the Bishops and inferiour Clergy Civitates universitates the Cities and Towns Corporate for so I think he means by vniversitates as Thuanus b Id. lib. 131. mustereth them And in this Realm the Bishops and Clergy enjoy the place and priviledges of the third Estate notwithstanding the alteration of Religion to this very day the Bishops in their own persons and a certain number of the Clergy out of every Sochen a division like our Rurall Deanries in the name of the rest having a necessary Vote in all their Parliaments And as for Scotland their Parliament consisted anciently of three Estates as learned Camden doth informe us that is to say the Lords spirituall as Bishops Abbots Priors the Temporall Lords as Dukes Marquesses Earles Vicounts Barons and the Commissioners of the Cities and Burroughs c Camden in descript Scotiae To which were added by King James two Delegates or Commissioners out of every County to make it more conforme to the English Parliaments And in some Acts the Prelates are by name declared to be the third Estate as in the Parliament Anno 1597. Anno 1606 c. for which I do referre you to the Book at large 6 And now at last we are come to England where we shall find that from the first reception of the Christian Faith amongst the Saxons the Ecclesiasticks have been called to all Publick Councels and their advice required in the weightiest matters touching the safety of the Kingdome No sooner had King Ethelbert received the Gospell but presently we read that as well the Clergy as the Laity were called unto the Common Councell which the Saxons sometimes called Mycell Synoth the Great Assembly and sometimes Wittenagemots d Coke on Liâ—l 2. sect the Councell or Assembly of the Wise men of the Realm Anno 605. Ethelbertus Rex in fide roboratus Catholica c. Cantuariae convocavit commune concilium â—am Cleri quam populi c. e H. Spelman in Concil p. 126. King Ethelbert as my Author hath it being confirmed in the Faith in the year 605. which was but nine years after his conversion together with Bertha his Queen their Son Eadbald the most Reverend Archbishop Augustine and all the rest of the Nobility did solemnize the Feast of Christs Nativity in the City of Canterbury and did there cause to be assembled on the ninth of January the Common-Councell of his Kingdome aswell the Clergy as the Lay Subject by whose consent and approbation he caused the Monastery by him built to be dedicated to the honour of Almighty God by the hand of Augustine And though no question other examples of this kinde may be found amongst the Saxon Heptarchs yet being the West Saxon Kingdome did in fine prevail and united all the rest into one Monarchy we shall apply our selves unto that more punctually Where we shall finde besides two Charters issued out by Athelstan Consilio Wlfelmi Archiepiscopi mei aliorum Episcoporum meorum f Ap. eund p. 402 403. by the advice of Wlfelm his Archbishop and his other Bishops that Ina in the year 702. caused the great Councell of his Realm to be assembled consisting ex Episcopis Principibus proceribus c. of Bishops Princes Nobles Earls and of all the Wise men Elders and People of the whole Kingdome and there enacted divers lawes for the Weal of his Realm g Apud eund p. 219. Thus do we read that Egbert who first united the seven Kingdomes of the Saxons under the name of England did cause to be conveened at London his Bishops and the Peers of the highest rank pro consilio capiendo adversus Danicos Piratas h Charta Whitlafii Merciorum Regis ap Ingulf to advise upon some course against the Danish Pirates who infested the sea coasts of England Another Parliament or Councell call it which you will called at Kingsbury Anno 855. in the time of Ethelwolph the Son of Egbert pro negotiis regni i Chart. Bertulfi Merc. Regis ap Ingulf to treat of the affaires of the Kingdome the Acts whereof are ratified and subscribed by the Bishops Abbots and other great men of the Realme The same King Ethelwolph in a Parliament or Assembly of his States at Winchester Anno 855. Cum consilio Episcoporum principum k Ingulfi Croyland hist by the advice and counsell of the Bishops and Nobility confirmed unto the Clergy the tenth part of all mens goods and ordered that the Tithe so confirmed unto them should be free ab omnibus secularibus servitutibus for all secular services and impositions In the reigne of Edred we finde this Anno 948. In Festo igitur nativitatis B. Mariae cum universi Magnates regni per Regium edictum summoniti tam Archiepiscopi Episcopi ac Abbates quam caeteri totius regni proceres optimates Londoniis convenissent ad tractandum de negotiis publicis totius Regni l Id ibid. p. 497 edit Lond. viz. That in the Feast of the Nativity of the blessed Virgin the great men of the Realm that is to say Archbishops Bishops Abbots Nobles Peeres were summoned by the Kings Writ to appear at London to handle and conclude about the publick affaires of the Kingdome Mention of this Assembly is made againe at the foundation and endowment of the Abbie of Crowland m Id. p. 500. and afterwards a confirmation of the same by Edgar Anno 966. praesentibus Archiepiscopis Episcopis Abbatibus Optimatibus Regni n Id pag. 501. 502. in the presence of the Archbishops Bâ—shops Abbots and Peers of the Kingdome Like convention of Estates we finde to have been called by Canutus after the death of Edmund Ironside for the setling of the Crown on his own head of which thus the Author o Rog. Hoveden Annal pars prior p. 250. Cujus post mortem Rex Canutus omnes Episcopos Duces nec non principes cunctosque optimates gentis Angliae Londoniae congregari jussit Where still we finde the Bishops to be called to Parliament as well as the Dukes Princes and the rest of the Nobility and to be ranked and marshalled first which clearly shewes that they were alwaies reckoned for the first Estate before the greatest and most eminent of the secular Peers And so we finde it also in a Charter of King Edward the Confessor the last King of the Saxon race by which he granted certain Lands and priviledges to the Church of Westminster Anno 1066. Cum consilio decreto Archiepiscoporum Episcoporum Comitum aliorumque Optimatum p Ap. H. Spelman in Concil p. 630. with the counsell and decree of the Archbishops Bishops Earls and others of his Nobles And all this while the Bishops and other Prelates of the Church did hold their Lands by no other tenure then in pura perpetua eleemosyna q Camden in Brit. or Frank almoigne as our Lawyers call
of the people that all are equally invested with that sacred Majesty wherewith he hath apparelled the most lawful powers I shall proceed no further in this present business till I have made some proof of that which is said before Not that I mean to spend my time in the proof of this that a wicked King is one of Gods curses on the earth for besides that there is none who gainsay the same we should say no more in this of Kings then of the Theef that steals thy goods or the Adulterer that defiles thy marriage bed or the Murderer that seeks thy life all which are reckoned for Gods curses in the holy Scripture The point we purpose to make proof of goeth not down so easily that is to say That in the vilest men and most unworthy of all honour if they be once advanced to the publick government there doth reside that excellent and divine authoritie which God hath given in holy Scripture to those who are the Ministers of his heavenly justice who therefore are to be reverenced by the subject for as much as doth concern them in the way of their publick duties with as much honour and obedience as they would reverence the best King were he given unto them And first the reader must take notice of the especial Act and Providence of Almighty God SECT 26. not without cause so oft remembred in the Scriptures in disposing Kingdoms and setting up such Kings as to him seems best Dan. 2. 21 37. The Lord saith Daniel changeth the times and the seasons he removeth Kings and setteth up Kings And in another place That the living may know that the most High ruleth in the Kingdoms of men and giveth them to whomsoever he will Which kinde of sentences as they are very frequent in the Scriptures so is that prophesie most plentiful and abundant in them No man is ignorant that Nebuchadnezzar who destroyed Hierusalem was a great spoiler and oppressor yet the Lord tells us by Ezechiel that he had given unto him the land of Egypt for the good service he had done in laying it wast on his commandement And Daniel said unto him thus Dan. 2. 37. Thou O King art a King of Kings for the God of Heaven hath given thee a Kingdom power and strength and glory And wheresoever the children of men dwell the beasts of the field and the fowls of heaven hath he given into thy hand and hath made thee Ruler over them all Again to Belshazzer his son Dan 5. 