of the Upper House to be Suppliants with them of the Lower House unto her Majesty for entailing the Succession of the Crown Whereof a Bill 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 Stephens 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 Subscriptions 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 be 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 days 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 search into such matters In the 39 Eliz. The Commons were told their Privilege was Yea and No and that 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 charged the Clerk 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. Cary 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 against 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 days 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 their favourable and courteous Offer of Conference and to signifie that the Commons cannot in those Cases of Benevolence or Contribution joyn in Conference with their Lordships without Prejudice to the Liberties and Privileges of the House and to request their Lordships to hold the Members of this House excused in their Not assenting to their Lordships said Motion for Conference for that so to have Assented without a Bill had been contrary to the Liberties and Privileges of this House and also contrary to the former Precedents of the same House in like cases had This Answer delivered to the Lords by the Chancellor of the Exchequer their Lordships said they well hoped to have had a Conference according to their former Request and desir'd to see those Precedents by which the Commons seem to refuse the said Conference But in Conclusion it was agreed unto upon the Motion of Sir Walter Raleigh who moved that without naming a Subsidy it might be propounded in general words to have a Conference touching the Dangers of the Realm and the necessary Supply of Treasure to be provided speedily for the same according to the Proportion of the Necessity In the 43 Eliz. Serjeant Heal said in Parliament He marvail'd the House stood either at the granting of a Subsidy or time of Payment when all we have is her Majesties and She may lawfully at her Pleasure take it from us and that she had as much Right to all our Lands and Goods as to any Revenue of the Crown and he said he could prove it by Precedents in the time of H. 3. K. John and K. Stephen The ground upon w ch this Serjeant at Law went may be thought the same Sir Ed. Coke delivers in his Institutes where he saith the first Kings of this Realm had all the Lands of England in Demesne and the great Manors and Royalties they reserved to themselves and of the remnant for the defence of the Kingdom enfeoffed the Barons from whence it appears that no man holds any Lands but under a condition to defend the Realm and upon the self-same Ground also the Kings Prerogative is raised as being a Preheminence in cases of Necessity above and before the Law of Property or Inheritance Certain it is before the Commons were ever chosen to come to Parliament Taxes or Subsidies were raised and paid without their gift The great and long continued Subsidy of Dane-gelt was without any Gift of the Commons or of any Parliament at all that can be proved In the 8 H. 3. a Subsidy of 2 Marks in Silver upon every Knights see was granted to the King by the Nobles without any Commons At the passing of a Bill of Subsidies the words of the King are the King thanks his loyal Subjects accepts their good Will and also will have it so le Roy remercie ses loyaux Subjects accept leur benevolence ausi ainsi le veult which last words of ainsi le veult the King wills it to be so are the only words that makes the Act of Subsidy a Law to bind every man to the Payment of it In the 39 Eliz. The Commons by their Speaker complaining of Monopolies the Queen spake in private to the L. Keeper who then made answer touching Monopolies that Her Majesty hoped her dutiful and loving Subjects would not take away her Prerogative which is the chiefest Flower in her Garland and the principal and head Pearl in Her Crown and Diadem but that they will rather leave that to Her Disposition The second Point is that the Free-holders or Counties do not nor cannot give Privilege to the Commons in Parliament They that are under the Law cannot protect against it they have no such Privilege themselves as to be free from Arrests and Actions for if they had then it had been no Privilege but it would be the Common-Law And what they have not they cannot give Nemo dat quod non habet neither do the Free-holders pretend to give any such Privilege either at their Election or by any subsequent Act there is no mention of any such thing in the Return of the Writ nor in the Indentures between the Sheriff and the Free-holders The third Point remains That Privilege of Parliament is granted by the King It is a known Rule that which gives the Form gives the Consequences of the Form the King by his Writ gives the very Essence and Form to the Parliament therefore Privileges which are but Consequences of the Form must necessarily flow from Kings All other Privileges and Protections are the Acts of the King and by the Kings Writ Sir Edw. Coke saith that