been likewise thereupon allowed and ratified also by Precedents in the Court of Chancery In the 39 of Eliz. Sir Edw. Hobby and Mr. Brograve Attorney of the Dutchy were sent by the House to the Lord Keeper in the name of the whole House to require his Lordship to revoke two Writs of Subpoena's which were served upon M. Th. Knevit a Member of the House since the Beginning of Parliament The Lord Keeper demanded of them whether they were appointed by any advised Consideration of the House to deliver this Message unto him with the word Required in such manner as they had done or no they answered his Lordship yea his Lordship then said as he thought reverently and honourably of the House and of their Liberties and Privileges of the same so to revoke the said Subpoena's in that sort was to restrain Her Majesty in Her greatest Power which is Justice in the Place wherein he serveth under Her and therefore he concluded As they had required him to revoke his Writ so he did require to deliberate Upon the 22 of February being Wednesday 18 Eliz. Report was made by Mr. Attorney of the Dutchy upon the Committee for the delivering of one Mr. Hall's man that the Committee found no Precedent for setting at large by the Mace any Person in Arrest but only by Writ and that by divers Precedents of Records perused by the said Committee it appeareth that every Knight Citizen or Burgess which doth require Privilege hath used in that case to take a Corporal Oath before the Lord Chancellor or Lord Keeper that the party for whom such Writ is prayed Came up with him and was his Servant at the time of the Arrest made Thereupon M. Hall was moved by the House to repair to the Lord Keeper and make Oath and then take a Warrant for a Writ of Privilege for his Servant It is accounted by some to be a Privilege of Parliament to have power to Examine Misdemeanours of Courts of Justice and Officers of State yet there is not the meanest Subject but hath liberty upon just cause to question the misdemeanour of any Court or Officer if he suffer by them there is no Law against him for so doing so that this cannot properly be called a Privilege because it is not against any publick Law It hath been esteemed a great Favour of Princes to permit such Examinations For when the Lords were displeased with the Greatness of Pierce Gaveston it is said that in the next Parliament the whole Assembly obtain of the King to draw Articles of their Grievances which they did Two of which Articles were First that all Strangers should be banished the Court and Kingdom of which Gaveston was one Secondly that the business of the State should be treated of by the Councel of the Clergy and Nobles In the Reign of King Henry the sixth one Mortimer an Instrument of the Duke of York by promising the Kentish men a Reformation and freedom from Taxations wrought with the people that they drew to a Head and made this Mortimer otherwise Jack Cade their Leader who styled himself Captain Mend-all He presents to the Parliament the Complaints of the Commons and he petitions that the Duke of York and some other Lords might be received by the King into favour by the undue Practices of Suffolk and his Complices commanded from his Presence and that all their Opposites might be banished the Court and put from their Offices and that there might be a general amotion of corrupt Officers These Petitions are sent from the Lower House to the Vpper and from thence committed to the Lords of the Kings Privy Councel who having examined the particulars explode them as frivolous and the Authors of them to be presumptuous Rebels Concerning Liberty or freedom of Speech I find that at a Parliament at Black Friars in the 14 of Henry the Eighth Sir Tho. More being chosen Speaker of the House of Commons He first disabled himself and then petitioned the King that if in Communication and Reasoning any man in the Commons House should speak more largely than of Duty they ought to do that all such Offences should be pardoned and to be entred of Record which was granted It is observable in this Petition that Liberty or Freedom of Speech is not a Power for men to speak what they will or please in Parliament but a Privilege not to be punished but pardoned for the Offence of speaking more largely than in Duty ought to be which in an equitable Construction must be understood of rash unadvised ignorant or negligent Escapes and Slips in Speech and not for wilful malicious Offences in that kind And then the Pardon of the King was desired to be upon Record that it might be pleaded in Bar to all Actions And it seemeth that Ric. Strood and his Complices were not thought sufficiently protected for their free Speech in Parliament unless their Pardon were confirmed by the King in Parliament for there is a printed Statute to that Purpose in Hen. Eighth's time Touching the freedom of Speech the Commons were warned in Qu. Eliz. days not to meddle with the Queens Person the State or Church-government In her time the Discipline of the Church was so strict that the Litany was read every morning in the House of Commons during the Parliament and when the Commons first ordered to have a Fast in the Temple upon a Sunday the Queen hindred it 21 Jan. Saturday 23 Eliz. the Case is thus reported Mr. Peter Wentworth moveth for a Publick set Fast and for a Preaching every morning at 7 of the clock before the House sate the House was divided about the Fast 115 were for it and an 100 against it it was ordered that as many of the House as conveniently could should on Sunday fortnight after Assemble and meet together in the Temple Church there to hear Preaching and to joyn together in Prayer with Humiliation and Fasting for the Assistance of God's Spirit in all their Consultations during this Parliament and for the Preservation of the Queens Majesty and Her Realms And the Preachers to be appointed by the Privy Councel that were of the House that they may be Discreet not medling with Innovation or Vnquietness This Order was followed by a Message from Her Majesty to the House declared by Mr. Vice-chamberlain that Her Highness had a great Admiration of the rashness of this House in committing such an apparent Contempt of her express Command as to put in execution such an Innovation without Her privity or pleasure first known Thereupon Mr. Vice-chamberlain moved the House to make humble submission to Her Majesty acknowledging the said Offence and Contempt craving a Remission of the same with a full purpose to forbear the Committing of the like hereafter and by the Consent of the whole House Mr. Vice-Chamberlain carried their Submission to her Majesty 35 Eliz. Mr. Peter Wentworth and Sir Henry Bromley delivered a Petition to the Lord Keeper desiring the Lords
not then divided into Shires On the contrary there be of our Historians who do affirm that Henry the First caused the Commons first to be Assembled by Knights and Burgesses of their own Appointment for before his Time only certain of the Nobility and Prelates of the Realm were called to Consultation about the most Important Affairs of State If this Assertion be true it seems a meer matter of Grace of this King and proves not any Natural Right of the People Originally to be admitted to chuse their Knights and Burgesses of Parliament though it had been more for the Honour of Parliaments if a King whose Title to the Crown had been better had been Author of the Form of it because he made use of it for his unjust Ends. For thereby he secured himself against his Competitor and Elder Brother by taking the Oaths of the Nobility in Parliament and getting the Crown to be setled upon his Children And as the King made use of the People so they by Colour of Parliament served their own turns for after the Establishment of Parliaments by strong hand and by the Sword they drew from him the Great Charter which he granted the rather to flatter the Nobility and People as Sir Walter Raleigh in his Dialogue of Parliaments doth affirm in these words The great Charter was not Originally granted Legally and Freely for Henry the First did but Vsurp the Kingdom and therefore the better to assure himself against Robert his Elder Brother he flattered the Nobility and People with their Charters yea King John that Confirmed them had the like respect for Arthur Duke of Britain was the undoubted Heir of the Crown upon whom King John Vsurped and so to conclude these Charters had their Original from Kings de facto but not de jure the Great Charter had first an obscure Birth by Vsurpation and was secondly fostered and shewed to the World by Rebellion 15. A third consideration must be that in the former Parliaments instituted and continued since King Henry the First 's time is not to be found the Usage of any natural Liberty of the People for all those Liberties that are claimed in Parliament are the Liberties of Grace from the King and not the Liberties of Nature to the People for if the Liberty were natural it would give Power to the Multitude to assemble themselves When and Where they please to bestow Soveraignty and by Pactions to limit and direct the Exercise of it Whereas the Liberties of Favour and Grace which are claimed in Parliaments are restrained both for Time Place Persons and other Circumstances to the Sole Pleasure of the King The People cannot assemble themselves but the King by his Writs calls them to what place he pleases and then again scatters them with his Breath at an instant without any other Cause shewed than his Will Neither is the whole summoned but only so many as the King's Writs appoint The prudent King Edward the First summoned always those Barons of ancient Families that were most wise to his Parliament but omitted their Sons after their Death if they were not answerable to their Parents in Understanding Nor have the whole People Voices in the Election of Knights of the Shire or Burgesses but only Freeholders in the Counties and Freemen in the Cities and Burroughs yet in the City of Westminster all the House-holders though they be neither Freemen nor Free-holders have Voices in their Election of Burgesses Also during the time of Parliament those Privileges of the House of Commons of freedom of Speech power to punish their own Members to examine the Proceedings and Demeanour of Courts of Justice and Officers to have access to the King's Person and the like are not due by a-any Natural Right but are derived from the Bounty or Indulgence of the King as appears by a solemn Recognition of the House for at the opening of the Parliament when the Speaker is presented to the King he in the behalf and name of the whole House of Commons humbly craves of His Majesty That He would be pleased to grant them their Accustomed Liberties of freedom of Speech of access to his Person and the rest These Privileges are granted with a Condition implyed That they keep themselves within the Bounds and Limits of Loyalty and Obedience for else why do the House of Commons inflict Punishment themselves upon their own Members for transgressing in some of these points and the King as Head hath many times punished the Members for the like Offences The Power which the King giveth in all his Courts to his Judges or others to punish doth not exclude Him from doing the like by way of Prevention Concurrence or Evocation even in the same point which he hath given in charge by a delegated Power for they who give Authority by Commission do always retain more than they grant Neither of the two Houses claim an Infallibility of not Erring no more than a General Council can It is not impossible but that the greatest may be in Fault or at least interested or engaged in the Delinquency of one particular Member In such Cases it is most proper for the Head to correct and not to expect the Consent of the Members or for the Parties peccant to be their own Judges Nor is it needful to confine the King in such Cases within the Circle of any one Court of Justice who is Supream Judg in all Courts And in rare and new Cases rare and new Remedies must be sought out for it is a Rule of the Common Law In novo Casu novum Remedium est apponendum and the Statute of Westminst 2. cap. 24. giveth Power even to the Clarks of the Chancery to make New Forms of Writs in New Cases lest any Man that came to the King's Court of Chancery for help should be sent away without Remedy A President cannot be found in every Case and of things that happen seldom and are not common there cannot be a Common Custom Though Crimes Exorbitant do pose the King and Council in finding a President for a Condigne Punishment yet they must not therefore pass unpunished I have not heard that the People by whose Voices the Knights and Burgesses are chosen did ever call to an account those whom they had Elected they neither give them Instructions or Directions what to say or what to do in Parliament therefore they cannot punish them when they come home for doing amiss If the People had any such Power over their Burgesses then we might call it The Natural Liberty of the People with a mischief But they are so far from punishing that they may be punished themselves for intermedling with Parliamentary Business they must only chuse and trust those whom they chuse to do what they list and that is as much liberty as many of us deserve for our irregular Elections of Burgesses 15 A fourth point to be consider'd is That in Parliament all Statutes or Laws are made properly by