18. The most high God gave unto Nebuchadnezzar thy father a Kingdom and majesty and glory and honour and for the majesty that he gave him all people nations and languages trembled and feared before him Now when we hear that Kings are placed over us by God let us be pleased to call to minde those several precepts to fear and honour them which God hath given us in his Book holding the vilest Tyrant in as high account as God hath graciously vouchsafed to estate him in When Samuel told the people of the house of Israel what they should suffer from their King he expressed it thus 1 Sam. 8. 11. This will be the manner of the King which shall reign over you he will take your sons and appoint them for himself for his Chariots and to be his Horsemen and some shall râ—n before his Chariots And he will appoint him Captains over thousands and Captains over fifties and will set them to ear his ground and to reap his harvest and to make his instruments of war and instruments of his Chariots And he will take your daughters to be his Confectionaries and to be Coâ—ks and to be Bakers And he will take your fields and your Vineyards and your Olive-yards even the best of them and give them to his servants And he will take the tenth of your seed and of your Vineyards and give to his Officers and to his Servants And he will take your menâ—servants and your maid-servants and your goodliest young men and your Asses and put them to his work He will take the tenth of your sheep and ye shall be his Servants Assuredly their Kings could not do this lawfully whom God had otherwise instructed in the Book of the Law but it is therefore called Jus Regis the right of Kings upon the subject which of necessitie the Subjects were to submit unto and not to make the least resistance As if the Prophet had thus said So far shall the licentiousness of your Kings extend it self which you shall have no power to restrain or remedie to whom there shall be nothing left but to receive the intimation of their pleasures and fulfil the same But most remarkable is that place in the Prophet Jeremie SECT 27. which though it be somewhat of the longest I wil here put down because it doth so plainly state the present question Jer. 27. 6. I have made the earth saith the Lord the man and the beast that are upon the ground by my great power and by my out-stretched Arm and have given it unto whom it seemed meet unto me And now have I given all these lands into the hand of Nebuchadnezzar King of Babylon my servant and the beasts of the field have I given him also to serve him And all Nations shall serve him and his son and his sons son until the very time of his land come And it shall come to pass that the Nation and Kingdom which will not serve the same Nebuchadnezzar King of Babylon and that will not put their neck under the yâ—ke of the King of Babylon that Nation will I punish saith the Lord with the sword and with the famine and with the pestilence Wherefore serve the King of Babylon and live We see by this how great a measure of obedience was required by God towards that fierce and cruel Tyrant only because he was advanced to the Kingly throne and did by consequence participate of that Regal majesty which is not to be violated without grievous sin Let us therefore have this always in our minde and before our eyes that by the same decree of God on which the power of Kings is constituted the very wickedest Princes are established and let not such seditious thoughts be admitted by us that is to say that we must deal with Kings no otherwise then they do deserve and that it is no right nor reason that we should shew our selves obedient subjects unto him who doth not mutually perform the duty of a King to us 4. It is a poor objection which some men have made SECT 28. viz. that that command was only proper to the Israelites for mark upon what grounds the command was given I have given saith he the Kingdom unto Nebuchadnezzar wherefore serve him and ye shall live and thereupon it needs must follow that upon whomsoever God bestows a Kingdom to whom we must address our servrce and that assoon as God hath raised any
to the Regal Throne he doth sufficiently declare his will to be that he would have that man to reign over us Some general testimonies of this truth are in holy Scripture Prov. 24. 2 For thus saith SOLOMON For the transgression of a land many are the Princes thereof Job 12. 18. and JOB He looseth the band of Kings and girdeth their loins with a Girdle Which if confessed there is no remedy at all but we must serve those Kings if we mean to live There is another text in the Prophet Ieremie by which the people are commanded Jer. 29. 7. to seek the peace of Babylon whither God had caused them to be carried away captive and to pray unto the Lord for it for in the peace thereof was their peace to be Behold the Israelites being dispoiled of their estates driven from their houses carried into exile and plunged in a most miserable thraldom are yet required to pray for the prosperitie of the Conquerour not only as we are commanded in another place to pray for them that persecute us but that his Empire might continue in peace and safetie that they themselves might quietly enjoy the protection of it Thus David being appointed King by the Lords own Ordinance and anointed with his holy Oyl when undeservedâ—y he was persecuted and pursued by Saul would not give way that any corporal hurt should be done to that sacred person whom God had raised unto the Kingdom 1 Sam. 24. 6. The Lord forbid saith he that I should do this thing unto my Master the Lords anointed to stretch forth my hand against him seeing he is the Anointed of the Lord. Again But mine eye spared thee aâ—d I said I will not put forth my hand against my Lord for he is the Lords Anointed And again who can stretch forth his hand against the Lords Anointed and be guiltless As the Lord liveth the Lord shall smite him or his day shall come to die or he shall descend into battel and perish The Lord forbid that I should stretch my hand against the Lords Anointed This reverence and dutiful regard we ought to carrie towards our Governours SECT 29. to the very end however they may chance to prove Which therefore I repeat the oftner that we may learn not to enquire too narrowly into the men but to rest our selves content with this that they sustain that place or person by the Lords appointment in which he hath imprinted and ingraved a most inviolable character of sacred Majestie But some will say that Rulers owe a mutual dutie to their Subjects That hath been formerly confessed from which if any should infer that no obedience must be yeelded but to their just and legal power he were a very sorry disputant Husbands are bound in mutual bonds unto their Wives and so are Parents to their Children Suppose that both neglect their duties that Parents who are prohibited by God to provoke their Children unto wrath be so untractable and harsh to them that they do grieve them above measure with continual sowreness and that husbands who are commanded to love their wives and to give honour to them as the weaker vessel should use them with contempt and scorn should therefore children be the less obedient to their Parents or wives less dutiful to their husbands We see the contrary that they are subject to them though both lewd and froward Since thereâ—ore nothing doth concern us more then that we trouble not our selves with looking into the defects of other men but carefully endevour to perform those duties which do belong unto our selves more specially ought they to observe this rule who live under the authority and power of others Wherefore if we are inhumanely handled by a cruel Prince or by a covetous and luxurious Prince dispoiled and rifled if by a slothful one neglected or vexed for our Religion by a lewd and wicked let us look back upon our sins which God most commonly correcteth with this kinde of scourges the thought whereof will humble us and keep down the impatience of our angry spirits Let us consider with our selves that it appertains not unto us to redress these mischiefs that all which doth belong to us is to crie to God in whose hands are the hearts of Kings Prov. 21. 