made in Parliament the King passed a Law to this effect viz. r 4 Hâ—n 8. c. 8. That ull sutes condemnations executions charges and impositions put or hereafter to be put upon Richard Strode and every of his Complices that be of this Parliament or aâ—y other hereafter for any Bill speaking or reasoning of any thing concerning the Parliament to be communed and treated of shall be void and null but neither any reparation was allowed to Strode nor any punishment inflicted upon those that sued him for ought appears upon Record And for the Houses joyned together which is the last capacity they can claim it in they are so far from having the supreme authority that as it is observed by a learned Gentleman they cannot so unite or conjoyn as to be an entire Court either of Soveraign or Ministerial jurisdiction no otherwise co-operating than by concurrence of Votes in their several Houses for preparing matters in order to an Act of Parliament s Case of our Affairs p. 9. Which when they have done they are so far from having any legal authority in the State as that in Law there is no stile nor form of their joynt Acts nor doth the Law so much as take notice of them until they have the Royal Assent So that considering that the two Houses alone do no way make an entire Body or Court and that there is no known stile nor form of any Law or Edict by the Votes of the two Houses only nor any notice taken of them by the Law it is apparent that there is no Soveraignty in their two Votes alone How far the practise of the Lords Commons which remaind at Westminster after so many of both Houses had tepaired to the King c. may create Precedents unto posterity I am not able to determine but sure I am they have no Precedent to shew from the former Ages But let us go a little further and suppose for granted that the Houses either joynt or separate be capable of the Soveraignty were it given unto them I would fain know whether they claim it from the King or the people only Not from the King for he confers upon them no further power than to debate and treat of his great Affairs to have access unto his person freedome of Speech as long as they contein themselves within the bounds of Loyalty authority over their own Members which being custumarily desired t Hakewell of passing bils in Parliament and of course obtained as it relates into the Commons shews plainly that these vulgar privileges are nothing more the rights of Parliament than the favours of Princes but yet such favours as impart not the least power of Soveraignty Nor doth the calling of a Parliament ex opere operato as you know who phrase it either denude the King of the poorest robe of all his Royalty or confer the same upon the Houses or on either of them whether the King intend so by his call or otherwise For Bodin whom Mr. Prynne hath honored with the title of a grand Politician u Pryn of Parliam par 2. p. 45. doth affirm expresly Principis majestatem nec Comitorum convocatione nec Senatus populique praesentia minui x Bodin de Repub. that the majesty or Soveraignty of the King is not a jot diminished either by the calling of a Parliament or Conventus Ordinum or by the frequency and presence of his Lords and Commons Nay to say truth the Majesty of Soveraign Princes is never so transcendent and conspicuous as when they sit in Parliament with their States about them the King then standing in his highest Estate as was once said by Henry 8. who knew as well as any of the Kings of England how to keep up the majesty of the Crown Imperial Nor can they claim it from the people who have none to give for nemo dat quod non habet as the saying is The King as hath been proved before doth hold his Royal Crown immediately from God himself not from the contract of the people He writes not populi clementia but Dei gratia not by the favour of the people but by the grace of God The consent and approbation of the people used and not used before the day of coronation is reckoned only as a part of the solemn pomps which are then accustomably used The King is actually King to all intents and purposes in the Law whatever immediately on the death of his Predecessor Nor ever was it otherwise objected in the Realm of England till Clark and Watson pleaded it at their arraignment in the first year of King James y Speeds History in K. James Or grant we that the Majesty of this Kingdom was first originally in the people and by them devolved upon the King by their joynt consent yet having given away that power by their said consent and setled it upon the King by an Act of State confirmed by Oaths and all solemnities which that Act requires they cannot so retract that grant or make void that gift as to pass a new conveyance of it and settle it upon their Representees in the House of Commons Or if they could yet this would utterly exclude all the Lords from having the least share or portion in this new found Soveraignty in that they represent not the common people but sit there only in their own personal capacities and therefore must submit at last to these new made Soveraigns who carry both the Purse Sword at their own girdles So then the people cannot give the Soveraignty and if they have no power to give it the Lords and Commons have no claim thereunto de jure See we next therefore how much of this Soveraignty they or their Predecessors rather have enjoyed de facto in peaceable and regular times fit to be drawn into example in the Ages following The chief particulars in which the Soveraignty consists we have seen before and will now see whether that any of them been exercised and injoyed in peaceable and regular times by both or either of the two Houses of Parliament And first for calling and dissolving Parliaments making of Peers granting of liberty to Towns and Cities to make choyse of Burgesses which antiently had no such liberty treating with forein States denouncing war or making Leagues or Peace after war commenced granting safe conduct and protection indenizing of Aliens giving of honors unto eminent and deserving persons rewarding pardoning coyning printing making of corporations and dispensing with the Laws in force they are such points which never Parliament did pretend to till these later times wherein every thing almost is lawfull I am sure more lawâ—ull than to fear God and honor the King Nor do I find that Mr. Prynne hath laboured to entitle them to these particulars For levying of Arms and the command of the Militia besides that the Kings of England have ever been in possession of it and that possession never disturbed
or interrupted by any claim of right made in the behalf of the two Houses which is as sure a title as the Law can make the Houses have declared by a Act of Parliament a Sâ—at 7 Ed. 1. cap. 1. that of right it belongs unto the King streightly to defend that is prohibit all force of Arms and that the Parliament is bound to aid him in that prohibition Touching the Royal navy and the ports and forts the Kings prescription to them is so strong and binding that in the 3d. of Edward 3. Edw. 3. the House of Commons did disclaim the having cognisance of such matters as the guarding of the Seas and marches of the Kingdome which certainly they had not done had they pretended any title to the ports and navy As for suppressing tumults and providing for the safety of the Kingdom against sudden danger the Law commits it solely to the care of the King obliging every Subject by the duty of his allegeance to aid and assist him at all seasons when need shall require b 11 Henr. 7. c. 18. And for their power of declaring law in the House of Peers wherein they deliver their opinion in the point before them in true propriety of speech they have none at all c Case of our Affairs p. 4. And this is that which was affirmed by his Majesty at the end of the Parliament Anno 1628. saying that it belonged only to the Iudges under him to interpret laws and that none of the Houses of Parliament joynt or separate what new Doctrine soever might be raised had any power either to make or declare law without his consent d 3 Car. And if it be done with his consent it is not so properly the declaring and interpreting of an old law as the making rather of a new saith a learned Gentleman e Case of our affairs P. 5. 9. Others have found out a new way to invest the Parliament with the robes of Soveraignty not as superiour to the King but co-ordinate with him and this say they appears sufficiently in that the two Houses of Parliament have not only a power of consulting but of consenting and that too in the highest office of the Monarchy whereof they are a Coordinative part the making of Laws f Fuller Answer to D. F. p. 2. Which dangerous doctrin as it was built at first on that former error which makes the King to be one of the three Estates in Parliament so it is super-structed with some necessary consequents whether more treasonable or ridiculous it is hard to say For on these grounds the Author of the Fuller Answers hath presented us with these trim devises g Id. pag. 1. viz. that England is not a simple subordinate and absolute but a coordinative and mixt Monarchy that this mixt Monarchy is compounded of three coordinate Estates a King and two Houses of Parliament that these three make but one supreme but that one is a mixt one or else the Monarchy were not mizt and finally which needs must follow from the premises that although every Member of the Houses sâ—orsim taken severally may be called a Subject yet all collective in their houses are no Subjects Auditum admissi risum teneatis Can any man hear these serious follies and abstain from laughter or think a fellow who pretends both to wit and learning should talk thus of a Monarchy which every one that knoweth any thing in Greek know to imply the supreme government of one compounded of three coordinate Estates and those coordinate Estates consisting of no fewer than 600 persons Or that a man who can pretend but to so much use of reason as to distinguish him from a beast could fall on such a senselest Dotage as to make the same man at the same time to be a Subject and no Subject a Subject in the Streets and in his private House no Subject when he sits in Haberdashers Hall for advance of moneys or in either of the two Houses of Parliament And yet this senseless Doctrine is become so dangerous because so universally admired and hearkned to that the beginning and continuance of our long Disturbances may chiefly be ascribed unto this opinion to which they have seduced the poor ignorant people The rather in regard that some who have undertook the confutation of these brainless solies have most improvidently granted not only h As in the book called