at Whitehall March 31. Anno 1607. About twenty daies saith he before the Parliament Proclamation is made throughout the Kingdom to deliver unto the Kings Clerk of Register all Bils to be exhibited that Session before a certain day Then are they brought unto the King and perused and considered by him and only such as he alloweth of are put into the Chancellors hands to be propounded to the Parliament and none others And if any other man in Parliament speak of any other matter than is in this sort first allowed by the King the Chancellor telleth him that the King hath allowed of no such Bill Besides when they have passed them for Laws they are presented to the King and he with his Scepter put into his hands by the Chancellor must say I ratifie and approve all things done in this present Parliament And if there be any thing that he disliketh it is razed out before So the eldest Parliament-man as he said himself at that time in Scotland This was the form of holding Parliaments in Scotland which whosoever doth consider with a serious eye may perceive most plainly that it is wholly in the Kings power to frame the Parliament to his own will or at the least to hinder it from doing any thing to the prejudice of his Royal Crown and Dignity in that the nominating of the Lords of the Articles did in a manner totally depend on him Which being observed by the Scots they took the opportunity when they were in Arms to pass an Act during the Presidency of the Lord Burley Anno 1640. y Acts of Parliaments 16 Carol. for the abolition of this Order and for reducing of that Parliament to the forms of England as being thought more advantagious to their purposes than the former was So that the violent disloyalty of the Scotish Subjects their Insurrections against their Kings and murdering them sometimes when their heels were up which makes that Nation so ill spoke of in the Stories of Christendom are not to
declared to have been fortified by sundry Laws and Ordinances made in former Parliaments k Ibid. and such as hath been since confirmed by a solemn Oath taken and to be taken by most of the Subjects of this Kingdom Which Oath consisting of two parts the one Declaratory and the other Promissory in the Declaratory part the man thus taketh it doth declare and testifie in his conscience that the Kings Highness is the only supreme Governor of this Realm and of all other his Dominions and Countries aswell in all spiritual or ecclesiastical things or causes as temporal c. l 1 Eliz. c. 1. And in the Promissooy part they make Oath and swear that to their power they will assist and defend all Jurisdictions Privileges Preheminences and Authorities granted or belonging to the Kings Highness his Heirs and Succcesseors or united and annexed to the Imperial Crown of this Realm Put all which hath been said together and it will appear that if to have merum imperium a full and absolute command and all the jura majestatis which belong to Soveraignty if to be so supreme as to hold immediatly of God to have all persons under him none but God above him if to have all authority and jurisdiction to be vested in him and proceeding from him and the material sword at his sole disposal for the correcting of offenders and the well ordering of his people if to have whole and entire power of rendring justice and final determination of all causes to all manner of Subjects us also to interpret and dispence with Laws and all this ratified and confirmed unto him by the solemn Oath of his Subjects in the Court of Parliament be enough to make an absolute Monarch the Kings of England are more absolute Monarchs than either of their Neighbours of France or Spain 8. If any thing may be said to detract from this it is the new devise so much pressed of late of placing the chief Soveraignty or some part thereof in the two Houses of Parliament concerning which Mr. Prynne published a discourse entituled The supreme power of Parliaments and Kingdoms and others in their Pamphlets upon that Argument have made the Parliament so absolute and the King so limited that of the two the Members of the Houses are the greater Monarchs But this is but a new devise not heard of in our former Monuments Records of Law nor proved or to be proved indeed by any other Medium than the Rebellions of Cade Tiler Straw Kett Mackerell and the rest of that rascall rabble m Prynnes book of Parl. c. pâ— 3. or the seditious Parliaments in the time of K. Henry the 3d. King Edward the 2d and King Richard the 2d when civil war and faction carried all before it For neither have the Houses or either of them enjoyed such Soveraignty de facto in times well setled and Parliaments lawfully assembled nor ever could pretend to the same de jure Or if they did as many have been apt enough to raise false pretences it would much trouble them to determine whether this Soveraignty be conferred upon them by the King or the people whether it be in either of the Houses severally or in both united If they