1. and he turneth them whither soever he will He is that God which standeth in the Congregation of the mighty and judgeth amongst the Gods before whose face all Kings shall fall and be confounded and all the Judges â—f the earth who do not reverence his CHRIST but make unjust laws to oppress the poor and offer violence to the man of low condion and make a spoil of Widows and a prey of Orphans And here we may aswell behold his goodness SECT 30. as his power and providence For sometimes he doth raise Avengers from amongst his servants and furnisheth them with power sufficient aswell to execute vengeance on such wicked Rulers as to redeem his people so unjustly vext from the house of bondage and sometimes useth to that end the fierce wrath of others who think of nothing less then to serve his turn Thus he redeemed his people Israel from the tyrannie of Pharaoh by the hand of Moses from Cushan Kâ—ng of Syria by Othoniel from other thraldoms by some other of their Kings and Judges Thus did he â—ame the pride of Tyre by the arms of Egypt the insolence of Egypt by the Assyrians the fierceness of Assyria by the Chaldeans the confidence of Babylon by the Medes and Persians after that Cyrus had before subdued the Medes Thus did he sometimes punish the ingratitude of the Kings of Judah and Israel and that ungodly contumacie which they carried towards him notwithstanding all his benefits conferred upon them by the Assyrians first the Baâ—ylonians after But we must know that though these several instruments did the self same work yet they proceeded not in the self same motives For the first sort being thereto lawfully authorized and called by Almighty God by taking up Arms against their Kings did nothing less tâ—â—n violate that sacred Majestie which is inherent in a King by Gods holy Ordinance but being armed from heaven did only regulate and chastise the lesser power by the help of the greater as Princes use sometimes to correct their Nobles The later sort though guided by the hand of God as to him seemed best so that they did unknowingly effect what he had to do intended only the pursuit of their own designs 5. But whatsoever their designes and intentions were SECT 31. the Lord did justly use them to effect his business when by their means he broke the bloudie Scepters of those insolent Kings and overthrew their wicked and tyrannical Empires Hear this ye Princes and be terrified at the hearing of it But let not this afford the least incouragement unto the subject to violate or despise the authoritie of the Magistrate which God hath filled so full of
the people from their insolency and disobedience towards them k Id. ibid. But herein they were both deceived For Lycurgus seeing how things stood resolved to apply himself to neither party but presently began to project and cast how he might change and alter the whole frame of Government which to effect he armed himself and his Associates and possessed the market-place and so proceeded to the alteration which he meant to make l Id. ibid. et in Agis Cleomen Charilaus who was then King being forced to fly for sanctuary to the Temple of Juno But Plato saith there was another motive which induced him to attempt this change which was the ill success the other Kings his kindred of the house of Hercules had found at Argos and Messene where by degrees degenerating from a Monarchy unto a Tyranny they were in a fair way 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to overthrow themselves their subjects and their whole estates To prevent this at Sparta which he dearly loved and to preserve his Family and the State together 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 m Pâ—at Epist 8. he set up the authority of the Senate as the only medicine to cure the miserable distemper which the State was in So far and somewhat further Plato of which more anon 3. What the authority and power of this Senate was we see best from Plutarch n In Lycurgo 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. In this change of State saith he which Lycurgus made his chiefest alteration was in the constitution of a Senate which he made to have a Regal power and equal authority with the Kings in matters of the greatest weight and importance and was to be the healthful counterpoise of the whole body of the Common-wealth The other State before was ever wavering sometimes inclining to tyrannie when the Kings were too mighty and sometimes to confusion when the people did usurp authority between which two the Senate was ordained as the fittest medium to keep even the scale and fortifie the State of the Common-wealth For taking sometimes the Kings part when it was needfull to pull down the fury of the people and sometimes holding with the people against the Kings to bridle their tyrannical Government they were the means that neither of the two did oppress the other This Court or Senate had the supreme direction and command in all things of moment which did concern the Common-wealth both for peace and war and had the highest jurisdiction and dernier resort from which there could be no appeal in which regard Pausasanias cals it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 o Pausanias in Lacon l. 3. the soveraign Court of the Republick It consisted of 28. Senators all chosen out of the Nobility and chief men of the City who together with the two Kings who were allowed their voices in it made up thirty in all and unto these it did belong to call the assemblies of the people to propound that to them which they thought convenient and to dissolve them too when they saw occasion p Plutarch ibid. But for the people so assembled it was not lawful for them to propound any thing to be debated or determined nor to deliver their opinion in the point proposed there being nothing left to them but to testifie their assent to the propositions which either by the Senate or the two Kings had been made unto them So that whatever the Kings lost the people got little by the alteration being left out of all imployment in affairs of State and forced to yeeld obedience unto thirty Masters whereas before they had but two And as for the authority which remained unto the Kings it consisted especially in the conducting of the Armies and the supremacy in matters that concerned Religion for this hath alwaies gone along with the Kingly office 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. q Xenophon de Repub. Lacedamon For it was ordered by Lycurgus that the King should offer sacrifice for the prospetity of the Common-wealth when the necessity of their affairs did require the same as one descended from the gods that they should participate of the thing sacrificed when the gods were served and have a pig of every litter that they might never want a sacrifice if upon any sudden accident the gods were to be advised withall 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. It also appertained to them to command the Armies as oft as they were sent abroad on any military imployment and had a Pavilion allowed them at the publick charge for entertainment of such company as repaired unto them In these two points the honour and authority of the Kings consisted principally which Aristotle also hath observed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 r Aristot Politic l. 3. c. 10. Supremacy in Divine command in Military matters was all in which they differed from the other Senators and this command I mean in military matters was both perpetual and hereditary as the same Author tels us there and in other places s Id. ibid. l. 2 c. 7. l. 3. c. 11. For matters which were meerly honourary they had some prerogatives the Kings being allowed a double Messe in all their Ordinaries the Senators and all the pople arising from their seats to do him reverence when he came amongst them yeelding him more then humane honours when he was deceased as to a Demi-god at least And for their maintenance and support when they were alive there was allotted to them a proportion of the richest lands in many of the Villages and fields adjoyning t Xerophon in Repub. Lacedaem enough to keep them out of want though not sufficient to make them either rich or powerful 4. The royalty and power of the Kings being thus impaired the people absolutely discharged from having any hand at all in the publick Government and the authority of the Senate growing every day more insolent and predominant then at first it was by reason that they held their place for term of life as we finde in u Plutarch in Agesilao Plutarch the Kings resolved upon a course of putting the people into such condition as might inable them to curb and control the Senators To this end Theopompus the ninth King of the second house with the consent of Polydorus his Associate ordained certain Officers being five in number x Aristot Pol. l. 2. 8. and chosen out of the body of the common people y Id. Polit. l. 2. c. 7. and annually renewed or changed as occasion was z Plutarch in Agesilao to whom authority was give 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 even in the highest points and of most importance as we are told by Aristotle a Aristot Politic l. 2. c. 7. and shall see anon These Offices he caused to be called by the name of Ephori that is to say the Overseers and Superintendents of the State 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 b Snidas because they had the charge and oversight of the
