Parliament and the time of 40 daies expresly specified to intervene between the summons and the beginning of the Parliament Which Commons being such as antiently did hold in Capite and either having a Knights fee or the degree of Knighthood did first promiscuously attend in these publick meetings and after were reduced to four quatuor discretos milites de Comitatu tuo as c Id. ibid. the writ ran unto the Sheriff and at last to two as they continue to this day 5. We have it thus in the Magna Charta of King Henry the 3d. the birth-right of the English Subject according as it stands translated in the book of Statutes First we have granted to God and by this our present Charter have confirmed for us and our heirs for ever that the Church of England shall be free and shall enjoy all her whole Rights and Liberties inviolable d Magna Charta cap. 1. But it was a known Right and Liberty of the Church of England that all the Bishops and many of the greater Clergy and peradventure also the inferiour Clergy wherof more anon had their Votes in Parliament and therefore is to be preserved inviolable by the Kings of England their Heirs and Successors for ever Which Charter as it was confirmed by a solemn Curse denounced on all the Infringers of it by Boniface Arch-bishop of Canterbury e Matth. Patis in Henr. 3. and ratified in no fewer man 30 succeeding Parliaments so was it enacted in the reign of Edward the first that it should be sent under the great Seal of England to all the Cathedral Churches of the Kingdom to be read twice a year before the people f 25 Edw. 1. c. 2. that they should be read four times every year in a full County-Court g 28 Edw. 1. c. 1. and finally that all judgements given against it should be void h 25 Edw. 1. c. 3. 6. We have the Protestation of John Stratford Arch-bishop of Canterbury in the time of King Edward the 3d. who being in disfavour with the King and denyed entrance into the House of Peers challenged his place and suffrage there as the first Peer of the Realm and one that ought to have the first Voice in Parliament in right of his See But hear him speak his own words which are these that follow Amici for he spake to those who took witness of it Rexme ad hoc Parliamentum scripto suo vocavit ego tanquam major Par Regni post regem primam vocem habere debens in Parliamento jura Ecclesiae meae Cantuariensis vendico ideo ingressum in Parliamentum peto i Antiqu. Bâ—itan in Joh. Stratford which is full and plain 7. And lastly there is the Protestation on Record of all the Bishops in the reign of King Richard the 2d at what time William Courtney was Arch-bishop of Canterbury who being to withdraw themselves from the House of Peers at the pronouncing of the sentence of death on some guilty Lords first made their Procurators to supply their rooms then put up their Protestation to preserve their Rights the sum whereof for as much as doth concern this business in their own words thus De jure consuetudine regni Angliae ad Archiepiscopum Cantuariensem qui pro tempore fuerit nec non coeteros Suffraganeos confratres compatres Abbates Priores aliosque Praelatos quoscunque per Baroniam de domino Rege tenentes pertinet in Parliamentis Regis quibuscunque ut Pares regni praedicti personaliter interesse ibidemque de regni negotiis ac aliis tractari consuetis cum caeteris dicti regni Paribus aliis ibidem jus interessendi habentibns consulere tractare ordinare statuere diffinire ac câ—etera facere quae Parliamento ibidem imminent facienda This put together makes enough abundantly for the proofs de jure k In vita Gul. Courtney and makes the Bishops right to have Vote in Parliament to be undeniable Let us next see whether this right of theirs be not confirmed and countenanced by continual practice and that they have not lost it by discontinuance which is my second kind of proofs those I mean de facto And first beginning with the reign of the Norman Conquerour we find a Parliament assembled in the fifth year of that King wherein are present Episcopi Abbates Comites Primates totius Angliae l Matth. Paris in Willielmo 1. the Bishops Abbats Earls and the rest of the Baronage of England In the 9th year of William Rufus an old Author telleth us de regni statu acturus Episcopos Abbates quoscunque Regni proceres in unum praecepti sui sanctione egit that being to consult of the affairs of the Kingdom he called together by his writ the Bishops Abbots and all the Peers of the Realm m Eadmer hist Nov. l. 2. During the reign of Henry the 2d for we will take but one example out of each King reign though each Kings reign would yield us more a Parliament was called at London wherein were many things dispatched aswell of Ecclesiastical as secular nature the Bishops and Abbats being present with the other Lords Coacto apud Londoniam magno Episcoporum Procerum Abbatumque Conciliâ— multa ecclefiasticarum secularium rerum ordinata negotia decisa litigia saith the Monk of Malmesâ—ury n Malmesb. hist reg Angl. l. 5. And of this Parliament it is I take it that Eadmer speaketh Hist. Novell l. 4. p. 91. Proceed we to King Henry the 2d for King Stephens reign was so full of wars and tumults that there is very little to be found of Parliaments and there we find the Bishops with the other Peers convened in Parliament for the determination of the points in controversie between Alfonso King of Castile and Sancho King of Navarre referred by compremise to that King of England and here determined by King Henry amongst other things habito cum Episcopis Comitibus et Baronebus cum deliberatione consilio as in Roger Hoveden o Hoveden Annal. pars poster in Hen. 2. Next him comes Rich. the first his Son during whose imprisonment by the D. of Austria his Brother John then Earl of Moriton indeavoured by force and cunning in Normandy to set the Crown on his own head which caused Hubert the Arch-bishop of Canterbury to call a Parliament Convocatis coram eo Episcopis Comitibus et Baronibus regni p Id. in Joh. wherein the Bishops Earls and Barons did with one consent agree to seize on his estate and suppress his power the better to preserve the Kingdom in wealth peace and safety After succeeded John and he calls a Parliament wherein were certain Laws made for the defence of his Kingdom Communi assensu Archiepiscoporum Episcoporum Comitum Baronum omnium fidelium suoâ—um Angâ—iae by the common counsell and assent of the Arch-bishops Bishops Earls Barons and the rest of
versari The States saith he of England have a kind of authority but all the rights of Soveraignty and command in chief are at the will and pleasure of the Prince alone 12. And to say truth although the Lords Commons met in Parliament are of great authority especially as they have improved it in these later times yet were they never of such power but that the Kings have for the most part over-ruled them made them pliant conformable to their own desires and this not only by themselves but sometimes also by their Judges by their counsel often For such was the great care and wisdom of our former Kings as not to venture single on that numerous body of the two Houses of Parliament whereby the Soveraignty might be so easily overmatched but to take with them for Assistants as well the Lords of their Privy Counsel with whom they might advise in matters which concerned them in their Soveraign rights as their learned Counsel as they call them consisting of the Judges and most eminent Lawyers from whom they might receive instruction as the case required and neither do nor suffer wrong in point of Law and by both these as well as by the power and awe of their personal presence have they not only regulated but restrained their Parliaments And this is easily demonstrable by continual practice For in the Statute of Bigamie made in the fourth k 4 Ed. 1. year of King Edward 1. it is said expreâ—ly that in the presence of certain reverend Fathers Bishops of England and others of the Kings Counsel the Constitutions under-written were recited and after published before the King his Couusel forasmuch as all the Kings Counsel as well Justices as others did agree that they should be put in writing and observed In the Articuli super Chartas when the Great Charter was confirmed at the request of the Prelates Earls and Barons l 28 Ed. 1. c. 2. we find these two clauses the one in the beginning thus Nevertheless the King and his Counsel do not intend by reason of this Statâ—te to diminish the Kings right m Ibid. c. 20. c. The other in the close of all in these following words And notwithstanding all these things mentioned or any part of them both the King and his Counsel and all they which were present at the making of this Ordinance do will and intend that the right and prerogative of his Crown shall be saved in all things In the 27th of King Edward the 3d. n 27 Ed. 3. The Commons presenting a Petition to the King which the Kings Counsel did mislike were content thereupon to mend and explain their Petition the form of which Petition is in these words following To their most redoubted Soveraign Lord the King praying the Commons that whereas they have prayed him to be discharged of all manner of Articles of the Lyre c. which Petition seemeth to his Counsel to be prejudicial unto him and in disherison of his Crown if it were so generally granted his said Commons not willing nor desiring to demand things of him which should fall in disherison of him or of his Crown perpetually as of Escheats c. but of trespasses misprisions negligences and ignorances c. In the 13 of the reign of King Richard the 2d when the Commons did pray that upon pain of forfeiture the Chancellor or Counsel of the King should not after the end of the Parliament make any Ordinance against the Common law o 13 Rich. 2. the King by the advise of his Counsel answered Let it be used as it hath been used before this time so as the Regality of the King be saved for the King will save his Regalities as his Predecessors have done In the 4th year of King Henry 4. p 4 Hen. 4. when the Commons complained against Sub-poenae's and other writs grounded upon false suggestions the King upon the same advise returned this answer that he would give in charge to his Officers that they should abstain more than before time they had to send for his Subjects in that manner But yet saith he it is not our intention that our Officers shall so abstain that they may not send for our Subjects in matters and causes necessary as it hath been used in the time of our good Progenitors Finally not to bring forth more particulars in a case so clear it was the constant custome in all Parliaments till the Reign of King Henry 5. q Henr. 5 that when any Bill had passed both houses and was presented to the King for his Royal Assent the King by the advise of his Privy Counsel or his Counsel learned in the Laws or sometimes of both did use to crosse ouâ— and obliterate as much or as little of it as he pleased to leave out what he liked not and confirmed the rest that only which the King confirmed being held for Law And though in the succeeding times the Kings did graciously vouchsafe to pass the whole Bill in that form which the Houses gave it or to reject it wholly as they saw occasion yet still the Privy Counsel and the Judges and the Counsel learned in the Laws have and enjoy their place in the House of Peers aswell for preservation of the Kings rights and Royalties as for direction to the Lords in a point of Law if any case of difficulty be brought before them on which occasions the Lords are to demand the opinion of the Judges and upon their opinions to ground their Iudgement As for example In the Parliament 28 of Hen. 6. The Commons made sure that VVilliam de la Pole Duke of Suffolk should be committed to Prison for many treasons and other crimes r 28 Hen. 6 and thereupon the Lords demanded the opinion of the Judges whether he should be committed to Prison or not whose Answer was that he ought not to be committed in regard the Commons had not charged him with any particular offence but with generals only which opinion was allowed and followed In another Parliament of the said King held by Prorogation one Thomas Thorpe the Speaker of the House of Commons was in the Prorogation-time condemned in 1000 l. dammages upon an Action of Trespass at the sute of Richard Duke of York and was committed to Prison for execution of the same The parliament being reassembled the Commons made suâ—e to the King and Lords to have their Speaker delivered to them according to the privilege of Parliaments t The privilege of the Barons p. 15. the Lords demanded the opinion of the Judges in it and upon their Answer did conclude that the Speaker should still remain in Prison according to Law notwithstanding the privilege of Parliament and according to this resolution the Commons were commanded in the Kings name to choose one Tho Carleton for their Speaker which was done accordingly Other examples of this kind are exceeding obvious and for numbers infinite yet neither more