can challenge this pretended Soveraignty in neither of these capacities nor by none of these Titles it may be warrantably concluded that there is no such Soveraignty as they do pretend to And first there is no part nor branch of Soveraignty conferred upon them by the King The writs of Summons which the Declaration of the Lords and Commons assembled at Oxon. 1643. doth most truly call the foundation of all power in Parliament n Declaration of the Treaty p. 15. tell us no such matter The writ directed to the Lords doth enable them only to confer and treat with one another consilium vestrum impendere and to advise the King in such weighty matters as concern the safety of the Kingdom But they are only to advise not compell the King to counsell him but not controll him and to advise and counsel are no marks of Soveraignty but rather works of service and subordination Nor can they come to give this Counsel without he invite them and being invited by his writ cannot choose but come except he excuse them which are sure notes of duty and subjection but very sory signs of power and soveraignty 'T is true that being come together they may and sometimes do on a writ of Error examin and reverse or affirm such judgements as have been given in the Kings Bench and from their sentence in the case there is no appeal but only to the whole body of that Court the King and both the Houses the Head and Members o Case of our Affairs p. 7 8. But this they do not as the upper house of Parliament but as the distinct court of the Kings Barons of Parliament of a particular and ministerial jurisdiction to some intents and purposes and to some alone which though it doth invest them with a power of judicature confers not any thing upon them which belongs to Soveraignty Then for the Commons all which the writ doth call them to is facere consentire to do and consent unto such things which are ordained by the Lords and Common Counsel of the Kingdom of England and sure conformity and consent which is all the writ requireth from them are no marks of Soveraignty nor can an Argument be drawn from thence by the subtillest Sophister to shew that they are called to be partakers of the Soveraign power or that the King intends to denude himself of any branch or leaf thereof to hide their nakednesse And being met together in a body collective they are so far from having any share in Soveraignty that they cannot properly be called a Court of Judicature as neither having any power to minister an Oath p Id. p. 9. or to imprison any body except it be some of their own Members if they see occasion which are things incident to all Courts of Justice and to every Steward of a Leet insomuch that the House of Coâ—mons is compared by some â—and not incongruosly unto the Grand Inquest at a general Sessions q Review of the Observat p. 22. whose principal work it is to receive bils and prepare businesses and make them fit and ready for my Lords the Judges Nay so far were they heretofore from the thoughts of Soveraignty that they were lyable to sutes and punishments for things done in Parliament though only to the prejudice of a private Subject untill King Henry 8. most graciously passed a Law for their indemnity For whereas Richard Strode one of the company of Tinners in the County of Cornwall being a Member of the Commons House had spoken somwhat to the prejudice of that Society and contrary to the Ordinances of the Stanneries at his return into the Country â—e was arested fined imprisoned Complaint whereof being
it should be otherwise in the present times the equity and justice of it being still the same and the same reasons for it now as forcible as they could be then Had it been otherwise resolved of in the former ages wherein the Clergy were so prevalent in all publique Counsails how easie a matter had it been for them either by joyning with the Nobility to exclude the Commons or by joyning with the Commonalty to exclude the Nobles Or having too much conscience to adventure on so great a change an alteration so incompatible and inconsistent with the Constitution of a Parliament how easily might they have suppressed the potency and impaird the Privileges of either of the other two by working on the humours or affections of the one to keep down the other But these were Arts not known in the former daies nor had been thought of in these last but by men of ruine who were resolved to change the Government as the event doth shew too clearly both of Church and State Nor doth it help the matter in the least degree to say that the exclusion of the Bishops from the House of Peers was not done meerly by the practice of the two other Estates but by the asseâ—t of the King of whom the Laws say he can do no wrong and by an Act of Parliament wherof our Laws yet say quae â—ul doit imaginer chose dishonourable c Plowden in Commentar that no man is to think dishonourably For we know well in what condition the King was when he passed that Act to what extremities