Council and the Optimates witnessing are Cynedrid the Queen three Bishops one Abbot and Brorda Wiega Cuthbert Eobing Esne Cydda Winbert Heardbert and Brorda Dukes besides Ethelbeard Archbishop Forthred Abbat and Sighore Son of Siger But I shall hereafter more copiously give an Account of the constituent Parts of the great Councils The King the Fountain of Laws The Legislative Power saith a learned (h) Sheringham's Supremacy p. 34. Leges vero Anglicanae consuetudines Regum Authoritate jubent quandoque quandoque vetant quandoque vindicant puniunt transgressores Bracton lib. 1. c. 2. Author belongs to the King alone by the Common Law for though the two Houses have Authority granted them by the King to assent or dissent yet the Power that makes it a Law the Authority that animates it and makes it differ from a dead Letter is in the King who is the Life and Soul of the Law by whose Authority alone the Laws command forbid vindicate and punish Transgressors This was resolved by divers Earls and Barons and by all the Justices in the Reign of King Edward the Third for one (i) Fuit dit que le Roy sist les Leis per assent des Peres de la Commune non pas les Peres le Commune qu'il ne avera nul Pere en sa terre demesne que le Roy per eux ne doit estre ajuge 22 E. 3. c. 1. Haedlow and his Wife having a Controversie with the King and desiring to have it decided in Parliament It was resolved That the King makes Laws by the Assent of the Lords and Commons and not the Lords and Commons and that he could have no Peer in his own Land and could not be judged by them This is further manifested that the Laws are primarily and properly made by the King and the two Houses have a Cooperation but no Co-ordination of Power for the breach of any Statute whether it be by Treason Murther Felony Perjury or by any other way is an offence against the (k) Encounter la Corone Dignitie le Roy. Stanford 's Pleas of the Crown lib. 1. c. 1. Kings Authority alone and Pleas made against such Offences are called The Pleas of the Crown because they are done against the Crown and Dignity of the King So that it is not the Dignity and Authority of the Lords and Commons which is violated but the Dignity and Authority of the King This appears also in the Power the (l) Sheringham p. 35. See Finch lib. 2. fol. 22. Coke 2 II. 7. lib. 7. fol. 14. Stanford lib. 2.101 King hath in dispensing with such Laws as forbid a thing which is not malum in se and in pardoning the Transgression of others as Treason Felony c. which in Reason he ought no more to do than to dispense with the Laws of Germany Spain or France or pardon the Transgressors thereof if they were not made by his Authority Furthermore it is a certain Maxim of the Law (m) Ejusdem est leges interpretari cujus est condere The Amendment was sealed by the Great Seal 2 May 9 E. 1. commanding the Justices to do and execute all and every thing contained in it though the same did not accord with the Statute of Gloucester in all things None can interpret the Laws but the same Power that makes them But the King may do this as appears by the Statute of Glocester 6â—â— where immediately after the Statute are these words After by the King and his Justices certain Expositions were made upon some of the Articles above mentioned So the Judges are appointed by the King and they have from him a Power to interpret the Law judicialiter otherwise they could not proceed to Judgment and being called by the King with him and under him they have a Power to interpret the Law Authoritativé But the two Houses besides that they can do nothing singly or joyntly without the Kings Concurrence in (n) Sheringham ut supra their make and composition are unfit to interpret Law For such Power as interprets Law must be always existent or in being to act according to emergent Occasions which the two Houses are not And if they were a permanent Body yet they having a Negative upon each other the Interpretation of the Law must be retarded and all Controversies depending thereupon undecided And this Disagreement might perhaps endure for ever and so a final Determination in such Suits would be impossible Now these are Inconveniences which ought not to be admitted in any Commonwealth for it derogates both from the Honour and Wisdom of a Nation to be so moulded and framed that Justice cannot have a free Passage in all Contingencies Not only the Legislative Power it self but the very (o) Hem p. 36. The King may provide for all things necessary for Government where the Law hath not provided or contradicts not Exercise of the Power also so far as it is essential to Government is in the King alone for he can by Edicts and Proclamations provide for all necessary occasions and special Emergencies not provided for by fixed Laws which is one of the most excellent and eminent Acts of the Legislative Power and a sufficient Remedy against all Mischiefs in case the two Houses should refuse to concurr with him in those things which concern the Benefit of the Kingdoms For as (p) Ea quae Jurisdictioâ—is sunt pacis ea qâ—ae sunt Justitiae paci annexa ad nullum pertinent nisi ad Coronam Dignitatem Regiâ—m Bracton lib. 2. c. 24. Bracton saith those things which belong to Jurisdiction and Peace and those which are annexed to Justice and Peace appertain to none but the Crown neither can they be separated from it because they make the Crown If the King should unwarily by Act of Parliament consent to any thing prejudicial and derogatory to His Royal Prerogative such Acts are void by the Common Law and the Judges are bound to declare them so as that of 23. H. 6. about Sheriffs not to continue longer than one Year was by the Judges declared void and all Kings since might with a Clause of non obstante against the manifest words of the Statute have granted that office for Life in Tail or in Fee But I need not enlarge upon this for all the Acts for the King's Supremacy all the Laws and Statutes that over were made put this beyond Dispute that the affirmative Voice is absolutely in the King that no Laws can be binding or be Laws at all without his special Consent and this being one of the great Rights of Sovereignty cannot be separated from the Person of the King although he (q) Suprema jurisdictio potestas Regia etsi Princeps volet separari non pessunt sunt enim ipsa sorma substantialis essentia Majestatis ergo manente ipso Rege ab eo abdicari non possunt
Curiae suae Baronum Parium suorum So Anno 1240. 24 H. 3. (i) Graviter accusatus coram Rege Curia tota Lond. Mat. Westm 153. Matthew Paris saith That Hubert de Burgo Earl of Kent was grievously accused before the King and his whole Court and it was adjudged he should resign to the King four of his Castles I cannot omit one memorable passage that (k) Mat. Westm Anno 1260. p. 295 296. Anno 1260. 44 H. 3. there falling out a difference betwixt King Hen. 3. Prince Edward his Son Simon Montfort and other Nobles the King called his Baronage to St. Pauls and there it being urged that Prince Edward had done some injuries to the King he offered to prove himself innocent before the King and his Uncle who was King of the Romans saying Who are Peers of Prince Edward That none of (l) Omnes alios Barones Comites sibi de â—ure non esse Pares nec sâ—â—s in eum excercerâ— disâ—ussiones the rest of the Barons and Earls were by right his Peers nor ought to exercise upon him their Discussions of the matter By which it appears that he judged himself to be something more than a Peer of the Realm being the Heir apparent of the Crown I might fill a large Volum with the Histories and Records to prove this but since Levellers and the House of Commons that voted the House of Lords dangerous and useless have received such deadly wounds by Mr. Prynne in his Plea for the Lords who was once one of their own Champions I think it needless to whet those Weapons again since they always will be in readiness for any one to make use of if need require and shall only obviate one objection that may be urged That whatever the usage was before the Representatives of the Commons An Objection That after the House of Commons were admitted the Jurisdiction of the Lords House was lessened Answered yet the Commons after were often admitted to a share of Judicature in some cases But I shall give a few Instances how after this change of the Constitution of Parliament still this power of Judicature remained in the King and House of Lords Roger de (m) 4 E. 3. num 11.28 E. 3. num 9 10. Mortimer being accused of High Treason 4 E. 3. for the Murther of King Edward 2. after his resignation and unlawful deposition Knighton (n) De Event Angliae lib. 3. c. 16. col 1556 1557. giving an account of the proceedings agreeable to the Parliament Roll saith Rex praecepit Comitibus Baronibus caeteris Magnatibus Regni justum judicium ferre super praedicto Rogero de Mortimer So at the Parliament held at Salisbury 7 R. 2. W. de Zouch is said to be called to the Parliament to stand to the Judgment (o) Ad standum judicio Regis Domincrum Walâ—ingham p. 334. Hist Ang. Hypodig Neust p. 141. of the King and the Lords So Michael de la Pole Earl of Suffolk and Chancellor of England 10 R. 2. (p) Rot. Parl. 10 R. 2. num 6. ad 18. was accused by the Commons in full Parliament before the King Bishops and Lords and at last it is said The Lords in full Parliament gave judgment against him In the Parliament 11 R. 2. Thomas Duke of Gloucester offered to put himself upon his Tryal as the Lords of the Parliament would award c. After which the Lords as well Spiritual as Temporal claimed their Liberties and Franchises namely That all weighty matters in the same Parliament which should be after moved touching the Peers of the Land should be judged and determined by them by the course of Parliament and not by the Civil Law nor yet by the Common Law of the Land used in other Courts of the Realm Yet this seems a very high Demand for they have not Juris dandi but dati Jurisdictionem as they are a Court of Ministerial Jurisdiction being the Court of the King's Barons in Parliament And though when upon Writ of Error (q) Egerton sect 4.22 23. any Judgment in the King's Bench is examined in the House of Lords and there affirmed or reversed the Judgment is said to be affirmed or reversed in Parliament yet we cannot conclude they have the Power of the High Court of Parliament that their Decrees if against the Law should be as binding as Acts of Parliament How the Lords judge ministerially And though the same House in the same Session may not have Power to review again their own Judgment nor to restore again any Judgment they have reversed because they judge ministerially and not sovereignly and so bind their own Hands as well as their Inferiors whereas an Absolute Supreme Court is never at the last Period of Jurisdiction yet we see Attainders in one Parliament reversed in another and so may their Judgments be But this obiter I shall but add one proof more being full and express to the purpose to prove the House of Lords sole Jurisdiction with the King who must always be understood to give Judgment by them The Record is 1 H. 4. (r) Rot. Par. 1 H. 4. num 79. Exact Abridgment p. 392. where it is said That 3 Nov. the Commons in this Parliament shewed to the King Come les joggements du Parlement apperteignent soulement au Roy Seignieurs nient aus Communes c. That the Judgments of Parliament appertained only to the King and to the Lords and not unto the Commons Thereupon they prayed the King out of his special Grace to shew unto them the said Judgments and the cause of them that so no Record might be made in Parliament against the said Commons which are or shall be parties to any Judgment given or hereafter to be given in Parliament without their Privity Whereunto the Archbishop of Canterbury gave them this Answer by the Kings Commandment That the Commons themselves are Petitioners and Demanders and that the King (s) Et que le Roy les Seigniours de tout temps ont eues averont de droit les Juggement in Parliament en manere come mesmes les Communes soâ—t monstres and Lords from all times have had and shall have of right the Judgments in Parliaments in manner as the Commons have shewed How far the King and House of Lords have been Judges of the Priviledges of the House of Commons I shall declare in that part of this Chapter wherein I treat of that House SECT 5. Of the Assistants to the House of Lords HAving thus far treated of the Constituent Parts of the House of Lords I come now to the Assistants to this most Honourable House which were mostly the (t) Prynne's Brief Register part 1. sect 3. p. 240. The Judges and other Assistants of the House of Lords King 's Great Officers as well Clergy-men as Secular Persons who were no Lords or Barons of the Realm as namely his Treasurer
allow no alteration but in that of Dudley Which makes some observe Lawyer out-lawed p. 12. That if the House of Commons had then known they had any Power to mend the said Returns or punish the Offenders or Sir Edward Coke had known it had been Law he had never been sent on that Message So that what Authority the House hath it hath accrued since SECT 11. Concerning the House of Commons Censuring Imprisoning and Expelling their own Members AS to the Commons Imprisoning and Punishing their own Members The Reasons for this Privilege for words by them spoken or Misdemeanors committed in the House there may be some reason for it First Stat. 4. H. 8. c. 8. Coke 4. Instit p. 25. 31 H. 6. c. 26 27. because by Law they are not Punishable elsewhere for any rash indeliberate and inordinate Speeches in Parliament which do not amount to Treason Felony or Breach of the Peace which it is supposed none in that rightly constituted House will protect though done in the House of Commons begun in 1641. Secondly It is to be supposed that the Members upon their entring into that House unanimously agree for order sake that the lesser number should always submit to the greater So by such Consent and original Compact every single Member submitting himself to the rest he hath no such reason to complain although they had no such Authority for scienti volenti non fit Injuria provided that they exceed not the common Rules of Justice nor the Bounds of Established Laws for then no private Act can bind a Subject though made with his own free Consent as appears in Clark's Case against the Mayor and Burgesses of St. Albans Coke lib. 5. p. 64. The first Precedent I find that any Member of the House of Commons was complained and Petitioned against for Misdemeanors and put to answer before the King and Lords in Parliament Rot. Parl. 16. R. 2. num 6. and there judged and fined was 16 R. 2. the Wednesday after the Parliament began when Sir Philip Courtney Members of the House of Commons punished for Misdemeanour by the King and Lords returned one of the Knights for Devonshire came before the King in full Parliament and said that he understood how certain people had accused and slandered him to the King and Lords therefore prayed to be discharged of the said Imployment until the accusations c. were tryed and because his said Prayer seemed honest to the King and the Lords the King granted him his Request and discharged him in full Parliament Exact Abridgment p. 417. and the Monday following at the Instance and Prayer of the Commons the King granted that he should be restored and remitted to his Place In the Parliament 4 H. 4. the accusations against him being re-inforced the King and Lords adjudged that he should be bound to his good Behaviour and committed to the Tower for his Contempt By which saith Mr. Prynne it appears Plea for the Lords p. 386 387. That only the King and Lords in full Parliament can suspend or discharge any Knights or Commoners sitting in Parliament and have Power of restoring and re-admitting a suspended Member of the Commons House and he answers the Precedents that Sir Edward Coke brings 4 Instit p. 23 and 3 Inst p. 22. Vide pag. 296 297 299 344 371 372 373. and many others which would be tedious here to insert The first Precedent he finds The first Precedent of the House of Commons secluding their Members that the Commons began to seclude one another upon Pretence of undue Elections and Returns was in Queen Elizabeth's time when Thomas Lucy 8 Eliz. was removed out of the House for giving four Pound to the Mayor of Westbury to be chosen a Burgess and the Mayor fined and imprisoned and 23 Eliz. Mr. A. Hâ—ll for publishing the Conferences of the House and writing a Book to the dishonour of the House was committed to the Tower for six Months and fined five hundred Mark and expelled the House and in King Charles the First 's time this Power over their Fellow-Members was greatly improved in which how far Mr. Prynne then concurred I know not but after he was secluded he every where writes with great earnestness against this usage but whether with Judgment Law and Reason I shall leave others to judge only I think fit to insert some of his Invectives against the Proceedings of that unparallell'd house of Commons First he saith There can be no legal Trial or Judgment given in Parliament in Criminal Causes or others Id. p. 309. Mr. Prynne's Reasons against this Usage without Examination of Witnesses upon Oath as in all other Courts of Justice which the House of Commons cannot do Littleton sect 212. Coke ibid. Secondly That it is a Rule both of Law and Justice That no Man can be an Informer Prosecutor and Judge too of the persons prosecuted and informed against the Commons being in the nature of the Grand Inquest Coke 4. Inst p. 24. being summoned from all parts of the Kingdom to present Publick Grievances and Delinquents to the King and Peers for their Redress Plea for the Lords p. 373. Thirdly That all the objected Precedents are of very puny date within time of memory therefore unable to create a Law or Custom of Parliament or any right of sole Judicature in the House of Commons Fourthly Id. p. 387. That all these Precedents were made by the Commons themselves unfit Judges in their own Cases much less over one another being all of equal Authority so that in his opinion they could no more expel or eject any of their Members by their own Authority without the King and Lords concurrent consent See Legal Vindication p. 10. than one Justice of Peace Committeeman or Militia-man can unjustice or remove another since par in parem non habet potestatem neither in Ecclesiastical Civil Id. p. 373. Military or Domestick Affairs Fifthly That they are all against Law because coram non Judice he having throughout the whole Discourse endeavoured to prove That the Commons have no right or power of Judicature much less of sole Judicature in our Parliaments but only the King and Lords Sixthly That these Precedents are but few never judicially argued and rather connived at than approved by the King and Lords taken up with other more publick business therefore passing sub silentio they can make no Law or Right as is resolved in Long 5 E. 4. fol. 110. Cook 's four Rep. fol. 93 94. Slade's Case and six Rep. fol. 75. Drurie's Case Seventhly In the long Parliament of King Charles the First they began to seclude Projectors Exact Collections of Ordinances p. 541. to 558. Monopolists c. though duly elected then suspended and ejected such who were Royalists and adhered to the King then they proceeded to imprison and eject those Members Plea for the Lords p.
Prince should be limited from using the legislative Power without concurrent assent of the Peers and Commons By which means the constitution of our Parliaments is so equal and geometrical and all parts so equally contribute their Offices that no part can have an extream predominance over other Therefore to prevent any evil that might come by the admission of two such Bodies to a participation of Power in this particular of making Laws if they should combine against the Soveraign the Law gives them an equal Power to assent or dissent The Ballancing of the Powers in Parliament so that opposing the single Power of every one of them to the Votes of every other two there might be so secure a balancing of the Power of one against the other that no practice of any two of them should do any prejudice and diminution to the third without the third Party it self did give consent unto it otherwise the King and Peers might oppress the Commons the King and Commons oppress the Peers or the Peers and Commons oppose the King and the Peers being easily oppressed by the Commons as we saw in our late calamitous Times an Appian Decemvirate or the 30 or 300 Tyrants might get the Power into their own hands In another place he saith Though properly Laws be the Acts of the King in Parliament yet are they also truly the Acts of the whole Parliament because every of the Estates contribute their Power according to the diversity of their Office and Interest and so as from a sacred Tripos the civil Oracles of the Law are delivered It is therefore to be considered saith a Judicious (m) King's Supremacy asserted c. 9. p. 96. where the Reader may find a full Answer to the Deductions they make from the King's way of arguing Author in answer to some other passages of his Majesty that the Parliamentarians wrested That if his Majesty out of a desire to save the effusion of Blood used such gracious Expressions as were most likely to prevail with the People and consolidate their Minds they ought not in Equity to prejudice the Rights of the Crown although he had abdicated therein some parts of his Authority and granted things destructive to his own Prerogative From his Majesties saying That the Power legally placed in both Houses is more than sufficient to prevent and restrain the Power of Tyranny they infer This cannot be made good without a Power of Resistance for that Tyranny cannot otherwise be restrained Which is easily answered For it cannot be understood that the King means by this a forceable resistance or restraint (n) Id possit quisquam quod jure possit but a legal one so far as Humane Prudence can by lawful and just ways provide The Power they have by Law being to inflict punishments on evil Instruments whereby others may be afraid to take upon them such Imployments and they may refuse to give the King Subsidies and other necessary Assistance if he refuseth to moderate excesses which are Powers more efficacious than resistance the success of the one being more probable and likely than the other However The not asserting of King Charles the First 's Prerogative disadvantagious in my poor opinion it had been more honourable and probably more efficacious to have spent less time in this kind of defending the Kings Interest by the Pen and have imployed it in asserting the true Prerogative of the King and his undoubted Rights to have let the People as well as the Houses know what he would reform and out of Princely Clemency grant for his Peoples ease and at their earnest Petition but neither to have depreciated or descended so much below the Majesty and Dignity of his place to enter into Reply and Duply Altercation and Apologies with his Subjects But that King composed all of Mercy Justice and Tenderness to his Subjects judging others by his own Royal Standard of Integrity let the Houses seize his Ships Magazines and left them the City of London's Purse while he retired to the North and plied the Houses with Declarations and Messages to have reduced them to their Duties and though his condescensions were great and the way of Argument such as before I have instanced in yet I cannot find except in that particular of making himself one of the three Estates that he yielded any part of his Royal Prerogative till he was made Prisoner that in his restraint he condescended to a temporary divesting himself of the Militia and other things which all sorts of Subjects except the very chief of those in Rebellion against him found infinitely more tending to the enslaving and utter ruine of the People than ever they could have been if the King had managed all by his absolute Will and the direction of those they accounted his worst Instruments I having in several places cleared the Kings Soveraignty shall only on this Head endeavour to answer the principal of those popular Reasons the Writers for the Parliament used not grounded upon any Law or Constitution of the Government but only upon the false supposition That the Wisdom of the two Houses was to be valued above the Wisdom of the King and Council in proposing matters for the Royal Assent which were conducible to the Liberty of the Subject which they pretended was their whole design and that they would establish the Kings Throne in more Glory and Splendor than had ever been in any Ages The first and principal Topick they used was The Monarchy of England not mixed That the Monarchy of England was in its Constitution allayed and the Power of the two Houses in making Laws had such a Copartnership and radical mixture that they had something more than a Consultive and Assenting part and that the King was oblig'd in the duty of his Office and by his Coronation Oath to grant what they desired Mr. Sherringham (o) King's Supremacy asserted p. 74. hath culled out the prime Arguments of the Author of the Treatise of Monarchy The fuller Answerer and others upon this Head and so fully answer'd them that I must refer the Reader to him for satisfaction and shall only select some of the chiefest of these Arguments more for the orderly continuance of this Discourse than for any need of repeating them First They say That King Charles the First owned the Law (p) Declaration from Nâ—wmarket 9 March 1641. to be the Measure of his Power and if so it is limited But this concludes no more than that his Power is of such a size and bigness as the Law hath ordained and if the Law give the King absolute full and entire Power and limits him only in the exercise of it this is a restraint and limitation according to such Laws as the Soveraign hath established in that particular alone and is the happiness of the English Subject that Kings act not Arbitrarily but this gives no Power to the two Houses to be any checks upon
should be forwardest to supply the necessities of the Crown to shew all Loyal Dutifulness to their Sovereign whereby a most dangerous Rebellion in both Kingdoms was the easilier crushed and which endears them to the King that there can be no danger but whatever good and wholsome Laws they shall propose for the general good of the Kingdom will find a chearful allowance by him How happy had our Forefathers been if King Charles the First had met with such considerate Parliaments who by a seasonable supply and compliance might have had without that vast effusion of Blood and Treasure all their Grievances redressed and the flourishing State of the Kingdom preserved and the Memories of a great many Noblemen and Gentlemen had been transmitted without stain to their remote Nephews But to draw towards a Conclusion of this Discourse Some not willing to hear of the Miscarriages of Parliaments think this Discourse needless Some that may not be willing to hear of the Miscarriages of some Parliaments wherein probably they were concerned may say what need is there now to bring again upon the Stage the rigorous Proceedings of the two Houses of Parliament or more properly of the leading and designing Men in the House of Commons in the Years 1640 and 1680. since we are now happily past these Rocks Quicksands and treacherous Shores All the World indeed must acknowledg we have a Royal wise Pilot Because we have a most wise King and good Parliament who knows full well to steer the Soveraignty of the Commonweal He hath weathered out high going Seas so that neither their over-whelming liquid Mountains nor the terrible Shot from the floating Castles have daunted him magnanimity unparallel'd Courage and an Experience beyond most Crowned Heads have raised him great Trophies of his Victorious toils He is served with sage Councils both private and National So that all must confess we have less cause to fear any more dangers of Hurricanes and Shipwracks But though we now enjoy Halcyon days Yet we are not secure but that in after-Ages evil Members of Parliament may be under a Sovereign enriched with Royal abilities to the heighth of our Wishes though he is blessed with a Parliament as Loyal as can be desired betwixt whom there is no other Strife but who shall out-pass the other in mutual Obligations Yet are we secure that no ill Exhalations may be gathered in after-Ages Can we expect always temperate Weather pleasing Sunshine and fruitful Showres No in small revolutions of Years we find Epidemical Diseases return excesses of Drought Rains or Frosts are often marked in our Annals even after promising Configurations of the Coelestial Bodies I write not an Almanack for a Year The Design of the Author in writing against the Exorbitances of some or Pamphlet for a time my Design is not Infandum renovare Dolorem out of any Pique but as much as in me lies to show from the by-past Irregularities and Exorbitances of some Men how Loyal good and Just Men may measure things by the Golden Standard of the Laws how mischievous Practices and Principles may be obviated how every one may see what the upshot of rebellious Principles will be how to detect and how to avoid the same kind of Rocks and Sands in after-Ages I know some Persons recovered from a valitudinary Condition Some love not to hear of their Distempers love not to hear of the Torments they have undergone nor of the Extravagances of their delirous State Yet this should not hinder but the Healthful and those that would avoid the Calenture should patiently endure to hear a Description of the Causes and Symptoms In this Discourse I have only culled out such Particulars The Author's Apology for himself as I find Judicious Authors have insisted upon against the unprecedented Proceedings of some late Houses of Commons which I think all Loyal Persons disapprove and I believe a great many as well as my self have heard many of the then sitting Members dislike when things were carried with an impetuous Torrent that it was more dangerous to speak against their proceedings or question the unlimited Power assumed by that House than it was to speak Seditious I had almost said Treasonable Words against the King Therefore I hope none of this present Honourable House of Commons who have so signalized their Loyalty in the last Session will take offence at what from such judicious Persons as I have met with I have delivered the Sentiments of My intention is no ways to lessen the Rights or necessary Privileges of that venerable Assembly which never can be unbeneficial to the King or People but when Discontent Faction and Sedition hath too spreadingly infected the Electors The continuance of that worst of Parliaments of 1641. What evil Principles taught during the Long Parliament in their disloyal Practices so long by the overgrowing of the Tares which were only suffered to thrive occasioned so much corrupt seed to be sown as in twenty years there was no wholesom grain left We saw too late how by some evil Seedsmen a fertile but dangerous Crop was shooting up apace It is not a little Labour nor small diligence will howe and weed out the Briars Thistles and destructive Shrubs and poysonous Weeds that shoot their spreading Roots so far But I hope the great Wisdom of this Loyal Parliament will find out ways and methods to prevent the danger of their thriving in a Soil worthy of better Plants than any will be set by Republican Hands CHAP. XXX Of the Kings most Honourable Privy-Council I Find by several Authors Four kinds of the King's Councils The First that there are reckoned Four Councils of the King First The Magnum Concilium consisting of the Prelates and Nobles in Parliament of which Bracton (a) Lib. 1. c. 2. may be consulted and what I have writ in the Chapter of Parliaments Secondly A Convention of the Peers of the Realm The Second Lords of Parliament yet not meeting as a Parliament which appears manifestly in the Record 25 Aug. 5 H. 7. upon an exchange made of some Lands betwixt the King and the Earl of Northumberland the King promiseth to deliver the Earl Lands to the value c. by (b) Per advice assent du Estates de son Realm de son Parliament parensi que Parliament soit devant le Feast de St. Lucy ou autrement per advice de son Grand Council autres Estates de son Realm que le Roy serra assemblez devant le dit Feast in case que le Parliament ne soit Coke 1. Instit lib. 2. c. 10. sect 164. the Advice of the Estates of his Realm of his Parliament if the Parliament be convened before the Feast of St. Lucy or otherwise by the Advice of his Great Council and other Estates of his Realm which the King shall Assemble before the said Feast in case the Parliament be not called which well
great Oeconomy the whole System is kept in regular and orderly Motion is firmly established and enabled to exert all those beneficial Powers that are admired in a well composed Body Politic. The Body without the Head being but a Trunk and inanimate Carcase and the Head without the Body as a curious piece of Clock-work without Motion It must be owned to be a noble Enterprise to make researches into the constituent Parts Harmony and Composure of Government which is that benign Supreme Power which influenceth vast Societies of men and combines all tempers constitutions and interests in one noble Machine for the benefit of the whole and every part and makes every Dominion a little World wherein Beauty Order and the Blessings of this Life are inspired into all the Members how minute soever with that calmness when no disturbances are given it that we scarce hear the motions of the (c) Sic orbem Reipubliâ—e esse conversum ut vix sonitum audire vix impressam orbitam viâ—ere possumus Cic. â—â— Attic. Ep. 36. Machine or see the Springs that move it But as in the Body Natural the (*) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Philosopher observes That by the turbulence of depraved Appetites by heady Rashness and seducing Passions in the vitious and ill-affected the Body seems to command the Soul and Reason is dethron'd So in the Commonweal when from mistakes and misguided Zeal Discontent Ambition and other vitious Inclinations People are infected whereby the Malignant Fever of Sedition or the Pest of Rebellion rageth in a State the Sovereign is for a time kept from the Exercise of his Royal Power The Scheme of the whole work and sometimes dethron'd But to leave this pleasing Allegory which I could pursue in comparing all the Members of the Body and Faculties of the Soul with the constituent Parts and Offices of Government I shall instead of that draw a short Scheme of my design in this Work which I had never undertaken if it had not been that I was invited to it by a Great and Wise Minister of State My Lord President whose glorious Service to his Prince and Country will be celebrated in remotest Ages and having liv'd to make some Observations on the Causes and Managery of the Rebellion against King Charles the Martyr and the tendency to another Civil War of later date and revolving with my self that though many wise and judicious Persons both know and have learnedly writ of the secret Springs and Movements of them infinitely beyond what I can pretend to and that both our own Country-men have in Parts writ of all the branches of the English Government and many Foreigners of Politics in general or such as were fitted for the Governments under which they lived yet having met with none that had so particularly writ of the Excellency of the English Monarchy as to illustrate it so as it might be useful to the preventing Seditions and Rebellions and to clear the Commodiousness and Necessity of submitting to it and placing a great Portion of our happiness here in living under it I conceived it might be a profitable Essay to excite those who have not leisure and opportunity to peruse great and numerous Volumes to extract for their use such things as had occurred in my poor Reading to induce them to prize it as they ought and to furnish them with such Arguments as my low Reasoning was able whereby to answer the Objections of our late Republicans against it and discover their Methods of Proceedings towards the overthrowing it and to caution all the well-meaning Subjects against all the Arts of Factious and Seditious People and Principles And though I cannot promise my self the success I wish yet I hope I may excite some more knowing learned and judicious to furnish our little World with a more Copious and Elaborate Piece which may supply my defects and more abundantly satisfy the ingenious and curious Reader to whom I shall now draw the Curtain and expose the Model of the designed Work First Therefore (d) cap. 2. as a Foundation I shall treat of the necessity of Government in General In which Chapter I shall discourse of its Original in Families c. (e) cap. 3. Then that the People are not the original of Government Then (f) cap. 4. of the benefit of Government in instituting Laws In (g) cap. 5. securing Property and other particulars From this I proceed to treat of the (h) cap. 6. inconvenience of Democracy and of the several (i) cap. 7. Forms of Common Wealth Governments before and in Aristotle's time After which (k) cap. 8. of the inconvenience of all kinds of Republick Governments Then of the preference (l) cap. 9. of Monarchical Government before all others In all which Chapters I touch upon the Principles and Practices of our late Republicans which having dispatched I give the Character of a good (m) cap. 10. King in general Then that the care (n) cap. 11. of Religion is incumbent upon Kings Then of the (o) cap. 12. Clemency Prudence (p) cap. 13. Courage (q) cap. 14. and Military Conduct of Kings of the (r) cap. 15. burden and care of Kings (s) cap. 16. The Excellency of Hereditary Monarchy Then I proceed to the King's Authority and (t) cap. 17. Sovereignty in general and more (u) cap. 18. particularly according to our Laws by the Enumeration of many particulars (w) cap. 19. Then as a Corollary that the Sovereign is not accountable to any upon Earth That the King is not to be (x) cap. 20. Resisted or Rebelled against In what cases he may (y) cap. 21. dispence with the Execution of the Laws of his Country Then I treat of the King's Authority (z) cap. 22. in making Laws and of the Laws of the Romans in Britain and of the British and German Polity Next of the Saxons (a) cap. 23. great Councils of whom they consisted and how the Laws were established by the respective Kings Then of the great (b) cap. 24. Councils from the Conquest to the beginning of Hen. 3. Then of the great Councils (c) cap. 25. and Parliaments during the Reign of Hen. 3. to the end of Edw. 3. After which of the Parliaments (d) cap. 26. of England during the Reign of Edw. 2. to the 22. of King Charles the 2d Then of Modern (e) cap. 27. rightly constituted Parliaments and of the Factious (f) cap. 28. Members of Parliaments wherein I discourse at large of the Encroachments of some Parliaments especially of some Houses of Commons Then from the great Council I pass to the (g) cap. 29. Right Honourable the Privy Council their Qualifications to be at the King 's sole appointing Of Ministers (h) cap. 30. of State c. Then of the King's Sovereignty in appointing (i) cap. 31. Magistrates (k) cap. 32.
