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
Magnatibus Proceribus dicti Regni nostri colloquium habere tractatum Tibi praecipimus firmiter injungentes quod facta Proclamatione in proximo Comitatu tuo post receptionem hujus Brevis nostri tenendo die loco praedicto duos Milites gladiis cinctos magis idoneos discretos Comitatus praedicti de qualibet Civitate Comitatus illius duos Cives de quolibet Burgo duos Burgenses de discretioribus magis sufficientibus libere indifferenter per illos qui Proclamationi hujusmodi interfuerint juxta formam Statutorum inde editorum provisorum eligi nomina eorundem Militum Civium Burgensium sic electorum in quibusdam Indenturis inter te illos qui hujusmodi Electioni interfuerint inde conficiendis sive hujusmodi electi praesentes fuerint vel absentes inseri eosque ad dictum diem locum venire facias ita quod iidem Milites plenam sufficientem potestatem pro se Communitate Comitatus praedicti Cives Burgenses pro se Communitate Civitatum Burgorum praedictorum divisim ab ipsis habeant ad faciendum consentiendum his quae tunc ibidem de communi Concilio dicti Regni nostri favente Deo contigerint ordinari super negotiis ante dictis Ita quod pro defectu potestatis hujusmodi seu propter improvidam Electionem Militum Civium aut Burgensium praedictorum dicta negotia infecta non remaneant quovis modo Nolumus autem quod tu nec aliquis alius Vicecomes dicti Regni nostri aliqualiter sit electus Et Electionem illam in pleno Comitatu factam distincte aperte sub Sigillo tuo Sigillis eorum qui Electioni illae interfuerint nobis in Cancellariam nostram ad dictum dâ—em locum certifices indilate remittens nobis alteram partem Indenturarum praedictarum praesentibus consutam una cum hoc Brevi Teste meipso apud Westmonast THE King to the Sheriff Greeting Whereas by the Advice and Consent of our Council Advice of Privy Council for certain difficult and urgent business concerning us and the State and defence of our Kingdom of England and the English Church we have ordained a certain Parliament of ours to be held at our City of c. the day c. next ensuing and there to have conference Conference with Prelates c. and to treat with the Prelates Great Men and Peers of our said Kingdom We command and straitly enjoyn you Proclamation at County-Court that making Proclamation at the next County Court after receipt of this our Writ to be holden the day and place aforesaid Two Knights girt with Swords c. you cause two Knights girt with Swords the most fit and discreet of the County aforesaid and of every City of that County two Citizens Two Citizens and of every Burrough Two Burgesses two Burgesses of the discreeter and most sufficient Indifferently chosen by those present at the Proclamation according to Statutes to be freely and indifferently chosen by them who shall be present at such Proclamation according to the tenure of the Statutes in that case made and provided Their Names inserted in Indentures betwixt the Sheriff and the Electors and the names of the said Knights Citizens and Burgesses so chosen to be inserted in certain Indentures to be then made between you and those that shall be present at such Election whether the parties so elected be present or absent and shall make them to come at the said day and place To cause them to come at the Day and Place The Knights from the County the Citizens and Burgesses from their Cities Burroughs to have full power to do and consent so that the said Knights for themselves and for the County aforesaid and the said Citizens and Burgesses for themselves and the Commonalty of the aforesaid Cities and Burroughs may have severally for them full and sufficient power to perform and to consent to those things which by the favour of God shall there happen to be ordained by the Common Council of our said Kingdom concerning the businesses aforesaid Lest for want of that Power or improvident Election the Business be undonâ— so that the business may not by any means remain undone for want of such power No Sheriff to be chosen or by reason of the improvident Election of the aforesaid Knights Citizens and Burgesses Election to be in full County But we will not in any case you or any other Sheriff of our said Kingdom shall be elected The Indentures to be sealed by the Sheriff and Electors And at the day and the place aforesaid the said Election made in the full County Court A Counterpart tacked to the VVrit returned into the Chancery you shall certify without delay to us in our Chancery under your Seal and the Seals of them which shall be present 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 SECT 7. Concerning the Speaker and the Privileges of the House of Commons IT is not my design to treat of all things relating to the Constitution My Design not to controvert the Privileges of the House of Commons but to shâ—w the gradual Alterations Laws and Customs of the House of Commons there are several useful Books extant which are fit for the Honourable Members of the House to consult What I most aim at is to shew what the Ancient Usage hath been and how from time to time things have been refined to the Mode and State they are now in and I hope those great Spirits that honour their Countries with their Service will pardon one that designs nothing more than to give them a Profile of the whole Model both in the days of our remotest Ancestors and what it was in more Modern times under just and undoubted Soveraigns as also how much it was transformed when the pretended House of Commons being confederated with a successful Army murthered their Soveraign voted away the House of Lords and assumed the Title of the Supream Authority of the Nation of which last I shall treat in the next Chapter The Members being according to the Kings Command come to the place appointed sometimes the Soveraign with the Lords in their Robes have rid in State to the Parliament which is generally yet observed in Scotland and Ireland The Solemnity at the Opening of the Parliament However at the opening of the Parliament the King is seated on his Throne under the Canopy with his Royal Crown on his Head the Chancellor standing something backward on his right-Right-hand and the great Officers as Lord Treasurer Lord President of the Kings Council Lord Privy Seal Great Chamberlain the Lord Constable Marshal Lord Admiral Lord Steward and Kings Chamberlain attend on either side the State or in their Seats
