there be a body of Laws in use amongst them partly made up of some old Gothish Laws and Constitutions and partly of some parts of the Law imperial yet for the explanation of the Laws in force if any doubt arise about them or for supplying such defects which in the best colllection of the Laws may occur sometimes the Magistrates and Judges are to have recourse to the King alone and to conform to such instructions as he gives them in it And this is it which was ordained by Alfonso the tenth qui etiam magistratus ac judices Principem adire jussit quoties patrio jure nihil de proposita causa scriptum esset p Bodin de Rep. lib. 1. cap. 8. as Bodinus hath it 'T is true that for the raising of supplies of mony and the imposing of extraordinary taxes upon the subject the Kings of Spain must be beholden to the three Estates without whose consent it cannot legally be done But then it is as true withall that there are customary tributes called Servitia q Id. ibid. p. 90. which the King raiseth of his own authority without such consent And their consenting to the extraordinary is a thing of course the Spanish Nation being so well affected naturally to the power and greatness of their Kings whom they desire to make considerable if not formidable in the opinion of their Neighbours that the Kings seldome fail of monies if the Subjects have it Finally that we may perceive how absolute this Monarch is over all the Courts or Curias of his whole dominions take this along according as it stands verbatim Å¿ Spanish hist 67. by Tyrannell in the Spanish Historie The King of Spain as he is a potent Prince and Lord of many Countries so hath he many Counsels for the managing of their affairs distinctly and apart without any confusion every Counsel treating only of those matters which concern their Jurisdiction and charges with which Counsels and with the Presidents thereof being men of chief note the King doth usually confer touching matters belonging to the good Government preservation and increase of his Estates and having heard every mans opinion he commands that to be executed which he holds most fit and convenient .. 6. Next let us take a view of Scotland and we shall find it there no otherwise I mean in reference to the point which is now in question than in France or Spain For besides that Bodinus makes it one of those absolute Monarchies ubi Reges sine controversia omnia jura Majestatis habent per sese t Bodin de Repub. l. 2. c. 7. in which the Kings have clearly all the rights of Majesty inherent in their own persons only it is declared in the Records of that very Kingdome that the King is directus totius dominus u Camden n Britan. deicript â— the Soveraign Lord of the whole State and hath all authority and jurisdiction over all estates and degrees aswel Ecclesiastical as lay or temporal And as for those Estates and Degrees convened in Parliament we may conjecture at their power by that which is delivered of the form or order which they held it in which is briefly this x Form of holding the Parl. in Scotl. Assoon as the Kings writ is issued out for summoning the Estates to meet in Parliament he maketh choyse of eight of the Spiritual Lords such on whose wisdom and integrity he may most rely which eight do choose as many of the Temporal Lords and they together nominate eight more out of the Commissioners for the Counties and as many out of the Commissioners for the Towns or Burroughs These 32 thus chosen are called Domini pro Articulis Lords of the Articles and they together with the Chancellor Treasurer Keeper of the Privy Seal and Principal Secretaries of state and the Master of the Rolls whom they call Clerk Register do admit or reject every bill but not before they have been shewn unto the King if they pass there they are presented afterwards to the whole Assembly where being thorowly weighed and examined put unto the votes of the house such of them as are carried by the major part of the Voices for the Lords and Commons sit together in the same house there are on the last day of the Sessions exhibited to the King who by touching them with his Scepter pronounceth that he either ratifieth and approveth them or that he doth disable them and make them void But if the business be disliked by the Lords of the Articles it proceeds no further and never comes unto the consideration of the Parliament or if the King dislikes of any thing in it when they shew it to him it either is razed out or mended before it be presented to the publick view King James of blessed memory who very well understood his own power and the forms of that Parliament describes it much to the same purpose in his Speech made at Whitehall March 31. Anno 1607. About twenty daies saith he before the Parliament Proclamation is made throughout the Kingdom to deliver unto the Kings Clerk of Register all Bils to be exhibited that Session before a certain day Then are they brought unto the King and perused and considered by him and only such as he alloweth of are put into the Chancellors hands to be propounded to the Parliament and none others And if any other man in Parliament speak of any other matter than is in this sort first allowed by the King the Chancellor telleth him that the King hath allowed of no such Bill Besides when they have passed them for Laws they are presented to the King and he with his Scepter put into his hands by the Chancellor must say I ratifie and approve all things done in this present Parliament And if there be any thing that he disliketh it is razed out before So the eldest Parliament-man as he said himself at that time in Scotland This was the form of holding Parliaments in Scotland which whosoever doth consider with a serious eye may perceive most plainly that it is wholly in the Kings power to frame the Parliament to his own will or at the least to hinder it from doing any thing to the prejudice of his Royal Crown and Dignity in that the nominating of the Lords of the Articles did in a manner totally depend on him Which being observed by the Scots they took the opportunity when they were in Arms to pass an Act during the Presidency of the Lord Burley Anno 1640. y Acts of Parliaments 16 Carol. for the abolition of this Order and for reducing of that Parliament to the forms of England as being thought more advantagious to their purposes than the former was So that the violent disloyalty of the Scotish Subjects their Insurrections against their Kings and murdering them sometimes when their heels were up which makes that Nation so ill spoke of in the Stories of Christendom are not to
