saith That Enrollments (l) Pur le Enrolments de Pardon de Roy in le Chancery en temps le Roy Alfred of Pardons of the King were in the Chancery in the time of King Alfred Altho' Mauricius Regis Cancellarius by that title subscribes as witness to the Charter of King William the Conquerer to the Abby of Westminster yet none of these prove that such a Court was in those Ages constituted as we now call the Chancery For Sir Henry Spelman (m) Gless p. 107 ◠proves the Chancery was no Court but only the Ship as he calls it of the Kings Writs and Charters in old time now consisting of three Parts sc è Collegio Scribarum Regiorum è Foro Juris communis è Praetorio boni aqui Mr. Lambard (n) Archaion p. 62 63. hath proved that till the Reign of King Edward the First we find nothing of the Chancellors hearing and determining of Civil causes for till then the Justiciarius Angliae had the great Power Sir William Dugdale 's Origines Jurid fol. 36. b. which being then restrained ad placita coram Rege tenenda the King together with the trust and charge of the Great Seals appointed him to represent his own Royal and extraordinary Preheminence of Jurisdiction in Civil Causes and he gives this particular reason for his opinion That Britton a Learned Lawyer in Edward the First 's time writing of all other Courts from the highest Tribunal to a Court Baron maketh no mention of this Chancery Yet towards (o) 28 E. 1. c. 5. the latter end of his Reign we find it enacted The Chancellor and Justices of the King's-Bench to follow the King That the Chancellor and Justices of the Bench should follow the King that is remove with the Kings Court so that he might have at all times near him some Sages of the Law which were able to order all such matters as should come unto the Court at all times when need should require Yet this Act did not give an absolute Power to the Chancellor alone of determining in such Civil Causes as may seem by that Law which was made 20 Ed. 3. (p) Cap. 6. where it appears the Treasurer was joyned with him to hear complaints against Sheriffs Escheators c. something like this about Purveyors and Escheators that they might not oppress was enacted (q) Cap. 3. 36 Ed. 3. Nevertheless Mr. Lambard observes When Causes in Equity determined in Chancery that it doth not appear in the Reports of the Common Law that there is any frequent mention of Causes usually drawn before the Chancellor for help in Equity till from the time of King Henry the fourth nor are there found any Bills and Decrees in Chancery before the 20 of H. 6. such Causes as since that time were heard in that Court having formerly been determined in the Lords House of Parliament So Sir Edward Coke saith In the Chancery are two Courts First the ordinary coram Domino Rege in Cancellaria where in the Lord Chancellor or Lord Keeper of the Great Seal proceeds according to the right line (r) Secundum Legen Consuetudinem Angliae of the Laws and Statutes of the Realm Secondly extraordinary according to the Rule of Equity Secundum aequum bonum But it is not my business to enter into particulars The curious may consult Sir Edward (s) 4. Instit c. 8. Coke Mr. Richard Cromptom cap. 3. Sir Henry Spelman 1. glossar 1. de Cancellario à pag. 105. ad pag 113. Ryley's Appendix Ash's Repertory tit Courts Sect. 2. Roll's Abridgment p. 374. to 587. Prynne's Animadversions p. 48. Anno 5 Eliz. (t) Cap. 18. it was Enacted that the Lord Keeper for the time being hath always had used and executed and so may for the future The Lord Keeper equal to Lord Chancellor the like place Authority Preheminence Jurisdiction Execution of Law c. as the Lord Chancellor of England for the time being lawfully used The Oath of the Chancellor or Lord Keeper is to be found (u) Rot. Parl. 10 R. 2. col 8. 10 R. 2. consisting of six Parts First That well and truly he shall serve our Soveraign Lord the King and his People in the Office of Chancellor The Oath of the Lord Chancellor or Lord Keeper Secondly That he shall do right to all manner of people Poor and Rich after the Laws and usages of the Realm Thirdly That he shall truly counsel the King and his Counsel he shall layen i. e. hide or keep secret Fourthly That he shall not know nor suffer the hurt or disheriting of the King or that the Rights of the Crown be decreased by any means as far as he may lett it Fifthly That if he may not lett it he shall make it clearly and expresly to be known to the King with his true Advice and Counsel Sixthly That he shall do and purchase the Kings profit in all that he reasonably may as God help him and by the Contents of this Book SECT 6. Of the Court of the Exchequer SIR Edward Coke saith the Authority of this Court is of original Jurisdiction without any Commission Bracton mentioneth nothing of this Court and Fleta giveth a very short account that the King hath his Court and his Justiciaries residing at his Exchequer but descends