by the Law said to be in the King (z) Sheppard ut supra a threefold greatness of Perfection First of being freed from Infamy and all kind of Imperfections common to Man Secondly of Power in having the command of all his People Thirdly of Majesty being the Fountain of Honour Justice and Mercy The King is Gods immediate Viceroy (a) Câ—k 2.44.5.29 within his Dominions Vicarius Dei As his Protection and Government reacheth to all his People as Subjects so the Allegiance and Obedience of them all is due to him as their Sovereign whether Ecclesiastical or Civil and so he is Persona mixta his Prerogatives are called Jura Regalia Insignia Coronae Ancient Prerogatives and Royal Flowers of the Crown so inseparably annexed to the Crown that none but the King may have them nor can they be communicated to or taken by any Subject (b) Bracton lib. 1. c. 8. Stat. 25 H. 8. c. 21. Nemo terram nisi Authoritate Râ—gia possiâ—et Plowden 136. Jenkins Cent. 7. Case 77. 2. Case 16.17 E. 2. c. 17. Nevil 101.174 All Lands are said to be held of him immediately or mediately he can hold of no Man or any be equal to him as to be joynt Tenant of Land with him and his Jurisdiction is over all places within his Dominions both on the dry Land and on the Sea The Judges are to observe it as a certain Rule That whatever may be for the benefit of the King and his profit shall be taken most largely for him and what against him and for his disprofit be taken strictly neither is it only the duty of Judges but of all other his Subjects in their Stations to help the King to his Right The Perogatives are many and great yet such as are his by the Ancient Law of the Land and what the Kings of England have time out of mind used and are such as are of absolute (c) Coâ—e 12.8.30.2 part Instit 262.496.5 part 11.2.8 necessity for the security of the Government and the Public weals As to call and dissolve Parliaments give his Royal Assent to Laws command the Militia coyn Moneys grant Honors make and dispose of the great Seal dispense with penal Laws pardon Felonies and Treasons make and appoint great Officers Justices of Eyre and Assize of the Peace Gaol-delivery and Sheriffs to grant Charters to Corporations and other Persons or Fraternities He hath the sole Power of appointing ratifying and consummating all Treaties with Foreign Princes making War and Peace granting Safe-Conduct and Protection and all these and many other are firmly ascertained (d) Quod Rex est 〈◊〉 Lex est Regi Rex est Amma 〈◊〉 Lex est Anima Regi by Laws and have ever been and still are in the King alone and at his own Discretion Although there is no need in describing the Sovereignty of our Kings to carry it up to that absoluteness of Monarchy where all things are appointed and reversed by the Sovereigns fiat yet (e) Jus Regium p. 42. we must on the other side consider That the Monarchy which is subject to the impetuous Caprices of the Multitude when giddy or to the incorrigible Factiousness of the Nobility when interested is in effect no Government at all it must be owned That in all Governments a Sovereignty must reside some where and a Monarch can 〈◊〉 no Participants For then it would cease to be a Monarchy and in things that relate immediately to Government the King hath as much right to regulate them as to instance to restrain the Licence of the Press or secure Peace as we have to regulate and dispose of our Property Government being the Kings Property for with the Monarchy the King must enjoy all things that are necessary for the Administration of it according to that just Maxim (f) Quando aliquid â—oneditur omnia concessa videntur sine quibus concessum explicari nequit of the Law When any thing is granted all things seem to be granted without which the thing granted cannot be explained Which warrants the Kings Advocate of Scotland to lay that down as a general (g) Jus Regium p. 77. Rule That their Kings can do every thing that relates to Government and is necessary for the Administration thereof though there be no special Law or Act of Parliament for it if the same be not contrary to the Law of God Nature or Nations The Power and Authority of the Kings of England have been much more unbounded than they are at present (h) Part 1. c. 16. sol 34. Bracton speaking of his time saith That neither the Justices or private Persons might dispute the Kings Charter but if there were a doubt of it the Resolution must come from the Kings own Interpretation If Justice be demanded of the King saith (i) Idem lib. 1. c. 8. p. 5. he seeing no Writ lies against him one must petition that he would correct and amend what he hath done By the Condescensions of gracious Princes such Restrictions have been made of their Sovereign Absoluteness By the Grants and Condescensions of our Kings their Absoluteness lessened that they have obliged themselves to govern their Kingdoms transmitted to them with such Limitations by their numerous Ancestors by Rules of Law Equity Justice and right Judgment in Imitation of their Supreme Head and Omnipotent Monarch That therefore it may demonstratively appear how happily the Government of England is constituted for the Benefit of the Subjects who under so benign a Monarchy enjoy more Advantages in the Security of their Persons and Proprieties than under the most free Commonwealth that ever we read of I shall lightly touch upon some of those Particulars which the Kings of England by reason of several Acts of Parliament they have given their Royal Assents to have precluded themselves from the single Disposal of as in Absolute Monarchies are used yet I hope to make it clear in several Branches of this Discourse That there is no such thing as Co-ordinacy of any other Power or such a mixture as vitiates the Monarchy by a debasing Alloy much less that the Government can be Arbitrary or Tyrannical which hath sheathed the Sword of Justice within the Velvet Scabbard of the Laws and lined the Scarlet Robes of Majesty with the softest Ermine of Indulgence to well deserving Subjects who by their Obedience and Considerateness make their Princes and their own Happiness most perfect For it is equally unhappy to Princes and Subjects where (k) Alii Principes Reges hominum ipse Rex Regum Maximilian's Jest is true That whereas other Princes were Kings of Men he was King of Kings because his Subjects would do but only what they list But to come to the Particulars of Royal Abatements and Indulgences The Kings of England may not rule their People by their Will or by Proclamation as the Roman Emperors by their (l) 〈◊〉 lib. 2. c. 8. The
Particulars of Royal Abatements Edicts or make new Laws or change any of the old standing Laws without the mutual Consent of the two Houses of Parliament He may not oppress the People or in any Arbitrary way take from them their Liberties or Estates under any pretence whatsoever without due course of Law Nor can he impose upon their (m) Stamford's Pleas of the Crown Persons what Charges or Burthens he pleaseth but according to and by the Laws of the Kingdom He cannot do any thing against the Law of the Nation or against common Right cannot change Ancient Customs for a Legal (n) Hâ—ghs 's Reports 254.263 Cousâ—uetudo lâ—galis plus habet quam concessio Regalis Custom is more available than a Royal Concession yet on the other side that Custom which advanceth against the Prerogative of the King is void He cannot impose Arbitrary (o) Petit. of Right 3 Car. 1.7 Car. 1. c. 17. payments erect new Offices of Charge to the Subject may not deny or delay Justice may not compel his People to make Gifts Loan Benevolence or Tax without consent of the two Houses The King (p) 2 Car. 1. c. 1. Coke 12.46.2 part Brown lib. 2. c. 2. Coke Instit 2 part 47 48. Petition of Right Dyer 176. may not imprison without just Cause nor keep any Mans Cause from Tryal may not send any man out of the Realm without his own Consent may not in time of Peace Billet or Quarter Soldiers or Mariners upon his People against their Wills may not grant Commission to try Men by Martial Law in time of Peace nor to determine any matters of difference betwixt Subjects other ways than by ordinary (q) 21 Jac. c. 31. Coke 11.87 Plowden 497. course of Law and ordinary Courts may not by Patent or Licence make a grant of a Monopoly or the benefit of a Penal Law or give a Power to dispense with Penal Laws in some Cases (r) Coke 11.87 He may not have or take that he hath right to which is in the Possession of another but by due course of Laws and may not make new or alter old Courts of Justice unless to be kept after the Course of the Law and not in Course of Equity Nor (s) Sheppard's Grand Abridgment part 3. fol. 49. alter the Courts of Westminster that have been time out of mind nor erect new Courts of Chancery Kings-Bench Common-pleas or Exchequer (t) Fleetwood lib. 1. c. 8. He may not by his last Will and Testament under the great Seal or otherwise dispose of the Government or of the Crown it self nor give and grant away the Crown-Lands or Jewels which he hath in his Politic Capacity nor give away any of the incommunicable Prerogatives By these Abatements of Power and gracious Condescentions of the Kings of England for the Benefit and Security of the Subject No Power co-ordinate with the King 's we are not to conclude that there either is or can be any Co-ordination or Coaequality of any State Order or Degree of the Subjects with the Sovereign nor any Competition of the Subjects Power in his Concurrence with the Vertual and Primary Influence of the Sovereign but a plain Subordination and subjected Ministration of the one under the Sovereignty of the other For although there is a Co-operation of the Members with the Head for the performing some Acts of State and they may seem Orders or States coaequally Authorized in the Power of Acting with the Sovereign in Petitioning for advising or consulting about or consenting upon the Kings Summons to Laws And although in judging and determining matters of Private Interest the King hath not an Arbitrary Judgment but is restrained to the Judgment to be administred by the proper sworn Judges in his Courts whom he appoints to judge according to his Laws and in the making of Laws his Power and Judgment is restrained to the Concurrence of the Nobles and Commons in Parliament yet in all other things wherein he is not expresly restricted by any Law of his own or Progenitors granting he retaineth the absolute Power as in the particulars before mentioned and in the Chapters of Parliaments I shall further discourse In the Rebellion under King Charles the First the (u) Observations on His Majesty's Messages c. The Rebels in 1641. would have lessened the King's Sovereignty and placed it in the People or their Representatives Pencombatants for the Party knowing they had the whole Current of the Laws against them made a great noise and bustle with Sophisms and plausible specious Pretences to captivate the Populace and nothing was more frequent than the Misapplication of that of the Philosopher That the King was Singulis major but Vniversis minor Inferring from thence That the Collective Body of the People and their Representatives were Greater in Authority than the King In answer to which it may be observed That the Aphorism how true soever in any other sense is most false in any sense of Sovereignty For if it be meant That the King is a better Man only than any of us single this doth not tell us he is better than Two and this is no more than possibly he might be before he was King For we must needs look upon Princes as Persons of Worth Honour and Eminency when taken from the People which the superaddition of Royalty did not destroy Besides any Lord of the Land may challenge such a Supremacy over all the Knights and any Knight over all the Esquires Furthermore if Princes be Sovereigns to single Persons of Subjects only and not to the universality of them then every single Subject by himself is a Body Politick whereof the King as King is Head and so the Publick Community is out of the King's Protection he being no King as to them in a complex Body Such impudent Falsities and many more destructive Consequences flow from such absurd Principles And if the Maxim were true the People have placed a King not over but under themselves But they enforce the Argument still further That the Fountain and efficient Cause of Power is the People and from hence they say the Inference is just That he is less than the Universe But the (w) Answer to Observations p. 10. Consequence is rather the contrary For suppose the People were the efficient Cause of Power it can be no otherwise than by translating or deriving their divided Power and uniting it in him Since then they cannot retain what they have parted with nor have what they gave away it follows That he who hath all their Power and his own particular besides must needs be greater and more powerful than they it being a very great Truth That he is the only Fountain of Power and Justice Another of their Maxims was That quicquid efficit tale illud est magis tale And they assume But the King was made by the People therefore less than the People In answer to which it is
XXI Of the King's Authority in making Laws HAving treated of the King's Sovereignty I come now to treat of that Top-branch of it the Power and Authority of the King in giving Laws to his Subjects I must be shorter on this Head because the following Chapters concerning the Great Councils and those particularly concerning Parliaments will more fully illustrate and confirm this Particular In all Government the Legislative Power must be fixed somewhere and it is the concurrent Opinion of all (a) Ab eo i. Principe tanquam a fonte Leges omnes Jura â—manant Vinii Epist Dedicat. Id. Comment in Inst it lib. 1. tit 2. p. 13. a. Civilians That all Laws do flow from the Prince as from a Fountain The Word Lex and Jus by Cicero and the Romans were most-what used promiscuously though Lex or Law did frequently signifie what was writ and enjoyned to be observed Therefore the Plebiscita of the Romans at first were not called Laws because they obliged only part of the Citizens till the Hortensian Law gave them the same force as those which were accorded in Comitiis Centuriatis The Plebiscita were among the Romans The Plebiscita of the Romans after the expulsion of their Kings binding Laws and they were made thus The Magistrates who had the greater Auspices in the Commonwealth such were the Consuls Dictators or Pretors proposed the Laws to the Assemblies of the People and asked them by the Name of Quirites Whether they willed or commanded them And they writ in the Table either A. for Antiquo or V. R. for Vti Rogas As thou askest The Tribunes and Plebeian Aediles were the proper Magistrates of the Plebs but the Aediles were never known to demand the Peoples Suffrage to the Laws The Plebiscita at first were made in the Assemblies of the (b) Tributis Comitiis Centuriatis aut Curiatis Tribes and the Laws in the Hundredary or Curiate Assemblies But to be short L. Valerius and M. Horatius being Consuls it being a doubt whether the Fathers were obliged by the Plebiscita they passed a Law in the Centuriata (c) Anno v. C. 304 305. Howel In the Curiata Comitia saith Dionys Comitia That whatever the Plebs should enjoyn in the Convention of the Tribes should be binding to the People which was confirmed by (d) Anno v. C. 367. Vinnius Q. Hortensius the Dictator at the third Secession of the People to the Janiculum therefore (e) Inter Legem Plebiscitum spâ—â—ies interesset constituendi potestas autem eadâ—m esset Sect. de Origine Juris Id. p. 14. Senatus consultum and Power of the Roman Senate Pomponius saith That the manner of constituting a Law and Plebiscitum differed but the Power was the same That which the Senate commanded and constituted was called a Senatus consultum Vinnius proves That while the Roman Republic stood the Laws were made by the People alone and not by the Senate For they had permitted to them as the Publick Council to take cognisance and Decrees of things that related to the constituting the Republic but so that all Matters of great moment were not established unless the (f) Polyb. lib. 6. Dionys Halic lib. 4. 7. Senatus consulta nullam vim legis babehant nisi plebs ea probaret People confirmed them So that by no Decree of the Senate either any new Law was introduced or any old one abrogated So that neither in Julius Caesar or Augustus's time we find mention of their Decrees And (g) 1. de Repub. c. 10. Bodin affirms That from the time of the expulsion of the Kings to the Empire of Tiberius Caesar the Senate had no power to make Laws but certain Annual Decrees which yet did neither bind the People or Plebs During the Civil Wars there was scarce any Authority but in the Emperors till Augustus in some measure restored the Power of the Comitia as Suetonius tells us who saith That Julius Caesar (h) Jus Comitiorum non in totum populo ademerat sed cum eo partitus est Sueton. in Julio did not wholly abrogate the Power of the Comitia but divided the Power betwixt himself and them and Augustus brought back the ancient Jus of the Comitia And Tacitus tells us of these times Ad eam diem etsi potissima arbitrio Principis quaedam tamen studiis Tribuum fiebant That to that day although most things were done by the Will of the Prince yet some things were done by the Study of the Tribes Yet it is observed That from what time the Laws and the (i) Ex eo igitur tempore legibus plebiscitis quiescentibus Senatus jus facere coepit quanquam non tam propria Auctoritate quam conniventia quadam indulgentia Principum Vinnius p. 14. Plebiscita were weakned or less regarded the Senate began to make Laws but it was by the Connivence and Indulgence of the Princes as appears by the Orations the Princes had in the Senates Therefore (k) Solus arbiter rerum Jure n mine Regio 1. Annal. Tacitus makes his Prince sole Arbiter of Affairs by Kingly Right and Name and gives the Reason for it Because the nature of Commands consists not otherwise than that the last resort be to One Ea est imperandi ratio ut non aliter constet quam si uni reddatur So the Judicious (l) Reges domâ—ni rerum temporumque trahunt conciliis cuncta non sequuntur Lib. 8. Livy saith Kings are Lords of Things and Times attracting all things by their Counsel not following them So Mecaenas's Advice was to (m) Insurgere paulatim munia legum magistratuum ad se trahere Tacit. 1. Annal Augustus insensibly and gradually to draw to himself the Appointment of Laws and Magistrates However by Pliny it is recorded to the Honour of Trajan That he would make no Laws without the Senate as Alexander did nothing in Military Affairs without his Council of Officers or in other Matters of moment without his Council of Prudent Men. Thus the Senate had a shadow of Authority and were something like the Parliaments of France to ratifie the King's Edicts And it was some advantage to a Senate that the Prince concurred with (n) Senatus Potentiam augendo suae serviebant Suet. c. 29. them è contra So we read That Theoderick the Goth passed that obliging Complement upon them (o) Judicium vestrum Patres Conscripti noster comitatur assensus Our Assent Fathers of the Senate accompanies your Judgment So Bodin observes That whenever the Senate had any Authority it was when it was particula quaedam Majestatis and had it not vi Senatus sed quia simul sustinet partem Majestatis So he would ascribe to the Senate Jus decernendi Sententiam pronunciandi but to want the absolute Legislative Power For if the Senate had obtained that the Government must have been Aristocratical How the Equites by a Law
Cabedo Pract. Obs par 2. decis 40. would himself For it is essential to Majesty and Soveraignty and cannot be abdicated while he remaineth King nor separated without the diminution or destruction of Majesty How both King and People are obliged to defend the Rights of the Crown will appear in the Laws ascribed to King Edward the Confessor in the 17.35 and 56. As to the Particular How absolutely necessary the Royal Assent is to all Laws in the Act of Recognition to King James the First it is fully expressed thus Which if Your Majesty shall be pleased as an Argument of your Gracious acceptation to adorn with Your Majestie 's Royal Assent without which it can neither be Compleat and Perfect nor remain to all Posterity according to our Desire as a Memorial of your Princely and tender Affection towards us c. Against what I have laid down those who were for co-ordinate Powers in the two Houses object many things Answers to some Objections against the King's sole establishing of Laws some I have answered in the Chapter of the King's Sovereignty and I shall meet with others in the Chapters of Parliaments And shall here only take notice of some omitted or not fully answered there Against the assertion That the Liberties granted by King Henry the Third were by way of Charter they produce the Preamble (r) Coke 2 Instit fol. 525. to the Confirmation of King Edward the First of Magna Charta La Charte des Franchises la Charte de la Forest les queux fuerent faitz per Commen de tout Royalm en le temps le Roy Henry pier soient tenue c. and Charta de Foresta wherein he saith that the Charter of Liberties and the Charter of the Forest made by the Community of all the Realm in the time of King Henry our Father shall be kept c. To which with the Judicious Doctor (s) General Preface to Compleat History p. 41. The ancient Kings sealing of Charters of Liberties reputed Laws Brady may be answered that these were the Petitions and Requests of the Community of the Kingdom and may be said to be made that is digested by them into the form of a Charter So the Barons offered King John's Magna Charta to him ready drawn in a Schedule and forced him to grant it and cause his Seal to be put to it and the whole strength and validity of the Charter lay in his Grant and the Confirmation of it under his Seal This was the only Security they desired and demanded no other and the Tenour of all the Charters were accordingly We grant We confirm We give for us and our Heirs to them and their Heirs c. Which Grants and Concessious were always in these times accepted and acknowledged to be sufficient without the least doubting or scruple There was no other Power or Authority that gave them being but the King's so that it seemed the great Councils or Parliaments of those times owned the Kings Charters under Seal and the Grants made by them to the People to be of good force and effect and that their Petitions to which he gave his assent and caused to be put under his Seal were by them accepted and from time to time acknowledged as firm and valid Laws The same learned (t) Idem p. 67. The Laws planted by Kings Doctor Brady observes that Sir Edward Coke hath a formal way of speaking The Law doth this and The Law doth that This is Law That is by Common Law of England abstracting it from any dependance upon or Creation by the Government as if it had been here before there was any and had grown up with the first Trees Herbs and Grass that grew upon English Ground and had not been of our antient Kings and their Successors planting by assistance and advice of their great Councils in all Ages as it was found expedient either by them or upon Petition and Request of their People which is acknowledged by all the Bishops Earls Barons and People present at the (u) Claus 1 E. 2. m. 10. dorso Coronation of King Edward the Second in these words Sir Will you grant and keep and by your Oath confirm to the People of England the Laws and Customs granted to them by the antient Kings of England your Predecessors true and devout to God and namely the Laws and Customs and Liberties granted to the Clergy and People by the glorious King Edward your Predecessor Another Objection some make against the Absoluteness of the King's Power Second Objection when it is said in antient Statutes The King ordains The King wills that it hath been resolved by many of the Judges (w) Coke 8. Report s 20. b. that if these Statutes be entred in the Parliament Rolls and allowed as acts of Parliament it shall be intended they were by Authority of Parliament With the Judicious Dr. Brady I shall not enquire how such Entry and such Allowance without any Words in the Statutes to that purpose can make them to be by Authority of Parliament But we may he sure those Words The King ordains The King wills being pronounced in Parliament and recorded in the Rolls thereof do clearly prove the King's Authority and Power in making Laws to be far greater than many Men would allow him or have him to enjoy (x) Lib. 3. c. 9. Bracton and the Author of (y) Lib. 1. c. 17. â—leta applying the Passage of the Civil Law Quod Principi placet Legis habet vigorem to the King of England say That Clause ought not to be understood of every thing that is rashly presumed to be his Will but of that which is justly determined upon good Advice and Deliberation by the Counsel of his Magistrates (z) Râ—ge Authoritatem prastante the King giving it Authority and confirming it for a Law and from hence (a) Cum ipse sit Author Juris non debet inde Injuriarum nasci occasio unde Jura nascuntur infer That when he himself is the Author of the Law Injustice ought not to spring from the same Fountain from whence the Law doth spring It is no diminution of the Sovereignty of a Prince in the matter of making Laws or repealing them to have the Assent of the Nobles and such a select Body of Great and Wise Men as the House of Commons are But when as in the Parliament 1641. the Two Houses claim a Co-ordinate Power and would make their Advices be swallowed as Commands it is this that all Loyal Persons should oppose We generally understand that the Persian Monarchy was as Absolute as any yet in it we have a manifest Discovery of the Concurrence of the Nobles in preparing a Decree The Persian manner of making Laws yet they wanted the King's establishing the Decree by his signing it whereby it might not be changed and Grotius thinks they signed it also (b) Dan. cap. 6. v. 7 8
9. The Words are The Presidents and Princes assembled together to the King and told him That all the Presidents of the Kingdom the Governours and the Princes the Counsellors and the Captains have consulted together to establish a Royal Statute and to make a firm Decree c. Now O King establish the Decree and sign the Writing that it be not changed according to the Law of the Medes and Persians which altereth not Here the Presidents c. assembled consult about the Decree they propose it as they had framed it yet they own it was of no force without the King 's establishing and signing it Which is exactly parallel with the Constitution of the Legislative in England if we joyn the Commoners to the Presidents Princes c. No radical mixture of Power in the two Houses with the King But the Writers for the Long Parliament were so desirous to make the Two Houses to have a Radical Mixture of the Legislative Power equal with the King 's that they sought all the specious and plausible Arguments they could to enforce it having little regard to what was Law it self or ancient Usage Therefore one of them in his (c) Pag. 39. Answer to Dr. Fern saith A Legislative Power is not to be satisfied by a bare powerless Consent Third Objection and therefore deman◠Whether that Consent be causal and authoritative or meerly consiliary and unauthoritative That the Two Houses have an Enacting Authority he would prove from that Clause set in the beginning of Acts Be it Enacted by the King 's most Excellent Majesty This will appear a Form of Words lately made use of in the Twenty fourth Chapter and the Authority of the Lords and Commons assembled in Parliament For he saith this implies distinct Authorities for the Addition of the Authority of the Lords and Commons were superfluous if Laws be enacted by the King's Authority alone To which it may replied according to (d) King's Supremacy p. 89. Mr. Sheringham That though it be granted that they have an Enacting Authority in this particular of Law-making which how step by step it hath been brought to the state it is now in will be cleared in the following Chapters yet the Question is first Whether that be only a Power of assenting that such or such a Law shall be established or a Power that commandeth and giveth life and vigour to the Laws Secondly Whether the Power be radically in themselves or derived from the King As to the first It is agreed by the Judges (e) 2 H. 7.14.11 H. 7.25 Lambard Archeion fol. 271. That the Words Assenteth and Enacteth are equivalent in this Case For their Power of preparing Materials for a Law by framing Bills sufficiently denotes their Assent because they are Bills of their own framing and the Wisdom they show in these and the Care of the Government and People will always make that August Body of great use to the Government and valuable by their Fellow-subjects But secondly In this Particular the Writ of Summons is that which gives them all the Power of which in the Chapter of Parliaments I shall enlarge It must be considered from whom they have this Authority They have the Use and Exercise of the Legislative Power so far as is necessary for that Act although it be not radically in them for although the King's Authority cannot be separated from him privativè so as to deprive him of it yet cumulativè it may be inherent in his own Person and yet be in others too as the Light of the Sun is inherent in its own Body and yet diffused through the whole World And so we call it Moon-shine and Star-light when all their Lights are from the Sun And this Delegate Authority may be called theirs because for the time of their Sitting they are by the Sovereign and Constitution of Government so capacitated to act But since they are called by the King 's Writ and dissolved at his Pleasure they cannot be said to have the Power radically in themselves If this radical Power in the Two Houses were true How could the (f) 24 H. 8. 1 E. 6. c. 2. Statutes declare the King to have entire whole and plenary Power and to be so Supreme that all Authority is derived from him and all Obedience and Allegiance due to him and him alone An utmost Chiefty and Primity of Share as they used to speak in 1641. will not make out the Force of the Statutes Because the Kings of England desiring to rule their People by Lenity have out of Princely Clemency condescended so far as not to impose upon them as hereafter it will appear they anciently did any new Law or alter and repeal the old without their own Consents by their Representatives The Black Parliament of 1641. would have the People believe The Encroachments of the Black Parliament that their Authority was equal with the Kings But when Success had hardned them they were not content with a share they at first challenged but laid claim to all wholly excluding the King and denying him his Negative Voice usurping and taking upon them the whole Power of making Laws So that this Serpent of Co-ordinate Power is not to be suffered to wrigle in its Head lest the whole Body glide easily after But I leave the further discourse of this to its proper Place Preface to the following Chapters and shall now proceed to give some Light to the Government the Britans had among them by the Comparison is found betwixt them the Gauls and Germans Being desirous as much as I can to show the Ancientest usages and under the several Conquests of England how the Government hath received Growth and Alteration sometimes the People being under the Slavery of absolute Conquerors and other times factious Nobles bearding their Kings how the even Thred of Regular Government hath been carried on or interrupted how from an absolute Power of giving Law and ruling in a Military way by the Feudal Law and many other particulars the Government is brought to that Temperament whereby the Subjects may if they will be dutiful live happilier than any other do To illustrate all these it will be necessary to represent the State of the Britans under the Romans and to discourse of the Germans from whence our Saxon Ancestors came and of both of their Manners and Laws and from thence to proceed to illustrate the Legislative Power In all which if I carry my Reader out of his Country to view the State of our Ancient Neighbours I hope he will think it no ill spent time to make that pleasing as well as profitable towr And though I represent him his Ancestors rude and barbarous in Comparison of the Roman civilizedness yet he will find they had some Religion some Arts great and generous Souls as well as strong Bodies and their greatest mis-hap seems to be that those in Britan Gaul or Germany were not under one Monarchy
suae â—re proprio specialiter sibi Regno suo salvavit excepit That the King in the Declaration of the said Sentence did by his own Mouth specially save and except to himself and his Kingdom all the Liberties ancient Customs of his Kingdom and Usages Dignities and Rights of his Crown By which it is apparent how cautious the King was in these liberal Concessions not to prejudice his Prerogative They are neither few in Number nor of mean repute for judgment and learning in our Laws who assert Such like Protestation King Richard the Second made 10 Reg. Rot. Parl. 10 R. 2. num 32. See in King Stephen that as Acts of Parliament made contrary to Magna Charta are void so likewise are all such as diminish the Prerogative in any part of it which is necessary for the support of the Government So upon the passing the Petition (q) His Majesty's Speeches fol. 368. of the Basilica of Right King Charles the First the King said The King willeth that Right be done according to the Laws and Customs of the Land and that the Statutes be put in due Execution that the Subjects may have no cause to complain of any Wrong or Oppression contrary to their Just Rights and Liberties to the Preservation whereof he holdeth himself obliged as well as of his Prerogative But this would not please and so he pronounced Le droit soit fait comme il est desire and adds that he is sure is full but no more than he granted in his first Answer his meaning in that being to confirm all their Liberties knowing according to their Protestations they neither meant nor can hurt his Prerogative The Peoples Liberty strengthens the Kings Prerogative and the Kings Prerogative is to defend the Peoples Liberties The rest of the Parliaments of this Kings Reign are said to be called (r) Id. 435. num 10.21 H. 3. Id. 693. num 20.26 H. 3. Id. fol. 579. num 40. Id. fol. 696. num 30. Id. fol. 698. num 40. Vide Brady's Appendix fol. 59 60. per scripta Regalia submonitione Regia or that scripsit Rex praecipiens or missis literis convocavit Anno 1246. 30 H. 3. or Edicto Regio convocat c. which denotes the Authority convening them and for the Members they are either stiled Magnates omnis Regni Nobilitas or Clerus Populus cum Magnatibus Magnates tam Laici quam Praelati Episcopi alii Ecclesiarum Praelati cum Proceribus Regni or else they are particularly numbred to be Archbishops Bishops Abbats Priors for the Clergy and the Comites Barones for the Laity In one I find Archiepiscopus cum Suffraganeis suis for the rest of the Bishops and (s) M. Paris fol. 397. num 10.10 H. 3. another runs thus Anno 1247. 31 H. 3. fecit Dominus Rex Magnates suos nec-non Angliae Archidiaconos per scripta sua Regia Londinum convocari Yet though Matt. Paris only mention the Magnates Archidiaconi yet he saith when the prefixed day was come the Bishops all willingly absented themselves and he gives the Reason ne viderentur propâ—iis factis eminus adversari sciebant enim corda omnium usque ad animae amaritudinem non immerito sauciari Then when he (u) Id. 629. Edit ult num 10. Archdeacons summoned to Parliament gives an Account of the business of this great Council he saith that the Archdeacons of England as also not the least part of the whole Clergy of the Kingdom with the Magnates complained of the Popes exaction and so Letters were writ to the Pope and Cardinals It may be noted also That in those Days the Kings summoned other dignified Clergy besides Bishops Abbats and Priors I shall insist no longer upon these Matters The new Constitution of Parliament by Representatives but pass to the great Mutation which was made in the Constitution of our English Parliaments It seems to be clear that before King John's time the Members of the Great Councils were summoned by special Writ and they were only the Archbishops Bishops Abbats and Priors for the Clergy and the Earls and Barons and such of the Tenents in Capite as were of greatest quality as the King pleased But in King John's Charter all the Tenents in Capite were convened by a General Summons which did much encrease the number of the Members of these great Councils and by so much as they were more numerous it is likely the Popular Barons hoped to make their Party the stronger against the King for we find it introduced when the Barons were propense to rebel So the Second great Alteration on the Constitution of Parliament was introduced Montfort's Rebellion when Simon Montfort Earl of Leicester and the Rebellious Barons had the King and the Prince Prisoners Simon Montford to strengthen his Interest first in the Kings Name summons the Earls and Barons which were in Arms against the King also at other times summoned more Abbats and Priors than had been used for that the Clergy at that time had a great Opinion of him and he was their Minion as is apparent in Matthew Paris and fully in the judicious (w) Answer to Petyt fol. 137 138 139. Doctor Brady to whom I must specially refer the curious Reader in this particular The 14th The Form of the Writ of Summons of Dec. 48 H. 3. the first Writ issued out thus Item mandatum est singulis Vicecomitibus per Angliam quod venire faciant duos Milites de legalioribus discretioribus Militibus singulorum Comitatuum It is commanded to all the Sheriffs of England that they make or cause to come two Knights of the more Legal and Discreet Knights of every County to be at London on the Octaves of St. Hilary next So in the like manner (x) Cl. 49 H. 3. m. 11. dorso schedulae Writs were directed to Cities and Burroughs to send two of the more Discreet Legal and Honest Citizens and Burgesses This is without Date that to the Barons of the Cinque Ports is Jan. 20. It doth not appear by the Writ to the Sheriffs whether they or the Counties were to elect and send those Knights or who were Electors It is the Opinion of most learned (y) Brady against Petyt fol. 143. Dugdale's Baronage fol. 759. col 3. Men that Simon Montfort apprehended from the Concourse of the Nobility and their great Retinues and the Example of his and the Barons Practices at Oxford some danger to himself and his Affairs and so altered the ancient Usage Upon the 5th of August 49 H. 3. Simon Montfort was slain at Evesham and all his Party routed and the 8th of September following the King convened his Parliament at Winchester which according to the old form The old Form again used consisted only of the Bishops Abbats Priors Earls Barons and Great Men nor did he continue Montfort's Method after as appears by that Parliament he
called 50 Regni By the Statute of Marleburgh 52 H. 3. it is evident All the Barons not summoned but the more discreet and so of the lesser Barons That even all the great Barons were not summoned but only the more Discreet and such as the King thought fit to call and the like is observed of the lesser Barons or Tenents in Capite For if it had been by General Summons that Restriction of the more Discreet had been useless so that it appears that what (z) Britannia fol. 122. Quibus ipâ—â— Rex dignaâ—us est brevia summonitionis dirigere venirent c. non alii Mr. Camden's ancient Author observes is true That after the horrid Confusions and Troubles of the Barons Wars those Earls and Barons whom the King thought worthy to summon by his Writ to meet came to his Parliaments and no other The Preamble to this Statute of (a) Stat. Edit 1576. p. 15. Marlebridge runs thus in Tottel Providente ipso Domino Rege ad Regni sui Angliae meliorationem exhibitionem Justitiae prout Regalis Officii poscit Vtilitas pleniorem convocatis discretioribus ejusdem Regni tam majoribus quam minoribus provisum est statutum ac concordatum ordinatum According to Pulton the (b) Fol. 14. Preamble is thus That whereas the Realm of England of late had been disquieted with manifold Troubles and Dissentions for Reformation whereof Statutes and Laws be right necessary The Use and Benefit of Laws whereby the Peace and Tranquillity of the People must be observed wherein the King intending to devise convenient Remedy hath made these Acts Ordinances and Statutes underwritten which he willeth to be observed for ever firmly and inviolably of all his Subjects as well high as low Thus we see in the whole Reign of H. 3. excepting in that Parliament of Montfort's Faction the Bishops and dignified Clergy Earls Barons and Tenents in Capite were only summoned as Members of the great Councils and there were no Representatives of the Commons and the Kings Authority in summoning dissolving and making Laws is most manifest Of Parliaments in King Edward the First 's Reign I Shall now glean out of Tottel and Pulton's Editions of the Statutes the most material Preambles which give light to the constituent Parts of Parliaments to the Legislative Power in the King with the Concurrence of the two Houses and how that in the Series of the Kings Reign hath been expressed and such other matters relating to the Parliament as may shew the gradual Progress of their Constitution to the usage of this present Age leaving the Reader to make his own remarques from the matters of Fact and the expressions used by my Authors and explaining some The Preface to the Statute of (a) Ceux sont les establishments le Roy Ed. fitz Roy Hen. fait a Westminst c. par son Councel par Passentments des Archevesques Evesques Abbes Priores Countes Barons tout le Commonalty de la terre illonques summons Tottel Stat. fol. 24. Pulton p. 19. Westminster begins thus These are the Establishments of King Edward Son to King Henry made at Westminster at his first General Parliament after his Coronation c. by his Council and by the Assent of the Archbishops Bishops Abbats Priors Earls Barons and the whole Commonalty of the Land thither summoned This Parliament was prorogued before it met and the Writ of Prorogation mentions only Quia generale Parliamentum nostrum quod cum Praelatis Magnatibus Regni nostri proposuimus habere c. Therefore having prorogued it mandamus c. Intersitis ad tractandum ordinandum una cum Praelatis Magnatibus Regni nostri (b) Brady against Petyâ— fol. 147. c. So that all the Members are included in the two general Terms of Praelati Magnates which great Men very frequently comprehended as well the Barones Majores as Minores the Earls Barons and greater Tenents in Capite and the less which then were called the Community of the Kingdom The rest of the Preamble of the Statutes made at (c) Pulton's Stat. An. 1275.3 E. 1. f. 19. Westminster runs thus Because our Lord the King hath great Zeal and desire to redress the State of the Realm c. the King hath ordained and established these Acts under written The Preface to the Statute de Bigamis 4 Oct. 4 Ed. 1. is thus (d) In prasentia venerabilium purum quâ—ruâ—dam Episcoporum Angliae aliorum de Concilio Râ—gis â—â—citatae sâ—â—erunt constitutiones â—ub â—riptae postmodâ—â—m coram Domino Rege Concilio sâ—o auditae publicatae Quia omnes de consiliâ—â—am â—usâ—â—â—â—arii quam alii concordaverunt c. Tottel p. 39. b. expressed In the Presence of certain Reverend Fathers Bishops of England and others of the Kings Council the constitutions under written were recited and after heard and published before the King and his Council for as much as all the King's Council as well Justices as others did agree that they should be put in writing for a perpetual memory and that they should be stedfastly observed In the First Chapter it is said Concordatum est per Justiciarios alios sapientes de Concilio Regni Domini Regis It was agreed by the Justices and other wise or sage Men of the Council of the Kingdom of the Lord the King Perhaps saith the judicious Doctor Brady the best understanding of the preamble and first Chapter may be that the Laws and Constitutions were prepared by the King and his (e) Answer to Pâ—tyt fol. 148. Council with the Assistance of the Justices and Lawyers that were of it or called to assist in it and declared afterwards in Parliament (f) Praeâ—iâ—â—ae autem constitutiones eâ—iâ—â— suerunt c. exâ—une lâ—â—um habeanâ— Tottel fol. 40. for it is said in the close of the Statute The aforesaid Constitutions were published at Westminster in the Parliament after the Feast of St. Michael the 4th of the Kings Reign and thence forward to take place The Preamble to the Statute of Gloucester Anno 1278. 6 E. 1. is thus (g) Pour amendment de son Roialm pur plus pleinir exhibition de droit si comâ—â—â—â— prâ—sit dâ— Office demanâ— appâ—lles le plues discretes de son Roialme auâ—â— bien des Granders comâ— des Meindres establie est concordantment ordine Tottel fol. 50. The King for the amendment of the Realm and for the more full Exhibition of Justice according as the benefit of his Office requires having called the most discreet of his Realm as well the greater as the smaller It is established and unanimously ordained as Pulton adds after by the King and his Justices certain Expositions were made The Statute of Mortmain is thus prefaced Nos pro (h) Tottel p. 48. Vtilitate Regni volentes providere Remedium de Concilio Praelatorum Comitum Baronum aliorum fidelium
time THE Preface to the Statutes at (a) Pulton An. 1327. fol. 93. Westminster 1 Ed. 3. is thus To the Honour of God c. King Ed. 3 at his Parliament held at Westminster c. Petition made by the Commonalty to the King and his Council at the request of the Commonalty of his Realm by the Petition made before him and his Council in the Parliament by assent of the Prelates Earls Barons and other great Men assembled at the said Parliament hath granted for him and his Heirs for ever these Articles The title of the Statute made at (b) Idem Anno 1329. fol. 97. Westminster 27 Nov. 4 Ed. 3. is thus At the request of the Commons these things be Established and Enacted by our Lord the King his Prelates Established and enacted by the King Prelates c. Earls and Barons and other of the same Parliament So that at Westminster (c) Idem Anno 1331. fol. 100. 5 Ed. 3. Our Lord the King by the Assent of the Prelates c. and other Great Men and at the request of his People hath granted and established The Preamble to the Statutes at York (d) Idem Anno 1335. fol. 103. Shewed by the Knightsâ— c. for the Commons assented to by the Lords with the Advice of the King's Council 9 E. 3. runs thus It was shewed to our Lord the King by the Knights of the Shires Citizens of the Cities and Burgesses of Burroughs which come for the Commons of the said Shires Cities and Burroughs Our Lord the King c. by the Assent of his Prelates c. and other Nobles of this Realm summoned at this Parliament and by the Advice of his Council being there Upon the said things disclosed to him Ordains c. So the Statute at (e) Idem Anno 1336. p. 105. Westminster 10 E. 3. is Our Lord the King by the Assent of the Prelates c. and at the Request of the Knights of Shires and his Commons by their Petition hath Ordained Established c. The Preamble to the Statute for the Clergy 16 Apr. 14 E. 3. runs thus At the Petition of John Archbishop of Canterbury and other Prelates upon deliberation had with the Peers of our Realm and other of our Council and of the Realm summoned to our said Parliament Thus far we find the King Establishing and Ordaining upon the Petition of the Commons as also of the Prelates with the Assent of the Prelates and Nobility and his Council Before I proceed to those Statutes which mention the assent or advice of the whole Parliament I think fit to insert at large the Repeal of an imperfect Statute made 15 E. 3. There having been (f) Idem Anno 1541. 15 E. 3. fol. 115. a Statute made That Ministers of the Church should not answer before the Kings Justices for things done touching the Jurisdiction of the Church For what reasons and in what manner this was repealed Repeal of Law unduely prâ—cured will best appear by the Kings Precept to the Sheriff of Lincoln which runs thus Whereas at our Parliament summoned at Westminster in the Quindene of Easter last past certain Articles expresly contrary to the Laws and Customs of our Realm of England and to our Prerogatives and Rights Royal were pretended to be granted by us in the manner of a Statute And considering how by the Bond of our Oath we be tied to the observance and defence of such Laws Customs Rights and Prerogatives and providently willing to revoke such things to their own State which be so improvidently done Upon Conference and Treatise thereupon with the Earls Barons and other Wise Men of our said Realm and because we never consented to the making of the said Statute but as it then behoved us we dissimuled in the Premisses by Protestations of Revocation of the said Statute if indeed it should proceed to eschew the danger which by denying the same we feared to come for as much as the said Parliament otherwise had been without dispatching any thing in discord dissolved and so our earnest business had likely been ruinated which God prohibit and the said pretended Statute we promised then to have sealed It seemed to the said Earls Barons and other Wise Men that sithence the Statute did not of our Free Will proceed the same be void and ought not to have the name or strength of a Statute and therefore by their counsel and assent we have decreed the said Statute to be void and the same as much as it proceeded of Dread we have agreed to be adnulled Nevertheless that the Articles contained in the said pretended Statute which by other of our Statutes or of our Progenitors Kings of England have been approved shall according to the form of the said Statute in every point as convenient is be observed and the same we do only for the Conservation and Redintegration of the Rights of our Crown as we be bound and not that we should in any wise grieve or oppress our Subjects whom we desire to rule in lenity and gentleness So the King commands all these things to be openly Proclaimed 1 Oct. 15. Regni From this Statute we may 1st Observations upon iâ—â—â— observe That without the Kings free and express consent there can be no Law pass'd 2ly The Bishops are not mentioned in this it being contrary to some Liberties Churchmen claimed by the Canons 3ly The Kings assent was not compleat but only a temporary one like a Salvo Jure lest his earnest business for which he called them should miscarry for want of a seeming compliance therefore he is said to promise the Sealing of it which was in that Age the Characteristick of Confirmation but never did it but rather made some kind of Protestation in the presence of some that what he did was unwillingly 4ly That seeing it did not proceed of his Free Will therefore by the advice and consent of the Earls Barons and other Wise Men it is declared void Lastly The principal reason why he gave not his free consent to it was because it was against his Coronation Oath whereby he was tied to the observance and defence of the Laws Customs Kings not bound to consent to what Bills the Houses propose Rights and Prerogatives So that upon the whole they that would advise their Princes to consent to whatever Bills the Houses should tender as in the Chapter of Factious Members of Parliament I shall have occasion to discourse may learn from hence That the King found himself obliged to consent to no Bills contrary to the Law Customs Rights and Prerogatives such were those the unhappy Parliament of 41 in the point of the Militia and their other dethroning Bills and of late another Parliament in the Bill of Seclusion endeavoured to impose upon their Soveraigns contrary to the fundamental Laws and Prerogatives of the Crown To proceed The Preface of the Statute at (g) Id. 1346. fol. 118. Westminster
7th May 20 E. 3. runs thus Because that by divers complaints made to us we have perceived that the Law of the Land which we by our Oath are bound to maintain is the less well kept c. we greatly moved of Conscience in this matter c. by the assent of the great Men and other Wise Men of our Council We have ordained c. The Preamble to the Statute of Labourers (h) Idem Anno 1349. fol. 120. repealed 23 E. 3. was thus Upon deliberation and treaty with the Prelates and the Nobles and learned Men assisting us of their mutual assent ordained and that Statute for Labourers which remains in force 25 E. 3. saith Whereas it was ordained by our Lord the King and by assent of the Prelates Earls Barons and others of his Council c. It is apparent by several Records So one Knight for a County when two Burgesses 27 E. 3. So the King names one Knight one Citizen and one Burgess to be sent 43 E. 3. m. 2. That the Kings of England have not been tied to the certain number of Knights Citizens and Burgesses though for a long while two only have been chosen of each but heretofore sometimes but one other times two or three as that 18 E. 1. and 4 Knights 22 E. 1. Besides which liberty there is a (i) Cl. 24 E. 3. p. 2. m. 3. memorable Record in this Kings Reign wherein the King appointed the qualifications of such as were to be chosen Members of the House of Commons The Writ is directed to all the Sheriffs of England Quod de Comitatu tuo duos Milites c. de discretioribus probioribus Militibus Civibus Burgensibus ad laborandum potentioribus qui non sint Placitatores querelarum manutentores aut ex hujusmodi quaestu viventes c. sed homines valentes bonae sidei publicum commodum diligentes eligi Qualification of Members to be elected Pleading Lawyers Maintainers of Plaints and such as lived of such like gain were forbid to be chosen upon some particular Reason of State then inducing it of which I shall write something in the Chapter of Parliaments The other Preambles most (k) Pulton An. 1350. fol. 121.25 E. 3. Idem Anno 1350. fol. 125. Assent of the Commonalty remarkable in this Kings Reign are mostly By the assent of the Prelates Earls Barons and other great men and all the Commons or of all the Commonalty of the Kings Realm The King hath Granted Ordained Established c. The Statute for the Clergy (l) Idem Anno 1350. fol. 122. 25 Regni saith Our Lord the King seeing and examining by good deliberation the Petitions and Articles delivered to him in his Parliament c. by Simon Archbishop of Canterbury and other Bishops of his Province upon certain Grievances c. By the Assent of his Parliament by the assent of his Parliament for him and his Heirs willeth and granteth the Points underwritten The Statute of Provisors 25 E. 3. is (m) Id. 1350. fol. 129.25 E. 3. The King bound by his Oath to remedy Mischiefs and Damageâ— to his Realm by accord of his People in Parliament singular in its Preamble That whereas in the Parliament 15 E. 1. at Carlisle the Petition heard put before the said King and his Council in his said Parliament by the Commonalty of the said Realm containing c. whereupon the said Commons have prayed our Lord the King that sith the right of the Crown of England and the Law of the said Realm is such That upon the Mischiefs and Damages which happen to his Realm he ought and is bound by his Oath with the accord of his People in his Parliament thereof to make Remedy and Law and remove the Mischiefs and Damages which thereof ensue so pray the King thereupon to ordain Remedy The Statute of Provisors (n) Id. 135â— fol. 131. 27 E. 3. runs Our Lord the King by the Assent and Prayers of the Great Men and Commons of this Realm c. hath ordained The Statute of (o) Idem Anno 1353. fol. 133. Staple 27 E. 3. hath a singular Preface whereas good deliberation had with the Prelates Dukes Earls Barons and Great Men of the Counties that is to say of every County one One Knight for a County and so for Cities and Burroughs for all the Counties and so of Cities and Burroughs c. by the Council and common consent of the said Prelates c. Knights and Commons the King hath ordained c. In the 28. Princes are named after Prelates The Preamble of the Statute at (p) Idem Anno 1362. fol. 152. The Request of the Commons Westminster 36 E. 3. runs thus The King at the request of the Commons by their Petition delivered to him in the said Parliament by the Assent of the Prelates Dukes Earls Barons and other Great Men in the Parliament assembled have granted for him and his Heirs for ever the Articles underwritten In the Second Chapter of which it is said The King of his own Will without motion of the Great Men or Commons hath granted in ease of his People The Statutes made (q) Idem Anno 1368. fol. 159. 42 E. 3. have only At the Parliament of our Lord the King it is assented and accorded So in (r) Idem Anno 1369. fol. 190. 43 E. 3. The Prelates Great Men and Commons seeing the Mischiefs pray the King in this present Parliament thereupon to ordain Remedy The Preamble to the Statutes (s) Idem Anno 1376. fol. 191. 50 E. 3. runs thus The Prelates Dukes Earls Barons and others assembled at the Parliament c. Our Lord the King desiring much that the Peace of his Land be well kept and his faithful Subjects in quietness and tranquillity maintained hath therefore made and ordained certain Ordinances and also granted certain Graces and Pardons to his Commons of England In all which it is evident the Two Houses had no more but an Advising or Petitioning and Assenting Power It is every where expressed that the King solely Ordaineth Establisheth Granteth However he owns an obligation by his Coronation Oath to make good Laws for his Subjects CHAP. XXVII Of the Parliaments of England during the Reigns of King Richard the Second to the First Year of King James the Second THE Preface to the Statutes at (a) Pulton An. 1377. fol. 163. Westminster 10 R. 2. is thus Richard by the Grace of God c. to the Sheriff of Nottingham Greeting Know you That to the Honour of God c. by the whole Assent of the Prelates Dukes Earls and Barons of this our Realm Special Instance and Request of the Commons at the instance and special Request of the Commons of our Realm assembled at our Parliament We have ordained and established certain Statutes in amendment and relief of this our said Realm That at (b) Idem Anno 1378.