it and therefore sate in Parliament in no other capacity then as spirituall persons meerly who by their extraordinary knowledge in the word of God and in such other parts of learning as the world then knew were thought best able to direct and advise their Princes in points of judgement In which capacity and no other the Priors of the Cathedrall Churches of Canterbury Ely Winchester Coventry Bath Worcester Norwich and Durham the Deans of Exceter York Wells Salisbury and Lincoln the Officiall of the Archbishop of Canterbury and the Dean of the Arches the Guardian of the Spiritualties of any Bishoprick when the See was vacant and the Vicars generall of such Bishops as were absent beyond the Seas r Selden Titles of hon part 2. c. 5. had sometimes place and suffrage in the house of Lords in the Ages following 7. But when the Norman Conqueror had possest the State then the case was altered The Prelates of the Church were no longer suffered to hold their Lands in Frankalmoigne as before they did or to be free from secular services and commands as before they were Although they kept their lands yet they changed their tenure and by the Conqueror were ordained to hold their Lands sub militari servitute Å¿ Maâ— Paris in Will 1. An. 1070. either in â—apite or by Baronage or some such military hold and thereby were compellable to aid the Kings in all times of war with Men Arms and Horses as the Lay-subjects of the same tenures were required to do Which though it were conceived to be a great disfranchisement at the first and an heavy burden to the Prelacy yet it conduced at last to their greater honor in giving them a further Title to their place in Parliament than that which formerly they could pretend to Before they claimed a place therein ratione Officii only by reason of their Offices or spiritual Dignities but after this by reason also of those antient Baronies which were annexed unto their Dignities en respect de lour possessions L'antient Baronies annexes a lour dignities t Stamfords Plâ—es l. 3 c. 1. as our Lawyers have it From this time forwards we must look upon them in the House of Parliament not as Bishops only but as Peers and Barons of the Realm also and so themselves affirmed to the Temporal Lords in the Parliament holden at Northampton under Henry 2. Non sedimus hic Episcopi sed Barones nos Barones ves Barones Pares hic sumus u Ap Selden titles of hon pâ— 2. c. 5. We fit not here say they as Bishoâ—ps only but as Barons We are Baroâ—s and you are Barons here we sit as Peers Which last is also verified in terminis by the words of a Statute or Act of Parliament wherein the Bishops are acknowledged to be Peers of the Land x Stat. 25 Edw. 3. c. 5. Now that the Bishops are a fundamental and essential part of the Parliament of England I shall endeavour to make good by two manner of proofs wherof the one shall be de jure the other de facto And first we shal begin with the proofs de jure and therin first with that which doth occur in the Laws of King Athelstan amongst the which there is a Chapter it is Cap. 11. entituled De officio Episcopi quid pertinet ad officium ejus and therein it is thus declared Episcopo jure pertinet omnem rectitudinem promovere dei scilicet seculi c. z Spelm. concil p. 402. et convenit ut per consilium testimonium ejus omne legis scitum Burgi mensura omne pondus sit secundum dictionem ejus institutum that is to say it belongeth of right unto the Bishop to promote justice in matters which concern both the Church and State and unto him it appertaineth that by his counsel and award all Laws Weights and Measures be ordained thorowout the Kingdom 2. Next we will have recourse to the old Record entituled Modus tenendi Parliamentum In which it is affirmed ad Parliamentum summoniri venire debere Archiepiscopos Episcopos Abbates Pricres alios majores cleri qui tenent per Comitatum aut Baroniam ratione hujusmodi tenurae * modus tenendi Parliament that all the Arch-bishops Bishops Abbats Priors and other Prelates of the Church who hold their lands either by an Earls fee or a Barons fee were to be summoned and to come to Parliament in regard of their tenure 3. Next look we on the chartularies of King Henry the first recognized in full Parliament at Clarendon under Henry the 2d where they are called avitas consuetudines which declare it thus Archipiscopi Episcopi universae personae qui de Regetenent in Capite habeant possessiones suas de Rege ficut Baroniam c. sicut caeteri Barones debent interesse judiciis Curiae Regis cum Baronibus quousque perveniatur ad diminutionem membrorum vel ad mortem * Matth. Paris in Hen. 2. The meaning is in brief that Arch-bishops Bishops and all other ecclesiastical persons which hold in Capite of the King are to have and hold their lands in Barony and that they ought as Barons to be present in all Judgements with the other Barons in the Court of Parliament untill the very sentence of death or mutilation which was very common in those times was to be pronounced And then they commouly did use to withdraw themselves not out of any incapacity supposed to be in them by the Law of England but out of a restraint imposed upon them by the Canons of the Church of Rome 4. In the great Charter made by King John in the last of his reign we have the form of summoning a Parliament and calling those together who have votes therein thus expressed at large Ad habendum commune consilium Regni de auxilio assidendo c. de scutagiis assidendis faciemus summoneri Archiepiscopos Episcopos Abbaâ—es Comites Majores Barones Regni sigillatim per liâ—eras nostras Et praeterea summoneri faciemus in generali per Vice-Cemites Ballivos nostros omnes alios qui in Capite tenent ad certum diem sc ad terminum 40 dierum ad minus et ad certum locum c. a Id. in Ioh. In which we have not only a most evident proof that the Bishops are of right to be called to Parliament for granting subsidies and Escuage and treating of the great affairs which concern the kingdom but that they are to be summoned by particular Letters as well as the Earls and Barons or either of them A former Copy of which summons issued in the time of the said King John is extant on Record and put in print of late in the b Pt. 2. c. 5. Titles of Honour And we have here I note this only by the way a brief intimation touching the form of summoning the Commons to attend in
quod iidem Decanus Archichidiaconi in propriis personis suis ac dictum Capitulum per unum idemque Clerus per duos Procuratores idoneos plenam sufficientem potestatem ab ipsis Capitulo Clero habentes praedicto die loco personaliter intersint ad consentiendum iis quae tunc ibidem de communi consilio ipsius Regni nostri divina favente clementia contigerit ordinari Which clause being in the Writs of King Edward 1. and for the most part of the reign of his next Successorsâ— till the middle of King Richard the second at which time it began to be fixt and formal hath still continued in those writs without any difference almost between the Syllables to this very day z Id. ibid. Now that this clause was more than Verbal and that the Proctors of the Clergy did attend in Parliament is evident by the Acts and Statutes of King Richard the second the passages whereof I shall cite at large the better to conclude what I have in hand The Duke of Glocester and the Earl of Arundel having got the mastery of the King obtained a Commission directed to themselves and others of their nomination to have the rule of the King and his Realm a Statur 21 R. 2. c. 2. and having their Commission confirmed by Parliament in the 11 year of his reign did execute divers of his Friends and Ministers and seized on their Estates as forfeited But having got the better of his head-strong and rebellious Lords in the one and twentieth of his reign he calls a Parliament in the Acts whereof it is declared That on the Petition of the Commons of the assent of all the Lords Spiritual and Temporal and of the Proctors of the Clergy he repealed the said Statute and Commission b Ibid. c. 2. and with the assent of the said Lords and Commons did ordain and establish that no such Commission nor the like be henceforth purchased pursued or made This done the heirs of such as had been condemned by vertue of the said Commission demanded restitution of their Lands and Honors And thereupon the Lords Spiritual and Temporal and the Procuratours of the Clergy the Commons having prayed to the King before as the Appellants prayed severally examined did assent expresly that the said Parliament and all the Statutes c. should be voyd c. and restitution made as afore is said c Ibid. c. 12. And also the Lords Spiritual and Temporal the Procuratours of the Clergy and the said Commons were severally examined of the Questions proposed at Notingham and of the Answer which the Judges made unto the same which being read aswell before the King and the Lords as before the Commons it was demanded of all the States of the Parliament what they thought of the Answers and they said that they were lawfully duly made c. And then it followeth whereupon the King by the assent of the Lords Spiritual and Temporal and the Procuratours of the Clergy and the said Commons and by the advise of the Justices and Sergeants aforesaid who had been asked their opinion in point of Law ordained and established that the said Parliament should be annulled and held for none Adde unto this that passage in the 9 of Edward 2. where it is said that many Articles containing divers grievances committed against the Church of England the Prelates Clergy were propounded by the Prelates and Clerks of our Realm in Parliament and great instance made that convenient remedy might be appointed therein d Proem ad articulos Clâ—ri that of the complaints made to the King in Parliament by the Prelates and Clergy of this Realm 50 Ed. 3. 