the Protection of mens Persons Servants and Goods is done by a Writ of Grace from the King At the presentment of the Speaker of the House of Commons to the King upon the first day of Parliament The Speaker in the Name and Behoof of the Commons humbly craveth that his Majesty would be graciously pleased to grant them their accustomed Liberties and Privileges which Petition of theirs is a fair Recognition of the Primitive Grace and Favour of Kings in be stowing of Privilege and it is a shrewd Argument against any other Title For our Ancestors were not so ceremonious nor so full of Complement as to beg that by Grace which they might claim by Right And the Renewing of this Petition every Parliament argues the Grant to be but temporary during only the present Parliament and that they have been accustomed when they have been accustomably sued or petitioned for I will close this Point with the Judgment of King James who in his Declaration touching his Proceedings in Parliament 1621. resolves that most Privileges of Parliament grew from Precedents which rather shew a Toleration than an Inheritance therefore he could not allow of the Style calling it their ancient and undoubted Right and Inheritance but could rather have wished that they had said their Privileges were derived from the Grace and Permission of his Ancestors and Him and thereupon he concludes He cannot with Patience endure his Subjects to use such Antimonarchical words concerning their Liberties except they had subjoyned that they were granted unto them by the Grace and Favours of his Predecessors yet he promiseth to be careful of whatsoever Privileges they enjoy by long Custom and uncontrolled and lawful Precedents OBSERVATIONS UPON Aristotle's Politiques TOUCHING FORMS of GOVERNMENT Together with DIRECTIONS FOR Obedience to Governours in Dangerous and Doubtful Times Licensed and Entred according to Order for Richard Royston A Book Entituled Observations upon Aristotle's Politiques touching Forms of Government Together with Directions for Obedience to Governours in Dangerous and Doubtful Times THE PREFACE IN every Alteration of Government there is something new which none can either Divine or Judge of till time hath tried it we read of many several ways
not then divided into Shires On the contrary there be of our Historians who do affirm that Henry the First caused the Commons first to be Assembled by Knights and Burgesses of their own Appointment for before his Time only certain of the Nobility and Prelates of the Realm were called to Consultation about the most Important Affairs of State If this Assertion be true it seems a meer matter of Grace of this King and proves not any Natural Right of the People Originally to be admitted to chuse their Knights and Burgesses of Parliament though it had been more for the Honour of Parliaments if a King whose Title to the Crown had been better had been Author of the Form of it because he made use of it for his unjust Ends. For thereby he secured himself against his Competitor and Elder Brother by taking the Oaths of the Nobility in Parliament and getting the Crown to be setled upon his Children And as the King made use of the People so they by Colour of Parliament served their own turns for after the Establishment of Parliaments by strong hand and by the Sword they drew from him the Great Charter which he granted the rather to flatter the Nobility and People as Sir Walter Raleigh in his Dialogue of Parliaments doth affirm in these words The great Charter was not Originally granted Legally and Freely for Henry the First did but Vsurp the Kingdom and therefore the better to assure himself against Robert his Elder Brother he flattered the Nobility and People with their Charters yea King John that Confirmed them had the like respect for Arthur Duke of Britain was the undoubted Heir of the Crown upon whom King John Vsurped and so to conclude these Charters had their Original from Kings de facto but not de jure the Great Charter had first an obscure Birth by Vsurpation and was secondly fostered and shewed to the World by Rebellion 15. A third consideration must be that in the former Parliaments instituted and continued since King Henry the First 's time is not to be found the Usage of any natural Liberty of the People for all those Liberties that are claimed in Parliament are the Liberties of Grace from the King and not the Liberties of Nature to the People for if the Liberty were natural it would give Power to the Multitude to assemble themselves When and Where they please to bestow Soveraignty and by Pactions to limit and direct the Exercise of it Whereas the Liberties of Favour and Grace which are claimed in Parliaments are restrained both for Time Place Persons and other Circumstances to the Sole Pleasure of the King The People cannot assemble themselves but the King by his Writs calls them to what place he pleases and then again scatters them with his Breath at an instant without any other Cause shewed than his Will Neither is the whole summoned but only so many as the King's Writs appoint The prudent King Edward the First summoned always those Barons of ancient Families that were most wise to his Parliament but omitted their Sons