in this present Parliament assembled and by the Authority of the same Of the Parliaments in Queen Elizabeth's time WE may observe something new in the Acts of this Queen we have noted once in Henry the Eighth's time the two Houses pray that it may be enacted and so in Edward the Sixth but in the first (a) Id. fol. 873. Chapter of the Acts of this Queen it is more full thus Most humbly beseech Your most Excellent Majesty Most humbly beseech your most excellent Majesty your faithful and obedient Subjects the Lords Spiritual and Temporal and the Commons of this your present Parliament assembled and in another (b) Id. fol. 874. Paragraph That it may please your Highness that it may be further enacted and in another place If some redress by Authority of this your High Court of Parliament High Court of Parliament with the assent of your Highness be not had and provided 5 Eliz. Cap. 1. it is thus expressed Be it therefore Enacted Ordained and Established by the Queen our Sovereign Lady and the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by Authority of the same And in the Eighth Be it now Declared and Enated by the Authority of this present Parliament Most of all the rest of the Acts of her Reign are expressed after some of these forms The 43 of her Reign in the First Chapter it is thus In most humble wise beseechen your most excellent Majesty the Lords Spiritual and Temporal and the Commons of your Highness's Parliament assembled Of the Parliaments in King James the First 's Reign THE Title of his first (a) Id. fol. 1085. Acts is at the Parliament begun c. To the pleasure of Almighty God the Weal publick of this Realm were Enacted c. In the First Chapter We therefore your most Humble and Loyal Subjects the Lords Spiritual and Temporal and the Commons in this present Parliament assembled In most humble and lowly manner do beseech in most humble and lowly manner do beseech your most excellent Majesty that it may be published and declared in this High Court of Parliament and Enacted by Authority of the same In the Second Chapter it is said Be it further (b) Id. fol. 1086. Enacted by the Kings most Excellent Majesty by and with the Assent and Consent of the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by Authority of the same In the Seventh of King James is only expressed Be it Enacted by the Authority of this present Parliament c. The rest agrees with some of these Of the Parliaments in King Charles the First 's Reign THE Preface of his First (a) Id. fol. 1226. Parliament is At the Parliament c. To the high pleasure of Almighty God and to the weal publick of this Realm were enacted c. In the First Chapter (b) Id. fol. 1227. Be it enacted by the King c. it is said Be it Enacted by the Kings most excellent Majesty the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by the Authority of the same In the beginning of the Petition (c) Id. fol. 1229. Petition of Right of Right it is thus worded Humbly shew unto our Soveraign Lord the King the Lords Spiritual and Temporal and Commons in Parliament assembled c. and the close of it is All which they most humbly pray your most excellent Majesty as their Rights and Liberties according to the Laws and Statutes of this Realm c and that your Majesty would be graciously pleased In the Seventeenth of the said King (d) Id. fol. 1237. Chap. 6. it is thus expressed Therefore the Kings most excellent Majesty out of his Princely care c. by the Assent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled and by the Authority of the same Ordaineth Enacteth and Establisheth Of the Parliaments in King Charles the Seconds Reign THE Preface to the Acts of the two Houses (a) Id. fol. 1249. begun 25 Apr. 1660. not summoned by the Kings Writ is much the same with that of King Charles the First and King James mutatis mutandis In the Third Chapter it is said Be it Enacted by the Kings most excellent Majesty and the Lords and Commons assembled in Parliament In the Fourth Chapter (b) Id. fol. 1251. The Commons do by and with the Advice and Consent of the Lords in this present Parliament and by Authority of the same give and grant unto you our Supreme Liege Lord and Soveraign one Subsidy c. Supreme Liege-lord and Sovereign In the First Chapter 13 Car. 2. the (c) Id. fol. 1300. enacting part is thus worded Do most humbly beseech your most Excellent Majesty Most humbly beseech Your most Excellent Majesty c. that it may be Enacted and be it Enacted by the Kings most Excellent Majesty by and with the Advice and Consent of the Lords and Commons in this present Parliament Assembled and by Authority of the same The rest of the Acts in King Charles the Second's Reign are continued in the same form The Titles of the Acts of Parliament 1 Jac. 2. our most Gracious Soveraign are At the Parliament begun at Westminster the 19th Day of May Anno Dom. 1685. in the First Year of the Reign of our most Gracious Soveraign Lord James c. The Enacting part of the granting an Imposition c. thus Most Gracious Soveraign We your Majesties most Dutiful and Loyal Subjects the Commons Assembled in Parliament towards a Supply c. and with an humble and thankful acknowledgment of your Majesties favourable and tender regard to us your Commons have chearfully and unanimously given and granted unto your Majesty an Aid and Assistance and we do humbly beseech your Majesty that it may be Enacted and be it Enacted by and with the Advice and Consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled and by the Authority of the same All the other Acts which are not Grants of Aid Assistance or Supply are conceived in the latter words By this full enumeration of the most considerable Expressions either of Records or Historians relating to the Great Councils or Parliaments from William the Conqueror's time to this present Age which in a continued series of time I have deduced it appears that till King John's time only the Prelates Earls and Barons and such of the great Tenents in Capite as were not Barons were summoned and at the Kings pleasure by special Writ and after King John's Charter the lesser Tenents in Capite by General Summons Also that the Charters of Kings wherein they granted Liberties to their Subjects were received as Laws and gave as ample Satisfaction as now The King willeth doth to pass a Bill tendred for his Royal Assent by both Houses and there was good
together with Judges and King's Council Citizens Burgesses of Parliament and Barons of the Cinque-Ports being usually summoned to the one but to the other some few Spiritual and Temporal Lords only without (x) Brief Register part 1. pag. 187. to 192. any Judges Assistants Knights Citizens Burgesses or Barons of the Cinque-Ports or some few of them only and divers who were no usual Lords or Barons of Parliament as Mr. Prynn hath made evident and the Rolls themselves in the Margin notes them by de Concilio summonito or deveniendo ad Concilium which some Antiquaries having not noted have confounded them SECT 4. Of the Judicature of the House of Lords IT is evident that the Lords in Parliament have ever been the usual Judges not only in all criminal and civil causes 6. The Lords Judicature proper for Parliaments to judg or punish and Writs of Errors but likewise in all cases of Precedencies and Controversies concerning Peers and Peerage which Power was in them as the King 's Supreme Court before there were any Knights Citizens or Burgesses summoned to our Parliaments So Hoveden (y) Annal. pars poster p. 561. ad 566. is express in the case of Sanctius King of Navar and Alphonsus King of Castile Comites Barones Regalis Curiae Angliae adjudicaverunt Anno 1177. 23 H. 2. So Fleta in Ed. the First 's time writes (z) Habet enim Rex Curiam suam in Concilio suo in Parliamentis suis praesentibus Pralatis Comitibus Baronibus Proceribus aliis viris peritis ubi terminatae sunt dubitationes judiciorum Lib. 2. c. 2. p. 66. thus The King hath his Court in his Council in his Parliaments there being present the Prelates Earls Barons Nobles and other skillful Men viz. the Judges Assistants where are ended the doubts of Judgments This Particular of the Jurisdiction of the House of Lords is so fully in every Branch of it proved by Mr. Prynn in his Plea for the Lords House that it were an Injury to the inquisitive Reader not to referr him to that Treatise for full Satisfaction therefore I shall only pick out a very few out of a Manuscript I have of the Priviledges belonging to the Baronage of England and Mr. Prynn In the fourth of King (a) Roâ— Parl. 4 E. 3. m. 7. num 3. Judgment of Lords on John Mautravers Edward the Third the Peers Earls and Barons assembled at Westminster saith the Record have strictly examined and thereupon assented and agreed that John Mautravers is guilty of the death of Esmon Earl of Kent Uncle of our Lord the King that now is wherefore the said Peers of the Land and Judges of Parliament judged and awarded that he the said John should be drawn hanged and beheaded In the first of R. 2. John Lord of (b) Rot. Par. 1 R. 2. m. 6. num 38 39. Gomenys and William de Weston were brought before the Lords sitting in the white Chamber On John Lord of Gâ—menys and William Weston for delivering up Forts to the Enemy and were severally charged at the Commandment of the Lords by Sir Richard Scroop Knight Steward of the Kings House William Weston being accused for rendring the Castle of Outhrewike and John Lord of Gomenys for rendring the Castle of Ards. They both made plausible defences and Sir Rich. Scroop Steward tells William that the Lords sitting in full Parliament do adjudge him to death But because our Lord the King is not yet informed of the manner of this Judgment the execution thereof shall be respited till the King be informed thereof and the like Sentence he passed upon John Lord of Gomenies only adding that he being a Gentleman and Banneret should be beheaded There are many more Examples of Judgments given in Capital matters upon Bergo de Bayons 4 E. 3. m. 7. num 4. Thomas de Gurny eadem membrana num 5. and others and for Offences not Capital of Richard Lions 59 E. 3. m. 7. William le Latymer 42 E. 3. m. 2. William Ellis ibid num 31 John Chichester and Botesha 1 R. 2. num 32. Alice Piers Ibid. num 41. Mr. Antiquity of Judgment by Peeâ—s Prynn (c) Plea for Lords p. 203. Hist lib. 4. shews this Jurisdiction out of Historians even from Cassibellan out of Geoffrey of Monmouth Also Anno 924. of Elfred a Nobleman who opposed King Aethelstan's Title and had his Lands adjudged by the Peers forfeit to him the Words of the King are Et eas accepi (d) Malmsb. de Gest is Reg. lib. 2. c. 6. p. 62. Spelman Conc. Tom. 1. p. 407 408. Anno 1043. quemadmodum judicaverunt omnes â—ptimates Regni Anglorum So Earl Godwin having murdred Prince Alfred Brother to King Edward the Confessor being fled into Denmark and hearing of King Edward's Piety and Mercy returned and came to London to the King who then held a Great Council and denied the Fact and put himself upon the (e) vnde super hoc pono me in consideratione Curiae vestrae Chron. Brompton col 937 938. consideration of the Kings Court and the King speaks to the Earls and Barons thus Volo quod inter nos in illa appellatione rectum judicium decernatis debitam justiciam faciatis and after it is said Quicquid judicaverint per omnia ratificavit So in the Constitutions of (f) An. 1164. M. Paris 94. Sicut Barones caeteri debent interesse judiciis Curiae Regis cum Baronibus quousque perveniatur in judicio ad diminutionem membrorum vel ad mortem The House of Lords the King's Court of Barons Clarendon it is appointed That the Archbishop Bishops and those Clergy that held in Capite as by Barony should be Parties in the Judgments of the Kings Court as other Barons ought with the other Barons till it come in Judgment to the loss of Member or to Death So in the Case of Tho. Becket Archbishop of Canterbury Anno 1165. 11 H. 2. we find in Hoveden parte post p. 494 495. that Barones Curiae Regis judicaverunt eum esse in misericordia Regis and afterwards when he would not yield to the Kings Will he (g) Dixit Baronibus suâ—s Cito facite mihi judicium de illo qui homo meus Ligeus est stare Juri in Curia mea recusat saith to his Barons Quickly make to me Judgment of him who is my Liege Man and refuseth to stand to the Law in my Court The Barons going out judg'd him fit to be seiz'd on and sent to Prison and the Historian saith tunc misit Rex Reginaldum Comitem Cornubiae Robertum Comitem Leicestriae ad indicandum ei judicium de illo factum Anno 1208. King (h) Anno 10 Johan Mat. Paris p. 218. John exacted Pledges of his Subjects and amongst others of William de Breause who said If he had offended the King he would be ready to answer his Lord and that without Hostages secundum judicium
Magnatibus Proceribus dicti Regni nostri colloquium habere tractatum Tibi praecipimus firmiter injungentes quod facta Proclamatione in proximo Comitatu tuo post receptionem hujus Brevis nostri tenendo die loco praedicto duos Milites gladiis cinctos magis idoneos discretos Comitatus praedicti de qualibet Civitate Comitatus illius duos Cives de quolibet Burgo duos Burgenses de discretioribus magis sufficientibus libere indifferenter per illos qui Proclamationi hujusmodi interfuerint juxta formam Statutorum inde editorum provisorum eligi nomina eorundem Militum Civium Burgensium sic electorum in quibusdam Indenturis inter te illos qui hujusmodi Electioni interfuerint inde conficiendis sive hujusmodi electi praesentes fuerint vel absentes inseri eosque ad dictum diem locum venire facias ita quod iidem Milites plenam sufficientem potestatem pro se Communitate Comitatus praedicti Cives Burgenses pro se Communitate Civitatum Burgorum praedictorum divisim ab ipsis habeant ad faciendum consentiendum his quae tunc ibidem de communi Concilio dicti Regni nostri favente Deo contigerint ordinari super negotiis ante dictis Ita quod pro defectu potestatis hujusmodi seu propter improvidam Electionem Militum Civium aut Burgensium praedictorum dicta negotia infecta non remaneant quovis modo Nolumus autem quod tu nec aliquis alius Vicecomes dicti Regni nostri aliqualiter sit electus Et Electionem illam in pleno Comitatu factam distincte aperte sub Sigillo tuo Sigillis eorum qui Electioni illae interfuerint nobis in Cancellariam nostram ad dictum dâ—em locum certifices indilate remittens nobis alteram partem Indenturarum praedictarum praesentibus consutam una cum hoc Brevi Teste meipso apud Westmonast THE King to the Sheriff Greeting Whereas by the Advice and Consent of our Council Advice of Privy Council for certain difficult and urgent business concerning us and the State and defence of our Kingdom of England and the English Church we have ordained a certain Parliament of ours to be held at our City of c. the day c. next ensuing and there to have conference Conference with Prelates c. and to treat with the Prelates Great Men and Peers of our said Kingdom We command and straitly enjoyn you Proclamation at County-Court that making Proclamation at the next County Court after receipt of this our Writ to be holden the day and place aforesaid Two Knights girt with Swords c. you cause two Knights girt with Swords the most fit and discreet of the County aforesaid and of every City of that County two Citizens Two Citizens and of every Burrough Two Burgesses two Burgesses of the discreeter and most sufficient Indifferently chosen by those present at the Proclamation according to Statutes to be freely and indifferently chosen by them who shall be present at such Proclamation according to the tenure of the Statutes in that case made and provided Their Names inserted in Indentures betwixt the Sheriff and the Electors and the names of the said Knights Citizens and Burgesses so chosen to be inserted in certain Indentures to be then made between you and those that shall be present at such Election whether the parties so elected be present or absent and shall make them to come at the said day and place To cause them to come at the Day and Place The Knights from the County the Citizens and Burgesses from their Cities Burroughs to have full power to do and consent so that the said Knights for themselves and for the County aforesaid and the said Citizens and Burgesses for themselves and the Commonalty of the aforesaid Cities and Burroughs may have severally for them full and sufficient power to perform and to consent to those things which by the favour of God shall there happen to be ordained by the Common Council of our said Kingdom concerning the businesses aforesaid Lest for want of that Power or improvident Election the Business be undonâ— so that the business may not by any means remain undone for want of such power No Sheriff to be chosen or by reason of the improvident Election of the aforesaid Knights Citizens and Burgesses Election to be in full County But we will not in any case you or any other Sheriff of our said Kingdom shall be elected The Indentures to be sealed by the Sheriff and Electors And at the day and the place aforesaid the said Election made in the full County Court A Counterpart tacked to the VVrit returned into the Chancery you shall certify without delay to us in our Chancery under your Seal and the Seals of them which shall be present at that Election sending back unto us the other part of the Indenture aforesaid affiled to these Presents together with this Writ Witness our self at Westminster SECT 7. Concerning the Speaker and the Privileges of the House of Commons IT is not my design to treat of all things relating to the Constitution My Design not to controvert the Privileges of the House of Commons but to shâ—w the gradual Alterations Laws and Customs of the House of Commons there are several useful Books extant which are fit for the Honourable Members of the House to consult What I most aim at is to shew what the Ancient Usage hath been and how from time to time things have been refined to the Mode and State they are now in and I hope those great Spirits that honour their Countries with their Service will pardon one that designs nothing more than to give them a Profile of the whole Model both in the days of our remotest Ancestors and what it was in more Modern times under just and undoubted Soveraigns as also how much it was transformed when the pretended House of Commons being confederated with a successful Army murthered their Soveraign voted away the House of Lords and assumed the Title of the Supream Authority of the Nation of which last I shall treat in the next Chapter The Members being according to the Kings Command come to the place appointed sometimes the Soveraign with the Lords in their Robes have rid in State to the Parliament which is generally yet observed in Scotland and Ireland The Solemnity at the Opening of the Parliament However at the opening of the Parliament the King is seated on his Throne under the Canopy with his Royal Crown on his Head the Chancellor standing something backward on his Right-hand and the great Officers as Lord Treasurer Lord President of the Kings Council Lord Privy Seal Great Chamberlain the Lord Constable Marshal Lord Admiral Lord Steward and Kings Chamberlain attend on either side the State or in their Seats
this Freedom and Privilege The second is Sir Tho. Smith saith The Speaker used to add a Promise in the Commons Names That they shall not abuse these Privileges but have such regard as most faithful true and loving Subjects ought to have to their Prince Commonwealth p. 41. That if he shall commit any Error in any thing he shall deliver in the name of the Commons no fault may be imputed to the Commons and that he may resort again to them for Declaration of his good Intent and that his Error may be pardoned The third is That as often as necessity for his Majesties Service and the good of the Common-wealth shall require he may by direction of the House of Commons have access to His Majesty SECT 8. Of Priviledges of the House of Commons concerning Liberty of Speech HAving thus brought this Honourable Assembly together and their Speaker placed in his Chair I shall touch something of their Privileges which since the days of Sir Edward Coke and much by his Influence have been enlarged beyond what was used in antient times I shall begin with that of Freedom of Speech in their Debates It cannot be conceived in so great a Body as the House of Commons Why Liberty of Speech necessary to be allowed that what is proposed by one and seconded by others shall not admit of Debate Though all may aim at the same end the good of the King and People yet they may differ in the ways and methods of attaining it and whoever would straighten a crooked Rod must bend it as far on the contrary side I doubt not but the nemine contradicente was put into the Printed Votes when Mr. Williams had the Chair rather ad faciendum populum than that there was such an Harmonious Concurrence as then was blazed abroad Anno 4 (u) Stat. 4 H. 8. c. 8. Strowde's Case H. 8. An Act was made concerning Richard Strowde Esquire which declareth that all Suits Accusements Condemnations c. to be put or had upon any Member of that or succeeding Parliaments for any Bill speaking reasoning or declaring of any matter or matters concerning the Parliament to be communed or treated of be utterly void and of none effect This by (w) Lords Journal the Lords 11 Decemb. 1667. was declared a dâ—claratory Law of the antient and necessary Rights and Priviledges of Parliament and so the Judgment against Denzil late Lord Hollis was nulled and against others in King Charles the First 's time Yet it is manifest that Queen Elizabeth in two Cases shewed how far even motions in Parliament contrary to her Laws Prerogative and Pleasure expressed were to be treated The (x) Prynne's Plea for the Lords Sir Sym. D' Ewe's Journâ—l How Queen Elizabeth curbed and punished those that made Motions in the House contrary to her Prohibitions in Mr. Paul and Mr. Pet. Wentworth's Case first was a motion by Mr. Paul Wentworth 23 Eliz. for a publick set Fast and for a Preaching every Morning at Seven of the Clock before the House sate and the Preachers to be appointed by the Privy-Council that were of the House but the Queen sent them a Message by the Vice-Chamberlain that she had in great admiration the rashness of the House in committing such an apparent contempt of her express Command and to put in Execution such an Innovation without her Privity and Pleasure first known so that by Mr. Vice-Chamberlain they sent their Submission to her Anno 35 Eliz. Mr. Peter Wentworth and Sir Henry Bromley delivered a Petition to the Lord-Keeper desiring the Lords of the upper House to be suppliants with them of the lower House to her Majesty for entailing the Succession of the Crown whereof a Bill was ready drawn by them The Queen was highly displeased as being against her express Order and charged the Lords of her Council to call the parties before them and Mr. Wentworth was by them committed to the Tower and others with Sir Hen. Bromley to the Fleet the Parliament then sitting and when Mr. Wroth moved That the House might be humble Suitors to the Queen for their Liberty it was answered by the Privy Counsellors in the House that the causes of Commitment were best known to her self and the House must not call the Queen to account for what she doth of her Royal Authority for her Majesty liked no such Questions neither did it become the House to search into those matters So Mr. In Mr. Morrice's Case Morrice Atturney of the Court of Wards was taken out of the House Feb. 28. and committed to Prison for delivering in a Bill against the abuses of the Bishops the Queen sending for Sir Edward Coke then Speaker and charging him upon his Allegeance if any such Bill were exhibited not to read it At another time long before this she told the Speaker and the body of the House of Commons moving her to Marriage That if it had been with limitation of place or person she must needs have misliked it and thought it a great presumption in those to take it upon them to bind and limit whose duty it was to Obey King Charles the First was very infortunate to have so many Firebrands in some if not all of his Parliaments Liberty of Speech in King Charles the First 's time abused which if the rest of the Houses had been pleased to have extinguished by timely and nipping reprehensions we had never seen the Government of Church and State so reduced into Ashes that there was nothing remained of the beautiful Pile In some of his Speeches he calls those evil Members Vipers but it was his misfortune to anger and exasperate them rather than suppress them so that at last they stung him to Death It is a very ill condition when a Prince hath such Wolves by the Ears that he is in danger whether he hold them or let them go The Attacque upon the five Members and letting fall the pursuit was one of the false thrusts that left him unguarded In the Close of one of the Parliaments of Queen Elizabeth the (y) MS. Speeches 13 Eliz. 1571. Queen Elizabeth's Reprehension of some Members for moving things she had forbid Chancellor tells them There be certain of the House of Commons though not many who have shewed themselves Audacious Arrogant and Presumptuous calling her Majesties Grants and Prerogatives into question contrary to the express admonition given in her Majesties name in the beginning of the Parliament which it might very well have become them to have regard to but her Majesty saith That seeing they thus willfully forget themselves they are otherwise to be remembred Indeed there seems good reason that such who make advantage of their being Members of Parliament to sow their Seditious Discourses and under the Protection of being Members take the boldness to calumniate the Government and raise Jealousies betwixt the King and his People to alienate their Affections and Allegeance from him after the
414 415. How the House of Commons of the Parliament 1641. seduded their Members till there were not above 70 left whom the Army-Officers impeached or disliked as a corrupt Party or corrupt Majority and so fifty or sixty by the power of the Army secured secluded and expelled near 400 Members and made themselves the Commons House without them and so proceeded to vote down and seclude both King and House of Lords and voted themselves to be the Parliament of England and sole Legislators and Supream Authority of the Nation The consequences of all which are too well known to the whole Kingdom whose Calamity of Civil War and all the unspeakable Tragedies of it flowed from the packing of Members in the Commons House and the Assistance the People relying upon their Sageness and Authority afforded them How this revived against Abhorrers We had of later Years a fresh revival of the same method in the House of Commons expelling those they called Abhorrers which is so well known that I need say nothing of it yet I would recommend to all interessed Persons the perusal of two Treatises which though they pass for Pamphlets yet have been writ by Judicious Authors and those are The Lawyer outlawed and the Three parts of the Addresses which are Books very fit for Gentlemen to peruse How full and unquestioned a power the Commons have to represent Grievances to the King and petition for Redress The unquestioned Rights of the Commons to impeach any Person of the highest Quality that is a Subject for Treason or high Misdemeanors to have the sole Power in having all Bills for Subsidies Aids and Supplies to begin and I think be perfected in their House and the Privileges they petition for by their Speaker are so well known that they need no Discourse upon But I find several Judicious Persons will not allow the House of Commons to be a Court which Sir Edward Coke affirms 4. Instit p. 28. Whether the House of Commons be properly a Court. and uses this only one Argument for it Because it is not Prorogued or Adjourned by the Prorogation or Adjournment of the Lords House but the Speaker upon signification of the Kings Pleasure by the Assent of the House of Commons doth say This Court doth Prorogue or Adjourn it self But to this it is answered Lawyer outlawed p. 18. That if this were sufficient to denominate a Court every Committee of Lords and Commons though never so few in number must upon this account be a distinct Court because they may thus adjourn and prorogue themselves without their respective Houses In another place 4. Instit p. 23. the same Chief Justice offers to prove the House of Commons not only a Court but a Court of Judicature and Record for that the Clerks Book of the House of Commons is a Record and so declared by Act of Parliament 6 H. 8. c. 16. But this House had no such Book as a Journal much less any Authentick Record When the House of Commons had a Journal first before the first Year of Ed. the Sixth all their material proceedings till then being drawn in Minutes by a Clerk appointed to attend them for that purpose and by him entred of Record in the House of Lords Therefore the Words of the Statute are That the Speakers Licence for Members going into the Country be entred of Record in the Book of the Clerk of the Parliament appointed for the Commons House and this Journal is rather a Register of what passeth than such a Record as denotes a Court of Judicature as the Author of The Lawyer outlawed endeavours to prove P. 17 18 19. Plowd Com. fol. 319. Coke 1. Inst fol. 260. because there is no Court but what is established by the Kings Patent by Act of Parliament or by the Common Law i. e. the constant immemorial Custom of former Ages for by that the House of Lords is the sole supream Court of Judicature it having never been heard of before Sir Edward Coke's fancy That there were two distinct Courts in the same Parliament Also there is no Court without a power of tryal but the House of Commons have no power to try any Crime or Offence because they cannot examine upon Oath and there can be no legal Tryal without Witnesses nor are any Witnesses of any force in Law unless examined upon Oath But I shall not enter into these Controversies Some Observations on the Privileges of the House of Commons in general but shall now lay down some general Observations and Rules which Judicious Persons have noted as worthy the consideration of the Honourable House in point of their claims of Privileges and Judicature First King James the First 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 Stile calling it their Ancient and undoubted Right and inheritance but could rather have wished that they had said All Privileges from the Crown Their Privileges were derived from the Grace and permission of his Ancestors and him and thereupon concludes That 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 Favour of his Predecessors yet he promiseth to be carefull of whatsoever Privileges they enjoy by long Custom and uncontrolled and lawful Precedents Secondly C. 29. None to be punished but by Legal Trial. It is to be considered That by the Great Charter it is declared That no Freeman shall be taken or imprisoned or diseised of his Freehold or Liberties or his Free Customs or be Outlawed or Exiled or in any manner destroyed but by the lawful Judgment of his Peers or by the Law of the Land Stat. 28 E. 3. c. 3. So 28 E. 3. it is Enacted That no Man of what estate or condition he be shall be put out of his Land or Tenements nor taken nor imprisoned nor dis-inherited nor put to death without being brought to answer by due Process of Law So 42 E. 3. c. 3. it is assented and accorded for the good Government of the Commons that no Man be put to answer without presentment before Justices or matter of Record or by due course of Law or Writ Original according to the Old Laws of the Land Nulla Curia quae Recordum non habet potest imponere finem neque aliquem mandare carceri quia isla tantummodo spectant ad Curias de Recordo Mar. Sess 3. So Sir Edward Coke saith Courts which are not of Record cannot impose a Fine or commit any to Prison because these only belong to Courts of Record for which see Beecher's Case fol. 60. 120. Bonham's Case and lib. 11 fol. 43. Godfrey's Case So in the First Parliament of Q. Mary it is declared That the most Ancient
intended to invade the Subjects Liberties but if they allowed the Writ the delicious Power of Imprisoning such as they had a Pique to was utterly lost and all Persons referred to the ordinary Courts of Justice or upon their failure to the House of Lords Sir William Jones against any ones Release by Habeas Corpus if they were imprisoned by the House of Commons the Supreme Tribunal of England Sir William Jones insisted much upon the Power of the House and that they did not intend by that Act to bind themselves which yet must bind the King though it might as well be alledged That he did not intend to bind himself by it However Sir William persisted urging See Debates of the House p. 217. That whatever Reasons may be given for discharging such as are not committed for Breach of Privilege if grounded on the Act for the Habeas Corpus will hold as strong for discharging of Persons for Breach of Privilege and so consequently deprive the House of all its Power and Dignity and so make it insignificant and said That was so plain and obvious that all the Judges ought to take notice of it and so judged it below the House to make any Resolution therein but rather to leave the Judges to do otherwise at their peril and let the Debate fall without any Question But Baron Weston had the Courage to grant the Habeas Corpus Baron Weston grants the Habeas Corpus as rather willing to expose himself to the Displeasure of the House than deny or delay Justice contrary to his Oath I could not omit this remarkable Passage as a Specimen of the Arbitrariness of the Leading Party in that House Brief Register part 4. p. 846. and now shall proceed to Mr. Prynne's Remarks upon the Proceedings of the long House of Commons He observes Privilegia omnino amittere meretur qui sibi abutitur concessa penestate Ejus est interpretari cujus concedere Summa Rosella Privilegium 3. That Privileges may be lost by the abuse of the Power and that whatever Privilege the House hath is from the King's Grant or Toleration Therefore according to the Canonists Rule If the Privilege granted be expressed in general dubious or obscure Words then it is in the power of him to interpret who hath the power to grant Now the Petition of the Speaker is That the Commons in this Parliament may and shall have all their Ancient and Just Privileges allowed them Therefore the King Nemini liceat Chartas Regias nisi ipsis Regibus judicare Placita Parl. 18 E. 1. num 19. p. 20. being the sole Granter of these Privileges must be the only proper Interpreter and Judge of them as he is of all his other Charters of Privileges Liberties Franchises and Acts of Parliament themselves after his Regal Assent thereto not the Commons or Persons to whom they are granted and that both in and out of Parliament by Advice of his Nobles or Judges of the common-Common-Law Therefore he saith first How the Breach of Privilege to be punished according to Mr. Prynne See the Authority Brief Regist part 2. p. 847. That if the Commons by Petition to the King and Lords in Parliament complain of the Breach of their ancient Privileges and Liberties as they ever did in the Cases of Lark Thorp Hyde Clerk Atwyll and others the King by Advice of his Lords in Parliament assisted with his Judges hath been and as he humbly conceives is the sole proper Judge of them and their violations not the Commons who being Parties Prosecutors and Complainants are no legal indifferent Judges in their own or Menial Servants cases if they will avoid partiality which is the reason the Law allows Challenges to Jurors in Civil and Criminal causes Therefore he observes Ibid. p. 1206. that the House of Commons taking Informations without Oath may be easilier abused by misinformation and sometimes thereby are put upon over hasty Votes which upon finding out evil Combinations they are forced to retract Secondly The Chancellor or Lord Keeper to grant the Writ If the complaint of the breach of Privilege be made in the Commons House and thereupon an Habeas Corpus Writ of Privilege or Supersedeas prayed under the great Seal for the Members or menial Servants release whose Privilege is infringed the Lord Chancellor or Keeper of the great Seal representing the Kings person in Chancery the Court for relief in cases of Privilege is the properest Judge and Examiner of the claimed Privilege and its violations upon Oath and other sufficient Evidence assisted by all the Kings Judges in cases of difficulty who thereupon will grant or deny the Writs Thirdly The Judges of the Courts to which the Writ is directed to judge of the validity of the Privilege When these Writs of Privilege Supersedeas or Habeas Corpus are granted to any Member or menial Servants and directed to any of the Kings Courts to enlarge their restrained Persons or stay any Arrests Process or Judgments against them the Kings own Judges in his respective Courts to which they are directed are then the proper Judges of the Privileges of Parliament and of their breaches suggested in these Writs who may examine not only all matters of Law or Fact comprised in them which are Traversable but likewise adjudge allow or disallow the very Privilege it self if no real ancient Parliamentary Privilege allowed by the Laws and Customs of the Realm How far he is in the right I will not undertake to judge but I remember somewhere he wisheth an Act of Parliament to pass to adjust these matters which possibly would prevent many of those chargeable attendances about false Returns and save much expence of time in the discussing of them and enable the Subjects to pay a right and due obedience to them SECT 12. Concerning the Royal Assent to Bills I Have treated so much of this elsewhere as to the sole Power in the King the ancient Custom of Sealing the Acts with the Kings Seal and of some of the Prelates and Nobles as Witnesses of their Assents that I shall only now speak as to the usual formality of passing the Bills into Acts by the Kings last Act. See also his Memorials For Mr. Hackwell hath given a full account of the manner how Statutes are enacted in Parliament by passing of Bills to which Book I refer the curious Reader that would understand the order that is used in the debating and passing of them When Bills are passed by both Houses upon three several Readings in either House Hackwell of Passing of Bills p. 179. ad 182. they ought for their last approbation to have the Royal Assent whereby every Statute is as Mr. Hackwell observes like Silver seven times tryed The Royal Assent is usually deferred to the last day of the Session and because some have been of opinion that the passing of Bills The Royal Assent determines not the Session
the personal Will and Power of the Sovereign himself standing in his highest Estate Royal. Therefore whoever reads the Authors that writ in defence of the Parliament must consider this Fallacy they frequently used that he do not apply the Authoritative Act of the King with the Consent of the two Houses to the Houses without the King From the Co-operation of the two Houses in preparing Laws (b) Freeholder's Grand Inquest p. 34. the late 〈◊〉 since King Charles the First 's time of the words The King is not one of the Three Estates Be it endâ—ed by the King the Lords Spiritual and Temporal and Commons as if they were all Fellow-Commissioners and the unwariness of some of the Penners of the King's Answers to some of the Papers of the two Houses wherein they stiled the King the third Estate the Commonwealths-Men have taken the advantage to reckon the King but as a third Legislator Therefore I think it necessary to remove this Rub e're I proceed further Although the Author of the Imposture The Modus makes the Parliament to consist of six Parts called the modus tenendi Parliamentum makes six degrees of constituent Members of the Parliament viz. The King first then Secondly the Archbishops Bishops Abbats Priors and other Clerks who held Baronies Thirdly the Proctors of the Clergy Fourthly the Earls Barons and other great Men who held to the value of a County or Barony Fifthly the Knights of Shires Sixthly the Citizens and Burgesses to which he might have added the Barons of the Cinque-Ports yet he saith the King is the Head Beginning and End of the Parliament and so hath no (c) Ita non habet Parem in suo gradu Peer in his degree Yet it plainly appears that these we now call the two Houses were by reason of their distinct Orders most frequently divided into three For in (d) As queux Prelats ou la Clargie par eux mesmes les Countes Barons par eux mesmes Chevalers Gentz de Countez Gentz de la Commune par eux mesmes entreteront Prynne Animadv p. 10. 6 E. 3. at his Parliament at York the Record saith That on the Friday before the Feast of St. Michael the Prelates or the Clergy by themselves the Earls and Barons by themselves the Knights of the Counties and the Commons by themselves treated c. Othertimes we find the Prelates Earls Barons and great Men and the Knights Citizens and Burgesses to have separate Consultations by themselves and to give their several answers to Articles and business propounded to them in Parliament as Mr. Prynne out of the Abridgment of the Records of the Tower hath given us above twenty instances At the making of the Statute of Praemunire 16 R. 2. the Commons pray The Lords Spiritual Lords Temporal and Commons make the Three Estates That the Lords as well Spiritual as Temporal severally and all the Estates of Parliament might be examined how they thought of that matter and the Lords Spiritual answered by themselves and the Lords Temporal by themselves and the King was Petitioned to make this Examination So in 40 E. 3. the King asking the Houses Whether King John could have subjected the Realm as he did the Prelates by themselves and the Dukes Earls and Barons by themselves gave their Answer Besides we find as at large I have before instanced in the last Chapter the Writs of Summons of the Bishops and Clergy were only in side dilectione and the Barons generally (e) Stat. 18. â— 6. c. 1. in fide homagio or Ligeancia and the Clergy granted their Subsidies apart and distinct from the Nobles Besides that the Bishops are to be esteemed the Third Estate is clear by Act of Parliament for it being questioned (f) 8 Eliz. c. 1. whether the making Bishops had been duly and orderly done according to Law the Statute saith That the questioning of it is much tending to the slander of all the Clergy being 〈◊〉 of the greatest States of the Realm So Sir (g) P. 36. Thomas Smith as in the last Chapter I have noted distinguisheth the two Houses into three Estates and Sir Edward (h) 4. Instr p. 1. Coke saith expresly That the High Court of Parliament consisteth of the Kings Majesty sitting in his Royal Politick Capacity and the three States of the Realm viz. the Lords Spiritual Lords Temporal and Commons the like the learned (i) Interpreter tit Parliament Cowel affirms Sir Henry Spelman (k) Solenne collequium omnium Ordinum Regni Authoritate solius Regis ad consulendum statuendumque de negotiis Regni indictum Gloss p. 449. calls it a Colloquy of all the Orders of the Kingdom convened by the sole Authority of the King to consult and appoint in the Affairs of the Kingdom This was also known to Foreigners uninteressed Persons for the Lord Argenton speaking how Subsidies were granted in England saith * Lib. 5. p. 253. Convocatis primis Ordinibus Clericis Laicis assentiente Populo And Bodin ‖ De Repul lib. 6. whenever he speaks of the Constitution of our Parliament calls it the King and the three Estates of the Realm But to put all out of doubt in King Charles the Second's Reign it is determined in the Act for the Form of Prayers for the Fifth of November For the Preservation of the King and the Three Estates Now the reason why in King Charles the First 's answer Why in some of King Charles the First 's Writings the King was called the Third Estate we meet with the expressions of making the King the third Estate was because at that time the Bishops being voted out of the House of Lords and the two Houses setting themselves in all the points of Controversie in opposition to the King the notion of a Triumvirate was more intelligible as it may be thought to the People and those who were so bitter Enemies to the King and had such a Rebellious force would have still increased the Peoples aversion if the King had asserted his Royal Prerogative otherwise Whether this were the true reason or the oversight of the Penners of his Majesties Answers I will not undertake to determine but I am induced to believe the first because I find the King and those that writ in defence of his Cause using frequently this way of Argument In every State there are three Parts saith (l) Review of Observations one the King ordered to write for him capable of just or unjust Soveraignty viz. the Prince Nobles and People Now through the Piety of our Lawgiving Princes a just and regular course of Government being obtained the stability of which being found to be more concerned in the Power of making Laws than in any other Power belonging to the Soveraign for preventing of Innovations that might subvert that setled regularity the frame and state of Government was in such a sort established as that the