Halicarnass lib. 6. But a new war approaching a new promise made and that neglected also when the war was ended the people seeing no relief was like to come from the hands of the Senators Longè aliâ quam primò instituerant viâ grassabantur began to lend an ear to some desperate Counsels and fell to entertain such hopes as formerly they durst never dream of For drawing themselves into a body under the conduct of Sicinius a troublesome and seditious person they forsook the City and incamped upon an hill adjoyning resolving as they gave it out to seek new dwellings and that there was no place in Italy but would afford them air and water 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and ground in which they might be buried There is no question to be made but if the Senate had beheld the action with neglect and scorn as Appius d Dionys Halicarn l. 6. and C. Martius e Plutarch in Coriolano did advise they should the people out of love to their wives and children would have returned to their houses or if they had presented them in time with any tolerable mitigations of the former laws they might have taken off their edge and appeased the tumult But giving way unto their furie till it grew too high and shewing in their resolutions far more fear then courage the people got the better of them and thought they stood upon the higher ground as indeed they did Which pride and high conceit of theirs was the more increased by the authoritie and perswasions of one Junius Brutus who came not to them till they were too far ingaged to go off with safetie A man as the Historian noteth of a turbulent and seditious spirit more apt to kindle a rebellion then to quench the flame but otherwise 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 f Dionys Halicarnass l. 6. of very great fore-sight into business and one that had a ready tongue upon all occasions To him they gave the managing of the whole design and he improved the trust to their best advange Insomuch that when Menenius Agrippa was imployed unto them to demand their grievances and had brought the point to such an issue that there was nothing wanting to make up the breach but some securitie to be given on the part of the Senate that the people should be no more deluded with such emptie promises this Junius Brutus took upon him to propose the terms and no securitie would content him as the plot was laid but that some popular Magistrates should be forthwith made for the protection of the people Concedite nobis inquit Magistratus aliquot quotannis è nostro corpore creare c. g Id. ibid. Let us saith he have certain Magistrates to be chosen yearly out of our own body on whom we shall not ask you to confer more power then that they have authoritie to assist the Commons when they are either injured or oppressed by violence and to take order that they be not robbed of their rights and liberties Other securitie then this we will trust to none Which when the people heard for few of them were made acquainted with the plot before 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 they made many a loud and joyful shout praising the man unto the skies and absolutely resolving to admit of no other terms then what their Spokesman had proposed 2 But yet the business was not done It must first pass the approbation of the Senate and there it met with very grreat heats and opposition before it passed and passed not at the last but upon conditions The people had a faction in the very Senate and a strong one too who laboured what they could to obtain the point Of these Valerius was the chief whose Brother had not long before expulsed the Kings and from his courting of the people was surnamed Poplicola a family that had been always favourable to the popular partie and more endevoured their content then the honor or profit of the publick In which regard Appius charged him to his face 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 h Id. ibid. that the whole generation of them were so partial in behalf of the people that they had almost destroyed the Common-wealth Others and those of greater courage and Nobility scorning that such an innovation should be made in the publick Government opposed it with all might and main not sparing to assure the Senate that in the setting up of this new authoritie they would in fine put down their own And of these Appius and Caius Martius who after had the name of Coriolanus were the leading men who standing upon point of honor advised the Senate that having shaken off the tyrannie of their Kings they should not prostitute themselves to the lusts of the people i Id. ibid. that they should stand on their own ground and not do any thing unworthy of their place and dignitie that these were but the beginnings of sedition and that the purpose of the Commons was to abolish law and set up a paritie h Plutarch in M. Coriolano Appius fore-telling as inspired with the spirit of Prophesie 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 how great a Seminarie of mischiefs it would prove to the Common-wealth and calling all the Gods to witness that he had done his best to prevent the same But when they found it like to pass and that the major part of the house did incline that way it was advised that they should hold the people to the terms by themselves proposed and give their Officers no more power but to relieve the people from unjust oppression and that they should only interpose if any thing were passed in Senate to the peoples prejudice but propose nothing of themselves nor appear in any thing untill the Senate had before considered of it that the election should be made in centuriatis Comitiis only where the Patricii and their followers bare the greatest stroke and finally that in their applications and addresses to the Lords of the Senate in any business whatsoever they should all agree upon the point so that if any one dissented the agreement and consent of all the rest should pass for nothing For seeing that Tribunes must be granted they hoped that by their disagreement the honor of the State might be kept upright and that the Common-wealth was not quite past help 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l Dionys Halicarn l. 10. as long as any discord or dissension might be sown amongst them Which last condition for all the rest were broken assoon as they were agreed on was most religiously observed till the very last as we read in Plutarch who gives it for a rule amongst them that if one Tribune did oppose 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 r m Plutareh in Caio Tiber. the agreement and command of all the rest did effect just nothing Things being brought unto this temper and all points agreed on the people went to the election and chose five new Officers according