after their Death if they were not answerable to their Parents in Understanding Nor have the whole People Voices in the Election of Knights of the Shire or Burgesses but only Freeholders in the Counties and Freemen in the Cities and Burroughs yet in the City of Westminster all the House-holders though they be neither Freemen nor Free-holders have Voices in their Election of Burgesses Also during the time of Parliament those Privileges of the House of Commons of freedom of Speech power to punish their own Members to examine the Proceedings and Demeanour of Courts of Justice and Officers to have access to the King's Person and the like are not due by a-any Natural Right but are derived from the Bounty or Indulgence of the King as appears by a solemn Recognition of the House for at the opening of the Parliament when the Speaker is presented to the King he in the behalf and name of the whole House of Commons humbly craves of His Majesty That He would be pleased to grant them their Accustomed Liberties of freedom of Speech of access to his Person and the rest These Privileges are granted with a Condition implyed That they keep themselves within the Bounds and Limits of Loyalty and Obedience for else why do the House of Commons inflict Punishment themselves upon their own Members for transgressing in some of these points and the King as Head hath many times punished the Members for the like Offences The Power which the King giveth in all his Courts to his Judges or others to punish doth not exclude Him from doing the like by way of Prevention Concurrence or Evocation even in the same point which he hath given in charge by a delegated Power for they who give Authority by Commission do always retain more than they grant Neither of the two Houses claim an Infallibility of not Erring no more than a General Council can It is not impossible but that the greatest may be in Fault or at least interested or engaged in the Delinquency of one particular Member In such Cases it is most proper for the Head to correct and not to expect the Consent of the Members or for the Parties peccant to be their own Judges Nor is it needful to confine the King in such Cases within the Circle of any one Court of Justice who is Supream Judg in all Courts And in rare and new Cases rare and new Remedies must be sought out for it is a Rule of the Common Law In novo Casu novum Remedium est apponendum and the Statute of Westminst 2. cap. 24. giveth Power even to the Clarks of the Chancery to make New Forms of Writs in New Cases lest any Man that came to the King's Court of Chancery for help should be sent away without Remedy A President cannot be found in every Case and of things that happen seldom and are not common there cannot be a Common Custom Though Crimes Exorbitant do pose the King and Council in finding a President for a Condigne Punishment yet they must not therefore pass unpunished I have not heard that the People by whose Voices the Knights and Burgesses are chosen did ever call to an account those whom they had Elected they neither give them Instructions or Directions what to say or what to do in Parliament therefore they cannot punish them when they come home for doing amiss If the People had any such Power over their Burgesses then we might call it The Natural Liberty of the People with a mischief But they are so far from punishing that they may be punished themselves for intermedling with Parliamentary Business they must only chuse and trust those whom they chuse to do what they list and that is as much liberty as many of us deserve for our irregular Elections of Burgesses 15 A fourth point to be consider'd is That in Parliament all Statutes or Laws are made properly by
been likewise thereupon allowed and ratified also by Precedents in the Court of Chancery In the 39 of Eliz. Sir Edw. Hobby and Mr. Brograve Attorney of the Dutchy were sent by the House to the Lord Keeper in the name of the whole House to require his Lordship to revoke two Writs of Subpoena's which were served upon M. Th. Knevit a Member of the House since the Beginning of Parliament The Lord Keeper demanded of them whether they were appointed by any advised Consideration of the House to deliver this Message unto him with the word Required in such manner as they had done or no they answered his Lordship yea his Lordship then said as he thought reverently and honourably of the House and of their Liberties and Privileges of the same so to revoke the said Subpoena's in that sort was to restrain Her Majesty in Her greatest Power which is Justice in the Place wherein he serveth under Her and therefore he concluded As they had required him to revoke his Writ so he did require to deliberate Upon the 22 of February being Wednesday 18 Eliz. Report was made by Mr. Attorney of the Dutchy upon the Committee for the delivering of one Mr. Hall's man that the Committee found no Precedent for setting at large by the Mace any Person in Arrest but only by Writ and that by divers Precedents of Records perused by the said Committee it appeareth that every Knight Citizen or Burgess which doth require Privilege hath used in that case to take a Corporal Oath before the Lord Chancellor or Lord Keeper that the