the said Statutes should be duly kept 2. That the Sheriffs shall deliver Precepts to Mayors and Bailiffs to chuse Citizens and Burgesses 3. The Penalty of 100 l. for a Sheriff making an untrue Return concerning the election of Knights Citizens and Burgesses 4. The Penalty of 40 l. for Mayors or Bailiffs making untrue Returns 5. Due Election of Knights must be in the full County-Court between the Hours of Eight and Eleven before noon 6. The Party must begin his Suit within 3 Moneths after the Parliament began 7. Knights of the Shire shall be notable Knights of the County or such notable Esquires or Gentlemen born of the said Counties as shall be able to be Knights and no man to be such Knight which standeth in the Degree of a Yeoman and under The last thing I observe in the Writ for Election of Members for Parliament is That by the express words of the Writ Citizens and Burgesses for the Parliament were eligible at the County-Court as well as Knights of the Shire and that not only Freeholders but all others whosoever were present at the County-Court had Voices in such Elections See the Stat. 7 Hen. 4. cap. 15. I have the longer insisted on the Examination of the Writ being the Power Actions of the House of Commons are principally justified by the Trust which the Free-holders commit unto them by virtue of this Writ I would not be understood to determine what Power the House of Commons doth or may exercise if the King please I confine my self only to the Power in the Writ I am not ignorant that King Hen. 7. in the Cause of the Duke of Britain and King James in the Business of the Palatinate asked the Councel of the House of Commons and not only the House of Commons but every Subject in particular by Duty and Allegiance is bound to give his best Advice to his Sovereign when he is thought worthy to have his Councel asked 13 Edw. 3. nu 10. All the Merchants of England were summoned by Writ to appear at Westminster in proper Person to confer upon great business concerning the King's Honour the Salvation of the Realm and of themselves In Passages of publick Councel it is observable saith Sir Rob. Cotton that in ancient times the Kings of England did entertain the Commons with weighty Causes thereby to apt and bind them to a readiness of Charge and the Commons to shun Expence have warily avoided to give Advice 13 Edw. 3. The Lords and Commons were called to consult how the domestick Quiet may be preserved the Marches of Scotland defended and the Sea secured from Enemies The Peers and Commons having apart consulted the Commons desired Not to be charged to Councel of things of which they had no Cognisance de queux ils n' ont pas de Cognisance 21 Edw. 3. Justice Thorp declaring to the Peers and Commons that the French War began by their Advice the Truce after by their Assent accepted and now ended the Kings Pleasure was to have their Counsel in the Prosecution the Commons being commanded to assemble themselves and when they were agreed to give notice to the King and the Lords of the Councel after four days Consultation Humbly desire of the King that he would be advised therein by the Lords and others of more Experience than themselves in such Affairs 6 Ric. 2. The Parliament was called to consult whether the King should go in Person to rescue Gaunt or send an Army The Commons after two days Debate crave a Conference with the Lords and Sir Thomas Puckering their Speaker protests that Councels for War did aptly belong to the King and His Lords yet since the Commons were commanded to give their Advice they humbly wished a Voyage by the King 7 Ric. 2. At the second Session the Commons are willed to Advise upon View of Articles of Peace with the French whether War or such Amity should be accepted they modestly excuse themselves as too weak to Counsel in so weighty Causes But charged again as they did tender their Honour and the Right of the King they make their Answer giving their Opinions rather for Peace than War For fuller Manifestation of what hath been said touching the Calling Election and Power of the Commons in Parliament it is behooveful to observe some Points delivered by Sir Edw. Coke in his Treatise of the Jurisdiction of Parliaments where First he fairly begins and lays his Foundation that the High Court of Parliament consisteth of the Kings Majesty sitting there and of the three Estates 1. The Lords Spiritual 2. The Lords Temporal 3. And the Commons Hence it is to be gathered that truly and properly it cannot be called the High Court of Parliament but whilst the King is sitting there in Person so that the Question now a-days whether the Parliament be above the King is either false or idle false if you exclude and idle if you include the King's Person in the word Parliament The case truly put and as it is meant is whether the three Estates or which is all one the Lords and Commons assembled in Parliament be above the King and not whether the King with the three Estates be above the King It appears also that they are much mistaken who reckon the King one of the three Estates as Mr. Pryn pag. 20. and many others do for the three Estates make the Body and the King is Caput Principium Finis Parliamentor ' as confesseth Sir Edw. Coke Secondly Sir Edw. Coke delivers That certain it is both Houses at first sate togther and that it appears in Edward the Third's time the Lords and Commons sate together and the Commons had no continual Speaker If he mean the Lords and Commons did sit and Vote together in one Body few there be that will believe it because the Commons never were wont to lose or forego any of their Liberties or Privileges and for them to stand now with their Hats in their hands which is no Magistratical Posture there where they were wont to sit and Vote is an alteration not imaginable to be endured by the Commons It may be in former times when the Commons had no constant Speaker they were oft and perhaps for the most part in the same Chamber and in the presence of the Lords to hear the Debates and Consultations of the Great Councel but not to sit and Vote with them for when the Commons were to Advise among themselves the Chapter-house of the Abby of Westminster was oft-times their place to meet in before they had a setled House and their meetings not being very frequent may be the reason I conceive why the name of the House of Commons is not of such great Antiquity or taken notice of but the House of Lords was only called the parliament-Parliament-House and the Treatise called Modus tenendi Parliamentum speaks of the Parliament as but of one House only The House where now the Commons sit in Westminster is
the King a Subject Councel loseth the name of Counsel and becomes a Command if it put a Necessity upon the King to follow it such Imperious Councels make those that are but Counsellors in name to be Kings in Fact and Kings themselves to be but Subjects We read in Sir Robert Cotton that towards the end of the Saxons and the first times of the Norman Kings Parliaments stood in Custom-grace fixed to Easter Whitsuntide and Christmas and that at the Kings Court or Palace Parliaments sate in the Presence or Privy Chamber from whence he infers an Improbability to believe the King excluded His own Presence and unmannerly for Guests to bar him their Company who gave them their Entertainment And although now a-days the Parliament sit not in the Court where the Kings houshold remains yet still even to this day to shew that Parliaments are the Kings Guests the Lord Steward of the Kings Houshold keeps a standing Table to entertain the Peers during the sitting of Parliament and he alone or some from or under him as the Treasurer or Comptroller of the Kings Houshold takes the Oaths of the Members of the House of Commons the first day of the Parliament Sir Richard Scroop Steward of the Houshold of our Sovereign Lord the King by the Commandment of the Lords sitting in full Parliament in the Great Chamber put J. Lord Gomeniz and William Weston to answer severally to Accusations brought against them The Necessity of the King's Presence in Parliament appears by the Desire of Parliaments themselves in former times and the Practice of it Sir Robert Cotton proves by several Precedents whence he concludes that in the Consultations of State and Decisions of private Plaints it is clear from all times the King was not only present to advise but to determine also Whensoever the King is present all Power of judging which is derived from His ceaseth The Votes of the Lords may serve for matter of Advice the final Judgment is only the Kings Indeed of late years Queen Mary and Queen Elizabeth by reason of their Sex being not so fit for publick Assemblies have brought them out of Use by which means it is come to pass that many things which were in former times acted by Kings themselves have of late been left to the Judgment of the Peers who in Quality of Judges extraordinary are permitted for the Ease of the King and in his absence to determine such matters as are properly brought before the King Himself sitting in Person attended with His great Councel of Prelates and Peers And the Ordinances that are made there receive their Establishment either from the Kings Presence in Parliament where his Chair of State is commonly placed or at least from the Confirmation of Him who in all Courts and in all Causes is Supreme Judge All Judgment is by or under Him it cannot be without much less against his Approbation The King only and none but He if he were able should judge all Causes saith Bracton that ancient Chief Justice in Hen. 3. time An ancient Precedent I meet with cited by Master Selden of a judicious Proceeding in a Criminal Cause of the Barons before the Conquest wherein I observe the Kings Will was that the Lords should be Judges in the Cause wherein Himself was a Party and He ratified their Proceeding The case was thus Earl Godwin having had a Trial before the Lords under King Hardicanute touching the Death of Alfred Son to King Ethelbert and Brother to him who was afterward Edward the Confessor had fled out of England and upon his Return with hope of Edward the Confessor's Favour he solicited the Lords to intercede for him with the King who consulting together brought Godwin with them before the King to obtain his Grace and Favour But the King presently as soon as he beheld him said Thou Traytor Godwin I do appeal thee of the Death of my Brother Alfred whom thou hast most Trayterously slain Then Godwin excusing it answered My Lord the King may it please your Grace I neither betrayed nor killed your Brother whereof I put my self upon the Judgment of your Court Then the King said You noble Lords Earls and Barons of the Land who are my Liege men now gathered here together and have heard my Appeal and Godwin's Answer I will that in this Appeal between us ye decree right Judgment and do true Justice The Earls and Barons treating of this among themselves were of differing Judgments some said that Godwin was never bound to the King either by Homage Service or Fealty and therefore could not be his Traytor and that he had not slain Alfred with his own hands others said that neither Earl nor Baron nor any other Subject of the King could wage his war by Law against the King in his Appeal but must wholly put himself into the King's Mercy and offer competent Amends Then Leofric Consul of Chester a good man before God and the World said Earl Godwin next to the King is a man of the best Parentage of all England and he cannot deny but that by his Counsel Alfred the King's Brother was slain therefore for my part I consider that He and his Son and all we twelve Earls who are his Friends and Kinsmen do go humbly before the King laden with so much Gold and Silver as each of us can carry in our Arms offering him That for his Offence and humbly praying for Pardon And he will pardon the Earl and taking his Homage and Fealty will restore him all his Lands All they in this form lading themselves with Treasure and coming to the King did shew the Manner and Order of their Consideration to which The King not willing to contradict did ratifie all that they had judged 23 Hen. 2. In Lent there was an Assembly of all the Spiritual and Temporal Barons at Westminster for the determination of that great Contention between Alfonso King of Castile and Sancho King of Navarre touching divers Castles and Territories in Spain which was by comprise submitted to the Judgment of the King of England And The King consulting with his Bishops Earls and Barons determined it as he saith Himself in the first Person in the Exemplification of the Judgment 2. Of King John also that great Controversie touching the Barony that William of Moubray claimed against William of Stutvil which had depended from the time of King Hen. 2. was ended by the Council of the Kingdom and Will of the King Concilio Regni Voluntate Regis The Lords in Parliament adjudge William de Weston to Death for surrendring Barwick Castle but for that Our Lord the King was not informed of the manner of the Judgment the Constable of the Tower Allen Bruxal was commanded safely to keep the said William until he had other Commandment from our Lord the King 4 Ric. 2. Also the Lords adjudged John Lord of Gomentz for surrendring the Towns and Castles of Ardee and for