to no particulars of the Jurisdiction (w) Fol. 2 b. But x Britton who lived in Edward the First 's Reign and all along writes in the name of the King as if his whole work had been the Kings gives us an account of the Nature of this Court in several particulars To hear and determine all Causes which touch the Kings Debts his Fees and the incident Causes without which these cannot be tried So of Purprestures Rents Farms Customs and generally of whatever appertained to the Revenue of the Crown the Tenants and Receivers of it so that the Court is divided into two Parts viz. Judicial Accounts called Scaccarium Computorum and into the Receipt of the Exchequer The principal Officer is the Lord Treasurer of England who formerly had this great Office The Lord Treasurer principal Officer of the Exchequer by delivery of the Golden Keys of the Treasury and hath the Office this day by delivery of a white Staff at the Kings Will and Pleasure his Oath is much-what the same as the Chancellors differing principally in that clause That the Kings Treasure he shall truly keep and dispend The other great Officers are the Treasurer of the Exchequer the Chancellor and Chief Baron and other Barons of the Exchequer The rest of the Officers are particularly reckoned in Sir (x) 4. Instit fol. 106 107 108. Edward Coke The Oath of the Barons of the Exchequer is to be found in the Statutes (y) The Oath of 〈◊〉 Barons of the 〈◊〉 chequer 20 Ed. 3. cap. 2. whereof the principal parts are That he shall truly charge and discharge
Capitularia Caroli (e) See Fred. Lindebrogus Codex Legum Antiq. magnis the Burgundian Alman Bavarian Saxon Longobard Ripuarian and Frisons Laws mention such Officers for preserving the publick Peace and (f) See Prynne 's Irenarch Redivivus p. 1. ad 5. punishing all Malefactors and infringers of the publick Peace as we have At the Common-Law before Justices of Peace were made there were sundry Persons to whose Charge the maintenance of the Peace was recommended and who with their other (g) Dalton's Justice of Peace c. 1. Conservators of the Peace Offices had and yet still have the Conservation of the Peace annexed to their Charge as incident to and inseparable from their said Offices yet they were only stiled and so now are by their Offices the Conservation of the Peace being included therein First the King is the principal (h) Idem Conservator of the Peace within his Dominions The King the principal Conservator of Peace and is properly Capitalis Justiciarius Angliae in whose Hands at the beginning the Administration of all Justice and all Judicature in all Causes first was and afterwards by and from him only was the Authority derived and given to all yet the Power nevertheless remains still in himself insomuch that he may himself sit in Judgment as in ancient times the Kings here have done and may take Knowledg of all cases and causes Before I leave this Head I cannot pass by the Act of (i) 20 H. 7. c. 11. H. 7. wherein is so fully declared the King's Care to have due Administration of Justice as in the close of the last Chapter I have only hinted The Reasons why Justices of Peace made The King's Care for right and easie Administration of Justice The Preamble saith The King considereth that a great part of the Wealth and Prosperity of the Land standeth in that that his Subjects may live in Surety under his Peace in their Bodies and Goods and that the Husbandry of this Land may encrease and be upholden which must be had by due Execution of Laws and Ordinances and so commandeth the Justices to execute the tenor of their Commission as they will stand in Love and Favour of his Grace and in avoiding the pains that he ordained if they do the contrary If they be lett or hindred they must show it to the King which if they do not and it come to the Kings knowledg they shall be out of his Favour as Men out of Credence and put out of Commission for ever Moreover he chargeth and commandeth all manner of Men as well Poor as Rich which be to him all one in due Administration of Justice that is hurt or grieved in any thing that the said Justice of Peace may hear determine or execute in any wise that he so grieved make his complaint to the next Justice of Peace and if he afford no remedy then to the Justices of the Assise and if he find no remedy there then to the King or Chancellor c. and as a further security it is added And over that his Highness shall not lett for any favour affection costs charge nor none other cause but that he shall see his Laws to have plain and true execution and his Subjects to live in security of their Lands Bodies and Goods according to his said Laws Thus we see who is the Principal Other Conservator of the Peace and Royal Conservator of the Peace others are the Lord Chancellor or Lord Keeper Lord Treasurer Lord High Steward of England Earl Marshal Lord High Constable of England every Justice of the Kings Bench and Master of the Rolls who have the power included in their Office and over all the Realm when they are present may award Precepts take Recognisances for the Peace of which and others Lambard in his Eirenarche may be consulted and how far Justices of Assise Stewards of the Sheriffs Turn and Court of Pye-powders the Sheriffs Chief Constable Coroners and Petty Constables may commit to Ward breakers of the Peace in their view though they cannot take surety at the request of any man that being peculiar to the Justices of Peace's Office Sir Edward Coke (k) Term. Pasch fol. 176. 