part of Henry the Third's Reign in whose dayes it is thought the Writ for Election of Knights was framed which is about two hundred years and above a third part of the time since the Conquest to our dayes the Barons made the Parliament or Common Councel of the Kingdom under the name of Barons not only the Earls but the Bishops also were Comprehended for the Conquerour made the Bishops Barons Therefore it is no such great Wonder that in the Writ we find the Lords only to be the Counsellours and the Commons Called only to perform and consent to the Ordinances Those there be who seem to believe that under the word Barons anciently the Lords of Court-Baâ—…ons were Comprehended and that they were Called to Parliament as Barons But if this could be proved to have been at any time true yet those Lords of Court-Barons were not the representative Body of the Commons of England except it can be also proved that the Commons or Free-holders of the Kingdome chose such Lords of Court-Barons to â—…e present in Parliament The Lords of Manors â—…ame not at first by Election of the People as Sir Edw. Coke treating of the institution of Court-Baâ—…ons resolves us in these words By the Laws and Ordinances of ancient Kings and especially of King Alâ—…red it appeareth that the first Kings of this Realm â—…ad all the Lands of England in Demean and les grand Manors and Royalties they reserved to themselves and of the remnant they for the Defence of the Realâ—… enfeoffed the Barons of the Realm with such Iurisdiction as the Court-Baron now hath Coke's Instituteâ—… First part Fol. 58. Here by the way I cannot but note that if thâ—… first Kings had all the Lands of England in Demean 〈◊〉 Sir Edward Coke saith they had And if the firâ—… Kings were chosen by the People as many thinâ—… they were then surely our Forefathers were a verâ—… bountiful if not a prodigal People to give all thâ—… Lands of the whole Kingdom to their Kings witâ—… Liberty for them to keep what they pleased and tâ—… give the Remainder to their Subjects clogg'd anâ—… cumbred with a Condition to defend the Realmâ—… This is but an ill sign of a limited Monarchy by original Constitution or Contract But to conclude thâ—… former Point Sir Edward Coke's Opinion is thâ—… in the ancient Laws under the name of Barons were comprised all the Nobility This Doctrine of the Barons being the Commâ—… Councel doth displease many and is denied aâ—…tending to the Disparagement of the Commons anâ—… to the Discredit and Confutation of their Opinioâ—… who teach that the Commons are assigned Councelloâ—… to the King by the People therefore I will call in Mâ—… Pryn to help us with his Testimony He in his Booâ—… of Treachery and Disloyalty c. proves that before thâ—… Conquest by the Laws of Edward the Confessoâ—… cap. 17. The King by his Oaths was to do Iustice 〈◊〉 the Councel of the Nobles of his Realm He also resolves that the Earls and Barons in Parliament aâ—… above the King and ought to bridle him when he exorâ—…tates from the Laws He further tells us the Peers anâ—… Prelates have oft translated the Crown from the right Heâ—… 1. Electing and Crowning Edward who was illegitimate and putting by Ethelred the right Heir after Edgars decease 2. Electing and Crowning Canutus a meer Foreigner in opposition to Edmund the right Heir to King Ethelred 3. Harold and Hardiknute both elected Kings successively without title Edmund and Alfred the right Heirs being dispossessed 4. The English Nobility upon the Death of Harold enacted that none of the Danish bloud should any more reign over them 5. Edgar Etheling who had best Title was rejected and Harold elected and crowned King 6. In the second and third year of Edw. 2. the Peers and Nobles of the Land seeing themselves contemned entreated the King to manage the Affairs of the Kingdome by the Councel of his Barons He gave his Assent and sware to ratifie what the Nobles ordained and one of their Articles was that he would thenceforward order all the Affairs of the Kingdom by the Councel of his Clergy and Lords 7. William Rufus finding the greatest part of the Nobles against him sware to Lanfranke that if they would choose him for King he would abrogate their over-hard Laws 8. The Beginning saith Mr. Pryn of the Charter of Hen. 1. is observable Henry by the Grace of God of England c. Know ye That by the Mercy of God and Common Councel of the Barons of the Kingdom I am Crowned King 9. Maud the Empress the right Heir was put by the Crown by the Prelates and Barons and Stephen Earl of Mortain who had no good Title assembling the Bishops and Peers promising the amendment of the Lawâ—… according to all their Pleasures and Liking was by thâ—… all proclaimed King 10. Lewis of France Crowned King by the Barons in stead of King John All these Testimonies from Mr. Pryn may satisfie that anciently the Barons were the Common Councel or Parliament of England And if Mr. Pryn could have found so much Antiquity and Proof for thâ—… Knights Citizens and Burgesses being of the Common Councel I make no doubt but we should have heard from him in Capital Characters but alas he meets not with so much as these Names in those elder Ages He dares not say the Barons were assigned by the People Councellors to the King for he tells us every Baron in Parliament doth represent hiâ—… own Person and speaketh in behalf of himself alone but in the Knights Citizens and Burgesses are represented the Commons of the whole Realm therefore every one of the Commons hath a greater voice in Parliament than the greatest Earl in England Nevertheless Masteâ—… Pryn will be very well content if we will admiâ—… and swallow these Parliaments of Barons for the representative Body of the Kingdom and to that Purpose he cites them or to no Purpose at all But to prove the Treachery and Disloyalty of Popish Parliaments Prelates and Peers to their Kings which iâ—… the main Point that Master Pryn by the Title of hiâ—… Book is to make good and to prove As to the second Point which is That untill the time of Hen. 1. the Commons were not called to Parliament besides the general Silence of Antiquity which never makes mention of the Commons Coming to Parliament untill that time our Histories say before his time only certain of the Nobility were called to Consultation about the most important affairs of the State He caused the Commons also to be assembled by Knights Citizens and Burgesses of their own Appointment much to the same Purpose writes Sir Walter Raleigh saying it is held that the Kings of England had no formal Parliaments till about the 18th year of King Hen. 1. For in his Third year for the Marriage of his Daughter the King raised a Tax upon every Hide of Land by the Advice of His Privy Councel alone And
first before the Councel of Edw. 4. after that before the President of the Requests of that King Hen. 7. and then lastly before the Councel of the said King 1 Hen. 7. In the time of Hen. 3. an Order or Provision was made by the Kings Councel and it was pleaded at the Common Law in Bar to a Writ of Dower the Plaintifs Atturney could not deny it and thereupon the Judgment was ideo sine die It seems in those days an Order of the Kings Councel was either parcell of the Common Law or above it Also we may find the Judges have had Regard that before they would resolve or give Judgment in new Cases they consulted with the Kings Privy Councel In the case of Adam Brabson who was assaulted by R. W. in the Presence of the Justices of Assise at Westminster the Judges would have the Advice of the Kings Councel for in a like Case because R. C. did strike a Juror at Westminster which passed against one of his Friends It was adjudged by all the Councel that his right hand should be cut off and his Lands and Goods forfeited to the King Green and Thorp were sent by the Judges to the Kings Councel to demand of them whether by the Stat. of 14 Edw. 3. 16. a word may be amended in a Writ and it was answered that a word may be well amended although the Stat. speaks but of a Letter or Syllable In the Case of Sir Thomas Ogthred who brought a Formedon against a poor man and his Wife they came and yielded to the Demandant which seemed suspitious to the Court whereupon Judgment was staid and Thorp said that in the like case of Giles Blacket it was spoken of in Parliament and we were commanded that when any like should come we should not go to Judgment without good Advice therefore the Judges Conclusion was Sues an counseil comment ils voilent que nous devomus faire nous volums faire autrement nient en oest case sue to the Councel and as they will have us to do we will do and otherwise not in this Case 39 Edw. 3. Thus we see the Judges themselves were guided by the Kings Councel and yet the Opinions of Judges have guided the Lords in Parliament in Point of Law All the Judges of the Realm Barons of Exchequer of the Quoif the Kings learned Councel and the Civilians Masters of Chancery are called Temporal Assistants by Sir Edw. Coke and though he deny them Voices in Parliament yet lie confesseth that by their Writ they have Power both to treat and to give Councel I cannot find that the Lords have any other Power by their Writ the Words of the Lords Writ are That you be present with Us the Prelates Great men and Peers to treat and give your Counsel The words of the Judges Writ are that you be present with Us and others of the Counsel and sometimes with Us only to treat and give your Counsel The Judges usually joyned in Committees with the Lords in all Parliaments even in Queen Eliz. Reign untill her 39th Year and then upon the 7th of November the Judges were appointed to attend the Lords And whereas the Judges have Liberty in the upper House it self upon Leave given them by the L. Keeper to cover themselves now at Committees they sit always uncovered The Power of Judges in Parliament is best understood if we consider how the judicial Power of Peers hath been exercised in matter of Judicature we may find it hath been the Practice that though the Lords in the Kings Absence give Judgment in Point of Law yet they are to be directed and regulated by the Kings Judges who are best able to give Direction in the difficult Points of the Law which ordinarily are unknown to the Lords And therefore if any Errour be committed in the Kings Bench which is the highest ordinary Court of Common Law in the Kingdom that Errour must be redressed in Parliament And the Manner is saith the Lord Chancellor Egerton If a Writ of Errour be sued in Parl. upon a Iudgment given by the Iudges in the Kings Bench the Lords of the higher House alone without the Commons are to examine the Errours The Lords are to proceed according to the Law and for their Iudgments therein they are to be informed by the Advice and Councel of the Iudges who are to inform them what the Law is and to direct them in their Iudgment for the Lords are not to follow their own Discretion or Opinion otherwise 28 Hen. 6. the Commons made Sute that W. de la Pool D. of Suffolk should be committed to Prison for many Treasons and other Crimes the Lords of the higher House were doubtful what Answer to give the Opinion of the Iudges was demanded their Opinion was that he ought not to be committed for that the Commons did not charge him with any particular Offence but with general Reports and Slanders this Opinion was allowed 31. Hen. 6. A Parliament being prorogued in the Vacation the Speaker of the House of Commons was condemned in a thousand Pounds Damages in an Action of Trespass