found the greatest perfections of Human Nature to 〈◊〉 the like They do so justly and clearly support the Grandeur of Majesty the Dignity of the Crown with the Peace Liberty and Property of the Subject Whether Property was before Government or not that all Nations round about envy us for that felicity they can never hope to enjoy To disturb this blessed condition of the English Subject there are two Extremes The one of a People fond of a Notion of the Primitive fundamental of Government in the People that they will needs have Property in order of Nature before Government without considering that nothing is gained to their advantage by the concession of it For it must also be (f) Bishop of Lincoln's Preface to Power of Princes proved that it was before it in order of time for as one of the principal ends of Government is the preservation of mens acquisitions of Cattle and Fields by their industry so we must suppose some Government first because the right which any man hath to the acquired stock and lands must be ascertain'd to him by some Law which supposeth Government So that the dispute saith the Reverend Bishop is de Lana Caprina and when men have crowded themselves into the Circle they reap nothing but a Brain-sick giddiness and it is like the dispute in Macrobius Whether the Hen or Egg were first All that believe the Creation must own that Adam's Government was before any Mans property and the like may be said of Noah so that there is no need to have recourse to Articles or capitulations with the People which those make such a noise with unless they can first evince the World to be Eternal and Men to have sprung in some rank Soil as Tubera terrae Mushroms after a fruitful shower Another Extreme is what Mr. Hobbs every where in his Leviathan Against Arbitrary Sovereignty endeavours to establish viz That the Sovereign should be so absolute and so arbitrary that he should upon Exigents of State or at his own pleasure have the disposal of every Subjects fortune which how necessary it may be for vast Empires such as the Ottomans I dispute not But the Soveraigns of Christendom especially of England take no such measures to the advantages of themselves or their Subjects slavery The most judicious Earl of Clarendon in his eleborate Treatise against (g) Survey of Leviathan p. 110. Mr. Hobbs hath with great judgment refuted this opinion from whose Armory I shall borrow some of the Artillery though I dare not presume to use them with the same dexterity and address his Lordship doth This Propriety saith he introduceth the beauty of building and the cultivating of the Earth by art as well as industry that they and their Children might dwell in the Houses they were at the charge to build and reap the Harvest of those lands they had been at the charge to sow whatsoever is of civility and good manners all that is of art and beauty of rule and solid wealth in the world is the product of this the Child of beloved property and they 〈◊〉 at would strangle this Issue desire to demolish all buildings eradicate all plantations to make the Earth barren and live again in Tents and nourish their Cattle by successive marches into the Fields where the Grass grows Nothing but joy in propriety redeemed us from this barbarity and nothing but security in the same can preserve us from returning to it again If there be no Propriety continueth the great Lord there is nothing worth defending from foreign Enemies or from one another and consequently it is no matter what becomes of the Commonwealth For the Government can never be so vigorously assisted by a People who have nothing to lose as by those who defending it defend their own Goods and Estates which if they do not believe their own they will not much care into whose hands they fall To this wise Lord I may add what a great (h) Seneca Jure civili omnia Regis sum tamen illa quorum ad Regem pertinet universa possessio in singulos dominos discerpta sunt unaquaeque res habet possessorem suum Itaque dare Regi domum mancipia pecuniam possumus nec donare illi de suo dicimur Ad Reges enim poâ—stas omnium pertinet ad sâ—gula proprietas Statesman and Scholar hath long since observed That though by the Civil Law all are the Kings yet even those things whereof the Universal possession belongs to the King have their peculiar Owners So that we may give the King House Freehold or Money yet are not said to give him his own For to the King the Power over all appertains but to every single Person his Property according to that of Bulgaris to Zeno Omnia Rex possidet Imperio singuli dominio If it were thus under the absolute Power of the Roman Emperors in Seneca's time how much more secure may we judge Propriety in ours when so guarded by the Royal Sword and Scepter that in several cases Actions may be brought in defence of a Mans right even against the Crown and the Judges have pronounced Sentence against some claims of the King and ought to do so Whatever pains Mr. Hobs takes to render those precious words of Property unvaluable and insignificant we see that a better Philosopher