5. 8 Rich. 2. c. 13. and that of the Petition delivered to the King in Parliament by the Clergy of England 4 Hen. 4. c. 2. Selden hist of Tithes c. 8. 33. And finally that memorable passage in the Parliment 51 Edw. 3. which in brief was this The Commons finding themselves agrieved aswell with certain Constitutions made by the Clergy in their Synods as with some laws or Ordinances which were lately passed more to the advantage of the Clergy than the Common people put in a Bill to this effect viz. That no Act nor Ordinance should from thenceforth be made or granted on the Petition of the said Clergy without the consent of Commons and that the said Commons should not be bound in times to come by any constitutions made by the Clergy of this Realm for their own advantage to which the Commons of this Realm had not given consent The reason of the which is this and 't is worth the marking car eux ne veullent estre obligez a nul de vos estatuz ne Ordinances faitz sanz leur assent because the said Clergy did not think themselves bound as indeed they were not in those times by any Statute Act or Ordinance made without their Assent in the Court of Parliament Which clearly shews that in those times the Clergy had their place in Parliament as the Commons had Put all which hath been sayd together and tell me if it be not cleer and evident that the inferiour Clergie had their place in Parliament whether the Clause touching the calling of them thither were not more than verbal in the Bishops writs and is true that in the writ of summons directed to their several and respective Bishops they were called only ad consentiendum to manifest their consent to those Acts and ordinances which by the Common counsell of the Realm were to be ordained But then it is as tru withall that sometimes their advice was asked in the weighty matters as in the 21 of K. Richard the 2. and sometimes they petitioned and remonstrated for redress of grievances as in the instances and cases which were last produced And 't is as true that if they had been present only ad consentiendum to testifie their assent to those Acts which by the common Counsell of the Realm were proposed unto them their presence was as necessary and their voice as requisite to all intents and purposes for ought I can see as the voice and presence of the Commons in the times we speak of For in the writs of summons issued to the several Sheriffs for the electing of Knights Citizens and Burgesses to attend the Parliament it is said expressely first that the King resolveth upon weighty motives touching the weal and safety both of Church and State to hold his Parliament e Foâ—ma Brevis pro fammonit Parliamenti et ibidem cum Praelatis Magnatibus et Proceribus dicti regni nostri colloquium habere et tractare then and there to advise and treat with the Prelates Peers and Nobles of this Realm Which words are also expressely used in the writs of summons directed to the Bishops and to every of them who also are required in a further clause consilium suum impendere f
that this is only yielded unto such of the Clergy as are possessed os Lands and Houses in those several places where such elections are to be made and not then neither in most places except it be to make a party for particular ends especially where some good man or the main cause it self is concerned therein which as it totally excludeth the greatest part of the Clergy from having any voyce at all in these Elections the greatest part of the Clegy the more the pity having neither Lands nor Houses to such a value in fee simple so it gives no more power unto those that have than what of necessity must serve I am sure occasionally it may to their own undoing For to say truth those that give out that the Clergy may give voice at such elections use it but as a shift for the present turn intending nothing less indeed as hath oft been seen than that the Clergy should be capable of so great a trust The reason is because there is not any Free-man of a City or a Corporate town who hath a voice in the election of a Citizen to serve in Parliament nor almost any Cottager or Free-holder who hath a voice in the election either of a Knight or Burgesse but is directly eligible to the place himself Of Citizens Burgesses â—lected from the very meanest of the people we have many instances and shall have more according as they find their strength and have received a taste of the sweets of Goverment And for the choosing of the Knights of the seveveral Shires it is determined by the Statutes that as 40 s. land of free-hold per Annum q 8 Hen. 6. c. 7. is enough to qualifie a Clown for giving a voice at the election so the same Clown if he have 20l. land per Annum is capable of being chosen for a Knight of the Shire as appears plainly and expresly by the Statute law For though the writ directed to the severall and respective Sheriffs prescribe a choice of duos milites gladio cinctos yet we know well that by the Statute of King Henry 6. which is explanatory in this case of the Common law such notable Esquires or Gentlemen born of the same Counties as shall be able to be Knights r 23 Hen. 6. 15. are made as capable as a dubbed Knight to attend that service and he that hath no more than 20 l. per Annum either in Capite or Socage is not only able by the law to be made a Knight s 1 Ed. 2. c. 1. but was compellable thereunto even by the Statute-Law it self untill the Law was lately altered in that point t 17 Carâ—l c. 1. And on the other side it is clear enough for there have been of late some experiments of it that though a Clergy-man be born an Esquire or Gentleman for they are not all born ex fece Plebis as the late Lord Brook u L. Brook against Episcopacy forgetting his own poor extraction hath been pleased to say and though he be possessed of a fair Estate descended to him from his Ancestors or otherwise possessed of some Lands or Houses in Town Burrough or City whereby he stands as eligible in the eye of the Law as any Lay-Gentleman of them all yet either he is held uncapable and so pretermitted or if returned rejected at the House it self to his fowl reproach It is a Fundamental constitution of the Realm of England that every Free-man hath a voice in the Legislative power of Parliament it is an old rule in Politicâ—s â—uod omnes tangit ab omnibus tractari debet x And so acknowleged in a writ of Summons of K. Edw. 1. Which being now denyed to the English Clergy reduceth to them to that condition which St. Paul complains of and make them no otherwise accounted of by the Common people than as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the filth and off-scowring of the world to this very day 12. This tempts me to a brief discussion of a question exceeding weighty in it self but not so much as thought of in this great disfranchisement the slavery obtruded lately on the English Clergy that is to say whether that any two of the three Estates conspiring or agreeiug together can conclude on any thing unto the prejudice of the third Bodinus that renowned States-man doth resolve it negatively and states it thus nihil a duobus ordinibus discerni posse quo uni ex tribus incommodum inferatur si res ad singulos ordines seorsum pertinet z Bodin de Rep. l. 3. c. 7. that nothing can be done by two of the Estates to the disprofit of the third in case the point proposed be such as concerns them severally The point was brought into debate upon this occasion Henry the 3d. of France had summoned an Assembly of the three Estates or Conventus Ordinum to be held at Bloys Anno 1577. The form and order of the which we have at large described by Thuanus Lib. 63. But finding that he could not bring his ends about so easily with that numerous body as if they were contracted to a narrower compass he caused it to be mov'd unto them that they should make choice of 36 twelve of each Estate quosâ— Rex cum de postulatis decerneret in consilium adhibere dignaretur a Thuanus in hist temp l. 63. whom the King would deign call to counsail for the dispatch of such affairs and motions as had been either moved or proposed unto him Which being very readily assented to by the Clergy and Nobility who hoped thereby to find some favour in the Court and by degrees to be admitted to the Privy Counsel was very earnestly opposed by Bodinus being then Delegate or Commissioner for the Province of Veromandois who saw full well that if businesses were so carried the Commons which made the third Estate would find but little hopes to have their grievances redressed their petitions answered b Bodin de Rep. l. 1. c. 7 And therefore laboured the rest of the Commissioners not to yield unto it as being utterly destructive of the Rights and Liberties of the Common people which having done he was by them intrusted to debate the business before the other two Estates and did it to so good effect that at the last he took them off from their resolution and obtained the cause What Arguments he used in particular neither himself nor Thuanus telleth us But sure I am that he insisted both on the antient customes of the Realm of France as also of the Realms of Spain and England and the Roman Empire in each of which it was received for a ruled case nihil a duobus ordinibus statui posse quo uni ex tribus prejudicium crearetur that nothing could be done by any of the two Estates unto the prejudice of the third And if it were a ruled case then in the Parliament of England there is no reason why