4. Inst Coram Rege prima fuit Institutio Justiciariorum pro Pace conservanda Ad Pacem nostram conservandam saith that the first institution of Justices for the preserving the Peace was 6 Ed. 1. but Mr. Prynne will have it of older date because he finds that King Henry the Third by several Patents or Writs from the 17th to the end of his Reign did constitute and appoint several persons in most Counties of the Realm to be Guardians and Preservers of the Peace of the Realm and in the Patent 51 H. 3. m. 10.13 dorso it is dilectis fidelibus suis custodibus pacis Com. Linc. North. Ebor. Vicecom eorundem Comitat. and the like 54 H. 3. m. 21. d. But the first regular settlement of them seems to be Anno 1327. 1 Ed. 3. c. 16. The Authorities afterwards were further explained 4 Ed. 3. c. 2. 18 Ed. 3. c. 2. 34 Ed. 3. c. 1. Sir Edward Coke (l) Ibid. 171. tells us that the Commission of Peace stood over-burthened and incumbered with divers Statutes some whereof were before and some since repealed and stuffed with many vain and unnecessary repetitions and many other corruptions crept into it by mistaking of Clerks c. for amendment and correction whereof (m) Mich. 32 33 Eliz. Sir Christopher Wray Chief Justice of England assembled all the Judges of England and upon perusal had of the former Commission of Peace and due consideration had thereupon and often conferences betwixt themselves they resolved upon a reformation of the form with divers additions and alterations both in matter and method as it stood in Sir Edward's time and he saith It needed another Reformation by reason of Statutes since repealed and others expired of which he gives several instances Therefore he saith It is a good rule for all Judges and Justices whatsoever that have Jurisdiction by any Statute which at the first was Temporary or for a time to consider well before they give Judgment Whether that Statute hath been continued or made perpetual and if at first it was made perpetual Whether it be not repealed or altered by any later Statute What Commissions Patents and Writs were issued out by King Edward the First for preserving the Peace of the Realm suppressing seising and punishing of those who disturbed it may be found Cl. 9 Ed. 1. m. 10. d. in Rylies (n) P. 443 451 to 457 433 480. Prynne's Animadv fol. 149. Appendix so there is a Patent 14 Ed. 1. m. 15. 15 Ed. 1. m. 13. de militibus constitutis ad Articulos in Statuto de conservatione pacis edito contentoâ— observandos constituting persons of note in every County to observe them named in the Record and so for other Kings Reigns
their imperious Commands The World never knew greater oppression than those that stiled themselves Keepers indeed Jaylors of the Liberties of England were guilty of It would trouble saith a judicious (s) Malson's Common Interest Author a publick Accountant to cast up those vast Summs and incredible Treasures which in less than twice seven years they raised and spent to support the worst of all luxurious Rebellion and to act upon the publick charge and Theater of the Nation not Masques and Plays as they had charged one great part of the Expences of the Court on but the most real and inhumane Tragedies and those infinite in number one of which was such as the Sun never saw or any History could parallel It would be endless to recount the Annual Revenue of the Crown Bishops Chapter and Cathedral Lands besides the Money they received for the purchace of them the constant heavy and unheard of Assesments free Quarter Plunder Sequestration Compositions Decimations Excise and Customs voluntary Contributions of Plate Jewels c. Summs borrowed on the Publick Faith which some found to their cost was but fides Punica and almost innumerable ways and arts they had to squeeze and drain the Treasure of the Nation into their bottomless Gulph so that the same Writer is confident That not any three Kings of England since William the Conqueror to this present were so expensive to England as that one Tyrannical and Prodigal Parliament The Nation was then and ever will be under any Usurping Republic in worse than Egyptian Bondage In every County a Committee was placed to seize the Estates and Rents of all the Loyal Subjects with such a Tyrannical Arbitrariness as never was known under any Kings Reign and as if that were not enough there were