Land and the other the demean of the Fee So it is in an Estate of Power and Authority If the King granteth an Estate of Power Authority and Jurisdiction in Fee-simple or in Fee-tail for term longer or shorter the King hath the demean of Power and the other the demean of Use the King hath Dominium directum the other Dominium utile which he applies to the two Houses but it must be likewise considered that this distinct Authority they have is wholly derivative and so much the more depending on the Sovereign as he can at his Pleasure totally deprive them of the Exercise of it by Prorogation or totally annihilate it by Dissolution Another Objection they made Objection The Three Estates to restrain the Excess of each other was from the Answer the King authorized a Gentleman to make to the Observer That the three Estates are constituted to the End that the Power of the one should moderate and restrain the excess of the Power in the other From which he infers That this is an Allay and mixture in the Root and essence of the Constitution To this it may be answered Answer to it That there is no such Power in the two Houses they are called to consult and to consent All they can do is that they have the opportunity of having grievances redressed because they may otherwise deny the King the assistance he desires But they have no Authority of themselves to redress them or to restrain and moderate his Excesses by Force nor can they moderate the Excesses of one another by any Act of their own singly further than the exorbitant Estate shall be willing to be moderated It is a most absurd thing to imagine that when the Law hath placed the Sovereign Power in the King it should again for a space of time during the Session of Parliament unsovereign Him and place in the two Houses the same Sovereign Trust and with a second absurdity leave in the King's Hands the summoning and dissolving the Power by which himself should be constrained and to make up all should by Authority of that Power constrain all the Heads of the People and even the Representative Body of that Power by Solemn Oath to declare that the King is not only supreme Governour but that he is only supreme Governour Besides the Arguments they sued upon this Head of a debased Monarch that was not only to admit some of his Subjects into the Participation of his Burthen but of his Soveraignty whereby they pleaded for both the Houses being joynt-Sovereigns for the time they used other Arguments singly for the House of Commons which they endeavoured to aggrandize and raise to a strange over-towring heighth above both King and Lords and they grounded all their Arguments upon the immense Power of their being the Peoples Representatives The Observer saith Objection concerning the Power of Representatives That the vertue of Representation is the great Privilege of Privileges that unalterable Basis of all Honour and Power whereby the House of Commons claims the entire Right of all the Gentry and People and that there can be nothing under Heaven next to renouncing of God which can be more perfidious and more pernicious to the People than the withdrawing from them and doth acknowledge that the Arbitrary Rule was once most safe for the World But now since most Countries have found out an Art and peaceable Order for publick Assemblies he means by Representatives whereby the People may assume its own Power and do it self Right without the disturbance of it self or injury to Princes he is very unjust that will oppose this Art and Order In answer to which it ought to be considered That the Representative Body deserves the highest Honour and Observance that can be given to the Body Represented Answer What Honour is due to Representatives of the Subjects but this Honour will depend upon two things First the quality and condition of the Body represented and Secondly on the quality of the Representative it self If therefore the Body at large were an absolute Sovereign as in Republicks the true Representative of that Body were to be observed with all Sovereign Honour and due Subjection But when the Body at large it self is but a Subject as it is in Monarchy the Honour and Authority of the Representative cannot exceed the Honour and Authority of a Subject for none can make the Image more than the Original or without Adulterating Arts appear so Therefore however abhorrent a Crime he makes it in such as concurr not in their Judgment with their Representatives that exceed their Authority and Commission yet all sober and just Persons ought to consider that the Subjects by giving Authority to some of their own Order to represent them and advise and consent for them gave them no such Power above that of Subjects yea so much above the condition of their Sovereigns that neither breach of Faith nor the Oaths of Allegiance and Supremacy which they never took to them or any other Duty to their King was comparable to the withdrawing from the Vote or Act of their Representators as if the Rights of the Crown and Kingdom and the Laws made by the King with the assent of the three Estates in Parliament did not so much concern the Commons of the Land but that against all these they stood solely bound to the Representatives as the only Sovereign of their Obedience I shall now offer some Reasons against this dangerous Opinion First It is to be considered Reasons against the Power of Representatives That in our Kingdom the Representors are not equally chosen as in the united Provinces and other Commonwealths but it lies in the Power of the Sovereign here to make a Town equal in number of Burgesses to a County which doth vehemently demonstrate That the first Institution and end of such Representatives was rather to minister Information of the State and Condition of that particular place and advise and assist the Sovereign and to consent with him and not to determine Sovereignly Secondly The cockering the People in that Opinion that the Soveraignty lies in Materia prima in them and by their Representatives that they may exert it is the certain way to ruin not only Monarchy but all government as was evident in the case of the Rebellious House of Commons in King Charles the First 's time who prided themselves so much with the Title of Representatives and by pretext of that and the Assistance of their Army having unyoked themselves from all Subjection to their Lawful King and disengaged themselves from their dangerous and useless Collegues the Lords as they then voted them after some while they lost their Honour and Reverence with their own Army who then would be the People and pulled them out of their House justly charging them with a design to perpetuate themselves And so the Tyrannical Supremacy was exercised by Cromwell and his Council of Officers a while
in such cases it is not to be wondred at that a majority of Votes might be opposite to more judicious and foreseeing Members judgments neither is the Maxim universally true for it must be caeteris paribus if all things be alike For it is not sufficient for an Adviser to see unless he can let another see by the light of Reason A man ought not implicitely to ground his Actions upon the Authority of other mens Eyes whether many or few but of his own One Physician may see more into the state of a mans body than many Empiricks One experienced Commander may know more in Military Affairs than ten fresh-water Souldiers One old States-man in his own Element is worth many new Practitioners One man upon a Hill may see more than an Hundred in a Valley And who will deny but among an Hundred one of them may have a stronger Eye and see clearer and further than all the Ninety Nine So one Paphnutius in the Council of Nice saw more than many greater Clerks And it is no new thing to find one or two men in the Parliament change the Votes of the House Therefore nothing is got by this way of arguing though it be one of the plausiblest and most improveable of any of the Topicks they choose And if we could be sure that all the Members of such Assemblies were free from all the imperfections such are liable to much might be yielded to it All these Arguments were used for that sole end that they might possess their Party with the reasonableness of their desires to the King that he would implicitly yield up his reason to the guidance of their Councils They were not so frontless at first Concerning the Negative Voice as positively to deny the Kings negative Vote in Parliament that had never been doubted and there is good reason it should be a most sure Fundamental of the Government since nothing can be Statute-law but that to which the King assents Le Roy le veult For who can be said to will that hath not the Power to deny Si vult is scire an velim efficite us possim nolle Seneca But they affirmed that in Cases extraordinary when the Kingdom was to be saved from ruine the King seduced and preferring dangerous men it was necessary for them to take care of the Publick And then the Kings denying to pass their Bills was a deserting of them Objection That in Cases of Extraordinary necessity the Houses to have Power to secure the People from Tyranny Otherwise they alledged Parliaments had not sufficient Power to restrain Tyranny and so they boldly affirmed they had an absolute indisputable Power in declaring Law and as their Observer words it they are not bound to Precedents since Statutes cannot bind them there being no obligation stronger than the Justice and Honour of Parliaments And to summ up all he tells us if the Parliament meaning the two Houses be not vertually the whole Kingdom it self if it be not the supreme Judicature as well in matters of State as matters of Law if it be not the great Council of the Kingdom as well as of the King to whom it belongeth by the consent of all Nations to provide in all extraordinary cases ne quid detrimenti capiat Respublica let the brand of Treason saith he stick upon it Indeed because by all these most false and impious assertions and those horrid Acts built upon them they brought so great a ruine to the Kingdom they are and ever will be uâ—less a Platonick year return again branded with Rebellion in the highest degree To answer this Accumulation of Treasonable Positions for such I hope I may call in some sence Answer what is against the Kings Crown and Dignity is no ways difficult from the discourse of right constituted Parliaments For those of them that carry any shew of Reason are such only as may be understood of Acts of Parliament compleated by the Royal Assent but being spoken of either or both Houses in opposition to the King they are most false as I shall shew in particular For First If the two Houses are not bound to keep any Law no man can accuse them of breach of any What obligation can Justice lay on them who by a strange vertue of Representation are not capable of doing wrong But it is well known that Statutes stand in full force to the two Houses as being not void till repealed by a joynt consent of the King and the two Houses It would be much for the credit of the Observers desperate Cause if he were able to shew one such Precedent of an Ordinance made by Parliament without the Kings assent that was binding to the Kingdom in nature of a Law Our Kings can repeal no Laws by their own Prerogative though they may suspend the Execution It seems the Houses would have Power to do both and our Author in another place thinks it strange that the King should assume or challenge such a share in the Legislative Power to himself as without his concurrence the Lords and Commons should have no right to make Temporary Orders for putting the Kingdom into a Posture of Defence These were strange Phrases never heard before by English Ears Our Laws give this Honour to the King That he can joyn or be sharer with no man The King like Solomon's true Mother challengeth the whole Child not a divisible share but the very life of the Legislative Power The Commons present and pray the Lords advise and consent the King Enacts Secondly The Houses have no Power to declare Law As to their claiming an absolute Power in declaring Law it is as bold and false an Assertion as the other when spoken of the two Houses They may vote in order to a new Bill the explaining or repeal of any Law formerly made or prepare a Bill for any New Law and that is all they can do but authoritatively to declare any Law is most contrary to the Constitution of the Houses and never was adjudged one of their Privileges Thirdly As to the Justice and Honour of a Parliament when the State is in quiet and the Conventions only for making wholsome Laws for the Publick weal there are no Factions in Court or Country no private Intriegues to be managed the People neither uneasie nor discontented then it is to be expected That none but the wisest and wealthiest of the Gentry will be chosen Members of that August Assembly and their Justice and Honour will be conspicuous in all their Actions But have we not known Houses of Commons composed of other kinds of Persons who have voted their own Justice and Honour to be to imprison their fellow Members and fellow Subjects in an Arbitrary way How (d) Address part 3. p. 121. could a generous Soul conscious to himself he had transgressed no Law kneel at the Bar of such a House with the same submission as if he believed the Speaker
Earls Barons Great Men and the whole body of the Tenents in Capite expressed by those words in the former Questions Clergy and People for by them these demands were made and no doubt they would first ask for themselves for the Vulgar or Rabble could not come near to make their Demands at such a Solemnity as this was so (y) Walsingham fol. 95. num 20. great and splendid there being at it Charles and Lewis Earls of Clermont two of the King of France's Brothers the D. of Brabant the Earl of Fens and the other great Men both of France and England with the Countess of Artois Whoever desires further satisfaction may consult the same learned (z) Elossary p. 24. Author who makes it clear That the word Plebs Vulgus Populus in the Writers of that Age was used for the Laity in way of contradistinction from the Clergy I shall at present leave this and note that for any thing appears to the contrary the same Interrogations Oath c. presented to Edward the Second and Third without the additions of King Richard's continued without any alteration to Henry the Eighth's (a) Book of Oaths fol. 1. time and in that we find the King promiseth he shall keep and maintain the Liberties of the Holy Church of old time granted by their Righteous Kings of England The Oath of King Henry the Eighth I find in the Heralds Office the words thus Do ye grant the rightful Laws and Cusioms to be holden and permit ye after your Strength and Power such Laws as to the Honour of God shall be chosen to the People by you to be strengthned and desensed Vid in Coll. Arm. p. 60. and that he shall keep all the Lands Honours and Dignities righteous and free of the Church of England in all manner Holy without any manner of minishments and the rights of the Crown hurt decay or loss to his Power shall call again into the ancient estate and that he shall keep the Peace of Holy Church and of the Clergy and of the People with good accord and that he shall do in his Judgment Equity and right Justice with Discretion and Mercy and that he shall grant to hold the Laws and Customs of the Realm and to his Power keep them and affirm them which the People and Flock have chosen and the evil Laws and Customs wholly to put out and stedfast and stable Peace to the People of this Realm keep and cause to be kept to his Power In this Oath King Henry the Eighth interlined for the right explication of it instead of People and Flock these Words which the Nobles and People have chosen with my Consent The Oath of King Edward the Sixth Oath of Edward the Sixth so far as relates to my purpose was this Do you grant to make no new Laws but such as shall be to the honour and glory of God and to the good of the Commonwealth and that the same shall be made by the consent of the People as hath been accustomed Oaths of Queen Mary and Queen Elizabeth not seen by the Author The Oaths of King James the First and King Charles the First The Oath of King Charles the Second Hist Coronationis Caroli 2. in Colleg. Arm. I have not seen any Transcripts of the Oaths of Queen Mary or Queen Elizabeth those which King James and King Charles the First took run thus Will you grant to hold and keep the Laws and Rightful Customs which the Commonalty of this Kingdom have and will you defend and uphold them to the Honour of God so much as in you lyeth That Branch of the Oath which relates to my purpose taken by King Charles the Second runs thus Sir Will you grant to keep the rightful Customs which the Commonalty of your Kingdom have c. The Oath that our present King James the Second took at his Coronation The Oath of King James the Second was in the same Words as that of his Royal Brother wherein the Word Customs is to be taken in the largest extent to include Laws also Now upon the whole we must consider First Considerations upon this Discourse of the Coronation Oaths That in the Eye of the Law the King never dyes so that he is King before any Solemnity of Coronation Secondly The variety of Forms and Precedents seem to prove that one precise form is not simply necessary so the interlining of Henry the Eighth upon Record also shews And if it had been of consequence to have retained the old form we should have heard of it either then or in some succeeding Parliaments Lastly it cannot be denied that if the King be bound by a lawful Oath to pass all Bills it is not the form of denying it but the not doing of it which makes the Perjury And so when the King is tender of a flat denial and attributing so much to the judgment of his great Council that he only useth the words avisera it would be a strange Doctrine that all the Kings of England who have given this Answer have been forsworn and neither Parliament nor Convocation taken notice of it in so many Ages But when by dint of Argument the Parliament Champions were driven from these Holds they fled to their last Burrow So one of them confesses that in Acts of Grace the King is not bound to assent nor in Acts wherein he is to depart from the particular right and interest of his Crown and lastly that if he do not consent however bound by Oath yet they are not binding Laws to the Subject How the Long Parliament Writers would have the King part with his Prerogative in Cases of necessity only But then comes the handful of Gourds which spoils the Pottage Except in cases of necessity If the safety of the People be concerned If it may prove dangerous or inconvenient to them then an extraordinary course may be taken This was the plausible Plea of 1641. to get the Militia into their hands for they urged that in case of apparent and imminent danger the Peoples safety was not to be neglected They might not be exposed as a prey to their Enemies therefore must be put into a posture of defence This was grateful to the People out of that real love they bare to themselves they must favour that side which pretends to take care of their safety Give to any Person or Society a Legislative Power without the King in case of necessity (b) Answer to Observ b. 76. permit them withal to be sole Judges of necessity when it is and how long it lasts and then it is more than probable the necessity will not determine till they have their utmost desires which is the same in effect as if they had the Legislative Power Further it must be considered that necessity upon that supposition must be very evident there needs no such great stir who shall be Judge of it when it comes indeed it
will shew it self when extream necessity is disputable it is a sign it is not real Secondly The Agent must be proper otherwise it cuts in sunder the very Sinews of Government to make two supremes in a Society and to subject the People to contrary commands But to claim such a Power over the King in extraordinary cases alone That the Houses should be Judges of this Necessity doth not much vary the case for at the same time they voted themselves the proper Judges of such necessities and the erecting of any superintending Power in the circumstances of those times and in all parallel cases would not only unsoveraign the King by making this Power the Soveraign but the exercise of it would be subject to more dangerous extravagances than Regal Power is and yet less capable of Regulation than it For the Law knowing there is none but God qui custodiat ipsos custodes concludes from the weakness and imperfection of every other form of Government that the Soveraignty of Law-making was better placed in the hands of a sole Prince than in a Popular or Aristocratical hand and that a positive known Law without any coercive Superintendent was a sufficient and the best boundary of Regal Power For the Law and the Transgression of it being both at once made manifest and notorious it will be so sufficient (c) Review of Observations security of the future observance of the Law that Princes will not offer to violate it Now if such a Supreme Power as these would have in the two Houses in what case soever be once enacted that must either be boundless or circumscribed by a Laws and if that be circumscribed with a Law then must that Law also have a Superiour Power to enforce it and so there must be a Superiour Power over Superiour Power in infinitum and yet at last leave the most Superiour Power in that liberty which the Observer calleth boundless Arbitrary and Tyrannical If this Principle were true By the Arguments of the Parliamentary Writers the Sovereignty is not in the King but in the People all is but misleading formality of Law the Soveraignty is not in the King but in the People the King is the only Subject and but a common Voucher whose concurrence is unavoidably implied his Will his Understanding and his Power are all subject to the Body of the very Subject that in Parliament doth swear subjection to him and these pretended Rights being hid ever since the beginning of the Kingdom the whole generation of the Subject ever since hath by the injury of our Laws been most impiously mis-sworn in their Allegiance And whereas the trust is irrevocably committed to the King and his Heirs for ever how can it be conceived it should sleep during the sitting of a Parliament unless that jocular saying of King James were to be understood really That during the Sessions of a House of Commons there were five hundred Kings And if any such Power were in the Houses it was a strange oversight to leave it to the Kings disposal when to call the Body together and when to dissolve it as before I have touched whereby the King might solely determin where and how long he would be over-ruled and when King again whereas by the false suggestion of the Observer that it was fit the Houses should have a Superintendent Power in case of extraordinary danger and they only to be Judges of that danger he cunningly turns the Tables and makes the Houses to be Soveraigns as long as they pleased and when they were weary of reigning the Kingdom should be out of danger and then it should be the Kings turn to command again But to draw to a conclusion on this subject which cost so much Blood and Treasure There (d) Answ to Observ p. 72 73. neither is nor can be the same necessity of observing an old Law to which a King is obliged by his Charter and his Oath and of a new Law to which he hath not given his Royal Assent If Magna Charta extended to this it were Charta Maxima the greatest Charter that ever was granted To be be denied nothing is a Privilege indeed as good as Fortunatus his Purse or as that old Law which one found out for the Kings of Persia That he might do what he would The King 's Negative Voice Necessary The taking away the Kings Negative Voice may indeed secure us against Tyranny which never can come in upon us as long as the two Houses (e) Idem p. 136. Negatives ballance it but it leaves us open and stark naked to all those Popular evils and Epidemical diseases which flow from Popular Government as Tumults Seditions Civil Wars and the Ilias of Evils which attends them the Negative Voice being the Soveraignest remedy against such great Mischiefs One Wheedle I find more they used since the King was so tender of violating his Coronation Oath in giving Assent to their new Bills which were diametrically opposite to the old fundamental Laws made in defence of Episcopacy and the Kings Prerogative in the Militia c. they quit their Title of Parliament men That the King is not bound to consent where what is desired is more inconvenient to the People than himself and would be Casuists to resolve his Conscience telling him that where the People by Publick Authority will seek inconvenience to themselves and the King is not so much interested as themselves it was more inconvenience and injustice in the King to deny than to grant it Thus the Houses would have granted the King a Dispensation to have acted against the dictates of his Reason Conscience and the fundamental Laws And because he would not own their Commission for it they persecuted him to the Scaffold This was an unheard of Villany to be offered to so Pious and Religious a Prince that as Father of his People would not give them a Stone instead of Bread or a Scorpion instead of a Fish The Heathen was much honester who prayed Jupiter to give him good things though he never opened his Mouth for them and to withhold bad and prejudicial things though he petitioned never so earnestly for them This was a strange Principle that the King should be bound by Law to destroy his People or not preserve their Right unless he not only violate his own Conscience but their very Liberties Can a man imagine those People of whom Juvenal speaks evertere domos totas optantibus ipsis Dii faciles if they had understood their own Prayers would have accused the Gods for denying them As they thus sought to hush the Kings Conscience so that endeavoured to find a quaint salvo for their own more brawny ones For when it was urged that to deny the Kings Negative Voice was to dissolve the excellent constitution of Parliaments and was directly against the settlement of it upon the true basis of the Ballance and the mutual stipulation of the King
the Command of their Armies This as well as other Reasons must needs demonstrate That if ever any two Houses of Parliament should by Arts of Insinuation as that of 1641. did That unless the King would grant they might not be dissolved without their Consents Kings never to yield what the Long Parliament were so earnest for they could not have time to settle his Throne and redress Grievances or by denying necessary Supplies force a King to grant them a Power of prolonging their own Sitting or meeting at stated times without his Writ or yielding to their Bills implicitly as the Black Parliament of 41. endeavoured and then to have the Power of nominating the Great Ministers of State and the Officers of the Militia an end would be soon put to Monarchy Therefore every one that loves their Country The Care to be had in Elections the continuance of that most excellent Frame of Government for the Subjects security as no other Country enjoys those who would avoid the sad Ravages of Civil War who would make their Prince Glorious their Country Renowned themselves and their Posterities Happy let them be careful to elect Loyal and Judicious Members neither tainted with Faction Ambition or Self-ends and if any such be elected let the Wise and Loyal when they meet in that Great Assembly watch over the Designs of such ill Members discover their Intriegues be careful not to be circumvented by their Artifices stick close to the Fundamentals of Government and then all things will be prosperous and they will have the honour of being stiled True Patriots of their Country Sir (n) 4. Instit p. 35. Edward Coke hath noted That Parliaments succeed not well in five Cases Several Cases where Parliaments succeed not well when the King is displeased with the Two Houses First when the King hath been in displeasure with his Lords or Commons therefore it was one of the Petitions of the Commons to Edw. 3. That he would require the Archbishop and all other of the Clergy to pray for his Estate for the Peace and good Government of the Land and for the continuance of the King 's Good-will towards the Commons to which the (o) Rot. Parl. 25 E. 3. num 15. 43 E. 3. num 1. 50 E. 3. num 2. King replied The same prayeth the King The like Petition he saith many times the Lords have made and further adds That the King in all his weighty affairs had used the advice of his Lords and Commons always provided that both Lords and Commons keep within the Circle of the Law and Custom of Parliament The second is when any of the great Lords are at variance among themselves as he instanceth in the third (p) Rot. Parl. 3 H. 6. num 18. When Variance among the Lords of H. 6. in the Controversy betwixt John Earl Marshal and Richard Earl of Warwick and 4 H. 6. betwixt the Duke of Gloucester and Bishop of Winchester whereby little was done in any Parliamentary Court and that little of no moment The third When no good Correspondence betwixt the Lords and Commons when there is no good Correspondence betwixt the Lords and Commons which happens when some People out of design to render the meeting of the two Houses ineffectual do project some matters whereby the Houses may clash about Privileges as was lately in Shirley's Case about the Mony-Bill from the House of Lords and many other Particulars might be instanced in therefore Sir Edward Coke saith That when it was demanded by the Lords and Commons what might be a principal Motive for them to have good success in Parliaments Sitis insuperabiles si fuertis inseparabiles it was answered They should be insuperable if inseparable Cum radix vertex Imperii in Obedientium consensu rata sunt The very root and top of Government consists in the consent of the Obedient and the Subjects Happiness is in that Harmony when it is betwixt the two Houses and among themselves but much more happy when it is likewise betwixt the Sovereign and the two Houses It is that which compleats their own and the Peoples Felicity But when the two Houses or one of them are for wresting the Sovereigns Prerogative from him as in Forty one then it is the most fatal and ill-boding sign of any other The fourth is When Disagreement in the House of Commons when there wants Unity in the House of Commons as we had not long since Experience when within those Walls from whence wholesome Counsels are expected and all things tending to the preservation of the King's Peace Crown and Dignity such Heats were amongst the Members that if one Sword that was half drawn had been wholly unsheathed it was thought a very bloody Battel had been fought The last he makes When no Preparation for the Parliament is when there is no preparation for the Parliament before it begin for which purpose the Summons of Parliament is forty Days or more before the Sitting to the end that Preparations might be had for the considering the arduous and urgent affairs of the Realm And Sir Edward saith it was an ancient custom in Parliament in the beginning thereof to appoint a select Committee to consider of the Bills in the two preceding last Parliaments that passed both Houses or either of them and such as had been preferred read or committed and to take out of them such as were most profitable for the Commonwealth To these may be added a most material one When Redress of Grievances are preferred to the Supply of the King that makes unfortunate Congresses of Parliaments viz. When the Members come up with strong Resolutions to provide Remedies for some Grievances either real or surmised and at the same time the Sovereign is in great Straights for supplies for the safety repute or necessary occasions of the Government for then as in most of the Parliaments of King Charles the First the Houses are for redress of Grievances before supply how pressing and urgent soever and do not credit the King that he will give them time to redress them after he is supplied and they from design rather than this diffidence will not suffer supply and grievances to go pari passu Hand in Hand as we may remember in those Parliaments wherein the popular Men made such Harangues that they would know whether they were Freemen or Slaves or had any thing to give before they entred upon the giving part The like we saw in King Charles the Second's Reign in some of his last Parliaments whereby all their Consultations were abortive and both the Kings had no other Expedient but Prorogation or Dissolution and disuse of Parliaments for some Years followed How much happier have we been in the last Session of the Parliament under our most Wise The happy Harmony in the last Session of Parliament June 1685. Magnanimous and Gracious King wherein no strife or contention was but who
ei nihil turpe cui nihil satis 3ly That he should be Avarus Rei Publicae covetous for the Kings Treasure and Commonwealth 4ly That he super omnia sit expertus that he be expert in what place the King shall imploy him for great Offices are never well managed by a Deputy When quick and when deliberate Counsels are best where the Officer himself is but a Cypher As to Counsels themselves Livy (p) In rebus asperis tenuis spei fortissima quaeque consilia tutissima sunt Lib. 22. excellently notes That in matters that are ground to an edge or drawn to a sharp point and where hope is only left in the bottom the boldest and quickest Counsels are safest yet it must be with great circumspection well considered when and upon what occasions such Counsels must be taken for the same (q) Consilia calida audacia prima specie laeta sunt tractatu dura eventu tristia Idem lib. 31. Author notes elsewhere That subtile and bold Counsels on the first view may be pleasing but are difficult in handling and in the event often Calamitous therefore rashness can never consist with Counsel duo adversissima rectae menti saith (a) Lib. 3. Male cuncta ministrat impetus Statius Thucydides Celeritas Ira Haste and Passion are of all things most opposite to Right Counsel therefore Curtius (b) Novanâ—is quam gerendis rebus aptiora ingenia illa ignca speaking of such saith Fiery and furious Spirits are more fit to innovate things and create Factions than to manage Affairs steddily (c) Praepropera consilia sunt raro prospera So hasty Counsels are rarely Prosperous because Resolution should never go before Deliberation nor Execution before Resolution When (d) Prinsquam incipias consuli o ubi consulueris mature fado opus est Sallust upon Debate and Deliberation it is by the Council-Table well resolved the change thereof upon some private information is neither safe nor honourable nor that after timely Resolution timely Execution be delay'd Violent (e) Coke Inst 4. p. 57. courses are like to hot Waters that may do good in an extremity but the use of them doth spoil the Stomach and it will require them stronger and stronger and by little and little they will lessen their own operation To leave this great Theme as too illustrious and sublime a Subject for one to treat of that hath lived in the Shade I shall now proceed to make some other remarks why our Laws give our Kings the sole power of chusing to themselves a Privy-Council and how the designers of 41. would have wrested that Power from the King Besides (f) Review of Observations p. 10. The King's Prerogative to chuse his Privy-Council what is common to all men to have a free liberty to whom they will impart their private Affairs and desire Counsel upon them our Laws being built upon firm foundations of reason considering that in the power of making of Laws the power of two numerous bodies were opposed against the Person of the single Soveraign it foresaw and found that by the Soveraigns consenting to Laws for the ease and benefit of the Subject things might pass to the prejudice and diminution of the Soveraignty If his single Person surcharged with the care of the manifold Affairs of the Kingdom should be left all alone to advise and dispute his right against all the Wisdom and Solicitation of the Representative Body of the Subject See Prynne's Brief Register sect 3. from p. 341. to the end concerning the King's Council in Parliament and out of it Therefore to prevent that it ordered That the King should at his discretion swear to himself a Body of Council sometimes in our Laws called his Grand Council to advise him in matters of State and concernments of his Soveraign Right and safety and a Body of Council at Law to advise him in matters of Justice that he might neither do or suffer contrary to the Rule of Laws especially sitting the two Houses when the wrong might be perpetual and seeing the Government must be continually upon its Guard and Watch without intermission molding and forming all things for its safety and prosperity and consequently of the Peoples this Council must be constantly attending upon the Kings pleasure and daily and hourly considering the best ways and methods of promoting the Kings and Commonweals advantage As to the (g) Pulton 37 56. 72. first particular we find it frequently in several Statutes expressed That the King by himself and by his Council at his Parliament made and ordained The necessity of a Privy-Council That this was not the great Council of Parliament appears by that of Edward the First (b) Idem p. 80. These are the Establishments of the King by his council and by the Assent of the Archbishops Bishops Abbats Priors Earls Barons and the whole Commonalty of the Land thither summoned and Edward the Second saith he caused the Articuli Cleri to be rehearsed before his Council and Answer given c. and much more may be observed in the Acts of the great Councils not fit here to be repeated From hence it is that the Law defines The King can do no wrong Privy-Counsellors responsible for if any evil be committed in matter of State the Privy-Council and if in matters of Law the Justices and Judges must answer for it As to the second particular the Parliament of 1641. cast the odium of most of the management of Affairs of State The Votes of the Long Parliament to traduce the King under the pretence of using Evil Counsellors that were ungrateful to them upon the Kings evil Counsellors as they called them which was a great artifice of the designers of that Rebellion for thereby being then not hardned enough to caluminate the King openly they would make the World believe they paid a just deference to his Majesty yet slily wounded his Reputation through his Counsellors sides leaving the application to the People Tacitly insinuating that the King being mis-led by such Councils was not so Just or Wise as to be wished and when afterwards they had got Power they always made it one of their propositions That the two Houses should have the nominating That the two Houses should have the nominating of Privy-Counsellors So in Henry the Third's time we find Mountfort's Model of Twenty four to redress the Kingdom to chuse Counsellors c. or approving and removing the Privy-Council or great Officers of State pretending they would set such just and righteous Persons in those places as would execute them for the publick good only and upon the same score though on another pretence they were importunate that the Judges should hold their places tam diu quam se bene gesserint rather than be removeable at the Kings pleasure Thus by vote without legal proof of Crimes they blackned as many of the Kings Privy-Council