the Bishops and inferiour Clergy Civitates universitates the Cities and Towns Corporate for so I think he means by vniversitates as Thuanus b Id. lib. 131. mustereth them And in this Realm the Bishops and Clergy enjoy the place and priviledges of the third Estate notwithstanding the alteration of Religion to this very day the Bishops in their own persons and a certain number of the Clergy out of every Sochen a division like our Rurall Deanries in the name of the rest having a necessary Vote in all their Parliaments And as for Scotland their Parliament consisted anciently of three Estates as learned Camden doth informe us that is to say the Lords spirituall as Bishops Abbots Priors the Temporall Lords as Dukes Marquesses Earles Vicounts Barons and the Commissioners of the Cities and Burroughs c Camden in descript Scotiae To which were added by King James two Delegates or Commissioners out of every County to make it more conforme to the English Parliaments And in some Acts the Prelates are by name declared to be the third Estate as in the Parliament Anno 1597. Anno 1606 c. for which I do referre you to the Book at large 6 And now at last we are come to England where we shall find that from the first reception of the Christian Faith amongst the Saxons the Ecclesiasticks have been called to all Publick Councels and their advice required in the weightiest matters touching the safety of the Kingdome No sooner had King Ethelbert received the Gospell but presently we read that as well the Clergy as the Laity were called unto the Common Councell which the Saxons sometimes called Mycell Synoth the Great Assembly and sometimes Wittenagemots d Coke on Liâ—l 2. sect the Councell or Assembly of the Wise men of the Realm Anno 605. Ethelbertus Rex in fide roboratus Catholica c. Cantuariae convocavit commune concilium â—am Cleri quam populi c. e H. Spelman in Concil p. 126. King Ethelbert as my Author hath it being confirmed in the Faith in the year 605. which was but nine years after his conversion together with Bertha his Queen their Son Eadbald the most Reverend Archbishop Augustine and all the rest of the Nobility did solemnize the Feast of Christs Nativity in the City of Canterbury and did there cause to be assembled on the ninth of January the Common-Councell of his Kingdome aswell the Clergy as the Lay Subject by whose consent and approbation he caused the Monastery by him built to be dedicated to the honour of Almighty God by the hand of Augustine And though no question other examples of this kinde may be found amongst the Saxon Heptarchs yet being the West Saxon Kingdome did in fine prevail and united all the rest into one Monarchy we shall apply our selves unto that more punctually Where we shall finde besides two Charters issued out by Athelstan Consilio Wlfelmi Archiepiscopi mei aliorum Episcoporum meorum f Ap. eund p. 402 403. by the advice of Wlfelm his Archbishop and his other Bishops that Ina in the year 702. caused the great Councell of his Realm to be assembled consisting ex Episcopis Principibus proceribus c. of Bishops Princes Nobles Earls and of all the Wise men Elders and People of the whole Kingdome and there enacted divers lawes for the Weal of his Realm g Apud eund p. 219. Thus do we read that Egbert who first united the seven Kingdomes of the Saxons under the name of England did cause to be conveened at London his Bishops and the Peers of the highest rank pro consilio capiendo adversus Danicos Piratas h Charta Whitlafii Merciorum Regis ap Ingulf to advise upon some course against the Danish Pirates who infested the sea coasts of England Another Parliament or Councell call it which you will called at Kingsbury Anno 855. in the time of Ethelwolph the Son of Egbert pro negotiis regni i Chart. Bertulfi Merc. Regis ap Ingulf to treat of the affaires of the Kingdome the Acts whereof are ratified and subscribed by the Bishops Abbots and other great men of the Realme The same King Ethelwolph in a Parliament or Assembly of his States at Winchester Anno 855. Cum consilio Episcoporum principum k Ingulfi Croyland hist by the advice and counsell of the Bishops and Nobility confirmed unto the Clergy the tenth part of all mens goods and ordered that the Tithe so confirmed unto them should be free ab omnibus secularibus servitutibus for all secular services and impositions In the reigne of Edred we finde this Anno 948. In Festo igitur nativitatis B. Mariae cum universi Magnates regni per Regium edictum summoniti tam Archiepiscopi Episcopi ac Abbates quam caeteri totius regni proceres optimates Londoniis convenissent ad tractandum de negotiis publicis totius Regni l Id ibid. p. 497 edit Lond. viz. That in the Feast of the Nativity of the blessed Virgin the great men of the Realm that is to say Archbishops Bishops Abbots Nobles Peeres were summoned by the Kings Writ to appear at London to handle and conclude about the publick affaires of the Kingdome Mention of this Assembly is made againe at the foundation and endowment of the Abbie of Crowland m Id. p. 500. and afterwards a confirmation of the same by Edgar Anno 966. praesentibus Archiepiscopis Episcopis Abbatibus Optimatibus Regni n Id pag. 501. 502. in the presence of the Archbishops Bâ—shops Abbots and Peers of the Kingdome Like convention of Estates we finde to have been called by Canutus after the death of Edmund Ironside for the setling of the Crown on his own head of which thus the Author o Rog. Hoveden Annal pars prior p. 250. Cujus post mortem Rex Canutus omnes Episcopos Duces nec non principes cunctosque optimates gentis Angliae Londoniae congregari jussit Where still we finde the Bishops to be called to Parliament as well as the Dukes Princes and the rest of the Nobility and to be ranked and marshalled first which clearly shewes that they were alwaies reckoned for the first Estate before the greatest and most eminent of the secular Peers And so we finde it also in a Charter of King Edward the Confessor the last King of the Saxon race by which he granted certain Lands and priviledges to the Church of Westminster Anno 1066. Cum consilio decreto Archiepiscoporum Episcoporum Comitum aliorumque Optimatum p Ap. H. Spelman in Concil p. 630. with the counsell and decree of the Archbishops Bishops Earls and others of his Nobles And all this while the Bishops and other Prelates of the Church did hold their Lands by no other tenure then in pura perpetua eleemosyna q Camden in Brit. or Frank almoigne as our Lawyers call
convocato n Rog. Hov. in Hen 2. the Clergy and people of the Realm were called to Clarendon anno 1163. by King Henry the second for the declaring and confirming of the Subjects liberties that in the year 1185 towards the later end of the said Kings reign Convocatus est Clerus populus cum tota Nobilitate ad fontem Clericorum o Matth. paris in Hen. 2. the Clergy Commons and Nobility were called unto the Parliament held at Clerkenwell and finally that a Parliament was called at London in which the Arch-bishop of Canterbury was present cum toto Clero tota secta Laicali p Quadrilog ap Selden Tit. of Hon. pt 2. c. 5. in the time of King John Hitherto then the Clergy of both ranks and orders as well as Populus or tota secta Laicalis the Subjects of the Laity or the Lords and Commons had their place in Parliament And in possession of this right the Clergy stood when the Magna Charta was set out by King Henry the 3d wherein the freedoms rights and privileges of the Church of England of which this evidently was one was confirmed unto her q Magna Charta cap. 1. of the irrefragable and inviolable authority whereof we have spoke before The Cavill of Excluso Clero which hath been used against the voting of the Bishops in the house of Peers comes in next for proof that the inferiour Clergy had their place or vote with the house of Commons if in those times the Lords and Commons made two houses which I am not sure of the Clergy could not be excluded in an angry fit or out of a particular design to deprive them of the benefit of the Kings protection if they had not formerly a place amongst them if we will not understand by Clerus the inferior Clergy which much about that time as before we shewed began to be the legâ—l English of the word we must needs understand the whole Clergy generally the Clergy of both ranks and orders But our main proofs are yet to come which are these that follow First it is evident that antiently the Clergy of each several Diocese were chargeable by Law for the expences of their Proctors in attending the service of the Parliament according as the Counties were by Common law since confirmed by Statute 23 H. 6. c. 11. to bear the charges of their Knights the Burroughs and Cities of their Representees which questionless the Laws had not taken care for but that the Clergy had their place in Parliament as the Commons had And this appears by a Record z Rotul Parent 26 Ed. 3. pt 1. M. 22. of 26 of King Edward the 3d. in which the Abbat of Leieester being then but never formerly commanded to attend in Parliament amongst others of the Regular Prelates petitioned to be discharcharged from that attendance in regard he held in Frank-Almoigne only by no other tenure Which he obtained upon this condition ut semper in Procuratores ad hujusmodi Parliamenta mittendot consentiat ut moris est eorundem expensis contribuat that is to say that he and his Successors did give their voyces in the choyse of such Procuratours as the Clergy were to send to Parliament and did contribute towards their charges as the custom was Next in the Modus tenendi Parliamentum which before we spake of there is amodus convocandi Clerum Angliae ad Parl. Regis r Modus tenendi Parl. Mâ— a form of calling the English Clergy that is the Prelates Clergy as John Selden e renders it to the Court of Parliament said to be used in the time of Edward the Son of Ethelred s V. Titles of hon pt 2. presented to the Conquerour and by him observed which shews the Clergy in those times had their place in Parliament Which being but a general inference shall be delivered more particularly from the Modus it self which informs us thus Rex est caput principum finis Parliamenti c. t Modus tenendi Parl. Ms. c. 12. The King is the head the beginning and end of the Parliament and so he hath not any equal in the first degree the second is of Arch-bishops Bishops and Priors and Abbats holding by Barony the third is of Procurators of the Clergy the fourth of Earls Barons and other Nobles the fifth is of Knights of the Shire the sixt of Citizens and Burgesses and so the whole Parliament is made up of these six degrees But the said Modus tells us more and goeth more particularly to work than so For in the ninth chapter speaking of the course which was observ'd in canvassing hard and difficult matters it telleth us that they used to choose 25 out of all degrees like a grand Committee to whose consideration they referred the point that is to say two Bishops and three Proctors for the Clergy two Earls three Barons five Knights five Citizens and as many Burgesses And in the 12th that on the fourth day of the Parliament the Lord high Steward the Lord Constable and the Lord Marshal were to call the house every degree or rank of men in its several Order and that if any of the Proctors of the Clergy did not make appearance the Bishop of the Diocese was to be fined 100 l. And in the 23d chapter it is said expresly that as the Knights Citizens Burgesses in things which do concern the Commons have more authority than all the Lords so the Proctors for the Clergy in things which do concern the Clergy have more authority than all the Bishops Which Modus if it be as antient as the Norman Conquerour as both Sir Edward Coke conceiveth u Preface to the 9th part of Reports and the title signieth it sheweth the Clergies claim to a place in Parliament to be more antient than the Commons can pretend unto but if no older than the reign of King Edward third as confidently is affirmed in the Titles of Honour x Titles of hon pt 2. c. 5. if sheweth that in the usage of those later times the Procurators of the Clergy had a right and place there as well as Citizens and Burgesses or the Knights of the Shires And this is further proved by the writs of Summons directed to the Arch-bishops and Bishops for their own comming to the Parliament in the end whereof there is a clause for warning the Dean and Chapter of their Cathedralls and the Arch-deacons with the whole Clergy to be present at it that is to say the Deans and Arch-deacons personally the Chapter and Clergy in their Proctours then and there to consent to such Acts and Ordinances as shall be made by the Common counsail of the Kingdom The whole clause word for word is this y Extant ibid. pt 2. c. 5. Praemunientes Priorem Capitulum or Decanum Capitulum as the case might vary Ecclesiae vestrae N. ac Archidiacanos totumque Clerum vestrae Dioceseos
quod iidem Decanus Archichidiaconi in propriis personis suis ac dictum Capitulum per unum idemque Clerus per duos Procuratores idoneos plenam sufficientem potestatem ab ipsis Capitulo Clero habentes praedicto die loco personaliter intersint ad consentiendum iis quae tunc ibidem de communi consilio ipsius Regni nostri divina favente clementia contigerit ordinari Which clause being in the Writs of King Edward 1. and for the most part of the reign of his next Successorsâ— till the middle of King Richard the second at which time it began to be fixt and formal hath still continued in those writs without any difference almost between the Syllables to this very day z Id. ibid. Now that this clause was more than Verbal and that the Proctors of the Clergy did attend in Parliament is evident by the Acts and Statutes of King Richard the second the passages whereof I shall cite at large the better to conclude what I have in hand The Duke of Glocester and the Earl of Arundel having got the mastery of the King obtained a Commission directed to themselves and others of their nomination to have the rule of the King and his Realm a Statur 21 R. 2. c. 2. and having their Commission confirmed by Parliament in the 11 year of his reign did execute divers of his Friends and Ministers and seized on their Estates as forfeited But having got the better of his head-strong and rebellious Lords in the one and twentieth of his reign he calls a Parliament in the Acts whereof it is declared That on the Petition of the Commons of the assent of all the Lords Spiritual and Temporal and of the Proctors of the Clergy he repealed the said Statute and Commission b Ibid. c. 2. and with the assent of the said Lords and Commons did ordain and establish that no such Commission nor the like be henceforth purchased pursued or made This done the heirs of such as had been condemned by vertue of the said Commission demanded restitution of their Lands and Honors And thereupon the Lords Spiritual and Temporal and the Procuratours of the Clergy the Commons having prayed to the King before as the Appellants prayed severally examined did assent expresly that the said Parliament and all the Statutes c. should be voyd c. and restitution made as afore is said c Ibid. c. 12. And also the Lords Spiritual and Temporal the Procuratours of the Clergy and the said Commons were severally examined of the Questions proposed at Notingham and of the Answer which the Judges made unto the same which being read aswell before the King and the Lords as before the Commons it was demanded of all the States of the Parliament what they thought of the Answers and they said that they were lawfully duly made c. And then it followeth whereupon the King by the assent of the Lords Spiritual and Temporal and the Procuratours of the Clergy and the said Commons and by the advise of the Justices and Sergeants aforesaid who had been asked their opinion in point of Law ordained and established that the said Parliament should be annulled and held for none Adde unto this that passage in the 9 of Edward 2. where it is said that many Articles containing divers grievances committed against the Church of England the Prelates Clergy were propounded by the Prelates and Clerks of our Realm in Parliament and great instance made that convenient remedy might be appointed therein d Proem ad articulos Clâ—ri that of the complaints made to the King in Parliament by the Prelates and Clergy of this Realm 50 Ed. 3. 5. 8 Rich. 2. c. 13. and that of the Petition delivered to the King in Parliament by the Clergy of England 4 Hen. 4. c. 2. Selden hist of Tithes c. 8. 33. And finally that memorable passage in the Parliment 51 Edw. 3. which in brief was this The Commons finding themselves agrieved aswell with certain Constitutions made by the Clergy in their Synods as with some laws or Ordinances which were lately passed more to the advantage of the Clergy than the Common people put in a Bill to this effect viz. That no Act nor Ordinance should from thenceforth be made or granted on the Petition of the said Clergy without the consent of Commons and that the said Commons should not be bound in times to come by any constitutions made by the Clergy of this Realm for their own advantage to which the Commons of this Realm had not given consent The reason of the which is this and 't is worth the marking car eux ne veullent estre obligez a nul de vos estatuz ne Ordinances faitz sanz leur assent because the said Clergy did not think themselves bound as indeed they were not in those times by any Statute Act or Ordinance made without their Assent in the Court of Parliament Which clearly shews that in those times the Clergy had their place in Parliament as the Commons had Put all which hath been sayd together and tell me if it be not cleer and evident that the inferiour Clergie had their place in Parliament whether the Clause touching the calling of them thither were not more than verbal in the Bishops writs and is true that in the writ of summons directed to their several and respective Bishops they were called only ad consentiendum to manifest their consent to those Acts and ordinances which by the Common counsell of the Realm were to be ordained But then it is as tru withall that sometimes their advice was asked in the weighty matters as in the 21 of K. Richard the 2. and sometimes they petitioned and remonstrated for redress of grievances as in the instances and cases which were last produced And 't is as true that if they had been present only ad consentiendum to testifie their assent to those Acts which by the common Counsell of the Realm were proposed unto them their presence was as necessary and their voice as requisite to all intents and purposes for ought I can see as the voice and presence of the Commons in the times we speak of For in the writs of summons issued to the several Sheriffs for the electing of Knights Citizens and Burgesses to attend the Parliament it is said expressely first that the King resolveth upon weighty motives touching the weal and safety both of Church and State to hold his Parliament e Foâ—ma Brevis pro fammonit Parliamenti et ibidem cum Praelatis Magnatibus et Proceribus dicti regni nostri colloquium habere et tractare then and there to advise and treat with the Prelates Peers and Nobles of this Realm Which words are also expressely used in the writs of summons directed to the Bishops and to every of them who also are required in a further clause consilium suum impendere f
