Parliamenti sedebunt nullus stabit sed quando loquitur ut omnes audiantur à Paribus And again Nullus solus potest nec debet recedere à Parliamento sine Licentia Regis omnium Parium Parliamenti hoc in pleno Parliamento Ità quod inde fiat mentio in Rotulis Parliamenti It may be possible That Bracton and Fleta with others may use the Phrase Pares in such a sence when they say That the King or his Commissioners should not judge and determine of Treason but Pares Which may be added to the 25 th of Edw. 3. reserving Treason to Parliament where of Old it seemeth only determinable so that The Mirror would not have it Endicted but by Accusation and in full Parliament as in King Edmund's Time c. Cap. 2. Sect. 11. and in Edw. the 3 d it was enacted That Offences of Peers and great Officers and those who sued against the Laws should be tryed in Parliament And although now the Phrase be given to all the Lords of Parliament yet it was most or only proper to the Earls whom by Law and custom the King styleth Consanguineos and he might style them his Peers or Companions as in Latine Comites So Bracton Comites dicuntur quasi Socii Regis qui habet Socium habet Magistrum and in another place A Societate Reges enim tales sibi Associant ad consulendum regendum Populum Dei and the like is in Fleta Comites à Comitiva dicuntur qui cum viderint Regem sine Freno Frenum sibi apponere tenentur c. which is also in Bracton The Mirror is yet clearer although the King had no Equals yet because himself or his Commissars might not be Judge it was provided by Law that he should have Companions to hear and determine all his Torts c Aux Parliaments and those Companions were called Countees Earls from the Latine Comites So also Sarisberiensis cited before in Hen. 2. Comites à Societatis participatione dici quisquis ignorat ignarus est literarum c. some will have them Comites Socii in Fisca because of old some Earls had a third part of profits accrewing by Pleas and Forfeitures in their Counties as the Laws of the Confessor and Mr. Selden in his Comes but he will also grant their name à Comitiva potestate rather than from such Communion of profits That the old Sheriffs also who were Vice-Comites did come to Parliament appeareth in the Ancient Writs and Histories and yet the Barons seem to be the Kingdoms Iudges and the present Earls may seem to sit in Parliament but onely as Barons who are now all Peers and Lords and Parliament But although the Lords were the great Iudges of the Kingdom and of all Members thereof yet it is well known that in full Parliament as old as Edw. 3. they did not only acknowledge but protest that they were not to Iudge the Commons in Cases of Treason and Felony being not their Peers How it was in Rich. the Second may be seen at large in the Rolls and Records now printed in Edward the Second the Commons proceeded by the Judgment of the Lords for which also the Fructus temporum cited before may be added to all in the Road. Appeals and Writs of Error were from the King to the Lords in Ecclesiasticals that touched the King they were to the Spiritual Prelates Abbots and Priors of the Upper House by Act of Parliament in 24 Hen. 8. till which it may be Temporal Lords had also Cognizance of such as well as Temporals And Writs of Error in the Parliament were Judged by the Lords for they came from the Kings Court his Bench or his Exchequer and if Errors had been in the Common Pleas or below it they should not be brought into Parliament but to the Kings-Bench and from the Kings-Bench as from the King not otherwise they came to the Lords and although there was a formal Petition for removing the Record from the King it was but of Course and the King could not deny it Which we found granted by all the old Lawyers and Historians as I shewed before and by the grand Master and Patron of Law King Edw. 1. in Britton because none may Judge in his own Cause Therefore in Causes where our self shall be Party we do consent que N. Court soit judg Sicome Counts Barons in Temps de Parliament In the Laws of Hen. 1. one of the Chapters beginneth thus Iudices sunt Barones Comitatus qui liberas in eis terras habent for in those times Barons were by Tenure only not by Patent that I know till Beauchamp of Holt in Rich. 2. nor by Writ that I can find till the Barons Wars but K. Johns Charter is to Summon Comites Barones Regni majores sigillatim per literas N. But all that hold in Capitae by general Summons forty days before the Parliament and that Negotium procedat ad diem assignatum secundum consilium eorum qui presentes fuerint quamvis non omnes submoniti venerint and the Summons of Delinquents or Suitors in Parliament was to appear and abide the Judgment of the Court not of the King but of his Court for the King is Father and not Judge of his People in his proper Person as was shewed before and all the Books agree that he must Commit his Jurisdiction unto Judges in the Courts of Justice and when he might assume great Offices into his own Hands by Parliament in Edw. the third all Judges were expresly excepted and the Judges Oaths and several Acts of Parliament require them to proceed according to the Law notwithstanding the Kings Command or Seal against it and the Register affordeth a Writ to Supersede or Revoke any such Seal from the King himself to any of the Judges And the Lord Chief Justices as the Lord Chancellor and Treasurer were Chosen by the Kingdom as we found before in the time of Hen. 3. how much more then should the Lords of Parliament be made by Parliament for else they be the Kings Commissioners So the Roman saith our German Fathers chose their Lords in Common Council to be Judges in iisdem Conciliis Eliguntur Principes qui Jura reddunt De Minoribus consultant Principes de Majoribus Omnes And Caesar also observeth that their Princes or Lords were their great Judges sed Principes Regionem atque Pagorum inter suos jus dicunt Controversiasque minuunt Yet Tacitus will also tell us that with those Princes they did joyn Commons Centeni ex Plebe Comites which were perhaps the Fathers of our County Hundreds And in K. Williams Edition of the Confessor's Laws when he inclined so much to them of Norwey Universi Compatriotae Regni qui Leges Edixerant came and besought him not to change their Old Laws and Customs of their Ancestors because they could not judge from Laws they understood not quia durum valde foret sibi suscipere
the Close is Acta haec confirmata apud Londonium Communi Concilio omnium Primatum meorum c. I should be unjust to our Laws if I should omit the Process and Plea of Morgan Hen against Howell Dha the good Prince of Wales Upon complaint they were both summoned by King Edgar Ad curiam suam and their Pleas were pacately heard In Pleno Concilio repertum est justo Iudicio curiae Regis quod Howell Dha nequiter egisset extra Morgan Hen filium sui Huwen depulsus est Howell Dha ab his duabus Terris the Lands then in question sine recuperatione Postea Rex Edgarus dedit concessit Hueno Morgan Hen illas duas Terras Istradum Euwias in Episcopatu Landas constituas sicuti suam Propriam Hereditatem illas easdem duas Terras sibi Heredibus suis Per chartam suam sine Calumpnia alicujus Terreni hominis confirmavit communi nostro assensu testimonio omnium Archiepiscoporum Episcop Abbatum Comitum Baronum totius Angliae Walliae factum est coram Rege Edgaro in pleno concilio c. This Record of King Edgar is in Codicae Landavensi fol. 103. I find it cited by the great Antiquary Sir Henry Spelman and it may be compared with the Monk of Malmsbury and Matthew of Westminster I must not relate the Visions or Predictions of the Fates of this Kingdom which Historians record about the Reign of King Edgar they are in print and may be read of all Besides the Prophecies of both the Merlins for the Scottish Merlin was fuller and plainer than the British in Vortigers time That I say nothing of Cadwalladers Vision or Alans Council which was long before the other Alane wrote on Merlin or of the famous Eagle of Shaftsbury that agreed with others in the Britains recovering their Kingdom again after their grand Visit at Rome whence they must bring Cadwalladers bones This leadeth me also to the Sybils Prophecy of three British Princes that should conquer Rome Brennus was one King Arthur some make the second Et quis fuit alter And of these Sybils or one of them sending a book to King Bladud so famous for the Bath and Greek-Schools or University at Stamford the Scotish Merlin seemeth to have written if among others I mistake not Baleus But of Edgar's Parliaments one was at Salisbury so we read in Chaucer or the old Fructus Temporum by Iulian Notary at St. Albans And of another of his Parliaments at Bath the Saxon Chronology at the year 973. His Laws are now printed and their Title is The Acts of King Edgar and his Parliament Mid his Witena Getheate gerred c. Here we find much considerable of Thanes which all will have to be Noble-men but it must be with them a Saxon word And Dhenian is to serve whence the Princes Motto Ic Dhaen For so it should rather be than in Dutch Ich Dien But why should Noble-men or those that were the freest have their name from serving Here they flie to Knights-service King-service or I know not what most proper as they say to free and Noble-men But from a Judge or Fleta we may be taught that the Saxon Dhaen or Thaen is a Servant but Thayn a Free-man And in this sence it seemeth to be used here As also in Denmark and Ireland Nor did the Britains differ much whose Haene or Hane is an Eldar although Hyne be sometimes used for a Servant And so the Irish Tane is Elder whence their Tanistry or Eldership the cause or sad occasion of such bloudshed These British Hanes the Saxons in compliance called Ealdermen St. Edward's Laws afford so much and it may be Thanes although with them they had the name of Greeues or Graves suiting well with Elders Hanes or Senators With which we may compare the Phrase of Seniores which we read so oft in Gildas Nennius Monmouth and others of the British and first Saxons times in Britain I should be tedious in but glancing over the Acts of Parliament in Edgar's time That of the Standard at Winchester is considerable and that of one Coyn through all the Kingdom The Mirrour is plain in making it an Act of Parliament in Saxon times That no King of this Realm should change his Money or embase or enhanse it or make other but of silver Sans l' assent de tout ses Counties Which the Translator is bold to turn Without the Assent of the Lords and all the Commons We may not omit the Act against unjust Judges or Complaints to the King except Justice could not be had at home For which also the Hundred-Courts were again confirmed and the Grand Folkmootes or Sheriffs Turnes established by Act of Parliament Of which and of their relation to Peace and War more in Edward's Laws which may afford a Comment for the Saxon Militia I need not speak of the Parliament at Calna it is famous enough where Considentibus totius Angliae Senatoribus the Roof fell down and hurt them most but St. Dunston Of which Wigornensis Iornalensis Malmsbury Matthew of Westminster and so many others may be cited King Ethelred's Laws have this Title in Lumbard Sapientum Concilium quod Ethelredus Rex promovendae pacis causa habuit Wodstoci Merciae quae legibus Anglorum gubernatur aefter Aengla-Lage Post Anglis Lagam as an old Author turneth it In those Acts we read of Ordale Sythan the Gemot waes aet Bromdune Post Bromdune Concilium It seems a Parliament And again Iussum ac scitum hoc nostrum si quis neglexerit aut profuâ quisque virili parte non obierit ex nostra omnium sententiâ Regi 100 Dependito By which it appeareth to be a Parliament and not the King only that made those Laws That which Sir Henry Spelman calleth Concilium AE 〈…〉 e Generale was clearly one of King Ethelred's Parliaments and the very Title is De Witena Geâ—ednessan and tha Geraednessa the Englaraed Witan gee 〈…〉 c. And divers Chapters begin Witena Geraednesse is enacted by Parliament And the old Latin Copy of this Parliament telleth us that in it were Vniversi Anglorum Optimates Ethelredi Regis Edicto convocato Plebis multitudine collectae Regis Edicto A Writ of Summons to all the Lords and for choice of the Commons a full and clear Parliament In this Parliament were divers Acts for the Militia both by Land and Sea as most Parliaments after King Edgar and among others for Castles Forts Cities Bridges and time of the Fleets setting out to Sea It is made Treason for any to destroy a Ship that was provided for the State-service Navem in Reipublicae expeditionem designatam as a learned man translateth the Saxon. And no Souldier must depart without leave on forfeit of all his Estate None may oppose the Laws but his Head or a grievous Mulct according to the Offences quality must recompence It was here also enacted That Efferatur