added to them Basha Major Generals and the sucking Vermine in every Town and Hamlet were either fire-side Troopers or some well affected Person whose Information would be believed before the best in the Parish Every one that would not worship those Pagods were proceeded against by some of those or their Arbitrary High Courts of Justice or were convened before the House of Commons where every one of those Parliament Demarchs were as absolute as the Laws of their own will could make them No Person could either question their Actions or Authority but he paid his Life or Fortune or one of them for his presumption so that we saw the whole Kingdom brought into a slavery far greater than theirs that wear Canvase Cloth and Wooden Shooes and not only look like Ghosts but really are so as they made all which they either suspected feared or hated All which was never to have been altered as long as their standing Force should be true to them to the incredible charge oppression and impoverishment of the Subjects Friend and Foe though they had the Policy to lay the heaviest Burthen and Load upon the Backs of their Enemies if possible to break them keeping the Loyal Nobility and Gentry so poor that many of them have not been able or ever will be to forget the kindness of that Government which was the ruin of them and their Families I shall now pass to the last head of Rewards and Punishments No just Distribution of rewards or Punishments and executing of Justice none of which can be according to merit where prevalent Faction shall sway the Balance and open and shut the Eyes of Justice by the cunning Instruments of Partiality It being impossible to separate Faction and Interest from this kind of Authority so that none shall obtain any thing but according as they shall be judged favourable or advantageous to the Interest of the ruling Faction So that the Vertuous shall have the least share since Vertue is not over natural to Mankind it is like to thrive but poorly in a soil where it is not tenderly cherished and frequently refreshed with the encouraging Dews of Reward and Benefit But those shall have the greatest share that can best wheedle or seem by a well-managed Flattery to join with the topmost governing Party I shall therefore give some examples of the Ingratitude of Commonwealths to the well-deserving great and brave Men Ingratitude of Commonwealths who have served their Country and been ill rewarded by the governing Part or been exposed to be baited or worried by the People instigated by Factions or suffered base Ignominy Banishment or Death I shall begin with Athens the eye of Greece and the Seat of the Muses When Xerxes invaded Greece The ill usage of Themistocles the Athenians and Peloponnesians were the most considerable States yet the Athenians were forced to leave their City and get into their Navy which might carry the whole People and their Power to some remote Country where they might enjoy more secure Habitations The Spartans were unwilling to hazzard a Sea-Battle near Salamis but would have weighed Anchor and gone to Isthmus Themistocles did all he could to perswade the staying and joining of the Fleets there to wait the Enemy who would have less Sea room whereas if they fought elsewhere by his numbers he would have overborn the Confederates and when he could not prevail but that they would weigh Anchor the next day he sent a private message to the Persian Captains that the Grecian Fleet intended to fly and in the interim advised the Grecian Fleet to be in a readiness against all Events By which Stratagem he toiled the Persian Fleet to make the Attacque with that disadvantage he desired and the Grecians obtain'd a most memorable Victory Several other great Services he did not only in saving of Athens but the rest of Greece from Xerxes But when the Athenians were returned to their City and rebuilt it after the Battle of Mycale the People were so proud of their Exploits that they not only endeavoured to get the Command of many Towns and Islands of the Greeks but within their own Walls would admit no Government but meerly Democratical which being argued against by Themistocles they laid upon him the Punishment of the Ostracism banishing him for ten Years before which time was expired a new accusation was framed against him by the Lacedemonians that he intended to betray (t) Sir Walt. Raleigh b lib. 3. cap. 8. sect 7. Greece to Xerxes So that he was forced to fly to Artaxerxes who afterwards would have imployed him against Greece but he decided the great Conflict betwixt thankfulness to his well-deserving Patron and natural Affection to his own ill-deserving People by finishing his Life with a draught of Poyson This Ostracism was a Sentence of Banishment writ upon an Oyster-shell and the like in Sicily writ on a Leaf was called Petalismus This was so often abused by exterminating Persons not so much for Crimes as by factious Envy made use of to remove out of the way Persons that were like to oppose the prevailing Factions that the (u) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. lib. 3. c. 13.