and Florence Becket should sue no further in their cause against Alice Radley Widow for Lands in Wolwich and Plumsted in Kent forasmuch as the matter had been heard first before the Councel of Edw. 4. after that before the President of the Requests of that King Hen. 7. and then lastly before the Councel of the said King 1 H. 7. In the time of Hen. 3. an Order or Provision was made by the Kings Councel and it was pleaded at the Common Law in Bar to a Writ of Dower the Plaintiffs Attorney could not deny it and thereupon the Judgment was ideo sine die It seems in those days an Order of the Kings Councel was either parcel of the Common Law or above it Also we may find the Judges have had Regard that before they would resolve or give Judgment in new Cases they consulted with the King 's Privy Councel In the case of Adam Brabson who was assaulted by R. W. in the Presence of the Justices of Assise at Westminster the Judges would have the Advice of the Kings Councel for in a like Case because R. C. did strike a Juror at Westminster which passed against one of his Friends It was adjudged by all the Councel that his right hand should be cut off and his Lands and Goods forfeited to the King Green and Thorp were sent by the Judges to the Kings Councel to demand of them whether by the Stat. of 14 Edw. 3.16 a word may be amended in a Writ and it was answered that a word may be well amended although the Stat. speaks but of a Letter or Syllable In the Case of Sir Thomas Ogthred who brought a Formedon against a poor man and his Wife they came and yielded to the Demandant which seemed suspitious to the Court whereupon Judgment was staid and Thorp said that in the like Case of Giles Blacket it was spoken of in Parliament and we were commanded that when any like should come we should not go to Judgment without good Advice therefore the Judges Conclusion was Sues au counsell comment ils voilent que nous devomus faire nous volums faire autrement ment en cest case sue to the Councel and as they will have us to do we will do and otherwise not in this Case 39 Edw. 3. Thus we see the Judges themselves were guided by the Kings Councel and yet the Opinions of Judges have guided the Lords in Parliament in Point of Law All the Judges of the Realm Barons of Exchequer of the Quoif the Kings learned Councel and the Civilians Masters of Chancery are called Temporal Assistants by Sir Edw. Coke and though he deny them Voices in Parliament yet he confesseth that by their Writ they have power both to treat and to give Counsel I cannot find that the Lords have any other Power by their Writ the Words of the Lords Writ are That you be present with us the Prelates Great men and Peers to treat and give your Counsel The Words of the Judges Writ are That you be present with Vs and others of the Councel and sometimes with Vs only to treat and give your Counsel The Judges usually joined in Committees with the Lords in all Parliaments even in Queen Eliz. Reign until her 39th Year and then upon the 7th of November the Judges were appointed to attend the Lords And whereas the Judges have liberty in the upper House it self upon leave given them by the L. Keeper to cover themselves now at Committees they sit always uncovered The Power of Judges in Parliament is best understood if we consider how the judicial Power of Peers hath been exercised in matter of Judicature we may find it hath been the Practice that though the Lords in the Kings Absence give Judgment in Point of Law yet they are to be directed and regulated by the Kings Judges who are best able to give Direction in the difficult Points of the Law which ordinarily are unknown to the Lords And therefore if any Errour be committed in the Kings Bench which is the highest ordinary Court of Common Law in the Kingdom that Errour must be redressed in Parliament And the manner is saith the Lord Chancellor Egerton If a Writ of Errour be sued in Parl. upon a Judgment given by the Judges in the Kings Bench the Lords of the higher House alone without the Commons are to examine the Errours The Lords are to proceed according to the Law and for their Judgments therein they are to be informed by the Advice and Councel of the Judges who are to inform them what the Law is and to direct them in their Judgment for the Lords are not to follow their own Discretion or Opinion otherwise 28 Hen. 6. the Commons made Sute that W. de la Pool D. of Suffolk should be committed to Prison for many Treasons and other Crimes the Lords of the higher House were doubtful what Answer to give the Opinion of the Judges was demanded their Opinion was that he ought not to be committed for that the Commons did not charge him with any particular Offence but with general Reports and Slanders this Opinion was allowed 31 Hen. 6. A Parliament being prorogued in the Vacation the Speaker of the House of Commons was condemned in a thousand Pounds Damages in an Action of Trespass and committed to Prison in Execution for the same when the Parliament was re-assembled the Commons made Sute to the King and Lords to have their Speaker delivered The Lords demanded the Opinion of the Judges whether he might be delivered out of Prison by Privilege of Parliament upon the Judges Answer it was concluded that the Speaker should remain in Prison according to the Law notwithstanding the Privilege of Parliament and that he was Speaker which Resolution was declared to the Commons by Moyle the Kings Serjeant at Law and the Commons were commanded in the Kings name by the Bishop of Lincoln in the absence of the Arch-bishop of Canterbury then Chancellor to chuse another Speaker 7 Hen. 8. A Question was moved in Parliament Whether Spiritual Persons might be convented before Temporal Judges for Criminal Causes there Sir John Fineux and the other Judges delivered their Opinion that they might and ought to be and their Opinion allowed and maintained by the King and Lords and Dr. Standish who before had holden the same Opinion was delivered from the Bishops I find it affirmed that in Causes which receive Determination in the House of Lords the King hath no Vote at all no more than in other Courts of ministerial Jurisdiction True it is the King hath no Vote at all if we understand by Vote a Voice among others for he hath no partners with him in giving Judgement But if by no Vote is meant He hath no Power to judge we despoil him of his Sovereignty It is the chief Mark of Supremacy to judge in the highest Causes and last Appeals This the Children of Israel full well understood when they petitioned for a King
thereupon the House resolved to have no Conference with the Lords but to give their Lordships most humble and dutiful Thanks with all Reverence for their favourable and courteous Offer of Conference and to signifie that the Commons cannot in those Cases of Benevolence or Contribution joyn in Conference with their Lordships without Prejudice to the Liberties and Privileges of the House and to request their Lordships to hold the Members of this House excused in their Not assenting to their Lordships said Motion for Conference for that so to have Assented without a Bill had been contrary to the Liberties and Privileges of this House and also contrary to the former Precedents of the same House in like cases had This Answer delivered to the Lords by the Chancellor of the Exchequer their Lordships said they well hoped to have had a Conference according to their former Request and desir'd to see those Precedents by which the Commons seem to refuse the said Conference But in Conclusion it was agreed unto upon the Motion of Sir Walter Raleigh who moved that without naming a Subsidy it might be propounded in general words to have a Conference touching the Dangers of the Realm and the necessary Supply of Treasure to be provided speedily for the same according to the Proportion of the Necessity In the 43 Eliz. Serjeant Heal said in Parliament He marvail'd the House stood either at the granting of a Subsidy or time of Payment when all we have is her Majesties and She may lawfully at her Pleasure take it from us and that she had as much Right to all our Lands and Goods as to any Revenue of the Crown and he said he could prove it by Precedents in the time of H. 3. K. John and K. Stephen The ground upon w ch this Serjeant at Law went may be thought the same Sir Ed. Coke delivers in his Institutes where he saith the first Kings of this Realm had all the Lands of England in Demesne and the great Manors and Royalties they reserved to themselves and of the remnant for the defence of the Kingdom enfeoffed the Barons from whence it appears that no man holds any Lands but under a condition to defend the Realm and upon the self-same Ground also the Kings Prerogative is raised as being a Preheminence in cases of Necessity above and before the Law of Property or Inheritance Certain it is before the Commons were ever chosen to come to Parliament Taxes or Subsidies were raised and paid without their gift The great and long continued Subsidy of Dane-gelt was without any Gift of the Commons or of any Parliament at all that can be proved In the 8 H. 3. a Subsidy of 2 Marks in Silver upon every Knights see was granted to the King by the Nobles without any Commons At the passing of a Bill of Subsidies the words of the King are the King thanks his loyal Subjects accepts their good Will and also will have it so le Roy remercie ses loyaux Subjects accept leur benevolence ausi ainsi le veult which last words of ainsi le veult the King wills it to be so are the only words that makes the Act of Subsidy a Law to bind every man to the Payment of it In the 39 Eliz. The Commons by their Speaker complaining of Monopolies the Queen spake in private to the L. Keeper who then made answer touching Monopolies that Her Majesty hoped her dutiful and loving Subjects would not take away her Prerogative which is the chiefest Flower in her Garland and the principal and head Pearl in Her Crown and Diadem but that they will rather leave that to Her Disposition The second Point is that the Free-holders or Counties do not nor cannot give Privilege to the Commons in Parliament They that are under the Law cannot protect against it they have no such Privilege themselves as to be free from Arrests and Actions for if they had then it had been no Privilege but it would be the Common-Law And what they have not they cannot give Nemo dat quod non habet neither do the Free-holders pretend to give any such Privilege either at their Election or by any subsequent Act there is no mention of any such thing in the Return of the Writ nor in the Indentures between the Sheriff and the Free-holders The third Point remains That Privilege of Parliament is granted by the King It is a known Rule that which gives the Form gives the Consequences of the Form the King by his Writ gives the very Essence and Form to the Parliament therefore Privileges which are but Consequences of the Form must necessarily flow from Kings All other Privileges and Protections are the Acts of the King and by the Kings Writ Sir Edw. Coke saith that the Protection of mens Persons Servants and Goods is done by a Writ of Grace from the King At the presentment of the Speaker of the House of Commons to the King upon the first day of Parliament The Speaker in the Name and Behoof of the Commons humbly craveth that his Majesty would be graciously pleased to grant them their accustomed Liberties and Privileges which Petition of theirs is a fair Recognition of the Primitive Grace and Favour of Kings in be stowing of Privilege and it is a shrewd Argument against any other Title For our Ancestors were not so ceremonious nor so full of Complement as to beg that by Grace which they might claim by Right And the Renewing of this Petition every Parliament argues the Grant to be but temporary during only the present Parliament and that they have been accustomed when they have been accustomably sued or petitioned for I will close this Point with the Judgment of King James who in his Declaration touching his Proceedings in Parliament 1621. resolves that most Privileges of Parliament grew from Precedents which rather shew a Toleration than an Inheritance therefore he could not allow of the Style calling it their ancient and undoubted Right and Inheritance but could rather have wished that they had said their Privileges were derived from the Grace and Permission of his Ancestors and Him and thereupon he concludes He cannot with Patience endure his Subjects to use such Antimonarchical words concerning their Liberties except they had subjoyned that they were granted unto them by the Grace and Favours of his Predecessors yet he promiseth to be careful of whatsoever Privileges they enjoy by long Custom and uncontrolled and lawful Precedents OBSERVATIONS UPON Aristotle's Politiques TOUCHING FORMS of GOVERNMENT Together with DIRECTIONS FOR Obedience to Governours in Dangerous and Doubtful Times Licensed and Entred according to Order for Richard Royston A Book Entituled Observations upon Aristotle's Politiques touching Forms of Government Together with Directions for Obedience to Governours in Dangerous and Doubtful Times THE PREFACE IN every Alteration of Government there is something new which none can either Divine or Judge of till time hath tried it we read of many several ways