the Justices in Queen Elizabeth's time the Chancellor tells them that the Queen had levied Forces and Reason willeth and the obedience of good Subjects requireth that all things that the Prince commandeth for defence of the State should by the Subjects diligently and obediently be performed for dutys sake either not examining the cause or presuming the best cause but at that time she was pleased to signifie the cause of her doings As to the King of England's making War and Peace abroad it hath always been owned as the King 's sole Prerogative and when some Parliaments have addressed to our Kings to make War or Peace contrary to what the Soveraign judged convenient they have been advertised of their Duties yet when War is to be made in remote Countries which cannot be performed without great Expence much time and the exhausting of the Kingdoms Forces That the People may more chearfully serve their Prince and Country and that the Exchequer may not be too much diminished whereby the usual Charges of the Government may not be substracted Kings have upon good Reason proposed the Matter to their Parliaments whereby necessary Aids might be sufficiently supplied The Laws now in force concerning the Militia are That the (k) 13 Car. 2. c. 6. 14 Car. 2. c. 3. King hath the Prerogative alone to dispose of the Militia of the Nation to make War and Peace Leagues and Truces to grant Safe-Conduct without the Parliament and he may issue out Commissions of Lieutenancy impowering them to form into Regiments to lead them and employ them as well within their own as other Countries as the King shall direct to suppress Insurrections Rebellions and Invasions He hath the Command of all the Forts and places of Strength and alone to have the keeping and Command of the Magazins of Arms he alone to give Letters of Mark and Reprizal in times of War to give Safe-Conduct for Merchants to make a stop of Trades as he sees cause In the time of danger and for defence of the (l) Coke 7. 25. Realm may command all his Subjects to Arm and they are to assist him and for this the Commission of Array may be made use of and all the Courts of Officers of War in a time of War are his Prerogative and the Subjects are to serve the King within the Kingdom against Rebels and Traytors (m) Jenkins Cent. 6. Case 14.26.89 without Pay or Wages and this as it seems in any part of the Nation especially if the King go himself The Subject except in an extraordinary (n) Coke 7.8 Case is not to be forced out of the Realm unless it be to go with the Kings Person nor in any case unless upon the sudden Invasion or Assault of an Enemy to serve the King without wages and the King in time of War may take any mans (o) I e. 3. Stat. 1. 2 Eliz. c. 2. House to build a Fort or make a Bulwark upon any mans Land But the King may not rate the Nation to pay any money towards any War of his It is true in time of Peace the King cannot quarter his Military Forces without the consent of the respective Subjects nor raise money without Act of Parliament for the maintenance of any Army so that the Subject while they keep dutiful are in no danger of oppression by such a Power yet without a competent Standing Force and Guard Some Standing Forces necessary at the Kings absolute pleasure what Livy saith of the Senate (p) Timor inde Patres incessit ac si dimissus exercitus foret rursus câ—tus occultaeque conjurationes fierent Lib. 6. The Long Parliaments Claim of the Militia would be most true of all Soveraigns That if the Forces were dismissed unlawful Assemblies and covert Conspiracies would be again set on foot The longest lived mischievous Parliament that any English History can record knowing that they could not effect their designs of weakning the King without the Power of the Militia though they had a numerous Party prepared to espouse their Interest and as ready for Rebellion as they could desire yet that they might have some colour for justifying their proceedings pretended necessity of putting the Kingdom into a posture of defence against foreign Invasions which by subtile Plots they possessed the people they had Intelligence of and for fear of any violence to be offered to themselves or that the King seduced by evil Counsellors should set up Arbitrary Power so having obtained that Fatal Act of not being to be dissolved without their own consent issued out their Commissions for Levying Trayning and Exercising Forces in all Counties where they had power by no Law or colour of Law but that of pretended imminent danger wherein the King refused to grant Commissions to such as they could confide in for their aforesaid purposes All which was but colour and shew to wrest the Power out of the Kings hands To obviate such like mischievous practices for the future upon his Majestys happy Restauration it was enacted and declared The Claims of any Right of the Two Houses to the Militia totally vacated That the sole supreme Government Command and disposition of the Militia and all Forces by Sea and Land and of all places of strength c. is and by the Law of England ever was the undoubted right of his Majesty and his Royal Predecessors Kings and Queens of England and that both or either of the Houses of Parliament cannot nor ought to pretend to the same nor can or lawfully may raise or levy War offensive or defensive against his Majesty his Heirs and lawful Successors So that now that great Controversy which wasso violently disputed to the loss of so much English Blood and Treasure is I hope eternally determined never again to be revived without an horrid prosperous Rebellion and this Prerogative of the Crown being thus guarded by Law will never more be attacked while the Royal line continues which is to be hoped and wished will without interruption be prolonged while the British Soil exists CHAP. XXXVI Concerning raising of Money upon the Subject and the obligation of Subjects to supply the Soveraign AS to the raising of Money for the support of Government I have discoursed something in the Title of Property and shall here only treat of the necessity in all Government That the Soveraign be plentifully supplyed with a Revenue suitable to the charge Although Darius the Persian be reckoned by Herodotus one of the first that exacted Tribute The necessity of Tributes and Aids yet it cannot be conceived but that ever since there was a Prince who commanded large Countrys and had potent Neighbours Tribute Aid and such like provision was exacted of the people for the defraying the necessary charges of it So Tacitus (a) Nec enim quies gentium sine armis nec arma sine stipendiis nec stipendia sine tributis 4. Hist tells us That we may be
better Condition though Gentiles than the Christians under the Romans or that it is derived from Gens I am more inclined to be of the latter Opinion finding it more agreeable to the common Use For Cicero (b) In Topicis calls those Gentiles qui ex eadem Gente Ingenui qui nunquam Capite sunt diminuti Gens consisting of a multitude which have sprung from one Generation and of many of these Gentes consists a Nation to which agrees that of (c) Gentilis dicitur ex eodem genere ortus is qui simili nomine appellatur Festus ad Verbum Festus that Gentilis is one born of the same Gens or Kindred and who is called by the like Name So we find the Horatii the Corvine Julian Flavian Family c. So the Greeks use the words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for one nobly descended from great Parentage So 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 was Nobility which (d) Polit. lib. 4. c. 8. lib. 5. c. 1. Aristotle calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Antient Wealth and Vertue or the (e) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Rhetor. ad Theod lib 2. c. 5. Dignity of the Ancestor The first Authors of it being stiled famous Men and Honourable 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 In the largest acceptation of the Word as it is now used saith the judicious (f) Tiles of Honour p. 852. Selden it denotes one that either from the Blood of his Ancestors or the Favour of his Sovereign or of them that have Power from the Sovereign or from his own Vertue Employment or otherwise according to the Laws and Customs of Honour in the Country he lives in is ennobled made Gentile or so raised to an eminency above the Multitude perpetually inherent in his Person These are stiled the Nobiles minores for distinction sake The use of the word Nobilis the word Nobiles being now appropriated to those of the higher Rank The ancient use of Nobilis especially before the Roman Monarchy was such that it was justly given to none but him that had Jus imaginum or some Ancestor at least that had born some of the great Offices or their Magistratus Curules as (g) 〈…〉 1. cap. 19. Censorship Consulship c. From whose Image kept he had the Jus Imaginum Therefore the preceding Ancestor was called novus Homo or Ignobilis Some Ages after the Romans were under a Monarchy the Title of Nobilis was given to such as by the Emperors Patents of Offices or their Codicilli Honorarii were first raised out of the lowest Rank After that Arms of Ensigns of Distinction born upon Shields grew to be in may Families Hereditary which was about four hundred Years since as Sir Edward Bish in his Aspilogia avoucheth it came into frequent use that he who was either formerly ennobled by Blood or newly by acquisition either assumed or had by Grant from his Sovereign or those deputed by him some special note of Distinction by Arms also to be transmitted with his Gentry to his Posterity Yet (h) 〈◊〉 Mr. Selden notes that in the Proceedings in the Court of Chevalry betwixt Reginald Lord Grey of Ruthin Plaintiff and Sir Edward Hastings Defendant concerning the bearing of a Manch Gules in a◠Field Or in the depositions taken in the Moote Hall at Bedford it is recorded that John Botiler of the County of Bedford and Roger Tenstal Mayor of Bedford having been the Plaintiffs Servants severally deposed Il est Gentilhom d' Auncestrie mas nad point d' Armes Gentlemen without coats of Arms. That he was a Gentlemen of antient time but had no Arms. But I shall pass from this That which I desire the Gentry to observe is Advice to the Gentry That they are the Seminary of our greater Nobility and that from Loyal Wise Learned Valiant and Fortunate Persons of their Order in all Princes Reigns the Nobility have sprung Therefore as some of them are derived from as numerous Ancestors as any in other Kingdoms and have by Hereditary Succession greater Estates than many foreign Counts and as they desire either to conserve the Repute their Ancestors have honourably entailed on them or to transmit them to their Posterities so it will be their Interest and Glory to accomplish themselves in all sorts of useful Learning whereby they may be Serviceable to their King and Country There are Bodily Exercises they should be well skilled in as Fencing Riding the great Horse and all Military Exercises to enable them to serve in the Militia of the Nation and their diligent perusing all sorts of History and the Laws of the Land will fit them for the managing of Civil affairs and dispensing the Kings Laws as Justices of Peace Sheriffs Commissioners Representatives in Parliament as also for the greater Offices of State Since they are born to large Patrimonies and thereby have a more generous Education and derive a more refined Spirit from their Ancestors they can with infinite more Ease enter into publick Employment having none of those sinking (i) Hand facile emergunt quorum virtutibus obstat Res angust a domi weights of Poverty and mean Education which enforce others to use extream Diligence e're they can mount the first half Pace the Gentleman is seated on by that time he leaves his tutors It is true the Priviledges of the Gentry of England properly so called are not so great as in some Countries where they have power of Life and Death over their Servants or are exempted from Taxes and enjoy other Immunities which are denied to the Commons yet they have others as beneficial in that they make up a great share of the Ministerial parts of the Government It is required by God and their Prince that they should so deport themselves as they may be singular (k) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dio lib. 2. Examples to their Tenants and Neighbours of Wisdom Temperance Justice Loyalty and all the System of Vertues and by a generous Hospitality without Debauchery preserve their Interest in the affection of their Neighbors and that the Poor may daily and zealously pray for them being made the Voiders and receiving the Sportula of their plentiful Tables By this way of living they will sow among their Neighbours the Seeds of all useful Vertues and enrich their Countries and be able in time of need to serve their Prince with their numerous Dependants It is for the use of the blooming Gentlemen I write this The more sage and ancient need only such Intimations to refresh their Memories I have made Observations how fatal it hath been to themselves and the whole Kingdom when the Gentry have been seduced to sleight at first and after as they have been wrought upon by Designers to over-awe or overturn the Government and either by Piques among themselves or Aemulations Envies and Discontents have been brought into the Combinations and Conspiracies with those who under the specious Pretences
Representatives using all their industry to make the Subjects believe they were the only Patriots and Liberators They pass Votes conformable to the Petitioners desire animate them to search for more and especially to fix them upon Persons they were mindful to remove out of places of trust Then they begun to impeach several Ministers of State and the Judges that they might weaken the King in his Councils and terrifie others into compliance always taking care to charge the misdeeds upon the Kings evil Counsellors magnifying the Kings Natural Goodness and declaring That if he would consent to redress those Grievances and to punish the Authors they would make him a richer and more glorious King than any of his Predecessors Seditious (t) Address Pamphlets daily came out and the Printing-Press laboured Night and Day to abuse the King and his Ministers and bring the Government Ecclesiastical and Civil into obloquy Their Preachers in the mean time like so many Demagogues plied their business so effectually blowing the Trumpet as they phrased it for the Lord and Gideon that by them the Houses Interest prevailed every where especially in the Populous City which was in a manner wholly at the Houses devotion Having removed the Great and Noble Earl of Strafford by great Industry and Art and the Midwifery of Tumults and got themselves by as strange an Art as oversight perpetuated they set themselves to Remonstrate in which they odiously recount all the miscarriages as they called them in the Blessed Kings Reign charging him though covertly with them and all the very Misfortunes of his Reign They revive the Bill against the Bishops sitting in the House of Lords which had been rejected and in a Parliamentary way ought not again to be set on foot that Session the better to effect which they cause the Rabble and their Confederates to menace and assault them and other Loyal Members of the House they Post up several names of Lords and Commons who opposed their proceedings and having driven the King and his whole Family away by most outragious Tumults they declare their Ordinances to be binding during their sitting and assume the Power of interpreting and declaring what was Law and by all these Arts they brought the People not (u) Culpae vel gloriae socii Tacit. 3. Hist so much to joyn with as to conspire with them Then they pretend a necessity of putting the Kingdom into a posture of defence to secure it against Popery and Arbitrary Government and the Invasion of Foreigners which they pretend were to be brought in to assist these They single out the most confiding and daring in every County to be their Commissioners of the Militia so (w) Quanto quis audacia promptior tanto magis sidus rebusque motis potior babetur Idem 1. Histor much as every one was forwarder in boldness and more hardy by so much the more he was to be confided in and sitter to help forward the turbulent work they were about Having first got the Peoples affections to revere them as their Deliverers they the more easily obtained their Bodies Armour and Moneys and so prosecuted a Rebellious War openly yet with that shameful pretence that they were fighting for the King against his Evil-Counsellors and amongst hands court him with most Dethroning Propositions and success Crowning their arms they wholly destroyed that Monarchy they had all along pretended to establish upon surer foundations for the Honour of the Crown and benefit of the People than former Ages had known Instead of which they made themselves Masters of all their Fellow-Subjects seizing their Estates Imprisoning and Murthering their Persons altering the established Ecclesiastical Government and all the fundamental Laws enriching themselves and over-awing the Kingdom by a standing Army Thus I have drawn that in Miniture which was the Tragedy of many Years and the Subject of numerous Volumes and I shall tack to it something parallel in later Years to let all Posterity see what a Characteristick Mark it is of Turbulent and Factious Inclinations when Petitions against the Will of the Government are violently promoted The great mischief of tumultuous Petitions being considered by the Loyal Parliament The Act against Tumultuous Petitions upon the late Glorious King 's happy Restauration Provision was made that the number of deliverers of Petitions should not exceed ten that three of the Justices of Peace in the County or the major part of a Grand Jury at an Assize or General Sessions or in London the Lord Mayor Aldermen and Common-Council have the ordering and consent to such Petitions which shall be for alteration of things established by Law in Church or State by way of Petition Complaint Remonstrances Declaration or other Address to the King or either Houses of Parliament It cannot be forgot in the interval of a later Parliament how zealous and busy multitudes were to get Petitions with Hundreds and Thousands of Hands to the late King for the sitting of a Parliament before the King in his Wisdom thought sit This occasioned the King to issue forth a Proclamation against tumultuous Petitions and other Loyal Persons to express an abhorrence of such Petitions that would press the King to precipitate their Sitting Those that petitioned the King for convening of a Parliament could not but foresee the ungratefulness of such Petitions to the King yet the Designers gave it not over for they had other Ends. As first to engage Men by their Subscriptions to be more fast to them Secondly to try whether the People might be brought to Tumults Thirdly to incense the People more against the Government if their Petitions were denied Fourthly to shew in terroreon the number of their Adherents Fifthly That through every County the confiding and zealous might be known each to other and Lastly that whenever that Parliament should sit they might have their Thanks and by their Numbers the Parliament might be encouraged to proceed in such things as they desired knowing hereby the Strength of the Party When the House of Commons met nothing was so much clamoured against as the Proceedings upon the late Proclamation as if all the Liberties of the Subjects of England had consisted in this Therefore they vote that it ever hath been the undoubted Right of the Subjects of England See the Votes to Petition the King for the Calling and Sitting of Parliaments for redressing of Grievances and to traduce such Petitioning was a violation of Duty and to represent it to his Majesty as tumultuous and Seditious was to betray the Liberty of the Subject and contribute to the design of subverting the Legal ancient Constitution of the Kingdom and introducing Arbitrary Power and so a Committee called of Abhorrence was appointed to enquire of all such Persons as had offended against the Rights of the Subjects This was it that explained their Vote for all the Controversy was Whether a sew private Men might agree upon a Petition then send Emissaries abroad to
When Princes not to make themselves Parties but only private-Animosities betwixt some of the Nobility wherein the Government is not much concerned there may be some allowance for my Lord Verulam's Opinion That Princes being Common Parents should not lean to one Party because a Boat that is overset by the unequal Weight on one side may carry such Passengers in it as the Prince would not lose Therefore to study ways to piece them and solder up the flaws is better than to side with one to the Ruin of the other and sometimes of themselves also As we may observe in Henry the third of France who entred into the League and it was shortly after turned against himself which may be a document saith that wise Lord to Kings how they make themselves a Party for by that a Prince makes himself unus ex nobis which makes an Obligation Paramount to that of Soveraignty So that a Prince must be very cautelous when he must side with one Party which he espouseth (d) In caducam pariâ—tem ne inclinet lest he lean upon a ruinous Wall But if there be a Party by whose fall the Prince (e) Cujus râ—ina se quoque tradura est Tacitus de Moribus Germ. likewise shall be sure to be ruined as in case of Factions against Government as I mean in this whole Discourse it is necessary for him strenuously to support it When Princes to support one Party Upon this Consideration it seems to me that it ever will be the great Interest of the Kings of England to defend and support the Episcopal Government for that by fatal Experience it was found that the overthrow of it was the Praeludium to the Destruction of the Blessed King and Monarchy For although he was a very great Champion of the Church of England as established by Law yet he too fatally yielded to take away the Bishops Votes in Parliament whereby he lost a considerable Party in the House that would never have deserted his Interest So that in this case I may apply that of Galba (f) Manifestum est neque perire nos neque salvos esse nisi una posse Tacit. 10. Hist P. 195. Edit Lips 5. to his Soldiers It is manifest that undivided or alone they can neither be Saved or Perish in times when they are attacqued But to return to the Prognosticks of dangerous Seditions I shall mention some that Tacitus hath noted and described Speaking of the Revolt of the Legions in Germany under Germanicus at the Beginning of Tiberius's Reign Unanimity a dangerous Sign he saith Those that looked deeply into the Disposition of the Soldiers judged it a strong Argument of an unappeasable Revolt (g) Id militares animos altius conjâ—â—â—antibus praecipuum indicium magni atque implacabilis motus quod neque disjecti nil paucorum instinctu sed pariter ardescerent pariter silerent tanta aequalitate constantia ut regi crederes 1. Annal. that they were not scattered or divided nor any attempt given by a few but grew insolent together were quiet at once with such moderation and constancy that one would have thought they had been governed by one Head For when any Sedition is carried on with such Unanimity it is a certain Sign that the Poyson hath a large spread and there are few sound Parts left The Progress (h) Ad tuendam plebem Tribunitio Juâ—e â—tentum militem doâ—is populum Annena cunâ—los dulcedine oâ—ii pellexit Insurgere paâ—tatim munia Senaâ—us Magistratuum Legum in se trahere nullo adversante lbid Augustus made to establish the Sovereignty in himself The Methods of Designers is the usual Method by which such as intend subverting of Government may proceed which according to the same Author was That to ingratiate himself with the People he contented himself with Tribunitian Authority to defend the Common People that he wound himself into the Favour of the Soldiers by Gifts of the People by Provision of Sustenance and of all in general with the sweetness of Ease and Repose by little and little taking upon him the affairs of the Senate the Duty of the Magistrates and Laws and so without the Contradiction of any he obtained the Empire This in Augustus was commendable and Politically done being to alter a Commonweal into a Monarchy and Wisemen by his method might have foretold his Design So in Seditious enterprises against Monarchy the way is to court the People and insensibly cajole them with the sweetness of Liberty under a Commonwealth and the heaviness of the Yoak of Monarchy and having possessed them with this they have no more to do but to await some critical time or revolution that may suit their Design as some new Imposition laid some publick Calamity the displacing some great Officer or Death of some great Man or their Prince such (i) Opportunos magnis conatibus transitus rerum 1. Histor Revolutions being the sittest times for great Attempts as Tacitus speaks of Otho's Conspiracy by Galba's Covetousness to the Soldiery c. Concerning Sejanus the same Judicious (k) Primas dominandi spes in arduo ubi sis ingressus adesse studia ministros Lib. 4. Annal. Author gives us the Saying of Drusus That the first hopes of attaining Command or working themselves into Power by Sedition is difficult but after the Entrance there will not want aids of Council and assisting Hands Therefore it is most necessary Speedy Suppression most necessary that Princes diligently watch the motions of all kind of Seditious aspiring Persons to prevent their first Entrance upon their Designs lest they prove afterwards too Powerful In such a State of affairs the Council of (l) Nibil in civilibus discordiis festinatione tutius ubi facto magis quam consilio opus 1. Hist Tacitus is to be followed That nothing is safer in Seditions and Civil Discords than quickness of dispatch when there is more need of Action than Consultation The misfortune is great which happens to the Subjects by Faction and Sedition The Mischiefs of Faction for such things once begun are not in a short time hushed but the Animosities are durable and when one (m) Inter victores victosque nunquam solida sides coalescit Idem 2. Hist Party overcomes yet the Conquered retains his old grudge and is always catching at opportunities to promote his Interest and there is rarely in that Generation at least a sincere amnesty and union of Affections Therefore as Princes by Acts of Pardon endeavour to put all into a State of Unpunishableness though they cannot into a State of Innocence so those that have assisted the Seditious Party ought with a generous Repentance and Fidelity to their Prince endeavour all their Lives to be rubbing out those Stains by their Loyalty For he that (n) Quem paenitet peccasse pene est innocens repents he hath offended is in the next degree to the Innocent It
Parliament of England knew they had no Power to make such an Act and we may conclude That such Politick and Temporary provisions find no approbation either by the Laws or succeeding ages who in all such cases judge more impartially therefore it is much more honourable for the Legislative Power to found their Laws upon Justice and Right rather than upon the humours and Interests of those who desire but the shadow of a Law to countenance their designs It must be owned that King Edward the Second was deposed The Injustice in deposing Kings for making use of Gaveston and the Spencers But how illegally all succeeding ages have acknowledged and it rather shews how extravagant the People and their Representatives are in their humors than how just their Powers are For by the same parity of Reason the horrid Murther of the blessed Martyr or the Murther of Edward the Second may be justified as his deposing may be and the like may be said of King Richard the Second against whom the Fourteenth Article was that he refused to allow the Laws made in Parliament which had been in effect to consent that the two Houses should have been the Soveraign and that he had transferred the Royal Power on them Whoever desires further satisfaction may consult Arnisaeus in that Treatise Quod nulla ex causa subditis fas sit contra legitimum Principem arma sumere Whereas Richard Duke of York in Henry the Sixth's time after he had been declared Heir Apparent was by another Act of Parliament declared uncapable of Succession all that can be inferred from it is When Acts of Parliament to be less esteemed That Acts of Parliament when they are bottomed upon private affections to Parties in times of Faction and civil War are not to be looked upon with that veneration as when they regularly pass in times that are calm when no potent Persons oppress Justice or usurping Powers hinder faithful Judges from expounding the Laws soundly Therefore we find in the claim of the said Duke of York that it is more consentaneously to Law expressed That no Act taketh place or is of force against him that is right inheritor of the Crown as accordeth saith the Record with Gods Laws and all natural Laws and we may observe that though there was a Succession of three Kings of the House of Lancaster who had usurped the Crown for Sixty Years yet all our Historians and the Laws call those Kings de facto and not de jure Such a true sence of just and right the uninterested Ages have had of that Usurpation ever since although there were Acts of Parliament carefully penned to corroborate â—he Title of the house of Lancaster during that time and all ways and means used to have established that Line yet by vertue of the Right of Lineal Succession Edward the Fourth Son to the said Duke of York came to be owned lawful King of England though the Right of his Family had been interrupted ever since Henry the Fourth usurped the Crown which might have been a sufficient document to all Ages not to have attempted any sort of praeterition of the Right Heir Yet we find that unsuccessful attempts were made by H. 8. contrary to the fundamentals of Succession which when rightly considered I hope will convince all of how little validity even such Acts are to be reputed Therefore because these have been made use of for Precedents I shall speak a little more fully to them In the 25 of H. 8. (f) Cap. 22. the Marriage with Queen Katherine is made void Concerning the several Entailings of the Crown by King Henry the Eighth and that with Queen Anne's declared good and an Entail made on the Issue Male or Female and the Penalty for hurting the Kings Person disturbing his Title to the Crown or slandering the present Marriage is judged High Treason and Anno 26. (g) Cap. 2. a strict Oath is injoyned to observe the Succession there appointed But 28 H. 8. (h) Cap. 7. it is declared that the former Act was made upon a pure perfect and clear foundation thinking the Marriage then had between his Majesty and the Lady Anne they are the words of the Act in their Consciences to have been pure sincere and perfect and good c. till now of late that it appeareth that the said Marriage was never good or consonant to the Laws but utterly void and of none effect and so both the Marriage with the Princess Katherine and the Lady Anne are declared void and their Issue made illegitimate and the perils are enumerated that might ensue to the Realm for want of a declared lawful Successor to the Crown and the Act impowers the King if he dye without Issue of his body that he may limit the Crown to any by his Letters Patents or his last Will in Writing and it is declared Treason to declare either of the Marriages to be good or to call the Lady Mary or Lady Elizabeth Legitimate and the former Oath is made void and this may be judged to be procured when he resolved to settle the Crown on Henry Fitz Roy Duke of Richmond his natural Son But after the Birth of Prince Edward 38 H. 8. (i) Cap. 1. another alteration is made whereby the Crown is entailed on Prince Edward and for want of his Issue on the Lady Mary and for want of her Issue on the Lady Elizabeth and for want of Issue of the King or them then the King is impowered by his Letters Patents or last Will to dispose of the Crown at his free will It is therefore to be considered that in such a juncture of affairs when the legality of the Kings Marriages were so disputable by reason that two of the legal Successors upon niceties not of nature but of the Popes 〈◊〉 for Divorcing were declared Bastards there was some â—eason (k) 25 H. 8. c. 22. that the Act should express that the Ambiguity of several Titles pretended to the Crown then not perfectly declared but that men might expound them to every ones sinister affection and sence contrary to the right legality of Succession and Posterity of the lawful Kings and Emperours of the Realm hath been the cause of that great effusion and destruction of mens blood and the like cause will produce the like effect as the words are Upon such grounds it was very plausible to declare by Act of Parliament the Succession But this does not prove that where the Right of nature is clear that the Parliament may invert the same and they teach us how dangerous it is to leave Parliaments to the Impression of Kings when it is too obvious the first of these Laws was made to gratifie the Kings affection to Queen Anne in the case of naming a Successor as it is also to expose Kings to the Arbitrariness of Parliaments And we may well infer H. 8. taking such care by his Parliaments to legitimate and illegitimate his
his Uncles Death was declared Tutor and Governour without any remission or being restored and if his Cousin King James had died without Issue he had been declared the true Successour of the Crown We have a memorable Instance of this in H. 7. who when he came to the Crown called his Parliament and the Judges having determined that those Members of the House that had been outlawed by the Parliament in Richard the Third's time and been declared Rebels should absent themselves till a Bill were brought in for their restoring It was moved among the Judges what should be done about the King who had been condemned and declared Traytor c. and it was by the unanimous consent of all the Judges saith the learned (q) St. Alban's Hist H. 7. p. 29. Chancellor declared That the Crown removed all the obstructions in the Blood which might in any manner impede its descent and from that time the King took the Crown Coronam ipsam omnes sanguinis oppilationes quae descensum Coronae ullatenus impediunt deobstruere Vt Regi opera Parliamentaria non fuisset opus the fountain of his Blood was purged and all the Corruptions and Impurities taken away so that he had no need of any Parliamentary help to supply him Thirdly The Consideration of the Oaths which the Subjects are bound to take and observe gives some further Proof of the Obligation of all the Subjects to maintain this lineal Succession The Oaths of Allegiance and Supremacy bind the Subjects to bear Faith and true Allegiance to the King's Highness The Oaths of Allegiance and Supremacy against altering Succession his Heirs and lawful Successors and that to their Power they shall assist and defend all Jurisdictions Priviledges Preheminences and Authorities granted to the King's Highness his Heirs and lawful Successors or united and annexed to the Imperial Crown of this Realm and of those Priviledges c. I think none will deny but that Hereditary Succession is one of the principal Prerogatives intended by those Oaths We are not in these only sworn to His Majesty but his Lawful Successors which word Lawful is inserted to cut off the Pretences of such as should not succeed by Law and the insolent Arbitrariness of such as being but Subjects themselves think they may chuse their King These being promissory Oaths as well to the Successors when their Right shall fall as to the present King they have every of them in their respective degrees and orders and indispensible Right confirmed to them by this Oath So that the Predecessor hath no legal right to deprive his Successor as hereafter I shall clear nor to remit the Peoples Obligation to him as lawful Heir and Successor (r) Address part 3. p. 64. much less can the two Houses do it for they are all within the Obligation of this Oath and it is unreasonable that Men should dispence with their own promissory Oaths to others for this would destroy all Faith and Confidence amongst Men and pull up the very roots of Society and Government Whereas some object out of my Lord (s) Coke on Littleton p. 8. Coke Objection That none is Heir before the death of his Ancestor but Heir apparent It is to be considered Answered that it must be the Heir presumptive or apparent that is here understood otherwise the inserting the word Heir were superfluous if by the Oaths were not intended he that is next Heir upon the Death of the King and if any Person think to evade it by affirming that if the Parliament declare any Person to be no next Heir he ceaseth to be so as also not to be lawful Successor because by such an Act he is outlawed Let such Persons consider that this is neither better nor worse than palpable Aequivocation For we swear in the common Sence of the words and so by Heir we understand such as by proximity of Blood have greatest right to succeed in the Inheritance It may be farther considered that the Lord Chancellor Treasurer and Judges (t) See 18 E. 3. all the great Officers of State the Privy-Council c. are all sworn to defend the Rights of the Crown and that they shall not concurr or assent to any thing which may turn to the King in Damage or Dis-herison How then can any of these much less the Judges who are to expound and interpret the Law consent without palpable violation of their Oaths to the changing of the Essence of the Monarchy I shall now endeavour to prove Acts of Parliament cannot alter Lineal Succession that no Parliament by a compleat Act can legally alter the Succession in an Hereditary Monarchy For first all (u) Jus Reg. p. 153. Kings and Parliaments are subordinate to the Laws of God the Laws of Nature and Nations So that unless we give the Inferior Power and Jurisdiction over the Superior no Act of Parliament can be binding to overturn what those three Laws have have established and I hope I have proved under all these Heads in the preceding part of this discourse that the right of Succession is founded on them As to the Law of God it is clear not only from the general dictates of Religion but 28 H. 8. c. 7. the Parliament uses these words For no Man can dispence with God's Laws which we also affirm and think As to the Laws of Nature they are acknowledged to be immutable from the Principles of Reason So the (w) Sect. sed naturale Institut de Jure naturali Law it self confesseth Naturalia quaedam Jura quae apud omnes gentes observantur divina quadam providentia constituta semper firma atque immutabilia permanent Certain natural Laws which are observed by all Nations and such is that of Primogeniture by Divine Providence being constituted remain always firm and immutable So when the Law declares that a supreme Prince is free from the obligation of Laws solutus Legibus yet Lawyers (x) Voet. de Statutis sect 5. c. 1 Accursius in L. Princeps F. de Leg. Clementina pasturalis de re Judicata still acknowledge that this does not exclude these Supream Powers from being liable to the Laws of God Nature and Nations as is evident by all that treat of that Point Nor can the Law of Nations be overturned by private municipal Laws so all Statutes to the prejudice of Ambassadors who are secured by the Law of Nations are confessed by all to be null and the highest Power whatsoever cannot take off the denouncing of a War before a War can be lawful Besides secondly a Parliament cannot do more than (y) Jus Reg. p. 154. any absolute Monarch in his own Kingdom for they when joyned are but in place of the supreme Power sitting in Judgment We must not think our Parliaments have an unlimited Power de jure so as they may make a forfeiture or take away Life without a cause or pass Sentence against the Subjects
without citing or hearing them For if they had such Power we should be the greatest Slaves and live under the most arbitrary Government imaginable Therefore an absolute Prince cannot in an Hereditary Kingdom where the Successor is to succeed Jure Regni (z) Nulla clausula Successori Jus auferri potest modo succedat ille Jure Regni Aristaeus c. 7. num 5. prejudge the Successors right of Succession for the same right the present King hath to the Possession the next of Blood hath to the Succession Therefore Hottoman Lib. 2. de Regno Galliae affirms That ea quae Jure Regni primogenito competunt ne Testamento quidem Patris adimi possunt That in the absolute Monarchy of France The Father cannot by his last Will deprive the First-born of those things which belong to him by Royal right So when the King of France designed to break the Salique Law of Succession as in the Reign of Charles the Fifth it was found impracticable by the three States So when Pyrrhus would have preferred his younger Son to the Crown (a) Pausanias lib. 1. the Epirots following the Law of Nations and then own refused him So Anno 1649. when Amurat the Grand Signior left the Empire to Han the Tartarian passing his Brother Ibrahim the whole Officers of State did unanimously cancel the Testament and restored Ibrahim the true Heir though no other than a Fool. So if Kings could have inverted their Succession Saint Lewis had preferred his own Third Son to Lewis his Eldest and Alphonsus King of Leon in Spain had preferred his Daughter to Ferdinand his Eldest Son and Edward the Sixth of England had preferred and did actually prefer the Lady Jane Grey to his Sisters Mary and Elizabeth Thirdly It is undeniable in the opinion of all Lawyers That a King cannot in Law alienate his Crown but that the Deed is void nor can he in Law consent to an Act of Parliament declaring that he should be the last King For if such consents and Acts (b) Jus Regium p. 163. had been sufficient to bind Successors then weak Kings by their own simplicity and gentle Kings by the Rebellion of their Subjects or being wrought upon by the importunity of their Wives or Concubines or the mis-representation of Favourites might do great mischiefs to their People in raising up continual Factions of the miseries of which I shall speak hereafter This is owned in Subjects That the Honour and Nobility that is bestowed upon a man and his Heirs doth so necessarily descend upon those Heirs that the Father or Predecessor cannot exclude the Successor or derogate from his Right by renouncing resigning following base or mean Trades or such like For Fab. Cod. 9. tiâ— 28. say the Lawyers since he derives his Right from his old Progenitors and owes it not to his Father his Fathers Deed should not prejudge him so much more in Kings the ill consequences of such violations of Justice and Right being infinitely more destructive the Predecessor should not do any Act to prejudice his Successor For that right of blood which makes the Eldest First makes the other Second and all the Statutes that acknowledge the present Kings Prerogative acknowledge that they belong to him and his Heirs For as a Prince cannot even ex plenitudine potestatis legitimate a Bastard in prejudice of former Children though they have only but an hope of Succession much less can he bastardize or disinherit the Right Heir who is so made by God and honoured from him with the Character If therefore Kings how absolute soever cannot de jure invert the natural order of Succession there is no reason that the States of Parliament should have such a Power For by the known Laws they have no Legislative Power otherwise than by assenting to what the King does and all that their assent could do would be no more than that they and their Successors should not oppose his nomination because of their consent but that can never amount to a Power of transferring For if the States of Parliament had this Power originally in themselves to bestow why might they not reserve it for themselves and so perpetuate the Government in their own hands So Judge Jenkin asserts according to Law That no King can be named or in any time made in this Kingdom (d) Liberty of Subject p. 25. by the People Kings being before there were Parliaments and there is good reason for then the Monarchy should not be Hereditary but Elective the very Essence of Hereditary Monarchy consisting in the Right of Succession whereas if the Parliament can prefer the next save one they may prefer the last of all the Line and the same reason by which they can chuse a Successor which can only be that they have Power above him should likewise in the opinion of a very (e) Jus Regium p. 167. learned Person justify their deposing of Kings as we saw in the last Age that such reasons as of late have been urged to incapacitate the Children of King Charles the First from the hope of Succession viz. Popery and Arbitrary Government did embolden men to dethrone and murther the Father who was actual King For if it were once yielded that the Houses had a Right in themselves to take care for the Salus populi that none but such Princes should succeed who were approved of by the prevailing Faction in their body nothing but confusion would follow one Party having their Votes seconded by force one time and a quite contrary another yet all pretending the Publick Weal and so a large breach should be made by pretending to stop one dangerous Successor to the inflowing of successive Usurpers and thereby the Crown should not only by ambulatory but unstable upon every head that wore it and alwaies in danger of a bloody surprise till at last the Regalia being secured from the expectant Heir the Factious would find a way to pillage them from the present Soveraign and convert them into a Mace for an House of Commons I writ this Part with greater Enlargements in answer to the plausiblest Arguments for the Bill of Seclusion while that matter was in the hottest agitation But since there will be no need of dilating upon that Subject now that God Almighty hath so signally determined the Controversie by the peaceable settlement of his Majesty upon his Throne I shall close this Chapter with some few remarks of the miseries have been brought upon Kingdoms and especially upon this by the disjoynting the Succession So we read what dreadful (f) Jus Regium p. 166. mischiefs arose from Pelops preferring his younger Son to the Kingdom of Mycene The Miseries which Kingdoms have sustained where the Succession hath been interrupted from Oedipus commanding that Polynices his Youngest Son should reign interchangeably with the Eldest From Parisatis the Queen of Persia's preferring her Youngest Son Cyrus to her Eldest Artaxerxes From Aristodomus admitting