Conscience satisfied that the two Houses of Parliament are in a sort coordinate with the King ad aliquid to some Act or exercising of the supreme power that is to the making of Laws but that this coordination of the three Estates of which the King is yielded every where for one is fundamental and held by the two Houses on no worse a title than a fundamental Constitution which is as much as any reasonable Parliamentarian need desire to have Therefore in Answer to the Fuller not taking notice of his foolish and seditious inferences we will clear those points 1. That the two Houses of Parliament are not coordinate with the King but subordinate to him And 2. that the power of making laws is properly and legally in the King alone As for the first we had before a Recognition made by Act of Parliament by which the Kingdom of England is acknowledged to be an Empire governed by one supreme head and King to whom all sorts and degrees of people ought to bear next to God a natural and humble obedience i 24 H. 8. c. 12. which certainly the Lords and Commons had not made to the dethroning of themselves their heirs and successors from this coordinative part of Soveraignty if any such coordination had been then believed Or if it be supposed to excuse the matter that K. Henry the 8th being a severe and terrible Prince did wrest this Recognition from them which yet will hardly serve for a good defence what shall we say to the like recognition made in the beginning of Queen Elizabeths reign k 1 Eliz. c. 1. when she was green in State and her power unsetled and so less apt to work upon her people by threats and terrors Assuredly had the Houses dream't in those broken times of that coordinative Soveraignty which is now pretended they might have easily regained it and made up that breach which by the violent assaults of King Henry the 8th had been made upon them which was a point they never aimed at Besides if this coordinative mâ—jesty might be once admitted it musts needs follow that though the King hath no Superiour he hath many Equalls and where there is Equality there is no Subjection But Bracton tells us in plain terms not only that the King hath no Superiour in his Realm except God almighty but no Equal neither and the reason which he gives is exceeding strong Quia sic amitteret praeceptum cum par in Parem non habeat potestatem l Bracton de leg Aâ—gl
Titles of hon part 2. cap. 5. to give the King their best advice in his great affairs So that the Prelates and Nobility conveened in Parliament made the Kings great Counsel and were called thither to that end What then belonged unto the Commons 1. No more than did belong to the Clergy also that is to say the giving of their consent to such Laws and Statutes as should there be made VVhich notwithstanding in tract of time gave them such a sway and stroak in the course of Parliaments that no law could be made nor no tax imposed without their liking and allowance And this is that which is expressed in the last clause of the said writ by which the Knights and Burgesses are to come prepared g Form a Brevis c. ad faciendum et consentiendum iis quae tune ibidem de consilio dicti Regni nostri super negotiis antedictis contigerint ordinari VVhich is the very same which you had before in the writ directed to the Bishops for summoning the Clergie of their several Diocesses and that here is a faciendum which the other had not A word which if you mark it well hath no operation in the Construction of the text except it be in paying subsidies or doing such things as are appointed to be done by that great Counsel of the Kingdom VVhich clause though it be cunningly left out that I may say no worse in the recital of the writ by the Author of the Book entituled the Prerogative and practice of Parliaments is most ingenuously acknowledged in the Declaration of the Lords and Commons assembled at Oxon h Declaration of the treaty P. 15. where it is said that the writs of summons the foundation of all power in Parliament are directed to the Lords in expresse termes to treat and advise with the King and the rest of the Peers of the Kingdom of England and to the Commons to do and consent to those things which by that Common councell of England should be ordained And thus it stands as with the Common people generally in most states of Christendom so with the Commons antiently in most states of Greece of which Plutarch telleth us i Plutarch in Lyeurgo that when the people were assembled in Counsell it was not lawful for any of them to put forth matters to the Counsel to be determined neither might any of them deliver his opinion what he thought of any thing but the people had only authority 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to give their assent unto such things as either the Senators or their Kings do propound unto them 10. But against this it is objected first that it is not to be found at what time the Clergie lost their place and vote in Parliament and therefore it may reasonably be presumed that they had never any there and 2ly that if they had been called ad consentiendum though no more than so we should have found more frequent mention of their consent unto the Acts Statutes in our printed Books For answer unto which it may first be said that to suppose the Clergie had no voice in Parliament because it is not to be found when they lost that Privilege is such a kind of Argument if it be an argument as is made by Bellarmine k Bellarm. de Eccl. lib. 4. cap. 5. to prove that many of the controverted Tenets of the Church of Rome are neither terroneous nor new because we cannot say expressely quo tempore quo autore when and by whose promoting they first crept in And though we cannot say expressely when the inferiour Clergy lost their place in Parliament in regard it might be lost by discontinuance or non-usage or that the clause was pretermitted for some space of time the better to disuse them from it or that they might neglect the service in regard of their attendance in the Convocation which gave them power and reputation both with the Common people yet I have reason to beleeve that this pretermission and disuse did chiefly happen under the government of the Kings of the house of Lancaster who being the true heirs and successours of Iohn of Gaunt cast many a longing eye on the Church revenues and hardly were perswaded to abstain from that height of sacrilege which Henry the 8 did aftercome to And this I am induced to beleeve the rather in regard that in the confirmation of the Churches rights so solemnly confirmed and ratified in all former Parliaments there was a clog put to or added in these times which shaked the Fabrick the confirmation being first of such rights and liberties as were not repealed 3. Hen. 5. cap. 1. 4 Hen. 5. cap. 1. and afterwards of such as by the Common law were not repealeable 2 Hen. 6. cap. 1. which might go very far indeed And secondly I find that in the 8 of Henry the 6. an Act of Parliament was passed that all the Clergy called to Convocation by the Kings writ and their servants and Family shall for ever hereafter fully use and enjoy such liberty and defence in comming tarrying and returning as the great men and Comminalty of the Realm of England called to the Kings Parliament do enjoy l 8 Hen. 6. cap. 1. c. Which being an unnecessary care or caution when the Clergie had their voice in Parliament and very necessary to be taken formerly if they had never had such voice makes me conceive that it was much about this time that they lost that privilege But this I leave as a conjecture and no more than so For answer to the second argument that if they had been called of old ad consentiendum we should have found more frequent mention of their consent unto the Acts and Statutes of the former times besides that it is a negative proof and so non concludent it strikes as much against the presence and consent of the Knights and Burgesses in the elder Parliaments as it can do against the Clergie For in the elder Parliaments under K. Henry 3. and K. Edward the first there is no mention of the Commons made at all either as present or consenting nor much almost in all the Parliaments till K. Henry 7. but that they did petition for redresse of greivances and that upon their special instance and request m In the Proem to the several Sessions several laws were made for the behoof and benefit of the Commonwealth which part the Clergie also acted in some former Parliaments as before was shewed So that this negative Argument must conclude against both or neither But secondly I answer that in these elder times in which the Proctors for the Clergy had their place in Parliament they are included generally in the name of the Commons And this I say on the authority of the old modus tenendi Parliamentum in which the Commons are divided in the Spiritualty and the Temporalty and where it is expressely said that the Proctors for
the Clergie the Knights the Citizens and the Burgesses did represent the whole Comminalty of the Realm of England a Cap. ult And this holds good in law for ought I find unto the contrary to this very day Certain I am that Crompton in his book of the Iurisdiction of Courts where he fpeakes of Parliaments doth tell us that the Knights Citizens Burgesses and Barons of the Cinque ports b Grompton Iurisd des Courts caâ— ove le Clergie qu' eux assemble au Pawles represent le corps de tout le Comminalty Dengliterre together with the Clergie which assembled at S. Pauls doe represent the body of the whole Comminalty of England So then the Clergie were not only called but were present also according to that clause in the writ of Summons which before I spake of directed to their several and respective Bishops as the Kings spiritual Sheriffs if I may so say inabled by the Laws to that end and purpose Which some endeavouring to avoid have at last found out that the clause before recited out of the Writ to the Bishops is not a calling of the Clergy to attend in Parliament but to command them to attend in the Convocation which I have heard much pressed by those who pretend unto some knowledge in the course of things Which though it be a gross mistake and inconsistent with the words and circumstances of the VVrit it self which relates meerly to the Parliament and business of a Parllamentarie nature yet for the clearing of the point and undeceiving such as have been deceived they may please to know that besides this VVrit by which the Clergy are commanded to appear in Parliament there is another writ and another form of calling them unto the service of the Convocation which is briefly this The King sends out his VVrit or Mandat to the Arch-bishop of