Iews in the Laws of the Confessor Some Kingdoms are in Fee to others and must do Homage Swearing Fealty So Scotland unto England so was also our English King but not the Crown or State which hath oft in Parliament been adjudged and declared Imperial Independent when himself did Homage unto France And yet I do not find our English King did ever much Scruple at his waging War with all France and the French King also but did often fight in Person against his Person and he might do so by Law if the King of France did Injure and Oppress him against Law That I say nothing of the Personal Challenges by Rich. the first Edw. the third and Rich. the second Or of King Iohns being cited or Condemned by France for Murther in that Kingdom This might yet be enlarged and further cleared from the good Laws of K. Henry the first which are so strict for Allegiance and due Fealty to every Lord that they seem almost to forget our old English Clemency and yet they speak enough of a Vassals impleading c. his Lord for which divers Chapters from the 40 th to the end are very considerable And the 55 th Chapter limiteth all Homage and Fealty per honestum utile that which is honest and profitable and as Honestum there respecteth God and the common Faith Deum fidem Catholicam so must Utile respect the Kingdom and the Common good it being usual for those times to express the Common Good by such a Phrase of Utile So the Laws of St. Edward for Foromotes Heretokes ad Honorem Coronae ad Utilitatem Regni So King Williams Additions were granted and Confirmed ad utilitatem Anglorum So the Parliament at Merton was to treat de communi utilitate Regni which may be considered in the Writs of those times and the great Charters granted à tout la commune Dengleterre as Articuli super Chartas And the first of Westminster pur le common profit de st esglise de Realm and the Confirmations of the Charters in Edw. the first forbidding all Impositions c. but by Common assent of all the Realm pur le common Profit de ceo which must be determined by Commune Assent and no otherwise So Ethelreds Law Efferatur Concilium quod Populo Utilissimum And Canutes quae ad Reipublicae Utilitatem Commune commodum which there may Paraphrase Regalitas of which before And however the late Oaths of Allegiance are if we consider the old Oaths both in the Saxon and first Norman times we shall find them to respect the Kingdom and its common Good and Profit as well as the Kings Prerogative or private Profit to the Crown By Bracton with others we are led to the Laws of the Confessor for our great Allegiance But in those Laws the Oath is to defend the Kingdom with the King and that by such an Oath we should all be sicut conjurati Fratres ad defendendum Regnum contra Alienigenas contra Inimicos unâ cum Domino Rege c. That it was so also in the Brittish times of K. Arthur whose Parliaments we may assert by more than that in Caius of Cambridge we find in these very Laws and that by Vertue of this Oath King Arthur raised his Subjects and expelled the Saracens and Enemies a Regno from the Kingdom And the same Laws tell us that the same Oath was renewed and Confirmed by K. Edgar whose Laws are severe enough for Treason but against all Lords as well as the King and it is Punished as Theof And the Laws of Canute confirming those of Edgar require Fealty conjoyned with Duty and Virtue and again with Common Justice Iusjurandum datamque fidem Religiosissimè servato injustitiam pro sua quisque virili Parte ditionis nostrae finibus omnem arceto as Lambard translateth the Saxon of those Laws and in another place of them The Leet Oath of Fealty Iure Iurando fidem det omni se in posterum aetate tum furti tum furti Societate Conscientia temperaturum And to this doth King Edwards Oath of Allegiance in Britton seem to allude que ilz nous serrount Feaul Leaux que ilz ne serrount Felons ne a felons assentaunts yet I do not deny but Theof in this Oath might include Treason with other Felony as vvas touched before but however it is as well for the Kingdom or the Common good as for the Kings Prerogative or private Honour o◠the Crown So also the first Norman Laws called the Conquerors require an Oath of Allegiance but for the Publick Peace and common Justice to the Kingdoms good as much as to the Crown for so the words run fint Fratres conjurati ad Regnum N. contra inimicos defendendum Pacem dignitatem N. Coronae N. ad Iudicium rectum Iustitiam constanter modis omnibus pro posse suo as K. Canutes Laws before sine Dolo sine dilatione faciendam This is now continued also through our great Charter and all the Confirmations of K. Edwards and K. Williams Additions in utilitatem Anglorum vvhich may be considered as a good Comment on the usual vvords in Indictments against the Peace and Crown and Dignity vvhich by those Ancient Lavvs vvas to be joyned vvith the publick common good and Justice of the Kingdom So that Allegiance vvas ad Legem to the Laws the Kingdom and the Kingdoms good or Profit together vvith the King And in all the Lavv Books vve may read of Treason done and committed against the Kingdom as against the King So in Hengham Parva cap. 3. If any raise War against the King or against the Kingdom ubi quis movet Guerram contra Regem vel Regnum And his Commentator referreth to several Cases in Edward the third Henry the fourth with Plowden and others which would be considered Nay there are many old Authors and Masters of Law that expresly declare it to be as Real Treason to seduce the King or the Kingdom or an Army for the Kingdoms Safety as to Act against the Kings Life So in Hengham Magna cap. 2. Treason is branched thus de Nece vel Seditione Personae Domini Regis vel Regni vel Exercitus And the very same Division of Treason is in Glanvil both in his first Book and second Chap. and the first Chapter of his 14 th Book To which also may be added Bracton Lib. 3. cap. 3. de Coronâ and Fleta lib. 1. cap. 21. vel ad seductionem ejus vel exercitus sui and Britton cap. 22. disheritur de N. Royalme ou detrahir N Hoste of which also Stanfords Pleas of the Crown lib. 1. cap. 2. and others that Wrote since the Twenty fifth of Edward the third which may seem to limit or to lessen high Treason but not to annul Treason by the Common Law And in Cases of such Treason they declare that although there be no Accuser but only Suspicion sed fama
solummodo publica so Glanvil but in Bracton Fama apud graves bonos and in Fleta apud bonos graves infamia yet must the Party be Attached vel per Carceris Inclusionem vel per Plegios idoneos so it was in Glanvils time for all but Homicide but in Fleta's Diffamatus vel Accusatus attachiabitur per Corpus Captus Remanebit donec se indè Legitimè acquietaverit That is in him till he have Legally cleared himself from all Seducement of the King Kingdom or Kingdoms Army Omnemque seductionem Regis Regni vel sui exercitus quicquid sit contra Pacem suam which Glanvil expresseth thus Machinatum fuisse vel aliquid fecisse in mortem Regis vel seditionem Regni vel Exercitus vel Consensisse vel Consilium dedisse vel Authoritatem praestitisse In such Cases also they debate who should be Iudge and for this they all agree in that fundamental Principle of right Reason and Nature that Parties may never be Iudges in their own Causes for which besides all others the Mirror is large and clear among all Exceptions to the Iudges Person if he have no Commission or refuse to shew it as he ought or be Party c. of which also Britton in Appeals cap. 22. fol. 41. And for this reason Bracton and Fleta with others agree that in such Causes neither the King who might so they say be Iudex Actor nor the Kings Commissioners should Judge or determine But Curia Pares except only when the Case is not of Life but finable for in such the Kings Commissioners may determine sine Paribus But who are these Peers and what is this Court One of Bractons first Maxims in his second Chap. is that all obscure difficult and new Judgments ought to be suspended Usque ad magnam Curiam ibi per Consilium Curiae terminentur Fleta is somewhat clearer in his second Book and second Chap. Habet enim Rex curiam suam in Concilio suo in Parliamentis suis presentibus Prelatis Com. Baron Proceribus aliis viris Peritis ubi terminatae sunt Dubitationes Iudiciorum Novis injuriis emersis Nova constituuntur Remedia unicuique Iustitia prout meruit Retribuetur Ibidem Unicuique What to every Man in all the Kingdom or how far and how high may this extend or reach Shall we propound this Doubt to the Antient Parliaments who were most like to know their Power and Priviledge The Law was clear enough before but some were pleased not to think it so and therefore in the Statutes of Marlbridge as old as Henry the third in the first place of all it was agreed and enacted That all men Living of this Kingdom as vvell high as lovv tam Majores quam Minores must and ought submit to Judgment Iustitiam habeant Recipiant in Curia Domini Regis That this Expression may go lovver than the Court of Parliament I can not deny nor vvill others I suppose deny but that it may and must be yielded to the highest Court of all One of the Clauses of the Kings duty expressed in the Saxon Lavvs is to do all things rightly by the Judgment of his great Court per Iudicium Procerum Regni and again by that great Council to maintain or do Justice and Judgment Iudicium Rectum Facere Iustitiam tenere per Concilium Procerum Regni All vvhich and much more in those Lavvs must be solemnly Svvorn by the King before the Kingdom and the Clergy in propria persona inspectis tactis Sacrosanctis Evangeliis c. coram Regno Sacerdote Clero This may be considered antequam ab Archiepiscopis Episcopis Regni Coronetur Even before he may he Crowned or should require his Subjects Homage Insomuch that vvhen the Subjects have tendered Homage as some Lords did to King Henry the fifth before the King had done his Homage and Sworn his Fealty to the State and Laws It hath been observed by Historians as some kind of Comet that I say not a Prodigy in State Politicks And besides all the forms of Coronation found in Hoveden Walsingham and other Historians secundum antiqua Statuta as Matthew Paris speaketh it is clear enough in the Records and Rolls of Richard the second before others how the King first did take that Solemn Oath and then the Archbishop went to every side of the Scaffold relating to the Kingdom how the King was Svvorn and then he asked them si ipsi consentire vellent if they would now give consent to take him for their King and Liege Lord and if so they came and did him Homage If they would consent What was it at their Choyce and were our English Kings Elective plain Elective sure it would be duely weighed and I confess some things have made me very much suspect they were Elective And the rather also by considering the great Care and Importunity of some Kings to procure the Crown to be setled by Parliament upon their Heirs Which might intimate that indeed it was not their Inheritance at Common Law for it was seldom seen I suppose that English Men have taken much Pains to obtain an Act of Parliament to settle their Inheritance on their own Heirs except they were Illegitimate or Aliens And upon search I cannot find the old Oaths of Allegiance did relate to the Kings Heirs or Successors either in the Saxon or first Norman times although we find the Oath in old Laws long before Edw. the second and in old Lawyers Bracton Britton Fleta with the Mirror punctual in the Oath of Allegiance but not a Syllable of Heirs or Successors that I can find Yet in the times of Henry the first and Henry the second there was some special Acts of Parliament for setling the Crown on Maud the Emperess or her Issue and King Henry's Son was Crowned in his Fathers Reign and of that time the Salvo in Glanvil Regi Haeredibus which I find not in any other old Lawyer and I believe it not usual till the great Quarrels of York and Lancaster it may be much Later But all such Acts for tying the Crown to such or such a Family do not evince a former Right of Succession any more than the House of Austria doth prove the Empire not to be Elective though it now seem as entailed on that Family I say not how often it hath been adjudged that Affirmative Statutes do not annul the Common Law and that one may Prescribe against a Statute Negative but in Affirmance of the Common Law for which the Comments on Littletons Burgage So that if an English King was Elective by the Common Law the Kingdom might prescribe against late Statutes which might erre much more than they could oblige all future Parliaments but they might still be free and most of all in what was due before by Common Law Let us discuss it then and see what Antient Lawyers and Historians do record about our Kings