and committed to Prison in Execution for the same when the Parliament was re-assembled the Commons made sute to the King and Lords to have their Speaker delivered The Lords demanded the Opinion of the Judges whether he might be delivered out of Prison by Privilege of Parliament upon the Judges Answer it was concluded that the Speaker should remain iâ—… Prison according to the Law notwithstanding the Privilege of Parliament and that he was Speaker which Resolution was declared to the Commons by Moyâ—… the Kings Serjeant at Law and the Commons were commanded in the Kings name by the Bishop 〈◊〉 Lincoln in the absence of the Arch-bishop of Canterbury then Chancellor to chuse another Speaker 7 Hen. 8. A Question was moved in Parliament Whether Spiritual Persons might be convented before Temporal Iudges for criminal Causes there Sir Iohn Fineux and the other Judges delivered their Opinion that they might and ought to be and their Opinion allowed and maintained by the King and Lords and Dr. Standish who before had holden the same Opinion wâ—… delivered from the Bishops I find it affirmed that in Causes which receive Determination in the House of Lords the King hath 〈◊〉 Vote at all no more than in other Courts of ministerial Iurisdiction True it is the King hath no Vote at all if we understand by Vote a Voice among others for he hath no partners with Him in giving Judgement But if by no Vote is meant he hath no Power to judge we dispoil him of his Sovereignty It is the chief Mark of Supremacy to judge in the highest Causes and last Appeals This the Children of Israel full well understood when they petitioned for a King to judge them if the dernier resoâ—… be to the Lords alone then they have the Supremacy But as Moses by chusing Elders to judge in small Causes did
the Subjects saith he soon after this Parliament was established began to stand upon Terms with their King and drew from him by strong hand and their Swords their Great Charter it was after â—…he establishment of the Parliament by colour of it that â—…hey had so great Daring If any desire to know the â—…ause why Hen. 1. called the People to Parliament â—…t was upon no very good Occasion if we believe Sir Walter Raleigh The Grand Charter saith he was not originally granted Regally and freely for King Hen. 1. did but usurp the Kingdom and therefore the â—…etter to assure himself against Robert his elder Brother â—…e flattered the People with those Charters yea King John â—…hat confirmed them had the like Respect for Arthur Dâ—… Britain was the undoubted Heir of the Crown upon whom John usurped so these Charters had their original â—…rom Kings de facto but not de jure and then afterwards his Conclusion is that the Great Charter had â—…rst an obscure Birth by Usurpation and was fostered and â—…ewed to the World by Rebellion in brief the King calâ—…ed the People to Parliament and granted them Magna Charta that they might confirm to him the Crown The third Point consists of two parts First that â—…he Commons were not called unto Parliament until Hen. 3. dayes this appears by divers of the Precâ—…dents formerly cited to prove that the Barons weâ—… the Common Councel For though Hen. 1. called aâ—… the People of the Land to His Coronation and agaiâ—… in the 15. or 18. year of his Reign yet alwayes hâ—… did not so neither many of those Kings that diâ—… succeed him as appeareth before Secondly for calling the Commons by Writ find it acknowledged in a Book intituled The Privilege and Practice of Parliaments in these words lâ—… ancient times after the King had summoned His Parliament innumerable multitudes of People did maâ—… their Access thereunto pretending that Privilege â—… Right to belong to them But King Hen. 3. haviâ—… Experience of the Mischief and inconveniences by occasion of such popular Confusion did take order that noâ—… might come to His Parliament but those who were specâ—…ally summoned To this purpose it is observed bâ—… Master Selden that the first Writs we find accompaniâ—… with other Circumstances of a Summons to Parliamenâ—… as well for the Commons as Lords is in the 49 â—… Hen. 3. In the like manner Master Cambden speaking of the Dignity of Barons hath these Words King Hen. 3. out of a great Multitude which wâ—… seditious and turbulent called the very best by Writ â—… Summons to Parliament for he after many Troubles aâ—… Vexations between the King himself and Simon â—… Monefort with other Barons and after appeased dâ—…decree and ordain That all those Earls and Barons uâ—…to whom the King himself vouchsafed to direct Hâ—… Writs of Summons should come to his Parliament anâ—… no others but that which he began a little before hâ—… Death Edward 1. and his Successours constantly oâ—…served and continued The said prudent King Edwarâ—… summoned always those of ancient Families that were most wise to His Parliament and omitted their Sons after their Death if they were not answerable to their Parents in Understanding Also Master Cambden in another place saith that in the time of Edw. 1. select men for Wisdom and Worth among the Gentry were called to Parliament and their Posterity omitted if they were defective therein As the power of sending Writs of Summons for Elections was first exercised by Hen. 3. so succeeding Kings did regulate the Elections upon such Writs as doth appear by several Statutes which all speak in the Name and Power of the Kings themselves for such was the Language of our Fore-fathers In 5 Ric. 2. c. 4. these be the words The King Willeth and Commandeth all Persons which shall have Summons to come to Parliament and every Person that doth absent himself except he may reasonably and honestly excuse him to Our Lord the King shall be amerced and otherwise punished 7 Hen. 4. c. 15. Our Lord the King at the grievous complaint of his Commons of the undue Election of the Knights of Counties sometimes made of affection of Sheriffs and otherwise against the Form of the Writs to the great slander of the Counties c. Our Lord the King willing therein to provide Remedy by the Assent of the Lords and Commons Hath Ordained That Election shall be made in the full County-Court and that all that be there present as well Suitors as others shall proceed to the Election freely notwithstanding any Request or Command to the contrary 11 Hen. 4. c. 1. Our Lord the King Ordained that a Sheriff that maketh an undue Return c. shall incur the Penalty of 100 l. to be paid to Our Lord the King 1 H. 5. c. 1. Our Lord the King by the Advice and Assent of the Lords and the special Instance and Request of the Commons Ordained that the Knights of the Shire be not chosen unless they be resiant within the Shire the day of the date of the Writ and that Citizens and Burgesses be resiant dwelling and free in the the same Cities and Burroughs and no others in any wise 6 Hen. 6. c. 4. Our Lord the King willing to provide remedy for Knights chosen for Parliament and Sheriffs Hath Ordained that they shall have their Answer and traverse to Inquest of Office found against them 8 Hen. 6. c. 7. Whereas Elections of Knights have been made by great Out-rages and excessive number of People of which most part was of People of no value whereof every of them pretend a Voice equivalent to Worthy Knights and Esquires whereby Man-slaughters Riots and Divisions among Gentlemen shall likely be Our Lord the King hath Ordained That Knights of Shires be chosen by People dwelling in the Counties every of them having Lands or Tenements to the value of 2 l. the year at the least and that he that shall be chosen shall be dwelling and resiant within the Counties 10. H. 6. Our Lord the King ordained that Knightâ—… be chosen by People dwelling and having 2 l. by the year within the same County 11 H. 6. c. 11. The King willing to provide for the Ease of them that come to the Parliaments and Councels of the King by his Commandment hath ordained that if any Assault or Fray be made on them that comâ—… to Parliament or other Councel of the King the Parâ—… which made any such Affray or Assault shall pay doublâ—… Damages and make Fine and Ransom at the Kings Wilâ—… 23. H. 6. c. 15. The King considering the Statutes of 1 H. 5. c. 1. 8. Hen. 6. c. 7. and the Defaults of Sheriffs in returning Knights Citizens and Burgesses ordained 1. That the said Statutes should be duely kept 2. That the Sheriffs shall deliver Precepts to Maiors and Bayliffs to chuse Citizens and Burgesses 3. The Penalty of 100 l. for a Sheriff making an untrue Return concerning the election of
the King at His Parliament of his special Grace and for Affection which he beareth to his Prelates Earls and Barons and others hath granted that they that have Liberties by Prescription shall enjoy them In the Stat. de finibus Levatis the Kings Words are We intending to provide Remedy in our Parliament have ordained c. 28. Edw. 1. c. 5. The King Wills that the Chancellor and the Iustices of the Bench shall follow Him so that he may have at all times some neer unto him thaâ—… be learned in the Laws and in Chap. 24. the words are Our Lord the King after full Conference and Debate had with his Earls Barons Nobles and other Great men by their whole Consent hath ordained c. The Stat. de Tallagio if any such Statute there be speaks in the Kings Person No Officer of Ours No Tallage shall be taken by Us We Will and Grant 1. Edw. 2. begins thus Our Lord the King Willeth and Commandeth The Stat. of 9. the same King saith Our Lord the King by the Assent of the Prelates Earls and other great States hath Ordained 10. Edw. 2. It is provided by our Lord the King and his Iustices The Stat. of Carlile saith We have sent our Command in writing firmly to be observed 1. Edw. 3. begins thus King Edw. 3. at his Parliament at the request of the Commonalty by their Petition before him and his Councel in Parliament hath granted c. and in the 5th Chap. The King willeth that no man be charged to arm himself otherwise than he was wont 5. Edw. 3. Our Lord the King at the Request of his People hath established these things which He Wills to be kept 9. Of the same King there is this Title Our Lord the King by the Assent c. and by the Advice of his Councel being there hath ordained c. In his 10 year it is said Because Our Lord King Edw. 3. hath received by the Complaint of the Prelates Earls Barons also at the shewing of the Knights of the Shires and his Commons by their Petition put in his Parliament c. Hath ordained by the Assent c. at the Request of the said Knights and Commons c. The same year in another Parliament you may find these be the Articles accorded by Our Lord the King with the Assent c. at the Request of the Knights of the Shires and the Commons by their Petition â—…ut in the said Parliament In the year-Book 22 Edw. 3. 