Canterbury requiring him super quibusdam arduis urgentibus negotiis c. n Regist Warham for divers great and weighty reasons concerning the Kings honour the Churches safety and the publick peace of his dominions to summon all the Bishops Deans and Chapters Arch-deacons and the whole Clergy of his Province to meet in Convocation at a day and place appointed On the reception of which Writ the Arch-bishop sendeth out his Monitory to the Bishop of London who by his place is Dean of the Episcopal College o Antiqu. Britan. in initio and to disperse the Mandates of the Metropolitan requiring him to appear himself in person and to send out his warrant unto every Bishop of the Province to appear there also and to take order that the Deans of the Cathedrals and Arch-deacons personally the Chapter by one Procurator the Clergy of the Diocese by two whom we usually call Clerks of the Convocation do attend that service p b Regist Warham VVhich comming to the hands of each several Bishop they do accordingly give intimation to their Deans and Chapters to their Arch-deacons and the Clergy and they accordingly prepare themselves to obey the Monitory and to return Certificate of their doings in it The like proceeding is observed also for the Province of York So that the calling of the Clergy to the Convocation being by a different VVrit and another form which hath no reference to nor dependance on the writs directed by the K. to each several Bishop for their attendance in the Parliament it must needs be as I conceive it that by that clause remaining in the VVrits aforesaid the Clergy have good right and title to a voice in Parliament though they have lost their jus in re the benefit the use and possession of it 11. But I speak this as once the Apostle said in another case not by commandement but by permission For I perswade my self the Clergy do not aim so high at the recovery of a right so long antiquated and disused but would be well enough content with the restitution of the Bishops to their vote in Parliament of which they stood possessed by so strong a Title as the very constitution of the Parliament and the fundamental laws of the English government could confer upon them For though the Bishops sate in Parliament in their own personal capacities and not as the representative body of the Clergy yet the poor Clergy found it some respect unto them to be thus honoured in their heads and were the more obliged to obey such Acts as were established in that Court wherein these heads had opportunity of interceding if perhaps any thing were propounded which might be grievous to the Clergy and many times a power of hindering and diverting if not by voice and numbers yet by strength of reasons They were not altogether Slaves and Bond-men whilest the Church held that remnant of her antient rights for whilest the heads retained that honor the body could not choose but rejoyce in it and be cherished by it But since they have been stripped of that by what unworthy Acts the world knows too well they are become of such condition that the most despicable Tradesman in a Corporate Town is more considerable in the eye of the State and hath a greater interesse in the affairs thereof than the greatest Prelate and to say truth than all the Clergy of the Realm For being there are three Ingredients which make up a Freeman as S. Francis Bacon well observed in his speech concerning the Post-nati that is to say 1. jus Civitatis which did inable a man to buy and sell and to take Inheritances 2. jus suffragii a voice in the passing of Laws and Election of Officers and 3. jus honoris a capability of such offices and honors as the State could give him the Clergy by this means are limited to the first right only utterly excluded from the other two and therby put into a worse condition than the meanest Freeman in the Kingdome Insomuch that whereas every needy Artizan if he be free of any Corporate Town or City every Cottager that dwelleth in an antient Burrough and every Clown which can lay claim to sorty shillings per Annum of free hold either for life or of inheritance hath a voyce in Parliament either in person or by Proxie and is not bound by any law but what himself consents to in his Representatives the Clergy only of this Realm as the case now stands being one of the greatest States of this Kingdom as is acknowledged expresly in terminis by Act of Parliament p 8 Eliz. c. 1. are neither capable of place there in their personal capacities nor suffered to be there in their Procuratours as of old they were nor have so much as any voice in choosing of the Knights and Burgesses which represent the body of the people generally I know it hath been said in reply to this that the Clergy may give voices at the election of the Knights and Burgesses and that it is their own neglect if they do it not But I know too
it should be otherwise in the present times the equity and justice of it being still the same and the same reasons for it now as forcible as they could be then Had it been otherwise resolved of in the former ages wherein the Clergy were so prevalent in all publique Counsails how easie a matter had it been for them either by joyning with the Nobility to exclude the Commons or by joyning with the Commonalty to exclude the Nobles Or having too much conscience to adventure on so great a change an alteration so incompatible and inconsistent with the Constitution of a Parliament how easily might they have suppressed the potency and impaird the Privileges of either of the other two by working on the humours or affections of the one to keep down the other But these were Arts not known in the former daies nor had been thought of in these last but by men of ruine who were resolved to change the Government as the event doth shew too clearly both of Church and State Nor doth it help the matter in the least degree to say that the exclusion of the Bishops from the House of Peers was not done meerly by the practice of the two other Estates but by the asseâ—t of the King of whom the Laws say he can do no wrong and by an Act of Parliament wherof our Laws yet say quae â—ul doit imaginer chose dishonourable c Plowden in Commentar that no man is to think dishonourably For we know well in what condition the King was when he passed that Act to what extremities he was reduced on what terms he stood how he was forced to flye from his City of London to part with his dear Wife and Children and in a word so overpowred by the prevailing party in the two Houses of Parliament that it was not safe for him as his case then was to deny them any thing And for the Act of Parliament so unduly gained besides that the Bill had been rejected when it was first brought unto the Lords and that the greater part of the Lords were frighted out of the House when contrary unto the course of Parliament it was brought again it is a point resolved both in Law and reason that the Parliament can do nothing to the destruction of it self and that such Acts as are extorted from the King are not good and valid whereof we have a fair example in the Book of Statuers d 15 Ed. 3. For whereas the King had granted certain Articles pretended to be granted in the form of a Statute expresly contrary to the Laws of the Realm and his own Prerogative and rights royal mark it for this is just the case which he had yielded to eschew the dangers which by denying of the same were like to follow in the same Parliament it was repealed in these following words It seemed good io the said Earls Barons and other wise men that since the Statute did not proceed of our free will the same be void and ought not to have the name nor strength of a Statute and therefore by their counsail and assent we have decreed the said Statute to be void c. Or if it should not be repealed in a formal manner yet is this Act however gotten void in effect already by a former Statute in which it was enacted in full Parliament and at the self same place where this Act was gained that the Great Charter by which and many other Titles the Bishops held their place in Parliament should be kept in all points and if any Statute be made to the contrary it shall be holden for none e 42 Ed. 3. c. 1. CHAP. VI. That the three Estates of every Kingdom whereof CALVIN speaks have no authority either to regulate the power or controll the Actions of the Soveraign Prince I. The Bishops and Clergy of England not the King make the third Estate and of the dangerous consequences which may follow on the contrary Tenet II. The different influence of the three Estates upon conditional Princes and an absolute Monarch III. The Sanhedrim of no authority over the persons or the actions of the Kings of Judah IV. The three Estates in France of 〈◊〉 small authority over the actions of that King V. The King of Spain not over-ruled or regulated by the three Estates VI. Of what authority they have been antiently in the Parliaments of Scotland VII The King of England alwaies accounted heretofore for an absolute Monarch VIII 〈◊〉 part of Soveraignty invested legally in the English Parliaments IX The three Estates assembled in the Parliament of England subordinate unto the King not co-ordinate with him X. The Legislative power of Parliaments is properly and legally in the King alone XI In what particulars the power of the English Parliament doth consist especially XII The Kings of England ordinarily over-rule tâ—eir Parliaments by themselves their Counsel and their Judges XIII Objections answered touching the power and practice of some former Parliaments and the testimonies given unto them XIV No such Authority given by God in Holy Scripture to any such Popular Magistrates as CALVIN dreams of and pretends XV. The Application and Conclusion of the whole Discourse I Have been purposely more copious in the former Chapter because I thought it necessaâ—y to declare and manifest who made the three Estates in each several Kingdom which are pretended by our Author to have such power of regulating the authority and censuring the actions and the persons of their Soveraign Princes And this the rather in regard it is thought of late and more than thought presented to the world in some publick writings especially as it relates to the Realm of England that the King the Lords and Commons make the three Estates which brings the King into an equal rank with the other two in reference to the businesse and affairs of Parliament A fancy by what Accident soever it was broached and published which hath no consistence either with truth or ordinary observation or with the practice of this Realm or of any other For the proof of this my position that the King is none of the three Estates as is now pretended if all proofs else should fail I have one from Calvin whose judgement in this point amongst many of us will be instar omnium For where he saith in singulis Regnis tres esse Ordines e Calvin instâ—t 4. cap. ult that there are three Estates in each several Kingdom and that these three Estates convened in Parliament or by what other name soever they call their meeting are furnished with a power Regum libidinem moderandi of moderating the licentiousness of Kings and Princes and that they become guilty of perfidious dissimulation si Regibus impotenter grassantibus c. If they connive at Kings when they play the Tyrants or wantonly insult on the Common-people I trow it cannot be conceived that the King is any one of the three Estates who are here