trusted or at least supposed to be intrusted with sufficient power as well to regulate his authority as to controll his actions If Calvin be allowed to have common sense and to have wit and words enough to expresse his meaning as even his greatest Adversaries do confesse he had it must be granted that he did not take the King of what Realm soever to be any of the three Estates or if he did he would have thought of other means to restrain his insolencies than by leaving him in his own hands to his own correction Either then Calvin is mistaken in the three Estates if he be mistaken in designing the men he aims at may he not be mistaken in the power he gives them or else the King is noâ—e indeed can be none of the three Estates qui primarios conventus peragunt who usually convene in Parliament for those ends and purposes before remembred But not to trust to him alone though questionlesse he be ideoneus testis in the present case Let us behold the Assembly of the three Estates or Conventus Ordinum in France from whence it is conceived that all Assemblies of this kind had their first Original and we shall find a very full description of them in the Assemblie des Estats at Bloys under Henry 3. Anno 1577. of which thus Thuanus f Thuanus in histor sui temp l. 63. Rex insublimi loco sub uranisco sedebat c. The King saith he sate on an high erected Throne under the Canopy of State the Queen-mother and the Queen his wife and all the Cardinals Princes Peers upon either hand And then it followeth Transtris infra dispositis ad dextram suam sacri Ordinis Delegati ad laevam Nobilitas infra plebetus ordo sedebat that on some lower forms there sate the Delegates of the Clergy towards the right hand of the King the Nobility towards the left and the Commissioners for the Commons in the space below We may conjecture at the rest by the view of this Of those in Spain by those Conventions of the States which before we spoke of at Burgos Monson Toledo and in other places in which the King is alwaies mentioned as a different person who called them and dissolved them as he saw occasion For Scotland it is ordinary in the stile of Parliaments to say the King and the Estates do ordain and constitute g Statutes of Scotland for which I do refer you to the Book of Statutes which clearly makes the K. to be a different person from the Estates of that Kingdome And as for England besides what may be gathered from the former Chapter we read in the History of Titus Livius touching the Reign and Acts of K. Henry the 5th that when his Funerals were ended the three Estates of the Realm of England did assemble together and declared his Son K. Henry the 6. being an Infant of 8 months old to be their Soveraign Lord h Tit. Liv. M. S. in Bibl. Bodl. as his Heir and Successor And in the Parliament Rolls of K. Richard the 3d. there is mention of a Bill or Parchment presented to that Prince being then Duke of Glocester on the behalf and in the name of the three Estates of this Realm of England that is to wit of the Lords Spiritual and Temporal and of the Commons by name which forasmuch as neither the said three Estates nor the persons which delivered it on their behalf were then assembled in form of Parliament was afterwards in the first Parliament of that King by the same three Estates assembled in this present Parliament I speak the very words of the Act it self and by authority of the same enrolled recorded and approved i Ap Speed in K. Rich. 3â— And at the request and by the assent of the three Estates of this Realm that is to say the Lords Spiritual and Temporal and Commons of this Land assembled in this present Parliament and by authority of the same it be pronounced decreed and declared that our said Soveraign Lord the King was and is the very and undoubted heir of this Realm of England c. And so it is acknowledged in a k 1 Eliz. cap. 3. Statute of 1 Eliz. ca. 3. where the Lords Spiritual and Temporal and the Commons in that Parliament assembled being said expresly and in terminis to represent the three Estates of the Realm of England did recognize the Queens Majesty to be their true lawfull and undoubted Soveraign Liege Lady and Queen This makes it evident that the King was not accounted in the times before for one of the three Estates of Parliament nor can be so accounted in the present times For considering that the Lords and Commons do most confessedly make two of the three Estates and that the Clergy in an other Act of Parliament of the said Queens time are confessed to be one of the greatest States of the Realm l Statut. 8 Eliz. cap. 1. which Statute being still in force doth clearly make the Clergy to be the third either there must be more than three Estates in this Kingdome which is against the Doctrine of the present times or else the King is none of the Estates as indeed he is not which was the matter to be proved But I spend too much time in confuting that which hath so little ground to stand on more than the dangerous consequences which are covered under it For if the King be granted once to be no more than one of the three Estates how can it choose but follow from so sad a Principle that he is of no more power and consideration in the time of Parliament than the House of Peers which sometimes hath consisted of three Lords no more or than the House of Commons only which hath many times consisted of no more than 80 or an hundred Gentlemen but of far lesse consideration to all intents and purposes in the Law whatever than both the Houses joyned together What else can follow hereupon but that the King must be co-ordinate with his two Houses of Parliament and if co-ordinate then to be over-ruled by their Joynt concurrence bound to conform unto their Acts and confirm their Ordinances or upon case of inconformity and non-complyance to see them put in execution against his liking and consents to his foul reproach And what at last will be the issue of this dangerous consequence but that the Lords content themselves to come down to the Commons and the King be no otherwise esteemed of than the chief of the Lords the Princeps Senatus if you will or the Duke of Venice at the best no more which if Sir Edward Dering may be credited as I think he may in this particular seems to have been the main design of some of the most popular and powerfull Members then sitting with him for which I do refer the Reader to his book of Speeches Which dangerous consequents whether they were observed at
first by these who first ventured on the expression or were improvidently looked over I can hardly say Certain I am it gave too manifest an advantage to the Antimonarchical party in this Kingdome and hardned them in their proceeding against their King whom they were taught to look on and esteem no otherwise than as a Joynt-tenant of the Soveraignty with the Lords and Commons And if Kings have partners in the Soveraignty they are then no King such being the nature and law of Monarchy that si divisionem capiat interitum capiat necesse est m Lactant Institut Div. l. 1. c. if it be once divided and the authorities thereof imparted it is soon destroyed Such is the dangerous consequence of this new Expression that it seemeth utterly to deprive the Bishops and in them the Clergy of this Land of all future hopes of being restored again to their place in Parliament For being the Parliament can consist but of three Estates if the King fall so low as to pass for one either the Bishops or the Commons or the Temporal Lords must desert their claim the better to make way for this new pretension and in all probability the Commons being grown so potent and the Nobility so numerous and united in blood and mariages will not quit their interesse and therefore the poor Clergy must be no Estate because lesse able as the world now goeth with them to maintain their title I have often read that Constantine did use to call himself 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 n Euseb