many The Clergy and Ministry of England were never represented by the Knights of the Counties before our times neither could the Parliament without the personal presence of some of themselves impose Subsidies much less Ecclesiastical Canons upon them They are as free English men as any other and by the Laws of the Land have their privileges and immunities distinct from those of other mens which are now taken from them and it 's an hard case that they may have none of their own faculty and capacity as their proper Representatives to maintain them and speak reason for them They are willing enough to part with any thing formerly they had if not agreeable to Scripture 2. To prove this mixture the King's Coronation Oath might be alledged for he swears to corroborate the just Laws and Customs quas vulgus elegerit where two words require some explication 1. Vulgus 2. Corroborare That we may know what they mean. Vulgus some think doth signifie the Commons and then the Lords as of a distinct House can have no share in the Legislation except as some tell us they were represented by the Knights of the Counties whom with the rest of the Free-Holders they did anciently elect and contribute to their Charges whilst they sat in Parliament Vulgus in Latin is the same that Folk in Saxon and now remains in English from whence Folk-mote the City or Shire-meeting as the Parliament is the great meeting of all the Counties in England In this place it must be the Representative of the whole Community of England in one body all the members of the Wittena Gemote as united and distinct from the King. The word Corroborare doth not signifie to give the essence to the Law as though it were not a Law before or not a Custom but it signifies to guard keep defend observe the just Laws and Customs in the administration and to see them executed according to judgment It may be the same with 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Greek which doth not give the being to a Will and Testament for it must be a Will before it be confirmed and so made effectual Confirmation is extrinsecal and accidental not essential to the Will or Testament The reason why the Kings did swear to corroborate the just Laws and Customs made approved chosen by the people was because that upon the dissolution of the Parliament the sword remained in his hands for to see the Laws executed which were ineffectual would lie dead be in vain without execution These words explained the matter to be observed is that if by Laws and Customs we understand the rules of administration not only as including a binding force but also as to be made effectual then it follows by the tenour of that Oath that the Legislative power which is the foundation and rule of all acts of administration was in King Peers and Commons jointly this is a mixture and a free State. 3. This mixture will farther appear from the manner of enacting for that was the manner in our days Be it therefore enacted by the King 's most excellent Majesty by and with the assent and consent of the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled and by authority of the same Neither is this new for the substance of it is ancient as Sir Edward Coke doth manifest in the cause of the Prince as Duke of Cornwall The Collection of the Statutes will manifest it for four hundred years For what if other terms were used yet they were in sense the same Neither did this begin in the Reign of Richard the Second or Henry the Third King Edward the Confessor's Modus tenendi Parliamentum will confirm the same to which my Lord Chief Justice Coke tells us the Conqueror bound himself Though Sir Roger Owen thinks this book but a Pamphlet yet my Lord Coke as good a Lawyer and Sir Henry Spelman as good an Antiquary as he were of another mind and thought better of it Nay it 's not only thus in making Laws but also in judgments which pass into an act And this kind of Judgment is the highest from which there lies no appeal This is the nature of the Constitution so far as my poor understanding is able to judge section 18 It remains I add something of our present condition since the times of our sad divisions After a long continued peace the light of the glorious Gospel many blessings and great deliverances from Heaven such was our unthankfulness so great the corruptions of Church and State that when God expected better fruits our sins were ripe for vengeance so that some fearful judgment if not the ruine of the three Nations did seem to approach or rather to be fatal and unavoidable And some of our Teachers and Watchmen seriously considering the eternal rules of providence and divine proceedings with the World in former times and knowing our present distempers did foresee this and gave us warning from those words of our Saviour Except ye repent ye shall all likewise perish Luke 13.3 Yet no warning given either by our watchmen from the Scriptures or the judgments of God upon Germany and the neighbour Nations round about us whom from our own shores we might behold wallowing in their own blood would be taken And even then when there was no danger from any enemy without and we were secure as enjoying the sweetest and most happy peace that could be expected on earth God looked down from Heaven with indignation and as though he had sworn to be avenged on such a Nation and so ungrateful a people he sent a spirit of giddiness amongst us and set the Egyptians against the Egyptians and made us Executioners of his own Judgment upon our selves for from our selves our miseries did arise For after a first and second pacification between England and Scotland the long continued Parliament began to reform both Church and State but found the corruptions so generally diffused and deeply rooted in the whole body that there was a greater fear of ruin than hope of Reformation and this some of our wise Statists had formerly observed was likely to be the issue They acted vigorously at the first but as some wise men thought too hastily and too high and seemed somewhat to encline to an extreme In the mean time no man suspecting no man fearing it brake out that bloody barbarous massacre in Ireland wherein two hundred thousand English Protestants are said to be murthered in one month In this the actors were Irish Papists and the sufferers English Protestants This could not quench the fire of dissention in England which began to manifest it self in the Parliaments Militia opposed to the King's Array which proceeded to a bloody battel at or near Keinton which continued till the King's party was wholly subdued in England himself put to death his posterity dispossessed of the Crown Ireland reduced with the ruin of almost all the chief and ancient Families