now goeth were the meetings oftner For whereas there are three Principal if not sole occasions of calling this Assemblie or Conventus Ordinum that is to say the disposing of the Regency during the nonage or sickness of the King the granting aids and subsidies and the redress of the grievances there is now another course taken to dispatch their business The Parliament of Paris which speaks most commonly as it is prompted by power and greatness appointeth the Regent f Contin Thuani An. 1610. the Kings themselves together with their Treasurers and Under-officers determine of the taxes g View of France and they that do complain of grievances may either have recourse to the Courts of justice or else petition to the King for redress thereof And for the making new Laws or repealing the old the naturalization of the Alien and the regulating of his sales or grants of the Crown-lands the publick patrimony of the Kingdome which were wont to be the proper subject and debates of these grand Assemblies they also have been so disposed of that the Conventus Ordinum is neither troubled with them nor called about them The Chamber of Accompts in Paris which hath some resemblance to our Court of Exchequer doth absolutely dispose of Naturalizations and superficially surveyeth the Kings grants and sales * Andr. Du Mesn which they seldom cross The Kings Car tel est nostre plaisir is the Subjects law and is as binding as any Act or Ordinance of the three Estates and for repealing of such Laws as upon long experience are conceived to be unprofitable the Kings sole Edict is as powerfull as any Act of Parliament Of which Bodinus doth not only say in these general terms Saepe vidimus sine Ordinum convocatione consensu leges à Principe abrogatas k Bodin de Rep. lib. 1. cap. 8. that many times these Kings did abrogate some antient laws without the calling and consent of the three Estates but saith that it was neither new nor strange that they should so do and gives us some particular instances not only of the later times but the former ages Nay when the power of this Assemblie des Estats was most great and eminent neither so curtailled nor neglected as it hath been lately yet then they carried themselves with the greatest reverence and respect before their King that could be possibly imagined For in the Assembly held at Tours under Charles the 8. though the King was then no more than 14 years of age and the authority of that Court so great and awfull that it was never at so high an eminence for power and reputation quanta illis temporibus as it was at that time yet when they came before the King Monseiur de Rell being then Speaker for the Commons or the third Estate did in the name of all the rest and with as much humility and reverence as he could devise promise such duty and obedience such a conformity of his will and pleasure such readiness to supply his wants and such alacrity in hearking unto his Commandements that as Bodinus well observes his whole Oration was nothing else quam perpetua voluntatis omnium erga Regem testificatio l Id. ibid. but a constant testimony and expression of the good affections of the subject to their Lord and Soveraign But whatsoever power they had in former times is not now material King Lewis the thirteenth having on good reason of State discharged those Conventions for the time ensuing Instead whereof he instituted an Assembly of another temper and such as should be more obnoxious to his will and pleasure consisting of a certain number of persons out of each Estate but all of his own nomination and appointment which joyn'd with certain of his Counsel and principal Officers he caused to be called L' Assembly des Notables assigning to them all the power and privileges which the later Conventions of the three Estates did pretend unto right well assured that men so nominated and intrusted would never use their powers to his detriment and disturbance of his Heirs and Successors 5. But to proceed Bodinus having shewn what dutifull respects the Convention of Estates in France shewed unto their King addes this note nec aliter Hispanorum conventus habentur that the Assembly of the three Estates in the Realms of Spain carry themselves with the like reverence and submission to their Lord the King Nay major etiam obedientia majus obsequium Regi exhibetur m Id. ibid. the King of Spain hath more obedience and observance from his three Estates than that which is afforded to the Kings of France Which being but general and comparative is yet enough to let us see that the Assembly of Estates in the Realms of Spain which they call the Curia is very observant of their King and obsequious to him and have but little of that power which is supposed by our Author to be inherent in the three Estates of all the Christian Kingdoms But this Bodinus proveth more particularly ascribing to the King and to him alone the power of calling this Assemblie when he sees occasion and of dissolving it again when his work is done according as is used both in France and England And when they are assembled and met together their Acts and consultations are of no effect further than as they are confirmed by the Kings consent Which he declareth in the same form eadem formulà quâ apud nos that hath accustomably been used by the Kings of France which is authoritative enough that is to say n Id. ibid. p. 90. decernimus statuimus volumus We will and we appoint and we have decreed The Kings of Spain though not so despotical in their Government as the French Kings are are as absolute Monarchs and have as great an influence on the three Estates to make them pliant to their will and to work out their own ends by them as ever had the French Kings on their Courts of Parliament a touch whereof we had before in the former Chapter And this we may yet further see by their observance of the pleasure of King Philip the 2d Who having maried the Lady Elizabeth Daughter of Henry the 2d of France Convocatos Castellae reliquarum Hispaniae Provinciarum Ordines o Thuan. â—ist sui temp h 23. l. calling together the Estates of Castile and his other Provinces of Spain he caused them to swear to the succession of his Son Prince Charles whom he had by the Lady Mary of Portugal and after having on some jealousies of State put that Prince to death caused them to swear to the succession of another son by the Lady of Austria And for the power of his Edicts which they call Pragmaticas they are as binding to the Subject as an Act of Parliament or any kind of Law whatever examples of the which are very obvious and familiar in the Spanish Histories For though
there be a body of Laws in use amongst them partly made up of some old Gothish Laws and Constitutions and partly of some parts of the Law imperial yet for the explanation of the Laws in force if any doubt arise about them or for supplying such defects which in the best colllection of the Laws may occur sometimes the Magistrates and Judges are to have recourse to the King alone and to conform to such instructions as he gives them in it And this is it which was ordained by Alfonso the tenth qui etiam magistratus ac judices Principem adire jussit quoties patrio jure nihil de proposita causa scriptum esset p Bodin de Rep. lib. 1. cap. 8. as Bodinus hath it 'T is true that for the raising of supplies of mony and the imposing of extraordinary taxes upon the subject the Kings of Spain must be beholden to the three Estates without whose consent it cannot legally be done But then it is as true withall that there are customary tributes called Servitia q Id. ibid. p. 90. which the King raiseth of his own authority without such consent And their consenting to the extraordinary is a thing of course the Spanish Nation being so well affected naturally to the power and greatness of their Kings whom they desire to make considerable if not formidable in the opinion of their Neighbours that the Kings seldome fail of monies if the Subjects have it Finally that we may perceive how absolute this Monarch is over all the Courts or Curias of his whole dominions take this along according as it stands verbatim Å¿ Spanish hist 67. by Tyrannell in the Spanish Historie The King of Spain as he is a potent Prince and Lord of many Countries so hath he many Counsels for the managing of their affairs distinctly and apart without any confusion every Counsel treating only of those matters which concern their Jurisdiction and charges with which Counsels and with the Presidents thereof being men of chief note the King doth usually confer touching matters belonging to the good Government preservation and increase of his Estates and having heard every mans opinion he commands that to be executed which he holds most fit and convenient .. 