may be grateful to others and will allow that in so great a work wherein much variety of Reading and Argument was requisite I cannot expect to adapt things to the Genius of every one Yet as far as I am able even in this particular I have endeavoured it Non vero nudas sparsas sententias dedimus nediâ— Huerent effet quod dicitur Arena sine Calce sed eas inter se haud indecentervinximus interdum velut cemento quodam commitimus nostrorum verborum Ut Phrygâ—ones e varii coloris filo unum aliquod Aulaeum formant sic nos e mille aliquot particulis uniforme hoc cohaerens corpus Lipsii Polit. de Concilio Forma Operis by interspersing in every Chapter either Historical Remarques or the weighty Sentences of Grave Authors and though I lose some of the Elegancy and Emphasis in rendring them into English yet I hope the Reader will have recourse to the Margent where he will find I have not wittingly falsified any Quotation What Apologie Lipsius makes for himself I must crave the benefit of That though I have culled out from Learned Authors great variety of Sentences yet I have not so scatteringly strowed them that they might seem Sand without Lime but have with such Cement as I could not undecently inlaid them And as the workers of Hangings from threads of divers colours weave one piece of Tapistry So from a thousand Arguments and materials I have fashioned the uniform and connected discourse of the English Monarchy which though in single branches hath with great Judgment and Arts been composed by others yet that I know of hath not been so digested in one body before This consideration leads me to another necessary Apology for my self that whereas by an heedlesness I dare not excuse I had not in my first draught noted the Pages in some Modern Authors nor the Authors themselves yet have transcribed their whole Sentences I desire the candid Authors and Reader not to Interpret this a studied Plagiarism but rather impute it to the good Opinion I had of the vivacity and significancy of their expressions which made me insert them and no design to vend stollen Wares undiscovered for it will be easily found that I challenge them not as my own and if the attentive collate such places he will find that what ever rich Gemms or Metals I have borrowed I have endeavoured to place them with advantage and though I cannot say I have enriched them in the setting yet have mostly used some workmanship about them or have added some ancient Authority parallel to them This having been the product of many spare Hours and my Profession which no other studies have ever interfered with having often obliged me to leave the matter abruptly in the middle of a Paragraph whereby I returned not again to it with the same warmth and train of thoughts and the sending up my Copy in parcels at distant times to the Press I hope will prevail with the considerate to pardon what inconnexion broken ends or some small repetition may be found in it I must here also advertise the Reader that the whole Original was writ and the most part Printed before the last Session of Parliament Nov. the 9th So that what hath fallen out since he can expect no touches upon and though at present the Harmony be not the same that was formerly betwixt the King and his two Houses yet it is to be hoped that betwixt so Wise and Gracious a King and so Loyal a Parliament there can be no long discord especially when it is considered who will have the greatest advantage by it If this Treatise contribute any thing to it I shall think my self very happy However I hope Gentlemen and Scholars will find it a pleasing divertisement in their Closets and Studies it being fitted for the hours of such recess and upon every head there being variety of matter collected and great Volumes epitomized and several Authors noted who treat upon that Subject it will be a Promptuary or Common-place out of which many out of this Ore upon occasions of moment may digest for their own use refineder notions and having a competent store of Observations from Writers of good esteem laid before them may with more ease bring them to the Test of their own Judgments Having dealt thus frankly with all I hope Gentlemen will allow me that plea which most require that for some Moles Dimples or Scars an otherwise tolerable mien is not to be contemned and though I must expect the fate of all Builders that most will conclude they could have contrived better In magnis veluse yat est yet I hope three things First That the well-wishers to English Monarchy will have a favourable opinion of the design what ever they have of the performance Secondly That this may excite some who have more leisure greater helps and more refined Judgments to undertake this useful subject with happier Auspices And lastly That none will entertain a worse opinion of the Government by reason of my unskilful describing of it or despise the whole because I may for all my Circumspection have committed Errors in following the Sentiments of some Authors or mistaken the true sence of any of them which hath not been done willfully by N. Johnston OF THE EXCELLENCY OF Monarchical Government Especially of the English Monarchy WHEREIN Is largely Treated of the several Benefits of KINGLY GOVERNMENT and the Inconvenience of COMMON-WEALTHS c. CHAP. I. A Comparison of the Body Natural and Politic with an account of the subject Matter treated of FROM the Contemplation of our selves in the Faculties of our Souls and the Subservience of our Bodies no doubt wise Men have fram'd the Idaeas of Government with is agreeable to what the Great and Ancient Philosopher (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Arist Polit. lib. 1. c. 5. notes That every living Creature consists of Body and Soul whereof the one by Nature commands and the other obeys and in another place (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ib. he distinguisheth the manner of the Soul's Rule in that it rules the Body by a Masterly and Absolute and the Mind rules the Affections by a Kingly Command As the Natural Body consists of Head and Members made stable and erect by the Bones tyed together and curiously interwoven by the Nerves Ligaments Tendons Muscles and Membranes Comparison of the natural with the Politic body pervaded by the nutritious juice Lympha and Blood irradiated by Natural Vital and Animal spirits animated and enlivened in all its motions by the Energy of a Rational Soul So in the Political the Sovereign the Head and the People the Members are held together by the strong Sinews and Nerves of good Laws and Political Constitutions actuated and enlivened in all their motions by the influence of the Prince and his Government as the Soul Archaeus and Coelestial fire whereby every Member performs its Offices in this
their imperious Commands The World never knew greater oppression than those that stiled themselves Keepers indeed Jaylors of the Liberties of England were guilty of It would trouble saith a judicious (s) Malson's Common Interest Author a publick Accountant to cast up those vast Summs and incredible Treasures which in less than twice seven years they raised and spent to support the worst of all luxurious Rebellion and to act upon the publick charge and Theater of the Nation not Masques and Plays as they had charged one great part of the Expences of the Court on but the most real and inhumane Tragedies and those infinite in number one of which was such as the Sun never saw or any History could parallel It would be endless to recount the Annual Revenue of the Crown Bishops Chapter and Cathedral Lands besides the Money they received for the purchace of them the constant heavy and unheard of Assesments free Quarter Plunder Sequestration Compositions Decimations Excise and Customs voluntary Contributions of Plate Jewels c. Summs borrowed on the Publick Faith which some found to their cost was but fides Punica and almost innumerable ways and arts they had to squeeze and drain the Treasure of the Nation into their bottomless Gulph so that the same Writer is confident That not any three Kings of England since William the Conqueror to this present were so expensive to England as that one Tyrannical and Prodigal Parliament The Nation was then and ever will be under any Usurping Republic in worse than Egyptian Bondage In every County a Committee was placed to seize the Estates and Rents of all the Loyal Subjects with such a Tyrannical Arbitrariness as never was known under any Kings Reign and as if that were not enough there were added to them Basha Major Generals and the sucking Vermine in every Town and Hamlet were either fire-side Troopers or some well affected Person whose Information would be believed before the best in the Parish Every one that would not worship those Pagods were proceeded against by some of those or their Arbitrary High Courts of Justice or were convened before the House of Commons where every one of those Parliament Demarchs were as absolute as the Laws of their own will could make them No Person could either question their Actions or Authority but he paid his Life or Fortune or one of them for his presumption so that we saw the whole Kingdom brought into a slavery far greater than theirs that wear Canvase Cloth and Wooden Shooes and not only look like Ghosts but really are so as they made all which they either suspected feared or hated All which was never to have been altered as long as their standing Force should be true to them to the incredible charge oppression and impoverishment of the Subjects Friend and Foe though they had the Policy to lay the heaviest Burthen and Load upon the Backs of their Enemies if possible to break them keeping the Loyal Nobility and Gentry so poor that many of them have not been able or ever will be to forget the kindness of that Government which was the ruin of them and their Families I shall now pass to the last head of Rewards and Punishments No just Distribution of rewards or Punishments and executing of Justice none of which can be according to merit where prevalent Faction shall sway the Balance and open and shut the Eyes of Justice by the cunning Instruments of Partiality It being impossible to separate Faction and Interest from this kind of Authority so that none shall obtain any thing but according as they shall be judged favourable or advantageous to the Interest of the ruling Faction So that the Vertuous shall have the least share since Vertue is not over natural to Mankind it is like to thrive but poorly in a soil where it is not tenderly cherished and frequently refreshed with the encouraging Dews of Reward and Benefit But those shall have the greatest share that can best wheedle or seem by a well-managed Flattery to join with the topmost governing Party I shall therefore give some examples of the Ingratitude of Commonwealths to the well-deserving great and brave Men Ingratitude of Commonwealths who have served their Country and been ill rewarded by the governing Part or been exposed to be baited or worried by the People instigated by Factions or suffered base Ignominy Banishment or Death I shall begin with Athens the eye of Greece and the Seat of the Muses When Xerxes invaded Greece The ill usage of Themistocles the Athenians and Peloponnesians were the most considerable States yet the Athenians were forced to leave their City and get into their Navy which might carry the whole People and their Power to some remote Country where they might enjoy more secure Habitations The Spartans were unwilling to hazzard a Sea-Battle near Salamis but would have weighed Anchor and gone to Isthmus Themistocles did all he could to perswade the staying and joining of the Fleets there to wait the Enemy who would have less Sea room whereas if they fought elsewhere by his numbers he would have overborn the Confederates and when he could not prevail but that they would weigh Anchor the next day he sent a private message to the Persian Captains that the Grecian Fleet intended to fly and in the interim advised the Grecian Fleet to be in a readiness against all Events By which Stratagem he toiled the Persian Fleet to make the Attacque with that disadvantage he desired and the Grecians obtain'd a most memorable Victory Several other great Services he did not only in saving of Athens but the rest of Greece from Xerxes But when the Athenians were returned to their City and rebuilt it after the Battle of Mycale the People were so proud of their Exploits that they not only endeavoured to get the Command of many Towns and Islands of the Greeks but within their own Walls would admit no Government but meerly Democratical which being argued against by Themistocles they laid upon him the Punishment of the Ostracism banishing him for ten Years before which time was expired a new accusation was framed against him by the Lacedemonians that he intended to betray (t) Sir Walt. Raleigh b lib. 3. cap. 8. sect 7. Greece to Xerxes So that he was forced to fly to Artaxerxes who afterwards would have imployed him against Greece but he decided the great Conflict betwixt thankfulness to his well-deserving Patron and natural Affection to his own ill-deserving People by finishing his Life with a draught of Poyson This Ostracism was a Sentence of Banishment writ upon an Oyster-shell and the like in Sicily writ on a Leaf was called Petalismus This was so often abused by exterminating Persons not so much for Crimes as by factious Envy made use of to remove out of the way Persons that were like to oppose the prevailing Factions that the (u) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. lib. 3. c. 13.
affords us many Examples of Persons selling their Country and putting their great Councils upon ill attempts and labouring with their utmost cunning to frustrate good Designs because their Dependance upon a Foreign State or Kingdom was worth much more unto them than they could hope to gain by honest Service to their Country Supposing both the King and Optimacy be willing to promote the Peoples Happiness yet he is more able to compass that End by reason he hath a more United Power and the Execution of all Designs depends upon a single resolve and therefore may be managed with a certain closeness and all convenient swiftness so that good Councils shall be first discovered in their effects Whereas a great Body move slowly and most times the opportunity of Doing is gone by while they are but half way in their deliberation Besides More Inconveniences under Common-wealths than under Kings cateris paribus as there are many Advantages peculiar to Monarchy as in these three Chapters I hope I have evinced so there is not one Inconvenience to which a People living under Aristocracy are not subject in a much higher Degree than they are under Monarchy For supposing a King cruel yet one Man's Cruelty cannot reach so many as that of Multiplied oppressors when every one takes their peculiar Province to fleece or exercise their Lordliness over according as their Estates or Interests are divided The Covetousness likewise of Senators is more devouring because we may feed one Fire with less Expence of Fewel than five Hundred A Princes profuse Largesses to his Favourites is infinitely over-balanced by so many providing for their poor Kindred and making Friends and purchasing Dependants This very thing must likewise be practised by Senators for underproping their several reputations hiring Advocates to plead for them in their absence purchasing of Votes in their private concerns and obtaining of Offices Places and Estates for themselves and their Relations So that these must require more considerable Supplies from the People who must be squeezed every time any single Grandee wants than are necessary to nourish the Liberality of a Prince who hath a large Patrimony standing Revenue and places of Honour and Profit to gratify his Servants withal The wisest States having made ample allowances to their Princes to enable them to bestow Favours according to Merits or liking Some think that of Ecclesiastes Wo to thee O Land when thy King is a Child a strong Argument against Monarchy Another Objection answered because this Calamity is not incident to a Senate because they are not subject to Nonage But the place rightly understood saith a learned (i) Idem p. 23. Writer whom I have epitomized in the Parallel is a very full Confirmation of the happy Condition we have reason to expect under Monarchy and of the Calamities and Woes which probably attend an Aristocracy For the cause of those Miserie 's foretold is plainly thus A King during his Infancy being not able personally to Rule the Government is managed by the Nobles and thence come Factions and all the Mischiefs that accompany them To close therefore this Chapter we may consider that Kings have no Rivals whom they fear and must keep under as Governours of Commonwealths have which is no small Blessing to a People Kings as Proprietors take all the care possible saith a very (k) Jus Regin◠p. 58. Learned Author to improve their Dominions whereas Republicans are as Tenants mind nothing so much as their private Profit and the very Pretenders to Liberty and Property in this and the last Age have been the great Cheats of the Nation They when raised to govern grew insolent whereas Princes are still the same and their Passions rise not because their Fortunes do not The Prevailing Factions in Commonweals spare none that oppose them having no consideration of them but as Enemies whereas Kings pity even Rebels as considering them still as their Subjects and though I cannot say with my (l) Idem Author of one Year yet I may say of the whole time of the Usurpation That more were murthered and ruined in that Reforming Age than suffered by the Great Mogul and King of France in that space of time and more Severity was exercised by those Reformers than by all the Race of our Kings these Six hundred years And whatever Evil Ministers Kings are said to have yet what that Judicious Author notes of Scotland we may say the like of England That after they had taken from the Blessed King his Prerogative of chusing Judges and Councellors the Parliament did the next year put in I will not say with him the greatest Blockheads and Idiots in the Nation but men of much meaner Parts and more corrupt and unfit either for knowledge or the upright dispensing of the Laws Justice and Equity than any Age had known I have discoursed of this Head before and so shall say no more but that as well as in Antient times the unequal Distribution of Justice hath been noted so the Severity of the State of Venice against their Nobles and the executing Men without Citing or Hearing upon meer Jealousies induced a wise Spaniard who hath collected the Arbitrary Courses practised and allowed in that State to say That there is less of Liberty there than under the worst of Monarchies And for the State of Holland it hath been more than once observed how ingrateful they have been to all their Neighbours who have assisted them in their greatest need and with what a Jealousie they treat the Prince of Orange whose Ancestors setled them in the Possession of what they have as well as to the Crown of England is obvious to common Observation By them their Allies have been unworthily deserted In the matter of Trade no Pact or Faith hath been kept In their Country Mint and Cummin Coleworts and Herbs are excised nothing worn nothing fed upon or necessary for Humane Life but pays something to their Exchequer You pay a Tribute for the Ground you walk on for the Rivulets you pass on only they have not yet found out a Tax upon their Foggy Air. CHAP. X. The Character of a good King in general BEfore I come to treat of the Sovereignty I think it convenient to discourse of the usefullest Qualifications of Monarchs and the benefits that will redound to themselves and their Subjects thereby The (a) Ethic. 8. c. 10. Polit. lib. 3. 5. c. 4. Philosopher in several places compares a King to a Parent and Shepherd but a Tyrant to a Lord over Slaves and a Wolf Difference of a King and a Tyrant The One in his Government having a special Regard to the Peoples Benefit the Other governing without or against Law pro nutu arbitrio reducing all things under their absolute will and Power in such a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as is unhappy to their People and in the Conclusion to themselves The ancient Authors Description of a Good
would put them upon that Dilemma will chuse to suffer if they cannot fly rather than rebel Therefore since it pleased his Majesty at his first Step to the Royal Throne which was like that of the rising Sun dispensing innumerable Blessings to his People to express his Royal Favour to the Church of England The King's Commendation of the Principles of the Church of England as to Monarchy with such an Encomium of its Members in that most refreshing Declaration at his first Council which from so just a Prince carries the Force and Energy of an Act of Parliament as well as of State in it it ought to bow the Hearts of all Men that design not to be Rebels as one Man to him Since which by the repeated solemnity of it to his two Houses of Parliament all suspicion of his Majestie 's ever acting to the contrary so long as the Subjects keep their dutiful Station is totally removed His Majesty also hath laid a solid Foundation for true Piety in the discountenancing and discrediting all forts of Vice and Debauchery by which none can doubt but himself as well as his Subjects will in short time reap happy Benefit according to that so the excellent (b) Diutius durant exempla quam mores Tacitus 4. Histor Historian Examples have a more durable force than Laws I shall conclude this particular with the famous Story of the Zealots in (c) Josephus de Bello Judaico lib. 4. c. 5. lib. 7. Judaea Those being told by Vespasian which Messages Josephus himself carried to them that he would change nothing of their Religion but maintain them therein The Evils by Rebelling upon pretence of Religion and in all their Liberties and Franchises yet under colour that they were bound to sacrifice their Lives in the defence of the Temple would never hearken to Peace upon any condition what ever but living upon Forraging Rapines Free-booty and committing most cruel Butcheries Vespasian found himself obliged to arm against them and use them with all Extremity In fine Those who pretended so much the Preservation of their Religion committed a Thousand sort of Impieties and Cruelties and themselves set the Temple of Jerusalem on Fire and at last brought utter Ruin to their Country I shall make no further Application but that from hence we may learn First That it was agreeable to Principles of Government that Vespasian though a Prince of a different Religion to the Jews should not alter their Civil or Religious Government And Secondly That the utter Extermination of a People and their Religion there was the Consequence of the Zelots Rebellion as to the apparent procuring cause for I enquire not here into the Original cause of that Nations Destruction viz. The crucifying of our Lord and Saviour I come now to consider wherein a Sovereign's care of Religion consists Wherein the Sovereign's Care of Religion consists which would carry me into a dangerous Ocean if I should survey all the Rocks Creeks and Quick-sands to be avoided in this matter At the best I shall find an high rolling Sea as that in the Bay of Biscay if I escape the difficult and dangerous passage betwixt Scylla and Charybdis First therefore I shall consider the Obligation the Pagan Romans thought they had not to make any Innovation in matters of their Religion with some Reflections upon it Secondly Consider the Condition of People under Diversity of Religions Thirdly The Roman Heathens not for change of Religion Speak something of the Diversities of Religion sprung up in the time of the late War And Lastly Something concerning Toleration But I must praemonish the Reader that I intend not to treat of these either as Divine or Statesman but only as a Lay-man that loves Order and Peace in transitu as a Parergon First then as to the Heathens we find that remarkable Advice of (*) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dio Cassius lib. 52. Mecaenas to Augustus That he ought to worship the Deity in all Methods and at all times himself according to his Countries Laws and cause others to do so and further adds That he should restrain those that would innovate in Divine things not for the cause only of the Gods but because those that bring in new Deities do drive men to make other dangerous Changes and from thence Conspiracies Sedition Conventicles Cabals c. which are things no ways conducible to the benefit of Government In which we may consider Mecaenas to advise like a Statesman considering that Augustus had but newly extricated himself from a great and dangerous War for no less than the Empire Therefore it behoved him to make no Alterations in Matters that might endanger the Settlement of his present Estate Therefore we find That Augustus laid aside the name of Triumvir contented with the Consulship and for defence of the People with the Tribunitian Authority which were old Offices the People were acquainted with and that he attracted the Soldiers good Will to him by Gifts the Peoples by Provision of Food and all with the sweetness of Peace arising by (d) Paulatim insurgere munia Senatus Magistratuum 〈◊〉 in se trabere aullo adversante Tacit. 1. Annal degrees to draw to himself the Imployment and Authority of the Senate the Magistrates and the Laws none opposing him How far this is to be imitated by Princes in the Circumstances of Augustus I leave to others to determine As to the general Sentiment that the Heathen Roman Religion was not to be changed I shall content my self with two Authorities of the great Orator who in one place (e) Majorum instituta tueri sacris caeremoniisque retinendis sapientis est Patrios ritus migrare aut violare ubique gentium nefarium sir Cic. de Divinatione saith That it is the part of a wise Man to defend the Institutions of their Ancestors in retaining sacred Ceremonies and that in all Nations it is reputed wicked to violate and banish our Countries Rites In another place (f) Omnes Religione moventur deos patrios quos a majoribus acceperunt colendos sibi diligenter retinendos arbitrantur Cic. in Verrem he pronounceth it absolutely That all are moved with Religion and judge their Country Gods which they have received from their Ancestors to be worshipped and retained I am sensible that if this were yielded to Christianity would not have been propagated in the World For if it had not been lawful to alter the so long established Idol Worship and Polytheism the Doctrine of Christianity had been shut out But on the other side when I consider how Christianity was propagated by the working of Miracles and by the Force and Energy of Conviction upon the Minds of such as would admit the Explanation and Dilucidation of the Doctrine and the Christians patient sufferings under the Heathen Persecutions and peaceable awaiting till God Almighty disposed the Emperor Constantine's Heart to embrace the saving Doctrine of
WEST SEAXNA CYNING I Ine by the Grace of God King of the West Saxons in his preamble to his Laws But until about our Henry the Third it was not of so constant use as that the Stile of the King necessarily required it This Stile of Dei Gratia is frequently given in old time Given to Spiritual Lords and yet in use to Spiritual Lords nothing being more common in the Instruments of Bishops and Abbats in the Chartularies of Monasteries and it is given from Kings to them in the Summons of Parliament and Writs to Assemble or Prorogue Convocations in this form Jacobus c. Reverendissimo in Christo â—â—tri praedilectoque fideli Consiliario nostro Georgio eadeâ—◠〈…〉 Archiepiscopo Cantuariensi c. But at this day though it 〈◊〉 â—â—ven to them they use it not in the first Person but Deâ— (i) Rosula Novella 〈◊〉 cap. 111. â—â—mentia or Providentia Divina and in older times when they writ to the Pope Emperor or King they were not to write Dei Gratia of themselves but only such or such licet indignus vel immerens Bononiae Episcopus c. By all these Titles we cannot but observe that the dignity of Kings and Sovereigns was looked upon in all Ages as deriving Authority from God Almighty and his Vicegerents here upon Earth having the Attributes of God that as he was Supreme over all things in Heaven and Earth so they within their Districts upon Earth I shall end this Chapter with this Observation That the Attribute of Dei Gratia applied to Sovereigns and Bishops might probably have Authority from the Constitution of Justinian (k) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Just Noâ— 6. init 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. which runs thus The greatest Gifts which Gods goodness from above hath conferred on Men are the Priesthood and Empire both of which proceed from one and the same Principle and are for the ordering and disposing of the Affairs of Mankind Concerning the peculiar Title of our Kings of England Defender of the Faith the learned Spelman having given us thâ— Copy of the Bull and discoursed so fully of it I shall 〈◊〉 the curious Reader to him for satisfaction CHAP. XVII Of the Soveraignty of the Kings of England according to our Histories and Laws THE Titles and Attributes which other Soveraign Princes have either assumed The Kings of England have used all the Titles proper to Sovereign Princes or have been given to them our Kings of England have used as might be made appear by innumerable Examples But I shall treat but of a few and shew wherein the Soveraignty is discovered and what ancient Prerogatives they have by their acts of Grace quitted and lastly how the long Parliament of 1641. would have cramped the King's Authority First as to the Title of King or Emperor promiscuously So our Edgar frequently in his Charters calls himself Albionis Anglorum Basileus As King Emperour Lord. and I have noted before that the Grecians esteemed the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to be of full as eminent Signification as Emperor So in a Charter (a) Cod. Wigorn. to Oswald Bishop of Worcester he is called Anglorum Basileus omniumque Regum Insularum Oceanique Britanniam circumjacentis cunctarumque Nationum quae infra eam includuntur Imperator Dominus In which we may note that one of our Kings of England writ himself not only Basileus according to the Grecian usage which signified King and Emperor but also Emperor and Lord three of the fullest Attributes either the Grecian or Roman Emperors ever used as also Lord of the British Sea as Canutus his Successor challenged So in a Charter to (b) Mon. Ang. par 1. p. 64. Peterburg Ego Edgar sub ipso sidereo Rege praesidens Regno Magnae Britanniae I have seen another (c) Lib. MS. Roberti de Swapham c. Fundationis Burgensis Coenobii p. 38. of his Charters prefaced thus Gratia Domini nostri Jesu Christi omnium seculorum omnia suo Intuitu distribuentis Regna terrarum moderantis habenas rerum Ego Edgar sub ipso eodem Rege praesidens Regno Britanniae c. So King (d) Id. p. 39. Edward in the same Book stiles himself Ego Edwardus Rex Anglorum Monarchiam Regiminis tenens hoc decretum Patris mei per deprecationem Abbatis Aidulfi perhenniter affirmavi In which we may note that Edgar owns himself subject to Jesus Christ God And King Edward saith he holds the single Command of Government So King Edward in a (e) Coke Praefat. 4. Reports Rex Anglorum totius Britanniae Telluris Gubernator Rector Angligenum Orcadarum necnon in Gyro jacentium Monarcha Anglorum Induperator Charter to Ramsey stiles himself Totius Albionis Dei moderante Dominatione Basileus King of all Albion and King Edwin in a Charter to Crowland calls himself King of England and Governour and Ruler of all the Land of Britain So Ethelred in his Charter to Canterbury stiles himself Of all the English born and the Oreades lying in Circuit about it Monarch and Emperor of the English So that by Orcades must be understood all the Isles about Britain So William Rufus dates his Charter to the Monastery of Shaftsbury secundo Anno Imperii mei By all which it appears that the Kings of England have justly assumed the Supream Imperial Command in their own Dominions and though the Title of Emperor hath been disused Kings of England as much Sovereigns as Emperours yet we shall find the substance of it sufficiently challenged in that of (f) Ipse omnes libertaâ—â—s 〈◊〉 Râ—gno habebat suo quas Imperator vendicabat in Imperio Matt. Paris in vita Willielmi 2. William Rufus to Arch-Bishop Anselm when he told him That he had all the Liberties in his Kingdom which the Emperor challenged in the Empire And in a Constitution (g) Râ—gâ—um Angliae ab omâ—i subjectione Imperiali liberrimum Claus 13 E. 2. m. 6. dorso of King Edward the Second it is declared That the Kingdom of England is most free from all Imperial Subjection which excluded all public Notaries who were made by the Emperor or Popes and by this Constitution were utterly rejected The Statutes for it This further appears in the (h) Stat. Anno 23 E. 3. c. 1. Vide Coke Instit 2. 111. 4 part 6. 8. 3. Instit 120 125. Statute of Praemunire made 23 Ed. 3. which runs thus That it being shown by the grievous and clamorous Complaints of the great Men and Commons how that divers of the People be and been drawn out of the Realm to answer of things whereof the Cognizance pertaineth to the King's Court and also that the Judgments given in the same Court be impeached in another Court in prejudice and dis-inherison of our Lord the King and of his Crown c. Therefore it was enacted That none of the King's Liege-People of
what condition soever shall draw any out of the Realm in Plea whereof the Cognizance appertaineth to the King's Court or of things whereof Judgments be given in the King's Court c. This Statute as well as that of Provisors 25 Ed. 3. was made to hinder the Subjects Appeals to Rome or to any other Court in such things whereby the King's Soveraignty might be diminished and this Statute relates to one made by King Edward the First Also in the Statute of Provisors 25 Ed. 3. reference is made to the (i) Anno 35 Regni Statute made at Carlisle by King Edward the First The Statute of (k) 16 R. 2. c. 5. Praemunire for purchasing Bulls from Rome gives an account of the preceding Statutes and further saith Whereas our Lord the King and all his Liege-People ought of right and of long time were wont to sue in the King's Court to receive their Presentments to Churches Prebends and other Benefices of Holy Church which they had right to present to the Conisance of Plea of which Presentment belongeth unto the King's Court of the old right of his Crown used and approved c. then particularly enumerates the Encroachments of the Bishop of Rome by Processes Excommunications of Bishops for executing Judgments given in the King's Courts and the translating of Prelates out of the Realm or from one spiritual Living to another against the King's Laws and Regality c. The Statute expresly declares That the Crown of England hath ever been so free that it is in no Earthly Subjection but immediately subject to God in all things touching the Regality of the Crown and to no other Under King Henry the Eighth (l) 24 H. 8. c. 12. the whole Parliament say that by sundry old and authentick Histories and Chronicles it is manifesty declared and expressed that this Realm of England is an Empire and so hath been accepted in the World governed by one Supream Head and King having the Dignity and Royal Estate of the Imperial Crown of the same unto whom a Body Politick compact of all sorts and degrees of People divided in Terms by names of Spirituality and Temporalty have bounden and owen to bear next to God a natural and humble Obedience The next (m) 25 H. 8. c. 21. Year in another Statute it is stiled the Imperial Crown and Royal Authority recognizing no Superior but only Your Grace and in the Chapter following the Kings of England are stiled Kings and Emperors of this Realm and in (n) 28 H. 8. c. 7. another of the same King it is called The most Royal Estate of the Imperial Crown of this Realm So in the same (o) Stat. Hilâ—â—◠〈…〉 8. c. 2. Year before the Title of Lord of Ireland was altered into King the Stile is Kings and Emperors of the Realm of England and of the Land of Ireland and in several other Statutes it is called the Imperial Crown I have inserted these to clear that by our Laws the Kings of England are under no Subjectjon to any foreign Prince or Potentate whatsoever And Mr. (p) Tit. Hâ—â— p. 21 22. Selden saith that the Supremacy is not only used by the English Sovereigns but hath been challenged by the Kings of Spain Denmark Poland the Czars of Muscovy and other free Princes over all within their own Dominions exclusive of all foreign Powers and upon the like ground of Supremacy was that Law made by King James the Third of Scotland in these words Our Sovereign Lord has full Jurisdiction and free Empire within this Realm c. A Confirmation of this Supremacy of our Kings appears in what is reported of our King Edward the Third That when Lewis (q) Quod Râ—x Anglix non se submisit ad osâ—ula pedum suorum of Bavier the Emperor had an Interview with him the Emperor stomached that the King of England submitted not himself to kiss his Feet But the King answered That he was (r) Rex inunctus habet vitam membrum in potesâ—ate sua ideirâ—â— non debet se submittere tantum sicut Rex alius an anointed King and had Life and Member in his Power therefore he ought not to submit himself to him as other Kings Whence it was that Alsonso the ninth King of Castile defining what Kings were after he had dispatched the Particulars that belonged to the Emperor says That they are every one in their Kingdoms the Vicars or Vicegerents of God placed over the People to govern them (s) Bien assi come el Emperador en su Imperio Partid 2. tit 1. Ley 5. 8. no otherwise than as the Emperor is in his Empire Whoever desires further Satisfaction in this Point may have recourse to the voluminous Collections of Mr. Pryn and other Authors that have treated of the Kings Supremacy Most of what I have hitherto discoursed relates to the King's Supremacy ab extra that he hath no foreign Superior that ought to impose any thing upon him or his Subjects contrary to his Pleasure and his Laws in his Dominions I shall now give a short Abridgement of what I find our learned Lawyers have writ concerning the King's Authority and Sovereignty in his Kingdom of England and how Wherein the King's Sovereignty consists according to our Laws in former Ages Kings have quitted some of their Royal Prerogatives In our Laws the King is stiled in Ecclesiastical matters the Supreme Ordinary (t) Cokâ— 11. 86. Calvin's Case 215. in Civil matters caput Reipublicae Pater Patriae totius Regni Pater-Familias Chief Justice c. being furnished with plenary Power to render Justice and Right to every Member and part of the whole Body (u) Coâ—â— 2 part 1 2. 24 H. 8. c. 1. 24 Eliz. c. 1. without the help of Foreign Jurisdiction Some Attributes of God in a similitudinary way say (w) 〈◊〉 8◠〈◊〉 177 2â—8 212 〈…〉 the great Lawyers are aseribed to him for the Excellency of his Person and the greatness of his Office as Sovereignty and Power Omnipresence Majesty Immortality c. In his Political (x) 〈…〉 Grand Abâ—iâ—gment part 3. p. 44. Capacity not subject to the Infirmities of others as Nonage Death Attainder c. So no Laches Negligences Defects or Stops of Blood can be imputed to or fastned upon him as is well known in the case of King Henry the Seventh (y) St. Albans vita â—en 7. p. 29. wherein it was unanimously resolved by the Judges That his Natural Capacity doth so far participate with the Politic which is superadded to the Body natural of the King that these become consolidate consubstantiate and indivisible in one and the same Royal Person and the Body Politic which is the more worthy and of a sublimer Nature is in no ways obnoxious to the Humane Imbecillity of Death Infamy Crime or the like but doth draw from the Natural Body all Imperfections and Incapacities whatsoever So that there is