the King alone at the Rogation of the People as His Majesty King James of happy Memory affirms in his true Law of free Monarchy and as Hooker teacheth us That Laws do not take their constraining force from the Quality of such as devise them but from the Power that doth give them the Strength of Laws Le Roy le Veult the King will have it so is the Interpretive Phrase pronounced at the King 's passing of every Act of Parliament And it was the ancient Custom for a long time till the days of Henry the Fifth that the Kings when any Bill was brought unto them that had passed both Houses to take and pick out what they liked not and so much as they chose was enacted for a Law but the Custom of the later Kings hath been so gracious as to allow always of the entire Bill as it hath passed both Houses 16. The Parliament is the King's Court for so all the oldest Statutes call it the King in His Parliament But neither of the two Houses are that Supream Court nor yet both of them together they are only Members and a part of the Body whereof the King is the Head and Ruler The King 's Governing of this Body of the Parliament we may find most significantly proved both by the Statutes themselves as also by such Presidents as expresly shew us how the King sometimes by himself sometimes by his Council and other-times by his Judges hath over-ruled and directed the Judgments of the Houses of Parliament for the King we find that Magna Charta and the Charter of Forrests and many other Statutes about those times had only the Form of the Kings Letters-Patents or Grants under the Great Seal testifying those Great Liberties to be the sole Act and Bounty of the King The words of Magna Charta begin thus Henry by the Grace of God c. To all our Arch-Bishops c. and Our Faithful Subjects Greeting Know ye that We of Our meer free-Will have granted to all Free-men these Liberties In the same style goeth the Charter of Forrests and other Statutes Statutum Hiberniae made at Westminster 9. Februarii 14. Hen. 3. is but a Letter of the King to Gerrard Son of Maurice Justice of Ireland The Statute de anno Bissextili begins thus The King to His Justices of the Bench Greeting c. Explanationes Statuti Glocestriae made by the King and his Justices only were received always as Statutes and are still Printed amongst them The Statute made for Correction of the 12 th Chapter of the Statute of Glocester was Signed under the Great Seal and sent to the Justices of the Bench after the manner of a Writ Patent with a certain Writ closed dated by the King's Hand at Westminster requiring that they should do and execute all and every thing contained in it although the same do not accord with the Statute of Glocester in all things The Statute of Rutland is the King's Letters to his Treasurer and Barons of his Exchequer and to his Chamberlain The Statute of Circumspecte Agis runs The King to his Judges sendeth Greeting There are many other Statutes of the same Form and some of them which run only in the Majestick Terms of The King Commands or The King Wills or Our Lord the King hath Established or Our Lord the King hath ordained or His Especial Grace hath granted Without mention of Consent of the Commons or People insomuch that some Statutes rather resemble Proclamations than Acts of Parliament And indeed some of them were no other than meer Proclamations as the Provisions of Merton made by the King at an Assembly of the Prelates and Nobility for the Coronation of the King and his Queen Eleanor which begins Provisum est in Curia Domini Regis apud Merton Also a Provision was made 19. Hen. 3. de Assisa ultimae Praesentationis which was continued and allowed for Law until Tit. West 2. an 13. Ed. 1. cap. 5. which provides the contrary in express words This Provision begins Provisum fuit coram Dom. Rege Archiepiscopis Episcopis Baronibus quod c. It seems Origanally the difference was not great between a Proclamation and a Statute this latter the King made by Common Council of the Kingdom In the former he had but the advice only of his great Council of the Peers or of his Privy Council only For that the King had a great Council besides his Parliament appears by a Record of 5. Hen. 4. about an Exchange between the King and the Earl of Northumberland Whereby the King promiseth to deliver to the Earl Lands to the value by the Advice of Parliament or otherwise by the Advice of his Grand Council and other Estates of the Realm which the KING will assemble in case the Parliament do not meet We may find what Judgment in later times Parliaments have had of Proclamations by the Statute of 31. of Hen. cap. 8. in these words Forasmuch as the King by the Advice of his Council hath set forth Proclamations which obstinate Persons have contemned not considering what a King by his Royal Power may do Considering that sudden Causes and Occasions fortune many times which do require speedy Remedies and that by abiding for a Parliament in the mean time might happen great Prejudice to ensue to the Realm And weighing also that his Majesty which by the Kingly and Regal Power given him by God may do many things in such Cases should not be driven to extend the Liberties and Supremity of his Regal Power and Dignity by willfulness of froward Subjcts It is therefore thought fit that the King with the Advice of his Honourable Council should set forth Proclamations for the good of the People and defence of his Royal Dignity as necessity shall require This Opinion of a House of Parliament was confirmed afterwards by a second Parliament and the Statute made Proclamations of as great Validity as if they had been made in Parliament This Law continued until the Government of the State came to be under a Protector during the Minority of Edward the Sixth and in his first Year it was Repealed I find also that a Parliament in the 11th Year of Henry the Seventh did so great Reverence to the Actions or Ordinances of the King that by Statute they provided a Remedy or Means to levy a Benevolence granted to the King although by a Statute made not long before all Benevolences were Damned and Annulled for ever Mr. Fuller in his Arguments against the proceedings of the High-Comission Court affirms that the Statute of 2 H. 4. cap. 15. which giveth Power to Ordinaries to Imprison and set Fines on Subjects was made without the Assent of the Commons because they are not mentioned in the Act. If this Argument be good we shall find very many Statutes of the same kind for the Assent of the Commons was seldom mentioned in the Elder Parliaments The most usual Title of Parliaments in Edward the
3d Rich. 2. the three Henries 4 5 6. in Edw. 4. and Rich. 3. days was The King and his Parliament with the Assent of the Prelates Earls and Barons and at the Petition or at the special Instance of the Commons doth Ordain The same Mr. Fuller saith that the Statute made against Lollards was without the Assent of the Commons as appears by their Petition in these Words The Commons beseech that whereas a Statute was made in the last Parliament c. which was never Assented nor Granted by the Commons but that which was done therein was done without their Assent 17. How far the King's Council hath directed and swayed in Parliament hath in part appeared by what hath been already produced For further Evidence we may add the Statute of Westminster The first which saith These be the Acts of King Edw. 1. made at his first Parliament General by his Council and by the Assent of Bishops Abbots Priors Earls Barons and all the Commonalty of the Realm c. The Statute of Bygamy saith In presence of certain Reverend Fathers Bishops of England and others of the King's Council forasmuch as all the King's Council as well Justices as others did agree that they should be put in writing and observed The Statute of Acton Bunnel saith The King for Himself and by His Council hath Ordaind and Established In Articuli super Chartas when the Great Charter was confirmed at the Request of his Prelates Earls and Barons we find these Passages 1. Nevertheless the King and his Council do not intend by reason of this Statute to diminish the King's Right c. 2. And notwithstanding all these things before-mentioned or any part of them both the King and his Council and all they that were present at the making of this Ordinance will and intend that the Right and Prerogative of his Crown shall be saved to him in all things Here we may see in the same Parliament the Charter of the Liberties of the Subjects confirmed and a saving of the King's Prerogative Those times neither stumbled at the Name nor conceived any such Antipathy between the Terms as should make them incompatible The Statute of Escheators hath this Title At the Parliament of our Soveraign Lord the King by his Council it was agreed and also by the King himself commanded And the Ordinance of Inquest goeth thus It is agreed and ordained by the King himself and all his Council The Statute made at York 9. Edw. 3. saith Whereas the Knights Citizens and Burgesses desired our Soveraign Lord the King in his Parliament by their Petition that for his Profit and the Commodity of his Prelates Earls Barons and Commons it may please him to provide remedy our Soveraign Lord the King desiring the profit of his People by the assent of his Prelates Earls Barons and other Nobles of his Council being there hath ordained In the Parliament primo Edwardi the Third where Magna Charta was confirmed I find this Preamble At the Request of the Commonalty by their Petition made before the King and His Council in Parliament by the assent of the Prelates Earls Barons and other Great Men assembled it was Granted The Commons presenting a Petition unto the King which the King's Council did mislike were content thereupon to mend and explain their Petition the Form of which Petition is in these words To their most redoubted Soveraign Lord the King praying the said Commons That whereas they have pray'd Him to be discharged all manner of Articles of the Eyre c. Which Petition seemeth to His Council to be prejudicial unto Him and in Disinherison 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 Disinherison of Him or His Crown perpetually as of Escheators c. but of Trespasses Misprisions Negligences and Ignorances c. In the time of Henry the Third an Order or Provision was made by the King's Council and it was pleaded at the Common Law in Bar to a Writ of Dower The Plantiffs Attorney could not deny it and thereupon the Judgment was ideo sine die It seems in those days an Order of the Council-Board was either parcel of the Common-Law or above it The Reverend Judges have had regard in their Proceedings that before they would resolve or give Judgment in new Cases they consulted with the King's Privy-Council In the Case of Adam Brabson who was assaulted by R. W. in the presence of the Justices of Assize at Westminster the Judges would have the Advice of the King's Council For in a like Case because R. C. did strike a Juror at Westminster which passed in an Inquest against one of his Friends It was adjudged by all the Council that his right hand should be cut off and his Lands and Goods forfeited to the King Green and Thorp were sent by Judges of the Bench to the King's Council to demand of them whether by the Statute of 14. Ed. 3. cap. 16. a Word may be amended in a Writ and it was answered that a Word may well be amended although the Statute speak but of a Letter or Syllable In the Case of Sir Tho. Oghtred Knight who brought a Formedon against a poor Man and his Wife they came and yielded to the Demandant which seemed suspitious to the Court whereupon Judgment was stayed and Thorp said That in the like Case of Giles Blacket it was spoken of in Parliament and we were commanded that when any like Case should come we should not go to Judgment without good advice therefore the Judges Conclusion was Sues au Counseil comment ils voillet que nous devomus faire nous volume faire auterment nient en cest case Sue to the Council and as they will have us to do we will and otherwise not in this case 18. In the last place we may consider how much hath been attributed to the Opinions of the Kings Judges by Parliaments and so find that the King's Council hath guided and ruled the Judges and the Judges guided the Parliament In the Parliament of 28 Hen. 6. The Commons made Suit That William de la Poole D. of Suffolk should be committed to Prison for many Treasons and other Crimes The Lords of the Higher House were doubtful what Answer to give the Opinion of the Judges was demanded Their Opinion was that he ought not to be committed for that the Commons did not charge him with any particular Offence but with General Reports and Slanders This Opinion was allowed In another Parliament 31. Hen. 6. which was prorogued in the Vacation the Speaker of the House of Commons was condemned in a thousand pound damages in an Action of Trespass and was committed to Prison in Execution for the same When the Parliament was reassembled the Commons made suit to the King and Lords to have their Speaker delivered the Lords demanded the Opinion of the Judges whether he might be delivered out of
