returned without the prisoner This being related to the House of Commons they would sit no longer without their Member and desiring a conference with the Lords Sir Thomas Aâ—dly then Chancellour and the rest judged the contempt to be very great and referred 〈◊〉 punishment thereof to the House of Commons it selfe Concerning liberty or freedome of speech which is held another privilege of Parliament There is a speech of Sir Thomâ—â— Moors upon record who being chosen Speaker 14. Henry the eight He first disabled himself and then petitioned the King in the behalf of the House that if iâ— communication and reasoning any maâ—â— should speak more largely then of duty be ought to do all such offences should be pardoned which was granted and entreâ— upon record In which petition it is observable that liberty or freedom of speech is not a power for men to speak whaâ— they will or please in Parliament It is â— priviledge onely not to be punished but pardoned for the offence of speaking more largely then in duty they ought to do which in a right construction must be understood of rash unadvised ignorant or negligent escapes and slips in speech not for willfull malicious much lesse for treasonable speeches And then the Kings pardon was desired to be upon record that it might be pleaded at Bar to all actions There is a speech upon record in Queen Elizabeths time wherein the Commons were warn'd not to meddle with the Queens Person the State or Church-Government Polyander I have heard of divers traverses that hapned in the reign of that popular and long lived Queen which trenched as much if not more upon the priviledges of Parliament and the liberties of the people then any that happen'd in the reign of the two last Kings Philanglus It is very true and I will give you some instances drawn from good authentick records 23. Elizabeth Mr. Paul Wentworth moved in the House for a publick fast and for a Sermon every morning at seven a clock before the House sate the House hereupon was divided 100 were against it and 150 for it and so an order passed accordingly The Queen being told hereof sent a message to the House by her Vice-chamberlain That her Highnesse had great admirâ—â—tion of the rashnesse of the House in commitâ—ing such an apparent contempt of her expresse command as to put in execution such an innovation without her privity or pleasure fist known Thereupon Mr. Vice-chamberlain moved the House to make an humble submission to her Majesâ—y acknowledging the said offence and contempt and to crave remission for the same withâ—â—full purpose to forbear the committing of the like hereafter So by the suffrage of the whole House Mr. Vice-chamberlain carryed their submission to the Queen accordingly 35 Elizabeth Mr. Peter Wentworth and Sir Henry Bromley delivered a Petition to the Lord Keeper desiring the Lords of the Upper House to be suppliants with them of the Lower House unto her Majesty for entayling the succession of the Crown whereof a Bill was ready drawn The Queen was highly displeased herewith and charged her Councel to call the parties before them so Sir Thomas Henage was sent to fetch them so they were first commanded to forbear going to the House and not to go out of their several lodgings afterward they were called before the Lord Tresurer Lord Buckhurst and Sir Thomas Henage Wentworth was committed to the Tower and Bromeley to the Fleet together with Mr. Stevens as also Mr. Welch Knight for Worcestershire The Queen sent a notable check to the House of Commons 28. of her raign for chosing and returning Knights of the Shire for Norfolk a thing impertinent for the House to deal withall and belonging only to the Office and charge of her Chancellor from whom the Writs issue and are return'd In one Parliament when Mr. Coke afterwards Sir Edward Coke was Speaker the Queen sent a Messenger or Sargeant at Arms into the House of Commons and took out Mr. Morris and committed him to Prison with divers others for some speeches spoken in the House Thereupon Mr. Wroth moved the House that they would be humble sutors to her Majesty that she would be pleased to enlarge those members of the House that were restrain'd which was done accordingly and answer was sent by her Privy Councel That her Majesty had committed them for causes best known to her self and to presse her Highuesse with this suit would but hinder the whole good they sought That the House must not call the Queen to an account for what shee doth of her Royal Authority That the causes for which they are restrain'd may be high and dangerous That her Majesty liketh no such questions neither doth it become the House to search into matters of that nature The Commons were told 39. Elizabeth that their priviledge was yea and no And that her Majesties pleasure was that if the Speaker perceived any idle heads which would not stick to hazard their own estates but meddle with reforming the Church and trans forming the Common-weal by exhibiting Bills to that purpose the Speaker should not receive them till they were viewed and