made in Parliament the King passed a Law to this effect viz. r 4 Hâ—n 8. c. 8. That ull sutes condemnations executions charges and impositions put or hereafter to be put upon Richard Strode and every of his Complices that be of this Parliament or aâ—y other hereafter for any Bill speaking or reasoning of any thing concerning the Parliament to be communed and treated of shall be void and null but neither any reparation was allowed to Strode nor any punishment inflicted upon those that sued him for ought appears upon Record And for the Houses joyned together which is the last capacity they can claim it in they are so far from having the supreme authority that as it is observed by a learned Gentleman they cannot so unite or conjoyn as to be an entire Court either of Soveraign or Ministerial jurisdiction no otherwise co-operating than by concurrence of Votes in their several Houses for preparing matters in order to an Act of Parliament s Case of our Affairs p. 9. Which when they have done they are so far from having any legal authority in the State as that in Law there is no stile nor form of their joynt Acts nor doth the Law so much as take notice of them until they have the Royal Assent So that considering that the two Houses alone do no way make an entire Body or Court and that there is no known stile nor form of any Law or Edict by the Votes of the two Houses only nor any notice taken of them by the Law it is apparent that there is no Soveraignty in their two Votes alone How far the practise of the Lords Commons which remaind at Westminster after so many of both Houses had tepaired to the King c. may create Precedents unto posterity I am not able to determine but sure I am they have no Precedent to shew from the former Ages But let us go a little further and suppose for granted that the Houses either joynt or separate be capable of the Soveraignty were it given unto them I would fain know whether they claim it from the King or the people only Not from the King for he confers upon them no further power than to debate and treat of his great Affairs to have access unto his person freedome of Speech as long as they contein themselves within the bounds of Loyalty authority over their own Members which being custumarily desired t Hakewell of passing bils in Parliament and of course obtained as it relates into the Commons shews plainly that these vulgar privileges are nothing more the rights of Parliament than the favours of Princes but yet such favours as impart not the least power of Soveraignty Nor doth the calling of a Parliament ex opere operato as you know who phrase it either denude the King of the poorest robe of all his Royalty or confer the same upon the Houses or on either of them whether the King intend so by his call or otherwise For Bodin whom Mr. Prynne hath honored with the title of a grand Politician u Pryn of Parliam par 2. p. 45. doth affirm expresly Principis majestatem nec Comitorum convocatione nec Senatus populique praesentia minui x Bodin de Repub. that the majesty or Soveraignty of the King is not a jot diminished either by the calling of a Parliament or Conventus Ordinum or by the frequency and presence of his Lords and Commons Nay to say truth the Majesty of Soveraign Princes is never so transcendent and conspicuous as when they sit in Parliament with their States about them the King then standing in his highest Estate as was once said by Henry 8. who knew as well as any of the Kings of England how to keep up the majesty of the Crown Imperial Nor can they claim it from the people who have none to give for nemo dat quod non habet as the saying is The King as hath been proved before doth hold his Royal Crown immediately from God himself not from the contract of the people He writes not populi clementia but Dei gratia not by the favour of the people but by the grace of God The consent and approbation of the people used and not used before the day of coronation is reckoned only as a part of the solemn pomps which are then accustomably used The King is actually King to all intents and purposes in the Law whatever immediately on the death of his Predecessor Nor ever was it otherwise objected in the Realm of England till Clark and Watson pleaded it at their arraignment in the first year of King James y Speeds History in K. James Or grant we that the Majesty of this Kingdom was first originally in the people and by them devolved upon the King by their joynt consent yet having given away that power by their said consent and setled it upon the King by an Act of State confirmed by Oaths and all solemnities which that Act requires they cannot so retract that grant or make void that gift as to pass a new conveyance of it and settle it upon their Representees in the House of Commons Or if they could yet this would utterly exclude all the Lords from having the least share or portion in this new found Soveraignty in that they represent not the common people but sit there only in their own personal capacities and therefore must submit at last to these new made Soveraigns who carry both the Purse Sword at their own girdles So then the people cannot give the Soveraignty and if they have no power to give it the Lords and Commons have no claim thereunto de jure See we next therefore how much of this Soveraignty they or their Predecessors rather have enjoyed de facto in peaceable and regular times fit to be drawn into example in the Ages following The chief particulars in which the Soveraignty consists we have seen before and will now see whether that any of them been exercised and injoyed in peaceable and regular times by both or either of the two Houses of Parliament And first for calling and dissolving Parliaments making of Peers granting of liberty to Towns and Cities to make choyse of Burgesses which antiently had no such liberty treating with forein States denouncing war or making Leagues or Peace after war commenced granting safe conduct and protection indenizing of Aliens giving of honors unto eminent and deserving persons rewarding pardoning coyning printing making of corporations and dispensing with the Laws in force they are such points which never Parliament did pretend to till these later times wherein every thing almost is lawfull I am sure more lawâ—ull than to fear God and honor the King Nor do I find that Mr. Prynne hath laboured to entitle them to these particulars For levying of Arms and the command of the Militia besides that the Kings of England have ever been in possession of it and that possession never disturbed
unto them and aâ—e so far from praying for them that many times they pray against them blaspheming God because he will not curse the King and making that which they call Prayer so dangerous and lewd a libel that their very prayers are turned to sin CALVIN requires such moderation in the subject that they neither intermeddle in affairs of State nor invade the Office of the Magistrate and that if any thing be amiss in the publick Government which stands in need of Reformation they presume not to put their hands unto the work or be tumultuously active in it e Sect. 23. His followers will not trust the Magistrates in the performance of their own Office but are all Counsellors and Statesmen and think that nothing is done well but what is done as they would have it and by their own hands too none other Whether things be amiss or not they must needs be doing Not by presenting their desires for a Reformation and making known the fault if such fault there be to their Supreme Magistrates which was the way their Master taught them but by raising tumults to affright them The attempt of the French Hugonots at Ambois upon Charles the ninth and the two tumults at Edenburgh the one about the year 1593. against the person of King James and the other in the year 1637. against the Ministers of King Charles will not be forgotten whilest Calvin and his Institutions are in print amongst us CALVIN requires that we should yeeld obedience not only to such Kings and Princes which faithfully and as they ought do discharge their Office but even to all those also which do nothing less then perform their duties f Sect. 25. not only to the meek and gentle but even unto the fiercest and most cruel Tyrant if any such be raised by God to the Kingly throne g Sect. 27. His followers resolve not to yeeld obedience to their Kings and Princes though they can charge them with no fault but their too much lenity unless it be that they have caused them to surfeit upon peace and plenty or that the people grew too rich and lived too happily and drove too great a Trade under their command and are so far from yeelding obedience to a Tyrant or a severer and cruel Prince call him which you will that neither the innocent minoritie of Charles the ninth nor the moderate Government of the Duchess of Parma in the Netherlands nor the milde peaceable temper of King James when he reigned in Scotland could save them from their insolencies and insurrections Finally CALVIN doth declare that though we be inhumanely handled by a cruel Prince or by a covetous and luxurious Prince dispoyled and rifled though by a slothful one neglected or vexed for our Religion by a lewd and wicked yet it pertains not unto us to redress these mischiefs that all the remedie that we have is to cry to God h Sect. 29. and till God takes the work in hand to obey and suffer i Sect. 31. and absolutely condemns those seditious thoughts which some men are too apt to harbour that we must deal with Kings no otherwise then they shall deserve k Sect. 27. His Followers if they think themselves oppressed though indeed they are not or that Religion is in danger though indeed it be not or the honor of the State neglected though never of so much repute nor so bravely managed will not descend so low as to cry to God or be so pusillanâ—mous and so poorly minded as only to obey and suffer that were a weakness fit for none but the primitive Christians but take the sword into their hands be it right or wrong to force their Kings to come unto a reckoning with them as if they would have reparation from them for their former sufferings and could have reparation no way but that And as for dealing with their Kings no otherwise then they do deserve although the maxime be unsafe and the very thought thereof seditious as their Master tells them would they would hold themselves to that which had they done so many Kings in Christendom had not been so unjustly handled driven from their Palaces expelled their Cities robbed of their Fortresses and Revenues assaulted in the open fields and forced sometimes to change both their Counsel and their Guards the ordinary practise by the Hugonots in France the Presbyterians in Scotland the Calvinists in the Netherlands and indeed where not had they been dealt withall no otherwise then they deserved 7. Next let us look upon them in their points of doctrine and we shall finde the Scholars and their Master at a greater distance then before we saw them at in point of practise CALVIN determines very soundly that Kings have their authoritie from none but God non nisi a se habere imperium l Sect. 25. that the supreme Magistracie is a jurisdiction devolved from God upon the person of the Magistrate or delegata a Deo jurisdictio m Sect. 22. that it is the singular work or act of God to dispose of Kingdoms and to set up such Kings as to him seems meet which he calls Singularem Dei actionem in distribuendis Regnis statuendisque QUOS ILLI VISVM FVERIT REGIBVS n Sect. 26. and finally that in every King or Supreme Governor there is inviolabilis majestas an indelible character of Majestia imprinted by the hand of God His Scholars tell us that Kings are only creatures of the peoples making and that whatever power they have is derived from them The Observator and the Fuller Answer unto Dr. Fern and almost all our later Scriblers do resolve it so They tell us secondly which must needs follow from the former that the people have the sole power of disposing Kingdoms and setting up such Kings as they list themselves and being so set up that there is no more Majestie no brighter beam of Gods divinitie in them then in other men Buchannan so affirms for certain Populo jus est imperium cui velit deferat o Buchannan de jure regni and confidently reckoneth those reverend attributes of Majestie and Highness which usually are given to Kings and Princes inter soloecismos barbarismos Aulicos p Id. in Epist ad amongst the Solecisms and absurdities of Princes Courts CALVIN determines very Oxthodoxly that though the King degenerate and become a tyrant though he infringe the subjects liberties and invade their fortunes persecute them for their pietie and neglect their safetie and be besides a vitious and libidinous person yet still his Subjects are to look upon him in all things which pertain to their publick duties with as much honour and obedience as they would do the justest and most vertuous Prince that was ever given unto a people Eadem in reverentia dignatione habendum quantum ad publicam obedientiam attinet qua optimum Regem si dareâ—ur habituri essent q Sect.