he was reduced on what terms he stood how he was forced to flye from his City of London to part with his dear Wife and Children and in a word so overpowred by the prevailing party in the two Houses of Parliament that it was not safe for him as his case then was to deny them any thing And for the Act of Parliament so unduly gained besides that the Bill had been rejected when it was first brought unto the Lords and that the greater part of the Lords were frighted out of the House when contrary unto the course of Parliament it was brought again it is a point resolved both in Law and reason that the Parliament can do nothing to the destruction of it self and that such Acts as are extorted from the King are not good and valid whereof we have a fair example in the Book of Statuers d 15 Ed. 3. For whereas the King had granted certain Articles pretended to be granted in the form of a Statute expresly contrary to the Laws of the Realm and his own Prerogative and rights royal mark it for this is just the case which he had yielded to eschew the dangers which by denying of the same were like to follow in the same Parliament it was repealed in these following words It seemed good io the said Earls Barons and other wise men that since the Statute did not proceed of our free will the same be void and ought not to have the name nor strength of a Statute and therefore by their counsail and assent we have decreed the said Statute to be void c. Or if it should not be repealed in a formal manner yet is this Act however gotten void in effect already by a former Statute in which it was enacted in full Parliament and at the self same place where this Act was gained that the Great Charter by which and many other Titles the Bishops held their place in Parliament should be kept in all points and if any Statute be made to the contrary it shall be holden for none e 42 Ed. 3. c. 1. CHAP. VI. That the three Estates of every Kingdom whereof CALVIN speaks have no authority either to regulate the power or controll the Actions of the Soveraign Prince I. The Bishops and Clergy of England not the King make the third Estate and of the dangerous consequences which may follow on the contrary Tenet II. The different influence of the three Estates upon conditional Princes and an absolute Monarch III. The Sanhedrim of no authority over the persons or the actions of the Kings of Judah IV. The three Estates in France of 〈◊〉 small authority over the actions of that King V. The King of Spain not over-ruled or regulated by the three Estates VI. Of what authority they have been antiently in the Parliaments of Scotland VII The King of England alwaies accounted heretofore for an absolute Monarch VIII 〈◊〉 part of Soveraignty invested legally in the English Parliaments IX The three Estates assembled in the Parliament of England subordinate unto the King not co-ordinate with him X. The Legislative power of Parliaments is properly and legally in the King alone XI In what particulars the power of the English Parliament doth consist especially XII The Kings of England ordinarily over-rule tâ—eir Parliaments by themselves their Counsel and their Judges XIII Objections answered touching the power and practice of some former Parliaments and the testimonies given unto them XIV No such Authority given by God in Holy Scripture to any such Popular Magistrates as CALVIN dreams of and pretends XV. The Application and Conclusion of the whole Discourse I Have been purposely more copious in the former Chapter because I thought it necessaâ—y to declare and manifest who made the three Estates in each several Kingdom which are pretended by our Author to have such power of regulating the authority and censuring the actions and the persons of their Soveraign Princes And this the rather in regard it is thought of late and more than thought presented to the world in some publick writings especially as it relates to the Realm of England that the King the Lords and Commons make the three Estates which brings the King into an equal rank with the other two in reference to the businesse and affairs of Parliament A fancy by what Accident soever it was broached and published which hath no consistence either with truth or ordinary observation or with the practice of this Realm or of any other For the proof of this my position that the King is none of the three Estates as is now pretended if all proofs else should fail I have one from Calvin whose judgement in this point amongst many of us will be instar omnium For where he saith in singulis Regnis tres esse Ordines e Calvin instâ—t 4. cap. ult that there are three Estates in each several Kingdom and that these three Estates convened in Parliament or by what other name soever they call their meeting are furnished with a power Regum libidinem moderandi of moderating the licentiousness of Kings and Princes and that they become guilty of perfidious dissimulation si Regibus impotenter grassantibus c. If they connive at Kings when they play the Tyrants or wantonly insult on the Common-people I trow it cannot be conceived that the King is any one of the three Estates who are here