6. Next let us take a view of Scotland and we shall find it there no otherwise I mean in reference to the point which is now in question than in France or Spain For besides that Bodinus makes it one of those absolute Monarchies ubi Reges sine controversia omnia jura Majestatis habent per sese t Bodin de Repub. l. 2. c. 7. in which the Kings have clearly all the rights of Majesty inherent in their own persons only it is declared in the Records of that very Kingdome that the King is directus totius dominus u Camden n Britan. deicript â— the Soveraign Lord of the whole State and hath all authority and jurisdiction over all estates and degrees aswel Ecclesiastical as lay or temporal And as for those Estates and Degrees convened in Parliament we may conjecture at their power by that which is delivered of the form or order which they held it in which is briefly this x Form of holding the Parl. in Scotl. Assoon as the Kings writ is issued out for summoning the Estates to meet in Parliament he maketh choyse of eight of the Spiritual Lords such on whose wisdom and integrity he may most rely which eight do choose as many of the Temporal Lords and they together nominate eight more out of the Commissioners for the Counties and as many out of the Commissioners for the Towns or Burroughs These 32 thus chosen are called Domini pro Articulis Lords of the Articles and they together with the Chancellor Treasurer Keeper of the Privy Seal and Principal Secretaries of state and the Master of the Rolls whom they call Clerk Register do admit or reject every bill but not before they have been shewn unto the King if they pass there they are presented afterwards to the whole Assembly where being thorowly weighed and examined put unto the votes of the house such of them as are carried by the major part of the Voices for the Lords and Commons sit together in the same house there are on the last day of the Sessions exhibited to the King who by touching them with his Scepter pronounceth that he either ratifieth and approveth them or that he doth disable them and make them void But if the business be disliked by the Lords of the Articles it proceeds no further and never comes unto the consideration of the Parliament or if the King dislikes of any thing in it when they shew it to him it either is razed out or mended before it be presented to the publick view King James of blessed memory who very well understood his own power and the forms of that Parliament describes it much to the same purpose in his Speech made at Whitehall March 31. Anno 1607. About twenty daies saith he before the Parliament Proclamation is made throughout the Kingdom to deliver unto the Kings Clerk of Register all Bils to be exhibited that Session before a certain day Then are they brought unto the King and perused and considered by him and only such as he alloweth of are put into the Chancellors hands to be propounded to the Parliament and none others And if any other man in Parliament speak of any other matter than is in this sort first allowed by the King the Chancellor telleth him that the King hath allowed of no such Bill Besides when they have passed them for Laws they are presented to the King and he with his Scepter put into his hands by the Chancellor must say I ratifie and approve all things done in this present Parliament And if there be any thing that he disliketh it is razed out before So the eldest Parliament-man as he said himself at that time in Scotland This was the form of holding Parliaments in Scotland which whosoever doth consider with a serious eye may perceive most plainly that it is wholly in the Kings power to frame the Parliament to his own will or at the least to hinder it from doing any thing to the prejudice of his Royal Crown and Dignity in that the nominating of the Lords of the Articles did in a manner totally depend on him Which being observed by the Scots they took the opportunity when they were in Arms to pass an Act during the Presidency of the Lord Burley Anno 1640. y Acts of Parliaments 16 Carol. for the abolition of this Order and for reducing of that Parliament to the forms of England as being thought more advantagious to their purposes than the former was So that the violent disloyalty of the Scotish Subjects their Insurrections against their Kings and murdering them sometimes when their heels were up which makes that Nation so ill spoke of in the Stories of Christendom are not to
l. 1. c. 8 because he could not have an Equal but with the losse of his Authority and Regal Dignity considering that one Equal hath no power to command an other Now lest the Fuller should object as perhaps he may that this is spoken of the King out of times of Parliament and of the Members of the Houses seorsim taken severally as particular persons but when they are convened in Parliament then they are Soveraigns and no Subjects first he must know that by the Statute of Queen Elizabeth all of the House of Commons are to take the oath before remembred for the defending of all preheminences and authorities united and annexed to the Imperial Crown of this Realm and for bearing faith and true allegiance to the King his Heirs and lawfull Successours and that if any of them do refuse this Oath he is to have no voice in Parliament m Stat. 5 Eâ—iz 1. 2. He cannot choose but know that even sedente Parliamento both the Lords and Commons use to address themselves to his sacred Majesty in the way of supplication and petition and certainly it is not the course for men of equal rank to send Petitions unto one another and that in those Petitions they do stile themselves his Majesties most humble and obedient Subjects Which is not only used as the common Complement which the hypocrisie of these times hath taken up though possibly it might be no otherwise meant in some late addresses but is the very phrase in some Acts of Parliament n â—25 Hen. 8. c. 22. c. as in the Acts at large doth at full appear 3. They may be pleased to know how happy a thing it was for the Realm of England that this Fuller did not live in former times For had he broached this Doctrine some Ages since he would have made an end of Parliaments Princes are very jealous of the smallest points of Soveraignty and love to reign alone without any Rivals their Souls being equally made up of Pompeys and Caesars and can as little broke an Equul as endure a Superiour And lastly I must let him know what Bodinus saith who telleth us this Legum ac edictorum probatio aut publicatio quae in Curia vel Senatu fieri solet non arguit imperii majestatem in Senatu vel Curia inesse o Bodin de Rep. l. 1. c. 8. viz. That the publishing and approbation of Laws and Edicts which is made ordinarily in the Court or Parliament proves not the Majesty of the State to be in the said Court or Parliament And therefore if the power of confirmation or rejecting be of a greater trust and more high concernment than that of consulting and consenting as no doubt it is the power of consulting and consenting which the Fuller doth ascribe to the two Houses of Parliament will give them but a sory Title to Co-ordinative soveraignty 10. This leads me on unto the power of making Laws which as before I said is properly and legally in the King alone tanquam in proprio Subjecto as in the true and adequate subject of that power And for the proof thereof I shall thus proceed When the Norman Conqueror first came in as he wonne the Kingdom by the sword so did he govern it by his power His Sword was then the Scepter and his will the Law There was no need on his part of an Act of Parliament much less of calling all the Estates together to know of them after what form and by what Laws they would be governed It might as well be said of him as in the flourish and best times of the Roman Emperors p Justin Institut l. 1. c. Quod Principi placuerit legis habet vigorem that whatsoever the King willed it did pass for Law This King and some of his Successours being then 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and having a despotical power on the lives and fortunes of their Subjects which they disposed of for the benefit of their friends and followers Normans French and Flemangs as to them seemed best But as the Subjects found the yoke to be too heavy and insupportable so they addressed themselves in their Petitions to the Kings their Soveraigns to have that yoke made easier and the burden lighter especially in such particulars of which they were most sensible at the present time By this means they obtained first to have the Laws of Edward the Confessor contain'd for the most part in the great Charter afterwards and by this means that is to say by powring out their prayers and desires unto them did they obtain most of the Laws and Statutes which are now remaining of the time of King Henry the 3d. and King Edward the first Many of which as they were issued at the first either in form of Charters under the Great Seal or else as Proclamations of Grace and favour so do they carry still this mark of their first procuring the King willeth the King commandeth the King ordaineth the King provideth the King grants c. And when the Kings were pleased to call their Estates together it was not out of an opinion that they could not give away their power or dispence their favours or abate any thing of the severity of their former government without the approbation and consent of their people but out of just fear lest any one of the three Estates I mean the Clergy the Nobility and the Commons should insist on any thing which might be prejudicial to the other two The Commons being alwaies on the craving part and suffering as much perhaps from their immediate Lords as from their King might possibly have asked some things which were as much derogatory to the Lords under whom they held as of their Soveraign Liege the King the chief Lord of all In this respect the Counsel and consent as well of the Prelates as the Temporal Lords was accounted necessary in passing of all Acts of Grace and Favour to the people because that having many Royalties and large immunities of their own a more near relation to the person and a greater interesse in the honour of their Lord the King nothing should passe unto the prejudice and diminution of their own Estates or the disabling of the King to support his Soveraignty And this for long time was the Stile of the following Parliaments viz. q Preface an 1 Ed. 3. To the honour of God and of holy Church and to the redresse of the oppressions of the people our Soveraign Lord the King c. at the request of the Commonalty of his Realm by their Petition made before him and his Counsel in the Parliament by the Assent of the Prelates Earls Barons and other great men assembled in the said Parliament hath granted for him and his Heirs c. To this effect but with some little and but a very little variation of the words was the usual Stile in all the Prefaces or Preambles of the Acts of Parliament from the