to re-invest the Tribunes with that height of power of which they had been justly dispossessed by Sylla Upon which grounds it had been formerly averred by the Consuls and the rest of the Senate that the Tribunes were the cause of those distractions 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 are the Authors words which did so miserably afflict the Common-wealth * Dionys Halicarn l. 10. But this to say the truth is so clear a point that it needs no proof I only shall observe and so pass it by how justly the Nobility and Senate were punished by their own example and for how little time they enjoyed that Soveraignty which they had wrested from their Kings From the expulsion of the Kings to the creating of the Tribunes were but sixteen years and from the death of Tarquin to the reign of Brutus and Sicinius but one year no more and in that little span of time the people profited so well in the school of rebellion that they did not only beat the Senate at their own weapon of disloialty but choaked them with their own objection For when it was objected against the Tribunes that their authority was gotten and maintained by seditious courses the Tribunes handsomely replyed that that objection might aswell be made against the authority of the Consuls which had been introduced and established by no other means m Id. lib. 10. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 then the rebellion of the Nobles or Patricians against their Kings A very shrewd retortion if you mark it well and fit to be considered of in these present times 6 If any ask to what end all these stirs were raised and these seditions set on foot he may please to know that there was an intent from the first creating of the Tribunes to change the government of the State and to put the Supreme Power of all into the hands of the people that is to say to bring it under the command of a few factious persons on whom the body of the people had devolved their power And this is positively affirmed by Florus where having told us that the Tribunes were the cause of all the tumults and seditions which had been raised within the City he adds that being at first ordained specie quidem tuendae plebis Florus hist Rom. l. 3. under pretence of being Protectors of the Commons and taking care for the preserving of their rights and liberties they sought in very deed to usurp the Soveraignty re autem dominationem sibi acquirere and to get the Supreme power into their own hands To this end as the Tribunes strived to oblige the people by causing new Lawes to be made in their behalf and for the increase of their authority so did the people readily obey the Tribunes and gathered into an head upon all occasions aswell for the protection of their persons as the confirmation of their power When Martius had declamed against them in the open Senate for their factious and seditious courses the Tribunes presently made complaint to the people of it calling upon them to assist them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and to save their Tribunes n Plutarch in Coriolano at which the people were so madded and ran on so furiously that they were like to have fallen desperately upon all the Senate And Appius found unto his cost that in offering to attach a Tribune though he well deserved it concio omnis coorta pro Tribuno in Consulem o Livie l. 2. the whole assembly rose against him as one man to defend their Tribune the rascall multitude gathering together out of all the City to do him right against the Consul And Plutarch tels us in the life of Tiberius Gracchus that the people were so sottishly affected to him that many of the needy and seditious rout waited upon him all night long up and down the Town p Plutarch in Tiber. C. Gracchis some of them buying tents and lying about his house to watch it as a guard to his person And on the other side the houses of the Tribunes were kept continually open aswell nights as daies that they might serve as a Protection or a Common Sanctuary for men of all sorts to repair unto whom either debt or misdemeanor or some greater matter had made obnoxious to the Sergeants or other Ministers of justice to the great prejudice of the honest and well meaning Subjects in their suits and businesses And besides this the Tribunes never failed to flatter and bewitch the people by some piece of courtship or by preferring some new Lawes as before was said for their ease and benefit They had no sooner way then that to advance their power or to obtain unto that absoluteness of command and empire which they projected to themselves For doubtlesse that of the Historian is exactly true 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 q Dionys Halicarn lib. 6. that he that means to be a Tyrant must be first a flatterer there being no readier way to advance a Tyranny then by being popular a profest servant of that people whom he would command But this confederacy between the Tribunes and the people and the mutual ties that were between them I cannot better lay before you then in Plutarchs words r Plutarch in Agis Cleomen who speaking of the Gracchi doth inform us thus That having received many favours from the peoples hands they were ashamed to be indebted to them and therefore earnestly endevoured to requiâ—e their courtesies by making new Decrees and Lawes which they propounded and obtained for the peoples profit and on the other side the people for their parts were not wanting to admire and honour them the more by how much they perceived them studious of their good and benefit So that with like strife on either side the one to gratifie and oblige the other their interesses were so mingled and their intentions so concorporated that they must needs hold on as they had begun and either stand or fall together By means whereof the people in conclusion became lords of all the majesty of the State and the power of judicature being absolutely vested in them which since they could not manage but by their Atturneys nor otherwise execute and discharge then by their Proxies who but the Tribunes their own creatures must be trusted with it And this is that which Tacitus observes to be the issue of those quarrels which were kept on foot between the Nobility and the Commons modo turbulenti Tribuni s Tacit. hist lib. 2. modo Consules praevalidi sometimes some factious Tribunes carried it away and then again the Consuls had the better and prevailed in power according as they did comply with the peoples humours till Marius and Sylla first and Julius Caesar afterwards by their example by force of Arms subdued both parties and introduced an absolute Government 7 Now for the steps by which the people did asâ—end to this height of power they were not raised at once but