State whereof he was sufficiently ignorant we English Men cannot well brook So Bodin being informed by Dellus who I think was Sir Thomas Dale a prudent and experienced Statesman and far better acquainted with the Government of his own Country than he was that the Kings of England could not make or repeal a Law without but only by the Parliament he wondred and notwithstanding his Information he presumptuously determines the Kings of England to be absolute Monarchs So much he doated upon his imperfect notion of Majesty and absolute Power Mr. Cambden though a learned Antiquary yet not in the common Law speaks doubtfully in this point and doth not well though perhaps prudently express himself His words are Quod Rex habet supremam potestatem merum imperium apud nos Yet afterwards speaking of our Courts he gives to the Parliament the supreme and sacred power in making conferring repealing and interpreting the Laws and in all other things which concern the good of the State. If he meant that the King had it jointly with the two Houses it 's tolerable yet if so 1. His former expression was not good 2. Neither is that latter assertion of his when he saith the Parliament is summon'd ad arbitrium Regis when the King pleaseth section 14 But let 's go to the Parliament where we shall find the King again and when we come there we must consider 1. What it is 2. What power it hath 3. What power it hath not 1. To give a perfect definition of it is above my skill neither is it within the sphear of my profession ancient Parliament-men and especially learned Antiquaries in the common Law know it best Mr. Cambden gives a tolerable description of it It 's a Representative of all England invested with the highest power of Legislation and all other acts that concern the common good This is the substance of the matter though not given in his express terms And here I will not say any thing of their Election Incorporation manner of proceeding after it 's once constituted and begins as a formal Parliament to act Some have conceived it to be one of the most orderly Assemblies in the World which is an argument of the great wisdom of our Ancestors who first molded it and brought it to perfection yet it may be corrupted and ill constituted and then Corruptio optimi est pessima The Election in our times is not well ordered for if it were the very quintessence of the wisdom and virtues of all England might be extracted united and act in that Convention But men are ready through want of understanding to undo themselves by choosing insufficient and unworthy persons The first constitution certainly required a qualification in the persons to be Elected For we trust them much even with our Estates Liberty Lives and Religion for the outward profession It 's not fit to trust these in the hands of any sort of Men but such as shall be wise faithful just and sincerely affecting the publick good The Saxon name Wittena Gemote implies this for it signifies the meeting of wise men and is the abridgement of all the Folk-motes in England and of the wisdom of all England and now of all England Wales Scotland Ireland If they should be wise men wisdom includes all virtues If we consider this great body as distinct from the King it 's said to consist of two Houses which some call the upper and the lower This the Commons did not like did not acknowledge The two Houses or the House of Commons and the House of Peers may be tolerable and I do not know they ever excepted against the expressions Many ungrateful and unworthy persons to their own wrong and prejudice have much depressed the House of Commons and are not ashamed to say such is their ignorance that it is but of late standing Yet it 's the chief part and almost the whole Representative the Peers to them are but inconsiderable Whatsoever is concluded there doth most concern them and the heaviest burden lies on them And though by Commons some may understand only the Plebeian Rank yet there we find in that House men of as good Birth Estates and as eminent vertues as many of the Lords be What the House of Commons is may be more easily known but the nature of the House of Lords is somewhat hidden For in it we find Lords Spiritual as Abbots Bishops and these by Tenure we find in it also Lords Temporal as Dukes Marquesses Earls Viscounts Barons And all these under the name of Lords Peers Barons though Bárones Proceres Nobiles do sometimes signifie other persons For we read of the Barons of the Cinque-ports Barons of the Exchequer the eight Barons of Cheshire and the Barons of Burford in Shropshire We find Peers sometimes taken in another sence and to include the Commons And the truth is if the whole assembly be considered as one Representative they are all Peers and in all acts should be taken so to be These Peers become such three ways as I observed in my answer to Mr. Hobb's For they are aut Foedales aut rescriptitii aut diplomatici Barons by Tenure and ancient prescription since the time of William the Elder or by Writ or by Patent It is not for me to debate much less to determine the Controversies about these Lords as 1. Whether they be essential parts in a distinct House from the Commons of the Parliament or no seeing Acts and Ordinances and the same valid are said to be made without these Lords not any by the Lords without the Commons 2. What these Lords may do or for what end they are called For some say they sit there as Judges of the King together with the Commons For though the King in his Politick capacity cannot do wrong yet in his Personal he may This Horne and Bracton with other of the old Lawyers will tell us in whom we may read of the Torts and wrongs done by the King and of judging him as also the Queen and the Prince 3. Seeing by the Writ of Summons they are called to deliberate and consult Consilium impensuri not ad faciendum consentiendum as the Commons are whether they be there only as the King's Counsellors 4. Suppose them to be the King's Counsellors whether they be such without or with the Commons 5. Whether they have any share in the Legislative power or if they have whether in the same House or in a distinct House and Body with a negative to the Commons or not 6. When this transmitting of Bills to the House of Lords began which some say to be after the Barons Wars For it was not so from the beginning 7. Whether the Lords and not the Commons have power to administer an Oath We read in Sir H. Spelman's Glossary in the word Baro that no Barons were called to the Parliament but such as held of the King in Capite 2. That all