considered by those who are sitter to consider of such things and can better judge of them Moreover the Queen rejected 48. Bills which had passed both Houses in that Parliament The House of Commons by their Speaker 39. Elizabeth complained of some Monopolies whereupon the Lord Keeper made answer in her Majesties name That her Highnesse hoped her dutiful and loving Subjects would not take away her Prerogative which is the chiefest flower in her Garland the principall and hâ—ad Pearl in her Crown and Diadem but that they will rather leave that to her own disposition Sergeant Heal said 43. Elizabeth publiquely in Parliament that he marvelled the House stood either at the granting of a subsidy or time of payment considering that all we have is her Majesties and she may lawfully at her pleasure take it from us in regard she had as much right to all our lands and goods as to any revenew of the Crown and he said he could prove it by precedents in the raign of Henry the third King John and King Steven This speech agrees with that which Sir Edward Coke hath in his Institutes where he saith positively That the first Kings of this Realm had all the Lands of England in Demesne and the great Mannors and Royalties they reserved to themselves and enfeoffed the Barons of the remnant for the common defence of the Kingdom There was a remarkable passage happen'd in the raign of Henry the fourth The House of Commons Petitioned the King that they might have advice and communication with certain Lords about matteâ—â— of businesse in Parliament for the commoâ— good of the Kingdom which prayer as the record hath it Our Lord the King graciously granted but with this protestation That he did it not of duty nor of custom but of his special grace So our Lord the King
Knights was framed first the Bâ—rons onely made the Parliament or Commoâ— Council of the Kingdom Polyander By so many strong evidences and prenant proofs which you produce I find it to be a â—â—ridian truth that the Commoners were no part of the High Court of Parliament in ages passed Moreover I find in an ancient Manuscript that the Commons were reduced to a House by the advice of the Bishops to the King in the brunt of the Barons Wars that they might allay and lesson the power of the Peers who bandied so many yeers against the Crown yet to prevent that they should not arrogate too much authority to themselves as Asperius nihil est humili cum surgit in altum it was done with those cautions thâ—â— they had scarce as much jurisdiction given them as a Pyepowders Court hath for they should neither exhibit an oath nor impose fine or inflict punishment upon any but their own members or be a Court of Record or grant Proxies therefore it may well be a quere how they can appoint Committees considering that those Committee-men whom they choose are no other then their Deputies and act by power and proxy from them But it is as cleer as the Sun that the Conquerour first brought this word Parliament with him being a French Word and made it free Denizon of England being not known before for therein the Normans did imitate the Romans whose practise was that wheresoever they conquered they brought in their language with the Lance as a mark of conquest I say that besides those instances you produce I could furnish you with many in the Saxons times who govern'd by the councel of the Prelates and Peers not admitting the Commons to any communication in affairs of State There are records hereof above a thousand yeer old in the Reign of King I a Offa and Ethelbert and the rest of the seven Kings during the Heptarchy They called their great Councels and Conventions then Michael Smoth Michael Gemote and Witenage Mote wherein the King and Nobles with the Bishops onely met and made laws that famous Convention at Gratley by King Athelstan was compose'd onely of Lords spiritual and temporal such also was that so much celebrated Assembly held by Canutus the Dane who was King of England Denmark and Norway Edward the Confessor established all his Laws thus and he was a great Legislator The British Kings also who retain'd a great while some part of this Island unconquered governed and made laws this way by the sole advice of their Nobles whom they call Arglwyded witnesse the famous Laws of Prince Howel called Howel Dha the good King Howel whereof there are yet extant some Welch records and divers of those Laws were made use of at the compilement of Magna Charea But in your discourse before among other Parliaments in Henry the third's time you make mention of one that was held in 55 of his reign at Marlbourough at which time Braston the great Lawyer was in high request being Lord Chief Justice They that would extenuate the Royal Prerâ—gative insist much upon a speech of his wherein he saith The King hath a Superiour God he hath also the Law by which he is made as also the Court viz. the Earls and Barons but not a word of the Commons But afterwards he doth interpret or rather correct himself when speaking of the King hee resolves thus Nec potest ei