party for whom such Writ is prayed Came up with him and was his Servant at the time of the Arrest made Thereupon M. Hall was moved by the House to repair to the Lord Keeper and make Oath and then take a Warrant for a Writ of Privilege for his Servant It is accounted by some to be a Privilege of Parliament to have power to Examine Misdemeanours of Courts of Justice and Officers of State yet there is not the meanest Subject but hath liberty upon just cause to question the misdemeanour of any Court or Officer if he suffer by them there is no Law against him for so doing so that this cannot properly be called a Privilege because it is not against any publick Law It hath been esteemed a great Favour of Princes to permit such Examinations For when the Lords were displeased with the Greatness of Pierce Gaveston it is said that in the next Parliament the whole Assembly obtain of the King to draw Articles of their Grievances which they did Two of which Articles were First that all Strangers should be banished the Court and Kingdom of which Gaveston was one Secondly that the business of the State should be treated of by the Councel of the Clergy and Nobles In the Reign of King Henry the sixth one Mortimer an Instrument of the Duke of York by promising the Kentish men a Reformation and freedom from Taxations wrought with the people that they drew to a Head and made this Mortimer otherwise Jack Cade their Leader who styled himself Captain Mend-all He presents to the Parliament the Complaints of the Commons and he petitions that the Duke of York and some other Lords might be received by the King into favour by the undue Practices of Suffolk and his Complices commanded from his Presence and that all their Opposites might be banished the Court and put from their Offices and that there might be a general amotion of corrupt Officers These Petitions are sent from the Lower House to the Vpper and from thence committed to the Lords of the Kings Privy Councel who having examined the particulars explode them as frivolous and the Authors of them to be presumptuous Rebels Concerning Liberty or freedom of Speech I find that at a Parliament at Black Friars in the 14 of Henry the Eighth Sir Tho. More being chosen Speaker of the House of Commons He first disabled himself and then petitioned the King that if in Communication and Reasoning any man in the Commons House should speak more largely than of Duty they ought to do that all such Offences should be pardoned and to be entred of Record which was granted It is observable in this Petition that Liberty or Freedom of Speech is not a Power for men to speak what they will or please in Parliament but a Privilege not to be punished but pardoned for the Offence of speaking more largely than in Duty ought to be which in an equitable Construction must be understood of rash unadvised ignorant or negligent Escapes and Slips in Speech and not for wilful malicious Offences in that kind And then the Pardon of the King was desired to be upon Record that it might be pleaded in Bar to all Actions And it seemeth that Ric. Strood and his Complices were not thought sufficiently protected for their free Speech in Parliament unless their Pardon were confirmed by the King in Parliament for there is a printed Statute to that Purpose in Hen. Eighth's time Touching the freedom of Speech the Commons were warned in Qu. Eliz. days not to meddle with the Queens Person the State or Church-government In her time the Discipline of the Church was so strict that the Litany was read every morning in the House of Commons during the Parliament and when the Commons first ordered to have a Fast in the Temple upon a Sunday the Queen hindred it 21 Jan. Saturday 23 Eliz. the Case is thus reported Mr. Peter Wentworth moveth for a Publick set Fast and for a Preaching every morning at 7 of the clock before the House sate the House was divided about the Fast 115 were for it and an 100 against it it was ordered that as many of the House as conveniently could should on Sunday fortnight after Assemble and meet together in the Temple Church there to hear Preaching and to joyn together in Prayer with Humiliation and Fasting for the Assistance of God's Spirit in all their Consultations during this Parliament and for the Preservation of the Queens Majesty and Her Realms And the Preachers to be appointed by the Privy Councel that were of the House that they may be Discreet not medling with Innovation or Vnquietness This Order was followed by a Message from Her Majesty to the House declared by Mr. Vice-chamberlain that Her Highness had a great Admiration of the rashness of this House in committing such an apparent Contempt of her express Command as to put in execution such an Innovation without Her privity or pleasure first known Thereupon Mr. Vice-chamberlain moved the House to make humble submission to Her Majesty acknowledging the said Offence and Contempt craving a Remission of the same with a full purpose to forbear the Committing of the like hereafter and by the Consent of the whole House Mr. Vice-Chamberlain carried their Submission to her Majesty 35 Eliz. Mr. Peter Wentworth and Sir Henry Bromley delivered a Petition to the Lord Keeper desiring the Lords