Halicarnass lib. 6. But a new war approaching a new promise made and that neglected also when the war was ended the people seeing no relief was like to come from the hands of the Senators Longè aliâ quam primò instituerant viâ grassabantur began to lend an ear to some desperate Counsels and fell to entertain such hopes as formerly they durst never dream of For drawing themselves into a body under the conduct of Sicinius a troublesome and seditious person they forsook the City and incamped upon an hill adjoyning resolving as they gave it out to seek new dwellings and that there was no place in Italy but would afford them air and water 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and ground in which they might be buried There is no question to be made but if the Senate had beheld the action with neglect and scorn as Appius d Dionys Halicarn l. 6. and C. Martius e Plutarch in Coriolano did advise they should the people out of love to their wives and children would have returned to their houses or if they had presented them in time with any tolerable mitigations of the former laws they might have taken off their edge and appeased the tumult But giving way unto their furie till it grew too high and shewing in their resolutions far more fear then courage the people got the better of them and thought they stood upon the higher ground as indeed they did Which pride and high conceit of theirs was the more increased by the authoritie and perswasions of one Junius Brutus who came not to them till they were too far ingaged to go off with safetie A man as the Historian noteth of a turbulent and seditious spirit more apt to kindle a rebellion then to quench the flame but otherwise 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 f Dionys Halicarnass l. 6. of very great fore-sight into business and one that had a ready tongue upon all occasions To him they gave the managing of the whole design and he improved the trust to their best advange Insomuch that when Menenius Agrippa was imployed unto them to demand their grievances and had brought the point to such an issue that there was nothing wanting to make up the breach but some securitie to be given on the part of the Senate that the people should be no more deluded with such emptie promises this Junius Brutus took upon him to propose the terms and no securitie would content him as the plot was laid but that some popular Magistrates should be forthwith made for the protection of the people Concedite nobis inquit Magistratus aliquot quotannis è nostro corpore creare c. g Id. ibid. Let us saith he have certain Magistrates to be chosen yearly out of our own body on whom we shall not ask you to confer more power then that they have authoritie to assist the Commons when they are either injured or oppressed by violence and to take order that they be not robbed of their rights and liberties Other securitie then this we will trust to none Which when the people heard for few of them were made acquainted with the plot before 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 they made many a loud and joyful shout praising the man unto the skies and absolutely resolving to admit of no other terms then what their Spokesman had proposed 2 But yet the business was not done It must first pass the approbation of the Senate and there it met with very grreat heats and opposition before it passed and passed not at the last but upon conditions The people had a faction in the very Senate and a strong one too who laboured what they could to obtain the point Of these Valerius was the chief whose Brother had not long before expulsed the Kings and from his courting of the people was surnamed Poplicola a family that had been always favourable to the popular partie and more endevoured their content then the honor or profit of the publick In which regard Appius charged him to his face 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 h Id. ibid. that the whole generation of them were so partial in behalf of the people that they had almost destroyed the Common-wealth Others and those of greater courage and Nobility scorning that such an innovation should be made in the publick Government opposed it with all might and main not sparing to assure the Senate that in the setting up of this new authoritie they would in fine put down their own And of these Appius and Caius Martius who after had the name of Coriolanus were the leading men who standing upon point of honor advised the Senate that having shaken off the tyrannie of their Kings they should not prostitute themselves to the lusts of the people i Id. ibid. that they should stand on their own ground and not do any thing unworthy of their place and dignitie that these were but the beginnings of sedition and that the purpose of the Commons was to abolish law and