it and therefore sate in Parliament in no other capacity then as spirituall persons meerly who by their extraordinary knowledge in the word of God and in such other parts of learning as the world then knew were thought best able to direct and advise their Princes in points of judgement In which capacity and no other the Priors of the Cathedrall Churches of Canterbury Ely Winchester Coventry Bath Worcester Norwich and Durham the Deans of Exceter York Wells Salisbury and Lincoln the Officiall of the Archbishop of Canterbury and the Dean of the Arches the Guardian of the Spiritualties of any Bishoprick when the See was vacant and the Vicars generall of such Bishops as were absent beyond the Seas r Selden Titles of hon part 2. c. 5. had sometimes place and suffrage in the house of Lords in the Ages following 7. But when the Norman Conqueror had possest the State then the case was altered The Prelates of the Church were no longer suffered to hold their Lands in Frankalmoigne as before they did or to be free from secular services and commands as before they were Although they kept their lands yet they changed their tenure and by the Conqueror were ordained to hold their Lands sub militari servitute Å¿ Maâ— Paris in Will 1. An. 1070. either in â—apite or by Baronage or some such military hold and thereby were compellable to aid the Kings in all times of war with Men Arms and Horses as the Lay-subjects of the same tenures were required to do Which though it were conceived to be a great disfranchisement at the first and an heavy burden to the Prelacy yet it conduced at last to their greater honor in giving them a further Title to their place in Parliament than that which formerly they could pretend to Before they claimed a place therein ratione Officii only by reason of their Offices or spiritual Dignities but after this by reason also of those antient Baronies which were annexed unto their Dignities en respect de lour possessions L'antient Baronies annexes a lour dignities t Stamfords Plâ—es l. 3 c. 1. as our Lawyers have it From this time forwards we must look upon them in the House of Parliament not as Bishops only but as Peers and Barons of the Realm also and so themselves affirmed to the Temporal Lords in the Parliament holden at Northampton under Henry 2. Non sedimus hic Episcopi sed Barones nos Barones ves Barones Pares hic sumus u Ap Selden titles of hon pâ— 2. c. 5. We fit not here say they as Bishoâ—ps only but as Barons We are Baroâ—s and you are Barons here we sit as Peers Which last is also verified in terminis by the words of a Statute or Act of Parliament wherein the Bishops are acknowledged to be Peers of the Land x Stat. 25 Edw. 3. c. 5. Now that the Bishops are a fundamental and essential part of the Parliament of England I shall endeavour to make good by two manner of proofs wherof the one shall be de jure the other de facto And first we shal begin with the proofs de jure and therin first with that which doth occur in the Laws of King Athelstan amongst the which there is a Chapter it is Cap. 11. entituled De officio Episcopi quid pertinet ad officium ejus and therein it is thus declared Episcopo jure pertinet omnem rectitudinem promovere dei scilicet seculi c. z Spelm. concil p. 402. et convenit ut per consilium testimonium ejus omne legis scitum Burgi mensura omne pondus sit secundum dictionem ejus institutum that is to say it belongeth of right unto the Bishop to promote justice in matters which concern both the Church and State and unto him it appertaineth that by his counsel and award all Laws Weights and Measures be ordained thorowout the Kingdom 2. Next we will have recourse to the old Record entituled Modus tenendi Parliamentum In which it is affirmed ad Parliamentum summoniri venire debere Archiepiscopos Episcopos Abbates Pricres alios majores cleri qui tenent per Comitatum aut Baroniam ratione hujusmodi tenurae * modus tenendi Parliament that all the Arch-bishops Bishops Abbats Priors and other Prelates of the Church who hold their lands either by an Earls fee or a Barons fee were to be summoned and to come to Parliament in regard of their tenure 3. Next look we on the chartularies of King Henry the first recognized in full Parliament at Clarendon under Henry the 2d where they are called avitas consuetudines which declare it thus Archipiscopi Episcopi universae personae qui de Regetenent in Capite habeant possessiones suas de Rege ficut Baroniam c. sicut caeteri Barones debent interesse judiciis Curiae Regis cum Baronibus quousque perveniatur ad diminutionem membrorum vel ad mortem * Matth. Paris in Hen. 2. The meaning is in brief that Arch-bishops Bishops and all other ecclesiastical persons which hold in Capite of the King are to have and hold their lands in Barony and that they ought as Barons to be present in all Judgements with the other Barons in the Court of Parliament untill the very sentence of death or mutilation which was very common in those times was to be pronounced And then they commouly did use to withdraw themselves not out of any incapacity supposed to be in them by the Law of England but out of a restraint imposed upon them by the Canons of the Church of Rome 4. In the great Charter made by King John in the last of his reign we have the form of summoning a Parliament and calling those together who have votes therein thus expressed at large Ad habendum commune consilium Regni de auxilio assidendo c. de scutagiis assidendis faciemus summoneri Archiepiscopos Episcopos Abbaâ—es Comites Majores Barones Regni sigillatim per liâ—eras nostras Et praeterea summoneri faciemus in generali per Vice-Cemites Ballivos nostros omnes alios qui in Capite tenent ad certum diem sc ad terminum 40 dierum ad minus et ad certum locum c. a Id. in Ioh. In which we have not only a most evident proof that the Bishops are of right to be called to Parliament for granting subsidies and Escuage and treating of the great affairs which concern the kingdom but that they are to be summoned by particular Letters as well as the Earls and Barons or either of them A former Copy of which summons issued in the time of the said King John is extant on Record and put in print of late in the b Pt. 2. c. 5. Titles of Honour And we have here I note this only by the way a brief intimation touching the form of summoning the Commons to attend in