Commonwealth And as amongst the Archontes in the State of Athens which were nine in number one of them was called the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or the Archon in the way of excellency after whose name the year was called and their reckonings made as Titio Sempronio Coss in the State of Rome so had the Ephori their Eponymus one who by way of eminency was called the Ephorus c Pausan lib. 3. in Lacon But for this first reason of their institution take it thus from Plutarch d Plutarch in Lycurgo 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Lycurgus having thus tempered the form of his Common-wealth it seem'd notwithstanding unto those which came after him that this small number of thirty persons which made the Senate was yet too mighty and of too great authority Wherefore to bridle them a little they gave them as he cites from Plato a bit in their mouthes which was the authority of the Ephori erected in the time of King Theopompus about 130 years after the death of Lycurgus A second reason which induced those Kings to ordain these Ephori was to ease themselves and delegate upon them that remainder of the Royal power which could not be exercised but within the City For the Kings having little or no command but in wars abroad cared not for being much at home and thereupon ordained these Officers to supply their places Concerning which Cleomenes thus discourseth to the Spartans e Id. in Agis Cleomenes after they had destroyed the Ephori and suppressed the Office informing them that Lycurgus had joyned the Senators with the Kings by whom the Common-wealth was a long time governed without help of any other Officers that afterwards the City having great wars with the Messenians the Kings were alwaies so imployed in that war that they could not attend the affairs of the State at home and thereupon made choice of certain of their friends to sit in judgement in their stead whom they called the Ephori 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and for a long time did govern only as the Kings Ministers though afterwards by little and little they took unto themselves the supreme authority Another reason hath been given of the institution which is that if a difference grew between the two Kings in a point of judgement there might be some to arbitrate between them and to have the casting voice amongst them when the difference could not be agreed And this is that which Lisander and Mandroclidas two that had been Ephori suggested unto Agis and Cleombrotus the two Kings of Sparta declaring f Id. ibid. That the office of the Ephori was erected for no other reason 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. But because they should give their voices unto that King who had the best reason on his side when the other would wilfully withstand both right and reason and therefore that they two agreeing might lawfully do what they would without controlment that to resist the Kings was a breach of law considering that the Ephori by law had no power nor priviledge but only to arbitrate between them when there was any cause of jarre or controversie And this was so received at Sparta for an undoubted truth that Cleomenes being sole King upon the death of Agis of the other house recalled called Archidamus the brother of Agis from his place of banishment with an intent to make him King not doubting but they two should agree together and thereby make the Ephori of no power nor use So then we have three reasons of the institution and more then these I cannot finde of which there is not one that favoureth the device of CALVIN or intimateth that the authority of the Ephori was set up to pull down the Kings And to say truth it is a most unlikely matter that the Kings of Sparta having so little power remaining should need more Officers to restrain them then they had before that they should make a new rod for their own poor backs and add five Masters more to those eight and twenty which Lycurgus had imposed upon them Which makes me wonder much at Tully who doth acknowledge that the Ephori were ordained by Theopompus as both Aeristotle h Aristot Polit. l. 5. c. 11. and Plutarch do affirm and yet will have them instituted for no other cause nisi ut oppositi sint Regibus but to oppose and curb the Kings i Cicero de legibus l. 3. but more that Plato who had so much advantage of him both in time and place should ascribe the institution to Lycurgus and tell us that he did not only ordain the Senate 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 k Plato Ep. 8. edit gr lat To. 3. but that he did also constitute the Ephorate for the strength and preservation of the Regal power 5. For out of doubt it is affirmed by Plutarch l Plut. in Lycurgo confirmed by Scaliger m Scalig. animadvers in Euseb Chron. and may be gathered from some passages in Eusebius Chronicon and the authoritie of Aristotle who refers the same to Theopompus as before was shewed that the first Institution was no less then 130 years after the death of Lycurgus Who was the first that bore this Office hath been made a question but never till these later times when men are grown such Sceptics as to doubt of every thing Plutarch affirms for certain n Plutarch in Lycurgo 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that the first Ephorus that is to say the first 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 who had the name of Ephorus by way of excellencie for otherwise there were five in all was called Elatus and hereto Scaliger did once agree as appears expressly pag. 67. of his Annotations on Eusebius where he declares it in these words Primus Elatus renunciatur 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But after having a desire to controll Eusebius he takes occasion by some words in Diogenes Laertius to cry up Chilo for the man first positively Primus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 fuit Chilon and next exclusively of Elatus Quibus animadversis non fuerit Elatus primus Ephorus sed Chilon To make this good being a fancie of his own and as his own most dearly cherished he produceth first the testimony of Laertius and afterwards confirms the same by a new emendatio temporum a Calculation and accompt of his own inventing The words produced from Laertius are these verbatim 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 o Diogen Laeâ—t l. 1. in Chilo Which is thus rendred in the Latine and I think exactly Fuit autem Ephorus circa quinquagesimam quintam Olympiada Porro Pamphila circa sextam ait primumque Ephorum fuisse sub Euthydemo autore Sosicrate primumque instituisse ut Regibus Ephori adjungerentur Satyrus Lycurgum dixit If it be granted in the first place that Chilo was not made Ephorus until the 55 Olympiad as 't is plain he was not and Scaliger affirms as much it must
needs follow upon true account that either Chilo was not the first Ephorus or that the Ephori were not instituted in more then twice an hundred and thirtie years after Lycurgus had new molded the Common-wealth contrary unto that which is said by Plutarch and out of him repeated by Joseph Scaliger For from the time wherein Lycurgus made his Laws which was in the 25 year of Archelaus the eighth King of the elder house unto the death of Alcamenes which was the year before the first Olympiad p Euseb Chron. lib. post p. 114. of Scaligers edit were 112 years just none under From thence unto the last year of the 55. 220 years complete which put together make no fewer then 332 years full a large misreckoning Whereas the second year of the fifth Olympiad in which Eusebius puts the Institution of the Ephori both in the Greek and Latine Copies set out by Scaliger himself q Pag. 115. of the Latine 35. of the Greek Edition that second year I say being added to the 112 before-remembred in which King Alcamenes died makes up the full number of 130 which we finde in Plutarch and agrees punctually with the time of Theopompus who as it is confessed by Scaliger did first ordain them Nor doth Laertius say if you mark him well either that Chilo was the first that was ever Ephorus or the first that joyned the Ephori to the Kings of Sparta both which absurdities are by Scaliger imposed upon him For unto any one who looks upon Laertius with a careful eye it may be easily discerned that he speaks no otherwise of the Ephorate then of an Office instituted a long time before with the condition of the which Chilo was well acquainted and therefore thought himself more fit to undergo it then his Brother was who very earnestly desired it r Laertius in visa Chilon All that Laertius saith is no more but this that Chilo was made Ephorus first not the first Ephorus which was made as Scaliger would have it under Euthydemus and that as Satyrus affirmed who therein questionless was misled by Plato Lycurgus was the first who joyned the Ephori to the Spartan Kings which words viz. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he hath left out of purpose to abuse his Author and make him speak the thing which he never meant His other blunderings and mistakes to make good this business first laying the dissolution of the Ephorate by Cleomenes non multo ante vel post initium Philippi s Pag. 67. of the Animadvers either not long before or shortly after the beginning of the reign of Philip the last King of Macedon but one which indeed is true and within nine lines no more laying it in the 13. year of the self same King Philip most extremely false the changing of his Authors words from Fuit autem sub Regibus Lacedaemon annis 350 as they occur in the Translation of S. Hierom printed at Basil into Fuit sub Regibus Lacedaemoniorum Annis 350 against the Authors minde and the rules of Grammar only to bring about his device of Chilo and blinde his Readers eyes with a new Chronologie and others I could point to if my leisure served I purpose to forbear at the present time Nor had I been so bold with Scaliger at all or at least not now but that the proud man is more bold with the Antient Fathers whom he is pleased to look on with contempt and scorn as often as they come before him for which see pag. 255 of his Annotations And so I leave him with that censure which he gives Eusebius as learned and industrious an Antiquarie as any Scaliger of them all no man dispraised Erratis hujus Autoris enumerandis charta non suffecerit t Animadvers in Euseb p. 255. and so fare him well 6. But to proceed the Ephori being thus ordained by Theopompus became not presently of such authority and power as by degrees they did attain to For being chosen by the Kings as their proper Ministers as before was said and many times 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 even from their very neerest friends as we read in Plutarch u Plutarch in Agis Cleomen they were hard thrust at by the Senate and forced to put up many an affront from that mightier body And this was it that Chilo aimed at when he told his Brother who at the same time desired the Office and seemed offended that he lost it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 x Laertius in vita Chilon that he was better skilled in bearing injuries and affronts then his Brother was But this continued for no longer then whilest the Kings served their turns upon them to oppose the Senate and kept the nomination of them in their own hands For afterwards the Kings relinquishing the election to the common people upon a forlorn hope of gaining their affections by so great a benefit they began to set up for themselves and in a very little time gained all the custom of the City And of this new election I am apt to think that Chilo whom before we spake of was the first 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Which I propose not so much out of a desire to comply with Scaliger who for ought I can see aimed at no such matter as on the credit of Eusebius whom he so much slighteth For in Eusebius Chronicon of Joseph Scaligers own Edition after he hath put down the institution of the Ephori in the second of the fifth Olympiad as before I told you he gives this Item in the third of the five and fiftieth which is the very same that Laertius speaks of Chilo qui de Septem Sapientibus fuit Lacedaemone Ephorus constituitur y Euseb Chronic. lib. poster p. 127. dispositione communus gentis that Chilo one of the seven wise Masters was ordained Ephorus at Sparta by the general consent of all the people But whether this were so or not I am not able to determine absolutely All I observe from hence is this that it is past all question that from this time they took upon them more then they had done formerly and were intent on all advantages to improve their power For whereas at the first they were appointed by the Kings to sit in judgement in their steeds as before was said by little and little 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 z Plutarch in Agis Cleom. they drew that power unto themselves and exercised it in their own name by their own authoritie not as the Ministers of the Kings they would none of that but as the Officers of the Common-wealth And to that end they did erect a Court of Judicature which for power and greatness of authoritie was little inferiour to the Senate drawing unto them all such businesses as were 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Pausan l. 3. in Laconicis most worthy of care and consideration By means whereof as they drew many of the people to depend