3. pl. 25. It is said The King makes the Laws by the Assent of the Peers and Commons and not the Peers and Commons The Stat. of 1. Ric. 2. hath this Beginning Richâ—…d the 2. by the Assent of the Prelates Dukes Earls and Barons and at the Instance and special Request of â—… Commons Ordained There being a Statute made 5 Ric. 2. c. 5. against Lollards in the next year the Commons Petition Him Supplient les Commons que come un estatute fuit fait c. The Commons beseech that whereas a Statute was made in the last Parliament c. which was never Assented to nor Granted by the Commons but that which was done therein was done without their Assent In this Petition the Commons acknowledge it a Statute and so call it though they assented not to it 17 Ric. 2. nu 44. The Commons desire some pursuing to make a Law which they conceive hurtful to the Commonwealth That His Majesty will not pass it As for the Parliaments in Hen. 4. Hen. 5. Hen. 6. Edw. 4. and Ric. 3. Reigns the most of them do agree in this one Title Our Lord the King by the Advice and Assent of His Lords and at the special Instance and Request of the Commons Hath ordained The Precedents in this Point are so numerous that it were endless to cite them The Statutes in Hen. 7. days do for the most part agree both in the Titles and Bodies of the Acts in these words Our Lord the King by the Assent of the Lords Spiritual and Temporal and the Commons iâ—… Parliament assembled and by the Authority of the same hath ordained Unto this Kings time we find the Commons very often petitioning but not petitioned unto The first Petition made to the Commons that I meet with among the Statutes is but in the middle of this King Hen 7. Reign which was so well approved that the Petition it self is turned into â—… Statute It begins thus To the Right Worshipfuâ—… Commons in this present Parliament assembled Sheweth to your discreet Wisdoms the Wardens of the Fellowship of the Craft of Upholsters within London c. This Petition though it be directed to the Commons in the Title yet the Prayer of the Petition is turned to the King and not to the Commons for it concludes therefore it may please the Kings Highness by the Advice of the Lords Spiritual and Temporal and his Commons in Parliament c. Next for the Statutes of Hen. 8. they do most part agree both in their Titles and the Bodies of the Acts with those of his Father King Hen. 7. Lastly In the Statutes of Edw. 6. Qu. Mary Q. Elizabeth K. Iames and of our Sovereign Lord the King that now is there is no Mention made in their Titles of any Assent of Lords and Commons or of any Ordaining by the King but only in general terms it is said Acts made in Parliament or thus At the Parliament were Enacted yet in the Bodies of many of these Acts of these last Princes there is sometimes Mention made of Consent of Lords and Commons in these or the like words It is Enacted by the King with the Assent of the Lords and Commons Except only in the Statutes of our Lord King Charles wherein there is no Mention that I can find of any Consent of the Lords and Commons or Ordaining by the King But the words are Be it Enacted by Authority of Parliament or else Be it Enacted by the King the Lords Spiritual and Temporal and Commons as if they were all Fellow-Commissioners Thus it appears that even till the time of K. Ed. 6. who lived but in our Fathers dayes it was punctually expressed in every King's Laws that the Statutes Ordinances were made by the King And withal we may see by what degrees the Styles and Titles oâ—… Acts of Parliament have been varied and to whose Disadvantage The higher we look the more absolute we find the Power of Kings in Ordaininâ—… Laws nor do we meet with at first so much as thâ—… Assent or Advice of the Lords mentioned Nay 〈◊〉 we cast our eye upon many Statutes of those that bâ—… of most Antiquity they will appear as if they weâ—… no Laws at all but as if they had been made only to teach us that the Punishments of many Offencâ—… were left to the meere pleasure of Kings The punitive part of the Law which gives all the Vigoâ—… and Binding Power to the Law we find committed by the
Barons made an Ordinance touching the Exemption of the Abby of Bury from the Bishops of Norwich In the tenth year of the Conquerour Episcopi Comites Barones regni regia potestate ad universalem Synodum pro causis audiendis tractandis convocati saith the Book of Westminster In the 2 year of William 2. there was a Parliament de cunctis regni Principibus another which had quosque regni proceres All the Peers of the Kingdom In the seventh year was a Parliament at Rockingham-Castle in Northampton-shire Episcopis Abbatibus cunctique regni Principibus una coeuntibus A year or two after the same King de statu regni acturus c. called thither by the Command of his Writ the Bishops Abbots and all the Peers of the Kingdom At the Coronation of Hen. 1. All the People of the Kingdom of England were called and Laws were then made but it was Per Commune Concilium Baronum meorum by the Common Councel of my Barons In his third year the Peers of the Kingdom were called without any mention of the Commons and another a while after consensu Comitum Baronum by the consent of Earls and Barons Florentius Wigoriensis saith these are Statutes which Anselme and all the other Bishops in the Presence of King Henry by the assent of his Barons ordained and in his tenth year of Earls and Peers and in his 23. of Earls and Barons In the year following the same King held a Parliament or great Councel with His Barons Spiritual and Temporal King Hen. 2. in his tenth year had a great Councel or Parliament at Clarendon which was an Assembly of Prelates and Peers 22. Hen. 2. saith Hovenden was a great Councel at Nottingham and by the Common Councel of the Archbishops Bishops Earls and Barons the Kingdom was divided into six parts And again Hovendeâ—… saith that the same King at Windsor apud Windâ—… shores Communi Concilio of Bishops Earls and Barons divided England into four Parts And in hiâ—… 21 year a Parliament at Windsor of Bishops Earlâ—… and Barons And another of like Persons at Northampton King Richard 1. had a Parliament at Nottingham in his fifth year of Bishops Earls and Barons Thiâ—… Parliament lasted but four days yet much was donâ—… in it the first day the King disseiseth Gerard de Canvil of the Sherifwick of Lincoln and Hugh Bardolâ—… of the Castle and Sherifwick of York The second day he required judgment against his Brother Iohn who was afterwards King and Hugh de Novaâ—… Bishop of Coventry The third day was granted to thâ—… King of every Plow-land in England 2 s. He required also the third part of the Service of every Knights Fâ—… for his Attendance into Normandy and all the Wooâ—… that year of the Monks Cisteaux which for that 〈◊〉 was grievous and unsupportable they fine for Moâ—…ny The last day was for Hearing of Grievancesâ—… and so the Parliament brake up And the same yeaâ—… held another at Northampton of the Nobles of thâ—… Realm King Iohn in his fifth year He and his Great mâ—…met Rex Magnates convenerunt and thâ—… Roll of that year hath Commune Concilium Bâ—…ronum Meorum the Common Councel of my Baronâ—… at Winchester In the sixth year of King Henry 3. the Nobleâ—… granted to the King of every Knights Fee two Markâ—… in Silver In the seventh year he had a Parliament at London an Assembly of Barons In his thirteenth year an Assembly of the Lords at Westminster In his fifteenth year of Nobles both Spiritual and Temporal M. Par. saith that 20. H. 3. Congregati sunt Magnates ad colloquium de negotiis regni tractaturi the Great men were called to confer and treat of the Business of the Kingdom And at Merton Our Lord the King granted by the Consent of his Great men That hereafter Usury should not run against a Ward from the Death of his Ancestor 21. Hen. 3. The King sent his Royal Writs commanding all belonging to His Kingdom that is to say Arch-bishops Bishops Abbots and Priors installed Earls and Barons that they should all meet at London to treat of the Kings Business touching the whole Kingdom and at the day prefixed the whole multitude of the Nobles of the Kingdom met at London saith Mat. Westminster In his 21 year At the Request and by the Councel of the Lords the Charters were confirmed 22. Hen. 3. At Winchester the King sent his Royal Writs to Arch-bishops Bishops Priors Earls and Barons to treat of Business concerning the whole Kingdome 32. Hen. 3. The King commanded all the Nobility of the whole Kingdom to be called to treat of the State of His Kingdom Mat. Westm ' 49. Hen. 3. The King had a Treaty at Oxford with the Peers of the Kingdom M. Westminster At a Parliament at Marlborow 55. Hen. 3. Statutes were made by the Assent of Earls and Barons Here the Place of Bracton Chief Justice in thiâ—… Kings time is worth the observing and the ratheâ—… for that it is much insisted on of late to make foâ—… Parliaments being above the King The words iâ—… Bracton are The King hath a Superiour God also thâ—… Law by which he is made King also his Court viz the Earls and Barons The Court that was said iâ—… those days to be above the King was a Court of Earls and Barons not a Word of the Commons or thâ—… representative Body of the Kingdom being any paâ—… of the Superiour Court Now for the true Senâ—… of Bractons words how the Law and the Court 〈◊〉 Earls and Barons are the Kings Superiours theâ—… must of Necessity be understood to be Superiours 〈◊〉 far only as to advise and direct the King out of hiâ—… own Grace and Good Will only which appeaâ—… plainly by the Words of Bracton himself wherâ—… speaking of the King he resolves thus Nec potest 〈◊〉 necessitatem aliquis imponere quod injuriam suam corrigâ—… emendat cum superiorem non habeat nisi Deum 〈◊〉 satis ei erit ad poenam quod Dominum expectat ultoreâ—… Nor can any man put a necessity upon Him to correâ—… and amend his Injury unless he will himself sinâ—… he hath no Superiour but God it will be sufficieâ—… Punishment for him to expect the Lord an avengeâ—… Here the same man who speaking according to somâ—…mens Opinion saith the Law and Court of Earls aâ—… Barons are superiour to the King in this place telâ—… us himself the King hath no Superiour but God thâ—… Difference is easily reconciled according to the Dâ—…stinction of the School-men the King is free from tâ—… Coactive Power of Laws or Councellors but may be suâ—…ject to their Directive Power according to his owâ—… Will that is God can only compell but thâ—… Law and his Courts may advise Him Rot. Parliament 1 Hen. 4. nu 79. the Commons expresly affirm Iudgment in Parliament belongs to the King and Lords These Precedents shew that from the Conquest untill a great