but of late Use or Institution for in Edward the Sixth's days it was a Chappel of the Colledge of St. Stephen and had a Dean Secular Canons and Chorists who were the Kings Quire at his Palace at Westminster and at the dissolution were translated to the Kings Chappel at White-hall Also I read that Westminster-hall being out of Repair Ric. 2. caused a large House to be builded betwixt the Clock-tower and the Gate of the great old Hall in the midst of the Palace Court the House was long and large made of Timber covered with Tiles open on both sides that all might see and hear what was both said and done four thousand Archers of Cheshire which were the Kings own Guard attended on that House and had bouche a Court and 6 d. by the day Thirdly he saith The Commons are to chuse their Speaker but seeing after their Choice the King may refuse him the Vse is as in the conge d' eslire of a Bishop that the King doth name a Discreet Learned man whom the Commons Elect when the Commons have chosen the King may allow of his Excuse and Disallow him as Sir John Popham was saith his Margin Fourthly he informs us That the first day of the Parliament four Justices assistants and two Civilians Masters of the Chancery are appointed Receivers of Petitions which are to be delivered within six days following and six of the Nobility and two Bishops calling to them the Kings Learned Councel when need should be to be Tryers of the said Petitions whether they were reasonable good and necessary to be offered and propounded to the Lords He doth not say that any of the Commons were either Receivers or Tryers of Petitions nor that the Petitions were to be propounded to Them but to the Lords Fifthly he teacheth us that a Knight Citizen or Burgess cannot make a Proxy because he is Elected and Trusted by multitudes of People here a Question may be whether a Committee if it be Trusted to act any thing be not a Proxy since he saith the High Power of Parliament to be committed to a few is holden to be against the Dignity of Parliaments and that no such Commission ought to be granted Sixthly he saith The King cannot take notice of any thing said or done in the House of Commons but by the Report of the House Surely if the Commons sate with the Lords and the King were present He might take notice of what was done in His Presence And I read in Vowel that the old Vsage was that all the Degrees of Parliament sate together and every man that had there to speak did it openly before the King and his whole Parliament In the 35 Eliz. there was a Report that the Commons were against the Subsidies which was told the Queen whereupon Sir Henry Knivet said It should be a thing answerable at the Bar for any man to report any thing of Speeches or Matters done in the House Sir John Woolley liked the Motion of Secrecy except only the Queen from whom he said there is no reason to keep any thing And Sir Robert Cecil did allow that the Councel of the House should be secretly kept and nothing reported in malam partem But if the meaning be that they might not report any thing done here to the Queen he was altogether against it Seventhly He voucheth an Inditement or Information in the Kings Bench against 39 of the Commons for departing without Licence from Parliament contrary to the Kings Inhibition whereof six submitted to their Fines and Edmund Ployden pleaded he remained continually from the beginning to the end of the Parliament Note he did not plead to the Jurisdiction of the Court of Kings Bench but pleaded his constant Attendance in Parliament which was an acknowledgment and submitting to the Jurisdiction of that Court and had been an unpardonable betraying of the Privileges of Parliament by so learned a Lawyer if his Case ought only to be tryed in Parliament Eighthly he resolves that the House of Lords in their House have Power of Judicature and the Commons in their House and both Houses together He brings Records to prove the Power of Judicature of both Houses together but not of either of them by it self He cites the 33 Edw. 1. for the Judicature of both Houses together where Nicholas de Segrave was adjudged per Praelatos Comites Barones alios de Concilio by the Prelates Earls and Barons and others of the Councel Here is no mention of the Judgment of the Commons Others of the Councel may mean the Kings Privy Councel or his Councel Learned in the Laws which are called by their Writs to give Counsel but so are not the Commons The Judgment it self saith Nicholas de Segrave confessed his fault in Parliament and submitted himself to the Kings Will thereupon the King willing to have the Advice of the Earls Barons Great men and others of his Councel enjoyned them by the Homage Fealty and Allegiance which they owed that they should faithfully counsel Him what Punishment should be inflicted for such a Fact who all advising diligently say That such a Fact deserves loss of Life and Members Thus the Lords we see did but Advise the King what Judgment to give against him that deserted the Kings Camp to fight a Duel in France Ninthly he saith Of later times see divers notable Judgments at the Prosecution of the Commons by the Lords where the Commons were Prosecutors they were no Judges but as he terms them general Inquisitors or the Grand Inquest of the Kingdom The Judgments he cites are but in King James his days and no elder Tenthly also he tells us of the Judicature in the House of Commons alone his most ancient precedent is but in Queen Elizabeths Reign of one Tho. Long who gave the Mayor of Westbury 10 l. to be elected Burgess Eleventhly he hath a Section entitled The House of Commons to many Purposes a distinct Court and saith Not a the House of Commons to many Purposes a distinct Court of those many Purposes he tells but one that is it uses to adjourn it self Commissioners that be but to examine Witnesses may Adjourn themselves yet are no Court. Twelfthly he handles the Privileges of Parliament where the great Wonder is that this great Master of the Law who hath been oft a Parliament-man could find no other nor more Privileges of Parliament but one and that is Freedom from Arrests which he saith holds unless in three cases Treason Felony and the Peace And for this freedom from Arrests he cites Ancient Precedents for all those in the House of Lords but he brings not one Precedent at all for the Commons Freedom from Arrests It is behooveful for a Free-holder to consider what Power is in the House of Peers for although the Free-holder have no Voice in the Election of the Lords yet if the Power of that House extend to make Ordinances that bind the Free-holders it is necessary
that he was a Gentleman and Bannaret and had served the late King He should be beheaded and for that our Lord the King was not informed of the manner of the Judgment the Execution thereof shall be respited until our Lord the King shall be informed It is commanded to the Constable of the Tower safely to keep the said John until he hath other commandment from our Lord the King In the case of Hen. Spencer Bishop of Norwich 7 Ric. 2. who was accused for complying with the French and other Failings the Bishop complained what was done against him did not pass by the Assent and Knowledge of the Peers whereupon it was said in Parliament that The Cognisance and Punishment of his Offence did of common Right and ancient Custom of the Realm of England solely and wholly belong to our Lord the King and no other Le Cognisance Punissement de commune droit auntienne custome de Royalme de Engleterre seul per tout apperteine au Roy nostre Seignieur a nul autre In the case of the Lord de la Ware the Judgment of the Lords was that he should have place next after the Lord Willoughby of Erisby by consent of all except the Lord Windsor and the Lord Keeper was required to acquaint her Majesty with the Determination of the Peers and to know her Pleasure concerning the same The Inference from these Precedents is that the Decisive or Judicial Power exercised in the Chamber of Peers is meerly derivative and subservient to the Supreme Power which resides in the King and is grounded solely upon his grace and favour for howsoever the House of Commons do alledge their Power to be founded on the Principles of Nature in that they are the Representative Body of the Kingdom as they say and so being the whole may take care and have power by Nature to preserve themselves yet the House of Peers do not nor cannot make any such the least Pretence since there is no reason in Nature why amongst a company of men who are all equal some few should be picked out to be exalted above their Fellows and have power to Govern those who by Nature are their Companions The difference between a Peer and a Commoner is not by Nature but by the grace of the Prince who creates Honours and makes those Honours to be hereditary whereas he might have given them for life only or during pleasure or good behaviour and also annexeth to those Honours the power of having Votes in Parliament as hereditary Counsellors furnished with ampler privileges than the Commons All these Graces conferred upon the Peers are so far from being derived from the Law of Nature that they are contradictory and destructive of that natural Equality and Freedom of Mankind which many conceive to be the Foundation of the privileges and Liberties of the House of Commons There is so strong an opposition between the Liberties of Grace and Nature that it had never been possible for the two Houses of Parliament to have stood together without mortal Enmity and eternal Jarring had they been raised upon such opposite Foundations But the Truth is the Liberties and Privileges of both Houses have but one and the self-same Foundation which is nothing else but the meer and sole Grace of Kings Thus much may serve to shew the Nature and Original of the deliberative and decisive Power of the Peers of the Kingdom The matter about which the deliberative power is conversant is generally the Consulting and Advising upon any urgent Business which concerns the King or Defence of the Kingdom and more especially sometimes in preparing new Laws and this Power is grounded upon the Writ The decisive Power is exercised in giving Judgment in some difficult Cases but for this Power of the Peers I find no Warrant in their Writ Whereas the Parliament is styled the Supreme Court it must be understood properly of the King sitting in the House of Peers in Person and but improperly of the Lords without him Every Supreme Court must have the Supreme Power and the Supreme Power is always Arbitrary for that is Arbitrary which hath no Superiour on Earth to controll it The last Appeal in all Government must still be to an Arbitrary Power or else Appeals will be in Infinitum never at an end The Legislative Power is an Arbitrary Power for they are termini convertibiles The main Question in these our days is Where this Power Legislative remains or is placed upon conference of the Writs of Summons for both Houses with the Bodies and Titles of our Ancient Acts of Parliament we shall find the Power of making Laws rests solely in the King Some affirm that a part of the Legislative Power is in either of the Houses but besides invincible reason from the Nature of Monarchy it self which must have the Supreme Power Alone the constant Antient Declaration of this Kingdom is against it For howsoever of later years in the Titles and Bodies of our Acts of Parliament it be not so particularly expressed who is the Author and Maker of our Laws yet in almost all our elder Statutes it is precisely expressed that they are made by the King Himself The general words used of later times that Laws are made by Authority of Parliament are particularly explained in former Statutes to mean That the King Ordains the Lords Advise the Commons Consent as by comparing the Writs with the Statutes that expound the Writs will evidently appear Magna Charta begins thus Henry by the Grace of God Know ye that WE of Our Meer and Free Will have given these Liberties In the self-same style runs Charta de Foresta and tells us the Author of it The Statute de Scaccario 41 H. 3. begins in these words The King Commandeth that all Bailiffs Sheriffs and other Officers c. And concerning the Justices of Chester the King Willeth c. and again He Commandeth the Treasurer and Barons of the Exchequer upon their Allegiance The Stat. of Marlborough 52 Hen. 3. goeth thus The King hath made these Acts Ordinances and Statutes which He Willeth to be observed of all his Subjects high and low 3 Edw. 1. The Title of this Statute is These are the ACTS of King EDWARD and after it follows The KING hath Ordained these ACTS and in the first Chapter The King Forbiddeth and Commandeth That none do Hurt Damage or Grievance to any Religious Man or Person of the Church and in the thirteenth Chapter The King prohibiteth that none do Ravish or take away by Force any Maid within Age. 6 Edw. 1. It is said Our Sovereign Lord the King hath established these Acts commanding they be observed within his Realm and in the fourteenth Chap. the words are The King of his special Grace granteth that the City of London shall recover in an Assise Damage with the Land The Stat. of West 2. saith Our Lord the King hath ordained that the Will of the Giver be observed
of many Officers were left to the meer pleasure of Kings The punitive part of the Law which gives all the Vigour and Binding Part to the Law we find committed by the Statutes to the Kings meer Will and Pleasure as if there were no Law at all I will offer a few Precedents to the Point 3 Edw. 1. c. 9. saith That Sheriffs Coroners and Bayliffs for concealing of Felonies shall make grievous Fines at the Kings Pleasure Chap. 13. Ordains That such as be found culpable of Ravishing of Women shall Fine at the Kings pleasure Chap. 15. saith The penalty for detaining a Prisoner that is mainpernable is a Fine at the Kings pleasure or a grievous Amercement to the King and he that shall take Reward for deliverance of such shall be at the Great Mercy of the King Chap. 20. Offenders in Parks or Ponds shall make Fines at the Kings pleasure Chap. 25. Committers of Champerty and Extortioners are to be punished at the Kings pleasure Chap. 31. Purveyors not paying for what they take shall be Grievously punished at the King's pleasure Chap. 32. The King shall punish Grievously the Sheriff and him that doth maintain Quarrels Chap. 37. The King shall grant Attaint in Plea of Land where it shall seem to him necessary 7 Edw. 1. saith Whereas of late before certain Persons deputed to treat upon Debates between Vs and certain Great Men it was accorded that in our next Parliament Provision shall be made by Vs and the common Assent of the Prelates Earls and Barons that in all Parliaments for ever every man shall come without Force and Armour And now in our next Parliament the Prelates Earls Barons and Commonalty have said That to US it belongeth through Our Royal Signory straitly to defend Force of Armour at all times when it shall please Us and to punish them which shall do otherwise and hereunto they are bound to Aid Us their Sovereign Lord at all Seasons when Need shall be 13 Edw. 1. Takers away of Nuns from religious Houses Fined at the Kings Will. If by the Default of the Lord that will not avoid the Dike Vnderwoods and Bushes in High-ways Murder be done the Lord shall make Fine at the Kings Pleasure 28 Edw. 1. If a Gold-Smith be attainted for not Assaying Touching and Working