necessitatem aliquis imponere quòd injuriam suam corrigat emenâ—et cùm superiorem non habeat nisi Deum satis erit ei ad poenam quòd Dominum expectet ultorem Nor saith he can any man put a necessity upon the King to correct and amend his injury unlesse he wil himself since he hath no Superior but God It will be sufficient punishment for him to expect the Lord for his avenge To preserve the honour of this great Judge the Lawyers found out this distinction That the King is free from the coerâ—ive power of Laws and Councellors but he may be subject to their directive power yet according to his own will and inclination that is God can onely compel or command him but the Law and his Courts may onely advise and direct him but I pray Sir excuse me that I have so much interrupted you in your discourse You may please now to proceed Philanglus To prove my assertion further that the Commons were no part of the high Court and Common Councel of England I will make use of the testimony of Mr. Pryn who was in such high repute most part of the late long Parliament and appeared so eageâ— for the priviledge and power of the lower House In his Book of Treachery and disloyalty he proves that before the Norman Conquest by the Laws of Edward the Confessor the King was to do Justice by the Councel of the Nobles of his Realm he would also prove that the Earls and Barons are above the King and ought to Bridle him when he exorbitates from the law but not a syllable of the Commons He further tels us that the Peers and Prelates have oft translated the Crown from the right Heir whereof out of his great reading he urgeth divers Examples First after King Edgars decease they crowned Edward who was illegitimate and put by Ethelred the right Heir Then they crowned Canutus a meer forraigner in opposition to Edmund the lawful Heir to Ethelred Harold and Hardicanute were both elected Kings successively without just title the Lords putting by Edmund and Alfred the rightful Heirs Upon the death of Herold the English Nobility enacted that none of the Danish blood should raign any more over them Edgar Atheling was rejected by the Lords and though he had the best title yet they elected Harold He goes on further in prejudice of the Commons saying that the beginning of the Charter of Henry the first is observable which runs thus Henry by the Grace of God King of England c. Know ye that by the mercy of God and Common Council of the Barons of the Kingdom I am crowned King Mawd the Empress was the right heir but she was put by the Crown by the Prelates and Barons and Steven Earle of Mortmain who had no good title was heav'd up into the Throne by the Bishops and Peers Lewis of France was Crowned King also by the Barons instead of King John and by the same Barons was uncrowned and sent back to France In all these high transactions and changes Mr. Pryn confesseth the Commoners had nothing to do the despotical and ruling power as well as the consultative being in the Council of Prelates and Peers and if Mr. Pryn could have found halfe so much Antiquity for the Knights Citizens and Bourgesses without question we should have heard from him with a witness but while he converseth with Elder times he meets not with so much as the names of Commoners in any record Polyander How then came the Commoners to sway so much
charg'd the Clerk of the Parliament that this Protestation should be entred upon record in the Parliament roll This the King made known to them by the Lord Say and his Secretary who told them that Our Lord the King neither of due nor custom ought to grant any Lords to enter into communication with them of matters tâ—uching the Parliament but by his special grace at this time he granted their request in this parâ—icular And the said Steward and Secretary brought the King word back from the Commons That they knew well they could not have any such Lords to commune with them of any businesse of Parliament without special grace and command from the King himself Polyander But it is not the priviledge of Parliament to examine misdemeanours of Juridical Courts and Officers of State according to Lex Repetundarum Philanglus This cannot be called properly a priviledge for there is not the meanest subject but hath liberty on just cause to question any Court or Officer if he suffer by them yet it hath been esteemed a great favour from the Prince to permit such examinations for we read that when the Lords were displeased with the greatnesse of Piers Gaveston 't is said that in the next Parliament The whole Assembly obtained leave of the King to draw Articles of their grievances which they did two whereof were That all strangers should be banish'd the Kingdom whereof Gaveston was one The second was that businesses of State should be treated by the Clergy and Nobles Polyander Though the cognizance and debatings of great affairs of State belong to the high Court of Parliament yet I have read that oftentimes the Lords have transmitted such businesses to the Kings Privy Council Philanglus 'T is a great truth and many instances