Knights Citizens and Burgesses 4. The Penalty of 40 l for Maiors or Bayliffs making untrue Returns 5. Due Election of Knights must be in the full County-Court between the Hours of Eight and Eleven before noon 6. The Party must begin his Suit within 3 Moneths after the Parliament began 7. Knights of the Shire shall be notable Knights of the County or such notable Esquires or Gentlemen born of the said Counties as shall be able to be Knights and no man to be such Knight which standeth in the Degree of a Yeoman and under The last thing I observe in the Writ for Election of Members for Parliament is That by the express words of the Writ Citizens and Burgesses for the Parliament were eligible at the County-Court as well as Knights of the Shire and that not only Free-holders but all others whosoever were present at the County-Court had Voices in such Elections see the Stat. 7. Hen. 4. cap. 15. I have the longer insisted on the Examination of the Writ being the Power and Actions of the House of Commons are principally justified by the Trust which the Free-holders commit unto them by virtue of this Writ I would not be understood to determine what Power the House of Commons doth or may exercise if the King please I confine my self only to the Power in the Writ I am not ignorant that King Hen. 7. in the Cause of the Duke of Britain and King Iames in the Business of the Palatinate asked the Councel of the House of Commons and not only the House of Commons but every Subject in particular by Duty and Allegiance is bound to givâ—… his best Advice to his Sovereign when he is thoughâ—… worthy to have his Councel asked 13. Edw. 3. nu 10. All the Merchants of England were summoned by Writ to appear at Westminster in proper Person to confer upon great business concerning the Kings Honour the Salvation of the Realâ—… and of themselves In Passages of publick Councel it is observable saith Sir Rob. Cotton that in ancient times the Kings of England did entertain the Commons with weighty Causes thereby to apt and bind them to a readiness of Charge and the Commons to shun Expence haâ—… warily avoided to give Advice 13. Edw. 3. The Lords and Commons were called to consult how the domestick Quiet may be preserved the Marches of Scotland defended and thâ—… Sea secured from Enemies The Peers and Commons having apart consulted the Commons desired Not to be charged to Councel of things of whicâ—… they had no Cognisance de queux ils n' ont pas de Cognisance 21. Edw. 3. Justice Thorp declaring to the Peeâ—… and Commons that the French War began by theiâ—… Advice the Truce after by their Assent accepted and now ended the Kings Pleasure was to havâ—… their Counsel in the Prosecution the Commons being commanded to assemble themselves and when they were agreed to give notice to the King and the Lords of the Councel after four days Consultation Humbly desire of the King that he would be advised therein by the Lords and others of more Experience than themselves in such Affairs 6. Ric. 2. The Parliament was called to consult whether the King should go in Person to rescue Gaunt or send an Army The Commons after two dayes Debate crave a Conference with the Lords and Sir Thomas Puckering their Speaker protests that Councels for War did aptly belong to the King and His Lords yet since the Commons were commanded to give their Advice they humbly wished a Voyage by the King 7. Ric. 2. At the second Session the Commons are willed to Advise upon View of Articles of Peace with the French whether War or such Amity should be accepted they modestly excuse themselves as too weak to Counsel in so weighty Causes But charged again as they did tender their Honour and the Right of the King they make their Answer giving their Opinions rather for Peace than War For fuller Manifestation of what hath been said touching the Calling Election and Power of the Commons in Parliament it is behooful to observe some Points delivered by Sir Edw. Coke in his Treatise of the Jurisdiction of Parliaments where First he fairly begins and lays his Foundation that the High Court of Parliament consisteth of the Kings Majesty sitting there and of the three Estates 1. The Lords Spiritual 2. The Lords Temporal 3. And the Commons Hence it is to be gathered that truly and properly it cannot be called the High Court of Parliament but whilst the King is sitting there in Person so that the Question now a days whether the Parliament be above the King is either false or idle false if you exclude and idle if you include the King's Person in the word Parliament The case truly put and as it is meant is whether the three Estates oâ—… which is all one the Lords and Commons assembled in Parliament be above the King and not whether the King with the three Estates be above the King It appears also that they are much mistaken who reckon the King one of the three Estates as Mr. Pryn pag. 20. and many others do for the three Estates make the Body and the King is Caput Principium finis Parliamentor as confesseth Sir Edw. Coke Secondly Sir Edw. Coke delivers That certain it is both Houses at first sate together and that it appears in Edward the Third's time the Lords and Commons satâ—… together and the Commons had no continual Speaker If he mean the Lords and Commons did sit and Vote together in one Body few there be that will believe it because the Commons never were wont to lose or forego any of their Liberties or Privileges and for them to stand now with their Hats in their hands which is no Magistratical Posture there where they were wont to sit and Vote is an alteration not imaginable to be indured by the Commons It may be in former times when the Commons had no constant Speaker they were oft and perhaps for the most part in the same Chamber and in the presence of the Lords to hear the Debates and Consulations of the Great Councel but not to sit and Vote with them for when the Commons were to Advise among themselves the Chapter-house of the Abby of Westminster was oft-times their place to meet in before they had a settled House and their meetings not being very frequent may be the reason I conceive why the name of the House of Commons is not of such great Antiquity or taken notice of but the House of Lords was only called the Parliament-House and the Treatise called Modus tenendi Parliamentum speaks of the Parliament as but of one House only The House where now the Commons sit in Westminster is but of late Use or Institution for in Edward the Sixth's dayes it was a Chappel of the Colledge of Saint Stephen and had a Dean Secular Canons and Chorists who were the Kings Quire at his Palace at
be Kings in Fact and Kings themselves to be but Subjects We read in Sir Roâ—…ert Cotton that towards the end of the Saxons and â—…he first times of the Norman Kings Parliaments stood 〈◊〉 Custom-grace fixed to Easter Whitsontide and Christmas and that at the Kings Court or Palace Parliaments sate in the Presence or Privy Chamber from whence he infers an Improbability to believe the King excluded His own Presence and unmannerly fâ—… Guests to bar Him their Company who gave them theâ—… Entertainment And although now a-days the Parliament sit not in the Court where the Kings housholâ—… remains yet still even to this day to shew that Parliaments are the Kings Guests the Lord Steward oâ—… the Kings Houshold keeps a standing Table to entertain the Peers during the sitting of Parliament and he alone or some from or under him as the Treasurer or Comptroller of the Kings Houshold takeâ—… the Oaths of the Members of the House of Commoâ—… the first day of the Parliament Sir Richard Sâ—…roop Steward of the Houshold of our Sovereign Lord the King by the Commandment of the Lords sitting in full Parliament iâ—… the Great Chamber put I. Lord Gomeniz and William Weston to answer severally to Accusations broughâ—… against them The Necessity of the King's Presence in Parliamenâ—… appears by the Desire of Parliaments themselves iâ—…former times and the Practice of it Sir Robert Cottoâ—… proves by several Precedents whence he concludeâ—… that in the Consultations of State and Decisions of private Plaints it is clear from all times the King wâ—… not only present to advise but to determine also Whensoever the King is present all Power of judging which is derived from His ceaseth The Votes of the Lords may serve for matter of Advice the finaâ—… Judgment is only the Kings Indeed of late years Queen Mary and Queen Elizabeth by reason of theiâ—… Sex being not so fit for publick Assemblies have brought it out of Use by which means it is comâ—… to pass that many things which were in former times acted by Kings themselves have of late been left to the Judgment of the Peers who in Quality of Judges extraordinary are permitted for the Ease of the King and in His absence to determine such matters as are properly brought before the King Himself sitting in Person attended with His great Councel of Prelates and Peers And the Ordinances that are made there receive their Establishment either from the Kings Presence in Parliament where his Chair of State is constantly placed or at least from the Confirmation of Him who in all Courts and in all Causes is Supream Judge All Judgement is by or under Him it cannot be without much less against his Approbation The King only and none but He if He were able should judge all Causes saith Bracton that ancient Chief Justice in Hen. 3. time An ancient Precedent I meet with cited by Master Selden of a judicial Proceeding in a Criminal Cause of the Barons before the Conquest wherein I observe the Kings Will was that the Lords should be Judges â—…n the Cause wherein Himself was a Party and He â—…atified their Proceeding The case was thus Earl Godwin having had a Trial before the Lords under King Hardicanute touching the Death of Alfred Son to King Ethelbert and Brother to him who was afterward Edward the Confessor had fled out of England and upon his Return with Hope of Edward the Confessor's Favour he solicited the Lords â—…o intercede for him with the King who consulting together brought Godwin with them before the King to obtain his Grace and Favour But the King â—…resently as soon as he beheld him said Thou Traytor Godwin I do appeal thee of the Death of my Brother Alfred whom thou hast most trayterously slain Then Godwin excusing it answered My Lord the King may it please your Grace I neither betrayed nor killed your Brother whereof I put my self upon the Iudgment of your Court Then the King said You noble Lords Earls and Barons of the Land who are my Liege men now gathered here together and have heard My Appeal and Godwins Answer I Will that in this Appeal between Us ye decree right Iudgment and do true Iustice. The Earls and Barons treating of this among themselves were of differing Judgments some said that Godwin was never bound to the King either by Homage Service or Fealty and therefore could not be his Traytor and that he had not slain Alfred with his own hands others said that neither Earl nor Baron nor any other Subject of the King could wage his War by Law against the King in his Appeal but most wholly put himself into the Kings Mercy and offer competent Amends Then Leofric Consul of Chester a good man before God and the World said Earl Godwin next to the King is a man of the best Parentage of all England and he cannot deny but that by his Counsel Alfred the Kings Brother was slain therefore for my part I consider that He and his Son and all we twelve Earls who are his Friends and Kinsmen do go humbly before the King laden with so much Gold and Silver as each of us can carry in our Arms offering him That for his Offence and humbly praying for Pardon And he will pardon the Earl and taking his Homage and Fealty will restore him all his Lands All they in this form lading themselves with Treasure and coming to the King did shew the Manner and Order of their Consideration to which The King not willing to contradict did ratifie all that they had judged 23 Hen. 2. In Lent there was an Assembly of all the Spiritual and Temporal Barons at Westminster for the determination of that great Contention between Alfonso King of Castile and Sancho King of Navarre touching divers Castles and Territories in Spain which was by compromise submitted to the Judgment of the King of England And the King consulting with his Bishops Earls and Barons determined it as he saith Himself in the first Person in the Exemplification of the Judgement 2 Of King Iohn also that great Controversie touching the Barony that William of Moubray claimed against William of Stutvil which had depended from the time of King Hen. 2. was ended by the Councel of the Kingdom and Will of the King Concilio regni voluntate Regis The Lords in Parliament adjudge William de Weston to Death for surrendring Barwick Castle but for that Our Lord the King was not informed of the manner of the Judgment the Constable of the Tower Allen Buxall was commanded safely to keep the said William untill he hath other Commandment from our Lord the King 4 Ric. 2. Also the Lords adjudged Iohn Lord of Gomentz for surrendring the Towns and Castles of Ardee and for that he was a Gentleman and Bannaret and had served the late King he should be beheaded and for that our Lord the King was not informed of the manner of the Iudgment the Execution thereof