beginning of the Reign of King Edward the third till the beginning of the reign of King Henry the 7th save that sometimes we find the Lords complaining r 10 Ed. 3. c. or petitioning Å¿ 21 Ed. 3. c. and the Commons assenting t 28 Ed. 3. c. as their occasions did require and sometime also no other motive represented but the Kings great desire to provide for the ease and safety of his people upon deliberation had with the Prelates and Nobles and learned men assisting with their mutual Counsell u 23 Ed. 3. And all this while there is no question to be made but that the power of making Laws was conceived to be the chiefest flower of the Royal Diademe to which the Lords and Commons neither joynt nor separate did not pretend the smallest Title more than petitioning for them or assenting to them it being wholly left to the Kings grace and goodness whether he would give ear or not unto their petitions or hearken unto such advise as the Lords or other great men gave him in behalf of his people And this is that which was declared in the Parliament by the Lords and Commons and still holds good as well in point of Law as Reason that it belonged unto the regality of the King to grant or deny what Petitions x 2 Her 5. in Parliament he pleaseth But as the Kings came in upon doubtfull Titles or otherwise were necessitated to comply with the peoples humours as sometimes they were so did the Parliaments make use of the opportunities for the increase of their authoritie at least in the formalities of Law and other advantages of expression So that in the minority of King Henry the sixth unto those usual words by the advise and assent of the Lords Spiritual and Temporal and at the special instance and request of the Commons which were inserted ordinarily into the body of the Acts from the beginning of the reign of King Henry the 6th was added this By the authority of the said Parliament y 3 Hen. 6. c. 2. 8 H. 6. 3. c. But still it is to be observed that though those words were added to the former clause yet the power of granting or ordaining was acknowledged to belong to the King alone as in the places in the Margin where it is said Our Lord the King considering the premises by the advise and assent and at the request aforesaid hath ordained and granted by the authority of the said Parliament 3 H. 6. 2. and our Lord the King considering c. hath ordained and established by authority of this Parliament 8 H. 6. 3. And thus it generally stood but every general rule may have some exceptions till the beginning of the reign of King Henry the 7th about which time that usual clause the special instance or request of the Commons began by little and little to be laid aside and that of their advise or assent to be inserted in the place thereof for which I do refer you to the book at large Which though it were some alteration of the former stile and that those words By the authority of this present Parliament may make men think that the Lords and Commons did then pretend some title unto the power of making laws yet neither advising or assenting are so operative in the present case as to transfer the power of making laws to such as do advise about them or assent unto them not can the alâ—eration of the forms and stiles used in antient times import an alteration of the form of Government unless it can be shewed as I think it cannot that any of our Kings did renounce that power which properly and solely did belong unto them or did by any solemn Act of Communication confer the same upon the Lords and Commons convened in Parliament And this is that which is resolved and declared in our Common law where it is said z Cited in the unlawfulness of resist p 107. Le Roy fait les loix avec le consent du Seigneurs et communs et non pas les Seigneurs et communs avec le consent du Roy that is to say that the King makes Laws in Parliament by the assent of the Lords and Commoni and not the Lords and Commons by the assent of the King And for a further proof of this and for the clearing of this point that the Lords and Commons pretend to no more power in the making of laws than opportunity to propound and advise about them and on mature advise to give their several Assents unto them we need but look into the first Act of the Parliament in the third year of King Charles being a Recognition of some antient Rights belonging to the English subject An Act conceived according to the primitive form in way of a Petition to the Kings most excellent Majesty a Statut. 3 Carol. in which the Lords and Commons do most humbly pray as their Rights and Liberties that no such things as they complained of might be done hereafter that his Majesty would vouchsafe to declare that the Awards doings and proceedings to the prejudice of his people in any of the premises shall not be drawn hereafter into consequence or example and that he would be pleased to declare his Royal pleasure that in the point aforesaid all his Officers and Ministers should serve him according to the Laws and Statutes of this Realm To which although the King returned a fair general Answer assuring them that his Subjects should have no cause for the time to come to complain of any wrong or oppressions contrary to their just Righâ—s and Liberties yet this gave little satisfaction till he came in person and causing the Petition to be distinctly read by the Clerk of the Crown b Ibid. returned his Answer in these words Soit droit fait come est desire that is to say let right be done as is desired Which being the very formal words by which the said Petition and every clause and Article therein contained became to be a law and to have the force of an Act of Parliament and being there is nothing spoken of the concurrent authority of the Lords and Commons for the enacting of the same may serve instead of many Arguments for the proof of this that the Legislative power as we phrase it now is wholly and solely in the King although restrained in the exercise and use thereof by constant custome unto the counsel and consent of the Lords and Commons Le Roy veult c Smith de Rep. Angl. or the King will have it so is the imperative phrase by which the Propositions of the Lords and Commons are made Acts of Parliament And let the Lords and Commons agitate and propound what Laws they please for their ease and benefit as generally all Laws and Statutes are more for the ease and benefit of the Subject than the advantage of the King yet
versari The States saith he of England have a kind of authority but all the rights of Soveraignty and command in chief are at the will and pleasure of the Prince alone 12. And to say truth although the Lords Commons met in Parliament are of great authority especially as they have improved it in these later times yet were they never of such power but that the Kings have for the most part over-ruled them made them pliant conformable to their own desires and this not only by themselves but sometimes also by their Judges by their counsel often For such was the great care and wisdom of our former Kings as not to venture single on that numerous body of the two Houses of Parliament whereby the Soveraignty might be so easily overmatched but to take with them for Assistants as well the Lords of their Privy Counsel with whom they might advise in matters which concerned them in their Soveraign rights as their learned Counsel as they call them consisting of the Judges and most eminent Lawyers from whom they might receive instruction as the case required and neither do nor suffer wrong in point of Law and by both these as well as by the power and awe of their personal presence have they not only regulated but restrained their Parliaments And this is easily demonstrable by continual practice For in the Statute of Bigamie made in the fourth k 4 Ed. 1. year of King Edward 1. it is said expreâ—ly that in the presence of certain reverend Fathers Bishops of England and others of the Kings Counsel the Constitutions under-written were recited and after published before the King his Couusel forasmuch as all the Kings Counsel as well Justices as others did agree that they should be put in writing and observed In the Articuli super Chartas when the Great Charter was confirmed at the request of the Prelates Earls and Barons l 28 Ed. 1. c. 2. we find these two clauses the one in the beginning thus Nevertheless the King and his Counsel do not intend by reason of this Statâ—te to diminish the Kings right m Ibid. c. 20. c. The other in the close of all in these following words And notwithstanding all these things mentioned or any part of them both the King and his Counsel and all they which were present at the making of this Ordinance do will and intend that the right and prerogative of his Crown shall be saved in all things In the 27th of King Edward the 3d. n 27 Ed. 3. The Commons presenting a Petition to the King which the Kings Counsel did mislike were content thereupon to mend and explain their Petition the form of which Petition is in these words following To their most redoubted Soveraign Lord the King praying the Commons that whereas they have prayed him to be discharged of all manner of Articles of the Lyre c. which Petition seemeth to his Counsel to be prejudicial unto him and in disherison of his Crown if it were so generally granted his said Commons not willing nor desiring to demand things of him which should fall in disherison of him or of his Crown perpetually as of Escheats c. but of trespasses misprisions negligences and ignorances c. In the 13 of the reign of King Richard the 2d when the Commons did pray that upon pain of forfeiture the Chancellor or Counsel of the King should not after the end of the Parliament make any Ordinance against the Common law o 13 Rich. 2. the King by the advise of his Counsel answered Let it be used as it hath been used before this time so as the Regality of the King be saved for the King will save his Regalities as his Predecessors have done In the 4th year of King Henry 4. p 4 Hen. 4. when the Commons complained against Sub-poenae's and other writs grounded upon false suggestions the King upon the same advise returned this answer that he would give in charge to his Officers that they should abstain more than before time they had to send for his Subjects in that manner But yet saith he it is not our intention that our Officers shall so abstain that they may not send for our Subjects in matters and causes necessary as it hath been used in the time of our good Progenitors Finally not to bring forth more particulars in a case so clear it was the constant custome in all Parliaments till the Reign of King Henry 5. q Henr. 5 that when any Bill had passed both houses and was presented to the King for his Royal Assent the King by the advise of his Privy Counsel or his Counsel learned in the Laws or sometimes of both did use to crosse ouâ— and obliterate as much or as little of it as he pleased to leave out what he liked not and confirmed the rest that only which the King confirmed being held for Law And though in the succeeding times the Kings did graciously vouchsafe to pass the whole Bill in that form which the Houses gave it or to reject it wholly as they saw occasion yet still the Privy Counsel and the Judges and the Counsel learned in the Laws have and enjoy their place in the House of Peers aswell for preservation of the Kings rights and Royalties as for direction to the Lords in a point of Law if any case of difficulty be brought before them on which occasions the Lords are to demand the opinion of the Judges and upon their opinions to ground their Iudgement As for example In the Parliament 28 of Hen. 6. The Commons made sure that VVilliam de la Pole Duke of Suffolk should be committed to Prison for many treasons and other crimes r 28 Hen. 6 and thereupon the Lords demanded the opinion of the Judges whether he should be committed to Prison or not whose Answer was that he ought not to be committed in regard the Commons had not charged him with any particular offence but with generals only which opinion was allowed and followed In another Parliament of the said King held by Prorogation one Thomas Thorpe the Speaker of the House of Commons was in the Prorogation-time condemned in 1000 l. dammages upon an Action of Trespass at the sute of Richard Duke of York and was committed to Prison for execution of the same The parliament being reassembled the Commons made suâ—e to the King and Lords to have their Speaker delivered to them according to the privilege of Parliaments t The privilege of the Barons p. 15. the Lords demanded the opinion of the Judges in it and upon their Answer did conclude that the Speaker should still remain in Prison according to Law notwithstanding the privilege of Parliament and according to this resolution the Commons were commanded in the Kings name to choose one Tho Carleton for their Speaker which was done accordingly Other examples of this kind are exceeding obvious and for numbers infinite yet neither more