than He and who understood the Rules of Government having lived under just such a Soveraign as Mr. Hobs would set up gives his judgment otherwise where he expresly tells us that he is (i) Errat si quis tutum sibiesse Regem putat ubi nihil a Rege tutum est Securitas securitaâ—e paciscenda est much deceived that thinks that King is in safety from whom the Subject is not safe in what he enjoys the security of the one being from the stipulation of the security of the other That in former ages also the condition of the English Subject hath been happier in enjoying greater security as to their Persons and Estates than the Subjects of Foreign Countries and that the English Laws and Government have been very tender of them appears by what another (k) De laudibus Legum Ang. c. 37. Lord Chancellor writes who lived in a turbulent age and was forced into exile with the Prince eldest Son to King Henry the Sixth He in many places treats of the miseries of the Peasants in France and of the generality of the French Subjects too tedious here to relate and in his free way of Dialogue with the Prince he divides Kingly Government into that which is Regal and Absolute and that which is Political In which last are condescensions of Princes to bound their Prerogative and this he commends to his Prince saying (l) Quis enim potentior liberiorve esse potesi quam qui non solum alios sed seipsum sufficit debellare Ib. No Prince can be reputed powerfuller or freer than that Prince who
fallacious Argument For it is found by experience that some few more crafty Citizens who have gained Credit with the People order Business in their close Committees and so undiscernably lead the Multitude to whatever they call the Publick Good of which they having prevailed upon their Affections are esteemed the most competent Judges by which any one of the Juncto for they must gratifie each other mutually is enabled to cross the Course of Law in a Friend's behalf and to put a sharper Edge upon the Sword of Justice when it strikes an Enemy These kind of men by frothy Eloquence in set Speeches cunningly fitted to the Capacity of the Common People having got the Art of changing the Peoples Opinion of Just and Unjust for Reasons are not weighed where such Numbers hold the Ballance their Art is to apply their Harangues to that which rules the weaker men the Affections and these are easily convinced and made the Measures of their Judgments the want of weight in the (d) Suaden'o docent non docendo suadent Premisses being supplied by an extraordinary love to the Conclusion The Judgments of Right and Wrong being not like Mathematical Knowledge are as various as their Interests different because they concern Meum and Tuum wherein Profit is the (e) Vtilitas Justi prope mater Aequi est Parent of Equitable and Just and these Ruling men when they have a mind to do a man a prejudice can easily transfer his Business to the Common Peoples Verdict where they shall be sure to have their Fleece torn off by the Brambles or Briars or suffer as cruel Death if they be judged Capital Offenders as those may be conceived to undergo that are rolled to death in a spiked Barrel So we find the Grecian Emperor Isacius Angelus and the two De Witts were torn in pieces when exposed to be worried by the Rabble Secondly as to Liberty 2. True Liberty is wanting in Democracy it is strange Men should so generally fall in love with a bare sound and court a name of freedom which duly examined signifies nothing They cannot mean by it a looseness from all Laws they dare not own such pernicious Licence the true debate is not Whether they shall admit the Bonds of Laws for they readily embrace them being forged and fitted by themselves but who shall impose them The question is not Whether (f) Non an servirent sed an servirent uni vel pluribus they should serve but Whether they should serve one or more and with them it is commonly called Liberty to serve many Masters Now if we rightly consider the restraint of our Freedom is that which is most valuable amongst the benefits of Government For this it is preserves Peace among men by it their hands are tied up from doing injury Every one it is true could wish to retain full and absolute liberty but not upon condition all others should enjoy the same For that love to it and delight in it is overbalanced by the fears and the sad consideration arising from the thoughts of others freedom to make us suffer as much as they may be tempted to inflict Besides where can true Liberty be where the unconstant Mobile have the dispensing of it who have no clear Idea of it are always catching at the shadow and the ungrasped Cloud for Juno Their Votes are easily corrupted when a (g) Platarc in Vita Marii Marius pours out Bushels of Corn in the Forum to buy them They are impelled as we see in crowds first one way then another ebbing and flowing in their actions like the unconstant Ocean and this they call their Liberty which rather is their servile Bondage being all this while in the shorter or longer Chain of their corrupt affections or weak judgments For how can we think the common body competent Judges to manage affairs who besides inconstancy and disorder do every thing in such a manner as it is very hard to separate Tumults and Multitudes and amongst Judges so qualified as they are it is not enough to give prudent Council but it must likewise be fortunate otherwise the judicious giver of it may probably find a great abridgment of his Liberty if not worse Thirdly Concerning Equality Concerning Equality while they urge it comes nearer to the Law of Nature by the same reason they must dissolve Government since it would take away all Magistrates Superiors and Inferiors Besides it is against Nature it self