Vessels of Gold he shall be punished by a Ransome at the Kings Pleasure 2 Hen. 4. The Commons desire they may have Answer of their Petitions before the Gift of any Subsidy to which the King answers He would confer with the Lords and do what should be best according to their Advice and the last day of Parliament He gave this Answer That that manner of Doing had not been Seen nor used in no time of his Progenitors or Predecessors that they should have any Answer of their Petitions or Knowledge of it before they have shewed and finished all their other Business of Parliament be it of any Grant Business or otherwise and therefore the King would not in any ways change the Good Customs and Usages made and used of ancient Times 5 Hen. 4. c. 6. Whereas one Savage did beat and maim one Richard Chedder Esquire Menial Servant to Tho. Brook Knight of the Shire for Somerset-shire the Statute saith Savage shall make Fine and Ransom at the Kings Pleasure 8 Hen. 4. It is said POTEST AS PRINCIPIS NON EST INCLVS A LEGIBVS the Power of the Prince is not included in the Laws 13 Hen. 4. nu 20. We read of a Restitution in Blood and Lands of William Lasenby by the King by the Assent of the Lords Spiritual and Commons omitting the Lords Temporal 2 Hen. 5. in a Law made there is a Clause That it is the Kings Regality to grant or deny such of their Petitions as pleaseth himself 6 Hen. 6. c. 6. An Ordinance was made for to endure As long as it shall please the King 11 Hen. 7. c. 1. hath this Law The King our Sovereign Lord calling to his Remembrance the Duty of Allegiance of his Subjects of this his Realm and that by reason of the same they are bound to serve their Prince and Sovereign Lord for the time being in his Wars for the Defence of Him and the Land against every Rebellion Power Might reared against him and with him to enter and abide in Service in Battel if Case so require and that for the same Service what Fortune ever fall by chance in the same Battel against the Mind and Will of the Prince as in this Land some time past hath been seen that it is not reasonable but against all Laws Reason and good Conscience that the said Subjects going with their Sovereign Lord in Wars attending upon Him in His Person or being in other places by His Commandment within the Land or without any thing should lose or forfeit for doing their true Duty and Service of Allegiance Be it therefore Enacted That no Person that shall attend upon the King and do Him true Service shall be attainted therefore of Treason or any other Offence by Act of Parliament or otherwise Also the 18 Chap. of the same year saith Where every Subject by the Duty of his Allegiance is bounden to Serve and Assist his Prince and Sovereign Lord at all Seasons when need shall require and bound to give attendance upon his Royal Person to defend the same when He shall fortune to go in Person in War for Defence of the Realm or against his Rebels and Enemies for the Subduing and Repressing of them and their malicious purpose Christopher Wray Serjeant at Law chosen Speaker 13 Eliz. in his Speech to Her Majesty said that for the orderly Government of the Common-wealth three things were necessary 1. Religion 2. Authority 3. Law By the first we are taught not only our Duty to God but to obey the Queen that not only in Temporals but in Spirituals in which Her Power is absolute Mr. Grivel in the 35 Eliz. said in Parliament He wished not the making of many Laws since the more we make the less liberty we have our selves Her Majesty not being bound by them For further proof that the Legislative Power is proper to the King we may take notice that in antient time as Sir Edward Coke saith All Acts of Parliament were in form of Petitions if the Petitions were from the Commons and the Answer of them the King 's it is easie thereby to judge who made the Act of Parliament Also Sir Jo. Glanvil affirms that in former times the course of Petitioning the King was this The Lords and Speaker either by Words or Writing preferr'd their Petition to the King this then was called the Bill of Commons which being received by the King part He received part He put out and part He ratified for as it came from Him it was drawn into a Law Also it appears that Provisions Ordinances and Proclamations made heretofore out of Parliament have been always acknowledged for Laws and Statutes We have
to Kings not only the Example of such Jurisdiction but the Prerogative also Of Privilege of Parliaments WHat need all this ado will some say to sift out what is comprised in the Writ for the Election of the Commons to Parliament since it is certain though the Writ doth not yet Privilege of Parliament gives sufficient Power for all Proceedings of the Two Houses It is answered that what slight Esteem soever be made of the Writ yet in all other cases the Original Writ is the Foundation of the whole business or action and to vary in Substance from the Writ makes a Nullity in the Cause and the Proceedings thereupon and where a Commissioner exerciseth more Power than is warranted by his Commission every such Act is void and in many Cases punishable yet we will lay aside the Writ and apply our selves to consider the Nature of Privilege of Parliament The Task is the more difficult for that we are not told what the number of Privileges are or which they be some do think that as there be dormant Articles of Faith in the Roman Church which are not yet declared so there be likewise Privileges dormant in the House of Commons not yet revealed we must therefore be content in a generality to discourse of the Quality or Condition of Privilege of Parliament and to confine our selves to these three points 1. That Privilege of Parliament gives no Power but only helps to the execution of the Power given by the Writ 2. That the Free-holders by their Elections give no Privilege 3. That Privilege of Parliament is the Gift of the King First The End or Scope of Privilege of Parliament is not to give any Power to do any Publick Act not warranted by the Writ but they are intended as Helps only to enable to the Performance of the Duty enjoyned and so are subservient to the Power comprised in the Writ For Instance the grand Privilege of Freedom from Arrests doth not give any Power at all to the House of Commons to do any Act but by taking away from the Free-holders and other Subjects the Power of Arrests the Commons are the better inabled to attend the Service to which they are called by the King In many other Cases the Servants or Ministers of the King are privileged and protected much in the same Nature The Servants in Houshold to the King may not be arrested without special Licence Also the Officers of the Kings Courts of Justice having a Privilege not to be sued in any other Court but where they serve and attend and to this Purpose they are allowed a Writ of Privilege Likewise all such as serve the King in his Wars as are imployed on Foreign Affairs for him are protected from Actions and Sutes Nay the King's Protection descends to the privileging even of Laundresses Nurses and Midwives if they attend upon the Camp as Sir Edward Coke saith quia Lotrix seu Nutrix seu obstetrix Besides the King protects his Debtors from Arrests of the Subject till his own Debts be paid These sorts of Protections are Privileges the Common Law takes Notice of and allows and hath several Distinctions of them and some are Protections quia profecturus and others are quia moraturus some are with a Clause of Volumus for Stay of Suits others with a Clause of Nolumus for the Safety of mens Persons Servants and Goods and the King's Writs do vary herein according to the Nature of the Business But none of these Privileges or Protections do give any Power they are not positive but privative they take away and deprive the Subject of the Power or Liberty to arrest or sue in some cases only no Protection or Privilege doth defend in point of Treason Felony or Breach of the Peace Privileges are directly contrary to the Law for otherwise they should not be Privileges and they are to be interpreted in the strictest manner as being odious and contrary to Law we see the Use of Privileges they do but serve as a Dispensation against Law intended originally and principally for the expediting of the Kings Business though secondarily and by accident there do sometimes redound a Benefit by them to the Parties themselves that are protected Strictly and properly every Privilege must be against a publick or common Law for there is no Use or Need of a private Law to protect where there is no publick Law to the contrary Favours and Graces which are only besides and not against the Law do not properly go under the name of Privileges though common Use do not distinguish them I know no other Privilege that can be truly so called and to belong to the House of Commons which is so vast and great as this Privilege of their Persons Servants and Goods this being indeed against the Common Law and doth concern the whole Kingdom to take notice of it if they must be bound by it Touching this grand Privilege of Freedom from Arrests I read that in the 33 Hen. 8. the Commons did not proceed to the Punishment of Offenders for the breach of it until the Lords referred the Punishment thereof to the Lower House The Case is thus reported George Ferrers Gentleman Servant to the King and Burgess for Plymouth going to the Parliament-House was arrested in London by Process out of the Kings Bench for Debt wherein he had before been condemned as Surety for one Welden at the Sute of one White which Arrest signified to Sir Thomas Moyl Speaker and to the rest the Serjeant called Saint-Johns was sent to the Counter in Breadstreet to demand Ferrers The Officer of the Counter refused to deliver him and gave the Serjeant such ill Language that they fall to an Affray the Sheriff coming taketh the Officers part the Serjeant returned without the Prisoner This being related to the Speaker and Burgesses they would sit no more without their Burgess and rising repaired to the Upper House where the Case was declared by the Speaker before Sir Thomas Audley Chancellor and the Lords and Judges there assembled who judging the Contempt to be very great referred the Punishment thereof to the House of Commons it self This Privilege of Freedom from Arrests is the only Privilege which Sir Edward Coke finds to belong to the House of Commons he cannot or at least he doth not so much as name any other in his Section of the Privileges of Parliament neither doth he bring so much as one Precedent for the Proof of this one Privilege for the House of Commons which may cause a Doubt that this sole Privilege is not so clear as many do imagine For in a Parliament in the 27 Eliz. Richard Coke a Member being served with a Subpoena of Chancery the Lord Chancellor thought the House had no such Privilege for Subpoena's as they pretended neither would he allow of any Precedents of the House committed unto them formerly used in that Behalf unless the House of Commons could also prove the same to have
of the Upper House to be Suppliants with them of the Lower House unto her Majesty for entailing the Succession of the Crown Whereof a Bill was ready drawn by them Her Majesty was highly displeased herewith as contrary to her former strait Command and charged the Councel to call the Parties before them Sir Thomas Henage sent for them and after Speech with them commanded them to forbear the Parliament and not to go out of their several Lodgings after they were called before the Lord Treasurer the Lord Buckhurst and Sir Thomas Henage Mr. Wentworth was committed by them to the Tower Sir Henry Bromley with Mr. Richard Stephens to whom Sir Henry Bromley had imparted the Matter were sent to the Fleet as also Mr. Welch the other Knight for Worcestershire In the same Parliament Mr. Morrice Attorney of the Court of Wards moved against the hard Courses of the Bishops Ordinaries and other Ecclesiastical Judges in their Courts used towards sundry Learned and godly Ministers and Preachers and spake against Subscriptions and Oaths and offer'd a Bill to be read against Imprisonment for refusal of Oaths Mr. Dalton opposed the Reading of it as a thing expresly against Her Majesties Command to meddle in Doctor Lewin shewed that Subscription was used even at Geneva At two of the clock the same day the Speaker Mr. Coke afterwards Sir Edward Coke was sent for to the Court where the Queen Her self gave him in Command a Message to the House She told him It being wholly in Her Power to Call to Determine to Assent or Dissent to any thing done in Parliament that the Calling of This was only that the Majesty of God might be more religiously observed by compelling by some sharp Laws such as neglect that Service and that the Safety of Her Majesties Person and the Realm might be provided for It was not meant they should meddle with Matters of State or Causes Ecclesiastical for so Her Majesty termed them she wondred that any could be of so high Commandement to attempt they were Her own words a thing so expresly contrary to that which she had commanded wherefore with this She was highly offended And because the words spoken by my Lord Keeper are not now perhaps well remembred or some be now here that were not then present Her Majesties present Charge and express Command is that no Bill touching the said matter of State or Reformation in Causes Ecclesiastical be exhibited and upon my Allegiance saith Mr. Coke I am charged if any such Bill be exhibited not to read it I have been credibly informed that the Queen sent a Messenger or Serjeant at Arms into the House of Commons and took out Mr. Morrice and committed him to Prison within few days after I find Mr. Wroth moved in the