shall be respited untill our Lord the King shall be informed It is commanded to the Constable of the Tower safely to keep the said John untill he hath other commandement from our Lord the King In the case of Hen. Spencer Bishop of Norwich 7 Ric. 2. who was accused for complying with the French and other Failings the Bishop complained what was done against him did not pass by the Assent and Knowledge of the Peers whereupon it was said in Parliament that The cognisance and Punishment of his Offence did of common Right and antient Custom of the Realm of England solely and wholly belong to Our Lord the King and no other Le cognisance punissement de commune droit auntienne custome de Royalme de Engleterre seul per tout apperteine au Roy nostre Seignieur a nul autre In the case of the Lord de la Ware the Judgment of the Lords was that he should have place next after the Lord Willoughby of Erisbe by consent of all except the Lord Windsor and the Lord Keeper was required to acquaint Her Majesty with the Determination of the Peers and to know her Pleasure concerning the same The Inference from these Precedents is that the Decisive or Iudicial Power exercised in the Chamber of Peers is merely derivative and subservient to the Supreme Power which resides in the King and is grounded solely upon his grace and favour for howsoever the House of Commons do alledge their Power to be founded on the Principles of Nature in that they are the Representative Body of the Kingdom as they say and so being the whole may take care and have power by Nature to preserve themselves yet the House of Peers do not nor cannot make any such the least Pretence since there is no reason in Nature why amongst a company of men who are all equal some few should be picked out to be exalted above their Fellows and have power to Govern those who by Nature are their companions The difference between a Peer and a Commoner is not by Nature but by the grace of the Prince who creates Honours and makes those Honours to be hereditary whereas he might have given them for life onely or during pleasure or good behaviour and also annexeth to those Honours the Power of having Votes in Parliament as hereditary Counsellours furnished with ampler Privileges than the Commons All these Graces conferred upon the Peers are so far from being derived from the Law of Nature that they are contradictory and destructive of that natural equality and freedom of mankind which many conceive to be the foundation of the Privileges and Liberties of the House of Commons there is so strong an opposition between the liberties of Grace and Nature that it had never been possible for the two Houses of Parliament to have stood together without mortal Enmity and eternal jarring had they been raised upon such opposite foundations But the truth is the Liberties and Privileges of both Houses have but one and the self same foundation which is nothing else but the meer and sole Grace of Kings Thus much may serve to shew the Nature and Original of the deliberative and decisive Power of the Peers of the Kingdom The matter about which the deliberative power is conversant is generally the Consulting and Advising upon any urgent Business which concerns the King or Defence of the Kingdom and more especially sometimes in preparing new Laws and this Power is grounded upon the Writ The décisive Power is exercised in giving Judgment in some difficult Cases but for this Power of the Peers I find no Warrant in their Writ Whereas the Parliament is styled the Supreme Court it must be understood properly of the King sitting in the House of Peers in Person and but improperly of the Lords without him Every Supreme Court must have the Supreme Power and the Supreme Power is alwayes Arbitrary for that is Arbitrary which hath no Superiour on Earth to controlâ—… it The last Appeal in all Government must still bâ—… to an Arbitrary Power or else Appeals will bâ—… in Infinitum never at an end The Legislative Power is an Arbitrary Power for they are termini convertibiles The main Question in these our dayes is Where this Power Legislative remains or is placed upon conference of the Writs of Summons for both Houses with the Bodies and Titles of our Ancient Acts of Parliament we shall find the Power of making Laws rests solely in the King Some affirm that a part of the Legislative Power is in either of the Houses but besides invincible reason from the Nature of Monarchy it self which must have the Supreme Power Alone the constant Antient Declaration of this Kingdom is against it For howsoever of later years in the Titles and Bodies of our Acts of Parliament it be not so particularly expressed who is the Author and Maker of our Laws yet in almost all our elder Statutes it is precisely expressed that they are made by the King Himself The general words used of later times that Laws are made by Authority of Parliament are particularly explained in former Statutes to mean That the King Ordains the Lords Advise the Commons Consent as by comparing the Writs with the Statutes that expound the Writs will evidently appear Magna Charta begins thus Henry by the grace of God Know ye that WE of Our Meer and Free Will have given these Liberties In the self-same style runs Charta de Foresta and tells us the Author of it The Statute de Scaccario 41 H. 3. begins in these words The King Commandeth that all Bailiffs Sheriffs and other Officers c. And concerning the Justices of Chester the King Willeth c. and again He Commandeth the Treasurer and Barons of the Exchequer upon their Allegiance The Stat. of Marlborough 52 Hen. 3. goeth thus The King hath Made these Acts Ordinances and Statutes which He Willeth to be Observed of all his Subjects high and low 3 Edw. 1. The Title of this Statute is These are the ACTS of King EDWARD and after it follows The KING hath Ordained these ACTS and in the first Chapter The King Forbiddeth and Commandeth That none do hurt damage or grievance â—…o any Religious Man or Person of the Church and in the thirteenth Chapter The King prohibiteth that none do Ravish or take away by force any Maid within age 6 Edw. 1. It is said Our Sovereign Lord the King hath established these Acts commanding they be â—…bserved within this Realm and in the fourteenth Chap. the words are The King of his special Grace granteth that the Citizens of London shall recover in an Assise Damage with the Land The Stat. of West 2. saith Our Lord the King hath ordained that the Will of the Giver be observed and in the 3. Chap. Our Lord the King hath ordained that a woman after the Death of her Husband shal recover by a Writ of Entry The Stat. of Quo Warranto saith Our Lord
Maurice Justicer of Ireland The Explanations of the Statute of Gloucester made by the King and His Iustices only were received alwayes for Statutes and are still printed with them Also the Statute made for the correction of the twelfth Chapter of the Statute of Gloucester was Signed under the Great Seal and sent to the Justices of the Bench after the manner of a Writ Patent with a certain Writ closed dated by the Kings hand at Westminster 2 Maii 9 Edw. 1. requiring that they should do and execute all and every thing contained in it though the same do not accord with the Stat. of Gloucester in all things The Provisions of Merton made by the King at an Assembly of Prelates and the greater part of the Earls and Barons for the Coronation of the King and his Queen Elinor are in the form of a Proclamation and begin Provisum est in Curia domini Regis apud Merton 19 Hen. 3. a Provision was made de assisa praesentationis which was continued and allowed for a Law untill the Stat. of West 2. which provides the contrary in express words In the old Statutes it is hard to distinguish what Laws were made by Kings in Parliament and what out of Parliament when Kings called Peers only to Parliament and of those how many or whom they pleased as it appears anciently they did it was no easie matter to put a difference between a Councel-Table and a Parliament or between a Proclamation and a Statute Yet it is most evident that in old times there was a distinction between the Kings special or Privy Councel and His Common Councel of the Kingdom and His special Councel did sit with the Peers in Parliament and were of great and extraordinary Authority there In the Stat. of Westm. 1. it is said These are the Acts of K. Edw. 1. made at His first Parliament by His Councel and by the Assent of Bishops Abbots Priors Earls Barons and all the Commonalty of the Realm The Stat. of Acton Burnell hath these words The King for Himself and by His Councel hath Ordained and Established In articulis super Chartas when the Great Charter was confirmed at the Request of the Prelates Earls and Barons are found these two provisions 1. Nevertheless the King and his Councel do not intend by reason of this Statute to diminish the Kings Right 2. Notwithstanding all these things before-mentioned or any part of them both the King and his Councel and all they that were present Will and intend that the Right and Prerogative of His Crown shall be saved to Him in all things The Stat. of Escheators hath this Title At the Parliament of our Sovereign Lord the King By His Councel it was agreed and also by the King himself commanded 1 Edw. 3. where Magna Charta was confirmed this Preamble is found At the request of the Commonalty by their Petition made before the King and His Councel in Parliament by the Assent of the Prelates Earls and Barons c. The Statute made at York 9 Edw. 3. goeth thus Whereas the Knights Citizens and Burgesses desired Our Sovereign Lord the King in His Parliament by their Petition c. Our Sovereign Lord the King desiring the profit of His People By the Assent of His Prelates Earls Barons and other Nobles of His Realm and by the Advice of His Councel being there Hath Ordained 25. Edw. 3. In the Statute of Purveyors where the King at the request of the Lords and Commons made a Declaration what Offences should be adjudged Treason It is there further said if per-case any man ride Armed with Men of Arms against any other to slay him or rob him It is not the Mind of the King or of His Councel that in such cases it shall be adjudged Treason By this Statute it appears that even in the case of Treason which is the Kings own Cause as whereas a man doth compass or imagine the Death of Our Lord the King or a man do wage War against Our Lord the King in His Realm or be adherent to the Kings Enemies in his Realm giving to them Aid or Comfort in the Realm or elsewhere in all these cases it is the Kings Declaration onely that makes it to be Treason and though it be said that Difficult points of Treason shall be brought and shewed to the King and His Parliament yet it is said it is the mind of the King and his Councel that determines what shall be adjudged Treason and what Felony or Trespass 27 Edw. 3. the Commons presenting a Petition to the King which the Kings Councel did mislike were content thereupon to amend and explain their Petition the Petition hath these words To their most redoubted Sovereign Lord the King Praying Your said Commons that whereas they have prayed him to be discharged of all manner of Articles of the Eyre c. which Petition