de vita Constant the Bishop or Superintendent of his Bishops and I have oft heard our Lawyers say that the King is the general Ordinary of the Kingdome but never heard nor read till within these few yearrs that ever any King did possess himself of the Bishops place or vote in Parliament or sate there as the first of the three Estates as antiently the Bishops did to supply their absence By which device whether the Clergy or the King be the greater losers though it be partly seen already future times will shew 2. This rub removed we next proceed to the examination of that power which by our Author is conferred on the three Estates which we shall find on search and tryal to be very different according to the constitution of the Kingdome in which they are For where the Kings are absolute Monarchs as in England Scotland France and Spain l Bodin de Repub. l. 1. c. the three Estates have properly and legally little more authority than to advise their King as they see occasion to represent unto his view their common grievances and to propose such remedies for redresse therof as to them seem meetest to canvass and review such erroneous judgements as formerly have passed in inferiour Courts and finally to consult about and prepare such laws as are expedient for the publick In other Countries where the Kings are more conditional and hold their Crowns by compact and agreement betweeen them and their Subjects the reputation and authority of the three Estates is more high and eminent as in Polonia Danemark and some others of the Northern Kingdomes where the Estates lay claim to more than a directive power and think it not enough to advise their King unless they may dispose of the Kingdome also or at least make their King no better than a Royal Slave Thus and no otherwise it is with the German Emperors who are obnoxious to the Laws m Thuan. hist sui temp l. 2. and for their Government accomptable to the Estates of the Empire insomuch that if the Princes of the Empire be perswaded in their consciences that he is likely by his mal-administration to destroy the Empire and that he will not hearken to advice and counsel n Anonym Script ap Philip Paraeu in Append. â—d Rom. 13. ab Electorum Collegio Caesaria potestate privari potest he may be deprived by the Electors and a more fit and able man elected to supply the place And to this purpose in a Constitution made by the Emperor Jodocus about the year 1410. there is a clause that if he or any one of his Successors do any thing unto the contrary thereof the Electors and other States of the Empire sine rebellionis vel infidelitatis crimine libertatem habeant o Goldast Constit Imperial Tom. 3. p. 424. should be at liberty without incurring the crimes of Treason or Disloyalty not only to oppose but resist them in it The like to which occurs for the Realm of Hungary wherein K. Andrew gives authority to his Bishops Lords and other Nobles sine nota alicujus infidelitatis p Bonfinius de Edict publ p. 37. that without any imputation of disloyalty they may contradict oppose and resist their Kings if they do any thing in violation of some Laws and sanctions In Poland the King takes a solemn oath at his Coronation to confirm all the Privileges rights and liberties which have been granted to his Subjects of all ranks and orders by any of his Predecessors and then addes this clause quod si Sacramentum meum violavero incolae Regni nullam nobis obedientiam praestare tenebuntur which if he violates his Subjects shall no longer be obliged to yield him obedience q Bodin de Rep. lib. 1. cap. 8. Which oath as Bodine well observeth doth savour rather of the condition of the Prince of the Senate than of the Majesty of a King The like may be affirmed of Frederick the first King of Danemark who being called unto that Crown on the ejection of K. Christian the 2d An. 1523. was so conditioned with by the the Lords of the Kingdome that at his coronation or before he was fain to swear that he would put none of the Nobility to death or banishment but by the judgement of the Senate that the great men should have power of life or death over their Tenants and Vassals and that no Appeal should lye from them to the Kings tribunal nor the King be partaker of the confiscations nec item honores aut imperia privatis daturum c r Id. ibid. nor advance any private person to commands or honors but by authority of his great Counsel Which oath being also taken by Frederick the second made Bodinus say that the Kings of Danemark non tam reipsa quam appellare Reges sunt were only titular Kings but not Kings indeed Which character he also gives of the Kings of Bohemia Å¿ Id. ibid. p. 88. But in an absolute Monarchy the case is otherwise all the prerogatives and rights of Soveraignty being so vested in the Kings person ut nec singulis civibus nec universis fac est c. that it is neither lawful to particular men nor to the whole body of the Subjects generally to call the Prince in question for life fame or fortunes t Id. ibid. p. 210. and amongst these he reckoneth the kingdoms of France
be imputed to the three Estates convened in Parliament or to any power or Act of theirs but only praefervido Scotorum ingenio z Rivet cont tenuit as one pleads it for them unto the natural disposition of that fierce and head-strong people yet easilier made subject unto rule and government The three Estates assembled in the Court of Parliament when in the judgement of our Author they are most fit to undertake the business have for the most part had no hand in those desperate courses 7. And now at last we ate come to England where since we came no sooner we will stay the longer and here we shall behold the King established in an absolute Monarchy from whom the meeting of the three Estates in Parliament detracteth nothing of his power and authority Royal. Bodin as great a Politick as any of his time in the Realm of France hath ranked our Kings amongst the absolute Monarch of these Western parts a Bodin de Rep. l. 1. c. 8. And Camden as renowned an Antiquary as any of the Age he lived in hath told us of the King of England supremam potestatem merum imperium habere b Camden in Britan. descript that he hath supreme power and absolute command in his dominions and that he neither holds his Crown in vassallage nor receiveth his investisture of any other nor acknowledgeth any Superiour but God alone To prove this last he cites these memorable words from Bracton an old English Lawyer omnis quidem sub Rege ipse sub nullo sed tantum sub deo that every man is under the King but the King under none saving only God But Bracton tells us more than this and affirms expresly that the King hath supreme power and jurisdiction over all causes and persons in this his Majesties Realm of England that all jurisdictions are vested in him and are issued from him and that he hath jus gladii or the right of the sword for the better governance of his people This is the substance of his words but the words are these c Bracton de leg Aâ—gl l. 2. c. 24. Sciendum est saith he quod ipse dominus Rex ordinariam habet jurisdictionem dignitatem potestatem super omnes qui in regno suo sunt Habet enim omnia jura in manu sua quae ad coronam laicalem pertinent potestatem materialem gladium qui pertinet ad Regni gubernandum c. He addes yet surther Habet item in potestate sua leges constitutiones d Id. l. 2. c. 16. that the Laws and constitutions of the Realm are in the power of the King by which words whether he meaneth that the Legislative power is in the King and whether the Legislative power be in him and in him alone we shall see anon But sure I am that he ascribes unto the King the power of interpreting the Law in all doubtfull cases in dubiis obscuris domini Regis expectanda interpretatio voluntas which is plain enough For though he speaketh only de chartis Regiis factis Regum of the Kings deeds and charters only as the words seem to import yet considering the times in which he lived being Chief Justice in the time of King Henry the 3d. wherein there was but little written Law more than what was comprehended in the Kings Grants and Charters he may be understood of all Laws whatever And so much is collected out of Bractons words by the L. Chancellor Egerton of whom it may be said without envy that he was as grave and learned a Lawyer as ever sat upon that Bench. Who gathereth out of Bracton that all cases not determined for want of foresight are in the King to whom belongs the right of interpretation not in plain and evident cases but only in new questions and emergent doubts and that the King hath as much right by the constitutions of this Kingdom as the Civil law gave the Roman Emperors where it is said Rex solus judicat de causa a jure non definita e Case of the Post-nati p. 107 108. And though the Kings make not any Laws without the counsel and consent of his Lords and Commons whereof we shall speak more in the following Section yet in such cases where