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
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
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
his Leiges Remember what was said before touching the writ of Summons in the said Kings time From this time till the last Parliament of King Charles there is no Kings reign of which we have not many though not all the Acts of Parliament still in print amongst us Nor is there any Act of Parliament in the printed Books to the enacting of the which the Bishops approbation and consent is not plainly specified either in the general Proeme set before the Acts or in the body of the Act it themself as by the books themselves doth at at large appear And to this kind of proof may be further added the form and manner of the writ by which the Prelates in all times have been called to Parliament being the very same verbatim with that which is directed to the temporal Barons save that the Spiritual Lords are commanded to attend the service in fide dilectione the temporal in fide homagio and of late times in fide ligeantia A form or copy of which summons as antient as King Johns time is still preserved upon Record directed nominatim to the Arch-bishop of Canterbury r V. Titles of hon pt 2. c. 5. and then a scriptum est similiter to the residue of the Bishops Abbats Earls and Barons Then adde the Privilege of Parliament for themselves and their servants during the time of the Sessions the liberty to kill and take one or two of the Kings Deer as they pass by any of his Forests in coming to the Parliament upon his commandement s Charta de Foresta cap. their enjoying of the same immunities which are and have been heretofore enjoyed by the Temporal Barons t Cambden in Britannia and tell me if the Bishops did not sit in Parliament by as good a title and have not sate there longer by some hundreds of years in their Predecessours as or than any of the Temporal Lords do sit or have sat there in their Progenitours and therefore certainly essential fundamental parts of the Court of Parliament 8. But against this it is objected first that some Acts have passed in Parliament to which the Prelates did not vote nor could be present in the House when the Bill was passed as in the sentencing to death or mutilation of a guilty person as doth appear both by the laws constitutions recognized at Clarendon and the following practice This hath been touched on before we told you then that this restraint was laid upon them not by the Common law of England or any Act or Ordinance of the House of Peers by which they were disabled to attend that service It was their own voluntary Act none compelled them to it but only out of a conformity to some former Canons ad sanctorum Canonum instituta x Antiqu. Brit. in Gul. Courtney as their own words are by which it was not lawfull for the Clergy men to be either Judges or Assessors in causa Sanguinis y Constitut Othobon fol. 45. And yet they took such care to preserve their Interests that they did not only give their Proxies for the representing of their persons but did put up their Protestation with a salvo jure for the preserving of their rights for the time to come jure Paritatis interessendi in dicto Parliamento z Antiqu. Britan. in Gul. Courtney quoad omnia singula ibi excercenda in omnibus semper salvo as the manner was Examples of the which are as full and frequent as their withdrawing themselves on the said occasions But then the main objection is that as some Acts have passed in Parliament absentibus Praelatis when the Bishops did absent themselves of their own accord so many things have been transacted in the Parliament excluso Clero when the Clergy have been excluded or put out of the House by some Act or Ordinance A precedent for this hath been found and published by such as envied that poor remnant of the Churches honour though possibly they will find themselves deceived in their greatest hope and that the evidence will not serve to evince the cause The Author of the Pamphlet entituled The Prerogative and practice of Parliaments first laying down his Tenet that many good Acts of Parliament may be made though the Arch-bishops and Bishops should not consent unto them a Printed at London 1628. p. 37. which is a point no man doubts of considering how easily their negative may be over-ruled by the far greater number in the House of Peers adds that at a Parliament holden at S. Edmundsbury 1196 in the reign of Ed 1. a Statute was made by the King the Barons and the Commons Excluso Clero for the proof herof refers us unto Bishop Jewell Now Bishop Jewell saith indeed that in a Parliament solemnly holden at St. Edmunsbury by King Edward 1. Anno 1296. the Arch-bishops and Bishops were quite shut forth and yet the Parliament held on and good and wholsome laws were there enacted the departing or absence of the Lords Spiritual notwithstanding b Defence of the Apolog. pt 6. c. 2. §. 1. In the Records whereof it is written thus Habito Rex cum Baronibus suis Parliamento Clero excluso statutum est c. the King keeping the Parliament with his Barons the Clergy that is to say the Arch-bishops and Bishops being shut forth it was enacted c. Wherein who doth not see if he hath any eyes that by this reason if the proof be good many good Acts of Parllament may be made though the Commons either out of absence or opposition should not consent unto them of whose consent unto that Statute whatsoever it was there is as little to be found in that Record as the concurrence of the Bishops But for Answer unto so much of this Record so often spoke of and applauded as concerns the Bishops we say that this if truly senced as I think it be not was the particular act of an angry and offended King against his Clergy not to be drawn into example as a proof or Argument against a most clear known and undoubted right The case stood thus A Constitution had been made by Boniface the 8th Ne aliqua collecta ex ecclesiasticis proventibus Regi aut cuivis alii Principi concedatur c Matth. Westm in Edw. 1. that Clergy men should not pay any tax or tallage unto Kings or Princes out of their Spiritual preferments without the leave of the Pope under pretence whereof the Clergy at this Parliament at S. Edmundsbury refused to be contributory to the Kings occasions when the Lay-Members of the House had been forwards in it The King being herewith much offended gives them a further day to confider of it adjourning the Parliament to London there to begin on the morrow after S. Hilaries day and in the mean time commanded all their Barns to be fast sealed up The day being come and the Clergy still
persisting in their former obstinacy excluso e Parliamento Clero Consilium Rex cum solis Baronibus populo habuit totumque statim Clerum protectione sua privavit d Antiqu. Brit. in R. Winchelsey the King saith the Historian excluding the Clergy out of the Parliament advised with his Barons and his people only what was best to be done by whose advise he put the Clergy out of his protection and thereby forced them to conform to his will and pleasure This is the summa totalis of the business and comes unto no more but this that a particular course was advised in Parliament on a particular displeasure taken by the King against the body of his Clergy then convened together for their particular refusal to contribute to his wants wars the better to reduce them to their natural duty Which makes not any thing at all against the right of Bishops in the House of Peers or for excluding them that House or for the validity of such Acts as are made in Parliament during the time of such exclusion especially considering that the King shortly after called his States together and did excuse himself for many extravagant Acts which he had committed e Walsingâ— in Edw. 1. anno 1297. against the liberties of the Subject whereof this was one laying the blame thereof on his great occasions and the necessities which the wars which he had abroad did impose upon him And so much as in Answer unto that Record supposing that the words thereof be rightly senced as I think they are not and that by Clerus there we are to understand Arch-bishops and Bishops as I think we be not there being no Record I dare boldly say it either of History or Law in which the word Clerus serves to signifie the Arch-bishops and Bishops exclusive of the other Clergy or any writing whatsoever wherein it doth not either signifie the whole Clergy generally or the inferiour Clergy only exclusive of the Arch-bishops Bishops and other Prelates Therefore in answer unto that so much applauded Cavil of Excluso Clero from what Record soever it either hath been hitherto or shall hereafter be produced I shall propose it to the consideration of the sober Reader whether by Clerus in that place or in any other of that kind and time we must not understand the inâ—eriour Clergy as they stand distinguished in the Laws from my Lords the Bishops For howsoever it be true that Clerus in the ecclesiastical notion of the word doth signifie the whole Clergy generally Arch-bishops Bishops Priests and Deacons yet in the legal notion of it it stands distinguished from the Prelates and signifieth only the inferiour Clergy Thus do we find the Ecclesiasticks of this Realm divided into Prelates men of Religion and other Clerks 3. Edw. 1. c. 1. the Seculars either into Prelates and Clerks 9 Edw. 2. c. 3. 