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
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
at that Election sending back unto Us the other part of the Indenture aforesaid affiled to these Presents together with this Writ Witness Our Self at Westminster By this Writ we do not find that the Commons are called to be any part of the Common Councel of the Kingdom or of the Supream Court of Iudicature or to have any part of the Legislative Power or to Consult de arduis regni negotiis of the difficult Businesses of the Kingdom The Writ only sayes the King would have Conference and Treat with the Prelates Great men and Peers but not a word of Treating or Conference with the Commons The House of Commons which doth not minister an Oath nor fine nor imprison any but their own Members and that but of late in some Cases cannot properly be said to be a Court at all much less to be a part of the Supream Court or highest Judicature of the Kingdom The constant Custom even to this day for the Members of the House of Commons to stand bare with their Hats in their Hands in the Presence of the Lords while the Lords sit covered at all Conferences is a visible argument that the Lords and Commons are not fellow Commissioners or fellow Counsellors of the Kingdom The Duty of Knights Citizens and Burgesses mentioned in the Writ is only ad Faciendum Consentiendum to Perform and to Consent to such things as should be ordained by the Common Councel of the Kingdom there is not so much mentioned in the Writ as a Power in the Commons to dissent When a man is bound to appear in a Court of Justice the words are ad Faciendum recipiendum quod ei per curiam injungetur which shews that this word Faciendum is used as a Term in Law to signifie to give Obedience For this we meet with a Precedent even as ancient as the Parliament-Writ it self and it is concerning Proceedings in Parliament 33. Ed. 1. Dominus Rex mandavit vicecom ' quod c. summon ' Nicolaum de Segrave ex parte Domini regis firmiter ei injungeret quod esset coram Domino Rege in proximo Parl. c. ad audiendum voluntatem ipsius Domini Regis c. Et ad Faciendum recipiendum ulterius quod curia Domini Regis consideraret in Praemissis Our Lord the King commands the Sheriff to summon Nicholas Segrave to appear before the Lord our King in the next Parliament to hear the Will of the Lord our King himself and to Perform and receive what the Kings Court shall further consider of the Premises Sir Ed. Coke to prove the Clergy hath no Voice in Parliament saith that by the Words of their Writ their Consent was only to such things as were ordained by the Common Councel of the Realm If this argument of his be good it will deny also Voices to the Commons in Parliament for in their Writ are the self-same words viz. to consent to such things as were ordained by the Common Councel of the Kingdom Sir Edw. Coke concludes that the Procuratores Cleri have many times appeared in Parliament as Spiritual Assistants to Consider Consult and to Consent but never had voice there how they could consult and Consent without Voices he doth not shew Though the Clergy as he saith oft appeared in Parliament yet was it only ad consentiendum as I take it and not ad faciendum for the Word Faciendum is omitted in their Writ the cause as I conceive is the Clergy though they were to assent yet by reason of Clerical Exemptions they were not required to Perform all the Ordinances or Acts of Parliament But some may think though the Writ doth not express a Calling of the Knights Citizens and Burgesses to be part of the Common Councel of the Kingdom yet it supposeth it a thing granted and not to be questioned but that they are a part of the Common Councel Indeed if their Writ had not mentioned the Calling of Prelates Great men and Peers to Councel there might have been a little better colour for such a Supposition but the Truth is such a Supposition doth make the Writ it self vain and idle for it is a senseless thing to bid men assent to that which they have already ordained since ordaining is an Assenting and more than an Assenting For clearing the meaning and sense of the Writ and Satisfaction of such as think it impossible but that the Commons of England have alwayes been a part of the Common Councel of the Kingdom I shall insist upon these Points 1. That anciently the Barons of England were the Common Councel of the Kingdom 2. That until the time of Hen. 1. the Commons were not called to Parliament 3. Though the Commons were called by Hen. 1. yet they were not constantly called nor yet regularly elected by Writ until Hen. 3. time For the first point M. Cambden in his Britania doth teach us that in the time of the English Saxons and in the ensuing Age a Parliament was called Communâ—… concilium which was saith he Praesentia Regis Praelatorum Procerumque collectorum the Presence of the King Prelates and Peers assembled No mention of the Commons the Prelates and Peers were all Barons The Author of the Chronicle of the Church of Lichfield cited by M. Selden saith Postquam Rex Edvardus c. Concilio Baronum Angliae c. After King Edward was King by the Councel of the Barons of England he revived a Law which had layen asleep threescore and seven years and this Law was called the Law of St. Edward the King In the same Chronicle it is said that Will. the Conquerour anno regni sui quarto apud Londin ' haâ—… Concilium Baronum Suorum a Councel of his Barons And of this Parliament it is that his Son Hen. 1. speaks saying I restore you the Laws of King Edward the Confessor with those amendments wherewith my Father amended them by the Councel of his Barons In the fifth year as M. Selden thinks of the Conquerour was a Parliament or Principum conventus aâ—… Assembly of Earls and Barons at Pinenden Heath iâ—… Kent in the Cause between Lanfranke the Arch-bishop of Canterbury and Odo Earl of Kent The King gave Commission to Godfrid then Bishop of Constanâ—… in Normandy to represent His own Person for Hearing the Controversie as saith M. Lambard and caused Egelrick the Bishop of Chichester an aged man singularly commended for Skill in the Laws and Customes of the Realm to be brought thither in a Wagon for his Assistance in Councel Commanded Haymo the Sheriff of Kent to summon the whole County to give in Evidence three whole dayes spent in Debate in the End Lanfranke and the Bishop of Rochester were restored to the Possession oâ—… Detling and other Lands which Odo hath withholden 21. Ed. 3. fol. 60. There is mention of a Parliament held under the same King William the Conquerour wherein all the Bishops of the Land Earls and
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
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
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 aâ—… the granting of a Subsidy or time of Payment wheâ—… all we have is her Majesties and She may lawfull at her Pleasure take it from us and that she had â—… much right to all our Lands and Goods as to anâ—… Revenue of the Crown and he said he could proâ—… it by Precedents in the time of H. 3. K. John and K. Stephen The ground upon which this Serjeant at Law went may be thought the same Sir Edw. 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 Royalists they reserved to themselves 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 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 fee 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 also will have â—…so le Roy remercie ses loyaux Subjects accept leur â—…enevolence ausi ainsi le veult which last words of ainsi le veult the King wills it to be so â—…re the only words that makes the Acts of Subâ—…idy a Law to bind every man to the Payâ—…ent 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 bestowing 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 Iames 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 iâ—… 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 suâ—… Antimonarchicall words concerning their Liberties except they had subjoyned that they were granted unto them by the Grace and Favourâ—… 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 THE PREFACE IN every Alteration of Government there is something new which none can either Divine or Iudge of till time hath tried it we read of many several wayes of Government but they have all or most of them been of particular Cities with none or very small Territories at first belonging to them At this present the Government of the Low-Countries and of Swisserland are not appropriated either of them to any one City for they are compounded of several petty Principalities which have special and different Laws and