Leges ignotas Judicare de eis quas Nesciebant How it was in Parliament while there were only Barons by Tenure would be more enquired But of later times Commons have adjudged Commons and have joyned with the Lords in adjudging Lords of which there are divers Cases cited in the Fourth Part of Institutes Cap. 1. pag. 23. It may be considered that many Kingdoms and Common-wealths that were not Kingdoms in all Ages did consist of Three Estates as of Three Principles in Nature or Bodies Natural which might occasion the Phrase of Tribe in many other besides the Romans who in Three Estates were not so Ancient as the Grecians or Aegyptians that I speak not of the Gauls Britans or the Eastern Nations And if any would observe it might be possible to find the Prophets hinting a Trinity in divers Kingdoms or Estates and that not only for moulding but for overthrowing them Besides the Three Captivities or Three overturnings of the Iewish State and the Three blows of the Goat on the Ram in Daniel as alluding to the Three great Battles which did break the Persian Empire And why may not the Sacred Trinity be shadowed out in Bodies Politick as well as in Natural And if so our Three Estates may be branched as our Writs into Original Iudicial and Executive as shadows of the Being Wisdom and Activity Divine If I may not grant yet I cannot deny Original Power to the Commons Iudicial to the Lords Executive to the King as the Spirit to the Body or if you will the Head or Fountain of Sense and Motion But he must see by two Eyes and hear by two Ears as I touched before yet his very pardoning although it be by Law much limited doth seem to speak his Power Executive And so his Writs do speak aright Because my Courts have so and so judged Therefore I do so and so command the Judgment shall be executed And if any will assert the Militia to this Power Executive I shall also grant it to the King So that it may be alwayes under the Power Original and Judicial This might belong to the Lords and that to the Commons And the plain truth is I do not find more Arguments to prove the Judicial Power to belong to the Lords than I do for rhe Legislative in the Commons And as it seemeth to be above so below also it may be much disputed That the Legislative Judicial and Executive power should be in distinct Subjects by the Law of Nature For if Law-makers be Judges of those that break their Laws they seem to Judge in their own Causes which our Law and Nature it self so much avoideth and abhorreth So it seemeth also to forbid both the Law-maker and Iudge to execute And by express Act of Parliament it is provided That Sheriffs be not Justices where they be Sheriffs But if Execution be alwayes consonant to Judgment and This to the Law there is still most sweet Harmony and as I may say a Sacred Unity in Trinity represented That the Commons should have most Right to the Power Original or Legislative in Nature I shall leave to be disputed by others I shall only touch some few Particulars which have made me sometimes to suspect that by our Laws and Model of this Kingdom it both was and should be so How the Roman Historian found the Judicial power given to the Lords by our Old Ancestors I did observe before he is as plain for the Legislative in the Commons Nay to the Lords themselves he saith in Judging was adjoyned a Committee of Commons both for Counsel and Authority Ex plebe Comites consilium simul Authoritas And again he sheweth how the Lords did sit in Council about the less Affairs but of greater all both Lords and Commons So also that those things which the Commons did determine Quorum Arbitrium penes Plebem apud Principes pertractentur they should be debated with the Lords for their Advice but not their Legislative Votes And the Mirror a good Comment on Tacitus in this sheweth how our Lords were raised out of the Commons and giveth them a power Judicial but where is their Ligislative Nay the Modus of Parliament will not only tell us that the Commons have better and stronger Votes than the Lords but that there may be a Parliament without the Lords as well as Prelates For there was a time in which there was neither Bishop nor Earl nec Baro so the Irish Modus and yet there were Parliaments without them but never without the Commons So that if the Commons be not summoned or for Cause Reasonable cannot or will not come for Specialties in which they blame the King Parliamentum tenebitur pro Nullo quamvis omnes Alii status plenarie ibidem interfuerint And the Kings Oath is to confirm the Just Laws which the Commons not the Lords but Commons shall Elect or Choose quas Vulgus Elegerit So in Latine and in French of Edw. 2. and Edw. 3. Les quiels la Communante aur ' eslu And in English of Hen. 8. and other Times which the Commons of the Realm shall choose And if we look into the Old Writs of Summons we shall find the Commons called ad consentiendum faciendum and the Old Writ addeth quod quilibet omnes de Comitatu facerent vel faceret Ii personaliter interessent As it is in the Modus of Parliament with sufficient intimation that without the Commons nothing could be done which the late Writs express thus Ita quod dicta Negotia Infecta non remaneant pro defectu potestatis c. But the Lords are called de quibusdam arduis tractaturi consilium Impensuri only as Counsellors not as Law-makers For the very same words are in the Writs for the Judges and others coming to Parliament although they do not Vote in making Laws This may also shew us how the Lords themselves did Elect the Knights of Shires and by Statute of Rich. 2. are to contribute to the charges of the County Knights who were to sit and Vote in Parliament as Law-makers for the whole County whereas the Lords were there but as Judges and the Kings Counsellors And is it probable they should retain to their own Persons that for which they delegated others who were there to do quod quilibet omnes facerent personaliter even all that all the Lords themselves should do as Freeholders not as Lords or the Kings Patentees who might so be his Councellors or Iudges rather than Law-makers this was more left it seems to the Commons who for this and other Reasons should not be Common Iudges as I think in private Causes or of private Persons but of Iudges or of such as the Mirror speaketh of whom elsewhere there was no Common Justice to be had But if the Lords had not a Legislative Right why did the Commons send up the Bills to them how came the Lords to joyn with the Commons in Passing of Acts
It cannot be expected that I should shew the Original of all Changes or Distempers in this Kingdom It is work enough to shew our first Mould or Constitution yet for this also it cannot be doubted but the Barons Wars and Power might gain upon the Commons more than on the King he had such Bounds before that he could hardly be obliged more or capable of granting much but what was due before to all his People But it might be easie for the Potent Lords to grow upon the Commons in the Name of Barons In that Name I say for I cannot determine but the old Barons being the great Freeholders and the Lords of all the Manors that have left their Names in our Courts Baron had by Law and Reason much more Power than had the Kings Patentees Created Barons by Patent or Writ But this new Creation did but multiply the Iudges or the Kings Councellors for by so taking their Commission from the King they were only as other Judges in Inferiour Courts and so did really lose their great Power of Iudging which was proper only to those who were the Kingdoms Peers and Iudges So that these Lords did justly admit the Commons or rather were admitted by the Commons into the grand Iudicature and it may be that as the Barons did communicate their Power Iudicial so the Commons might communicate their Legislative unto those who had the Name but little of the Nature of the old Barons by Tenure yet by so doing they might bring Confusion or an harsh Discord into Natures Harmony But the main occasion seemed thus the King was tyed by his Coronation Oath to hold keep and defend the just Laws and Customs chosen by the Commons Iustas Leges consuetudines quas vulgus elegerit and this Limitation of Iust seemed to admit of reason or debate so much as might convince the Laws required to be Just for else I know not that the King was ever tyed to them And because he was or might be an Infant he had still a great Council about him to discuss the Laws proposed by the Commons and for this Cause he did and by reason might Summon the Lords or any other Wise and good Man he knew to come and give him Counsel as the Writ speaketh to the Lords and Iudges c. De quibusdam arduis nobiscum tractaturi Concilium impensuri So we find the old Acts passed per Consilium Baronum as we might shew in all Ages And because he used to demurr at Bills till he had the Advice of his great Council hence it may be for more Compendium the Bill was sent up first to the Lords as the Kings Counsellors and if they Counselled him against it then he answered Le Roy s'avisera The King will yet be farther Advised for he did not and I think he could not give a denyal nor of old perhaps Demurred till the Lords advised him against it I dispute not how much the Commons might oblige the Commons without assent of Lords or King Nor have I yet said that in the Coronation Oath the Commons Just Acts are called Laws and to Mould them may be works distinct enough and the plain truth is his Oath is to hold and to keep and to defend the Commons Laws à Tenir Gardir Les Defenderer per se tenendas protegendas as well as to Grant or to Confirm However I do not see either by Reason or Law That the King was so obliged to the Judgment of his own created Lords and there be few or none others left in England that he might not be convinced by the Reason of the Commons either without or against the Lords And beside divers Ordinances without any of the Lords it cannot be denyed but in Divers ages there were Acts of Parliament made without or against all the Lords Spiritual which yet often were the Major part of the Lords House and had as good it may be better Votes as Barons by Tenure than had all the other Lords by Writ and Patent only which might make them Judges or Councellors much rather than Law-makers I should still be far from desiring to obtrude my own Fancies or Opinions upon any least of all to the wrong of others Therefore if any can produce a better Title my Petition is they may be heard and may receive their Just Rights and Priviledges But if this be true which I now only propose and submit to better Thoughts and Judgments then had the Lords of late but a Right Consultative