1 Rich. 2. c. 3. or Prelates and Clerks beneficed 18 Edw. 3. c. 2. or generally into the Prelates and the Clergy 9 Edw. 2. c. 15. 14 Edw. 3. c. 1 3. 18 Edw. 3. 2. 7. 25 Edw. 3. 2. 4. 8 Hen. 6. c. 1. and in all acts and grants of Subsidies made by the Clergy to the Kings or Queens of England since the 32 of Henry 8. when the Clergy subsidies first began to be confirmed by act of Parliament So also in the Latin ideom which comes neerest home Nos Praelati Clerus in the submission of the Clergy to King Henry 8. f Regist Waâ—ham and in the sentence of divorce against Anne of Cleve g Regist Cranmer and in the instrument of the grant of the Clergy subsidies presented to the Kings of England ever since the 27 of Queen Elizabeth and in the form of the Certificates per h Statut. 8 Eliz. c. 17. ever since Praelatâ—s Clerum returned by every Bishop to the Lord High Treasurer and finally Nos Episcopi Clerus Cantuariensis Provinciae in hac Synodo more nostro solito dum Regni Parliamentum celebratur congregati i Stat. 1 Phil. Mar. c. 8. in the petition to K. K. Phillip and Mary about the confirmation of the Abby lands to the Patentees So that though many Statutes have been made in these later times excluso Clero the Clergy that is to say the inferiour Clergy being quite shut out and utterly excluded from those publick Counsails yet this proves nothing to the point that auy act of Parliament hath been counted good to which the Bishops were not called or at the making of which Act they either were shut out by force or excluded by cunning As for Kilbancies book which that Author speaks of k Prerâ—g pract of Paâ—l p. 38. in which the Justices are made to say 7 H. 8. that our Soveraign Lord the King may well hold his Parliament by him and his Temporal Lords and by the Commons also without the Spiritual Lords for that the Spiritual Lords have not any place in the Parliament chamber by reason of their Spiritualties but by reason of their Temporal possessions besides that it is only the opinion of a privat man of no authority or credit in the Common wealth and contrary to the practice in the Saxon times in which the Bishops sate in Parliament as Spiritual persons not as Barons the reason for ought I can see will serve as well to pretermit all or any of the Temporal Lords as it can serve to pretermit or exclude the Bishops the Temporal Lords being called to Parliament on no other ground than for the Temporal possessions which they hold by Barony 9. If it be said that my second answer to the argument of Excluso Clero supposeth that the inferiour â—lergy had some place in Parliament which being not to be supposed makes the Answer void I shall crave leave to offer some few observations unto the consideration of the sober and impartial Reader by which I hope to make that supposition probable and perhaps demonstrative First then we have that famous Parliament call it Concilium magnum or Concilium commune or by what other name soever the old writers called it summoned by King Ethelbert anno 605. which my l Concil Hen. Spelm. Author calleth Commune concilium tam Cleri quam Populi where Clerus comprehendeth the body of the Clergy generally aswell the Presbyters as the Bishops as the word populus doth the lay-subject generally as well Lords as Commons or else the Lords and Commons one of the two must be needs left out And in this sense we are to understand these words in the latter times as where we read that Clerus m Matth. Paris in Hen. 1. Angliae populus Vniversus were summoned to appear at Westminster at the Coronation of King Henry the first where divers Laws were made and declared subscribed by the Arch-bishops Bishops and others of the principal persons that were there assembled that Clero populo
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
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
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
made for the common use and benefit of the Subject they are left at liberty and may proceed in governing the people given by God unto them according to their own discretion and the advice of their Counsel New Laws are chiefly made for the Subjects benefit at their desire on their importunate requests for their special profit not one in twenty nay I dare boldly say not one in an hundred made for the advantage of the King either in the improvement of his power or the increase of his Revenue Look over all the Acts of Parliament from the beginning of the reign of King Henry 3. to the present time and tell me he that can if he finds it otherwise Kings would have little use of Parliaments and less mind to call them if nothing but the making of new Laws were the matter aimed at And as for raising monies and imposing taxes it either must suppose the Kings to be always unthrifts that they be always indigent and necessitous and behind-hand with the world which are the ordinary effects of ill husbandry or else this argument is lost and of little use For if our Kings should husband their estates to the best advantage and make the best benefit of such escheats and forfeitures conâ—iscations as day by day do fall unto them If they should follow the example of K. Henry 7. and execute the penal Laws according to the power which those Laws have given them and the trust reposed in them by their People if they should please to examine their revenue and proportion their expence to their comings in there would be litle need of subsidies and supplies of money more than the ordinary aids and impositions upon Merchandize which the Law alloweth of and the known rights of Sovereignty backed by prescription and long custom have asserted to them So that it is by Accident not by right and nature that the Parliament hath any power or opportunity to restrain their King in this particular for where there is no need of asking there is no occasion of denying by consequence no restraint upon no baffle or affronting offered to the Regal power And yet the Soveraign need not fear if he be tollerably carefull of his own estate that any reasonable demand of his in these mony matters will meet with opposition or denial in his Houses of Parliament For whilest there are so many Acts of Grace and favour to be done in Parliament as what almost in every Parliament but an enlargement of the Kings favours to his people and that none can be done in Parliament but with the Kings fiat and consent there is no question to be made but that the two Houses of Parliament will far sooner choose to supply the King as allwise Parliaments have done than rob the Subject of the benefit of his grace and favours which is the best fruit they reap from Parliaments Finally whereas it is objected but I think it in sport that the old Lord Burleigh used to say that he knew not what a Parliament in England could not do and that King Iames once said in a Parliament that then there were 500 Kings which words were took for a Concession that all were Kings as well as he in a time of Parliament they who have given us these Objections do either mis-understand their Authors or abuse themselves For what the Lord Burleigh said of Parliaments though it be more than the wisest man alive can justifie he spake of Parliaments according as the word is used in its proper sense not for the two Houses or for either of them exclusive of the Kings presence and consent but for the supreme Court for the highest Judicatory consisting of the Kings most excellent Majesty the Lords Spiritual and Temporal and the Representees of the Commons and then it will not serve for the turn intended And what King James said once in jest though I have often heard it used in earnest upon this occasion was spoke only in derision of some daring Spirits who laying by the modesty of their Predecessors would needs be looking into the Prerogative or finding errors and mistakes in the present Government or medling with those Arcana imperii which former Parliaments beheld at distance with the eye of reverence But certainly King James intended nothing lesse than to acknowledg a co-ordinative Soveraignty in the two Houses of Parliament or to make them his Co-partners in the Regal power His carriage and behaviour towards them in the whole course of his Government clearly shews the contrary there never being prince more jealous in the points of Soveraignty nor more uncapable of a Rival in those points than he 14. But yet the main objection which we may call the Objection paramount doth remain unanswered For if the three Estates convened in Parliament or any other popular Magistrate whom Calvin dreams of be ordaned by the Word of God as Guardians of the peoples Liberties and therefore authorised to moderate and restrain the power of Kings as often as they shall invade or infringe those liberties as Calvin plainly saies they were or that they know themselves to be ordained by Gods word to that end and purpose cujus se lege Dei Tutores positos esse norunt as he saies they do then neither any discontinuance or non-usage on their parts nor any prescription to the contrary alledged by Kings and supreme Princes can hinder them from resuming and exercising that Authority which God hath given them whensoever they shall finde a fit time for it But first I would fain learn of Calvin in what part of the Word of God we shall finde any such Authority given to those popular Magistrates by what name soever they are called in their several Countreys as he tels us of Not in the old Testament I am sure though in the institution of the seventy Elders there be some hopes of it For when Moses first ordained those Elders it was not to diminish any part of that power which was vosted in him but to ease himself of some part of the burthen which did lie upon him And this appears plainly by the 18. Chapter of the Book of Exodus For when it was observed by Jethro his Father in Law that he attended the businesses of the people from morning till night he told him plainly ultra vâ—res sâ—as negotium esse that the burthen was too heavy for him vers 18. and therefore that he should choose some Under-officers and place them over Thousands over Hundreds and ever Fifties and over Tens Vers 21. Leviusque sit tibi partito in alios onere that so it might be the easier for him those officers bearing some part of the burthen with him Yet so that these inferior Officers should only judge in matters of inferior nature the greater matters being still reserved to his own Tribunal Which counsel as it was very well approved by Moses so was it given by Jethro and approved by Moses with reference to the