seemeth to his Councel to be prejudicial unto him and in Disinherison of his Crown if it were so generally granted His said Commons not willing nor desiring to demand things of Him or of his Crown perpetually as of Escheats c. But of Trespasses Misprisions Negligences Ignorances c. And as in Parliaments the Kings Councel were of Supereminent Power so out of Parliament Kings made great Use of them King Edw. 1. finding that Bogo de Clare was discharged of an Accusation brought against him in Parliament commanded him nevertheless to appear before him and his Councel ad faciendum recipiendum quod per Regem ejus Concilium fuerit faciendum and so proceeded to the Examination of the whole Cause 8 Edw. 1. Edw. 3. In the Star-chamber which was the ancient Councel-table at Westminster upon the complaint of Eliz. Audley commanded Iames Audley to appear before Him and His Councel and determined a Controversie between them touching Land contained in her Jointure Rot. claus de An. 41 Edw. 3. Hen. 5. In a Suit before Him and His Councel For the Titles of the Manors of Serre and St. Lawrence in the Isle of Thanet in Kent took order for the Sequestring the Profits till the Right were tried Hen. 6. commanded the Justices of the Bench to stay the Arraignment of one Verney in London till they had other Commandment from Him and His Councel 34 Hen. 6. rot 37. in Banco Edw. 4. and his Councel in the Star-Chamber heard the Cause of the Master and poor Brethren of Saint Leonard's in York complaining that Sir Hugh Hastings and others withdrew from them a great part of their Living which consisted chiefly upon the having of a Thrave of Corn of every Plow-land within the Counties of York Westmorland Cumberland and Lancashire Rot. pat de an 8. Edw. 4. part 3. memb 14. Hen. 7. and his Councel in the Star-Chamber decreed that Margery and Florence Becket should sue no further in their cause against Alice Radley Widow for Lands in Wolwich and Plumsted in Kent for as much as the matter had been heard
not thereby lose his Authority to be Judge himself when he pleased even in the smallest matters much less in the greatest which he reserved to himself so Kings by delegating others to judge under them do not thereby denude themselves of a Power to judge when they think good There is a Distinction of these times that Kings themselves may not judge but they may see and look to the Iudges that they give Iudgment according to Law and for this Purpose only as some say Kings may sometimes sit in the Courts of Justice But it is not possible for Kings to see the Laws executed except there be a Power in Kings both to judge when the Laws are duely executed and when not as also to compell the Judges if they do not their Duty Without such Power a King sitting in Courts is but a Mockery and a Scorn to the Judges And if this Power be allowed to Kings then their Judgments are supream in all Courts And indeed our Common Law to this Purpose doth presume that the King hath alâ—… Laws within the Cabinet of His Breast in Scrinio pectoris saith Crompton's Jurisdiction 108. When several of our Statutes leave many things to the Pleasure of the King for us to interpret all those Statutes of the Will and Pleasure of the Kings Iustices only is to give an absolute Arbitrary Power to the Justices in those Cases wherein we deny it to the King The Statute of 5 Hen. 4. c. 2. makes a Difference between the King and the Kings Iustices in these words Divers notorious Felons be indicted of divers Felonies Murders Rapes and as well before the Kings Iustices as before the King himself arreigned of the same Felonies I read that in An. 1256. Hen. 3. sate in the Eâ—…chequer and there set down Order for the Appearance Sheriffs and bringing in their Accounts there wâ—… five Marks set on every Sheriffs Head for a Fine bâ—…cause they had not distrained every Person that migâ—… dispend fifteen pounds Lands by the Year to receive tâ—… Order of Knighthood according as the same Sherifâ—… were commanded In Michaelmas Term 1462. Edw. 4. sate thâ—… dayes together in open Court in the Kings Bench. For this Point there needs no further Proofs bâ—…cause Mr. Pryn doth confess that Kings themselvâ—… have sate in Person in the Kings Bench and other Couâ—… and there given Iudgment p. 32. Treachery and Dâ—…loyalty c. Notwithstanding all that hath been said for tâ—… Legislative and Judicial Power of Kings Mr. Pryâ—… is so far from yielding the King a Power to maâ—… Laws that he will not grant the King a power to hinder a Law from being made that is 〈◊〉 allows Him not a Negative Voice in most case which is due to every other even to the Meaâ—…est Member of the House of Commons in his Judgment To prove the King hath not a Negative Voice 〈◊〉 main and in truth his only Argument insisted oâ—… is a Coronation-Oath which is said anciently soâ—… of our Kings of England have taken wherein thâ—… grant to defend and protect the just Laws and Customâ—… which the Vulgar hath or shall chuse Iustas Legâ—… Consuetudines quas vulgus elegerit Hence Mâ—… Pryn concludes that the King cannot deny any Iaâ—… which the Lords and Commons shall make choâ—… of for so he will have vulgus to signifie Though neither our King nor many of His Predecessors ever took this Oath nor were bound to â—…ake it for ought appears yet we may admit â—…hat our King hath taken it and answer we may be confident that neither the Bishops nor Privy Councel nor Parliament nor any other whosoever they were that framed or penn'd this Oath ever intended in this word Vulgus the Commons in Parliament much less the Lords they would never so much disparage the Members of Parliament as to disgrace them with a Title both base and false it had been enough if not too much to have called them Populus the People but Vulgus the Vulgar the rude Multitude which hath the Epithet of Ignobile Vulgus is a word as dishonourable to the Composers of the Oath to give or for the King to use as for the Members of the Parliament to receive it being most false for the Peers cannot be Vulgus because they are the prime Persons of the Kingdom next the Knights of the Shires are or ought to be notable Knights or notable Esquires or Gentlemen born in the Counties as shall be able to be Knights then the Citizens and Burgesses are to be most sufficient none of these can be Vulgus even those Free-holders that chuse Knights are the best and ablest men of their Counties there being for every Free-holder above ten of the Common People to be found to be termed the Vulgar Therefore it rests that vulgus must signifie the vulgar or common People and not the Lords and Commons But now the Doubt will be what the Common People or vulgus out of Parliament have to do to chuse Laws The Answer is easie and ready there goeth before quas vulgus the Antecedeâ—… Consuetudines that is the Customs which the Vulghath or shall chuse Do but observe the Nature 〈◊〉 Custom and it is the Vulgus or Common People only who chuse Customs Common Usage time out 〈◊〉 mind creates a Custom and the commoner 〈◊〉 Usage is the stronger and the better is the Custom no where can so common an Usage be found 〈◊〉 among the Vulgar who are still the far greatâ—… part of every Multitude if a Custom be commoâ—… through the whole Kingdom it is all one with the Common Law in England which is said to be Common Custom Thus in plain Terms to protect the Customs which the Vulgar chuse is to swear to protect the Common Laws of England But grant that Vulgus in the Oath signifies Lordâ—… and Commons and that Consuetudines doth not signifie Customs but Statutes as Mr. Pryn for a desperate Shift affirms and let elegerit be the Future or Preterperfect Tense even which Mr. Pryn please yet it cannot exclude the Kings negative Voice for as Consuetudines goeth before quas vulgus so doth justas stand before leges consuetudines so that not all Laws but only all just Laws are meant If the sole Choice of the Lords and Commons did oblige the King to protect their Choice without Power of Denial what Need or why is the Word justas put in to raise a Scruple that some Laws may be unjust Mr. Pryn will not say that a Decree of a General Councel or of a Pope is infallible nor â—… think a Bill of the Lords and Commons is infallible just and impossible to erre if he do Sir Edward Coke will tell him that Parliaments have been utterly deceived and that in eases of greatest Moment even iâ—… case of High Treason and he calls the Statute of 11 Hen. 7. an unjust and strange Act. But it may be Mr. Pryn will confess that Laws chosen by the Lords and
Commons may be unjust so that the Lords and Commons themselves may be the Judges of what is just or unjust But where a King by Oath binds his Conscience to protect just Laws it concerns him to be satisfied in his own Conscience that they be just and not by an implicite Faith or blind Obedience no man can be so proper a Judge of the Justness of Laws as he whose Soul must lie at the Stake for the Defence and Safeguard of them Besides in this very Oath the King doth swear to do equal and right Iustice and Discretion in Mercy and Truth in all His Iudgments facies fieri in omnibus judiciis tuis aequam rectam justitiam discretionem in Misericordia Veritate if we allow the King Discretion and Mercy in his Iudgments of Necessity he must judge of the Justness of the Laws Again the clause of the Oath quas vulgus elegerit doth not mention the assenting unto or granting any new Laws but of holding protecting and strengthning with all his Might the just Laws that were already in Being there were no need of Might or Strength if assenting to new Laws were there meant Some may wonder why there should be such Labouring to deny the King a negative Voice since a negative Voice is in it self so poor a thing that if a man had all the Negative Voices in the Kingdom â—…t would not make him a King nor give him Power to make one Law a negative Voice is but a â—…ivative Power that is no Power at all to do or act any thing but a Power only to hinder the Power of another Negatives are of such a malignant or destructive Nature that if they have nothing else to destroy they will when they meet destroy one another which is the reason why two Negatives make an Affirmative by destroying the Negation which did hinder the Affirmation A King with a Negative Voice only is but like a Syllogisme of pure negative Propositions which can conclude nothing It must be an Affirmative Voice that makes both a King and a Law and without it there can be no imaginable Government The reason is plain why the Kings negative Voice is so eagerly opposed for though it give the King no Power to do any thing yet it gives him a Power to hinder others though it cannot make Him a King yet it can help him to keep others from being Kings For Conclusion of this Discourse of the negative Voice of the King I shall oppose the Judgment of a Chief Iustice of England to the Opinion of him that calls himself an utter Barister of Lincolns Inn and let others judge who is the better Lawyer of the two the words are Bracton's but concern Mr. Pryn to lay them to heart Concerning the Charters and Deeds of Kings the Iustices nor private men neither ought nor can dispute nor yet if there rise a Doubt in the Kings Charter can they interpret it and in doubtful and obscure Points or if a word contain two Senses the Interpretation and Will of Our Lord the King is to be expected seeing it is his part to interpret who makes the Charter full well Mr. Pryn knows that when Bracton writ the Laws