of making Laws And besides all that was said before this seemeth one Reason why our Ancestors did so willingly follow the Vice of Nature in placing the Power Legislative Iudicial and Executive in three distinct Estates as in Animals Aerials Etherials or Celestials three Regions and three Principles in Naturals that so they might be forced to consult often and much in all they did And if this frequent Consultation were retained and observed still it might not only occasion good Reviews but also prevent That which to the Common-wealth I fear and not Alone to private Persons may be sometimes prejudicial in a sudden Vote or Act of one House or one Body and yet one may be better much than Many if they be not good It must be granted that in Bodies of the Best Complexion and Composure here below there may be such Distemper and such Gangrene in some Members that it may be more than fit to cut it off Nay what was best may come to be the worst in Putrefaction That it may be meer Necessity to bury it although it were as Dear as Sarah was to Abraham or set on high by him that raised up the Brazen Serpent which see e're long lye buryed with this Epitaph Nehushtan And to all that is truly Just the Commons of England will not need to plead a bare Necessity for by Law and Reason too it may be said and proved I believe That both the King himself who chooseth by his Writ and All the Lords by several Votes have left the Legislative power so to the House of Commons that they had a Legal Right to do what all the Kingdom and Common-wealth of England Justly could But They are Men and therefore may be much unjust Nay where the Thing they do is Iust They may be much or most unjust I have neither Calling nor Ability to Judge them Nor may I act with force against them for whate're I think Unjust No not if I should think they did Usurp the Crown For if the Law Reports and Books deceive me not it hath been Judged Treason and so is for Private Men to rise conspire or Levy War against one that Usurps the Crown and Rights thereof except it rightly were declared Usurpation or that others should or might oppose him that did so Usurp Of which the Reasons may be Great and obvious Let me then suppose any one Man of all the Commons in Parliament for I will not
quo Lanfrancus diratiocinatur and the conclusion that he was to hold his Lands and Customs by Sea and Land as free as the King held his ezcept in three things si regalis via fuerit effossa arbor incisa juxta super eam ceciderit si homicidium factum sanguis in ea fusus fuerit Regi dabit alioquin liber a Regis exactoribus In the same Author were read of a Great Counsel at London in that Normans Reign and of another at Glocester where the Arch Bishop of York jubente Rege et Lanfranco consentiente did consecrate William Bishop of Durham having no help adjunctorium from the Scottish Bishops subject to him which may be added to that before of Scotland belonging to the Province or Diocesse of York Nor can I abstain from the next paragraph in the same Author how Lanfranc did consecrate Donate a Monk of Canterbury ad Regnum Dubliniae at the Request of the King Clergy and people of Ireland Petente Rege clero populo Hiberniae which with divers others might be one Argument for the Antiquity of Irish Parliments and their dependance on England long before King Henry the Second For which I might also cite King Edgars Charters Oswalds Law and divers Historians of his times But the Charters mention Dublin it self and yet our Lawyers are so Courteous as to free Ireland from our Laws and Customs till towards the end of King Iohn and some of them conjecture that the Brehon Law came in again and that our Parliament obliged them not till Poynings Law in Henry the seventh But to return to our Norman King I need not beg proofs of Parliaments in his time at least not to those who know the Priviledge of antient Demesne which therefore is free from sending to Parliaments and from Knights Charges and Taxes of Parliament because it was in the Crowns not only in King William but before him in King Edward and the Rolls of Winchester for which the old Books are very clear with divers Records of Edward the third and Henry the fourth besides natura brevium That I say nothing of the old Tractat. de antiquo Dominico which is stiled a Statute among our English Statutes And besides all the late Reports or Records I find it in the Year Books of Edward the Third that he sued a Writ of Contempt against the Bishop of Norwich for encroaching on Edmondsbury against express Act of Parliament By King William the Conqueror and by the Arch-Bishop of Canterbury and all the other Bishops Counts and Barons of England It is 21 of Ed. 3. Mich. fol. 60. Title 7. Contempt against an Act of Parliament This might well be one of the reasons why the great Judge giveth so much credit to the old Modus of Parliament as it was held in the time of King Edward the Confessor which as the antient copy saith was by the discreet men of the Kingdom recited before King William the Norman and by him approved and in his time used I have cited it before and compared it with Irish Modus which my much honoured friend Mr. Hackewil one of the Masters of Chancery hath under his hand attested from the Great Seal and Charter of Henry the fourth which himself hath seen reciting a former Charter of King Henry R. Angliae Hiberniae conquestor Dominus who sent the same Modus into Ireland Where himself or his Son Iohn sans terre had no great work to reduce them to the civility of Parliaments To which they had been long before accustomed and the Roll saith communi omnium de Hibernia consensu teneri statuit c. nor doth the division of the Irish-Shires seem so lately setled as some have thought although I may not dissent from the great Patron of Civill and Ecclesiastical Learning the late Primate of Ireland Touching that Irish Modus I have very little to add to the fourth part of the great Institutes in several places I shall now only observe that both these old Modi of Parliaments do agree in this Custom of the Kingdom that the King should require no Ayd but in full Parliament and in Writing to be delivered to each in degree Parliament And both they agree that every new difficult case of Peace and any war emergent within or without the Kingdom vel Guerre emergat in Regno vel extra ought to be written down in full Parliaments and therein to be debated which may be considered by all that will argue the Militia To which also we may add one clause of the Jewish Laws of their great Sanhedrim to whom they retain the power of Peace and War especially where it is Arbitrary and not meerly defensive in which the Law of nature maketh many Magistrates and this might with ease be confirmed from the Laws and Customs of all Civil Kingdoms in all ages But I must not wander from our English Laws I had almost forgotten that which should be well remembred Although many would perswade us to seek our Laws in the Custumier of Normandy it is not only affirmed in the Great Reports but also asserted by Guil de Rovell Alenconien and proved by divers Arguments in his Commentaries on that Grand Custumier that the Normans had their chief Laws from Hence As had also the Danes in the time of Canute for which we might have more proof and witness than the Abbot of Crowland So much even strangers did Love and Honour old English Laws Of King William the Second Sirnamed Rufus I shall speak but little for I must discuss his Election and Coronation Oath in a fitter place Some footsteps we find of his Parliaments in divers Wigornensis and Hoveden tell us that when he would have constrained the Scottish King ut secundum judicium Baronum suorum in curia sua Rectitudinem ei faceret Malcolm did refuse to do it but in the Confines or Marches Where he could not deny but the Kings of Scotland were accustomed rectitudinem facere regibus Angliae But he then said it ought to be by the Iudgement of the Parliaments of both Kingdoms secundum judicium utriusque Regni primatum And I find the like Record cited on Fortescue from Godfrey of Malmsbury But Huntingdon and Matthew Paris also relate that the same King Malcolm did submit both to do Homage and to swear Fealty to our English King and Paris addetth a pretty Story of King Malcolms overlooking Treason But again to King William Of his Errors in Government I shall only say that if Edom did really signified Red as hath been thought I could believe that all Historians speaking of Adamites then oppressing the People might allude to the near affinity between Edom and Rufus for Red. For this was his Sirname of King William the Second Henry the First is yet alive in his Laws and Charters Not only in Wendover with other Historians but among the Rolls and Records yet to be seen in the Exchequer They are now in Print
men Trustees to the whole Kingdom and Neighbours to the Fact or Party or both To which also there must be a legal proof by lawful Witnesses or else the Charge will not suffice And in such Indictments from the Commons the Lords are the Tryers and the King may seem as the Iudg but in other Courts also the Judgment goeth of course upon the Verdict and must be entred per Curiam as adjudged by the Court although there be but one Judge or tho' his Mouth pronounce not the Sentence But we are not yet come to debate the King's Consent to the Lords Judgment an Indictment from the Commons It is also to me very considerable how the House of Commons could or ever did Indict I cannot deny them to have been a Court and a Court of Record although some have seemed to question it and their Records are not so ancient as some others But I have not fully understood how they ever did make or receive a Formal Legal Indictment when as they did not give a single Oath much less Empannel a Iury or Enquest Yet some there be that without a Writt or any written Commission did and might do this Virtute Officii But they be known chosen sworn Officers of the Kingdom for such Purposes as the Peeples Bayliffs Coroners Sheriffs Escheators and some Officers about the Forest who by the Common Law did Summon and Empannel Juries But so did not the House of Commons How then did they Indict Of all Crimes committed in the House they are and were so much the sole Iudges that they seldom use to complain much less to Indict any other And for any thing done abroad I hope they do not use to take Rumours and Reports though from their own Members to be sufficient for or equivalent to a legal Indictment on Oath Seeing their scarce is or can be any Case so notorious but it may be pleaded unto by somewhat of Law or Necessity And although I should yield the Commons to be the Masters of the Law in making it yet they pleased to allow others to be Iudges in their Laws And if they reassume this also yet it may be more easie to judge of some Law than of any Fact at least as it may be cloathed so as a curious search or Enquest may be requisite to lay it clear and naked Neither can I see how it may be necessary to proceed against any by force or illegal Process when it is easie as well as just to go rightly as to do right For who can imagine a Case so dark and intricate but it may be contrived so that particular men may be Accusers and others Witnesses with a clear and real distinction between Indictors Tryers and Iudges most of all in Cases notorious and evident For in such there may be less fear of the Iuries Verdict against Evidence or of the Iudges Sentence against the Verdict Or if this should happen in a Tryal is there not a most heavy doom appointed by Law for all Iurors that forswear themselves and goe against their Evidence Is there not a clear way of Relief by Writ of Attaint Is it not worse than Death to forfeit all Estate and be thrown into Prison while both Wife and Children must be turned out of Doors and All For his House must be pulled down his Ground be plowed up and his Trees rooted out with loss of Franchise and with a perpetual Brand of Villany This is the Common Law for a perjured Iuror and that also in Petty Cases how much more might it be just in Case of Life