times appointed through England and by his writing and Seal confirmed to Bishops and Abbats Charters of Priviledges whose Charter runs thus Hen. c. Baronibus fidelibus suis Francis Anglis salutem Sciatis me ad Honorem Dei Sanctae Ecclesiae pro communi emendatione Regni mei concessisse reddidisse praesenti Charta mea confirmasse c. and so confirms the Charter of King Henry the First his Grand-father As to the Council of Clarendon about (b) Answer to Petyt fol. 31. ult Edit See Selden's Correction of Matt. Paris in his Epinomis Thomas Becket Archbishop of Canterbury after he had once promised and his after refusing to set to his Seal in Confirmation of the Ancient Laws I must refer the Reader to what Doctor Brady hath collected and shall only touch upon that of (c) Matt. Paris fol. 84. num 20. ult Edit Clarendon Anno 1164. 10 Hen. 2. where those present by the King's Mandate were the Archbishops Bishops Abbats Priors Earls Barons and Noblemen of the Kingdom and there was a Recognition of parts of the Customs and Liberties of King Henry the King's Grandfather and of other Kings which were comprised in sixteen Chapters Concerning the Laws of this King see Selden's Epinomis These Matthew Paris calls wicked Customs and Liberties because they subjected the Clergy-men more to the Crown than he and others would have had them yet he saith the Archbishops Bishops Abbats Priors Clergy with the Earls Barons and Nobility swore to them all Proceres and promised firmly in the word of Truth to hold and observe them to the King and his Heirs in good Faith and without Evil and then adds decrevit etiam Rex by which it appears that the Members of the Great Council did not only assent but did bind themselves by Oath and solemn Promise obligatory to themselves and their Posterity to keep and observe them and upon the whole it is the King that decrees appoints and constitutes In all the great Councils of this King it is manifest that the Members were only such as in former Kings Reigns only in that of the 22 H. 2. (d) Ben. Abb. p. 77. Anno Dom. 1176. it is said Rex congregatis in urbe Londoniarum Archipraesulibus Episcopis Comitibus Sapientioribus Regni sui where Sapientiores are instead of Barones and for the Kings Summons it is always said Rex convocat congregavit praecepit convenire or mandavit as is most expresly said in that great Council Anno 1177. 23 H. 2. (e) Ben. Abbas p. 86. That the King sent Messengers through the whole Isle of England and commanded the Archbishops Bishops Earls and Barons of all England that they should be with him at London the next Sunday after the beginning of Lent Of the Great Councils in King Richard the First 's time THere are few great Councils met withal in his short Reign he being so great a part of it out of the Kingdom The first I find is in (a) Fol. 129. num 16 Matthew Paris Anno 1189. 1 Reg. That in the day following the Exaltation of the Holy Cross at Pipewel Archiepiscoporum Episcoporum aliorum Magnatum suorum fretus Concilio He supplied the Vacances of several Bishops Sees The Second I find is (b) Hoved. fol. 376. a. num 30. when he and the King of France agreed to go to the Holy Land where it is said that his Earls and Barons who took the Crusado in the General Council at London swore c. of which it is that (c) Fol. 155. num 50. Matthew Paris saith That the King of England convocatis Episcopis Regni Proceribus received the Oath from the Messengers of the King of France In the Fifth of King Richard (d) Hoved. fol 418. b. num 20. we have a full Example of the holding a Great Council by Commission for during the Imprisonment of King Richard Adam de Sancto Edmundo Clerk was sent from Earl John the Kings Brother to his Friends in England to defend his Castles against the King and dined with Hubert Archbishop of Canterbury boasting much of the French Kings assisting Earl John After Dinner the Mayor of London seized on him in his Lodgings and upon all his Breves and Mandates who delivered them to the Archbishop This occasioned the Archbishop being the Kings Commissioner to convene a great Council the next day A Great Council called on a Days warning but surely Summons had issued out before or else it is a great Instance that the great Councils might be called of such of the Clergy and Nobility as were nearest at Hand for my Author expresly saith (e) Qui iâ— crastino convocatis coram co Episcopis Comitibus Baronibus Regni ostendit eis literas Comitis Johannis earum tenuras statim per commune concilium Regni desinitum est quod Comes Johannes dissaisiretur Idem That the Archbishop the next day called before him the Bishops Earls and Barons of the Kingdom and showed to them the Letters of Earl John and the Tenor of them and