House that they might be humble Suitors to Her Majesty that She would be pleased to set at liberty those Members of the House that were restrained To this it was answered by the Privy Counsellors That Her Majesty had committed them for Causes best known to Her self and to press Her Highness with this Suit would but hinder them whose Good is sought that the House must not call the Queen to account for what she doth of Her Royal Authority that the Causes for which they are restrained may be High and Dangerous that Her Majesty liketh no such Questions neither doth it become the House to search into such matters In the 39 Eliz. The Commons were told their Privilege was Yea and No and that Her Majesties Pleasure was that if the Speaker perceived any idle Heads which would not stick to hazard their own Estates which will meddle with reforming the Church and transforming the Commonweal and do exhibit Bills to that purpose the Speaker should not receive them till they were viewed and considered by those whom it is fitter should consider of such things and can better judge of them and at the end of this Parliament the Queen refused to pass 48 Bills which had passed both Houses In the 28 of Eliz. the Queen said She was sorry the Commons medled with chusing and returning Knights of the Shire for Norfolk a thing impertinent for the House to deal withal and only belonging to the Office and Charge of the Lord Chancellor from whom the Writs issue and are returned 4 Hen. 4. The 10 of October the Chancellor before the King declared the Commons had sent to the King praying him that they might have Advice and Communication with certain Lords about Matters of Business in Parliament for the common good of the Realm which Prayer Our Lord the King graciously granted making Protestation he would not do it of Duty nor of Custom but of his special Grace at this time and therefore Our Lord the King charged the Clerk of the Parliament that this Protestation should be entred on Record upon the Parliament-Roll which the King made known to them by the Lord Say and his Secretary how that neither of Due nor of Custom our Lord the King ought to grant any Lords to enter into Communication with them of Matters touching the Parliament but by his special Grace at this time he hath granted their Request in this Particular upon which matter the said Steward and Secretary made Report to the King in Parliament that the said Commons knew well that they could not have any such Lords to commune with them of any Business of Parliament without special Grace and Command of the King Himself It hath heretofore been a question whether it be not an Infringing and Prejudice to the Liberties and Privileges of the House of Commons for them to joyn in Conference with the Lords in Cases of Benevolence or Contribution without a Bill In the 35 Eliz. on Tuesday the first of March Mr. Egerton Attorney General and Doct. Cary came with a Message from the Lords their Lordships desired to put the House in remembrance of the Speech delivered by the Lord Keeper the first day for Consultation and Provision of Treasure to be had against the great and imminent Dangers of the Realm thereupon their Lordships did look to have something from the Houses touching those Causes before this time and yet the Parliament had sate but three days for it began Feb. 26. and therefore their Lordships had hitherto omitted to do any thing therein themselves And thereupon their Lordships desired that according to former laudable Usages between both Houses in such like Cases a Committee of Commons may have Conference with a Committee of Lords touching Provision of Treasure against the great Dangers of the Realm which was presently resolved by the whole House and they signified to their Lordships the willing and ready Assent of the whole House At the Meeting the Lords negatively affirm not to assent to less than three Subsidies and do insist for a second Conference M. Francis Bacon yielded to the Subsidy but opposed the joyning with the Lords as contrary to the Privileges of the House of Commons
a primity of share in the supreme Power is in one but by his own confession he may better call it a mixed Aristocracy or mixed Democracy than a mixed Monarchy since he tells us The Houses of Parliament sure have two parts of the greatest legislative Authority and if the King have but a third part sure their shares are equal The first step our Author makes is this The Soveraign power must be originally in all three next he finds that if there be an equality of shares in three Estates there can be no ground to denominate a Monarch and then his mixed Monarch might be thought but an empty Title Therefore in the third place he resolves us That to salve all a power must be sought out wherewith the Monarch must be invested which is not so great as to destroy the mixture nor so titular as to destroy the Monarchy and therefore he conceives it may be in these particulars First A Monarch in a mixed Monarchy may be said to be a Monarch as he conceives if he be the head and fountain of the power which governs and executes the established Laws that is a man may be a Monarch though he do but give power to others to govern and execute the established Laws thus he brings his Monarch one step or peg lower still than he was before at first he made us believe his Monarch should have the supreme Power which is the legislative then he falls from that and tells us A limited Monarch must govern according to Law only thus he is brought from the legislative to the gubernative or executive Power only nor doth he stay here but is taken a hole lower for now he must not govern but he must constitute Officers to govern by Laws if chusing Officers to govern be governing then our Author will allow his Monarch to be a Governour not else and therefore he that divided Supreme power into Legislative and Gubernative doth now divide it into Legislative and power of constituting Officers for governing by Laws and this he saith is left to the Monarch Indeed you have left him a fair portion of Power but are we sure he may enjoy this It seems our Author is not confident in this neither and some others do deny it him our Author speaking of the Government of this Kingdom saith The choice of the Officers is intrusted to the judgment of the Monarch for ought I know he is not resolute in the point but for ought he knows and for ought I know his Monarch is but titular an empty Title certain of no Power at all The power of chusing Officers only is the basest of all powers Aristotle as I remember saith The common people are fit for nothing but to chuse Officers and to take Accompts and indeed in all popular Governments the multitude perform this work and this work in a King puts him below all his Subjects and makes him the only Subject in a Kingdom or the only man that cannot Govern there is not the poorest man of the multitude but is capable of some Office or other and by that means may some time or other perhaps govern according to the Laws only the King can be no Officer but to chuse Officers his Subjects may all govern but he may not Next I cannot see how in true sense our Author can say his Monarch is the head and fountain of Power since his Doctrine is That in a limited Monarchy the publick Society by original Constitution confer on one man power is not then the publick Society the head and fountain of Power and not the King Again when he tells us of his Monarch That both the other States as well conjunctim as divisim be his sworn Subjects and owe obedience to his commands he doth but flout his poor Monarch for why are they called his Subjects and his Commons He without any complement is their Subject for they as Officers may govern and command according to Law but he may not for he must judge by his Judges in Courts of Justice only that is he may not judge or govern at all 2. As for the second particular The sole or chief power in capacitating persons for the supreme Power And 3. As to this third particular The power of Convocating such persons they are both so far from making a Monarch that they are the only way to make him none by chusing and calling others to share in the supreme Power 4. Lastly concerning his Authority being the last and greatest in the establishing every Act it makes him no Monarch except he be sole that hath that Authority neither his primity of share in the supreme Power nor his Authority being last no nor his having the greatest Authority doth make him a Monarch unless he have that Authority alone Besides how can he shew that in his mixed Monarchy the Monarchs power is the greatest The greatest share that our Author allows him in the Legislative power is a Negative voice and the like is allowed to the Nobility and Commons And truly a Negative voice is but a base term to express a Legislative power a Negative voice is but a privative power or indeed no power at all to do any thing only a power to hinder an Act from being done Wherefore I conclude not any of his four nor all of them put into one person make the State Monarchical This mixed Monarchy just like the limited ends in confusion and destruction of all Government you shall hear the Authors confession That one inconvenience must necessarily be in all mixed Governments which I shewed to be in limited Governments there can be no constituted legal Authoritative Judge of the Fundamental Controversies arising between the three Estates If such do rise it is the fatal disease of those Governments for which no salve can be applied It is a case beyond the possible provision of such a Government of this question there is no legal Judge The accusing side must make it evident to every mans Conscience The Appeal must be to the Community as if there were no Government and as by evidence Consciences are convinced they are bound to give their assistance The wit of man cannot say more for Anarchy Thus have I picked out the flowers out of his Doctrine about limited Monarchy and presented them with some brief Annotations it were a tedious work to collect all the learned contradictions and ambiguous expressions that occur in every page of his Platonick Monarchy the Book hath so much of fancy that it is a better piece of Poetry than Policy Because many may think that the main Doctrine of limited and mixed Monarchy may in it self be most authentical and grounded upon strong and evident reason although our Author perhaps have failed in some of his expressions and be liable to exceptions Therefore I will be bold to inquire whether Aristotle could find either reason or example of a limited or mixed Monarchy and the rather because
somewhere to judge according to Law Law were vain It was soon therefore provided that Laws according to the dictate of Reason should be ratified by common consent when it afterward appeared that man was yet subject to unnatural destruction by the Tyranny of entrusted Magistrates a mischief almost as fatal as to be without all Magistracy How to provide a wholesome remedy therefore was not so easie to be invented it was not difficult to invent Laws for the limiting of Supream Governours but to invent how those Laws should be executed or by whom interpreted was almost impossible Nam quis custodiet ipsos Custodes to place a Superiour above a Supream was held unnatural yet what a lifeless thing would Law be without any Judge to determine and force it If it be agreed upon that limits should be prefixed to Princes and Judges to decree according to those limits yet another inconvenience will presently affront us for we cannot restrain Princes too far but we shall disable them from some good long it was ere the world could extricate it self out of all these extremities or find out an orderly means whereby to avoid the danger of unbounded Prerogative on this hand and of excessive liberty on the other and scarce has long experience yet fully satisfied the minds of all men in it In the Infancy of the world when man was not so artificial and obdurate in cruelty and oppression as now and Policy most rude most Nations did choose rather to subject themselves to the meer discretion of their Lords than rely upon any limits and so be ruled by Arbitrary Edicts than written Statutes But since Tyranny being more exquisite and Policy more perfect especially where learning and Religion flourish few Nations will endure the thraldome which usually accompanies unbounded and unconditionate Royalty Yet long it was ere the bounds and conditions of Supream Lords was so wisely determined or quietly conserved as now they are for at first when as Ephori Tribuni Curatores c. were erected to poise against the scale of Soveraignty much blood was shed about them and States were put into new broils by them and in some places the remedy proved worse than the disease In all great distresses the body of the people were ever constrained to rise and by force of the major party to put an end to all intestine strifes and make a redress of all publick grievances But many times calamities grew to a strange height before so cumbersome a body could be raised and when it was raised the motions of it were so distracted and irregular that after much spoil and effusion of blood sometimes only one Tyranny was exchanged for another till some was invented to regulate the motions of the Peoples moliminous body I think Arbitrary rule was most safe for the World but Now since most Countries have found an art and peaceable order for publick Assemblies whereby the people may assume its own power to do it self right without disturbance to it self or injury to Princes he is very unjust that will oppose this art or order That Princes may not be Now beyond all limits and Laws nor yet be tyed upon those