the Laws do provide no remedy and in such matters as concern the politick administration of his Kingdoms he may and doth take order by his Proclamations He also hath authority by his Prerogative Royal to dispense with the rigour of the Laws and sometimes to pass by a Statute with a non obstante as in the Statute 1 Henr. 4. cap. 6. touching the value to be specified of such lands offices or annuities c as by the King are granted in his Letters patents But these will better come within the compasse of those jura Majestatis or rights of Soveraignty which our Lawyers call sacra individua f Camden in Bâ—it sacred by reason they are not to be pryed into with irreverent eyes and individual or inseparable because they cannot be communicated unto any other Of which kind are the levying of Arms g Case of our Assairs p. 3. suppressing of tumults and rebellions providing for the present safety of his Kingdom against sudden dangers convoking of Parliaments and dissolving them making of Peers granting liberty of sending Burgesses to Towns and Cities treating with forein States making war leagues and peace granting safe conduct and protection indenizing giving of honor rewarding pardoning coyning printing and the like to these But what need these particulars have been looked into to prove the absoluteness and soveraignty of the Kings of England when the whole body of the Realm hath affirmed the same and solemnly declared it in their Acts of Parliament In one of which is affirmed h 16 Rich. 2. c. 5. that the Crown of England hath been so free at all times that it hath been in no earthly subjection but immediatly to God in all things touching the regality of the said Crown and to none other And in another Act that the Realm of England is an Empire governed by one supreme head and King having the Dignity and Royal Estate of the Imperial Crown of the same unto whom a Body politick compact of all sorts and degrees of people divided in terms and by names of Spiritualty and Temporalty been bounden and ought to bear next to God a natural and humble obedience i 24 Henr. 8. c. 12. And more than so that the King being the supreme head of this Body Politick is instituted and furnished by the goodness and sufferance of Almighty God with plenary whole and entire power preheminence authority prerogative and jurisdiction to render and yield justice and final determination to all manner of Subjects within this Realm and in all causes whatsoever Nor was this any new Opinion invented only to comply with the Princes humour but such as is
in number nor more obvious than those of our Kings serving their turns by and upon their Parliaments as their occasions did require For not to look on higher and more Regal times we find that Richard the 2d a Prince not very acceptable to the Common people could get an Act of Parliament t 21 Ric. 2. to confirm the extrajudicial opinion of the Iudges given before at Notingham that King Henry 4th could by an other Act reverse all that Parliament u 1 Hen 4. entayl the Crown to his posterity and keep his Dutchy of Lancaster and all the Lands and Seigneuries of it from being united to the Crown that King Edward the 4th could have a Parliament to declare all the Kings of the House of Lancaster to be Kings in fact but not in right x 1 Ed. c. 1. and for uniting of that Dutchy to the Crown Imperial notwithstanding the former Act of separation that King Richard the 3d. could have a Parliament to bastardize all his Brothers Children to set the Crown on his own head though a most bloody Tyrant and a plain Usurper y Speeds hist in K. Richard 3. that King Henry 7. could have the Crown entayled by an Act of Parliament to the issue of his own body z Verulam hist of K. Hen 7. without relation to his Queen of the house of York which was conceived by many at that time to have the better Title to it another for paying a Benevolence which he had required of the subject a 11 Hen. 7. c. 10. though all Benevolences had been damned by a former Statute made in the short but bloody reign of King Richard the 3d. that King Henry 8. b 65 Hen. 8. c. 22 28. c. 7. 35 H. 8. c. 1. could have one Act of Parliament to bastardry his Daughter Mary in favour of the Lady Elizabeth another to declare the Lady Elizabeth to be illegitimate in expectation of the issue by Queen Jane Seymour a third for setling the succession by his Will and Testament and what else he pleased that Queen Mary could not only obtain several Acts in favour of her self and the Sâ—e of Rome c 1 Mar. sâ—s 2. c. 1 2. 1. 2 Ph. M. c. 8. 10. but for the setling of the Regency on the King of Spain in case the Children of that Bed should be left in nonage And finally that Queen Elizabeth did not only gain many several Acts for the security of her own Person which were determinable with her life but could procure an Act to be passed in Parliament for making it high treason to affirm and say That the Queen could not by Act of Parliament bind and dispose the Rights aâ—d Titles which any person whatsoever might have to the Crown d 13 Eliz. c. 1. And as for raising monies and amassing treasures by help of Parliaments he that desires to know how well our Kings have served themselves that way by the help of Parliaments let him peruse a book intituled the Privilege of Parliaments writ in the manner of Dialogue between a Privy Counsellor and a Iustice of Peace and he shall be satisfied to the full Put all that hath been said together and sure the kingdom of England must not be the place in which the three Estates convened in Parliament have power to regulate the King or restain his actions or moderate his extravagances or where they can be taxed for perâ—idious treachery if they connive at Kings when they play the Tyrants or wantonly insult on the Common-people or otherwise abuse that power which the Lord hath given them Calvin was much mistaken if he thought the contrary or if he dreamt that he should be believ'd on his ipse dixit without a punctual enquiry into the grounds and probability of such a dangerous intimation as he lays before us 13. But against this it is objected that Parliaments have disposed of the Militia of the Kingdom of the Forts Castles Ports and the Navie Royal not only without the Kings leave but against his liking that they have deposed some Kings and advanced others to the top of the Regal Throne And for the proof of this they produce examples out of the reign of K. Henry 3. K. Edw. 2. and K. Richard the 2. e Prynnes Book of Parl. part 2. Examples which if rightly pondered doe not so much prove the power as the weakness of Parliaments in being carried up and down by the privat conduct of every popular pretender For 't is well known that the Parliaments did not take upon them to rule or rather to over-look K. Henry 3. but as they were directed by Simon Montfort Earl of Leicester who having raised a potent faction in the State by the assistance of the Earls of Glocester Hereford Derby f Maâ— Paris Henr. 3. and some others of the great Lords of the kingdom compelled the King to yeeld unto what terms he pleased and made the Parliaments no other than a means and instrument to put a popular gloss on his wretched purposes And 't is well known that the ensuing Parliaments which they instance in moved not of their own accord to the deposing of King Edward the 2. or King Richard the 2. but sailed as they were steered by those powerfull Counsels which Queen Isabel in the one and Henry Duke of Lancaster in the other did propose unto them g Walsingham in Hist Angl. Hypodig Neustriae It was no safe resisting those as their cold wisdoms and forgotten loyalties did suggest unto them qui tot legionibus imperarent who had so manany thousand men in arms to make good their project and they might think as the poor-spirited Citizens of Samaria did in another case but a case very like the present Behold two Kings stood not before him how then can we stand h 2 Kings 10. 4. For had it been an argument of the power of Parliaments that they deposed one King to set up another dethroned King Richard to advance the Duke of Lancaster to the Regal diadem they would have kept the house of Lancaster in possession of it for the full demonstration of a power indeed and not have cast them off at the first attempt of a new plausible pretender declared them to be kings in fact but not in right whose lawfull right they had before preferred above all other titles and set the Crown upon the heads of their deadly Enemies In the next place it is objected that Parliaments are a great restraint of the Soveraign power according to the Doctrine here laid down by Calvin in that the King can make no laws nor levy any money upon the Subject but by the counsel and assent of the Lords and Commons assembled in Parliament But this objection hurts as little as the former did For Kings to say the truth need no laws at all In all such points wherein they have not bound themselves by some former laws