that there should be such Equality as to instance if in Rewards it had been intended Nature would have made all men equally deserving and Reason teacheth us that since we may excel others by Education and Industry greater Encouragements should be allotted in consideration of the charges of good breeding and of the extraordinary studies whereby Men enable themselves to serve the Publick Besides this Equality though pretended to conserve doth in truth destroy Unity for none are so quarrelsome none so subject to envy as equals Every one being Judge in his own case will yield nothing to common Justice To close this Chapter We may judge of the thriving of popular States by what we observe of Commons which are always poor and bare of good and wholesome Grass comparatively with Enclosures If these Wafts be taken into one Mans hand he causeth the fertile crop of Thistles to be Mowed stubbs up the Shrubs and Brambles ploughs up the Brakes trencheth and cultivates the Whole and encreaseth the profit four fold whereas when it lies in common every one serves his present turn of it overstocks it and nothing is bred upon it but poor Jades and Beasts of Burthen Yea the greater part of Men in a popular State being bred up to gain make Profit the rule of their Actions entertain but little sence of Honour and thereby the State is soon corrupted by their low affections so that though some may be rich yet the State can never be glorious In the standing Pools of popular Government from the putrilage and mud spawn swarms of Tadpols The rankness of such soyl brings store of Tares and Goss Docks and Nettles Here the Henbane Night-shade and Aconite grow too luxuriantly so that the medicinal and fragrant Plants rarely find room or cultivation CHAP. VII Of the several Forms of Government in Greece before and in Aristotle's time and of the Roman Commonwealth THE Philosopher observes (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. lib. 3. c. 15. that in remote Ages when there were fewer Persons of the sublimest eminence for Valour Wisdom Vertue and publick spiritedness to protect by their Courage and Conduct to institute Laws by their Wisdom to be a living Law by their just dealing and example to study the emolument and benefit of the common People by their good will to them (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. Kingly Government was solely used But after that many grew up to be equal in vertue they endured Kings no longer
the Earth is subject to the Power of the Emperor and he is constituted in the number of those Deities whom the Principal Divinity hath appointed to do and conserve all things grounded upon that Coin of (t) Adolphus Oâ—â—a p. 552. Constantius which hath on the reverse VICTOR OMNIVM GENTIVM But Mr. Selden hath sufficiently confuted this by shewing that the Roman Empire had its Limits or as Tacitus calls it its Claustra in Augustus Trajan's and Hadrian's time and that in the heighth of the Roman Empire there were Liberi Populi Regesque So that after the perusal of the several Instances he produceth none can be unsatisfied but that many other Princes enjoy their Supremacy as fully as the German Emperors in acknowledging no Superior but God as particularly I shall shew in what relates to England in the next Chapter For the fuller Expression of Majesty saith (u) Tit. Hon. cap. 4. Mr. Selden other Attributes have been given to Supream Princes which be Names as essential as those of Emperor and King yet they are not so convertible with them nor so particularly designing them These are chiefly Domini Dii Lords and Gods Of the one I have discoursed before of the other I shall now speak something This Title of Dominus or Lord Of the Title of Lord. How odious to the Romans importing properly a Master or Lord over Slaves was by the wisest of the Roman Emperors rejected though it be now grown (w) Nedum sermoâ—um stet honos gratia vivax Horat. de Arte Poet. so familiar that we use it to Tradesmen such a change being wrought by time in the Usage Emphasis or Signification of many other words (x) Domini Appellationem ut maledictum opprobrium semper exhorruit Suetonius tells us that Augustus at a Play hearing himself called Lord though with the Epithetes of Just and Good and finding the Spectators rejoicingly approve of it as applicable to him with his Hand and Countenance repressed the unbecoming Flatteries and the next day by a severe Edict prohibited it to be given him neither would he suffer his Children or Nephews to use it in their Complements or other Language to each other Neither would Tiberius endure this Title so much as in common Salutation whereupon the great (y) Tacitus 2. Annal. Historian and States-man observes Vnde Augusta lubrica oratio sub Principe qui libertatem metuebat adulationem oderat To which purpose (z) Sylvar 1. Statius speaks of Domitian Tollunt Innumeras ad astra Voces Saturnalia Principis sonantes Et dulci DOMINVM favore clamant Hoc solum vetuit licere Caesar Yet either the Poet flattered or dissembled or this was in the Infancy of the Empire for we find in (a) In Domit. c. 13. Suetonius that by his express Command the Titles of his Letters and other matters were Dominus Deus noster sic sieri jubet and Caligula before him endured it publickly and Festus (b) Act. Apost c. 25. v. 26. Lieutenant of Jewry in that of St. Paul's appeal calls Claudius absolutely Lord 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. Lord Emperor and the Emperor in his Petition to (c) Mâ—â—t F. ad Leg. Rhod. him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. Lord Emperor and the Emperor in his Answer calls himself Lord of the World (d) Diocletianus se primus omnium Caligulam post Domitianumque Dominum palam â—ici passus