adds that instantly by the Common Council of the Kingdom it was defined that Earl John should be disseised This Adam saith Hoveden came into England not long before King Richard's release from his Imprisonment The next great (f) Idem 419. â— 30. A Great Council of four Days Council I find was upon the Thirtieth of March summoned to meet the King at Nottingham and at this were present Alienor the Kings Mother Hubert Archbishop of Canterbury Geoffery Archbishop of York and seven Bishops more Earl David brother to the King of Scots Hamelin Earl Warren Ralph Earl of Chester William Earl Ferrers William Earl of Salisbury and Roger Bigot and names no more but saith the same day the King disseized (g) Rex dissaisivit Gerardum de Canvil de Comitatu Linc. Hug. Bardolf de Castro Comitat. Ebor. Gerard de Canvil and others It appears that this Council sat but four days on the second day the King required Judgment against Earl John his Brother on the third day the King (h) Rex constituit sibi dari c. deinde praecepit exigit Concerning the Form of Proceeding in the Pleas of the Crown the Assize of the Forest wherein the Laws made in this King's time are set down see Selden's Epinomis appointed to be given him 2 s. of every Carucate of Land through England and that every one should perform the third part of Military Service according to their respective Knights Fees to pass over Sea with him into Normandy and then exacted of the Cestertian Monks all their Wool of that year for which they compounded and the fourth and last day Complaints were heard against the Archbishop of York and further Prosecution of Gerard de Canvil Hoveden gives an account of the King's Progress till the 11th of the same Month to which time the
puts an end to the Sessions so that what ever Bills are ready and pass not the Royal Assent must be again read three times in either House for the more security it is usual to insert a Proviso That the Session is not thereby concluded The Royal Assent is given two ways First Royal Assent by Patent by Commission since the Statute of the 33 H. 8. c. 21. wherein it is expressed That the Kings Royal Assent by his Letters Patents under the Great Seal Signed by his hand and declared and notified in his absence to the Lords Spiritual and Temporal and to the Commons Assembled in the higher House is and ever was of as good strengh and force as if the King had been there personally present and assented openly and publickly to the same The manner of the King 's giving his Publick Assent is in this manner The King cometh in Person in his Parliament-Robes Royal Assent when the King present and sitteth in his State and the Upper House sit in their Robes The Speaker with all the Commons House cometh to the Bar of the Lords House and in Sir Thomas Smith's time Sir Th. Smith's Commonwealth p. 45. Speeches used to be made there the Chancellor for the Lords and the Speaker for the Commons in set Speeches returned the Prince Thanks for that he hath so great Care of the good Government of his People and for calling them together to advise of such things as should be for the Reformation Establishing and Ornament of the Commonweal After which the Chancellor in the Prince's Name giveth Thanks to the Lords and Commons for their Pains and Travel taken which he saith the Prince will remember and recompense when Time and Occasion shall serve and that the Prince is ready to declare his Pleasure concerning their Proceedings whereby the same may have perfect Life and Accomplishment by his Princely Authority I think now mostly Hackwell of Passing of Bills p. 181 182. the Speaker of the House of Commons makes a Speech acquainting the King with the purport of the Bills Then the Clerk of the Crown readeth the Title of the Bills in such Order as they are in Consequence After the Title of every Bill is read singly The Clerk of the Crown pronounceth the Royal Assent or Dissent the Clerk of the Parliament pronounceth the Royal Assent according to certain Instructions given from his Majesty in that behalf If it be a Publick Bill to which the King assenteth the Answer is Le Roy le veult The King willeth If a Private Bill allowed by the King the Answer is Soit fait comme il est desire Let it be done as it is desired And upon a Petitionary Bill the like is used If it be a Publick Bill which the King forbeareth to allow he saith Le Roy se avisera The King will advise To a Subsidy Bill the Clerk pronounceth Le Roy remercie ses loyaux Subjects accepte leur Benevolence aussi le veult The King thanks his Loyal Subjects accepts their Benevolence and also willeth To a general Pardon is pronounced Les Prelates Seigneurs Communs en cest Parlement assembles au nom de touts vous autres Subjects remercient tres humblement vostre Majesty prient Dieu vous donner en sante bone vie longe The Prelates Lords and Commons in this Parliament assembled in the name of all your other