answer the Varieties and unthought on plottings of Mans Nature and in Tract of Time Laws at first just or in terrorem become unprofitable and harsh and this moderating of Laws which is called saith he 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Equity is so annexed to the Prince that by no decree of Man it can be pulled from it This Absoluteness I have hitherto mentioned out of such great Authors How far the Kings of England may dispense with their Laws is not practised by the English Sovereign for he challengeth no such Power to make or abrogate Laws without the Concurrence of the two Houes But he hath a sufficient Prerogative by dispensing conniving or putting some Laws more in Execution than at other times so to manage the Execution of the as the Government and consequently the Peoples safety be not prejudiced So though there be a Law for Triennial Parliaments yet when a Prince finds a Potent Faction that may influence the Electors so as the meeting of such a Parliament at such a time may be hazardous to the publick there being no Penalty can be inflicted on a King for the Omission and the Danger being visible that such a Factious Parliament was only wanting to bring to perfection the Design of Traiterous and Seditious Persons It is very agreeable to Reason that a Prince in such a juncture should prefer the publick Peace of his Kingdom and the security of his Crown by the omitting such Summons than to hazard all by convening them There are other Cases may intervene wherein the Reason of State the Salus publica may require the dispensing with or suspension of the Execution of some Laws As in time of open Rebellion the King 's arming of such as he may most surely confide in though they take not such Oaths or be so qualified as the Laws require and as in several other Particulars might be instanced in I shall only add two Authorities of our own Country who were well versed in the matter the one a great Divine and the other as great a Lawyer and Statesman First the learned (i) Vsher's Power of Princes p. 76. Primate saith Such positive Laws being as other works of Men are imperfect and not free from any Discommodities if the strict Observation thereof should be pursued in every particular It is fit the Supreme Governour should not himself only be exempted from Subjection thereunto but also be so far Lord over them that where he seeth cause he may abate or totally remit the penalty incurred by the breach of them dispense with others for not observing of them at all yea generally suspend the Execution of them when by experience he shall find the Inconveniences to be greater than the profit that was expected should redound thereby to the Common-wealth The Second Authority shall be that of the Earl of Clarendon (k) Survey p. 127. who affirms That by our Laws the King hath in many Cases the Power of dispensing with the Execution of the Law especially in granting pardon for the transgressing of them except in those Cases where the Offence is greater to others than the King as in murder of an Husband or Father therefore upon an Appeal by them the Offendor may suffer after the Kings pardon which shows how tender our Laws are of protecting the Lives of Subjects This Prerogative of Kings (l) 3. Rep. Bodin avouches among the Rights of Sovereignty to pardon the Persons the forfeiture of their Goods and to restore the attainted Honours of those condemned by righteous or unrightcous Judgment according to that of St. (m) Q. 115. ex Veteri Novo Testamento Hilary in St. Augustine Imperatori soli licet revocare sententiam reum mortis absolvere ei ignoscere That it belongeth only to the Emperor to revoke the Sentence or Judgment and to absolve and pardon the guilty For as Themistius saith One thing becoms a Judge and another thing a King the one is to observe the Law the other hath power to correct the Laws themselves and to qualifie the severity and harshness of them as being himself a living Law and not confined to the unchangeable and unalterable Letter For that end saith he it seemeth God did send from Heaven the Regal Power into the Earth that Men might have a refuge from that dead and immoveable Law to the living one as he instanceth in Capital Offenders For we have seen saith he Men returned to life from the Gates of Death whom the Law indeed sent thither but the Lord of the Law 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 brought back from thence again As to the Power of Equity claimed by the great Civilians the Administration of that is vested in the Chancellor or Lord-Keeper of the Kings appointment who is the Keeper of the Kings Conscience or Dispenser of that reserved Power in the King CHAP. XX. That the Sovereign is not to be resisted or rebelled against upon pretence of ill Government Irreligion or any such matter OUR Republicans of 1641. set themselves with all their skill and cunning The Necessity of this Discourse as well as force to overthrow the Doctrine of Non-resistance and to establish that of its being lawful not only to rise in Arms for the defence of their Liberty Property and Religion the gilded pretences of all Rebellions but to prosecute that blessed King and all his Loyal Subjects in the highest Degree of Cruelty and Revenge that they could devise or their success embolden them to commit Therefore it is a most necessary Duty of all that wish well to themselves as well as the Government to oppose such dangerous Positions and Practices The Authorities I have cited in the two Chapters of Sovereignty are but the gleanings of what may be found in learned Men on this Subject and since I shall have occasion hereafter when I treat of the Subjects duty to handle this matter more particularly I shall be the shorter in this and refer the curious Reader to the elaborate Treatise of Mr. Dudley Digs Of the unlawfulness of Subjects taking up Arms against their Sovereign and to the Glory of his Age for Learning Loyalty and Sanctity the Lord Primate Vsher's Power of the Prince and His Second Part of Obedience to the judicious and learned Sir George Mackenzie his Jus Regium and (a) Arnisaeus Zeiglar de Jure Majestatis c. 1. n. 12. Salmasii Defensio Regia Grotius lib. 1. c. 4. de Jure Belli Dr. More 's Divine Dialogues Dr. Mouliu 's Philanax Anglicus Sam. Petit 's Diatriba c. others that treat of this Subject ex instituto desiring all those who have imbibed or would avoid any of these dangerous Principles that they will seriously consult those Authors out of whom I shall only hint some few of their Reasons and Arguments that may be as Antidotes against the most destructive poison of resisting Sovereign Princes or allowing any Order of Subjects the Liberty upon any Pretence of
according to the Title the Knights Agelnodus Walfricus Sywardus Godricus To the third Charter (d) Id. 636. when he dedicated St. Peter's Church Anno 1066. there are these more added to the Lay-Nobility besides Osbern Peter and Robert the King's Chaplain who are placed next after the Chancellor As to King Edward's Laws and their Confirmation by the Conqueror and the Addâ—â—ions and Amendments see Dr. Brady fol. 254. Aâ—gum Aâ—tinorm 296 298 299. As to the â—arallel betwixt the Saxon and Norman Laws see his Preface to the Norman Story before the Dukes Gud Comes Marheâ—â—s Comes Radulphus Minister Agelnodus Minister and besides that Wulfric Syward and Godrich in the aforesaid Charter are called here Knights there are added Colo and Wulsward Knights and the Conclusion of all is Omnes consentientes subscripsimus So that here may be noted the use of the Subscriptions of the Noblemen to the King's Charters which then were only by the mark of a Cross and in after times by their Seals to those we call Acts of Parliament as hereafter will be shown Having thus treated of the General Councils and such like Conventions under the Saxon and Danish Kings I shall pass to the Norman Kings and so descending to the present Age show the constituent Parts of the great Councils and Parliaments and by what variety of Expressions in the gradual Progress of the respective Kings Reigns the Soveraigns enacting of Laws was exhibited only before I enter I cannot but take notice that Mr. Selden by what compliance I know not Ab his vix alios ante Saxones comperio Custodes sub eis varie partitos c. Explent numerum Rex Conâ—â—â—â—â—ularius Cancellarius Thesaurarius Angliae Aldermannus Aldermannus Provinâ—â—arum Gravii Janus Angl. p. 40. with the mode of his time calls those which we make constituent Parts of the great Councils of the Saxon times Custodes and saith he scarce meets with any of these Guardians of the Laws different from these Lawmakers Yet he brings no Representatives of the Commons for he makes them the King the Lord High-Constable the Chancellor the Treasurer the Alderman of England the Aldermen of Provinces and the Graves I cannot but wonder that he should not at least give some hint what difference there was betwixt the King and his Graeve in the point of Law-making Surely he knew the Constitution of the great Councils as well as any but being a Sitting Member in that long Parliament was in that Particular tainted per contagionem uvaque livorem deducet ab uva CHAP. XXV Of the great Councils of the Norman Kings 'till the end of the Reign of King John WHAT Changes William the Conqueror made in the Government how he brought in the Feudal Laws of Normandy and many other Alterations Doctor Brady hath proved at large in his Argumentum Anti-Normanicum and the Preface to his Complete History so that I shall touch very little upon that Subject The Conqueror saith the learned Sir (a) Praefâ—tio ad LL. Willielmi primi pag. 155. Edit Wheeloch Three things the Conqueror designed Roger Twysden having obtained the Kingdom by dint of Sword and knowing that no Empire is firmly established by Arms without Justice applied his mind to three things First That he might have a sufficient Military Force Secondly That he might gratifie his French and Norman Adventurers yet so as the English might not by over much severity be instigated to rebel And Thirdly That the Husbandmen might live as Servants and to perform the Drudgery but not to be wholly extirpated As to the First He disposed the Militia so as (b) Lib. 4. p. 523. About his Militia and Revenue Ordericus Vitalis tells us it was reported That he could expend 1600 l. and 30 s. three Half-pence Sterling Money every day besides the Presents Fines for remitting of Punishments upon Transgressions of the Laws and many other ways whereby his Treasury was encreased and he made the Kingdom be surveyed and all his Tributes or Revenues Piscos as in the time of King Edward he made be truly described His Lands he so distributed to his Soldiers Disposed the Lands in Military Service and disposed them so that in the Kingdom of England he had 60000 Horsemen which he could with great readiness call together therefore in the 58 Law ascribed to him and which is in the Red Book of the Exchequer it is thus expressed We (c) Statuimus etiam sirmiter praecipimus ut omnes liberi homines totius Regni nostri sint fratres cenjurati ad Monarchiâ—m nostram ad Regnum nostrum pro viribus suis facultatihus contra inimicos pro posse suo defendendum viriliter servandum Pacem Dignitatem Coronae nostrae integram observandâ—m judicium rectum justitiam constanter omnibus modis pro posse suo sine delatione â—aciendam Fol. 171. appoint and firmly command that all the Liberi Homines such as held in Military Service to whom he had distributed all the Lands of the English except what he kept in his own Possession as in all Authors that treat of such matters is most evident of his whole Kingdom should be sworn Brothers to defend and manfully preserve his Monarchy and the Kingdom according to their Power against all Enemies and keeping entire the Peace and Dignity of his Crown and for the executing of right Judgment and Justice constantly in all ways according to their Power without Deceit or Delay I have inserted this at large because it seems the Primary Law upon which his Government was established and it seemeth to me to be the Substance of the Oath of Fealty that all the Subjects which held in Capite were to take or that the same Oath was to the same ends and purpose This Law is said to be made in the City of London But without doubt it was much according to the (d) Monsieur Berault Custom Norman fol. 86. usage of Normandy established by Rollo and what had been practised by the Francks when they conquered the Gauls in the declining of the Roman Empire who distributed their Lands among their Soldiers to whom was reserved the Dignity of Gentlemen and the Management of Arms and the use of them taken from the Ancient Gauls who were called Roturiers and they were only permitted to manage the matters of Husbandry and Merchandice So the Conqueror gave to some of his Followers (e) Brady's Preface Norm History p. 159. whole Counties to some two or three or more Counties with a great Portion of Land to others Hundreds Mannors or Towns who parcelled them out to their Dependants and Friends 'till at last though the Saxons most frequently held their own Estates of those new Lords and by new Titles from them some Soldiers and ordinary Men had some proportionable Shares for their Services though upon hard Conditions possessing them for the most part as Feudatories Of the Feudal Law and
the King (e) Remisit libere concessit integre promisiâ— remitted freely granted and fully promised the Investiture by Ring and Staff and freely left the Election of the Prelates to their respective Churches By which we may not only note who made up this Great Council but that the enacting part was solely the King's Grant The Charter (f) Lib. rub Scaccar Twysden LL. Id. 1. p. 175. of Henry the First was made before the Eighteenth of his Reign in which he saith because his Kingdom was oppressed with unjust Exactions in (g) Ego respectu Dei amore quem ergâ— vos habeo Matt. Paris fol. 292. num 10. See the Explanation of this Charter Brady's Argum. fol. 265. and Selden's Epinomis respect of God and the Love which he hath to his Subjects he makes the Holy Church free and so proceeds in the rest of his Laws by way of single Grant and Prohibition Anno 1127. 28 H. 1. (h) Rex auditis Concilii gestis consensum praebuit Authoritate Regia potestate concessit consirmavit statuta Concilii Continuat Florent Wigorn p. 503. W. Archbishop of Canterbury gathered a General Council of all the Bishops Abbats and Religious Persons and at the close of the Acts it is said That the King being at London having heard the Acts of the Council gave his consent to them and by his Kingly Authority and Power granted and confirmed the Statutes of the Council By which we may see that even the Constitutions of Ecclesiastical Councils required the Sovereign's Confirmation Of the Great Councils in King Stephen's time THat he was an Usurper is notoriously known His first great Council is only said by Malmsbury to be gathered at London (a) Coacto magno Episcoporum Procerum Abbatum concilio Fol. 92. b. num 4. consisting of Bishops Nobles and Abbats in which many Ecclesiastical and Secular Matters were ordained Matthew Paris saith That he having gathered at London the Magnates Regni he promised the bettering of the Laws according to the will (b) Juxta voluntatem arbiâ—rium singulorum Fol. 62. num 40. and pleasure of all The reason of which compliance of this King was for that he was set up and Crowned by a Faction there being reckoned by Authors none of Eminence present at his Coronation but the Archbishop of Canterbury the Bishop of Winchester and Roger of Salisbury his Brother no Abbats and but few of the Nobility they having all sworn (c) Malmsb. Hist Novel fol. 101. b. num 16. Fealty to Maud the Empress in Henry the first 's life time though he in the following Charter saith That he was elected King Assensu Cleri Populi But to proceed King Stephen primo Regni at Oxford Anno 1136. grants the Liberties to his Subjects by way of Charter (d) Ego Stephanus Dei gratia assensu Cleri c. omnes exactiones meschenningas injustitias sive per Vicecomites vel per alios quoslibet male inductas funditus extirpo bonas leges antiquas justas consuetudines c. observabo observari praecipio constituo Malmsb. Hist Novel p. 101. b. num 20. that the Church be free and he confirms due Reverence to it and so proceeds to recite many particular Priviledges to it and as to his Lay-Subjects he doth utterly root out all exactions misdeeds and injustices evilly brought in by Sheriffs or any others That he will observe himself and appoints and constitutes to be observed the good Laws and antient and just Customs in Hundreds Pleas or other matters This was by Charter and my Author saith he disdains to set to the names of the Witnesses which were many because he so lightly or foolishly changed all But Richard Prior of Hexham closes the Charter thus (e) Ric. Prior Hâ—gustald col 314. num 6. Anno 1136. 1 Regni The King grants his Charter with a Salvo Haec omnia concedo confirmo salva Regia justa Dignitate mea By which Conclusion it is apparent the King reserved to himself a Latitude to use his Prerogative and some are of opinion Kings cannot by any Concessions divest themselves of that but I want Mittans to handle such noli me tangere's of the Crown What I have further to add concerning this Charter is That the Prior of Hexham makes it granted after the Popes Confirmation (f) Id. 313. num 30. Note That all Authors think strange thâ— Pope should â—â—â—firm and so countenance King Stephen an Usurper of him in which if ever that See consulted its private Interest it was then and in my poor Opinion nothing hath more discovered the Personal failures of Popes than such countenancing of Usurpers my Author I say makes it to be passed at his Parliament at Oxford where he saith he celebrated a general Council Episcopos Proceres sui Regni regali edicto in unum convenire praecepit The Witnesses this Author sets down makes it (g) Id. 315. num 10. appear there were none besides the Clergy and Barons present for after fourteen Bishops named the rest of the Witnesses are Roger the Chancellor Henry Nephew of the King Robert Earl of Gloucester William Earl Warren Ralph Earl of Chester Roger Earl of Warwick Rob. de Vere Miles de Gloucester Rob. de Olli Briano Filio Comitis Constab Robert de Martel Hugh Bigot Humfrid de Bohun Simon de Bellocampo Dapif Rob. de Ferrers William Petrus Simon de Silbanâ—et William de Albania Hugh de Sancto Claro Ilbert de Lecsio All which were very great Barons the last of them being Heir to 150 Knights Fees at least his Grandfather had so many So that we cannot judge the Commons by any Representation were present The other great Councils of this King are to be found in the Authors (h) Flor Wigorn. Anno 1138. fol. 668. cited in the Margent That at Northampton had Turstin Archbishop of York president and the rest enumerated are Episcopi Abbates Comites Barones Nobiles quique per Angliam That of the sixteenth (i) Hen. Hunt Anno 1151. fol. 226. mentions only the Archbishop of Canterbury Eustachius the King's Son Angliae Proceres in the (k) Chron. Norm Anno 1152. Agreement 17 Regni the Conventus was Episcoporum Comitum aliorum Optimatum and the last I find Anno 1154. ultimo Regni e is cum Episcopis Optimatibus (l) Jo. Brompton col 1000. num 50. never any Commons represented being to be met with Of the Great Council in King Henry the Second's Reign THE first considerable Act of State that I find Henry the Second did was Anno 1154. 1 Reg. That he gathered his General Council to London in Lent (a) Spelman Concil Tom. 2. fol. 54. Congregavit Concilium generale renovavit pacem leges consuetudines per Angliam ab antiquis temporibus constitutas he renewed Peace and the Laws and Customs of antient
injuries which were brought upon the King beyond Sea by which not only the King but many of the Earls and Barons were disinherited therefore the King required Counsel and Aid of them of a Fifteenth Upon this the Archbishop and the whole number of Bishops Magna Charta granted Earls Barons Abbats and Priors having had deliberation answered the King That they would willingly yield to the Kings desire if he would grant them the long desired Liberties The King saith my Author being led by Covetousness or as he means being desirous of a supply yielded to what the Magnates desired so he granted that which is called Magna Charta so deservedly priz'd by all Englishmen ever since and the (f) Idem num 30. Charta de Foresta and presently Charters were got drawn and the King sealed them and they were sent into all Counties two one of the Liberties and the other of the Forests Matth. Paris saith expresly That they (g) Ita quod chartae utrorumque Requm in nullo invâ—niuntur dissimiles were the same that King John had granted and so refers the Reader to peruse them in what he had writ on his Reign It is to me very strange that since so many Original Grants of the Kings of England and other ancienter Deeds being every where to be found among the ancient Evidences of many Noble and Gentlemens Families yet no where that I can learn any of these Original Charters are to be found except one at Lambeth as Mr. Pryn hath observed That upon Record being only an Exemplification in King Edward the First 's time Anno 1232. on the Nones of March the King called a Great Council to (h) Idem fol. 314. num 20.17 H. 3. Westminster where there met Magnates Angliae tam Laici quam Praelati The King required an Aid for the payment of his Debts contracted by his Expeditions beyond Sea To which Ralph Earl of Chester on behalf of the Nobility answered That the Earls Barons and Knights that held of the King in Capite being with the King personally in that Expedition and having fruitlesly spent their Money were poor so that of (i) Vnde Regi de Jure auxilium non debebant Idem num 30. The Tenents in Capite having personally served according to the Tenure of their Service deny the King Aid right they ow'd not Aid to the King And so my Author saith the Laics having asked leave all departed and the Prelates answered That many Bishops and Abbats being absent they desired respite till some other meeting which was appointed fifteen days after Easter By this we may observe who they were that had the power of giving consent or granting aid for if there had been any other Members of the Lay Order besides Earls Barons and Knights that held in Capite the Earls of Chester's Argument had been of no validity In the Statute of Merton (k) Pulâ—on Stat. p. 1. In one part it is said Our Lord the King granted by the Consent of his Magnates 20 H. 3. it is thus expressed Before William Archbishop of Canterbury and other his Bishops and Suffragans and before the greater part of the Earls and Barons of England there being assembled for the Coronation of the said King and Helioner the Queen about which they were called thus it was provided and granted as well of the foresaid Archbishop Bishops Earls and Barons as of the King himself and others I shall only cull out some few of the Great Councils in this Kings Reign wherein most fully are expressed the true Members of them or such wherein something remarkable was transacted Anno 1237. 21 H. 3. The King keeping his Christmas at Winchester sent his (l) Matt. Paris fol. 367. num 30. Misu c. scripta Râ—galia pracipiens omnibus ad Regnum Angliae spectantibus c. ut omnes sine omissiâ—ne conveairent Regni negotia tractaturt totum Regnum contingentia Royal Writs through all England commanding all that appertained to the Kingdom of England that is all who were to be Members of the great Council which my Author explains particularly thus viz. Archbishops Bishops Abbats Priors installed Earls and Barons that without failure they should meet at London on the Octaves of the Epiphany to treat of the Affairs of the Kingdom concerning the whole Kingdom then he adds That on the day of St. Hilary there met at London an (m) Insinita Nobilium multitudo viz. Regni totalis universitas infinite Multitude of the Nobles viz. The whole University of the Kingdom which were the Persons of those Orders before particularized Anno 1246. 30 H. 3. By the Kings (n) Edicto Regio convocata convenit ad Parliamentum generali â—â—mum â—otius Regni Anglicani totalis Nobilitas Idem p. 609. num 10. Edict was called to the most general Parliament saith Matthew Paris all the Nobility of the whole Kingdom of England viz. of the Prelates as well Abbats and Priors as Bishops also Earls and Barons and a few Pages after concerning the same Parliament he saith All the Magnates of the Kingdom met and the King himself first spake to the Bishops apart then to the Earls and Barons and last to the Abbats and Priors In this The word Parliament now used that which frequently in Matthew Paris is called Colloquium now he gives the Title of Parliament to from the French word parler to confer or speak together and we find what is meant also by totalis Nobilitas Anno 1253. 37 H. 3. By the (o) Tota edicto Regio convocata Angliae Nobilitas convenit de arduis Regni Negotiis simul cum Râ—ge tractatura Idem fol. 745. num 40. Kings Edict the Nobility of England being summoned met at London to treat together with the King of the arduous Affairs of the Kingdom and there were present with most of the Earls and Barons the Archbishop Boniface and almost all the Bishops of England In this great Council were the Tenents in Capite according to King John's Charter The King in this Parliament or Colloquium requires Money for an Expedition into the Holy Land but for fifteen days there were great Contests about it till the King de novo confirmed King John's Charters and a solemn Excommunication was agreed upon to be pronounced against the Infringers of it and my Author saith Rex Magnates Communitas Populi protestantur in the Presence of the Venerable Fathers c. That they never consented or do consent that any thing be added or altered in the Charters but plainly contradict it so 3 May (p) Pat. 37 H. 3. m. 13. Anno 1253. in Westminster-Hall the Exemplification passed the Seal of the King and other great Men. But it is principally to be considered what is expressed in the Patent * Praefatus Dominus Rex in prolatione praefatae sententiae omnes libertates consuetudines Regni sui Angliae usitatas dignitates Jura Coronae
Regni nostri de Concilio nostro existentium providimus statuimus ordinavimus which (i) Pulton fol. 35. Anno 1279. 14. Nov. 7 E. 1. Pulton renders by the Advice of our Prelates Earls Barons and Subjects of our Kingdom being of our Council the King hath provided made and ordained whereas by Fideles is to be understood the Tenents in Capite The Statute of Acton Burnel or Statute Merchant 11 E. 1. according to Tottel was made by the (k) Ce Roy per luy per tout son Counsel ad ordain establâ—e Tottel fol. 49. 82. King himself and his whole Council That this was done in Parliament appears by the Statute of Merchants made in the 13th of the same King wherein it is said Our Lord the King by himself and by his Council at his (l) A son Parliament quâ—il â—â—â—â—t a Acton-Burnel c. Parliament which he held at Acton Burnel 11 Regni made and ordained these Establishments or as (m) Pulton fol. 36. Pulton hath it The King caused the Statute made by the King and his Council at Acton Burnel to be rehearsed and hath ordained and established Since the 49 of H. 3. to the 18 of Ed. 1. we find (n) Râ—t Pat. 20 E. 1. m. 15. no Writs for summoning of Knights Citizens and Burgesses but the 14 of June 18 Ed. 1. The King issued out the following Summons Rex c. The Form of Summons of Knights Citizens and Burgesses renewed at the Petition of the Nobles Two or three Knights to be chosen cum per Comites Barones quosdam alios de Proceribus Regni nostri nuper fuissemus super quibusdam specialiter requisiti tam cum ipsis quam cum aliis de communitatibus Regni illius colloquium habere volumus tractatum c. Tibi praecipimus quod duos vel tres de discretioribus ad laborandum potentioribus Militibus de Comitatu praedicto sine dilatione eligi eos ad nos c. venire facias c. cum plena potestate pro se communitate Comitatus praedicti ad consulendum consentiendum pro se communitate illa hiis quae Comites Barones Proceres praedicti tum duxerint concordanda vel concorditer ordinaverint in praemissis The English of which is Whereas we have been especially petitioned and requested by the Earls Barons and others of the great Men of our Kingdom concerning certain matters upon which we will have Conference and treat as well with themselves as with others of the Counties of that Kingdom We command thee that without delay thou makest to be chosen two or three of the most discreet and ablest Knights for dispatch of business of the Counties aforesaid and cause them to come to us c. with full Power for themselves and the whole Community of the County aforesaid to consult and consent for themselves and that Community to such things which the Earls Barons and great Men aforesaid shall think fit to agree upon From this we may observe That by Vertue of this Writ No Citizens and Burgesses but only Knights for Counties no Citizens or Burgesses could be chosen or sent to Parliament But only Knights for Counties Secondly The Scutage was granted in this Parliament as Doctor Brady hath noted fourteen days before the Writ for Election of Knights issued out and it is (o) Tottel's Stat. p. 85. apparent That the Statute of Westminster the Third was made the Eighth of July which was a week before they were to appear and consequently was made without them for the Preamble runs Dominus Rex in Parliamento suo apud Westmonasterium post Pascham Anno Regni sui 18. viz. in quindena S. Johannis Baptistae i.e. 8 July ad instantium Magnatum Regni sui concessit providit statuit From this Writ and the Variation of the following Writs and other Records the judicious Doctor Brady (p) Answer to Petyt fol. 151. notes That it was from the Kings Authority and at this time that the House of Commons came to be fixed and established in the present constant form it now is and hath been for many Kings Reigns and it doth appear that King Edward the First was not altogether confined to any certain number of Knights Citizens or Burgesses nor were several strict forms and usages now practised ever then thought of or some legal Niceties or Punctilioes now in use then judged of absolute Necessity The Statute of Quo (q) Pulton An. 1290. fol. 58. Warranto in the Eighteenth Year of Edward the First saith that the King of his special Grace and for the affection he beareth to his Prelates Earls and Barons and others of his Realm hath granted c. The Statute de (r) Idem Anno 1293. fol. 61. Malefactoribus in Parcis in the Twenty first Year of Edward the First saith Our Lord the King at his Parliament c. at the instance of the Nobles of the Realm hath granted c. Anno 1294. the King issues out his (s) Cl. 22 E. 1. m. 6. dorso Four Knights for a County Writs to cause two Knights out of every County to be chosen c. Dated the Eighteenth of October and the next day issues out Writs for other two to be chosen to meet at the same time and place Out of Mr. Ryley's (t) Fol. 241. Placita Parliamentorum it is clear that the Parliament which met on the Octaves of St. * Claus 28 E. 1. m. 3. dorso Hilary or the Twentieth of January in the Twenty eighth Year of Edward the First sate but eight days the Writ for the Commons Expences bearing date January the Thirtieth of the same Year and the Letter to the Pope signed by the Temporal Lords for themselves and the whole Community of the Kingdom of England is dated February the twelfth next following after the Commons had been dismissed fourteen days so that the Barons still continued to stile themselves the Community of England The Barons stay after the Commons dismissed and both Spiritual and Temporal Barons and others of the King's Council did stay and dispatch much Business after all others were dismissed as further appears in a (u) See Brady's Answer to Petyt fol. 152. Proclamation 21 March 33 Ed. 1. Wherein the King gives the Archbishops Bishops and other Prelates Earls and Barons Knights of Counties Citizens and Burgesses and other Persons of the Commons which by our Lord the King's Command came to this Parliament many Thanks for their coming and willeth that at present they return into their Counties so as they readily and without delay do come again at the time when they shall be remanded except the Bishops (w) Sauve les Evesques Countes Barons Justices autres qui sont du Conseil nostre Seigneur le Roy que ceux ne sen allient saunz especial conge du Roy. The King's Council prepare Laws Earls and
Barons Justices and others which are of the King's Council who may not depart without special leave of the King I shall not here enter into the enquiry how far the extent of the Power of the King's Council was in those days but it is very apparent that the King with advice of his Council proposed Laws and that others proposed by the Houses were considered by the King and Council as no doubt they are now considered before the King gives his Assent to Bills So in the Statute of the Definition of (x) Pulton An. 1304. fol. 72. Conspirators in the three and Thirtieth Year of King Edward the First it is said This Ordinance was accorded by the King and his Council in his Parliament Also in the Ordinance of (y) Idem Anno 1305. Enquests the Eighteenth of Sept. in the thirty third Year of Ed. the First It is said it is agreed and ordained by the King and all his Council that is his Parliament As to the special Prerogative of the King in giving the ultimate Character and fiat to the Laws every Act expresseth it so the Statute of (z) 18 Sept. 33 E. 1. Champerty the Statutes are called by the King Our Statutes and Our Lord the King hath commanded and in the Statute de Conjunctim feoffat it is said It is no new thing that among divers Establishments of Laws which we have ordained in our time so in the Ordinatio Forestae 34 Ed. 1. The King Ordains (a) Id. Anno 1306. fol. 73. We have ordained for our selves and our Heirs So in the Statute De asportatu Religiosorum 35 Ed. 1. it is said by the Council of his Earls Barons great Men and other Nobles of his Kingdom at his Parliament Our Lord the King hath Ordained and Enacted I shall only note first That in the Twenty eighth of this King those the (b) Cl. 28 E. 1. m. 3. dorso King had appointed being ready to give an account of the Perambulation of the Forests the King put a present stop to their report and his determination because the Prelates Earls Barons The Reason the King will determine nothing without advice in Parliament and the rest of the Magnates of the Kingdom in whose Presence his own and others Reasons should be propounded and heard and by whose Councils he intended to work especially seeing they were bound by Oath as well as himself to observe and maintain the Rights of the Kingdom and Crown were not then present and those were not summoned who should propound their Reasons so far as the matters concerned them and the King was not willing without their advice to put an end to the matters therefore he orders the Sheriffs to cause the two Knights that came to the last Parliament by his Precept now to come and the like for the Cities and Burroughs and if any were dead or infirm so that he could not come then to cause another to be chosen By which it appears that it was only from the King's Indulgence and that he might more deliberately resolve for the best advantage of his Subjects and for their satisfaction that he would have the advice of a fuller Assembly We may also further note from hence that it was in the King's Power to summon the same Knights Citizens and Burgesses without a new Choice except the Persons were dead or infirm Of the Parliaments in King Edward the Second's time IN this King's Reign these following Particulars are most observable In the Statute for (a) Pulton An. 1307. fol. 79. Knights 1 Regni it is said Our Lord the King hath granted In the Summons 5 Ed. 2. the Precept to the Sheriff The same Knights c. to come that were before is to cause to come to the Parliament to be held at Westminster those Knights Citizens and Burgesses in his Bailiwick which he caused to come lately to the present Parliament at London and which for certain causes went from the said Parliament (b) Cl. 5 E. 2. m. 26. dorso Vel alios ad hâ—â— idoneos loco ipsorum si ad hoc vacare non possunt or others fit for the Imployment if they cannot be at leisure Dated Octob. 11. In the sixth of Ed. 2. we have an example of the King 's (c) Cl. 6 E. 2. m. 27. dorso A Form of Prorogation proroguing the House of Commons in these Words Dominus Rex praecepit quod Milites Cives Burgenses qui ad Parliamentum Regis ibidem summonitum convenerunt pro Comitatibus Civitatibus Burgis Angliae ad propria remearent ita quod reverterentur ibidem in crastino S. Mich. prox futuro sub poena qua decet So that as they were commanded to return home so they were appointed a time to return under the Intimation of a Punishment The Preamble to the (d) Pulton An. 1315. fol. 80. The King with his Council revise Articles after the Parliament ended Articuli Cleri runs thus That by the Kings Progrenitors and himself at the Instance of the Prelates certain Articles were made and in the Parliament at Lincoln 9 Regni he caused them to be rehearsed before his Council and made certain answers to be corrected and to the residue of the Articles answers were made by him and his Council and so by way of Charter they are published at York 24 Nov. 10 Regni The Statute of (e) Id. 1316. fol. 83. Gavelet at London saith It is provided by our Lord the King and his Justices In the Statute de Terris (f) Id. Anno 1323. 17 E. 2. fol. 91. Templariorum it is said Great conference was had before the King himself in the presence of the Prelates Earls Barons Nobles and great Men of the Realm and others present whereupon the Greater part of the King's Council The King's Council and Justices affirm as well the Justices as other Lay-men being assembled the Justices affirmed precisely c. After the recital of Particulars the words are It is ordained and agreed in the same Parliament Anno 1326. the last of Ed. 2. There is a Prorogation of the (g) Claus 20 E. 2. m. 4. dorso A Prorogation before Meeting Parliament before meeting which runs thus That though the King had intended Colloquium Tractatum Conference and Treaty in the Quindene of St. Andrew by Isabel the Queen and Edward his eldest Son Custos of the Kingdom the King then being beyond Sea and the Prelats Proceres Magnates Regni and so had commanded two Knights of the Community of the County two Burgesses of every Burrough (h) Quia tamen quibusdam de causis necessariis utilibus praedict Parliamentum Tractatum usque in crast inum Epiphaniae prox jam futur c. duximus prorogandum yet for certain causes necessary and profitable he hath prorogued the said Parliament and Treaty unto the day after Epiphany c. Of the Parliaments in King Edward the Third's
fol. 165. Gloucester 2 R. 2. is thus Our Lord the King at his Parliament c. amongst other things there assented and accorded hath made certain Statutes and Ordinances The Preface to the Statutes at (c) Anno 1379. fol. 167. Westminster the same year runs thus Our Lord the King c. of the Assent of the Prelates Dukes Earls Barons and other great Men and of the Commons of this Realm summoned c. hath ordained In the first Chapter of the Statutes at (d) Idem Anno 1380. fol. 169. Northampton 4 R. 2. it is thus The Commons of our Parliament have prayed us by their Petition delivered to us at our present Parliament c. We considering the said Supplication will and grant by the Assent of the Prelates and Lords aforesaid In the Fourth Chapter of the Statutes at (e) Idem Anno 1382. fol. 175. Westminsterâ— 5 R. 2. The Members accustomed to be summoned to Parliament are particularly by their Degree distinguished viz. Archbishops Bishops Abbats Priors Dukes Earls Barons Bannerets Knights of the Shires Citizens and Burgesses which last are frequently comprehended by the words Others or Commonalty The Preamble to the Statutes 8 R. 2. at (f) Idem An. 1384. fol. 179. Westminster is to the Honour of God and at the Request of the Commonalty of the Assent of the Prelates Great Men and Commons aforesaid Assent of Commons Our Lord the King hath caused to be made The Statutes 9 R. 2. at (g) Idem Anno 1385. fol. 179. Westminster are thus prefaced Our Lord the King of the Assent of the Prelates Dukes Marquesses Earls Barons and Commons hath ordained and established The (h) Idem Anno 1386. fol. 180. Preface to the Statute 10 R. 2. is very full in the Expressions of the kindness of the King to his Subjects in this Form Know ye for the Reverence of God and to nourish Peace Unity and good Accord in all Parties within the Realm and especially for the common Profit and Ease of our People and good Government of the same which we chiefly desire of the Assent of the Lords and Commons assembled in Parliament Assent of the Lords and Commons we have caused to be made a Statute So in the 11th Regni (i) Idem Anno 1387. fol. 181. the King heartily desiring That the Peace of the Land be well holden and kept and his faithful Subjects nourished and governed in Quietness and Tranquillity and in that at Westminster (k) Idem Anno 1388. fol. 182. 13 Regni For the Honour of God and Holy Church and for the common profit of his Liege People In the First Chapter of the Statute at (l) Anno 1389. fol. 189. Westminster 13 R. 2. it is thus expressed That our Lord the King at his Parliament holden at Westminster c. Grievous Complaints of the Commons hearing the grievous Complaints of his said Commons c. the more because Charters of Pardons have been easily granted in such Cases the Commons requested that such Charters might not be granted To whom the King answered The King will save his Liberty and Regality That he will save his Liberty and Regality as his Progenitors have done heretofore But to nourish the more Quietness and Peace within this Realm by the Assent of the Great Men and Nobles he hath granted c. In the (m) Idem Anno 1396. fol. 199. Statute 20 R. 2. By the Assent of the Prelates Lords and Commons The Title of the Statutes at (n) Idem Anno 1397. fol. 200. Westminster 21 R. 2. is thus It is to be understood that our Lord the King c. of the Assent of the Prelates Dukes Earls Barons and Commons of his Realm there assembled hath made certain Statutes and Ordinances Repeal of Statutes made by Threats Amongst the rest is a Repeal of the Statutes made 10 R. 2. For that they were made by Threats given to the King and by constraint So it may be noted That Henry the Fourth repealed all the Statutes made in the last Parliament 21 R. 2. Of the Parliaments in King Henry the Fourth's time THE Preamble to the Statute at (a) Idem Anno 1399. fol. 200. Westminster 1 H. 4 runs thus Henry by the Grace of God c. to the Laud and Honour of God and Reverence of Holy Church for to nourish Unity Peace and Concord of all Parties within the Realm of England and for redress and recovery of the same Realm of England which now of late hath been dangerously put to great Ruin Mischief and Desolation of the Assent of the Prelates Instance and special Request of the Commons Dukes Earls Barons and at the Instance and special Request of the Commons of the same Realm assembled c. hath made ordained and established certain Ordinances and Statutes Throughout all this Kings Reign most of the Prefaces are much the same By the Assent or Advice and Assent of the Prelates c. At the Request or special Instance and Request of the Commons Only in the Preface to some Assent of the Lords Spiritual and Temporal it is By the Assent and Advice of the Lords Spiritual and Temporal this Distinction being mostly brought into use in his time as may be seen in the 4th 6th and 9th of his Reign Of the Parliaments in King Henry the Fifth 's time THE Preamble to the Statutes at (a) Idem Anno 1413. fol. 224. Westminster 1 H. 5. runs thus Our Lord the King at his Parliament c. by the Advice and Assent of the Lords Spiritual and Temporal and at the special Instance and Request of the Commons of this Realm hath ordained established c. and so much like all the rest except the Statutes 4 H. 5. (b) Idem Anno 1416. fol. 234. which hath Our Lord the King with the Assent of the Prelates Dukes Earls Barons and at the special Instance and Request of the Commons Of the Parliaments in King Henry the Sixth 's time THE Preamble to the First Statute of (a) Idem Anno 1422. fol. 239. Westminster 1 H. 6. is thus At the Parliament held at Westminster c. Our Sovereign Lord the King Sovereign Lord the King by the Advice and Assent of the Lords Spiritual and Temporal and at the special Instance and Request of the Commons of the Realm c. hath caused to be ordained and established c. The 2d 3d. 4th and 6th of H. 6. are the same As the first Statutes call him Our Sovereign Lord which was not used formerly so in that of the 8th of H. 6. he is stiled Our most Noble Christian Lord Henry c. 11 Regni (b) Idem Anno 1433. fol. 261. part of a new Phrase was used By Authority of Parliament which after some while is now familiarly used that Preface runs thus By the Assent of the Lords Spiritual and Temporal and at the special Request of the