and Death And for Corrupt Iudges our Law is very severe altho' we have much lost the Custom of the Grand Eyres in this also King Alfred be long since dead who hanged 30 or 40 more unjust Judges than Cambyses flead And for that the Mirror may be a good Comment on some Passages in Alfred's Life by Asser And if it be true that Horn lived to the end of K. Edward it is much wonder that on such occasion he did not also mention some of those Judges by him so punished when there was scarce any left but good Iohn of Mettingham and Elias of Bechingham And of this the Dissertations of Fleta may be added to all before as that of Sir William Thorp and the Great Judg in the third Part of Institutes about corrupt Iudges and the Iudge's Oath It is very considerable how curious the Iews were in Creating or rather Ordaining of Judges For indeed the Phrase of Ordination seemed to be first raised from Them For which I have little to add to Mr. Selden on the Eutychian or Alexandrian Antiquities as old as St. Mark the Evangelist Nor can it be denied but the Jewish Judges and Magistrates had a very good Right and so used as we find in the Books of Moses and the Kings and Tirshatha's to Read and Expound the Law Moral as well as Iudicial Nay in this they seemed to have some advantage of the Priests or Levites that had work enough most times in that which was but Ceremonial This may Expound those Pieces of Scripture Old and New where we find some explaining Scripture being neither Priests nor of the Tribe of Levi. And the Iews Punishments of evil Judges are severe and most remarkable nay where all others were again restored to their Offices after Corporal Punishment their Lord Chief Iustice or President of their Sanhedrim or any Chief Iustice could never be restored again after such punishment no not to be as one of his inferour Colleagues So just he ought to be and circumspect by daily experience added to his own wisdom Our Laws are so just and so good in themselves that there could not be be so much cause of complaints in all our Gates for such were the Iews Courts of Iustice if our Judges were such as they should and might be And yet I cannot deny but that there be very great abuses among the Lawyers and Attorneys or Solicitors but if the Judges were as just and wise as they may be inferiour Officers would soon amend or comply for Love or Fear so much as would prevent Complaints and many of their Causes But it is the work of a God and not of a Man to reform abuses in all Courts of Justice Hercules did never cleanse so great so foul a Stable or a Stall yet in this also a wise and just Parliament will do much and will need none of my help or advice How tender all should Delegates be in making Delegates But in nothing should they be more tender or more circumspect then in this of making Judges For in these of all Delegates our law is most scrupulous Before the Statute of Merton those that held by suit Service were bound to appear in Person because the Suitors were Judges in causes not their own but by that Statute they had power given to make Attorneys but it was only ad Sectas faciendas to make or follow
tenens to the Sheriff and he standeth when the King dieth When also so many think there is no Sheriff but it may be more considered I must not stay in the Court of Peepoudres incident to every Fair or Market as a Court Baron to a Mannor although it be a Court of Record and a Writ of Error lyeth on its judgment for which Iones and Hall's Case in the 10th Part of Reports and in the 4th Institutes I need not speak of Writs of Error from the Common Pleas to the Kings Bench from the King's Bench to the Exchequer-Chamber and from thence as from the King's Bench also to the Parliament or of the known Statute of Henry the 6th making it Felony to steal withdraw or avoid Records or any parcel of Record But of no Records is the Law more punctual than in of extraordinary Cases of Oyer and Terminer which were more private oft and less fixed being transient on emergent Cases which yet being heinous seemed to require most exact Records especially because there might be Appeal so just and needful if the Judges exceeded but one tittle of their Commission If it were discontinued or expired then the Indictment and all Records were to meet in their proper Center at the King's Bench but in other Cases Records of Oyer and Terminer were sent into the Exchequer So in Edw. the 3d. As in Elizabeth Results on charitable uses and the like were to the Chancery by Act of Parliament The great Seal was the Soul to inform and actuate the Body of Records in all exemplifications from the Rolls in all Writs Pattents or Commissions and the rather also that by this nothing of moment might be hudled up but duly weighed and considered while it passed so many hands and judgments as it should before the Sealing Nor shall I add that an Act of Parliament it Self is not pleadable in a Court of Record but from Record or under the Seal whence the old custom was to remove the Records of Parliament by a Writ of Certiorari into the Chancery thence by the Lord Chancellor into the Kings Bench and thence by a Mittimus into the Common Plea and Exchequer with an usual Writ commanding all the Courts to keep and observe such Acts of Parliament which of Old were Proclaimed by the Sheriffs and were put under the Seal as we may see by the Proclamation now printed among the Statutes of Edw. the 3d. and they were not hudled into Print in those Days not of such vertue in Print as on Record and under the Seal For there were not then such Printers or Copiers that without much caution our fore-Fathers durst trust with all their Lives and Estates which by one dash of a Pen the change of a not a with a to a for or a from might be soon destroyed or enslaved Much less then should a Court of Record be Created but by Record yea and that be shewed under the Seal also For when the Seal was moulded our Ancestors ordained that no Jurisdiction should be grantable but under the Seal which should be known and obeyed by all the People as the Mirror discourseth at large In Edw. the 4th it was resolved by all the Judges in the Exchequer-Chamber that no man could be a Iudg or Iustice by Writ which was also Sealed but by open Pattent or a publick Commission But the Lord Chief Iustice of England hath of late no such Commission or Pattent yea a Sealed Writ and of Old he was also Created by Pattent till about the end of King Henry the 3d. if good Authors deceive me not It seemeth also somewhat disputable whether he were not included in the Statute of Henry the 8th for Commissions to the Judges by Letters Pattent under the Seal However the words are plain enough for Iustices of Eyre which of Old were also by Writ as those of Oyer and Terminer but now not to be but by Comission or Pattent under the Great Seal Which Commission should also be read and shewed in Court lest there be some kind of Demurrer or exception unto jurisdiction which hath been in some Cases at the Kings Bench and may be by Law to all now Judges by special Commission except it be produced under the Seal if the old Books deceive us not who do do not onely ascribe all jurisdiction to the Seal but in all legal exceptions ever admit of that to the Iudg if he be a Party or have not jurisdiction or be otherwise incompetent That the Parliament also will never Erect or Create any Court of Record but by Record and open Commission under the Great Seal I do the rather believe because the Seal is so proper and peculiar to the Parliament being made by common consent of which the Mirror and others at large and by such common consent used and committed to the special care of the Chancellor or Lord Keeper of England as he was called for keeping that which our Fathers esteemed as the Kingdoms Key or Clavis It is well known how King Henry the 3d. was brought to acknowledg That among all great Officers the Lord Keeper or Chancellor did especially belong to the Choice of the Parliament and Ralph Nevil among others refused to yield up the Seal to the King when it was demanded saying that he had received it by the Common Councel of the Kingdom and without their Warrant he would not deliver it of which both Matthew Paris and Matthew of Westminster From the continual use of this Seal in Parliament it is the Law and Custom of the Kingdom that the Lord Keeper shall have place in Parliament still to be there with the Sael although he be often no Peer and have no Vote but for making and Sealing of Charters Pattents Commissions and Writs framed by Parliament For although the Register made or continued by Parliament be now so full that there be little need yet the framing of New Writs was a great work of Old Parliaments as appeareth in the Books and Statutes as in that of Westminster the 2d de Casu consimili And as if the Parliament had made no Laws at all but onely New Writs the Old Modus brancheth out all the Laws of Parliament into Originals Iudicials and Executives which all know to he the Division of Writs Those especially de Cursu drawn by the Cursitors for Brevia Magistralia were let to be framed by the Masters of Chancery as appeareth at large in Bracton and Fleta and in the Oath of the Six Clerks or other Clerks of Chancery in Ed. 3 with that of Ed. 1. de casu continili in which Statute it is asol provided that if the Masters could not agree in framing such a new Writ they might if they saw cause respit the Parties till the next Parliament that so it might be formed by Advice of all the great Lawyers of the Kingdom Yet besides this of making and sealing of Writs there was another work and great use of the Masters of Chancery
Consent of his Proceres assign them any Land or City or Castle for that it was against the Laws of his Kingdom prohibitus sum quod Proceres Regni dissuaderent c. Yet it may seem the Lords agreed to their setling in Thanet afterwards but the Commons Dissented so that they resolved to drive them out again and that in Common-Council or Parliament Concilium fecerunt cum Majoribus suis ut pacem disrumperent dixerunt Recedite à nobis c. My Author is old Nennius of Bangor He hath clear passages for Parliaments in that time and for their Power also As for Incest with his own Daughter Vortiger was first Corrected perhaps with the Iewish Discipline which was here also till the time of Henry the Second and St. Germane the Arch-Prelate came with the whole Convocation-House Cum omni Clero Britanniae Corripere Eum. Nennius saith that in a great Moot of Clergy and Laity he was so roughly handled that he rose up in a great Rage and Fled or at least sought how to Flye but he was Banned Maledictus est damnatus a beato Germano Afterwards Vortimer was chosen King 't is every where but after divers Victories he Dyed Poysoned as some thought by Vortiger He now Combineth with the Saxons and by their Power entreth the Scene again but with little Consent of the Britains and although he Acted a while yet he was Hissed off being odious to all till at length his Heart brake Nennius addeth that some said the Earth opened for him and St. Germane Writeth that his whole Family was Burnt from Heaven which was much ascribed to the Clergies Curse or Excommunication Which was in use among the Britains and that also upon their Princes of which we have many examples as of Teuder and Clotri for Homicide and Perjury and Hovel Glevissicg and Brochwell did hardly escape by a great Fine Iudicium Suffere non potuit of which Sir Henry Spelman in his Synods of Landaf It was then by much more heavy than of late Caesar observeth it among the Druids and in him it is Poena Gravissima adding also that such Persons were Abhorred by all as some Loathsome Disease and that they might have no Honour or Right of Law Neque iis petentibus Ius redditur And among St. Patricks Canons we find the Excommunicate excluded à Communione Mensa Missa Pace their Ceremonies in this seem a-kin to the Iewish Cherem nay to their Shammatha or St. Pauls Maranatha and it so continued among the Saxons also as we may see in the Laws of Canute making it Capital to protect or harbour