Subjects thrice humbly give thanks to your Majesty and pray God to give you in health a good Life and long These P. 46. saith Sir Thomas Smith be taken now as perfect Laws and Ordinances of the Realm of England and none other and as shortly as may be are printed except it be some Private Acts made for the Benefit or Prejudice of some Private Man these be only exemplified under the Seal of the Parliament CHAP. XXIX Of Factious Combinations in Parliaments I Hope in the foregoing Chapters I have so explained the Constitution of Parliaments and the Legislative Power that unbiassed and unprejudiced Persons will no more be misled by the Sophisms and plausible pretences which to aggrandize the Power of the two Houses at first and after of the Commons House only the Penmen of the long Parliament made use of yet because many of late were furbishing the rusty Armour of their Demagogues and trimming their Helmets with fresh Plumes I conceive it necessary to take notice of some of their chiefest Arguments and examine those which had greatest Influence upon the People The great and venerable name of Parliament and its Authority was constantly used as Shield and Buckler to ward off all the Force of the Loyal Assaults and Mr. Prynne writ a large Volume which he stiled The Soveraign Power of Parliaments and when the very Lees and Dregs of the Commons House was put in Ferment that very Kilderkin would admit no lower Stile than the supreme Authority of the Nation to be pearched on its Bunghole Therefore to disabuse the less considerate The various Acceptation of the word Parliament and to detect the Frauds of those which under that great Name applyed whatever they met with in the Laws or History to the House of Commons I think it necessary in the first place to clear the acceptation of the Word Appropriated to the Lords House Sometimes the word Parliament is used for the House of (a) Egerton sect 4. 22 23. Lords only as when upon Writ of Error any Judgment in the King's-Bench is examined in the House of Lords the Judgment is said to be affirmed or reversed by Parliament The Appellation of Parliament is likewise used for the two Houses To both the Houses in regard they are the gross Body whereof the Parliament consists there only wanting the Sovereign Head to compleat it But they are so far from being the High Court of Parliament that they cannot co-unite to be an entire Court either of Sovereign or Ministerial Justice but only in concurring in Votes in their several Houses for preparing of matters in order to an act of all the Body which when they have done their Votes are so far from having any legal Authority in the State as in Law there is no Stile or Form of their joynt Acts further than Bills nor doth the Law so much as take notice of them till they have Royal Assent without which the Votes of the two Houses dye in the Womb like an Embryo So that the proper use of the word Parliament How properly the High Court of Parliament as Authority of Law-making is annexed to the name is only when the King and the two Houses concurr in one Act and in that sence only is the Parliament the Supream Court the highest Judicatory and the most Sovereign Power Not for any Soveraignty in the two Houses and from them transferred to the King by their joining and consenting with him but because every compleat and perfect Act of it is the Act of
the Kings Lieutenants in England as the Lords Justices were sometimes I suppose in Ireland before (t) Coram quibus non alibi nisi coram semetipso Concilio suo vel Aâ—ditoribus specialibus falsa Judicia Errores Justiciariorum reâ—ertuntur corriguntur whom and no where else unless before the King himself and his Council or special Commissioners false Judgments and Errors of Justices are reversed and corrected and there are determined Breeves of Appeals and other Breeves upon Criminal Actions and Injuries against the Peace of the King And Bracton saith That in Criminal Matters if they touched the King's Person as Treason they were tried coram Rege if concerning private matters then before the Justices only By many Records it appears The Kings of England used to fit in this Court that the King sometimes sate in this Court and that sometimes the King ordered it to follow his Court as particularly in 28 E. 1. (u) Cap. 5. it was established in the Statute of Articuli super Chartas Robert de Bruis was the first Capitalis Justiciarius ad placita coram Rege 8 March (w) Pat. 52. H. 3. m. 24. 