limits by any private parties the whole Community in its underived Majesty shall convene to do justice and that the Convention may not be without intelligence certain times and places and forms shall be appointed for its reglement and that the vastness of its own bulk may not breed confusion by vertue of election and representation a few shall act for many the wise shall consent for the simple the vertue of all shall redound to some and the prudence of some shall redound to all and surely as this admirably-composed Court which is now called a Parliament is more regularly and orderly formed than when it was called mickle Synod of Wittenagemot or when this real body of the People did throng together at it so it is not yet perhaps without some defects which by art policy might receive farther amendment some divisions have sprung up of late between both Houses and some between the King and both Houses by reason of incertainty of Jurisdiction and some Lawyers doubt how far the Parliament is able to create new forms and presidents and has a Jurisdiction over it self all these doubts would be solemnly solved but in the first place the true priviledges of Parliament belonging not only to the being and efficacy of it but to the honour and complement of it would be clearly declared for the very naming of priviledges of Parliament as if they were chimera's to the ignorant sort and utterly unknown unto the Learned hath been entertained with scorn since the beginning of this Parliament In this large passage taken out of the Observator which concerns the original of all Government two notable Propositions may be principally observed First our Observator confesseth arbitrary or absolute government to be the first and the safest government for the world Secondly he acknowledgeth that the Jurisdiction is uncertain and the priviledges not clearly declared of limited Monarchy These two evident truths delivered by him he labours mainly to disguise He seems to insinuate that Arbitrary Government was but in the infancy of the World for so he terms it but if we enquire of him how long he will have this infancy of the World to last he grants it continued above three thousand years which is an unreasonable time for the World to continue under-age for the first opposers he doth find of Arbitrary power were the Ephori Tribuni Curatores c. The Ephori were above three thousand years after the Creation and the Tribuni were later as for his Curatores I know not whom he means except the Master of the Court of Wards I cannot English the word Curator better I do not believe that he can shew that any Curatores or caetera's which he mentions were so ancient as the Ephori As for the Tribuni he mistakes much if he thinks they were erected to limit and bound Monarchy for the State of Rome was at the least Aristocratical as they call it if not popular when Tribunes of the People were first hatched And for the Ephori their power did not limit or regulate Monarchy but quite take it away for a Lacedemonian King in the judgment of Aristotle was no King indeed but in name only as Generalissimo of an Army and the best Politicians reckon the Spartan Commonwealth to have been Aristocratical and not Monarchical and if a limited Monarchy cannot be found in Lacedemon I doubt our Observator will hardly find it any where else in the whole World and in substance he confesseth as much when he saith Now most Countries have found out an art and peaceable order for publick assemblies as if it were a thing but new done and not before for so the word Now doth import The Observator in confessing the Jurisdiction to be incertain and the priviledges undetermined of that Court that
sworn to keep or not If a Soveraign Prince promise by Oath to his Subjects to keep the Laws he is bound to keep them not for that a Prince is bound to keep his Laws by himself or by his Predecessors but by the just Conventions and Promises which he hath made himself be it by Oath or without any Oath at all as should a private man be and for the same causes that a Private man may be relieved from his unjust and unreasonable Promise as for that it was so grievous or for that he was by deceit or fraud Circumvented or induced thereunto by Errour or Force or just Fear or by some great Hurt even for the same causes the Prince may be restored in that which toucheth the diminishing of his Majesty And so our Maxime resteth That the Prince is not subject to His Laws nor to the Laws of his Predecessors but well to his Own just and reasonable Conventions The Soveraign Prince may derogate from the Laws that he hath promised and sworn to keep if the Equity thereof cease and that of himself without Consent of his Subjects which his Subjects cannot do among Themselves if they be not by the Prince relieved The Foreign Princes well-advised will never take Oath to keep the Laws of their Predecessors for otherwise they are not Sovereigns Notwithstanding all Oaths the Prince may Derogate from the Laws or Frustrate or Disannul the same the Reason and Equity of them ceasing There is not any Bond for the Soveraign Prince to keep the Laws more than so far as Right and Justice requireth Neither is it to be found that the Antient Kings of the Hebrews took any Oaths no not they which were Anointed by Samuel Elias and others As for General and Particular which concern the Right of men in Private they have not used to be otherwise Changed but after General Assemblies of the Three Estates in France not for that it is necessary for the Kings to rest on their Advice or that he may not do the Contrary to that they demand if natural Reason and Justice do so require And in that the Greatness and Majesty of a true Soveraign Prince is to be known when the Estates of all the People assembled together in all Humility present their Requests and Supplications to their Prince without having any Power in any thing to Command or Determine or to give Voice but that that which it pleaseth the King to Like or Dislike to Command or Forbid is holden for Law Wherein they which have written of the Duty of Magistrates have deceived themselves in maintaining that the Power of the People is greater than the Prince a thing which oft-times causeth the true Subjects to revolt from the Obedience which they owe unto their Soveraign Prince and ministreth matter of great Troubles in Commonwealths of which their Opinion there is neither reason nor ground If the King should be Subject unto the Assemblies and Decrees of the People he should neither be King nor Soveraign and the Commonwealth neither Realm nor Monarchy but a meer Aristocracy of many Lords in Power equal where the Greater part commandeth the less and whereon the Laws are not to be published in the Name of him that Ruleth but in the Name and Authority of the Estates as in an Aristocratical Seignory where he that is Chief hath no Power but oweth Obeisance to the Seignory unto whom yet they every one of them feign themselves to owe their Faith and Obedience which are all things so absurd as hard it is to see which is furthest from Reason When Charles the eighth the French King then but Fourteen years old held a Parliament at Tours although the Power of the Parliament was never Before nor After so great as in those Times yet Relli then the Speaker for the People turning himself to the King thus beginneth Most High most Mighty and most Christian King our Natural and Onely Lord we poor humble and obedient Subjects c. which are come hither by your Command in all Humility Reverence and Subjection present our selves before you c. And have given me in charge from all this Noble Assembly to declare unto You the good Will and hearty desire they have with a most fervent Resolution to Serve Obey and Aid You in all your Affairs Commandments and Pleasures All this Speech is nothing else but a Declaration of their good Will towards the King and of their humble Obedience and Loyalty The like Speech was used in the Parliament at Orleans to Charles the 9th when he was scarce Eleven Years old Neither are the Parliaments in Spain otherwise holden but that even a greater Obedience of all the People is given to the King as is to be seen in the Acts of the Parliament at Toledo by King Philip 1552. when he yet was scarce Twenty Five Years old The Answers also of the King of Spain unto the Requests and humble Supplications of his People are given in these words We will or else We Decree or Ordain yea the Subsidies that the Subjects pay unto the King of Spain they call Service In the Parliaments of England which have commonly been holden every Third Year the Estates seem to have a great Liberty as the Northern People almost all breathe thereafter yet so it is that in effect they proceed not but by way of Supplications and Requests to the King As in the Parliament holden in Octob. 1566. when the Estates by a common Consent had resolved as they gave the Queen to understand not to Treat of any thing until She had first Appointed who should Succeed Her in the Crown She gave them no other Answer but That they were not to make her Grave before she were Dead All whose Resolutions were to no purpose without Her good liking neither did She in that any thing that they requested Albeit by the Sufferance of the King of England Controversies between the King and his People are sometimes determined by the High Court of Parliament yet all the Estates remain in full subjection to the King who is no way bound to follow their Advice neither to consent to their Requests The Estates of England are never otherwise Assembled no more than they are in France or Spain than by Parliament-Writs and express Commandments proceeding from the King which sheweth very well that the Estates have no Power of themselves to Determine Command or Decree any thing seeing they cannot so much as Assemble themselves neither being Assembled Depart without express Commandment from the King Yet this may seem one special thing that the Laws made by the King of England at the Request of the Estates cannot be again repealed but by calling a Parliament though we see Henry the eighth to have always used his Soveraign Power and with his only word to have disannulled the Decrees of Parliament We conclude the Majesty of a Prince to be nothing altered or diminished by the Calling together or Presence of the
Prison by Privilege of Parliament upon the Judges Answer it was concluded That the Speaker should still remain in Prison according to the Law notwithstanding the Privilege of Parliament and that he was the Speaker Which Resolution was declared to the Commons by Moyle the King's Serjeant at Law and the Commons were commanded in the King's Name by the Bishop of Lincoln in the absence of the Arch-bishop of Canterbury then Chancellour to chuse another Speaker In septimo of Hen. 8. a question was moved in Parliament Whether Spiritual Persons might be convented before Temporal Judges for Criminal Cases There Sir John Fineux and the other Judges delivered their Opinion That they might and ought to be and their Opinion was allowed and maintained by the King and Lords and Dr. Standish who before had holden it the same Opinion was delivered from the Bishops If a Writ of Errour be sued in Parliament upon a Judgment given in the Kings Bench the Lords of the higher House alone without the Commons are to examine the Errours the Lords are to proceed according to Law and for their Judgment therein they are to be informed by the Advice and Counsel of the Judges who are to inform them what the Law is and so to direct them in their Judgment for the Lords are not to follow their own Opinions or Discretions otherwise So it was in a Writ of Errour brought in Parliament by the Dean and Chapter of Lichfield against the Prior and Covent of Newton-Panel as appeareth by Record See Flower Dew's Case P. 1. H. 7. fol. 19. FINIS Apud Selden 21 Edw. 3. fol. 60. Apud Selden Selden Selden Selden Selden Selden Cambden Cotton Stow. Selden Selden Selden Selden Chanc. Egerton * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 3. c. 7. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 1. c. 2. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (c) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. lib. 3. c. 8. Lib. 2. c. 8. (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 2. c. 11. (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 8. c. 12. (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 31.5 (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 3. c. 7 (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 3. c. 5. (c) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 3. c. 4. (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 4. c. 8. (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. c. c. 13. (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 3. c. 7. Lib. 3. c. 9. Lib. 3. c. 11. Lib. 6. c. 4. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 7. c. 9. Lib. 2. c. 8. (a) L. 3. c. 7. (b) L. 4. c. 10. (c) L. 3. c. 6. (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 De Cive cap. 1. sect 10. 94. 87. Lib. 4. c. 8. Lib. 1. c. 4. P. 3. P. 13. P. 6. P. 1. P. 12. P. 5. P. 40. P. 12. P. 14. P. 16. P. 15. P. 17. P. 5. P. 2. P. 6. P. 12. P. 7. P. 54. P. 7. P. 1. P. 12. P. 13. P. 8. P. 16. P. 17. P. 14. P. 17. P. 49. P. 17. P. 18. P. 38. P. 18. P. 25. P. 56. P. 25. P. 26. P. 38. P. 26. P. 28. Arist. Pol. l. 3. c. 16. Cap. 1. Lib. 1. Cap. 2. Cap. 2. Cap. 2. Cap. 2. Lib. 2. Qu. 4. Cap. 12. Lib. 5. Sect. 18. Cap. 1. Sect. 4. Cap. 4. Sect. 1. Lib. 2. Cap. 5. Cap. 7. Cap. 7. Sect. 1. Cap. 7. Sect. 2. Chap. 7. Sect. 1. Chap. 7. Sect. 1. Lib. 2. Cap. 2. Cap. 7. Sect. 2. Ainsworth upon Deut. 18. 1 King 20.16 Gen. 27.29 Arist Pol. Lib. 1. c. 2.