quod iidem Decanus Archichidiaconi in propriis personis suis ac dictum Capitulum per unum idemque Clerus per duos Procuratores idoneos plenam sufficientem potestatem ab ipsis Capitulo Clero habentes praedicto die loco personaliter intersint ad consentiendum iis quae tunc ibidem de communi consilio ipsius Regni nostri divina favente clementia contigerit ordinari Which clause being in the Writs of King Edward 1. and for the most part of the reign of his next Successorsâ— till the middle of King Richard the second at which time it began to be fixt and formal hath still continued in those writs without any difference almost between the Syllables to this very day z Id. ibid. Now that this clause was more than Verbal and that the Proctors of the Clergy did attend in Parliament is evident by the Acts and Statutes of King Richard the second the passages whereof I shall cite at large the better to conclude what I have in hand The Duke of Glocester and the Earl of Arundel having got the mastery of the King obtained a Commission directed to themselves and others of their nomination to have the rule of the King and his Realm a Statur 21 R. 2. c. 2. and having their Commission confirmed by Parliament in the 11 year of his reign did execute divers of his Friends and Ministers and seized on their Estates as forfeited But having got the better of his head-strong and rebellious Lords in the one and twentieth of his reign he calls a Parliament in the Acts whereof it is declared That on the Petition of the Commons of the assent of all the Lords Spiritual and Temporal and of the Proctors of the Clergy he repealed the said Statute and Commission b Ibid. c. 2. and with the assent of the said Lords and Commons did ordain and establish that no such Commission nor the like be henceforth purchased pursued or made This done the heirs of such as had been condemned by vertue of the said Commission demanded restitution of their Lands and Honors And thereupon the Lords Spiritual and Temporal and the Procuratours of the Clergy the Commons having prayed to the King before as the Appellants prayed severally examined did assent expresly that the said Parliament and all the Statutes c. should be voyd c. and restitution made as afore is said c Ibid. c. 12. And also the Lords Spiritual and Temporal the Procuratours of the Clergy and the said Commons were severally examined of the Questions proposed at Notingham and of the Answer which the Judges made unto the same which being read aswell before the King and the Lords as before the Commons it was demanded of all the States of the Parliament what they thought of the Answers and they said that they were lawfully duly made c. And then it followeth whereupon the King by the assent of the Lords Spiritual and Temporal and the Procuratours of the Clergy and the said Commons and by the advise of the Justices and Sergeants aforesaid who had been asked their opinion in point of Law ordained and established that the said Parliament should be annulled and held for none Adde unto this that passage in the 9 of Edward 2. where it is said that many Articles containing divers grievances committed against the Church of England the Prelates Clergy were propounded by the Prelates and Clerks of our Realm in Parliament and great instance made that convenient remedy might be appointed therein d Proem ad articulos Clâ—ri that of the complaints made to the King in Parliament by the Prelates and Clergy of this Realm 50 Ed. 3. 5. 8 Rich. 2. c. 13. and that of the Petition delivered to the King in Parliament by the Clergy of England 4 Hen. 4. c. 2. Selden hist of Tithes c. 8. 33. And finally that memorable passage in the Parliment 51 Edw. 3. which in brief was this The Commons finding themselves agrieved aswell with certain Constitutions made by the Clergy in their Synods as with some laws or Ordinances which were lately passed more to the advantage of the Clergy than the Common people put in a Bill to this effect viz. That no Act nor Ordinance should from thenceforth be made or granted on the Petition of the said Clergy without the consent of Commons and that the said Commons should not be bound in times to come by any constitutions made by the Clergy of this Realm for their own advantage to which the Commons of this Realm had not given consent The reason of the which is this and 't is worth the marking car eux ne veullent estre obligez a nul de vos estatuz ne Ordinances faitz sanz leur assent because the said Clergy did not think themselves bound as indeed they were not in those times by any Statute Act or Ordinance made without their Assent in the Court of Parliament Which clearly shews that in those times the Clergy had their place in Parliament as the Commons had Put all which hath been sayd together and tell me if it be not cleer and evident that the inferiour Clergie had their place in Parliament whether the Clause touching the calling of them thither were not more than verbal in the Bishops writs and is true that in the writ of summons directed to their several and respective Bishops they were called only ad consentiendum to manifest their consent to those Acts and ordinances which by the Common counsell of the Realm were to be ordained But then it is as tru withall that sometimes their advice was asked in the weighty matters as in the 21 of K. Richard the 2. and sometimes they petitioned and remonstrated for redress of grievances as in the instances and cases which were last produced And 't is as true that if they had been present only ad consentiendum to testifie their assent to those Acts which by the common Counsell of the Realm were proposed unto them their presence was as necessary and their voice as requisite to all intents and purposes for ought I can see as the voice and presence of the Commons in the times we speak of For in the writs of summons issued to the several Sheriffs for the electing of Knights Citizens and Burgesses to attend the Parliament it is said expressely first that the King resolveth upon weighty motives touching the weal and safety both of Church and State to hold his Parliament e Foâ—ma Brevis pro fammonit Parliamenti et ibidem cum Praelatis Magnatibus et Proceribus dicti regni nostri colloquium habere et tractare then and there to advise and treat with the Prelates Peers and Nobles of this Realm Which words are also expressely used in the writs of summons directed to the Bishops and to every of them who also are required in a further clause consilium suum impendere f