adorari se appâ—â—arique uti Deum Victor saith that Dioclesian the first of all the Emperors after Caligula and Domitian suffered himself openly to be called Lord to be adored and stiled as a God which may be understood of publick Salutations only For in Claudius and Antonine I have instanced to the contrary Also in a Gold Coin of the great and Religious Constantine stampt with his effigies sitting and his Court of Guard about him the (e) Aâ—olph Oâ—â—a p. 537. Inscription is FELICITAS PERPETVA AVGEAT REM DO MIN. NO ST The reason why some Emperors refused this Name as Pliny in his Panegyrick makes (f) Principis sedem obtines ne sit Domino locus Trajan to do when he saith Thou obtainest the place of the Prince that there may be no place for Lord was either because it seemed a Relative to Servus a Bondslave or in respect that it supposed if ill interpreted the Subject and his Substance to be in the Property of the Emperor For (g) Domini Appellatione continetur qui â—abet proprietatem eâ—si usus fructus alienus sit Ulp. F. de Sc. Silaniano l. 1. sect 1. Vlpian tells us that in the Laws of the Empire in the Appellation of Lord was signified he that had the Propriety although another was Usufructuary How considerable a Name of Dominion this was appears in Lucan who being one of the Pompeian Party that stood much upon the ancient Liberty of Rome saith that that Age first found those Appellations by which they lyed to the Lords (h) Lucan Pharsal lib. 5. Namque omnes Voces per quas jam tempore tanto Mentimur Dominis haec primum reperit Aetas That which I observe from hence is That by this Title of Dominus the Soveraignty of Princes and greater absoluteness was understood than the first Emperors were willing to seem to allow that they might avoid Envy in the Infancy of their Power Multa renascentur quae jam cecidere cadentque Quae nunc sunt in honore vocabula si voleâ— usus Horatâ—de Arte Poet. v. 70. and now so great a Power or Dignity is not so much understood by the Word either Latin or Greek in the Person it is applied to as when our Kings had the Title of Lords only of Ireland and yet had Kingly Supremacy and now our Nobility are called Lords and Domine in the Latin is dwindled to signify any Gentleman There are other Forms of Speech that either have been or are peculiar to Kings The Appellations in the Plural Number as the use of the Plural Number as We command We ordain Our Royal Favour Our Royal Care Pleasure c. This seems derived from the Jews saith (i) Tit. Hon. par 1. c. 7. Mr. Selden who say that in their Language by reason of the Plurality of Vertues or Power being the true Roots of Dignities which are supposed in a Superior they use the Plural Number to or of one Man So with their Elohim Gods joined to a Word of the Singular Number is by their Grammarians made an Enallage of Number chiefly to express Excellency in the Persons to whom it is referred But this hath since been used by single Persons as particularly by Margaret Countess of Richmond Mother to Henry the Seventh thus Nos Margareta Comitissa Richmondiae Mater excellentissimi Principis Domini Henrici c. Inspeximus c. Therefore I leave this as communicable to great and eminent Subjects and shall pass to the abstract
with the Ensigns of their Offices some of the Nobles being appointed to carry the Sword and the Cap of Maintenance Three great Gilt Maces are carried See for this more fully Elsyng's Method of holding Parliaments p. 86. and all the Heralds attend in their Cloth of Gold Coats The two Archbishops and Bishops in their Robes sit upon Benches next the Wall on the Right-hand and the rest of the Great Officers that stand not by the State and all the Nobility in order upon the Bench on the Left-hand or on the Forms that stand in the middle where also sit the Judges Master of the Rolls Secretaries of State twelve Masters of Chancery Atturney General Solicitor General and Clerk of the Crown and the other Clerks Assistants which it is not my business exactly to describe The King being Seated when it 's his pleasure Leave given to the Commons to chuse their Speaker the House of Commons are sent for who standing bare at the Lords Bar attend the King's Speech and the Chancellor's and then have leave to chuse their Speaker whom commonly some of the Members of the House that are of the King's Privy-Council propose and if any one oppose it (u) Hackwel p. 127. he is to name another But I shall refer the curious to Mr. Elsyng and others that treat of this at large Sir Edward Coke (w) 4. Instit p. 8. saith That though the Commons are to chuse their Speaker yet seeing that after their choice the King may refuse him for avoiding expence of time and contestating about it the use is as in the Conge de eslier of a Bishop that the King by some of his Privy-Council as in this present Parliament was done by the Earl of Middleton on of his Majesty's Principal Secretaries doth name a discreet and learned Man whom the Commons elect for without their Election no Speaker can be appointed for them because he is their Mouth and trusted by them and so necessary as the House of Commons cannot sit without him So that if he be totally disabled by grievous Sickness another must be chosen in his place as he instanceth in Sir John Cheney 1 H. 4. and Sir John Tirrel Whether the two Houses sate together 15 H. 6. But whereas (x) 4. Instit c. 1. sect 2. he affirms that in antient time the two Houses sate together and the surest mark of the time of the division of them was when the House of Commons had a continual Speaker Mr. Prynne (y) P. 8 9. in his Animadversions hath made the contrary very clear by several Records wherein it 's expresly said they consulted apart as particularly in 6 E. 3. (z) Et les Chivalers des