set up a paritie h Plutarch in M. Coriolano Appius fore-telling as inspired with the spirit of Prophesie 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 how great a Seminarie of mischiefs it would prove to the Common-wealth and calling all the Gods to witness that he had done his best to prevent the same But when they found it like to pass and that the major part of the house did incline that way it was advised that they should hold the people to the terms by themselves proposed and give their Officers no more power but to relieve the people from unjust oppression and that they should only interpose if any thing were passed in Senate to the peoples prejudice but propose nothing of themselves nor appear in any thing untill the Senate had before considered of it that the election should be made in centuriatis Comitiis only where the Patricii and their followers bare the greatest stroke and finally that in their applications and addresses to the Lords of the Senate in any business whatsoever they should all agree upon the point so that if any one dissented the agreement and consent of all the rest should pass for nothing For seeing that Tribunes must be granted they hoped that by their disagreement the honor of the State might be kept upright and that the Common-wealth was not quite past help 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l Dionys Halicarn l. 10. as long as any discord or dissension might be sown amongst them Which last condition for all the rest were broken assoon as they were agreed on was most religiously observed till the very last as we read in Plutarch who gives it for a rule amongst them that if one Tribune did oppose 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 r m Plutareh in Caio Tiber. the agreement and command of all the rest did effect just nothing Things being brought unto this temper and all points agreed on the people went to the election and chose five new Officers according
trusted or at least supposed to be intrusted with sufficient power as well to regulate his authority as to controll his actions If Calvin be allowed to have common sense and to have wit and words enough to expresse his meaning as even his greatest Adversaries do confesse he had it must be granted that he did not take the King of what Realm soever to be any of the three Estates or if he did he would have thought of other means to restrain his insolencies than by leaving him in his own hands to his own correction Either then Calvin is mistaken in the three Estates if he be mistaken in designing the men he aims at may he not be mistaken in the power he gives them or else the King is noâ—e indeed can be none of the three Estates qui primarios conventus peragunt who usually convene in Parliament for those ends and purposes before remembred But not to trust to him alone though questionlesse he be ideoneus testis in the present case Let us behold the Assembly of the three Estates or Conventus Ordinum in France from whence it is conceived that all Assemblies of this kind had their first Original and we shall find a very full description of them in the Assemblie des Estats at Bloys under Henry 3. Anno 1577. of which thus Thuanus f Thuanus in histor sui temp l. 63. Rex insublimi loco sub uranisco sedebat c. The King saith he sate on an high erected Throne under the Canopy of State the Queen-mother and the Queen his wife and all the Cardinals Princes Peers upon either hand And then it followeth Transtris infra dispositis ad dextram suam sacri Ordinis Delegati ad laevam Nobilitas infra plebetus ordo sedebat that on some lower forms there sate the Delegates of the Clergy towards the right hand of the King the Nobility towards the left and the Commissioners for the Commons in the space below We may conjecture at the rest by the view of this Of those in Spain by those Conventions of the States which before we spoke of at Burgos Monson Toledo and in other places in which the King is alwaies mentioned as a different person who called them and dissolved them as he saw occasion For Scotland it is ordinary in the stile of Parliaments to say the King and the Estates do ordain and constitute g Statutes of Scotland for which I do refer you to the Book of Statutes which clearly makes the K. to be a different person from the Estates of that Kingdome And as for England besides what may be gathered from the former Chapter we read in the History of Titus Livius touching the Reign and Acts of K. Henry the 5th that when his Funerals were ended the three Estates of the Realm of England did assemble together and declared his Son K. Henry the 6. being an Infant of 8 months old to be their Soveraign Lord h Tit. Liv. M. S. in Bibl. Bodl. as his Heir and Successor And in the Parliament Rolls of K. Richard the 3d. there is mention of a Bill or Parchment presented to that Prince being then Duke of Glocester on the behalf and in the name of the three Estates of this Realm of England that is to wit of the