that were then made and strived for were called the Kings Charters as Magna Charta Charta de Foresta and others so that in Bracton's Judgment the King hath not only a Negative Voice to hinder but an Affirmative to make a Law which is a great deal more than Master Pryn will allow him Not only the Law-maker but also the sole Iudge of the People is the King in the Judgment of Bracton these are his words Rex non alius debet judicare si solus ad id sufficere possit the King and no other ought to judge if He alone were able Much like the words of Bracton speaketh Briton where after that he had shewed that the King is the Viceroy of God and that He hath distributed his Charge into sundry portions because He alone is not sufficient to hear all Complaints of His People then he addeth these words in the Person of the King Nous volons que nostre jurisdiction soit sur touts Iurisdictions c. We Will that Our Iurisdiction be above all the Iurisdictions of Our Realm so as in all manner of Felonies Trespasses Contracts and in all other actions Personal or Real We have Power to yield or cause to be yielded such Iudgments as do appertain without other Process wheresoever we know the right Truth as Iudges Neither was this to be taken saith Mr. Lambard to be meant of the Kings Bench where there is only an imaginary presence of His Person but it must necessarily be understood of a Iurisdiction remaining and left in the King 's Royal Body and Brest distinct from that of His Bench and other ordinary Courts because he doth immediately after severally set forth by themselves as well the authority of the Kings Bench as of the other Courts And that this was no new-made Law Mr. Lamâ—…d puts us in mind of a Saxon Law of King Edgars Nemo in lite Regem appellato c. Let no man iâ—… Suit appeal unto the King unless he cannot get Right aâ—… home but if that Right be too Heavy for him then lâ—… him go to the King to have it eased By which iâ—… may evidently appear that even so many years agâ—… there might be Appellation made to the Kings Persae whensoever the Cause should enforce it The very like Law in Effect is to be seen in the Laws of Canutus the Dane sometimes King of thâ—… Realm out of which Law Master Lambard gatheâ—… that the King Himself had a High Court of Iustia wherein it seemeth He sate in Person for the words bâ—… Let him not seek to the King and the same Court â—… the King did judge not only according to meeâ—… Right and Law but also after Equity and gooâ—… Conscience For the Close I shall end with the Suffrage â—… our late Antiquary Sir Henry Spelman in his Glossary he saith Omnis Regni Iustitia solius Regis est c. All Iustice of the Kingdom is only the King 's and Hâ—… alone if He were able should Administer it but thâ—… being impossible He is forced to delegate it to Ministers whom he bounds by the limits of the Laws the positive Laws are only about Generals in particular Cases they are sometimes too strict sometimes too remisâ—… and so oft Wrong instead of Right will be done if wâ—… stand to strict Law also Causes hard and difficult dâ—…ly arise which are comprehended in no Law-books â—… those there is a necessity of running back to the King tâ—… Fountain of Iustice and the Vicegerent of God himself who in the Commonwealth of the Iews took such Cause to His own cognisance and left to Kings not only the Example of such Iurisdiction but the Prerogative also Of Privilege of Parliament WHat need all this ado will some say to
was ready drawn by them Her Majesty was highly displeased herewith as contrary to her former strait Command and charged the Councel to call the Parties before them Sir Thomas Henage sent for them and after Speech with them commanded them to forbear the Parliament and not to go out of their several Lodgings after they were called before the Lord Treasurer the Lord Buckhurst and Sir Thomas Henage Mr. Wentworth was committed by them to the Tower Sir Henry Bromley with Mr. Richard Stevens to whom Sir Henry Bromley had imparted the Matter were sent to the Fleet as also Mr. Welch the other Knight for Worcestershire In the same Parliament Mr. Morrice Attorney of the Court of Wards moved against the hard Courses of the Bishops Ordinaries and other Ecclesiastical Judges in their Courts used towards sundry Learned and godly Ministers and Preachers and spake against Subscription and Oaths and offer'd a Bill to be read against Imprisonment for refusal of Oaths Mr. Dalton opposed the Reading of it as a thing expresly against Her Majesties Command to meddle in Doctor Lewin shewed that Subscription was used even at Geneva At two of the clock the same day the Speaker Mr. Coke afterwards Sir Edward Coke was sent for to the Court where the Queen Her self gave him in Command a Message to the House She told him It being wholly in Her Power to Call to Determine to Assent or Dissent to any thing done in Parliament that the Calling of This was only that the Majesty of God might be more religiously observed by compelling by some sharp Laws such as neglect that Service and that the Safety of Her Majesties Person and the Realm might be provided for It was not meant they should meddle with matters of State or Causes Ecclesiastical for so Her Majesty termed them she wondred that any could be of so high Commandement to attempt they were Her own words a thing so expresly contrary to that which She had commanded wherefore with this She was highly offended And because the words spoken by my Lord Keeper are not now perhaps well remembred or some bâ—… now here that were not then present Her Majesties present Charge and express Command is that no Bill touching the said matter of State or Reformation in Causes Ecclesiastical be exhibited and upon my Allegiance saith Mr. Coke I am charged if any such Bill be exhibited not to read it I have been credibly informed that the Queen sent a Messenger or Serjeant at Arms into the House of Commons and took out Mr. Morrice and committed him to prison within few dayes after I find Mr. Wroth moved in the House that they might be humble Suitors to Her Majesty that She would be pleased to set at liberty those Members of the House that were restrained To this it was answered by the Privy Counsellors that Her Majesty had committed them for Causes best known to Her self and to press Her Highness with this Suit would but hinder them whose Good is sought that the House must not call the Queen to account for what she doth of Her Royal Authority that the Causes for which they are restrained may be High and Dangerous that Her Majesty liketh no such Questions neither doth it become the House to searcâ—… into such matters In the 39 Eliz. The Commons were tolâ—… their Privilege was Yea and No and thaâ—… Her Majesties Pleasure was that if the Speaker perceived any idle heads which would not stick to hazard their own Estates which will meddle with reforming the Church and transforming the Commonweal and do exhibit Bills to that purpose the Speaker should not receive them till they were viewed and considered by those whom it is fitter should consider of such things and can better judge of them and at the end of this Parliament the Queen refused to pass 48 Bills which had passed both Houses In the 28 of Eliz. the Queen said She was sorry the Commons medled with chusing and returning Knights of the Shire for Norfolk a thing impertinent for the House to deal withal and only belonging to the Office and Charge of the Lord Chancellor from whom the Writs issue and are returned 4 Hen. 4. The 10 of October the Chancellor before the King declared the Commons had sent to the King praying him that they might have Advice and Communication with certain Lords about Matters of Business in Parliament for the common good of the Realm which Prayer Our Lord the King graciously granted making Protestation he would not do it of Duty nor of Custom but of his special Grace at this time and therefore Our Lord the King â—…harged the Clark of the Parliament that this Protestation should be entred on Record upon the Parliament-Roll which the King made known to them by the Lord Say and his Secretary how that neither of Due nor of Custom our Lord the King ought to grant any Lords to enter into Communication with them of Matters touching the Parliament but by his special Grace at this time he hath granted their Request in this Particular upon which matter the said Steward and Secretary made Report to the King in Parliament that the said Commons knew well that they could not have any such Lords to commune with them of any Business of Parliament without special Grace and Command of the King Himself It hath heretofore been a question whether it be not an Infringing and Prejudice to the Liberties and Privileges of the House of Commons for them to joyn in Conference with the Lords in Cases of Benevolence or Contribution without a Bill In the 35 Eliz. on Tuesday the first of March Mr. Egerton Attorney general and Doct. Carey came with a Message from the Lords their Lordships desired to put the House in Remembrance of the Speech delivered by the Lord Keeper the first day for Consultation and Provision of Treasure to be had aginst the great and imminent Dangers of the Realm thereupon their Lordships did look to have something from the Houses touching those Causes before this time and yet the Parliament had sate but three dayes for it began Feb. 26. and therefore their Lordships had hitherto omitted to do any thing therein themselves And thereupon their Lordships desired that according to former laudable Usages between both Houses in such like Cases a Committee of Commons may have Conference with a Committee of Lords touching Provision of Treasure against the great Dangers of the Realm which was presently resolved by the whole House and they signified to their Lordships the willing and ready Assent of the whole House At the Meeting the Lords negatively affirm not to assent to less than three Subsidies and do insist for a second Conference M. Francis Bacon yielded to the Subsidy but opposed the joyning with the Lords as contrary to the Privileges of the House of Commons thereupon the House resolved to have no Conference with the Lords but to give their Lordships most humble and dutiful Thanks with all Reverence for