trusted or at least supposed to be intrusted with sufficient power as well to regulate his authority as to controll his actions If Calvin be allowed to have common sense and to have wit and words enough to expresse his meaning as even his greatest Adversaries do confesse he had it must be granted that he did not take the King of what Realm soever to be any of the three Estates or if he did he would have thought of other means to restrain his insolencies than by leaving him in his own hands to his own correction Either then Calvin is mistaken in the three Estates if he be mistaken in designing the men he aims at may he not be mistaken in the power he gives them or else the King is noâ—e indeed can be none of the three Estates qui primarios conventus peragunt who usually convene in Parliament for those ends and purposes before remembred But not to trust to him alone though questionlesse he be ideoneus testis in the present case Let us behold the Assembly of the three Estates or Conventus Ordinum in France from whence it is conceived that all Assemblies of this kind had their first Original and we shall find a very full description of them in the Assemblie des Estats at Bloys under Henry 3. Anno 1577. of which thus Thuanus f Thuanus in histor sui temp l. 63. Rex insublimi loco sub uranisco sedebat c. The King saith he sate on an high erected Throne under the Canopy of State the Queen-mother and the Queen his wife and all the Cardinals Princes Peers upon either hand And then it followeth Transtris infra dispositis ad dextram suam sacri Ordinis Delegati ad laevam Nobilitas infra plebetus ordo sedebat that on some lower forms there sate the Delegates of the Clergy towards the right hand of the King the Nobility towards the left and the Commissioners for the Commons in the space below We may conjecture at the rest by the view of this Of those in Spain by those Conventions of the States which before we spoke of at Burgos Monson Toledo and in other places in which the King is alwaies mentioned as a different person who called them and dissolved them as he saw occasion For Scotland it is ordinary in the stile of Parliaments to say the King and the Estates do ordain and constitute g Statutes of Scotland for which I do refer you to the Book of Statutes which clearly makes the K. to be a different person from the Estates of that Kingdome And as for England besides what may be gathered from the former Chapter we read in the History of Titus Livius touching the Reign and Acts of K. Henry the 5th that when his Funerals were ended the three Estates of the Realm of England did assemble together and declared his Son K. Henry the 6. being an Infant of 8 months old to be their Soveraign Lord h Tit. Liv. M. S. in Bibl. Bodl. as his Heir and Successor And in the Parliament Rolls of K. Richard the 3d. there is mention of a Bill or Parchment presented to that Prince being then Duke of Glocester on the behalf and in the name of the three Estates of this Realm of England that is to wit of the Lords Spiritual and Temporal and of the Commons by name which forasmuch as neither the said three Estates nor the persons which delivered it on their behalf were then assembled in form of Parliament was afterwards in the first Parliament of that King by the same three Estates assembled in this present Parliament I speak the very words of the Act it self and by authority of the same enrolled recorded and approved i Ap Speed in K. Rich. 3â— And at the request and by the assent of the three Estates of this Realm that is to say the Lords Spiritual and Temporal and Commons of this Land assembled in this present Parliament and by authority of the same it be pronounced decreed and declared that our said Soveraign Lord the King was and is the very and undoubted heir of this Realm of England c. And so it is acknowledged in a k 1 Eliz. cap. 3. Statute of 1 Eliz. ca. 3. where the Lords Spiritual and Temporal and the Commons in that Parliament assembled being said expresly and in terminis to represent the three Estates of the Realm of England did recognize the Queens Majesty to be their true lawfull and undoubted Soveraign Liege Lady and Queen This makes it evident that the King was not accounted in the times before for one of the three Estates of Parliament nor can be so accounted in the present times For considering that the Lords and Commons do most confessedly make two of the three Estates and that the Clergy in an other Act of Parliament of the said Queens time are confessed to be one of the greatest States of the Realm l Statut. 8 Eliz. cap. 1. which Statute being still in force doth clearly make the Clergy to be the third either there must be more than three Estates in this Kingdome which is against the Doctrine of the present times or else the King is none of the Estates as indeed he is not which was the matter to be proved But I spend too much time in confuting that which hath so little ground to stand on more than the dangerous consequences which are covered under it For if the King be granted once to be no more than one of the three Estates how can it choose but follow from so sad a Principle that he is of no more power and consideration in the time of Parliament than the House of Peers which sometimes hath consisted of three Lords no more or than the House of Commons only which hath many times consisted of no more than 80 or an hundred Gentlemen but of far lesse consideration to all intents and purposes in the Law whatever than both the Houses joyned together What else can follow hereupon but that the King must be co-ordinate with his two Houses of Parliament and if co-ordinate then to be over-ruled by their Joynt concurrence bound to conform unto their Acts and confirm their Ordinances or upon case of inconformity and non-complyance to see them put in execution against his liking and consents to his foul reproach And what at last will be the issue of this dangerous consequence but that the Lords content themselves to come down to the Commons and the King be no otherwise esteemed of than the chief of the Lords the Princeps Senatus if you will or the Duke of Venice at the best no more which if Sir Edward Dering may be credited as I think he may in this particular seems to have been the main design of some of the most popular and powerfull Members then sitting with him for which I do refer the Reader to his book of Speeches Which dangerous consequents whether they were observed at