Mother and Grand mother 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 g Id. ibid. And this saith Plutarch was the first time that ever the Ephori put a King to death And so perhaps it was the first but the last it was not For Archidamus the Brother of Agis being recalled from banishment by Cleomenes to the end he might enjoy the Kingom which did by right belong unto him was preseutly seised on by the murderers and dispatched in private for fear he should revenge the death of his slaughtered Brother h Id. ibid. By which it is most evident without further proof that the Spartan Aristocratie was become a tyrannie and of all Tyrannies the most insupportable because meerlie popular Or if more proof should be desired both Aristotle and his his Master Plato will not stick to say it though they both died before these two last Tragedies were acted on the stage of Sparta For Plato being to declare what he conceived of the Government of that Common-wealth resolves that it did 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i Plato de legibus l. 4. approach more neer to tyrannie then to any other form what ever the power and empire of the Ephori being 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 plainly tyrannical and no otherwise And Aristotle who had studied the condition of that State exactly though at the first he seemed to think that it was very well compounded of the three good forms yet upon full debate thereof he concludes at last 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 k Aristot Poliâ— l. 2. c. 4. that the dominion of the Ephori was an absolute Tyrannie Assuredly had they lived to have seen that day wherein the Ephori embrued their hands in the bloud of their Princes under pretence of safetie to the Common-wealth they would have voted it to have been a tyrannie in the highest degree and then the most unsufferable Tyrants that ever wretched State groaned under For though the Kings of Sparta were so lessened by Lycurgus laws that little more was left unto them then the name and title yet they were Kings and held so sacred by their neighbors even their very Enemies that none dâ—d ever offer to lay hands upon them in the heat and furie of their fights 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l Plutarch in Agis Cleom. out of the reverence they did bear to those beams of Majestie which most apparently shined in them 10 The Ephori being grown to this height of Tyrannie were the more readie for their fall which followed not long after that most barbarous fact upon the persons of their Princes The Kings had long since stomached them and their high proceedings bearing 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 m Id. in Agesil a kinde of heritable grudge betwixt them as my Author calls it ever since they took upon them to control their Masters but either wanted opportunitie or spirit to attempt any thing to their prejudice and therefore thought it safer to procure their favours then run themselves upon a hazardous experiment Pausanias the 20. of the Elder House was the first that ever did attempt either by force or practise to subvert the Office the insolencies of the which were then grown so great that being a stout and active Prince he was not able to endure them That he had entertained such thoughts is affirmed by Aristotle where he informs us that Lysander had a purpose to take away the Kingly Government or rather to acquire it to himself as we finde in Plutarch n Id. in Lysandro 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and that Pausanias had the like to destroy the Ephorate o Aristot Polit. lib. 5. c. 1. But what he failed to bring about his Successors did at last accomplish Of which Cleombrotus and Agis joyning their hands and heads together did proceed so far that going into the Market place well attended by their friends and followers they plucked the Ephori from their seats and substituted others in their rooms p Plutarch in Agis Cleom. whom they conceived would be more pliant to their present enterprises which was the first actual attempt that ever had been made against them by the Kings of Sparta But evulgato imperii Arcano when so great a mysterie of State was once discovered that the Ephori were but mortal men and might as easily be displaced and deposed as any of the other Magistrates Leonidas immediately upon his restitution to the Kingdom made the like removal and displaced those who had took part against him with the former Kings q Id. ibid. So that the ice being broken and the way made open Cleomenes son unto Leonidas had the fairer way to abrogate the Office utterly which at last he did For being a brave and gallant Prince and seeing that the project he was bent upon for the reduction of the Common-wealth to its primitive honour could not be brought about but by their destruction he fell upon them with his Souldiers as they sate sate at supper and killed four of them in the place the fift escaping shrewdly hurt to the neerest Sanctuarie r Id ibid. That done he went into the Market place and overthrew all the Chairs of the Ephori saving only one which he reserved for himself as his Chair of State and sitting in the same in the sight of the people gave them an accompt of his proceedings and the reasons which induced him to it Declaring how the Ephori were at first appointed by the Kings themselves that for long time they governed only 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as the Kings Ministers and no otherwise thatt many years after this Asteropus one of the Ephori building upon a new foundation and being the first Author of that dangerous change they took the Government unto themselves and exercised the same in their own names only that though they had usurped a power which belonged not to them yet had they managed it discreetly they might perhaps have held it longer and with better liking but that licentiously abusing the authoritie which they had usurped by suppressing the lawful Governors ordained of old by taking upon them to banish some of the Citizens and to put some to death without law and justice and finally by threatning those who were desirous to restore the Government to its antient form they were no longer to be suffered that for his part he should have thought himself the happiest King that ever was if possibly he could have cured his Countrey of that foul affection without grief or sorrow but being it was not to be done that way he thought it better that some few should be put to death then the whole Common-wealth run on to a swift destruction This said he presently dissolved the Assembly and seriously betook himself to the Reformation which formerly he had projected and in short time reduced the people to the antient Discipline the state and reputation of the Common-wealth to its antient height 11 Thus have we made a brief discoverie
to re-invest the Tribunes with that height of power of which they had been justly dispossessed by Sylla Upon which grounds it had been formerly averred by the Consuls and the rest of the Senate that the Tribunes were the cause of those distractions 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 are the Authors words which did so miserably afflict the Common-wealth * Dionys Halicarn l. 10. But this to say the truth is so clear a point that it needs no proof I only shall observe and so pass it by how justly the Nobility and Senate were punished by their own example and for how little time they enjoyed that Soveraignty which they had wrested from their Kings From the expulsion of the Kings to the creating of the Tribunes were but sixteen years and from the death of Tarquin to the reign of Brutus and Sicinius but one year no more and in that little span of time the people profited so well in the school of rebellion that they did not only beat the Senate at their own weapon of disloialty but choaked them with their own objection For when it was objected against the Tribunes that their authority was gotten and maintained by seditious courses the Tribunes handsomely replyed that that objection might aswell be made against the authority of the Consuls which had been introduced and established by no other means m Id. lib. 10. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 then the rebellion of the Nobles or Patricians against their Kings A very shrewd retortion if you mark it well and fit to be considered of in these present times 6 If any ask to what end all these stirs were raised and these seditions set on foot he may please to know that there was an intent from the first creating of the Tribunes to change the government of the State and to put the Supreme Power of all into the hands of the people that is to say to bring it under the command of a few factious persons on whom the body of the people had devolved their power And this is positively affirmed by Florus where having told us that the Tribunes were the cause of all the tumults and seditions which had been raised within the City he adds that being at first ordained specie quidem tuendae plebis Florus hist Rom. l. 3. under pretence of being Protectors of the Commons and taking care for the preserving of their rights and liberties they sought in very deed to usurp the Soveraignty re autem dominationem sibi acquirere and to get the Supreme power into their own hands To this end as the Tribunes strived to oblige the people by causing new Lawes to be made in their behalf and for the increase of their authority so did the people readily obey the Tribunes and gathered into an head upon all occasions aswell for the protection of their persons as the confirmation of their power When Martius had declamed against them in the open Senate for their factious and seditious courses the Tribunes presently made complaint to the people of it calling upon them to assist them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and to save their Tribunes n Plutarch in Coriolano at which the people were so madded and ran on so furiously that they were like to have fallen desperately upon all the Senate And Appius found unto his cost that in offering to attach a Tribune though he well deserved it concio omnis coorta pro Tribuno in Consulem o Livie l. 2. the whole assembly rose against him as one man to defend their Tribune the rascall multitude gathering together out of all the City to do him right against the Consul And Plutarch tels us in the life of Tiberius Gracchus that the people were so sottishly affected to him that many of the needy and seditious rout waited upon him all night long up and down the Town p Plutarch in Tiber. C. Gracchis some of them buying tents and lying about his house to watch it as a guard to his person And on the other side the houses of the Tribunes were kept continually open aswell nights as daies that they might serve as a Protection or a Common Sanctuary for men of all sorts to repair unto whom either debt or misdemeanor or some greater matter had made obnoxious to the Sergeants or other Ministers of justice to the great prejudice of the honest and well meaning Subjects in their suits and businesses And besides this the Tribunes never failed to flatter and bewitch the people by some piece of courtship or by preferring some new Lawes as before was said for their ease and benefit They had no sooner way then that to advance their power or to obtain unto that absoluteness of command and empire which they projected to themselves For doubtlesse that of the Historian is exactly true 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 q Dionys Halicarn lib. 6. that he that means to be a Tyrant must be first a flatterer there being no readier way to advance a Tyranny then by being popular a profest servant of that people whom he would command But this confederacy between the Tribunes and the people and the mutual ties that were between them I cannot better lay before you then in Plutarchs words r Plutarch in Agis Cleomen who speaking of the Gracchi doth inform us thus That having received many favours from the peoples hands they were ashamed to be indebted to them and therefore earnestly endevoured to requiâ—e their courtesies by making new Decrees and Lawes which they propounded and obtained for the peoples profit and on the other side the people for their parts were not wanting to admire and honour them the more by how much they perceived them studious of their good and benefit So that with like strife on either side the one to gratifie and oblige the other their interesses were so mingled and their intentions so concorporated that they must needs hold on as they had begun and either stand or fall together By means whereof the people in conclusion became lords of all the majesty of the State and the power of judicature being absolutely vested in them which since they could not manage but by their Atturneys nor otherwise execute and discharge then by their Proxies who but the Tribunes their own creatures must be trusted with it And this is that which Tacitus observes to be the issue of those quarrels which were kept on foot between the Nobility and the Commons modo turbulenti Tribuni s Tacit. hist lib. 2. modo Consules praevalidi sometimes some factious Tribunes carried it away and then again the Consuls had the better and prevailed in power according as they did comply with the peoples humours till Marius and Sylla first and Julius Caesar afterwards by their example by force of Arms subdued both parties and introduced an absolute Government 7 Now for the steps by which the people did asâ—end to this height of power they were not raised at once but
civil pleas to judge of strangers which abused the priviledges which they had in the City of briberie conspiracies false inscriptions in cases of adultery and publick crimes in points of trade and actions which concerned the Sâ—annaries t Jul. Pollâ—x in Onomall l. 8 c. 9. sect 1. as also to review the sentence of the Provost and the decrees of the Senate if occasion were and to give notice to the people 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as Julius Pollux if any man preferred a law which was not profitable and expedient for the Common-wealth Such were the Officers and such the duty of those Officers ordained at Athens upon the last alteration of the Government which before we spake of and amongst these we finde not any popular Magistrate who was to have a care of the Common people and to preserve them in their rights and liberties from the oppression of the greater and more powerful Citizens much less set up of purpose to oppose the Senate And to say truth we must not look for any such amongst the nine nor in these times in which this alteration of the Government was first established They could not fall immediately from a Regal State to a Democratical but they must take the Aristocratie in the way unto it They had been under Kings at first or such as had the power of Kings although not the name And when they chose these Annual Officers they chose them ex nobilibus urbis out of the Nobles only as Eusebius hath it u Euseb Chron. which Scaliger is forced to grant to be so at first x Scaliger in Animadvers though out of a desire to confute his Author he would very fain have had it otherwise Whether or no they had such Officers as Calvin dreams of when they had setled their Democratie we shall see anon having first shewn by whom and by what degrees the government of the State was cast on the peoples shoulders and the form thereof made meerly popular or Democratical For certainly it is most true that never any Democratical State shewed it self at the first in its proper colours or came into the world by a lawful entrance but crept into it secretly at the back-dore either of faction or sedition 3 Now the first man that gave the hint to the Democratie and made