any such But in the Confessors Acts when an Excommunicate fled to the Bishop for Absolution Eundo redeundo Pacem habeat else it seems they were as Out-Laws who might then be Killed by any that met them as the same Laws of Woolfshead in another Chapter Which may help us to Interpret those that speak of the Iews being Excommunicate nay and that also by Seculars in England of which in Matthew Paris and his Additaments but his Glossar rightly expresseth it by the University Phrase of Discommoning Townsmen which of old was much worse it seems than now After Vortiger Aurelius Ambrose à Convenientibus Britannis Convocato Regni Clero in Regem erectus est He might also be Inserted into Gildas for he dyed by Poyson if good Authors deceive us not At his Death a Comet like a Dragon and the Bards apply it to his Brother thence called Uther-Pendragon Florilegus addeth that he made two Dragons of Gold Offering one and carrying the other still before him whence the Dragon in our English Standard although some have asserted much of him they call St. George That which Westmonster or Polydore expresseth by Praecepit proceribus Regni Convenire Monmouth thus in Aurelius Iussit Clerum ac Populum submonere ad Aedictum ergo illius venerunt Pontifices Abbates ex uncquoque Ordine qui ei Subditi and again of Uther Convocato Regni Clero annuentibusque cunctis sublimatus est in Regem and again Communi Populorum Concilio This Uther-Pendragon is vouched and asserted in the famous Contest of Little Britains Subjection to Turon may it also allude to the Story of Brute of which Gratians Decrees and Matthew Paris ad An. 1199. Uther being Dead Convenerunt Pontifices cum Clero Regni Populo a Parliament agreed by all to Bury him Regio More in the Gyants Dance or Stonehenge which himself had gotten by Merlins help out of Ireland fixing it so near to Salisbury for a Monument of that Parliament which was thereabout Destroyed by the Saxons A Parliament I call it so I may In Nennius they are Seniores Vortigirini Regis but in Monmouth and those that follow him they are Principes Consules that is Comites Barones Cives called by the Kings Command Edict or Writ of Summons For Arthurs Parliaments it would be much Superfluous to produce more proof than what already is in Sir Iohn Price Cajus Leland or others that assert his History this I shall only add that in this of all we may Credit Monmouth who is so punctual in nothing as in vouching each County and City that made up his Parliaments Ex Diversis Provinciis proceres Brittonum Duces and among others Dux Doroberine Consules both of Counties and Cityes Boso Ridocensis id est Oxonefordiae Lot Consul Londonesiae c. And among Forreign Princes he Nameth the Kings of Ireland Island Godland Orcades Norway Denmark and others besides the twelve Peers of Gaul of whom also in divers other places that I speak not of the twelve Reguli which Brute found in Gaul nor was there a Prince of Note saith he citra Hispaniam who did not appear at his Summons which may be compared with that of K. Arthur among the Laws of the Confessor and in Horn as Authentick as Neubrigensis Come we to the Saxons what I cited before from the Mirror Tacitus Caesar or others may be fully asserted from their Histories I shall not insist upon Offa's Election although it be clear enough from his own Words ad Libertatis vestrae Tuitionem non meis meritis sed sola Liberalitate vestra unanimiter me convocastis and the Lives now Printed with Matthew Paris and his Henry the third mention divers if not all the Counties which made up K. Offa's Parliaments Nor will I spend time in Cuthred Beonerd or others Deposed by Parliament because the Monarchy was not yet so fully settled But in the Confessors Acts we find K. Ina Elected though by means of an Angel and the first Saxon Monarch of his Laws and Match with his Gaulish Walish Cambrian Queen before as also of his clear and full Parliaments in the Militia E're long we find a Parliament at Calcuth Conventus Pananglicus ad quem convenerunt omnes Principes tam Ecclesiastici quam seculares wherein by the King Arch-Bishop
In the Conquest about Investitures K. Henry the first wrote to the Pope that he could not diminish the usual Rights and Dignities of the Crown or Kingdom and that if he should be so Abject as to attempt it his Parliament would not permit it Optimates mei totius Angliae Populus id nullo modo pateretur In the great Moot of Scotlands dependance upon England Edward the First confessed as much to another Pope to whom also the Parliament both Lords and Commons wrote that they they were all obliged by Oath to maintain the Just Rights Liberties Laws and Customs of the Kingdom where we may see their Oath of Allegiance to the Kingdom that nothing should be acted against Them In exheraeditionem Iuris Coronae Regie Dignitatis ac subversionem status ejusdem Regni nec non praejudicium Libertatum Consuetudinum Legum Paternarum These are on the Rolls and printed on the Statute of Merton and in Walsinghams Edward 1. and the Surveigh of Normandy And from other Records of the same King we learn that when the Pope demanded the Grants of K. Iohn he answered That he could not do it without consent of his Parliament Sine Praelatis Proceribus Regni being tyed by his Coronation Oath to keep all the Laws and Rights of the Kingdom Illibati and to do nothing that might touch the Crown without their Consent Which may be added to that before in St. Edwards Laws of the Kings Oath to do all things Ritè per Concilium Procerum Regni When the King of France demanded Homage of K. Edw. the Third he desired Respite till he had the Advice of his Great Council as we may read in Froizard because he could not act without them in such great Affairs And when the Pope demanded Homage of the same King he referred it to Parliament who adjudged and declared that K. Iohns Grants to the Pope were unjust illegal and against his Coronation Oath being done without his Parliaments Assent or Counsel And yet K. Iohn's Charter to the Pope in Matth. Paris doth pretend it done Communi Concilio Baronum And about Stephen Langton the same K. Iohn did write to the Pope that he could not depart from the Liberties of his Crown but would or should defend them to his Death And hence began the Great Excommunication which begot a Confiscation of the Church Revenues hinc ille Lachrymae which could not be stopped till the Crown did stoop to Pandulph which might have excused the poor Hermit Peter from being so cruelly dragged from Corf◠Castle to Warham But when the same King felt his Arms loose he laid about him so that all believed he meant to strike In that Meen the Arch-bishop told him It was against his Oath to raise or make War without the Consent of his Great Court Si absque Iudicio Curiae suae Contra quempiam Bellum moveret to be added to the Militia But the fire was already kindled and the Smoak or Flame brake out at Nottingham I must not touch the Barons Wars except I had leisure to discourse and discuss them freely Only as we found our Great Charters made up of old Laws and Customs so I might now also clear it more that it was not a new Fetter on the King to have some Supervisors set about him for to order all his Actions who by his Coronation Oath was tied to do nothing touching the Kingdom but with Advice and Consent of the Great Council per Concilium per Iudicium Procerum Regni That it was so also among the Britains to all observed before I might add the Old Scottish Custom of choosing Twelve Peers in Parliament to be the Kings Tutors as we may call them for by them the King must be wholly governed Quorum Concilio Rex Regnum gubernare debebat as we may read it in Walsinghams Edward 1. besides their own Chronicles that I say nothing of the Twelve Brittish Peers of which Cambden in Siluribus We need not much wonder at the Writs in K. Iohn's Time requiring all Men of all Conditions to oblige themselves by Oath to maintain the Great Charter and to compel the King thereunto Et quod ipsum Regem pro posse suo per Captionem Castrorum suorum distringerent gravarent ad praefata Omnia Exequenda when as this very Clause was in his Charter Et illi Barones cum Communa totius Terrae distringent gravabat nos modis Omnibus quibus poterunt scilicet per Captionem Castrorum terrarum possessionum aliis modis quibus potuerint donec fuit emendatum secundum Arbitrium eorum Which may be added to that before of our Allegiance or Oath of Fealty to the King with the Kingdom and of the Kings Oath to be guided by the Judgment of his Great Court. Nay as if K. Iohn's Salva persona N. Reginae N. Liberorum N. had been too loose in K. Henry's Charter it was expressed thus Licet Omnibus de Regno N. contra Nos insurgere Nay and to do all things quae gravamen nostrum respiciant ac si nobis in Nullo tenerentur These times seem not to attend our Grand Maxim of State The King can do no wrong or at least they understood it not as some late Courtiers would perswade us Yet it is true he can do nothing but by Law and what he may by Law can do no wrong And if he do against the Law his Personal Acts Commands or Writing do oblige no more than if they were a Childs And the Books call him an Infant in Law though his Politick Capacity be not in Nonage as the Parliament declared in Edward the Sixth which is not to exempt him from Errors or to excuse his Crimes but to shew that he must be guided by his Council and that his own Personal Grants or Commands cannot hurt any more than an Infants which may be reclaimed and recalled by the Council of the Kingdom So the Mirror saith The King cannot grant a Franchise to prejudice his Crown or others because he holds his Right and Dignities but as an Infant Cap. 4. Sect. 22. If I should say The Commons in Parliament are and were the Kingdoms Peers as well as the Lords I might vouch an Old Authority as good as the Ancient Modus of Parliament which doth often call the Commons Peers of Parliament as well as the Lords So debent Auxilia Peti pleno Parliamento in scripto cuilibet graduum Parium Parliamenti oportet quod omnes Pares Parliamenti consentiant duo milites pro Comitatu majorem vocem habent in Concedendo contradicendo quam Major Comes Angliae c. So in doubtful Cases of Peace and War disputetur per Pares Parliamenti and if need be Twenty five shall be chosen de omnibus paribus Regni which are so specified Two Bishops Three Proctors Two Earls Three Barons Five Knights Five Citizens and Five Burgesses And again Omnes Pares