of Government they please The Text not warranting this Right of the People the Foundation of the Defence of the People is quite taken away there being no other Grant or proof of it pretended 2. Where it is said that the Israelites desired a King though then under another Form of Government in the next line but one it is confessed they had a King at the time when they desired a King which was God himself and his Vice-roy Samuel and so saith God They have not rejected thee but they have rejected me that I should not reign over them yet in the next Verse God saith As they have forsaken me so do they also unto thee Here is no Shew of any other Form of Government but Monarchy God by the Mediation of Samuel reigned who made his Sons Judges over Israel when one man constitutes Judges we may call him a King or if the Having of Judges do alter the Government then the Government of every Kingdom is altered from Monarchy where Judges are appointed by Kings it is now reckoned one of the Duties of Kings to judge by their Judges only Where it is said He shall not multiply to himself Horses nor Wives nor Riches that he might understand that he had no Power over others who could Decree nothing of himself extra Legem if it had said contra legem Dei it had been true but if it meant extra legem humanam it is false 4. If there had been any Right given to the People it seems it was to the Elders onely for it is said it was the Elders of Israel gathered together petitioned for a King it is not said it was all the People nor that the People did choose the Elders who were the Fathers and Heads of Families authorized by the Judges 5. Where it is said I will set a King over me like as all the Nations about me To set a King is not to choose a King but by some solemn publick Act of Coronation or otherwise to acknowledge their Allegiance to the King chosen It is said thou shalt set him King whom the Lord thy God shall choose The Elders did not desire to choose a King like other Nations but they say now make us a King to judge us like all the Nations III. As for Davids Covenant with the Elders when he was annointed it was not to observe any Laws or Conditions made by the People for ought appears but to keep Gods Laws and serve him and to seek the Good of the People as they were to protect him 6. The Reubenites and Gadites promise their Obedience not according to their Laws or Conditions agreed upon but in these words All that thou cammandest us we will do and whithersoever thou sendst us we will go as we harkened to Moses in all things so will we harken unto thee only the Lord thy God be with thee as he was with Moses Where is there any Condition of any humane Law expressed Though the rebellious Tribes offered Conditions to Rehoboam where can we find that for like Conditions not performed all Israel deposed Samuel I wonder Mr. Milton should say this when within a few Lines after he professeth that Samuel had governed them uprightly IV. Ius Regni is much stumbled at and the Definition of a King which saith His Power is supreme in the Kingdom and he is accountable to none but to God and that he may do what he please and is not bound by Laws it is said if this Definition be good no man is or ever was who may be said to be a Tyrant p. 14. for when he hath violated all divine and humane Laws nevertheless he is a King and guiltless jure Regio To this may be answered That the Definition confesseth he is accountable to God and therefore not guiltless if he violate Divine Laws Humane Laws must not be shuffled in with Divine they are not of the same Authority if humane Laws bind a King it is impossible for him to have Supreme Power amongst men If any man can find us out such a kind of Government wherein the supreme Power can be without being freed from humane Laws they should first teach us that but if all sorts of popular Government that can be invented cannot be one Minute without an Arbitrary Power freed from all humane Laws what reason can be given why a Royal Government should not have the like Freedom if it be Tyranny for one man to govern arbitrarily why should it not be far greater Tyranny for a multitude of men to govern without being accountable or bound by Laws It would be further enquired how it is possible for any Government at all to be in the World without an arbitrary Power it is not Power except it be arbitary a legislative Power cannot be without being absolved from humane Laws it cannot be shewed how a King can have any Power at all but an arbitrary Power We are taught that Power was therefore given to a King by the People that he might see by the Authority to him committed that nothing be done against Law and that he keep our Laws and not impose upon us his own therefore there is no Royal Power but in the Courts of the Kingdom and by them pag. 155. And again it is said the King cannot Imprison Fine or Punish any man except he be first cited into some Court where not the King but the usual Iudges give Sentence pag. 168. and before we are told not the King but the Authority of Parliament doth set up and take away all Courts pag. 167. Lo here we have Mr. Milton's perfect Definition of a King He is one to whom the People gave Power to see that nothing be done against Law and that he keep our Laws and not impose his own Whereas all other men have the Faculty of Seeing by Nature the King only hath it by the Gift of the People other Power he hath none he may see the Judges keep the Laws if they will he cannot compell them for he may not Imprison Fine nor punish any man the Courts of Justice may and they are set up and put down by the Parliament yet in this very Definition of a King we may spy an arbitrary Power in the King for he may wink if he will and no other Power doth this Description of a King give but only a Power to see whereas it is said Aristotle doth mention an absolute Kingdom for no other Cause but to shew how absurd unjust and most tyrannical it is There is no such thing said by Aristotle but the contrary where he saith that 〈◊〉 King according to Law makes no sort of Government and after he had reckoned up five sorts of Kings he concludes that there were in a manner but two sorts the Lacedemonian King and the Absolute King whereof the first was but as General in an Army and therefore no King at all and then fixes and rests upon the Absolute King who ruleth according to
by her secret voice to have made him believe that Samuel in another room had answered him for it appears that Saul was not in the place where she made a shew of raising Samuel for when she cryed out with a loud voice Saul comforted her and bid her not be afraid and asked her what she saw and what form is he of which questions need not have been if Saul had been in the Chamber with the Witch King Iames confesseth that Saul was in another chamber at the conjuration and it is likely the woman had told Saul she had seen some fearful sight which made him ask her what she saw and her answer was she saw gods ascending out of the Earth and it may be understood that Angels waited upon Samuel who was raised by God and not any Puppets or Devils that she conjured up otherwise the words may be Translated as Deodat in the Margent of his Italian Bible hath it She saw a Man of Majesty or Divine Authority ascend un ' huomo di Majesta è d' Authorita Divina which well answers the question of what form is he of which is in the singular not in the plural number We find it said in Esay 29. 4. Thou shalt be brought down and shalt speak out of the ground and thy speech shall be low out of the dust and thy voice shall be as one that hath a Fimiliar Spirit out of the ground and thy speech shall wisper out of the Earth which argues the voice of Ob was out of the Earth rather than out of the Belly and so the Hebrew Exposition which I cited before affirms Some learned have been of Opinion that a natural reason may be given why in some places certain exhalations out of the earth may give to some a prophetical spirit Add hereunto that some of the Heathen Oracles were said to speak out of the Earth and among those five sorts of Necromancy mentioned by Doctor Reynolds in his 76 Lecture of his censure of the Apocryphals not any of them is said to have any Spirit in their Belly The Romanists who are all great affirmers of the power of Witches agree that the soul of Samuel was sent by God to the Woman of Endor to this not onely Delrio but Bellarmine before him agrees That true Samuel did appear as sent by God as he sent Elias to Ochosias King of Israel who being sick sent to consult with Beelzebub the God of Echron may appear for that Samuel is so true and certain in his prediction to Saul which no Witch no Devil could ever have told for though the Wisdome and Experience of the Devil do enable him to conjecture probably of many events yet positively to say To morrow thou and thy Sons shall die is more than naturally the Devil could know Mr. Perkins confesseth the Devil could not foretel the exact time of Sauls death and therefore he answers that God revealed to the Devil as his Instrument Sauls overthrow by which means and no other the Devil was enabled to foretel the death of Saul Here Mr. Perkins proves not that Satan was appointed by God to work Sauls overthrow or that it was made known to him when it should be done As the rest of the Speech of Samuel is true so these words of his Why hast thou disquieted me to bring me up may be also true which cannot be if it be spoken by the Devil or why should the Devil tell truths in all other things else and lie onely in this I know no reason Doctor Reynolds presseth these words against the appearing of Samuel thus If Samuel had said them he had lied but Samuel could not lie for Samuel could not be disquieted nor raised by Saul It is true God onely raised Samuel effectually but occasionally Saul might raise him But saith Doctor Reynolds though Saul was the occasion yet Samuel could not truly say that Saul had disquieted him for blessed are they that die in the Lord saith the Spirit because they rest from their labours and Samuel was no more to be disquieted if he were sent by God than Moses and Elias were when they appeared to shew the Glory of Christ Mat. 17. Answer It did not displease Samuel to be employed in the Office of an Angel but he obeyed God gladly yet since the occasion of his appearing displeased God it might for that cause displease also Samuel Besides we need not understand the disquieting of Samuels mind but of his body by not suffering it to rest in peace after death according to the common and usual condition of Mankind this sense the Original will well bear Again it cannot be believed that the Devil would ever have preached so Divine and excellent a Sermon to Saul which was able to have converted and brought him to Repentance this was not the way for the devil to bring either Saul or the woman to renounce God Lastly the Text doth not say that the woman raised Samuel yet it calls him Samuel and saith that Saul perceived or understood that it was Samuel Mr. Perkins many others esteem Balaam to have been a Witch or Conjurer but I find no such thing in the Text when he was required to curse the people of Israel his answer was I will bring you word as the Lord shall speak unto me Numb 22. 8. and God came unto Balaam in v. 9. and in v. 13. Balaam saith The Lord refuseth to give me leave and when Balak sent a second time his answer was If Balak would give me his house full of silver and Gold I cannot go beyond the word of the Lord my God to do less or more In v. 20. God cometh to Balaam and said If the men come to call thee go but yet the words which I shall say unto thee that shalt thou do And when Balaam came before Balak he said v. 38. Lo I am come unto thee have I now any power at all to say any thing the word which God putteth into my mouth that shall I speak and in the 23. Chap. v. 18. Balaam saith How shall I curse whom God hath not cursed and in v. 12. he saith Must I not take heed to speak that which the Lord hath put into my mouth These places laid together prove Balaam to have been a true Prophet of the Lord and he prophesied nothing contrary to the Lords command therefore St. Peter calls him a Prophet Nevertheless it is true that Balaam sinned notoriously though not by being a Witch or Conjurer or a false Prophet his faults were that when God had told him he should not go to Balak yet in his covetous heart he desired to go being tempted with the rewards of Divination and promise of promotion so that upon a second Message from Balak he stayed the Messengers to see if God would suffer him to go wherefore the Lord in his anger sent Balaam Also when God had told Balaam that he would bless Israel yet Balaam did strive to tempt