the people fall in love with a factious libertie was Theseus a valiant but unfortunate King who the better to induce the people of Attica to desert their dwellings and be incorporated into Athens promised them as before was said that all of them should have some share in the publick government and after the form and manner of a Common-wealth And so far he performed his promise as to devest himself of some parts of Soveraigntie 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and laid the first foundation of that popular State which was after built but he paid deer for it y Plutarch in Thâ—seo For the people who before had been so tractable that they would do whatsoever their Kings commanded at the first words speaking began to take more state upon them and became so stub born that they would do nothing on command but looked to be flattered with and courted upon all occasions z Idâ—ibid Which being noted by Menestheus a popular man but otherwise of the Royal bloud he so sed that humor and wrought so finely on them by his wit and cunning that Theseus was in fine deposed and his sons disherited and the remainder of the Royaltie conferred by them upon Menestheuâ— as their deed of gift And though no doubt the people did improve their power both when their Kings became elective and when their Governors were elected but for term of years and specially when the Magistrates were no more then Annual yet they could get no further then an Aristocratie till the time of Solon which were about 170 years after the Annual Officers were first established the Annual Officers being established in the first year of the 5. Olympiad and Solons reformation hapning in the second of the 47. But Solon being chosen Provost or the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and finding the Republick much embroyled in dangerous factions which had been long since bred between the Nobles and Commons in the change of Governments took on him by the joynt consent of both parties the emendation of the laws and the reducing of the State of the Common-wealth to a more peaceable and equal temper a Id. in Solone And he so ordered their affairs that the chief Offices of the City remained in the hands of the Nobilitie as before they were which for the time contented them but the election of those Officers and the dernier resort or the admittance of Appeals upon Writs of error as we call them that he confirmed unto the people which did not only please the people for the present time but put them into a condition of drawing to themselves the supreme authority Insomuch that Aristotle though he seem to say that Solon setled in the City a mixt form of Government the Court of Areopagites which he also instituted pretending to an Oligarchie the Annual Officers or Archontes to an Aristocratie and the power of judicature being vested in the common people unto a Democratie b Aristot Politic l. 2. c. 10. yet he confesseth at the last that this power of judicature and the necessity which all men found of applying themselves unto the people 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 changed the Republick in conclusion to a meer Democratie as it continued till his time But yet it was not brought about but with great adoe Pisistratus first reducing the estate to an absolute Monarchy c Plutarch in Soâ—one which because he got it from them by fraud and force they called a Tyranny and after Clisthenes freeing his countrey from that yoke by driving his posterity out of Attica restoring it unto an Aristocratie d Id. in Aristide in Pericle et Cimâ—nc as before it was At last it seemed good to Aristides though for a time he concurred with Clisthenes in his form of government to cast a more indulgent eye on the common people who had behaved themselves exceeding gallantly in the dreadfull war against the Persians and to cause a law to be enacted that all authority and power of government should be communicated equally to all the Citizens e Id. in Aristide 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and that they should be capable of all the Offices and honours in the Common-wealth Which as it added much to the authority of the common people so that authority was increased much more by the Arts of Pericles who bearing a grudge unto the Court of the Areopagites whereof he was never any Member and finding that the power thereof and of the Senate of five hundred did derogate exceeding much from the power of the people to whose faction he was wholly wedded by the help and setting on of Ephialtes a busie and
Author of unquestioned credit possessed the highest seats of judicature and were the only Judges which that people had Judices apud Egyptios iidem quâ—ndam fuerunt qui sacerdotes e Aelian in Varia histor l. 14. c. 34. as that Author hath it And so much is assured us by Synesius also a Christian Bishop of the East f Synâ—sius Ep. 57. where he resembleth them in this particular to the Priests of Judah The like we finde in Agathias of the Priests of Persia men better known in ancient Writers by the name of Magi of whom he telleth us eorum consilio publica omnia administrari c. g Agathias in hist Perfic l. 2. that by their counsell and advice the principal affairs of the State were ordered rewards proportioned and conferred upon well-deservers and several punishments inflicted on the Malefactors according to the quality of the misdemeanor and finally that nothing was conceived to be rightly done quod Magorum sententia non sit confirmatum which had not passed the approbation of these Priests or Magi. If we draw nearer towards the West and look into the Government of the State of Athens we shall finde the chief authority thereof to consist in the Senate of 500 and in the famous Court of the Areopagites as was noâ—ed in the â—ormer Chapter in which the Priests or at the least the priâ—cipal of that rank or order had both place and suffrage For in that honourâ—ry Edict which they made in favour of Hyrcanus we may clearly see that Dionysius the son of Asclepiades was one of the Priests and also one of the Prytanaei h Joseph Judaic Antiqu. l. 14. c. 16. or Presidents of the Councell as we call them now and that in calculating of the voices 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dorotheus the chief Priest had the greatest stroke and pronounced the Edict to be passed And for the Court of Areopagites it consisted as before we told you of such and such alone as formerly had bore the Office of the nine Annual Magistrates whereof the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Rex Sacrorum whom we may English the chief Bishop had the second place i Suidas in verbo 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And this appears yet further by a passage in the life of Pericles where we are told of his design for the abasing of the power of the Areopagites 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 k Plutarch in Pericle of which Court he was not any Member as the Author tels us in that he had never borne the Office either of the Provost or the King or the Polemarchus or any of the six chief Justices So that the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Rex Sacrorum or chief Bishop being of course to be admitted into the Court or Councel of the Areopagites when his year was ended it cannot be but that there must be many of them in that famous Session an equall number at the least with those who had been Polemarchi or the yearly 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Add here that we are told by Julius Pollux in his Onomasticon l Lib 8. cap. 8. sect 3. that it pertained to this 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Rex Sacrorum besides the service of the Gods 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to endite those before the Court who were guilty of murther but then withall that having put in the enditement and laid by his Crown 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he sate upon the Bench with the other Judges and passed sentence on them Thus was it with the Druides or the Priests of Gallia who did not only take the charge of all sacred matters which did relate unto the service of the gods but de omnibus fere controversiis publicis privatisque m Caesar de Bello Gallico l. 6. they did determine in almost all suits and controversies as well publick as private particularly in matters of inheritance reall actions capitall crimes as murther and the like offences and also had a power to decree both rewards and punishments as they saw occasion And for the better dispatch of business both for their own ease and the peoples too they chose some certain times or Terms in which they met together not far from Chartres being in the middle of the Countrey whither all sorts of people who had suits and differences did repair unto them eorumque judiciis decretis parebant and to their Judgements and Decrees did submit themselves And thus it also was with the Pâ—tifices or Priests of Rome who had not only a chief place in the holy Mysteries such as concerned the publick worship of their gods but also a great power and sway in the greatest and most important businesses which concerned the State which Tully makes one of those Constitutions or Arts of Government which seemed to have been devised by the gods themselves n Cicero in Orat pro Domo â—ua Cum multa divinitus a majoribus nostris inventa atque instituta sunt tum nihil praeclarius quam quod Pontifices cosdem Religionibus Deorum immortalium summae reipub praeâ—sse voluerunt And as the principal Priests in Athens had their place and Vote not only in the Court of Areopagites but in the Senate of five hundred as before was noted so some of the more eminent sort of Priests had the like preheminence of sitting and voting in the Roman Senate which was as high an honour as that State could give them For besides that Rosinus hath observed that some of the Priesâ—s were chosen out of the number of the Senators o Rosin Antiqu Rom. who doubtless did not lose the right of suffrage which before they had there is a memorable case in Livie touching C. Flaccus who was no sooner chosen the Flamen Dialis or Pâ—iest of Jupiter but presâ—ntly he put in his title to a place in Senate which anciently belonged unto his predecessors in the right of their Office though of late years it seemed to have been forâ—eited by discontinuance The issue of which plea was this that though Licinius the Pretor did the best he could to crosse the business alleadging Non exoletis vetustate Annalium exemplis stare jus p Livie hist Rom. lib. 26. that they were not to be guided in the case by worm eaten Precedents but by the late practise of the Staâ—e yet it was otherwise determined by the Fathers generally and Flaccus setled in his place in the Roman Senate Magno assensu Patrum Plebisque with the joynt consent of all the people But what need these particulars have been brought to confirm this point when as it affirmed in generals by Synesius a right godly Bishop of the Primitive times 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 q Synes Epist 57. that in old times the same men were both Priests and Judges Which said he instanceth in the particulars of the Jews and Egyptians who for long time 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 had been chiefly governed by
now goeth were the meetings oftner For whereas there are three Principal if not sole occasions of calling this Assemblie or Conventus Ordinum that is to say the disposing of the Regency during the nonage or sickness of the King the granting aids and subsidies and the redress of the grievances there is now another course taken to dispatch their business The Parliament of Paris which speaks most commonly as it is prompted by power and greatness appointeth the Regent f Contin Thuani An. 1610. the Kings themselves together with their Treasurers and Under-officers determine of the taxes g View of France and they that do complain of grievances may either have recourse to the Courts of justice or else petition to the King for redress thereof And for the making new Laws or repealing the old the naturalization of the Alien and the regulating of his sales or grants of the Crown-lands the publick patrimony of the Kingdome which were wont to be the proper subject and debates of these grand Assemblies they also have been so disposed of that the Conventus Ordinum is neither troubled with them nor called about them The Chamber of Accompts in Paris which hath some resemblance to our Court of Exchequer doth absolutely dispose of Naturalizations and superficially surveyeth the Kings grants and sales * Andr. Du Mesn which they seldom cross The Kings Car tel est nostre plaisir is the Subjects law and is as binding as any Act or Ordinance of the three Estates and for repealing of such Laws as upon long experience are conceived to be unprofitable the Kings sole Edict is as powerfull as any Act of Parliament Of which Bodinus doth not only say in these general terms Saepe vidimus sine Ordinum convocatione consensu leges à Principe abrogatas k Bodin de Rep. lib. 1. cap. 8. that many times these Kings did abrogate some antient laws without the calling and consent of the three Estates but saith that it was neither new nor strange that they should so do and gives us some particular instances not only of the later times but the former ages Nay when the power of this Assemblie des Estats was most great and eminent neither so curtailled nor neglected as it hath been lately yet then they carried themselves with the greatest reverence and respect before their King that could be possibly imagined For in the Assembly held at Tours under Charles the 8. though the King was then no more than 14 years of age and the authority of that Court so great and awfull that it was never at so high an eminence for power and reputation quanta illis temporibus as it was at that time yet when they came before the King Monseiur de Rell being then Speaker for the Commons or the third Estate did in the name of all the rest and with as much humility and reverence as he could devise promise such duty and obedience such a conformity of his will and pleasure such readiness to supply his wants and such alacrity in hearking unto his Commandements that as Bodinus well observes his whole Oration was nothing else quam perpetua voluntatis omnium erga Regem testificatio l Id. ibid. but a constant testimony and expression of the good affections of the subject to their Lord and Soveraign But whatsoever power they had in former times is not now material King Lewis the thirteenth having on good reason