Males but one or two that can escape by Stratagem But yet he must not build the Temple for he was a Man of Blood and when he would but remove the Ark Uzza is smitten and David ashamed as well as afraid at that great Breach which remaineth to his Day I had almost said prophetical of our Times From Perez Uzzah the Ark is brought but a few Paces for it must rest a long time with Obed-Edom a mysterious Name and when it comes from thence to the City of David it must be content with a Tabernacle with many Forms and Ceremonies and among others Obed-Edom is the Porter to that Tabernacle Shall some of Edom also be brought in although his Desolation be eternal or for an Age of Ages May they come to be Porters as the Gibeonites were Hewers of Wood for the House of God His Iudgments are in all the World and so they must be long But Judgment is his strange Work and he delighteth in Mercy he will turn again and be Merciful unto us Nay all the World shall Sing and Rejoyce The Sea shall roar a while and all that in it dwells but there shall be no more Sea no more Death or Hell but what shall be sealed up in the great Pit But the Earth shall Rejoyce and his Goodness shall be over all his Works they shall all bless him they shall all praise him Nay all the Trees in the Forest shall Rejoyce This is also the more considerable in that it was so clearly expressed in that joyful Psalm which was made and Sung at David's bringing the Ark from Obed-Edom But it is divers times repeated and inlarged in the Psalms and Prophets For it is a great Mystery Solomon the King of Peace must build the Temple up there must not be a Hammer heard or a Stone Squared but before it cometh thither He is married to Aegypt and in League with Tyre and Sydon the Letters are yet to be found and read in old Authors then Pineda he is reconciled to Moab and Ammon and the Arabians bring him Gifts as did the Magi from the East He spake peace to the Gentiles afar off not only to the Queen of Sheba I do not reject or believe all the Titles or History of Precious Iohn But I could with a Sight of Solomon's Works and others in his famous Library at Amyra Nay to the Isles of the Gentiles We need not travel to Peru as some have done to seek Ophir it is nearer much and better found in Zealand one of the best Islands I suppose in all the World and the learned Author of the late Peleg maketh demonstrative Paralels of this with Ophir or the Taprobane of Ancients Yet even Solomon this peaceful King had two great Enemies one was an Edomite David left but very few and the other was a Syrian I do not say an Assyrian or Babylonian altho these often come into the Name of Syria a vast Latitude But the Text saith the Syrian reigned about Damascus which seemeth near the Borders of the old Magog and it may be compared with the Close of the 16 th or rather with the middle of the 20 th of the Revelation or with much in Ezekiel about the time of his Temple or it may be long after it was built The second Temple was built in a time of Trouble and great Fear For they held their Swords together with their Trewels But yet it was not built by Power or Might much less by Force but by his Spirit and Goodness that did overaw his Enemies Zerubbabel did hardly live to see his Temple or at least the City finished This was but a gentle Visitation as the Jews used to call it not a Restoration of the two Tribes much less of all as the Prophets promise Nay some of them promised after this Return from Babylon And this Temple was imperfect much it wanted divers Glories of the former Five in special as the Jews affirm at the want of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the Word foretelling its Glories which never were recovered tho great Herod did encrease the outward Glory And there was a greater than Solomon to give Peace in that place and so he did to all the World 'T is known how oft the Romans shut the Temple of their Ianus But why could not this Peace endure was it because this Temple was not founded in Peace for Ephraim envyed Iudah and Iudah vexed Ephraim Nay among themselves they could not agree for some wept as others laughed But when the People did with one Voice and one Consent Sing out to Bless and Praise the Lord so saith the Type in Solomon then and not till then the Glory of God came down and fill'd the House so that the Priests could not enter nor it may be needed in that Glory This was but a Type of somewhat yet to be fulfilled more much more in building of the new Temple Solomon did also then pray that all the Earth might come to know the Lord and serve him as his People Israel did And this was heard and answered by God and almost all the Prophets who with much Consent assure us that the Earth shall be full of the Knowledg and Glory of God And that he shall be served with one Consent and with one Shoulder even from the rising of the Sun to the going down thereof For it is worth observing how Learning and Religion came along with the Sun from East to West In every Place shall Incense be offered with pure Oblation And then Ephraim shall no longer envy Judah nor Judah vex Ephraim If I durst assert Esdras to be Scripture in any thing it should be in those most considerable Prophecies of the Ruine of the Roman Eagle to which it may be our Saviour also alludeth as he seemeth to do in divers other Passages found no where that I know but in Esdras And about the Fall of that Roman Eagle he seeth a great Multitude of Fighters as in Armageddon But at length arose a Man who was the Son of Man that called to him a peaceful People that should leave off War for it should cease in all the World their Swords and Spears must be beaten into Plow Shares and pruning Hooks And when the Multitude in the Revelation stand and Sing the new Song the Song of Moses of the Sabbath or the Red Sea and the Song of the Lamb not yet known abroad Then and not till then is the Vail of the Tabernacle in Heaven Opened But there was yet a Smoke to cloud that Glory But when the seventh Angle shall sound and all the Kingdoms of this World become the Kingdoms of our Lord and of his Christ and those be destroyed that destroyed the Earth Then shall the Temple of God be fully opened in Heaven and the Ark of his Testament the Model shewed to Moses on the Mount shall be seen and viewed in that Temple not in a Tabernacle but a Temple then also shall the four
rough East-Wind Chap. 27 28. But there is a more inward Proportion yet to be found in rational Agents when their Activity is proportional to their Being and to their Knowing and when ever these three are preserved Equal or Proportional there is true Liberty So it seemeth to be in God may be so darkly shadow out the Blessed Trinity His Being Knowing and Activity are Infinite and therfore Proportional to each other and absolutely Free altho Necessary By his Knowing he freely comprehendeth and by his Acting freely diffuseth his own Being So that all the Creatures seem as several Rayes or Ideas rightly called Species acted that is diffused through infinite Knowledg from or rather within Infinite Being which the Iews call the Place in which we Live and Move and have our Being Creation was of somewhat not appearing before so both Reason and the Scripture teach But how it was or could be from meer Nothing would be more considered and it may be the Hebrew Word may signify to Cleer Manifest or Reveal somewhat hidden before rather than to make of Nothing Something De novo which may seem impossible if there ever was Being Infinite as much real Entity as there could be altho not so visible in all its Moods as it was since the Revelation which we call Creation All the Creatures have some Image of the Creator's Being and Activity it may be also some kind of Knowing suitable to both for which there is much to be said and perhaps more then is yet written by any de sensu Rerum where we might also find Causes of Antipathies and such as are now called occult Qualities And wherever Activity for this is most to Sence and by this we used to measure Freedom tho it should it be in Knowing as much as in Doing is preserved equal or proportional to Being there and there only seemeth to be true Liberty which may most appear in the Actings of those Beings which are most knowing Shew me then the Sphear of Man's Being and you may quickly find the Measure of his Freedom his being is by all agreed to be Rational and Reason therefore is the proper Measure of his Liberty For he is then Free when his Activity is preserved equal or proportional to his Being this is Rational and so must that and Man is then and then only Free when he can Act what he should Act according to right Reason This is the Law of his Nature which is Rational and Reason is his Royal Collar of S. S. S. or a Chain of Pretious Pearls which Nature hath put about his Neck and Arms as a Badg of Honour and most happy Freedom This Digression would be scarce excusable but that our Law doth so adore right Reason that is a Maxim What is contrary to Reason is contrary to Law Knights Service with Ward and Marriage draweth Relief but Reasonable by common Law before the Charter and the Statutes do ascertain Aydes which were before to be Reasonable Guardian in Chivalry need not account but Guardian in Socage Prochein Amy or Tutor Aliene be liable to a reasonable Account For the old Writ requires Compotum rationabilem But an Action of Account will not lye against an Executor to such in Socage tho this hath been pressed in Parliament because it was not reasonable but in case of the King it was so adjudged Tenant at Will ejected by his Lord shall by Common Law have reasonable Time to remove his Family and Goods with free Egress and Regress during the said Fine reasonable Tenant by Copy with Fine uncertain is not wholly at his Lord's Pleasure for by Common Law he must only make a Fine reasonable Housboot Hedgboot Ploughboot all Estovers both for Tenants and Prisoners must be reasonable and so must all Partitions between Parceners and upon Elegit c. Which are therefore not left to the Sole Pleasure of a Sheriff or of any other but in a sworn Enquest as we may find in the Writ de Rationabili Partitione In divers Mannors there be many petty Customs which can hardly be brought into publick View but for those and for all the Law hath a short Text Que nest pas Encountre reason poit bion estre admitte allowe And the great Commentator addeth Lex est summa Ratio If you ask him who must determin of Reason or what is reasonable his Answer would be that if any man find himself aggrieved by his Lord or his Fellow Tenants the Law supposeth the Iudges Breast to be a sufficient Closet or if you will a Castle for right Reason I remember one Case and there may be divers in which the Law leaveth private Men even in their own Causes to be Iudges of Reason or what is reasonable It is a case of Escuage The great Charter dispenseth with personal Service in some Cases where it is not reasonable a Man should serve in Person and the Reason of this runneth so through all Escuage that if any Man will send another in his Room the Law dispenseth with it supposing he seth reason not to attend in Person Nor may he by Law be compelled in such Case against his own Reason Most if not all other Cases in that Tenure are by Common Law left to the immediate Reason of the Parliament which may be worth a little Pause as that which may somewhat clear the grand Question of the MILITIA It is true that by the Common Law and by the Laws of the Confessor cited by some to assert the Commission of Array Men ought indeed to have Arms and them to keep in Readiness for Defence of the King and Kingdom But it is also true that this besides other Passages is strangely cited and applyed for Defence of that Commission of Array For altho the Close of the Sentence be as they say Iuxta praeceptum Domini Regis c. Yet the same Sentence had they cited it whole seemeth to be much more against the Array than for it For the Arms required there must be Assessed by Common Consent and that also limited in that very Sentence to the Proportion of ever Man's Estate and Fee for the Defence of the King and Kingdom and for the Service due to the Lords Iuxta praeceptum Domini Regis and these Words in this place do refer to the immediate precedent Words Servitium Dominorum which by the Custom of the Kingdom was so Limited that in all Homage or Fealty there used to be added this Salvo Salve lay foy que jeo Doi à Seignior le Roy. And lest King Edward's Laws should not be plain enough secundùm quod eis statutum est adjudicatum quod debent King William the first by Advice of his great Council explained them thus that nothing should be exacted or taken but Liberum Servitium free Service Prout statutum est per commune concilium totius regni as it was established by the Common Council of the whole Kingdom which is also a clear Proof for such