these were not called but the chief of them as Earls who possessed twenty Knights Fees and Barons which had to the value of thirteen Knights Fees and a third part of one 3. That because these were too many some of them were call'd to Parliament some omitted and only such as were called were counted Barons the rest not 4. This being taken ill the Barons caused King John adigere to covenant under the Broad Seal to summon severally by so many Writs the Arch-Bishops Abbots Earls and the greater Barons of the Kingdom 5. Yet Henry the Third so little regarded that compact that he called and kept a Parliament with an hundred and twenty Spiritual and only twenty five Temporal Lords though he had numbred two hundred and fifty Baronies in England 6. Edward the First omitted divers of those whom Henry the Third had summoned So that it will be a very difficult thing to rectifie or reduce unto the first institution this House as distinct from that of the Commons For it should be known 1. What kind of persons must constitute this other House 2. What their Priviledges be 3. What they must do which the House of Commons may not must not do section 15 By all this something of the nature of the Parliament may be known But then what is the power of this assembly either severally considered without the King or jointly with the King And that they may make Orders and Ordinances pro tempore will be granted and also which is far more if the King have no Negative voice the Legislative and Judicial power is in them and their ultimate Resolves and Dictates in all matters of Counsel must stand And if so then reason will conclude that if the King refuse to be personally or virtually present and to act with them they may do any thing for the good of the Kingdom without him which they may do jointly with him Yet because Laws and Judgment are ineffectual without execution therefore the King being trusted with the execution was required to give his consent that he might take care of the Execution For to that end was he trusted with the Sword of Justice and War that he might protect the people and see that Laws and Judgments be executed If we consider the Parliament as consisting of King Peers and Commons jointly it is the first subject of Personal Majesty and to it and it alone belongs all the Jura Majestatis personalis They have the power Legislative Judicial Executive to exercise it in the highest degree and may perform all acts of administration as distinct from the Constitution They are the highest assembly for Legislation the highest Counsel for advice the highest Court for Judicature section 16 This is the power of the Parliament which can do many and great things yet some things they cannot do for they are limitted not only by the Laws of God but also by the Laws of the Constitution Sir Roger Owen tells That the Parliament cannot do all things For 1. Many Acts are Voted for errors in matter of fact and for contrariety in words and sometimes they have idle and flattering proviso's 2. A Parliament hath not power to ordain that a Law shall not be abrogated for the space of twenty years for a latter Parliament may repeal their Acts. 3. That a Parliament cannot Enact that if there were no Heir to the Crown that the people should not be able to chuse a new King. 4. It cannot change the form of our Policy from a Monarchy to a Democraty 5. It cannot take away divers Prerogatives annexed to the Crown of England or that the King should not be able to dissolve the Parliament at will and pleasure yet in another place he tells us that he cannot dissolve the Parliament at will and pleasure and again he is not above the Parliament because he cannot be above himself and in Parliament he is Maxime Rex He further informs us that the common Law is the King's Inheritance and how the Parliament may wither away the Flowers of the Crown The true reason why the Parliament cannot do some of these things nor others not mentioned by him is because they have not real but personal Majesty They cannot alter the Government nor take away divers things belonging to the Crown because they did not give the Prerogatives of the Crown at the first the Commons of the Realm gave them as he confesseth The form of Government was first constituted by the Community of England not by the Parliament For the Community and people of England gave both King and Parliament their being and if they meddle with the Constitution to alter it they destroy themselves because they destroy that whereby they subsist The Community indeed may give a Parliament this power to take away the former Constitution and to frame and model another but then they cannot do this as a Parliament but as trusted by the people for such a business and work nay they may appoint another assembly of fewer or more to do such a work without them They may set up a Consilium sapientum which may determine what matters are fit to be proposed to the Parliament and in what order and also contrive a Juncto for all businesses which require expedition and secrecy which may act without them whether the Parliament it self can do such things or no may justly be doubted What may be done in extraordinary cases is one thing what may be done in an ordinary way another When he saith that the Parliament cannot change the form of Policy from a Monarchy he presupposeth our State of England to be a Monarchy yet if he distinguish not between the Constitution and the administration he may be guilty of an error For it 's not a Monarchy but only in respect of the Executive part in the Intervals of Parliaments Our Ancestors abhorred absolute and arbitrary Monarchs therefore before they did establish a King they made a bridle to keep him in and put it upon him This is plain from Bracton Fortescue the Coronation Oath and the Mirror section 17 From all this we may conjecture what the Constitution of England was It was no absolute Monarchy that 's plain enough Neither was it a State of pure disposition but mixt Neither were the Jura Majestatis divided some to the King some to the Lords some to the Commons it was of a far better mould The personal Majesty primary was in King Peers and Commons jointly in the whole assembly as one body this may appear several ways as 1. From this that it was a Representative of the whole Nation and as it was a general Representative of all England and no ways else was it invested with this personal Sovereignty It must represent the whole Community all the Members thereof of what rank or condition soever not only the Laity but the Clergy too these are words used in our Laws and good enough though disliked by