of State discharged those Conventions for the time ensuing Instead whereof he instituted an Assembly of another temper and such as should be more obnoxious to his will and pleasure consisting of a certain number of persons out of each Estate but all of his own nomination and appointment which joyn'd with certain of his Counsel and principal Officers he caused to be called L' Assembly des Notables assigning to them all the power and privileges which the later Conventions of the three Estates did pretend unto right well assured that men so nominated and intrusted would never use their powers to his detriment and disturbance of his Heirs and Successors 5. But to proceed Bodinus having shewn what dutifull respects the Convention of Estates in France shewed unto their King addes this note nec aliter Hispanorum conventus habentur that the Assembly of the three Estates in the Realms of Spain carry themselves with the like reverence and submission to their Lord the King Nay major etiam obedientia majus obsequium Regi exhibetur m Id. ibid. the King of Spain hath more obedience and observance from his three Estates than that which is afforded to the Kings of France Which being but general and comparative is yet enough to let us see that the Assembly of Estates in the Realms of Spain which they call the Curia is very observant of their King and obsequious to him and have but little of that power which is supposed by our Author to be inherent in the three Estates of all the Christian Kingdoms But this Bodinus proveth more particularly ascribing to the King and to him alone the power of calling this Assemblie when he sees occasion and of dissolving it again when his work is done according as is used both in France and England And when they are assembled and met together their Acts and consultations are of no effect further than as they are confirmed by the Kings consent Which he declareth in the same form eadem formulà quâ apud nos that hath accustomably been used by the Kings of France which is authoritative enough that is to say n Id. ibid. p. 90. decernimus statuimus volumus We will and we appoint and we have decreed The Kings of Spain though not so despotical in their Government as the French Kings are are as absolute Monarchs and have as great an influence on the three Estates to make them pliant to their will and to work out their own ends by them as ever had the French Kings on their Courts of Parliament a touch whereof we had before in the former Chapter And this we may yet further see by their observance of the pleasure of King Philip the 2d Who having maried the Lady Elizabeth Daughter of Henry the 2d of France Convocatos Castellae reliquarum Hispaniae Provinciarum Ordines o Thuan. â—ist sui temp h 23. l. calling together the Estates of Castile and his other Provinces of Spain he caused them to swear to the succession of his Son Prince Charles whom he had by the Lady Mary of Portugal and after having on some jealousies of State put that Prince to death caused them to swear to the succession of another son by the Lady of Austria And for the power of his Edicts which they call Pragmaticas they are as binding to the Subject as an Act of Parliament or any kind of Law whatever examples of the which are very obvious and familiar in the Spanish Histories For though
declared to have been fortified by sundry Laws and Ordinances made in former Parliaments k Ibid. and such as hath been since confirmed by a solemn Oath taken and to be taken by most of the Subjects of this Kingdom Which Oath consisting of two parts the one Declaratory and the other Promissory in the Declaratory part the man thus taketh it doth declare and testifie in his conscience that the Kings Highness is the only supreme Governor of this Realm and of all other his Dominions and Countries aswell in all spiritual or ecclesiastical things or causes as temporal c. l 1 Eliz. c. 1. And in the Promissooy part they make Oath and swear that to their power they will assist and defend all Jurisdictions Privileges Preheminences and Authorities granted or belonging to the Kings Highness his Heirs and Succcesseors or united and annexed to the Imperial Crown of this Realm Put all which hath been said together and it will appear that if to have merum imperium a full and absolute command and all the jura majestatis which belong to Soveraignty if to be so supreme as to hold immediatly of God to have all persons under him none but God above him if to have all authority and jurisdiction to be vested in him and proceeding from him and the material sword at his sole disposal for the correcting of offenders and the well ordering of his people if to have whole and entire power of rendring justice and final determination of all causes to all manner of Subjects us also to interpret and dispence with Laws and all this ratified and confirmed unto him by the solemn Oath of his Subjects in the Court of Parliament be enough to make an absolute Monarch the Kings of England are more absolute Monarchs than either of their Neighbours of France or Spain 8. If any thing may be said to detract from this it is the new devise so much pressed of late of placing the chief Soveraignty or some part thereof in the two Houses of Parliament concerning which Mr. Prynne published a discourse entituled The supreme power of Parliaments and Kingdoms and others in their Pamphlets upon that Argument have made the Parliament so absolute and the King so limited that of the two the Members of the Houses are the greater Monarchs But this is but a new devise not heard of in our former Monuments Records of Law nor proved or to be proved indeed by any other Medium than the Rebellions of Cade Tiler Straw Kett Mackerell and the rest of that rascall rabble m Prynnes book of Parl. c. pâ— 3. or the seditious Parliaments in the time of K. Henry the 3d. King Edward the 2d and King Richard the 2d when civil war and faction carried all before it For neither have the Houses or either of them enjoyed such Soveraignty de facto in times well setled and Parliaments lawfully assembled nor ever could pretend to the same de jure Or if they did as many have been apt enough to raise false pretences it would much trouble them to determine whether this Soveraignty be conferred upon them by the King or the people whether it be in either of the Houses severally or in both united If they can challenge this pretended Soveraignty in neither of these capacities nor by none of these Titles it may be warrantably concluded that there is no such Soveraignty as they do pretend to And first there is no part nor branch of Soveraignty conferred upon them by the King The writs of Summons which the Declaration of the Lords and Commons assembled at Oxon. 1643. doth most truly call the foundation of all power in Parliament n Declaration of the Treaty p. 15. tell us no such matter The writ directed to the Lords doth enable them only to confer and treat with one another consilium vestrum impendere and to advise the King in such weighty matters as concern the safety of the Kingdom But they are only to advise not compell the King to counsell him but not controll him and to advise and counsel are no marks of Soveraignty but rather works of service and subordination Nor can they come to give this Counsel without he invite them and being invited by his writ cannot choose but come except he excuse them which are sure notes of duty and subjection but very sory signs of power and soveraignty 'T is true that being come together they may and sometimes do on a writ of Error examin and reverse or affirm such judgements as have been given in the Kings Bench and from their sentence in the case there is no appeal but only to the whole body of that Court the King and both the Houses the Head and Members o Case of our Affairs p. 7 8. But this they do not as the upper house of Parliament but as the distinct court of the Kings Barons of Parliament of a particular and ministerial jurisdiction to some intents and purposes and to some alone which though it doth invest them with a power of judicature confers not any thing upon them which belongs to Soveraignty Then for the Commons all which the writ doth call them to is facere consentire to do and consent unto such things which are ordained by the Lords and Common Counsel of the Kingdom of England and sure conformity and consent which is all the writ requireth from them are no marks of Soveraignty nor can an Argument be drawn from thence by the subtillest Sophister to shew that they are called to be partakers of the Soveraign power or that the King intends to denude himself of any branch or leaf thereof to hide their nakednesse And being met together in a body collective they are so far from having any share in Soveraignty that they cannot properly be called a Court of Judicature as neither having any power to minister an Oath p Id. p. 9. or to imprison any body except it be some of their own Members if they see occasion which are things incident to all Courts of Justice and to every Steward of a Leet insomuch that the House of Coâ—mons is compared by some â—and not incongruosly unto the Grand Inquest at a general Sessions q Review of the Observat p. 22. whose principal work it is to receive bils and prepare businesses and make them fit and ready for my Lords the Judges Nay so far were they heretofore from the thoughts of Soveraignty that they were lyable to sutes and punishments for things done in Parliament though only to the prejudice of a private Subject untill King Henry 8. most graciously passed a Law for their indemnity For whereas Richard Strode one of the company of Tinners in the County of Cornwall being a Member of the Commons House had spoken somwhat to the prejudice of that Society and contrary to the Ordinances of the Stanneries at his return into the Country â—e was arested fined imprisoned Complaint whereof being
l. 1. c. 8 because he could not have an Equal but with the losse of his Authority and Regal Dignity considering that one Equal hath no power to command an other Now lest the Fuller should object as perhaps he may that this is spoken of the King out of times of Parliament and of the Members of the Houses seorsim taken severally as particular persons but when they are convened in Parliament then they are Soveraigns and no Subjects first he must know that by the Statute of Queen Elizabeth all of the House of Commons are to take the oath before remembred for the defending of all preheminences and authorities united and annexed to the Imperial Crown of this Realm and for bearing faith and true allegiance to the King his Heirs and lawfull Successours and that if any of them do refuse this Oath he is to have no voice in Parliament m Stat. 5 Eâ—iz 1. 2. He cannot choose but know that even sedente Parliamento both the Lords and Commons use to address themselves to his sacred Majesty in the way of supplication and petition and certainly it is not the course for men of equal rank to send Petitions unto one another and that in those Petitions they do stile themselves his Majesties most humble and obedient Subjects Which is not only used as the common Complement which the hypocrisie of these times hath taken up though possibly it might be no otherwise meant in some late addresses but is the very phrase in some Acts of Parliament n â—25 Hen. 8. c. 22. c. as in the Acts at large doth at full appear 3. They may be pleased to know how happy a thing it was for the Realm of England that this Fuller did not live in former times For had he broached this Doctrine some Ages since he would have made an end of Parliaments Princes are very jealous of the smallest points of Soveraignty and love to reign alone without any Rivals their Souls being equally made up of Pompeys and Caesars and can as little broke an Equul as endure a Superiour And lastly I must let him know what Bodinus saith who telleth us this Legum ac edictorum probatio aut publicatio quae in Curia vel Senatu fieri solet non arguit imperii majestatem in Senatu vel Curia inesse o Bodin de Rep. l. 1. c. 8. viz. That the publishing and approbation of Laws and Edicts which is made ordinarily in the Court or Parliament proves not the Majesty of the State to be in the said Court or Parliament And therefore if the power of confirmation or rejecting be of a greater trust and more high concernment than that of consulting and consenting as no doubt it is the power of consulting and consenting which the Fuller doth ascribe to the two Houses of Parliament will give them but a sory Title to Co-ordinative soveraignty 10. This leads me on unto the power of making Laws which as before I said is properly and legally in the King alone tanquam in proprio Subjecto as in the true and adequate subject of that power And for the proof thereof I shall thus proceed When the Norman Conqueror first came in as he wonne the Kingdom by the sword so did he govern it by his power His Sword was then the Scepter and his will the Law There was no need on his part of an Act of Parliament much less of calling all the Estates together to know of them after what form and by what Laws they would be governed It might as well be said of him as in the flourish and best times of the Roman Emperors p Justin Institut l. 1. c. Quod Principi placuerit legis habet vigorem that whatsoever the King willed it did pass for Law This King and some of his Successours being then 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and having a despotical power on the lives and fortunes of their Subjects which they disposed of for the benefit of their friends and followers Normans French and Flemangs as to them seemed best But as the Subjects found the yoke to be too heavy and insupportable so they addressed themselves in their Petitions to the Kings their Soveraigns to have that yoke made easier and the burden lighter especially in such particulars of which they were most sensible at the present time By this means they obtained first to have the Laws of Edward the Confessor contain'd for the most part in the great Charter afterwards and by this means that is to say by powring out their prayers and desires unto them did they obtain most of the Laws and Statutes which are now remaining of the time of King Henry the 3d. and King Edward the first Many of which as they were issued at the first either in form of Charters under the Great Seal or else as Proclamations of Grace and favour so do they carry still this mark of their first procuring the King willeth the King commandeth the King ordaineth the King provideth the King grants c. And when the Kings were pleased to call their Estates together it was not out of an opinion that they could not give away their power or dispence their favours or abate any thing of the severity of their former government without the approbation and consent of their people but out of just fear lest any one of the three Estates I mean the Clergy the Nobility and the Commons should insist on any thing which might be prejudicial to the other two The Commons being alwaies on the craving part and suffering as much perhaps from their immediate Lords as from their King might possibly have asked some things which were as much derogatory to the Lords under whom they held as of their Soveraign Liege the King the chief Lord of all In this respect the Counsel and consent as well of the Prelates as the Temporal Lords was accounted necessary in passing of all Acts of Grace and Favour to the people because that having many Royalties and large immunities of their own a more near relation to the person and a greater interesse in the honour of their Lord the King nothing should passe unto the prejudice and diminution of their own Estates or the disabling of the King to support his Soveraignty And this for long time was the Stile of the following Parliaments viz. q Preface an 1 Ed. 3. To the honour of God and of holy Church and to the redresse of the oppressions of the people our Soveraign Lord the King c. at the request of the Commonalty of his Realm by their Petition made before him and his Counsel in the Parliament by the Assent of the Prelates Earls Barons and other great men assembled in the said Parliament hath granted for him and his Heirs c. To this effect but with some little and but a very little variation of the words was the usual Stile in all the Prefaces or Preambles of the Acts of Parliament from the