now goeth were the meetings oftner For whereas there are three Principal if not sole occasions of calling this Assemblie or Conventus Ordinum that is to say the disposing of the Regency during the nonage or sickness of the King the granting aids and subsidies and the redress of the grievances there is now another course taken to dispatch their business The Parliament of Paris which speaks most commonly as it is prompted by power and greatness appointeth the Regent f Contin Thuani An. 1610. the Kings themselves together with their Treasurers and Under-officers determine of the taxes g View of France and they that do complain of grievances may either have recourse to the Courts of justice or else petition to the King for redress thereof And for the making new Laws or repealing the old the naturalization of the Alien and the regulating of his sales or grants of the Crown-lands the publick patrimony of the Kingdome which were wont to be the proper subject and debates of these grand Assemblies they also have been so disposed of that the Conventus Ordinum is neither troubled with them nor called about them The Chamber of Accompts in Paris which hath some resemblance to our Court of Exchequer doth absolutely dispose of Naturalizations and superficially surveyeth the Kings grants and sales * Andr. Du Mesn which they seldom cross The Kings Car tel est nostre plaisir is the Subjects law and is as binding as any Act or Ordinance of the three Estates and for repealing of such Laws as upon long experience are conceived to be unprofitable the Kings sole Edict is as powerfull as any Act of Parliament Of which Bodinus doth not only say in these general terms Saepe vidimus sine Ordinum convocatione consensu leges à Principe abrogatas k Bodin de Rep. lib. 1. cap. 8. that many times these Kings did abrogate some antient laws without the calling and consent of the three Estates but saith that it was neither new nor strange that they should so do and gives us some particular instances not only of the later times but the former ages Nay when the power of this Assemblie des Estats was most great and eminent neither so curtailled nor neglected as it hath been lately yet then they carried themselves with the greatest reverence and respect before their King that could be possibly imagined For in the Assembly held at Tours under Charles the 8. though the King was then no more than 14 years of age and the authority of that Court so great and awfull that it was never at so high an eminence for power and reputation quanta illis temporibus as it was at that time yet when they came before the King Monseiur de Rell being then Speaker for the Commons or the third Estate did in the name of all the rest and with as much humility and reverence as he could devise promise such duty and obedience such a conformity of his will and pleasure such readiness to supply his wants and such alacrity in hearking unto his Commandements that as Bodinus well observes his whole Oration was nothing else quam perpetua voluntatis omnium erga Regem testificatio l Id. ibid. but a constant testimony and expression of the good affections of the subject to their Lord and Soveraign But whatsoever power they had in former times is not now material King Lewis the thirteenth having on good reason of State discharged those Conventions for the time ensuing Instead whereof he instituted an Assembly of another temper and such as should be more obnoxious to his will and pleasure consisting of a certain number of persons out of each Estate but all of his own nomination and appointment which joyn'd with certain of his Counsel and principal Officers he caused to be called L' Assembly des Notables assigning to them all the power and privileges which the later Conventions of the three Estates did pretend unto right well assured that men so nominated and intrusted would never use their powers to his detriment and disturbance of his Heirs and Successors 5. But to proceed Bodinus having shewn what dutifull respects the Convention of Estates in France shewed unto their King addes this note nec aliter Hispanorum conventus habentur that the Assembly of the three Estates in the Realms of Spain carry themselves with the like reverence and submission to their Lord the King Nay major etiam obedientia majus obsequium Regi exhibetur m Id. ibid. the King of Spain hath more obedience and observance from his three Estates than that which is afforded to the Kings of France Which being but general and comparative is yet enough to let us see that the Assembly of Estates in the Realms of Spain which they call the Curia is very observant of their King and obsequious to him and have but little of that power which is supposed by our Author to be inherent in the three Estates of all the Christian Kingdoms But this Bodinus proveth more particularly ascribing to the King and to him alone the power of calling this Assemblie when he sees occasion and of dissolving it again when his work is done according as is used both in France and England And when they are assembled and met together their Acts and consultations are of no effect further than as they are confirmed by the Kings consent Which he declareth in the same form eadem formulà quâ apud nos that hath accustomably been used by the Kings of France which is authoritative enough that is to say n Id. ibid. p. 90. decernimus statuimus volumus We will and we appoint and we have decreed The Kings of Spain though not so despotical in their Government as the French Kings are are as absolute Monarchs and have as great an influence on the three Estates to make them pliant to their will and to work out their own ends by them as ever had the French Kings on their Courts of Parliament a touch whereof we had before in the former Chapter And this we may yet further see by their observance of the pleasure of King Philip the 2d Who having maried the Lady Elizabeth Daughter of Henry the 2d of France Convocatos Castellae reliquarum Hispaniae Provinciarum Ordines o Thuan. â—ist sui temp h 23. l. calling together the Estates of Castile and his other Provinces of Spain he caused them to swear to the succession of his Son Prince Charles whom he had by the Lady Mary of Portugal and after having on some jealousies of State put that Prince to death caused them to swear to the succession of another son by the Lady of Austria And for the power of his Edicts which they call Pragmaticas they are as binding to the Subject as an Act of Parliament or any kind of Law whatever examples of the which are very obvious and familiar in the Spanish Histories For though