bring any Letters of Excommunication or attempt a Voyage beyond Sea without a Licence And for sequestration of the Peter pence till further order If that I have cited already were not clear enough for Parliament in these we may have more from Wendover or Matthew Paris where we are expresly told that the great meeting at Clarendon of which before was made up of a Lord President de mandato ipsius Regis with Arch-Bishops Abbots Earls Barons and to these also are added Proceres Regni which may here speak the Commons as in Hoveden Populus so often expressed of that Parliament For it may be remembred that Virgil himself doth acknowledge the Commons also to be very frequently called to Parliament from the time of King William as we may read in his large description of our Parliaments in Henry the first To which also for this Parliament at Clarendon we might cite very many Historians besides Gervase and the Quadrilogus or Becket's Life by 4 cited on Eadmerus and in Ianus from which there is much to be added to that in Matthew Paris Where it is also asserted that these Constitutions of Clarendon were not only agreed but expresly sworn by all the degrees of Parliament Episcopi Clerus cum Comitibus Baronibus ac Proceribus cunctis Iuraverunt c. as also that these were but a Recognition or Recordation of some part of the Customs and Liberties antecessorum suorum Of which also Florilegus thus coram lege Magnatibus facta est Recordatio regiarum Libertatum Consuetudinum Cui Archiepiscopus assensum non praebuit c. Nor would it be hard to shew very many if not all of them agreed in Elder times Of Foreign Appeals we spake before and the Writ Ne Exeas Regnum is as old as Rufus if we may beleive Polidore or better Authors To that of Appeals from Ecclesiastical Courts to the King or Delegates I can add very little to what is in Caudries Case in the 5th part of the great Reports with the preface to the 6th That against Excommunication of the Kings Tenants or as the Elder Law was of the Barons is cleared enough in the Notes on Eadmerus from the first Norman Records To which may be added a Law of Henry the first of the Wills or Legacies of his Barons vel Hominum with which the Learned Ianus compareth an Old Law of Canute and toucheth the power of the Ordinary in Case of Intestates which is prescribed from most antient Parliaments but the Original doth not appear I must not spend time in heaping up the many proofs of Parliament for the Assizes of Clarendon which were again renued at Northampton Hoveden is large and clear for them all and for the Circuits and Iudges in Eyre by full Parliment Communi omnium Concilio But the Mirror and those that write of Alfred will afford us these in many older Parliaments From that Assize of Arms for every Fee we may learn to expound the Statute of Winchester and others speaking of a former antient Assize which is here found at large To which I may add that what is here spoken of the Iustices presenting to the King may be expounded to the King of Parliament As is fully expressed not only in Fleta but in the said Statute of Winchester The Iustices assigned shall present the dafaults at every Parliament The defaults of Arms for the Militia And by this time I shall not need to speak of Escuage in H. 2d assessed by Parliament for Tholouse Wales and Ireland of which Gervase the red Book in the Exchequer and Matth. Paris with the Notes of Hengham To which I might add Matth. of Westmin de unaquaque Carrucata terrae totius Angliae quatuor denarii Concessi sunt collecti for the Holy Land But when he had the offer of the Kingdom of Ierusalem Convocato Clero Regni ac Populo it was rejected Concilio universo as the Monk of St. Albans speaketh Of K. Rich. Coronation and his Oath before the Nobles Clero Populo Hoveden is very large From him it may be found in others And of the Jews in those times to whom he was a Friend as his Charters shew and very sorry for their sufferings who did help him much for his Eastern Wars as some relate with Polydore See Mr. Selden on Arundeliana Marmora his great Charter to the King of Scotland of many Liberties for which he did recieve 10000 Marks but still retaining the antient Dues to this Crown is every where For which I must not forget what was before in H. the 2d Malcolm became his man 't is said and did him Homage but on some disgust he was not Knighted by our King as was wont and Matth. Paris addeth also that the Scottish Kings Horse was the English Marshals Fee at such a Knighting But Hoveden telleth us that about two years after the same King came again and was then Knighted by King Henry Of his Parliaments and their Power in War and Peace I might cite very clear proofs The League with France was agreed by both Kingdoms Archiep. Episcop in verbo veritatis that was the mode in those days for them as for the Lords since in verbo Honoris Comites Borones Regnorum praestito Sacramento juraverunt And his Sea Statutes were made de Communi proborum virorum Consilio as the Charter it self expresseth it in Hoveden Wendover or Matth. Paris Who doth add that per Consilium magnatum there were made Iusticiarii super totum Navigium Angliae c. Which with divers Records of H. 3d. may be added to the Admiral or Saxon Aen mere eal Over all the Sea How the Lord Chancellor being left the Custos Regni did on pretence of the Kings Warrants pole the People is at large in Hoveden and others But in the Monk of St. Albans we may read that er'e long in Parliament of Commons also assensu Communium definitum est it was enacted that none should so domineer in England to disgrace the Church and oppress the People And that all the Castles which the said L. Chanc. had committed to his Clients or disposed without the Parliaments assent should be presently delivered up and in particular the Tower of London where he then was and was glad to yield and make his peace with much submission for to save his Life For which also Polydore Virgil is worth perusing And in him we also find the North committed to the Bishop of Durham who of an old Bishop was made a young Novice Earl but he paid dear for his honour and how the Chancellor excused himself by the Kings Command As if saith Polydore the Kings Command might disannul the Law Quasi fas esset jus omne principis jussu rescindere Of the Kings Voyage to the East I shall not speak nor of the famous Prophesies he found touching Antichrist and the Revelation They are in Hoveden besides all others Where we also find him ransomed
see and proceed in a judicial way Nor would he condemn or execute before he had not onely cleared his justice in himself or to his Angels but also to Abraham Lot and other Lookers on that he still might be justified both when he judgeth and is judged For he still did and will put his Actions on Man's Judgment This Process also towards Sodom is by many of our old Lawyers brought for the Pattern of our Laws in that especially that none may be condemned without a Legal Hearing And in this and divers other things do Bracton and Fleta borrow much from the Laws of Henry the First And be the Matter of Fact never so notorious yet may there be some Plea that no man can foresee or ought to forejudge before he heareth for all men may plead necessity or force upon themselves as well as Right and Law for any thing they do amiss And for this and other Reasons the Law doth suppose all men to be just or excusable till they be Legally heard and adjudged This Difference there is between the Judges and the Law-makers For these they say do suppose all men to be evil but the Judges should suppose all men to be good till they be proved to be evil The Charge and Accusation by the Law of Nature ought to be clear distinct and particular with time and place or other Circumstances else the Party accused cannot discharge himself Universalia non premunt omnino vel opprimunt Generals do not press at all or else they are apt to oppress The Witness and the Evidence must also be so clear that these must condemn rather than the Judge who sitteth as Counsel for the Party accused that so he be not oppressed by or against Law And besides the Judges in most Cases and in those also of Life in Scotland there is Counsel allowed by Law which may and ought to be heard in Particulars of Law or whatever may be justly disputable as Treason is by Statute So that of all Crimes by express Acts of Parliament it ought to have no Tryal but clear and plain according to the course and custom of the Common Law In such Cases therefore should the Iudges both in Law and Conscience sit and be instead of Counsel to the Party This they owe to every Subject though they had a special Obligation to the King Who to his own Rights and therefore to his Wrongs was an Infant in Law and so expresly declared in the Old Mirror besides other Books His Politick Capacity never but his Person ever in Nonage or supposed so in Law for it may be a Child or a Woman not able to know the Laws and therefore always had by Law a Legal Mouth assigned in Counsel of Law And so might any man else of old it seems for matter of Demurrers before Judgment or for framing of Legal Appeal by Writ of Error or some other way from any Judgment whatsoever It is also the Law of this Kingdom and of Nature that though there be no Councel assigned yet may any in a good manner move the Court to keep the Party from Injustice or the Court from Error as Stanford and the 3d. part of Institutes Cap. 2.63 and 101. And in such Cases it may be excused and not censured for rash zeal if some do or shall appear where or when it may be thought they be not called Neither can the whole Parliament of England I suppose make any Court to condemn without lawful Accusers or lawful Witnesses which by express Acts of Parliament is most especially provided in Case of Treason in King Edward the Sixth and Queen Maries Reign and Tryal of Treason was most expresly tyed to the course and custom of the Common Law Nay in full Parliament of Hen. the VIII it was declared that Attaint of Treason in or by Parliament was of no more force or strength than it was or ought to be by the Common Law or this as good and strong as that by Parliament Nor can the whole Parliament I think by the Law of Nature and right Reason make any Children Ideots or all others whatsoever to be so much as Accusers or Witnesses that I say not Indictors Tryers or Judges By express Acts of Parliament in Philip and Mary Edw. VI. Hen. VIII Hen. IV. Hen. I. for to him doth the Mirror and his Laws lead us as to a clear Crystal Fountain of our Law Process none should suffer for Treason or other Crime but by lawful Accusers lawful Witnesses before those that by Law might receive Indictments which with all Enquest are to be made by honest lawful able men Neighbours to the Fact And the Law of Nature with the Law of the Kingdom giveth any man leave to except against some for Accusers others for Witnesses and many for Tryers It being the known Law of the Land that one may challenge the Array either the principal Pannel or the Tales as well as the Polls and that the lowest Subject must be admitted if he require it to a perremtory challenge of divers it is now in most Capitals limited to 20. but in Treason it is as at Common Law it was to 3 Juries or 35 which may be challenged without any particular reason And the Law of Nature also seemeth to hear all Reasons and just exceptions against any whatsoever Nor shall I need to shew how sutable our Law is to the Law of Nature in providing that no Infant Ideot Alien Abjured Perjured or Attaint Outlaw'd or in Premunire be of any Enquest or Iury especially in Case of Life and Death And for Tryers besides all other exceptions This was thought enough that any of them had been Indictors which maketh Fortescu so much to Glory in our Law that putteth no man to Death but by the Oath of four and twenty men I should mispend my time to shew it to be the great Law of the Kingdom as well as of Nature that none may be Iudg and Parties in their own Cause which may ere-long be found perhaps to be the reason of the Three Estates and very much of our Common Law which is punctual in nothing more than in providing for a clear distinction of Accusers Witnesses Endictors Tryers and Iudges especially in Cases of Treason which upon divers motions of the Commons in Parliament have been so often Enacted and declared to be onely Tryable by the course and custom of the Common Law and no otherwise Nay in Parliament it self and Parliament Men there was and for ought I find always the like course observed For in Case of a Peer the Custom of the Kingdom is to proceed by a special Commission to one as Lord Steward and 12 others at least for a Iury of Tryors besides Accusers and Witnesses and a formal Indictment And all from Record to Record or all this is Illegal if it be onely by the House of Peers If Charge come from the House of Commons they are as Indictors being more than twelve sworn