Countez Gents du Communs par eux mesmes Rot. Parl. 6 E. 3. num 6. at York the Prelates Earls Barons and great Men by themselves and the Knights of the Counties and the People of the Commons by themselves treated of the Business propounded to them Another (a) Freeholders Grand Inquest p. 19. saith That if Sir Edward means the Lords and Commons did sit and vote together in one Body few will believe it because the Commons never were wont to lose or forgo any of their Liberties or Priviledges and for them to stand now bare where they were used to sit and vote upon this Supposal is an alteration not imaginable to be indured by them and when we consider the sole Power of Judicature in the Lords and who the Burgesses were in old times it still makes it more improbable and it is to me a very remarkable thing that neither in History or Record any thing is to be found that will clear this doubt However it is certain that (b) Rot. Parl. 50 E. 3. num 8. 50 and 51 E. 3. the Commons had a Speaker and Sir Edward Coke (c) Coke Instit 4. p. 255. saith that the accustomed (d) Ancient Place saith Elsyng p. 84. place of that thrice worthy Assembly of the Knights Citizens and Burgesses of Parliament when held in Westminster was in the Chapter-house of the Abbat of Westminster and it continued so till the Statute of 1 Ed. 6. c. 14. which gave the King Colleges free Chappels c. whereby the King enjoyed the beautiful free Chappel of St. Stephen founded by King Stephen which had Lands and Revenues of the old yearly value of 1089 Pound ten Shillings five Pence since which time the Chappel thereof hath served for the House of Commons when Parliaments have been held at Westminster As Sir Edward Coke because he believed the two Houses sate together will not allow them to have had a Speaker before 50 E. 3. so on the other hand Mr. (e) Id. p. 123. Elsyng saith That the Commons ever had a Speaker none will doubt for their Consultation apart from the Lords though he thinks they often met and did sit together in one Room and then a Speaker was necessary to avoid Confusion of Speech and Argument But he brings no better Argument for it (f) Lib. Sti. Albani Bibl. Cotton fol. 207. than that Petrus de Mountfort (g) It should be 42 H. 3. That Peter Mountfort was not Speaker of the Commons House 44 H. 3. signed the Letter to Pope Alexander touching the recalling of Adomar elect Bishop of Winchester from Banishment Wherein they say if the King and the Regni Majores hoc volent Communitas tamâ—n ipsius in Angliam jam nullatenus sustineret and this was sealed by all the Lords and by Peter de Mountford vice totius Communitatis which he saith sheweth plainly they had a Speaker In answer to which I suppose it a great mistake to say that Petrus de Mountfort signed the Letter vice Communitatis which either ignorantly or willfully is Printed in Mr. Elsyng Comitatus for (h) Additament Math. Paris 1132 1133. Anno Dom. 1258. 42 H. 3. ult Edit Matthew Paris who relates the whole Story saith it was signed by ten Persons who were all great Barons vice totius Communitatis and the Preface of the Letter shews it was Communitas Comitum Procerum Magnatum aliorumque Regni Angliae and this aliorum can mean only the Milites which held by Military Service of the great Barons and the lesser Tenents in Capite which were no Representatives of the Commons as our Knights Citizens and Burgesses at this day are and the Inscription of the Popes Letter shews who he understood this Communitas to be when he superscribes it dilectis Filiis Nobilibus viris Consiliariis clarissimi in Christo Filii nostri illustris Regis Angliae ac caeteris Proceribus Magnatibus Regni Angliae Now the Persons that subscribed this are thus ranked by Matthew Paris R. de Clare Gloverniae Herefordiae S. de Monteforti Legriae E. Bigod Marescallus Angliae H. de Bohun Hertfordiae Essex W. Albemarle J. de Placeto Warewici Comitis H. Bigod Justiciarius Angliae P.
Entries fol. 446 447. Trin. 1 Eliz. not in the Commons House as the Statutes and Precedents in the Law-Books resolve So that he saith how the Commons are now become sole Judges of all false Returns and Elections and that perlegem consuetudinem Parliamenti against all these Acts and Precedents let Sir Edward Coke and others resolve him and the Intelligent when they are able for late and arbitrary Priviledges are of no value but ancient usage and Law of our Parliaments and solid Reason which cannot be produced to justify these late Innovations and Extravagances The Statute of 8 H. 6. Rot. Parl. 8 H. 6. num 391. Petitions from the Commons to the King and Lords about Elections to prevent Tumults Uproars and Disorders in the Elections is grounded upon a Petition from the Commons that the King by advice and assent of the Lords Spiritual and Temporal would seclude all but Freeholders of forty Shillings a Year Lands above all Reprizals which was more than forty Pound a Year now being the twentieth part of a Knights Fee In 18 H. 6. Rot. Parl. 18 H. 6. m. 13. num 18. it was shewed to the King and the Lords Spiritual and Temporal That Gilbert Hore Sheriff of the County of Cambridge made no Return of Knights upon the King 's Writ Whereupon the King by Advice and Assent of the Lord Spiritual and Temporal ordered a new Writ So that then there were no other but the King that had the Power to cause new Elections with Advice and Consent of the Lords and so the King issued out new Writs Anno 29 H. 6. Nicholas Stynecle Knight Richard Bevel c. and other notable Esquires Gentlemen and other Men holding Fees who may expend 40 s. per Annum beyond Reprizes chose Robert Stonham and John Stynecle notable Esquires To this is annexed a Petition to the King our Gracious and Sovereign Lord Petition of Subjects to the