made in Parliament the King passed a Law to this effect viz. r 4 Hâ—n 8. c. 8. That ull sutes condemnations executions charges and impositions put or hereafter to be put upon Richard Strode and every of his Complices that be of this Parliament or aâ—y other hereafter for any Bill speaking or reasoning of any thing concerning the Parliament to be communed and treated of shall be void and null but neither any reparation was allowed to Strode nor any punishment inflicted upon those that sued him for ought appears upon Record And for the Houses joyned together which is the last capacity they can claim it in they are so far from having the supreme authority that as it is observed by a learned Gentleman they cannot so unite or conjoyn as to be an entire Court either of Soveraign or Ministerial jurisdiction no otherwise co-operating than by concurrence of Votes in their several Houses for preparing matters in order to an Act of Parliament s Case of our Affairs p. 9. Which when they have done they are so far from having any legal authority in the State as that in Law there is no stile nor form of their joynt Acts nor doth the Law so much as take notice of them until they have the Royal Assent So that considering that the two Houses alone do no way make an entire Body or Court and that there is no known stile nor form of any Law or Edict by the Votes of the two Houses only nor any notice taken of them by the Law it is apparent that there is no Soveraignty in their two Votes alone How far the practise of the Lords Commons which remaind at Westminster after so many of both Houses had tepaired to the King c. may create Precedents unto posterity I am not able to determine but sure I am they have no Precedent to shew from the former Ages But let us go a little further and suppose for granted that the Houses either joynt or separate be capable of the Soveraignty were it given unto them I would fain know whether they claim it from the King or the people only Not from the King for he confers upon them no further power than to debate and treat of his great Affairs to have access unto his person freedome of Speech as long as they contein themselves within the bounds of Loyalty authority over their own Members which being custumarily desired t Hakewell of passing bils in Parliament and of course obtained as it relates into the Commons shews plainly that these vulgar privileges are nothing more the rights of Parliament than the favours of Princes but yet such favours as impart not the least power of Soveraignty Nor doth the calling of a Parliament ex opere operato as you know who phrase it either denude the King of the poorest robe of all his Royalty or confer the same upon the Houses or on either of them whether the King intend so by his call or otherwise For Bodin whom Mr. Prynne hath honored with the title of a grand Politician u Pryn of Parliam par 2. p. 45. doth affirm expresly Principis majestatem nec Comitorum convocatione nec Senatus populique praesentia minui x Bodin de Repub. that the majesty or Soveraignty of the King is not a jot diminished either by the calling of a Parliament or Conventus Ordinum or by the frequency and presence of his Lords and Commons Nay to say truth the Majesty of Soveraign Princes is never so transcendent and conspicuous as when they sit in Parliament with their States about them the King then standing in his highest Estate as was once said by Henry 8. who knew as well as any of the Kings of England how to keep up the majesty of the Crown Imperial Nor can they claim it from the people who have none to give for nemo dat quod non habet as the saying is The King as hath been proved before doth hold his Royal Crown immediately from God himself not from the contract of the people He writes not populi clementia but Dei gratia not by the favour of the people but by the grace of God The consent and approbation of the people used and not used before the day of coronation is reckoned only as a part of the solemn pomps which are then accustomably used The King is actually King to all intents and purposes in the Law whatever immediately on the death of his Predecessor Nor ever was it otherwise objected in the Realm of England till Clark and Watson pleaded it at their arraignment in the first year of King James y Speeds History in K. James Or grant we that the Majesty of this Kingdom was first originally in the people and by them devolved upon the King by their joynt consent yet having given away that power by their said consent and setled it upon the King by an Act of State confirmed by Oaths and all solemnities which that Act requires they cannot so retract that grant or make void that gift as to pass a new conveyance of it and settle it upon their Representees in the House of Commons Or if they could yet this would utterly exclude all the Lords from having the least share or portion in this new found Soveraignty in that they represent not the common people but sit there only in their own personal capacities and therefore must submit at last to these new made Soveraigns who carry both the Purse Sword at their own girdles So then the people cannot give the Soveraignty and if they have no power to give it the Lords and Commons have no claim thereunto de jure See we next therefore how much of this Soveraignty they or their Predecessors rather have enjoyed de facto in peaceable and regular times fit to be drawn into example in the Ages following The chief particulars in which the Soveraignty consists we have seen before and will now see whether that any of them been exercised and injoyed in peaceable and regular times by both or either of the two Houses of Parliament And first for calling and dissolving Parliaments making of Peers granting of liberty to Towns and Cities to make choyse of Burgesses which antiently had no such liberty treating with forein States denouncing war or making Leagues or Peace after war commenced granting safe conduct and protection indenizing of Aliens giving of honors unto eminent and deserving persons rewarding pardoning coyning printing making of corporations and dispensing with the Laws in force they are such points which never Parliament did pretend to till these later times wherein every thing almost is lawfull I am sure more lawâ—ull than to fear God and honor the King Nor do I find that Mr. Prynne hath laboured to entitle them to these particulars For levying of Arms and the command of the Militia besides that the Kings of England have ever been in possession of it and that possession never disturbed