might be produced for proof thereof among others when one Mortimer who stiled himself Captain Mendall otherwise called Jack Cade came with the rabble of the vulgar with a Petition to the lower House the Commons sent it up to the Lords and the Lords transmitted it to the Kings Privy Council to consider of Polyander But the granting of Subsidies is a peculiar priviledge of the House of Commons Philanglus I think not for it is an unquestionable truth that Subsidies were raised and paid before ever the Commons were called to sit in Parliament The great and long Subsidie of Dane-ghelt was without any gift of the Commons or of any Parliament at all as can be proved Henry the third imposed a Subsidie of two Marks in Silver upon every Knight Fee only by the advice of his Councel The words of the King when hee passeth the Bill of Subsidie are observable which are these Le roy remercie ses loyaux Subjects accept lour benevolence aussy ainuâ— le veâ—lt The King thanks his loyal Subjects accepts of their good will and also will have it which last words make the Act of Subsidy a Law to bind every man to the payment of it In so much that the Parliament cannot impose a peny upon the Subject without the King nor can the Free-holders whom they serve invest any such power in them Polyander I finde by the substance of your discourse that not onely all power and grace but all Parliamentary priviledges flow from the concession of the Soveraign Prince and chief Magistrate Philanglus Yes without controversie you know as a Gentleman wittily observes t is an axiom in Philosophy quod dat formami That which gives the form gives the consequence of the form The King by his Writ gives the very essence and form to the Parliament being the production of his breath therefore priviledges which are but consequences of the form must necessarily proceed from him In the 21. of King James a Declaration was sent from New-Market to the Parliament wherein he asserts That most priviledges of Parliament grew from precedents which she wrather a Toleration that an Inheritance thereâ—ore he could not allow of the stile they usâ—d to him câ—lling it their ancient and undoubted Rights and Inheritance but could rather have wished they had said their priviledges were derived from the â—race and Permission of his Ancâ—stors and Himself Thereupon he concludes that He cannot with patience endure his Subjects to use such Antimonarchical words concerning their Libertie except they had subjoyned they were granâ—ed unto them by the grace and favour of his Progenitors yes he promiseth to be careful of whatsoever priviledges they enjoy by long custome and incontrolled lawful precedents At the presentment of the Speaker of the House of Commons to the King upon the first day of Parliament the Speaker in the name and behoof of the Commons humbly craves that his Majesty would be pleased graciously to grant them their accustomed liberties and priviledges which petition of theirs is a fair recognition of the primitive grace and favour of the Soveraign Prince in bestowing of Privilâ—dge and is a shrewd argument against any other title For our Antecessors would not have been so ceremonious nor so full oâ— complement as to beg that of grace which they might have claimed de jure by right Aâ—d the renewing of this Petition at the beginning of every Parliament argues the grant to be but temporary Polyander This was not the doctrine it seems of the late long Parliament whose priviledges flew so high that they â—retopped the â—rerogative for they drew the reins of all rule and reason into their hands and left the Governour in chiefe neither of them And if he chanced to send them any advice or admonition 't was presently cryed up to be breach of pâ—iviledâ—e breach of priviledge But Sir by the sequeâ— of our former discourse I find that the High Coâ—rt or Common Council of this Kingdom was composed at first of Prelates and Peers that Parl. is but a modern word and came in after the Norman Conquest I find also that the Commons came to be made â— House and that Magna Charta and Charta de foresta were not free Spontaneouâ— grants but that they were in a manner extorted from Kings in times of necessity and confusion I find also that the Primitive and ordinary way of Government was the one supream Magistrate alone and his Council of State and when he pleased by the Common Council But now Sir I pray be pleased to acquit your selfe of the promise you did me the favour to make of acquainting me with the proceedings of the late long Parliament Philanglus To do that I will deduce matters from the beginning and to finde them our must look North ward for there the cloud of all our ensuing confusions began to condense first You know Sir the Scots Nation were ever used to have their King personally resident among them and though King James by reason of his Age Bounty and long breeding there with other advantages drew such extraordinary respects from them that they continued in a good conformity all his reign yet after his death they were often