King about Elections signed by 140 Gentlemen and Freeholders in behalf of those against one Henry Gimber who was not of Gentile Birth chosen by the number of 70. and the Under-Sheriff countenanced him and his Party and would not suffer these 140 to be examined about their Estates and give Voice thoue he might clearly yarely expend 20 Mark without that we should have offended the Peace of Yow our most doutye Soveraign Lord and so we departed for dread of the said Inconveniences that was likely to be done of Manslaughter and what the Sheriff will return in this behalf we can have no notice For which Causes we your true humble Suggets and Liegemen in our most lowly Wise beseeching you our most douty Sovereign Lord and King these Premisses may be considered for Your most Aid and our Freedom that the said Sheriff may be by Your great Highness streightly charged to return the said Robert Stoneham c. Thus far the Petition From this memorable Petition Mr. Prynne makes many observations the principal of which are that the King himself was to redress and rectify all false and undue Returns Secondly That this is the only clear Declaration and Record he hath met with complaining against a Sheriff giving of an Oath A Sheriffs denying the Poll petitioned against and Poll to some Freeholders and denying it to others Thirdly That when legal Electors cannot be sworn or polled without breach of the Peace or Manslaughter they may justly depart and ought to make such a complaint and declaration under their hands and Seals Fourthly That Ignoble persons who are not of Gentile birth ought not to be elected Knights of Shires Whoever desires to peruse more concerning the ancient usage in Elections may peruse Mr. Prynne's Plea for the Lords from page 371. to 416. his Second Part of Brief Register p. 118 119 139 140. and several other places I shall only add what Queen Eliz. Freeholders Grand Inquest p. 60. D' Ewes's Journal fol. 393. 18 Regni said in this case That she was sorry the Commons medled with chusing and returning Knights of the Shire for Norfolk it is to be presumed the like she might have said of any other County if there had been occasion a thing impertinent for the House to deal with and only belonging to the Office and Charge of the Lord Chancellor from whom the Writs issue and are returned Having thus given a brief account of the ancient Usage I come to the modern way which according to Mr. Hackwell Memorials c. 6. p. 20. The modern Use of Regulating Elections is that a general order hath usually been made in the beginning of the Session to Authorize the Speaker to give Warrant for new Writs in case of Death of any Member or of double Returns where the Party makes his choice openly in the House during that Session as it was ordered in the beginning of the Parliament 18 and 21 Jacobi primi and where such general Order is not made Writs have issued by Warrant of the Speaker by Vertue of special Order upon motion in the House and this Warrant is to be directed to the Clerk of the Crown in Chancery by order of Parliament 13 Nov. 1601. The Committee of Privileges 24 March 21 Jacobi making their Report a question was put Whether Sir Thomas Holland and Sir John Corbet were well elected Knights for Norfolk the House were divided and it was over-ruled by the House that the No's should go forth So that now the House of Commons are the sole Judges of the validity or invalidity of Elections and I suppose the King and Lords judging the House the competentest Persons to make enquiry and being willing to be eased of the trouble of such Matters as relate only to the Members of the House of Commons have rather by connivence than by any positive Ordinance in the House of Lords dismissed this to the House of Commons against which Mr. Prynne sadly complains Plea for the Lords p. 413. saying That since the Committees of Privileges have interposed in them their Proceedings have been very irregular and illegal in respect all the Witnesses they examine touching them are unsworn and give their Testimonies without Oath upon which they ground their Vote and for the most part very partially for which cause it is usually stiled the Committee of Affection In 35 Eliz. Sir Simon D' Ewes's Journal p. 494. In Queen Elizabeth's time Application made to the Chancellor or L. Keeper Sir Edward Coke being then Speaker he was ordered to attend the Lord Keeper to move his Lordship to direct a new Writ for chusing a Burgess for Southwark instead of Richard Hutton supposed to be unduly elected and another for allowing Sir George Carew who was duly elected but not returned to be Burgess of Gamelsford in Cornwal and a third for changing the name of John Dudley returned Burgess for New Town in the County of Southampton into the name of Thomas Dudley the Christened Name being mistaken But the L. Keeper would
calling those who were learned in the Laws for Assistants therein as Mich. 53 and 54 H. 3. rot 37. in the Case of Assise of Mort d'auncester brought by Alexander King of Scots against John de Burgo But as hereafter I shall shew much of the Power of the Kings Council is now taken away The Fourth Council of the King The King's Council at Law are the Kings Judges at Law who are his Council at Law in all Cases wherein he hath occasion to consult them as appears in the Law Books and particularly may be found in (q) 1. Instit lib. 2. cap. 10. sect 164. Sir Edward Coke of which I may have occasion to speak in the Chapter of Judges I thought to premise these things for the better understanding of the differences of the Kings several Councils and shall now proceed to discourse of the most Honourable Privy Council in general as Counsel is necessary for Princes to have and as they ought to be qualified what their Office and Imployment is and ought to be both in Relation to all Princes Secret Councils and particularly according to the constitution of England according to my poor Abilities The most Honourable Privy-Council consists of Noble and Wise Persons chosen by the Prince to assist him with their sage and faithful Advice in the weighty Affairs of Government Kings cannot by their own personal knowledge comprehend (r) Nec unilts me â—â—em tantâ—e molis esse capacem Tacit. 