beginning of the Reign of King Edward the third till the beginning of the reign of King Henry the 7th save that sometimes we find the Lords complaining r 10 Ed. 3. c. or petitioning Å¿ 21 Ed. 3. c. and the Commons assenting t 28 Ed. 3. c. as their occasions did require and sometime also no other motive represented but the Kings great desire to provide for the ease and safety of his people upon deliberation had with the Prelates and Nobles and learned men assisting with their mutual Counsell u 23 Ed. 3. And all this while there is no question to be made but that the power of making Laws was conceived to be the chiefest flower of the Royal Diademe to which the Lords and Commons neither joynt nor separate did not pretend the smallest Title more than petitioning for them or assenting to them it being wholly left to the Kings grace and goodness whether he would give ear or not unto their petitions or hearken unto such advise as the Lords or other great men gave him in behalf of his people And this is that which was declared in the Parliament by the Lords and Commons and still holds good as well in point of Law as Reason that it belonged unto the regality of the King to grant or deny what Petitions x 2 Her 5. in Parliament he pleaseth But as the Kings came in upon doubtfull Titles or otherwise were necessitated to comply with the peoples humours as sometimes they were so did the Parliaments make use of the opportunities for the increase of their authoritie at least in the formalities of Law and other advantages of expression So that in the minority of King Henry the sixth unto those usual words by the advise and assent of the Lords Spiritual and Temporal and at the special instance and request of the Commons which were inserted ordinarily into the body of the Acts from the beginning of the reign of King Henry the 6th was added this By the authority of the said Parliament y 3 Hen. 6. c. 2. 8 H. 6. 3. c. But still it is to be observed that though those words were added to the former clause yet the power of granting or ordaining was acknowledged to belong to the King alone as in the places in the Margin where it is said Our Lord the King considering the premises by the advise and assent and at the request aforesaid hath ordained and granted by the authority of the said Parliament 3 H. 6. 2. and our Lord the King considering c. hath ordained and established by authority of this Parliament 8 H. 6. 3. And thus it generally stood but every general rule may have some exceptions till the beginning of the reign of King Henry the 7th about which time that usual clause the special instance or request of the Commons began by little and little to be laid aside and that of their advise or assent to be inserted in the place thereof for which I do refer you to the book at large Which though it were some alteration of the former stile and that those words By the authority of this present Parliament may make men think that the Lords and Commons did then pretend some title unto the power of making laws yet neither advising or assenting are so operative in the present case as to transfer the power of making laws to such as do advise about them or assent unto them not can the alâ—eration of the forms and stiles used in antient times import an alteration of the form of Government unless it can be shewed as I think it cannot that any of our Kings did renounce that power which properly and solely did belong unto them or did by any solemn Act of Communication confer the same upon the Lords and Commons convened in Parliament And this is that which is resolved and declared in our Common law where it is said z Cited in the unlawfulness of resist p 107. Le Roy fait les loix avec le consent du Seigneurs et communs et non pas les Seigneurs et communs avec le consent du Roy that is to say that the King makes Laws in Parliament by the assent of the Lords and Commoni and not the Lords and Commons by the assent of the King And for a further proof of this and for the clearing of this point that the Lords and Commons pretend to no more power in the making of laws than opportunity to propound and advise about them and on mature advise to give their several Assents unto them we need but look into the first Act of the Parliament in the third year of King Charles being a Recognition of some antient Rights belonging to the English subject An Act conceived according to the primitive form in way of a Petition to the Kings most excellent Majesty a Statut. 3 Carol. in which the Lords and Commons do most humbly pray as their Rights and Liberties that no such things as they complained of might be done hereafter that his Majesty would vouchsafe to declare that the Awards doings and proceedings to the prejudice of his people in any of the premises shall not be drawn hereafter into consequence or example and that he would be pleased to declare his Royal pleasure that in the point aforesaid all his Officers and Ministers should serve him according to the Laws and Statutes of this Realm To which although the King returned a fair general Answer assuring them that his Subjects should have no cause for the time to come to complain of any wrong or oppressions contrary to their just Righâ—s and Liberties yet this gave little satisfaction till he came in person and causing the Petition to be distinctly read by the Clerk of the Crown b Ibid. returned his Answer in these words Soit droit fait come est desire that is to say let right be done as is desired Which being the very formal words by which the said Petition and every clause and Article therein contained became to be a law and to have the force of an Act of Parliament and being there is nothing spoken of the concurrent authority of the Lords and Commons for the enacting of the same may serve instead of many Arguments for the proof of this that the Legislative power as we phrase it now is wholly and solely in the King although restrained in the exercise and use thereof by constant custome unto the counsel and consent of the Lords and Commons Le Roy veult c Smith de Rep. Angl. or the King will have it so is the imperative phrase by which the Propositions of the Lords and Commons are made Acts of Parliament And let the Lords and Commons agitate and propound what Laws they please for their ease and benefit as generally all Laws and Statutes are more for the ease and benefit of the Subject than the advantage of the King yet
in number nor more obvious than those of our Kings serving their turns by and upon their Parliaments as their occasions did require For not to look on higher and more Regal times we find that Richard the 2d a Prince not very acceptable to the Common people could get an Act of Parliament t 21 Ric. 2. to confirm the extrajudicial opinion of the Iudges given before at Notingham that King Henry 4th could by an other Act reverse all that Parliament u 1 Hen 4. entayl the Crown to his posterity and keep his Dutchy of Lancaster and all the Lands and Seigneuries of it from being united to the Crown that King Edward the 4th could have a Parliament to declare all the Kings of the House of Lancaster to be Kings in fact but not in right x 1 Ed. c. 1. and for uniting of that Dutchy to the Crown Imperial notwithstanding the former Act of separation that King Richard the 3d. could have a Parliament to bastardize all his Brothers Children to set the Crown on his own head though a most bloody Tyrant and a plain Usurper y Speeds hist in K. Richard 3. that King Henry 7. could have the Crown entayled by an Act of Parliament to the issue of his own body z Verulam hist of K. Hen 7. without relation to his Queen of the house of York which was conceived by many at that time to have the better Title to it another for paying a Benevolence which he had required of the subject a 11 Hen. 7. c. 10. though all Benevolences had been damned by a former Statute made in the short but bloody reign of King Richard the 3d. that King Henry 8. b 65 Hen. 8. c. 22 28. c. 7. 35 H. 8. c. 1. could have one Act of Parliament to bastardry his Daughter Mary in favour of the Lady Elizabeth another to declare the Lady Elizabeth to be illegitimate in expectation of the issue by Queen Jane Seymour a third for setling the succession by his Will and Testament and what else he pleased that Queen Mary could not only obtain several Acts in favour of her self and the Sâ—e of Rome c 1 Mar. sâ—s 2. c. 1 2. 1. 2 Ph. M. c. 8. 10. but for the setling of the Regency on the King of Spain in case the Children of that Bed should be left in nonage And finally that Queen Elizabeth did not only gain many several Acts for the security of her own Person which were determinable with her life but could procure an Act to be passed in Parliament for making it high treason to affirm and say That the Queen could not by Act of Parliament bind and dispose the Rights aâ—d Titles which any person whatsoever might have to the Crown d 13 Eliz. c. 1. And as for raising monies and amassing treasures by help of Parliaments he that desires to know how well our Kings have served themselves that way by the help of Parliaments let him peruse a book intituled the Privilege of Parliaments writ in the manner of Dialogue between a Privy Counsellor and a Iustice of Peace and he shall be satisfied to the full Put all that hath been said together and sure the kingdom of England must not be the place in which the three Estates convened in Parliament have power to regulate the King or restain his actions or moderate his extravagances or where they can be taxed for perâ—idious treachery if they connive at Kings when they play the Tyrants or wantonly insult on the Common-people or otherwise abuse that power which the Lord hath given them Calvin was much mistaken if he thought the contrary or if he dreamt that he should be believ'd on his ipse dixit without a punctual enquiry into the grounds and probability of such a dangerous intimation as he lays before us 13. But against this it is objected that Parliaments have disposed of the Militia of the Kingdom of the Forts Castles Ports and the Navie Royal not only without the Kings leave but against his liking that they have deposed some Kings and advanced others to the top of the Regal Throne And for the proof of this they produce examples out of the reign of K. Henry 3. K. Edw. 2. and K. Richard the 2. e Prynnes Book of Parl. part 2. Examples which if rightly pondered doe not so much prove the power as the weakness of Parliaments in being carried up and down by the privat conduct of every popular pretender For 't is well known that the Parliaments did not take upon them to rule or rather to over-look K. Henry 3. but as they were directed by Simon Montfort Earl of Leicester who having raised a potent faction in the State by the assistance of the Earls of Glocester Hereford Derby f Maâ— Paris Henr. 3. and some others of the great Lords of the kingdom compelled the King to yeeld unto what terms he pleased and made the Parliaments no other than a means and instrument to put a popular gloss on his wretched purposes And 't is well known that the ensuing Parliaments which they instance in moved not of their own accord to the deposing of King Edward the 2. or King Richard the 2. but sailed as they were steered by those powerfull Counsels which Queen Isabel in the one and Henry Duke of Lancaster in the other did propose unto them g Walsingham in Hist Angl. Hypodig Neustriae It was no safe resisting those as their cold wisdoms and forgotten loyalties did suggest unto them qui tot legionibus imperarent who had so manany thousand men in arms to make good their project and they might think as the poor-spirited Citizens of Samaria did in another case but a case very like the present Behold two Kings stood not before him how then can we stand h 2 Kings 10. 4. For had it been an argument of the power of Parliaments that they deposed one King to set up another dethroned King Richard to advance the Duke of Lancaster to the Regal diadem they would have kept the house of Lancaster in possession of it for the full demonstration of a power indeed and not have cast them off at the first attempt of a new plausible pretender declared them to be kings in fact but not in right whose lawfull right they had before preferred above all other titles and set the Crown upon the heads of their deadly Enemies In the next place it is objected that Parliaments are a great restraint of the Soveraign power according to the Doctrine here laid down by Calvin in that the King can make no laws nor levy any money upon the Subject but by the counsel and assent of the Lords and Commons assembled in Parliament But this objection hurts as little as the former did For Kings to say the truth need no laws at all In all such points wherein they have not bound themselves by some former laws