Lords Spiritual and Temporal and of the Commons by name which forasmuch as neither the said three Estates nor the persons which delivered it on their behalf were then assembled in form of Parliament was afterwards in the first Parliament of that King by the same three Estates assembled in this present Parliament I speak the very words of the Act it self and by authority of the same enrolled recorded and approved i Ap Speed in K. Rich. 3â— And at the request and by the assent of the three Estates of this Realm that is to say the Lords Spiritual and Temporal and Commons of this Land assembled in this present Parliament and by authority of the same it be pronounced decreed and declared that our said Soveraign Lord the King was and is the very and undoubted heir of this Realm of England c. And so it is acknowledged in a k 1 Eliz. cap. 3. Statute of 1 Eliz. ca. 3. where the Lords Spiritual and Temporal and the Commons in that Parliament assembled being said expresly and in terminis to represent the three Estates of the Realm of England did recognize the Queens Majesty to be their true lawfull and undoubted Soveraign Liege Lady and Queen This makes it evident that the King was not accounted in the times before for one of the three Estates of Parliament nor can be so accounted in the present times For considering that the Lords and Commons do most confessedly make two of the three Estates and that the Clergy in an other Act of Parliament of the said Queens time are confessed to be one of the greatest States of the Realm l Statut. 8 Eliz. cap. 1. which Statute being still in force doth clearly make the Clergy to be the third either there must be more than three Estates in this Kingdome which is against the Doctrine of the present times or else the King is none of the Estates as indeed he is not which was the matter to be proved But I spend too much time in confuting that which hath so little ground to stand on more than the dangerous consequences which are covered under it For if the King be granted once to be no more than one of the three Estates how can it choose but follow from so sad a Principle that he is of no more power and consideration in the time of Parliament than the House of Peers which sometimes hath consisted of three Lords no more or than the House of Commons only which hath many times consisted of no more than 80 or an hundred Gentlemen but of far lesse consideration to all intents and purposes in the Law whatever than both the Houses joyned together What else can follow hereupon but that the King must be co-ordinate with his two Houses of Parliament and if co-ordinate then to be over-ruled by their Joynt concurrence bound to conform unto their Acts and confirm their Ordinances or upon case of inconformity and non-complyance to see them put in execution against his liking and consents to his foul reproach And what at last will be the issue of this dangerous consequence but that the Lords content themselves to come down to the Commons and the King be no otherwise esteemed of than the chief of the Lords the Princeps Senatus if you will or the Duke of Venice at the best no more which if Sir Edward Dering may be credited as I think he may in this particular seems to have been the main design of some of the most popular and powerfull Members then sitting with him for which I do refer the Reader to his book of Speeches Which dangerous consequents whether they were observed at
l. 1. c. 8 because he could not have an Equal but with the losse of his Authority and Regal Dignity considering that one Equal hath no power to command an other Now lest the Fuller should object as perhaps he may that this is spoken of the King out of times of Parliament and of the Members of the Houses seorsim taken severally as particular persons but when they are convened in Parliament then they are Soveraigns and no Subjects first he must know that by the Statute of Queen Elizabeth all of the House of Commons are to take the oath before remembred for the defending of all preheminences and authorities united and annexed to the Imperial Crown of this Realm and for bearing faith and true allegiance to the King his Heirs and lawfull Successours and that if any of them do refuse this Oath he is to have no voice in Parliament m Stat. 5 Eâ—iz 1. 