1. Annal. all things therefore it is needful for them to assume others in participationem curarum especially great and weighty Affairs need great Coadjutors as Paterculus (s) magna negotia magnis egere adminiculis Velleius l. 2. well notes and the * Principis labores queis orbem terrae capessit egere adminicu lis ut domestica cura vacuus in commune consular Tacitus 12. Annal. grave Historian tells us That Labours of Princes by which they manage their vast Countries need helps that being free from Domestick Cares they may consult for the Publick Whoever looks only upon the Port and Grandeur of Princes their soft Raiment and feeding delicately may think it a pleasing and desirable State but they never reflect on the anxious Cares the difficulties of managing Matters upon which great and momentous events and ordering of vast bodies of different Interests depend Therefore the (t) Rhetor. ad Alex. Philosopher well noted That to give give good Counsel is one of the Divinest things among Men. Whereas on the other Hand when Counsel is supine Government must be tottering but a Mind (u) Animus qui verum seit scit tuto aggredi Thucyd l. 1. setled in Resolves safely attempts any thing That Reason being the soundest which useth Cunctation and Deliberation and forefears as well as foresees what will happen because in acting it will produce Confidence For they must be a great Defect where Counsel is not taken before Action It being for Sword-Players not those that bear the Sword of Magistracy In arena Consilium capere As to the use of Counsellors (w) Quod fieri debet tractato cum multis quod facturus es cum paucissimis fidelissimis Lib. 3. de Re militari Vegetius tells us it becomes a Prince to treat of those things which ought to be considered with many but those which are to be executed with few or rather by himself agreeable to which is what the learned Lord (x) St. Alban's Essays p. 88. Chancellor notes That some Affairs require extream Secrecy which will hardly allow to go beyond one or two Persons besides the King neither are those Councils unprosperous for besides the Secrecy they commonly go on constantly in one Spirit of Direction without Distraction but such are only to be used by a prudent King who can grind with an Handmill A great part part of the (y) Idem p. 87. Skill of a Prince is discovered in the choice of wise Counsellors and the managing of their Counsels require the greatest Address Ability and Dexterity of Sovereigns Therefore the Antients feigned Jupiter to marry (z) Idem Wisdom of the Ancients Princes to have the Honour of Councils Metis viz. Counsel and she being with Child by him he eat her up and was delivered of Pallas out of his own Head The Moral of which is That Princes refer matters to Council and when the Council grows ripe they are not to suffer their Council to go through with the resolution and direction as if it depended on them but to take matters back again into their own Hands and so make them appear to issue from themselves with Prudence and Power as from their own Head and Advice as Pallas came forth armed fitted for present Action It is in vain for Princes to take Counsel concerning matters Choice of Persons if they take not Counsel likewise concerning Persons for the greatest Errors are committed and the most Judgment shown in Individuals There was never King bereaved of the Benefit of Counsel except when there hath been an over greatness in one Counsellor or an over-strict Combination in divers which are things soon found out and helped therefore Principis maxima est virtus nosse suos In Council the King presiding Princes not to open their Inclinations too much should not open his own Inclination too much in that which he propoundeth if he desire sincere delivery of the Counsellors Judgments lest his Authority sway too much Therefore Princes should take the Opinion of their Council both separate and together private Opinion being more free and Opinion before others more reverend It is therefore a Prince's greatest Interest to be unprejudicate and to keep an open Ear to all wholesome Counsel for as Capitolinus (a) In Gordiano Juniore saith Miser est Imperator apud quem vera reticentur That prince is in a very bad Condition from whom the true Estate of his Affairs is concealed Several wise Princes have with an even Hand distributed their regards to Counsellors that have mortally hated one another Making use of Counsellors of different Perswasions or Interests as some observed in Louvoy and Colbert and it is a certain sign of a good Workman that can work with any Tool The advantage a Prince hath is that they are Spies one upon another and will be both aemulous who can do their Masters Services best but if they grow to be the Heads of different Factions they will prove most dangerous Having thus far proceeded as to the Interest of a Prince in his Counsellors and their advice I shall speak to the Qualifications of Counsellors In (b) Leo Imp. de Belli apparatu secret affairs faithful temperate and close Persons are most fit Counsellors and who have no private Interest The Qualifications of Counsellors for Secrecy is that invisible Clasp that buckles great Affairs the hidden hinge upon which they are moved according to (c) Taciturnitas optimum ac