52 H. 3. the Title of Justiciarius Angliae of whose great Power the learned (x) Glossary Spelman and (y) Sacred Laws Sir Henry Spelman about the Office of the Chief-Justice of England Mr. White have given an account having an end in Phillip Basset who was advanced to that place 45 H. 3. Who desires further satisfaction may consult Mr. Crompton's Jurisdiction des Courts c. 4. Sir Ed. Coke Sir William Dugdale Mr. Prynne and the Authors they cite who are many and learned and do at large treat of its Jurisdiction and the Practice in it which are foreign to my Design SECT 4. The Court of Common-Pleas The Common-Pleas THis Court of Common-Pleas appears to be as antient as Henry the First 's time for in his Charter to the (z) Coke's Reports part 8. Abbat of B. he grants Connusance of all Pleas so that neither the Justices of the one Bench or of the other or Justices of Assize should meddle Bracton (a) Cognoscunt de omnibus Placitis de quibus Authoritatem habent cognoscendi sine Warranto Jurisdictionem non habent nec Coercionem Lib. 3. c. 10. fol. 105 b. saith This Court had Cognizance of all Pleas of which Authority is given them without warrant they neither having Jurisdiction or Coercion Therefore Sir Edward Coke saith That regularly this Court cannot hold any Common-Plea in any Action real personal or mixt but by Writ out of Chancery returnable in this Court This Court proper for Pleas betwixt Party and Party Those that treat of this Court agree That it was for hearing and determining all Controversies in matters Civil betwixt Party and Party called the Common-Pleas as contradistinct from Pleas of the Crown and was anciently kept in the Kings own Palace Not to follow the King 's Court. In Magna Charta it is granted That the Common-Pleas shall not follow the Kings Court but shall be held in a certain place The Exchequer having been the place where these Causes were heard till (b) Articuli super Chartas cap. 4. 28 E. 1. that by Statute it was provided that no Common-Plea shall from henceforth be held in the Exchequer contrary to the form of the Great Charter The first who had the Appellation of Capitalis Justiciarius in this Court according to Sir William Dugdale was Gilbert de Preston who by that Title had his Livery of Robes (c) Liberat. 1 E. 1. m. 4. 1 E. 1. The number of the Justices (d) See Sir William Dugdale's Origines Juridiciales p. 39 b. The number of the Justices varied 3 E. 2. were Six 14 E. 3. they were Nine the latter end of Henry the Fourth and all the Reign of Henry the Seventh they were but Four Those that would be satisfied about the Jurisdiction of this Court may have recourse to Mr. Richard Crompton's Jurisdiction of Courts c. 7. fol. 91. the Year-Book quoted in Ash his Promptuary Sir Henry Spelman's Glossary tit Bancus Capitalis Justiciar de Banco Communi p. 417. Sir W. Dugdale's Origines Juridiciales Prynne's Animadversion p. 52. and many other good Authors cited by them SECT 5. Court of Chancery THE Court of Chancery in some Writers is placed the first Coâ—rt of Chancery in others as I have placed it Although it is true what Sir Edward (e) Sir Edw. Coke's Arguments for the Antiquity of the Chancery Coke saith That Kings had their Chancellors in the Saxon times indeed he adds the Brittish also of which little can be known yet I dare not avouch with him that the Court of Chancery was then as now the only Court out of which Original Writs do issue it is true that to the Charter of King (f) Spehran Tom. 1. Concil p. 631. Edward the Confessor maâ—e to the Abbat of Westminster amongst the Witnesses it is said Ego Swardus (g) Swyerg trius in Spelman Notarius ad vicem Reynbaldi Regiae dignitatis Cancellarii hanc cartam scripsi subscripsi So (h) Glossary fol. 106. Adulph is accounted Chancellor to King Edgar and Tâ—rketil to King Edred and King Edmund and Wolsine to King Athelstan and that the Chancellor had a Court may be presumed from what is found in the Book of Ely writ as it is supposed about King Stephen's time that King Aethelred who Reigned about Anno 978. appointed and granted Answer Canceliarius qui vel Regum praecepta aut Acta Judicum scribit Spelm. Gloss fol. 104. that the Ch. of Ely then and ever after in the Kings Court should have the dignity of the Chancery which albeit as Sir Edward Coke saith it was void in Law to grant the Chancellourship of England in Succession yet it proveth that then there was a Court of Chancery As to the first it is apparent that the Chancellor then had the power of composing the Charters and before Seals were in use might also subscribe with the Sign of the Cross as other of the Kings Officers did but this doth not prove what kind of Court he was made Judge of for there the Notary in the Chancellors room signs last and in the (i) Tom. 1. p. 486. Councils of Sir Henry Spelman's Edition I find Adulph stiled Herefordensis (k) Id. p. 489. Ecclesiae Catascapus signing last of the Abbats See Spelman Glossar p. 106. As to the Book of Ely I know not how to understand that the Church should have any dignity of Chancellorship in the Kings Court and if it be meant of the Bishop of that See only it might possibly be meant to be the principal Chirographer or drawer of the Kings Charters As to what is found in the Mirror it is of no great validity being writ according to the then custom of the Age wherein the Author