2. He cannot choose but know that even sedente Parliamento both the Lords and Commons use to address themselves to his sacred Majesty in the way of supplication and petition and certainly it is not the course for men of equal rank to send Petitions unto one another and that in those Petitions they do stile themselves his Majesties most humble and obedient Subjects Which is not only used as the common Complement which the hypocrisie of these times hath taken up though possibly it might be no otherwise meant in some late addresses but is the very phrase in some Acts of Parliament n â—25 Hen. 8. c. 22. c. as in the Acts at large doth at full appear 3. They may be pleased to know how happy a thing it was for the Realm of England that this Fuller did not live in former times For had he broached this Doctrine some Ages since he would have made an end of Parliaments Princes are very jealous of the smallest points of Soveraignty and love to reign alone without any Rivals their Souls being equally made up of Pompeys and Caesars and can as little broke an Equul as endure a Superiour And lastly I must let him know what Bodinus saith who telleth us this Legum ac edictorum probatio aut publicatio quae in Curia vel Senatu fieri solet non arguit imperii majestatem in Senatu vel Curia inesse o Bodin de Rep. l. 1. c. 8. viz. That the publishing and approbation of Laws and Edicts which is made ordinarily in the Court or Parliament proves not the Majesty of the State to be in the said Court or Parliament And therefore if the power of confirmation or rejecting be of a greater trust and more high concernment than that of consulting and consenting as no doubt it is the power of consulting and consenting which the Fuller doth ascribe to the two Houses of Parliament will give them but a sory Title to Co-ordinative soveraignty 10. This leads me on unto the power of making Laws which as before I said is properly and legally in the King alone tanquam in proprio Subjecto as in the true and adequate subject of that power And for the proof thereof I shall thus proceed When the Norman Conqueror first came in as he wonne the Kingdom by the sword so did he govern it by his power His Sword was then the Scepter and his will the Law There was no need on his part of an Act of Parliament much less of calling all the Estates together to know of them after what form and by what Laws they would be governed It might as well be said of him as in the flourish and best times of the Roman Emperors p Justin Institut l. 1. c. Quod Principi placuerit legis habet vigorem that whatsoever the King willed it did pass for Law This King and some of his Successours being then 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and having a despotical power on the lives and fortunes of their Subjects which they disposed of for the benefit of their friends and followers Normans French and Flemangs as to them seemed best But as the Subjects found the yoke to be too heavy and insupportable so they addressed themselves in their Petitions to the Kings their Soveraigns to have that yoke made easier and the burden lighter especially in such particulars of which they were most sensible at the present time By this means they obtained first to have the Laws of Edward the Confessor contain'd for the most part in the great Charter afterwards and by this means that is to say by powring out their prayers and desires unto them did they obtain most of the Laws and Statutes which are now remaining of the time of King Henry the 3d. and King Edward the first Many of which as they were issued at the first either in form of Charters under the Great Seal or else as Proclamations of Grace and favour so do they carry still this mark of their first procuring the King willeth the King commandeth the King ordaineth the King provideth the King grants c. And when the Kings were pleased to call their Estates together it was not out of an opinion that they could not give away their power or dispence their favours or abate any thing of the severity of their former government without the approbation and consent of their people but out of just fear lest any one of the three Estates I mean the Clergy the Nobility and the Commons should insist on any thing which might be prejudicial to the other two The Commons being alwaies on the craving part and suffering as much perhaps from their immediate Lords as from their King might possibly have asked some things which were as much derogatory to the Lords under whom they held as of their Soveraign Liege the King the chief Lord of all In this respect the Counsel and consent as well of the Prelates as the Temporal Lords was accounted necessary in passing of all Acts of Grace and Favour to the people because that having many Royalties and large immunities of their own a more near relation to the person and a greater interesse in the honour of their Lord the King nothing should passe unto the prejudice and diminution of their own Estates or the disabling of the King to support his Soveraignty And this for long time was the Stile of the following Parliaments viz. q Preface an 1 Ed. 3. To the honour of God and of holy Church and to the redresse of the oppressions of the people our Soveraign Lord the King c. at the request of the Commonalty of his Realm by their Petition made before him and his Counsel in the Parliament by the Assent of the Prelates Earls Barons and other great men assembled in the said Parliament hath granted for him and his Heirs c. To this effect but with some little and but a very little variation of the words was the usual Stile in all the Prefaces or Preambles of the Acts of Parliament from the