Commons in his said Parliament assembled By Authority of the said Parliament by Authority of the same Parliament Our Sovereign Lord the King hath ordained and established divers Statutes Declarations and Ordinances The Preface to the Statutes at (c) Idem Anno 1452. fol. 286. Reading 31 Regni hath these words Our Lord the King by Assent of the Lords Spiritual and Temporal and the Commons being in the said Parliament and by Authority of the same Parliament hath made ordained and established divers Acts and Statutes Here the Commons Assent is joyned with the Lords whereas in most others of his Reign it is At the special request of the Commons So it is in that at Westminster which is like the first only it saith Our Sovereign Lord c. the Thirty ninth of his Noble and Gracious Reign Of the Parliaments in King Edward the Fourth 's Reign THE Preamble to the Statutes of (a) Idem Anno 1461. fol. 291. King Edward by the Grace of God Westminster 1 Regni is Edward by the Grace of God c. to the Honour of God and Holy Church to nourish Peace Unity and Concord within his Realm which he much desireth by the Advice and Assent of the Lords Spiritual and Temporal of the same Realm and at the special Request of the Commons of his said Realm assembled by Authority of the same Parliament hath ordained The rest of the Prefaces vary very little except that in the 3 E. 4. it is By the Advice and Assent of his Lords Spiritual and Temporal and the Commons c. Of the Parliament in King Richard the Third's time THE Preamble to the Statutes at (a) Idem Anno 1483. fol. 315. Westminster 1 R. 3. runs thus Richard by the Grace of God c. to the Honour of God and of Holy Church and for the Common-wealth of his Realm of England Advice and Assent of Lords Spiritual and Temporal and Request of the Commons c. By the Advice and Assent of the Lords Spiritual and Temporal and at the Request of the Commons of the said Realm summoned to the said Parliament by the Authority of the same Parliament hath ordained and established for the Quietness of his People certain Statutes Of the Parliaments in King Henry the Seventh 's time THE Prefaces to all the Acts in his (a) Idem Anno 1485. fol. 324. Reign are much alike thus The King our Sovereign Lord Henry c. To the Honour of God c. By the Assent of the Lords Spiritual and Temporal and the Commons in the said Parliament assembled and by Authority of the said Parliament hath done to be made certain Statutes and Ordinances Of the Parliaments in King Henry the Eighth 's time MOST of the Prefaces to the 20th of his Reign are the same as in King H. the 7th mutatis mutandis The Title of the 21 H. 8. (a) Id. fol. 392. only is Statuta ad Rempublicam spectantia edita in 1 Sessione Parliamenti c. Anno Regni invictissimi Principis Henrici c. In the 5th Chapter of the Acts of the (b) Id. fol. 435. 24th of his Reign The King our Sovereign Lord. it is thus Be it enacted by the King our Sovereign Lord with the Assent of the Lords Spiritual and Temporal and the Commons of this present Parliament assembled and by Authority of the same So most of the rest are excepting that in the second Chapter of the 26. of (c) Id. fol. 465. his Reign it is said Therefore be it enacted by Authority of this present Parliament So in the first Chapter of the (d) Id. fol. 485. 28 Regni it is said For the Remedy whereof May it please the King c. it be enacted may it please the King our Sovereign Lord by the Assent c. it may be enacted The Title of the Acts 31 H. 8. (e) Id. fol. 537. H. 8. Defender of the Faith and in Earth Supreme Head c. runs thus Henry the 8th c. Defender of the Faith and in Earth supreme Head immediately under Christ of the Church of England to the Honour of Almighty God Conservation of the true Doctrine of Christian Religion and for the Concord Quiet and Wealth of this his Realm and Subjects of the same held his most high Court of Parliament c. wherein were established these Acts following and in the first Chapter it is said Be it enacted c. Be it enacted by the King our dread Sovereign Lord and by the assent of the Lords Spiritual and Temporal and by the Commons of this present Parliament assembled The Thirty second of H. 8. hath these Expressions which day the said Parliament continued by divers Prorogations was by His Graces Authority finished and dissolved amongst many other the Acts following By his Highness with the assent of the Lords Spiritual and Temporal and the Commons assembled in the said Parliament have been Established Ordained and Enacted Of the Parliaments in King Edward the Sixth 's Reign IN the first Chapter of the first (a) Id. fol. 687. Statutes made 1. Regni it is said The Kings most Excellent Majesty King 's Excellent Majesty Princely Serenity Highness minding the Governance and Order of his most loving Subjects to be in most perfect Unity and Concord in all things c. as his most Princely Serenity and Majesty hath already declared by evident Proofs Be it enacted by the Kings Highness with the assent of the Lords Spiritual and Temporal and of the Commons of this present Parliament assembled and by the Authority of the same In the second and third Year of Ed. 6. they are called (b) Id. fol. 712. Acts in the Session c. humbly prayen That it may be Ordained and Enacted by His Majesty with the assent of the Lords and Commons in this present Parliament assembled and by the Authority of the same The rest are much what like these foregoing Of the Parliaments in Queen Mary's Reign IN the Title of her first (a) Id. fol. 817. Acts she is stiled Ordained and enacted by the Queen our Sovereign Lady and Assent of Lords Spiritual and Temporal and Commons Defender of the Faith and Supreme Head of the Church c. Be it therefore ordained and enacted by the Queen our Sovereign Lady with the assent of the Lords Spiritual and Temporal and of the Commons in this present Parliament assembled and by the Authority of the same After the Marriage of (b) Id. fol. 831. Queen Mary with King Philip of Spain the title is only Acts made in the Reign of our Sovereign Lord and Lady Philip and Mary Defenders of the Faith leaving out Supreme Head c. In the fourth and (c) Id. fol. 863. fifth of Philip and Mary in the Body of the Acts it is thus Be it Enacted Ordained and Established by the King and Queens Majesty the Lords Spiritual and Temporal and the Commons
reason because it passed under his Broad Seal Likewise when the Constitution of Parliament was altered 49 H. 3. whereby in place of the Tenents in Capite which were numerous two Knights were chosen probably by the rest of the Tenents in Capite for the Shires and two Citizens and two Burgesses for Burroughs to represent all those that held in Capite and it is likely all other their Subfeudatary Tenents yet the number was not constantly observed there being sometimes Knights and no Citizens or Burgesses sometimes one Knight one Citizen and one Burgess other times two or three Knights left as it seems to the Sheriffs or the Chusers Election till after it was fixed as it now is for two Knights two Citizens and two Burgesses unless in some places of Wales where to this Day some two or three Burroughs chuse but one or two Burgesses Likewise it is worth the observing how gradually the Advice and Assent hath pass'd from the Advice of the Bishops and Nobles to the Assent likewise and sometimes at their request only the King ordains and then from the Potition of the Commons to their joyning in Advice and after to their Assent and many other material progressive alterations which in this recapitulation I cannot insist upon till it hath come to that constitution so much to be valued by all wise Englishmen as it is the product of the generous condescensions of Gracious Kings and the wise contrivance of our considerate Ancestors Therefore I shall now pass to consider our present Constitution of Parliaments CHAP. XXVIII Of the modern rightly constituted Parliaments SECT 1. Of the General Vse of Parliaments I Have before given an account how the Persian Laws were made by the (a) Daniel cap. 6. v. 7 8. King his Princes Governours Nobles and Captains as in a great Council of several Orders with the Sovereign but we have an older example in Scripture Great Councils in Scripture that seems to be the Pattern of all great Councils such as we call Parliaments under a Monarchy For it is said (b) Legem praecepit nobis Moyses haereditatem multitudinis Jacob. Erit apud rectissâ—â—um Rex congregatis Principibus populi cum Tribubus Israel Deâ—â— cap. 33. v. 4 5. Moses commanded us a Law even the Inheritance of the Congregation of Jacob and he was King in Jesurun when the Heads of the People and Tribes of Israel were gathered together Here is the King Moses commanding a Law and the Heads of the People the Princes or House of Lords and the Tribes that is some to represent the chief of the Tribes like our House of Commons The Roman Senate under the Emperors resembled our ancient Great Councils that consisted of such as the King convened and of the Patrician and Equestrian Order The Comitia bore no resemblance with our Commons and the Amphictyonican (c) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Assemblies the Achaian Booâ—â—an and Pan Aetolian were Assemblies of Deputies as the States General of Holland Such Assemblies in all sorts of Governments are necessary Necessary in all Governments for be the Empire never so vast and the Sovereigns Power never so great and uncontroulable yet without Consultation had with the Princes and wise Men for the constituting Laws and modelling the frame and methods of his Government it would soon without such (d) Vis consilii expers mole ruit sua Horat. lib. 3. Od. 4. Buttresses and Undersetters sinking in its Foundation by its own weight with an hideous rush be crushed into an heap of Rubbish In Democracy Great Councils are needful that thereby the (e) Plato de LL. In Democracy Male cuncta ministrat impetus Statius Precipitancy and fury of the Common-People by their gravity may be attempered the common sort being apt to do every thing with a willful Violence which never succeeds well when not directed to a right end If their publick affairs were not committed to a select number of Trustees nothing would be brought to any Issue since none can be heard where all speak nor any good Product be from a jumble of those Atoms Aristocracy it self consists in a select number of the wisest and ablest to govern In Aristocracy who in publick Consultations have no private ends Yet in the great Councils of neither of these forms of Government is there to be found that stayedness orderliness or resolution for the public good as in Monarchy Why such Assemblies are not only convenient In Monarchy but necessary under Monarchy there are many weighty Reasons (f) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Xenoph. Cyropaed 8. Satisfactory to the Subject Xenophon observes that a single Person sees or hears but little and Princes must have many Eyes and Ears which in a special manner these Great Councils are from all parts of the Dominions bringing notice of what is amiss and wants redress as well as what is orderly and wants encouragement Besides Princes thereby have the opportunity to give their Subjects satisfaction in their Administration preventing the surmises and jealousies of the Nobility Gentry and common People that he sleights them in not calling them sometimes to consult about affairs of Moment Furthermore the Prince by such congress The Prince thereby knows the Worthy Subjects consults his own Interest in coming to the Knowledg of the most able active and popular Subjects whereby he may single out such as are most fitted for public Imployments to serve him in the several offices of Government and all who thus have a share in the debating and consulting about Laws will not only be witnesses of the Prince's Grace and Favour in granting such as they have desired and assented to but will be so many Heralds of his Wisdom and care of his Peoples good Government and so many vigorous enforcers of the Execution of those Laws they have so lately assisted to prepare Likewise The Prince is skreened from Obloquy as Privy-Counsellors and other Officers are sometime as Skreens to Princes to ward off the Obloquy of the Mobile when something is imposed that may be wholesome though something bitter to their Palates So especially are these great Conventions necessary where useful Laws though severe are to be enacted Money to be raised or other Impositions laid upon the People who do much more chearfully and less repiningly obey when they know (g) Tum caetera parit Turba libens subit propriis quia legibus acta the Nobility and their own Representatives have judged them convenient All Men naturally loving that such Impositions may immediately result from themselves rather than they should be enjoyned by the Princes Arbitrary power according to that of Claudian Observantior aequi Fit Populus nec ferre negat cum viderit ipsum Auctorem parere sibi The General use of good Parliaments is summed up in the (h) MS. Speech An. 1562. The general Benefits of Parliaments Chancellors Speech 2 Eliz. thus That the principal cause of their
Assembly was that things there proposed may be orderly and diligently debated deeply considered and thereupon wisely concluded To examine whether any Law already made be too sharp and sore and so over-burthensome to the Subject or over-loose and soft and so over-dangerous to the State For that acriores sunt morsus intermisseae Libertatis quam retentae He further adds The use of them is to consider the want and superfluities of Laws whether Graft Malice or Covetousness hath devised any ways or means to defraud the Benefit and Force of Laws and in matter of Policy for the more perfect upholding and establishing the Soveraigns Royal State and the Preservation of the Common-weal committed to the Princes care Bodin (i) Lib. 3. de Repubâ— p. 350. commends the Constitution of the Government in England and Spain that they have Parliaments once in three Years whereby Princes upon any imminent danger may have recourse to their Council and Assistance to defend their Countries from Hostile Attempts to raise Money for public Necessity cure the Diseases of the Commonweal confirm the State appoint Laws hear the Complaints of the grieved amend Male-Administration by calling ill Mannagers to account understand what the Prince otherwise may be ignorant of and generally to have counsel in all things which in Prudence are necessary for the happy Government of the Commonweal Sir (k) Commonwealth part 1. c. 2. p. 37. Tho. Smith saith As in War where the King himself is in Person with the Nobility Gentry and Yeomanry the Power and Force of England is So in Peace and Consultation where the Prince is to give Life and the last and highest Commandment the Nobility for the higher the Knights Esquires and Gentlemen for the lower part of the Commonwealth and the Bishops for the Clergy be present to advertise and consult and shew what is necessary for the Commonwealth every thing being advised with mature Deliberation every Bill being thrice read and disputed upon in either House apart and after the Prince himself doth consent thereto that is the Prince's and whole Kingdoms Deed whereupon no Man can justly complain but must accommodate himself to find it just See Prynne part 1. Brief Register p. 447. good and obey it and concludes that whatever the People of Rome might do either in Centuriatis or Tribunitiis Comitiis the same may be done by the Parliament of England which representeth and hath the Power of the whole Kingdom Thus far of the general use now to the Constitution Concerning the word Parliament it is concluded by most Of the word Parliament to come from the French word parler to speak therefore before the word was used by our Historians as appliable to this great Convention the Latin word Colloquium was frequently used to signify a Conference betwixt the King and the great Men summoned to consult advise and take Counsel with the King and among themselves Yet before the word was used to signifie these great Assemblies we find it applied to other Meetings in William Rufus's time For Ingulphus Abbat of Croyland speaking of private Consultations in that Abby saith That Semannus de Lek (a) Veniens coram conventu in nostro publico Parliamento c. coming before the Convention in their publick Parliament took his Oath of Fidelity to them as Serjeant of their Church The First that is noted to use this word among all our Historians is (b) Convenit ad Parliamentum Generalissimum totius Regni Angliae c. p. 674. Matthew Paris Anno 1246. 30 H. 3. where he saith There came to the most general Parliament to London the whole Nobility of all the Kingdom of England The first Mention of it on Record is in the (c) Cl. 49 E. 3. d. 11. Writ of Summons to the Cinque Ports summoning them ad instans Parliamentum nostrum and the next is in the Writ of Prorogation of the (d) Cl. 3 E. 1.20 dorso Parliament 3 E. 1. where it is twice mentioned in the Writ generale Parliamentum nostrum eodem Parliamento Having premised thus much concerning the Name and first usage I shall now discourse of it in particular SECT 2. Of the Summons of the Prelates THAT the King is Caput Principium Finis Parliamenti as Sir Edward Coke notes is obvious to all The Summons have been constantly from the King The Summons only from the King or in his Name In the former Chapters I have discoursed out of our Historians that the Great Councils were always convened by the Kings Now I come to prove it by Records and shall note first the Summons to the Prelates then of the Nobles and thirdly of the Knights Citizens and Burgesses only noting some of the remarkablest of them from Mr. Prynn who hath so fully writ of them in his brief Register of Parliamentary Writs in four parts and his Brevia Parliamentaria Rediviva to whose indefatigable pains in transcribing such an infinite of Records all Antiquaries Lawyers and Statesmen will be always beholding though in the use he made of such before the late King's Restauration or at least while he sate in the long Parliament few Loyal Men can follow his Doctrines All the Writs before the Sixth of King John whereby any were summoned to great Councils are utterly lost that runs (e) Claus 6 Joh. m. 3. dorso The Summons in King John's time thus Mandamus vobis rogantes quatenus omni occasione dilatione postposita sicut nos honorem nostrum diligitis sitis ad nos apud London c. nobiscum tractaturi de magnis arduis negotiis nostris communi Regni Vtilitate vestrum habere consilium aliorum Magnatum Terraendstrae Abbates Priores conventuales toti Diuoecesis citari faâ—iatis The second Record is (f) Claus 26 H. 3. m. 13. dorso 26 H. 3. directed to Walter Archbishop of York differing from the former in these particulars Sicut nos honorem nostrum here is added Pariter vestrum diligitis in fide qua nobis tenemini Anno 38 H. 3. the Writ is directed to the Archbishop of Canterbury Paternitatem vestram omni qua possumus affectione rogamus quatenâ—s nos Jura nostra totaliter indeâ—ensa non deserentes cum omni celeritate convocetis coram vobis Capitulum vestrum Cathedrale Archidiaconos Viros Religiosos Clerum vobis subjectum inducentes eos omnibus modis quibus poteritis quod nobis in tanta necessitate liberaliter subveniant I do not bring in this as a Writ of Summons to a Parliament These Summons for Military Aid out only as a special Writ to excite the Clergy to a free voluntary and liberal Contribution for defence of Gascoign and so to show the Customs of Benevolences in that Age out of Parliament The next (g) Claus 49 H. 3. dorso 11. in schedula The first Summons to the Lords when the Commons also were summoned Writ of
Preamble to the Writ of Summons 4 E. 3. is very (r) Cl. 4 E. 3. m. 13. dorso General Causes of Summons remarkable Rex c. Qualiter negotia nos statum Regni nostri contingentia postquam suscepimus gubernacula Regni nostri hucusque in nostri dampnum dedecus ac depauperationem populi nostri deducta erant vestram credimus prudentiam non latere propter quod non volentes hoc urgente conscientia ulterius sustinere ac desiderantes toto corde statum Regimen Regni nostri secundum juris ac rationis exigentiam ad honorem Dei tranquillitatem pacem Sanctae Ecclesiae ac totius populi ejusdem Regni reformari Ordinavimus c. Parliamentum c. The 22 of E. 3. hath a peculiar (s) Cl. 22 E. 3. part 2. m. 9. dorso Clause Quod dictum Parliamentum non ad Auxilia seu Tallagia a populo dicti Regni nostri petenda vel alia onera eidem populo imponenda sed duntaxat pro justitia ipsi populo nostro super dampnis gravaminibus sibi illatis facienda Another considerable (t) Cl. 31 E. 3. m. 21. dorso Clause is to be found 31 E. 3. Et quum praedicta negotia perquam ardua sine maxima deliberatione tam Praelatorum Cleri quam Magnatum Communitatis ejusdem Regni nullo modo expediri poterunt ad quorum expeditionem Auxilium Consilium tam a vobis c. habere necessario oportet The (u) Cl. 3 H. 6. m. 9. dorso Preamble 3 H. 6. is to enquire how Justice hath been done c. Quia nos jam dum in Annis degimus teneris an pax justitia ubilibet inter Ligeos nostros Regni nostri Angliae sine quarum observatione Regnum aliquod prospicere non potest debite conserventur exhibeantur necne c. Therefore he summons a Parliament The cause (w) Cl. 22 23 E. 4. m. 11. dorso of the Summons 22 E. 4. is thus expressed Quibusdam arduis urgentibus negotiis nos securitatem defensâ—onem Ecclesiae Anglicanae ac pacem tranquillitatem bonum publicum defensionem Regni nostri Subditorum nostrorum ejusdem concernentibus Therefore he summons them The special causes are mostwhat to have supply against the Kings Enemies Special Causes of Summons the French or Scotch Kings and it is to be noted that in the Summons of King E. 2. mostly the (x) Sâ—otis Inimiâ—is Rebellibus nosâ—ris Claus 2. E. 2. m. 20. dorso Scots are not only called the Kings Enemies but his Rebels which implies them Subjects by vertue of the Homage done to his Father and so 8 E. 2. M. 24. dorso it is called Terra nostra Scotiae though he was the most unfortunate of all our Kings in his Expeditions against that Kingdom The first (y) Cl. 14 E. 3. part 2. m. 28. dorso With the Advice of the King's Council Writ I have found wherein it is said the King called his Parliament with the Advice of his Council was 14 E. 3. quia de avisamento Concilii nostri ordinavimus and so in 46 E. 3. and afterwards sometimes used and often omitted but in later times generally used The last considerable thing in their Writs is what the Prelates c. summoned were to do at these Parliaments which most-what is comprehended in these Words That it is (z) Vestrum expedit habere consilium Cl. 6 Jo. m. 3. dorso What the Summoned were to do expedient to have their Counsel or nobiscum super dictis negotiis tractaturi vestrumque consilium impensuri 23 E. 1. m. 9. dorso or ad tractandum ordinandum faciendum nobiscum Cl. 24 E. 1. m. 4. dorso Ad ordinandum de quantitate modo subsidii Ibid. m. 7. dorso habere colloquium tractatum Claus 2 E. 2. m. 20. dorso ad tractandum consentiendum Cl. 6 E. 2. m. 2. dorso So in (a) Cl. 14 E. 3 par 1. m. 33. dorso another Ordinabimus quod juxta consilium vestrum aliorum Praelatorum Magnatum caeterorumque ibidem convocatorum viderimus opportunum In the (b) Cl. 20 E. 3. par 2. m. 22. dorso 20 of E. 3. it is thus expressed Ad consentiendum hiis quae tunc praedictos Praelatos Comites alios Proceres ordinari contigerit super negotiis antedictis and the like 46 E. 3. m. 11. dorso In the Writ 38 H. 6. m. 29. dorso it is Ad tractandum consentiendum praecludendum super praemissis aliis and 23 E. 4. Et concludendum and so in the 15th of K. Ch. the First Ad tractandum consentiendum concludendum SECT 3. Of the Summons of the Temporal Lords I Have been the longer upon these Writs of Summons to the Clergy Summons to the Lords Temporal like those to the Prelates excepting in some few Particulars because those to the Nobles differ'd not much and the material differences will be all I need note in their Writs and in these we may find the gradual alteration from giving Counsel and Advice only it came to Treaty Ordaining Consenting Doing and Concluding I shall refer the curious Reader for the remarks that may be made from all these Writs to Mr. Prynn's (c) Part 1. Briâ—f Register p. 1â—2 c. Collection of them and only note some few most to my purpose of the Earls Barons and the greater Tenents in Capite's Writs and then proceed to the Writs of the Knights Citizens and Burgesses The first Writ of Summons to a Parliament now left upon Record as (d) Ibid. p. 160. Mr. Prynn notes is that of 49. H. 3. those of the (e) Cl. 45 H. 3. m. 3. dorso 45th being only Summons to assist the King cum Equis Armis cum Posse vestro as that to W. de Bello Campo de Aumel and others shew being only to afford him aid against his Enemies and Rebels In most of the Writs to the Princes Dukes Earls Barons and Peers In Fide Homagio vel Ligeanâ—ia proper to Temporal Lords we find the Mandamus is Vobis in fide homagio quibus nobis tenemini But sometimes as to Edmund Earl of (f) Cl. 25 E. 1. m. 25. dorso Cornwal it is Mandamus in homagio fide dilectione and that to Thomas de (g) Cl. 36 E. 3. m. 42. dorso Furnival 36 E. 3. is fide ligeancia quibus nobis tenemini That to Edward Prince of Wales 49 E. 3. 6 m. dorso is directed Carissimo primogenito suo Ed. Principi Walliae and the Mandamus neither hath adjoined to it fide homagio or any other Word See Prynne's Brief Register part 1. p. 207. but only commands him to be present in propria persona though others have fide homagio or ligeancea It is to be noted that the clause in
Homagio Ligeancia quibus nobis tenemini is peculiar to the Temporal Lords But that in fide dilectione is not so peculiar to the Ecclesiastical Lords but is inserted into the Lay Lords Writs sometimes The reason why Archbishops Bishops Deans Parsons Prebends and other Ecclesiastic Bodies Politic when they do Homage saith (h) Littleton Cap. de Homagio â—ect 86. Littleton do not say Jeo deveign vostre Home I become your Man from whence Homagium or Hominium comes is (i) Par estre tant solement le home de Dieu because he is solely the Homager of God and so Glanvil Lib. 9. c. 1 2. Bracton fol. 78. F. Britton c. 68. lesta L. 3. c. 16. resolve that no Man (k) Post consecrationem hom â—gium non faciunt quiequid fecerunt ante sed tantum â—idelitatâ—m elected Bishop after Consecration doth Homage whatever he hath done before but only Fealty and no Convent or Abbat or Priâ—r ought to do Homage because they hold in anothers name viz. the name of the Churches But that these Ecclesiastics swore Fealty appears by many examples produced by Mr. Prynn (l) Brief Register part 1. fol. 196. to 206. p. 427 657 663. and what Oaths they took in his abridgment of the Records of the Tower But this is now of little use and so I leave it and shall observe some Particulars which Mr. Prynn and others have noted from the several Writs of Summons to Temporal Lords First it may be observed 1. Observations upon the Writs to Temporal Lords That it alone did not ennoble that a Summons by Writ though for two or three Generations from Father to Son did not ennoble the Blood to make them Barons So Ralph de Camois 49 H. 3. was summoned by Writ and ranked in the Roll above all Barons and Ralph his Son Anno 7 E. 2. But (m) Claus 7 R. 2. m. 32. dorso Thomas the Grandchild being chosen one of the Knights for Surry was discharged by the King 's Writ because he and many of his Ancestors were Bannerets and King Richard the Second summoned him to that very Parliament and he was summoned ever after during Life yet his Posterity as others were omitted which if they had been Barons properly as those by Creation and Tenure of Lands had not been omitted but might have challenged Summons ex debito Justiciae But I cannot enter into this long Controversy First and secondâ— Brief Register the curious may peruse Mr. Prynn and Elsyng's ancient method of holding Parliaments Page 33. who is of opinion that every degree of Baron passed with actual Ceremony and those Patents some had whereof the first upon Record he saith was 11 R. 2. to the Lord John Beauchamp of Rolt was an entailing of the Honour rather than the Creation because the words are ipsum Johannem in unum Parium Baronum Regni praeficimus whereas if he had been then created the words should have been per praesentes praefecimus Besides we find Henry Bromflet Knight was created by special Writ and his Heirs Males Barons de Vescy 27 H. 6. (n) Claus 27 H. 6. m. 26. dorso â—ntred after the names of the Temporal Lords in the very Summons in common Form to which is added Volumus enim vos haeredes vestros masculos de Corpore vestro legitime exeuntes Barones de Vescy Now this special Writ and Clause of Creation had been meerly void and nugatory had the general Writ alone ennobled him and his Posterity Yet in all the (o) Prynne part 1. Brief Register p. 228. subsequent Summons 28 29 31 33 38 H. 6. He is only called Dominus not Baro de Vescy as also may be noted of Beauchamp Secondly 2. The use of Barâ— in Writs how rare It may be observed that the word Baro and Barones are frequently met withal in Histories the Clause-Rolls of King John and H. 3. and in the Preface of Magna Charta and several Statutes applied to all the (p) Ibid. p. 218. Temporal Lords of Parliament yet in all the Clause-Rolls and Writs of Summons Mr. Prynn hat not observed any particular Persons amongst them summoned by the Title of Barons but only the Barons of Graystock and Stafford from Ed. 1. to H. 6. as Johanni Willielmo Radâ—â—pho Baroni de Graystock and so in Ed. 1. and 3. Edmundo Radulpho Baroni de Stafford Thirdly 3. Title of Dominus in Writs of Summons as to the Title of Dominus Mr. Prynn saith It is not to be found given to any but two before the time of H. 6. The first is John de (q) Cl. 16 E. 3. par 2. m. 13. dorso Moubray stiled Dominus Insulae de Axholm none else having this title till after the Reign of Richard the Second The next so stiled is 11 H. 4. (r) Cl. 11 H. 4. m. 32. dorso where a Writ issued Johanni Talbot Domino de Furnival which though omitted in some Summons after was again used in the Summons to him (s) Cl. 4 H. 5. m. 16. dorso 4 H. 5. and H. 5. after which none is found stiled Dominus till (t) Cl. 22 H. 6. m. 21. dorso 22 H. 6. that Robert Hungerford Chevalier is stiled Dom. de Mollins as he is in 25 H. 6. which gave the Title of Dom. de Poynings to Henry Percy and in Cl. 27 H. 6. m. 21. dorso this Title Dominus is given to Hungerford Percy and four more after which it grew more common to them and others summoned as may be seen in Sir William Dugdale's Summons lately Printed who (u) Cl. 49 H. 3. m. 5. 49 H. 3. reckons Dom. Hugo Dom. Humet and Dom. Stanford Fourthly 4. Title of Chevalier Another Title given to Barons of the upper House is that of Chevalier which was not given to any Temporal Lords or Barons in any Writs or Lists of Summons to Parliament before 49 Ed. 3. (w) Cl. 49 E. 3. n. 4.6 dorso 50 E. 3. part 2. m. 6. dorso wherein Summons issued Willielmo de Morle Chevalier Willielmo de Aldburgh Chevalier Joh. de Welle Chevalier Hugoni de Dacre Chevalier After which it grew more common under King Richard the Second Henry the Fourth and Fifth After the beginning of H. 6. and during the Reign of H. 6. and Ed. 4. there was scarce any Temporal Lord in the lists of Summons but was stiled Chevalier or Miles and so it continues to this day though not as Mr. Prynn saith because they were all generally Knighted for their greater Honour for it is apparent in the Lists exhibited by Sir William Dugdale that most of the Barons by descent though never Knighted had the Title Fifthly 5. Of Councils that were not Parliaments There is great difference betwixt Writs of Summons to general Parliaments and particular Councils upon emergent occasions which are not properly Parliaments All Bishops Abbats Priors Earls Lords Barons
Chancellor of the Exchequer Judges of his Courts at Westminster Justices in Eyre Justices Assignes Barons of his Exchequer Clerks Secretaries of his Council and sometimes his Serjeants at Law with such other Officers and Persons whom our Kings thought meet to summon The first Writ that Mr. Prynne finds extant in our Records and which Sir William Dugdale mentions is entred in the Clause-Roll 23 E. 1. dorso 9. directed to Gilbert de Thornton and thirty eight more whose Names are in Sir William Dugdale whereof there are eleven by the name of Magistri three Deans and two Archdeacons only I find them differently ranked in Mr. Prynne to what they are in Sir William Dugdale The Writ runs thus Rex dilecto fideâ—i suo Gilberto de Thornton salutem Quia super quibusdam arduis negotiis nos Regnum nostrum ac vos caeterosque de Concilio nostro tangentibus quae sine vestra eorum praesentia nolumus expediri c. Vobis mandamus in fide dilectione c. as in the usual Summons to the Bishops Sometimes as 25 E. 1. there (u) Cl. 25 E. 1. m. 25. dorso was no Writ directed to them but we find under the Name of Milites with a Lines space betwixt them and the Barons thirteen named which by other Records are known to be the King's Justices The differences in their Writs are mostly these Sometimes The difference in their Writs as in 27 E. 1. it is Cum caeteris de Concilio nostro habere volumus colloquium tractatum or as in 28 E. 1. (w) Cl. 28 E. 1. m. 3. dorso showing the special Cause Quia super Jure Dominio quae nobis in Regno Scotiae competit c. cum Juris peritis cum caeteris de Concilio nostro speciale colloquium habere volumus tractatum vobis mandamus c. cum caeteris de Concilio nostro super praemissis tractaturis vestrumque consilium impensuris At the same time there are Writs to the Chancellor of the University of Oxford to send four or five Persons skilful in the Law summoned from the Universities de discretioribus in Jure scripto magis expertis and to the Chancellor of the University of Cambridge to send two or three in the like manner qualified and then follow Writs to several Abbats Priors Deans and Chapters and all these Writs mentioned the Business of the King's Claim to the Jurisdiction of Scotland and in the Writs of Summons to the Archbishops Bishops Abbats Priors Temporal Lords Justices and Sheriffs of Counties that Particular is not mentioned which shows that the King summoned these particular Persons as most fit to search and â— send their Chronicles to the Parliament The Occasion and Result whereof and of sending these Lawyers from the Universities you may read at large in (x) An. 13â—2 p. 419. to p. 438. Matth. Westminster and (y) Hist Ang. p. 32. to 58. Walsingham In some Writs as that of 9 E. 2. (z) Cl. 9 E. 2. m. 20. dorso the Justices are appointed to expedite their Assizes that they may not fail to be present at the Parliament or to leave two to attend the Business of the King's Bench And the 7 of E. 2. (a) Cl. 7 E. 2. m. 25â— dorso Justices to leave the Assâ—zes to attend the Parliament That whereas they had appointed the Assizes at Duresm and other Parts in the Northern Circuit at certain days after the time the Parliament was to convene at which he wondred he orders them to put off the Assizes and attend By which two Writs it appears their Summons by Writ to attend and counsel the King in Parliament was a Supersedeas to them to take Assizes during the Parliament and that the Assizes and Suits of private Persons ought to give place to the publick Affairs of the King and Kingdom in Parliament Whoever desires to know who were summoned in this manner and the further variety of Summons may consult Mr. Prynne and Sir William Dugdale's Summons From these Writs we may observe Observations from these Writs first That sometimes the Persons summoned were many in number sometimes very few and always (b) Brief Register part 1. a p. 366. ad p. 394. more or less at the King's Pleasure Secondly in latter times the Clergy-men were wholly omitted Thirdly That they were never licensed to appear by Proxies Mr. Prynne hath collected a great many Precedents to prove that these Persons thus summoned together with the King 's ordinary Council had a very great Hand Power and Authority not only in making Ordinances Proclamations deciding all weighty Controversies regulating most publick Abuses and punishing all exorbitant Offences out of Parliament in the Star-Chamber and elsewhere The Employment of these Assistants but likewise in receiving and answering all sorts of Petitions determining and adjudging all weighty doubtful Cases and Pleas yea in making or compiling Acts Ordinances Statutes and transacting all weighty Affairs concerning the King or Kingdom even in Parliaments themselves when summoned to them Yet these have no Vote but only are to speak to such Matters as their Opinions are required in and sit uncovered unless the Chancellor or Lord Keeper give leave to the Judges to be covered SECT 6. Concerning the House of Commons I Now come to consider the Honourable House of Commons and the Use The Summons of the Knights Citizens and Burgesses Constitution and Priviledges of it and shall first consider the Summons by which they have their Power to act as an House and third Estate in Parliament Mr. (c) Second Part of Brief Register a p. 1. ad 29. Prynn hath cleared that all the Writs of Summons directed to Sheriffs in King John and Henry the Third's time before 49 H. 3. to send Knights to the King at set times were either for Information of the Council what voluntary aid each particular County would grant the King in his great necessity or to assist with Men and Arms and were not elected as Representatives of the Commons till 49 H. 3. To whom I shall refer the curious for Satisfaction as also to Dr. Brady who hath by his own Inspection as well as the considerate application of what Mr. Prynn hath amassed in his Books since his late Majesties Restauration and after 1648 composed many most useful Observations for the understanding of the ancient customs usages and practices relating to Parliaments Therefore I shall endeavour to be as short as possibly I can and without obscurity contract what they and most others that treat of the House of Commons have at large filled Volumes with The form of the Writ 49 H. 3. to the Sheriffs is not (d) Cl. 49 H. 3. m. 11â— dorso expressed but after the recital of the Writ to the Bishop of Duresm and Norwich and the eodem modo to the Bishops Abbats Priors Deans Earls Lords and Barons there follows this entry
till the 11 Rich. 2. was used and from the 12th to the last of Rich. 2. the words alterius conditionis are omitted and so in Ed. Fourth's time but the Clause that the Sheriff be not chosen is retained To these we may add That Bannerets were not to be chosen Members of the House of Commons (o) Cl. 7 R. 2. m. 32. dorso No Banneret to be chosen 7 R. 2. in the case of Thomas Camoys thus Nos advertentes quod hujusmodi Banneretti ante haec tempora Milites Comitatuum ratione alicujus Parliamenti eligi minime consueverunt ipsum de Officio Militis ad dictum Parliamentum pro Communitate Com. praedicti venturi exonerari volumus and so commands the Sheriff to chuse another In the 11 R. 2. we find a (p) Cl. 11 R. 2. m. 24. dorso new qualification in the Writ That the Knights c. should be Gladio cinctos idoneos discretos in Debatis modernis magis indifferentes A new Clause recalled but the King being informed that this new Clause indifferent in the modern Debates which only was to the Knights not to the Citizens or Burgesses was contrary to the forms of Elections anciently used and against the Liberty of the Commons he superseded and revoked that Clause by another Writ In the 5 H. 4. an unusual new (q) Cl. 5 H. 4. par 2. m. 4. dorso No Lawyers to be chosen Clause was added to the prohibition of Sheriffs Nolumus c. nec Apprenticius aâ—t aliquis alius homo ad Legem aliqualiter sit electus Concerning this and that in the 46 Ed. 3. the curious Reader may peruse Sir Ed. (r) 4 Instit. p. 10. Coke whose opinion Mr. Prynne (s) Second Part of Brief Register 124. Hist Ang. p. 414. from the Roll and from Walsingham clearly confutes however that Parliament is since called indoctum After this upon making the Statutes 7 H. 4. c. 15.11 H. 4. c. 1. upon the Commons Petition the ancient form for the Writs was somewhat altered and enlarged though little as to the qualifications but as to the manner of Elections c. of which I shall discourse by it self 23 H. 6. c. 15. (t) Cl. 25 H. 6. m. 24. dorso Only Knights Esquires or Gentlemen to be Knights of Shires a Statute was made concerning Elections of Knights therefore in the Writs of Summons 25 H. 6. it runs thus Milites notabiles seu saltem notabiles Armigeri hominesve generosi de natu eorundem Com. qui habiles sunt Milites fieri nullus homo de gradu valettae gradu inseriori de essendo Milites hujusmodi existant Having thus treated of the Ancient Qualifications The Modern Qualifications I shall subjoin the modern which are comprised in short To cause (u) Duâ—s militâ—s gladiis cinctos mâ—gis idoneos discretos Cives Burgenâ—esâ—de discretiorthus magis sufficientibus The Electors two Knights girt with Swords the most fit and discreet of the County aforesaid and of every City of that Country two Citizens of every Burrough two Burgesses of the discreeter and most sufficient to be freely and indifferently chosen c. Having thus discoursed of the Qualifications of the Persons elected before I make any remarks upon the whole it is fit to note the Electors and manner of Election Some are of opinion that as the greater and lesser Tenents in Capite after King John's Charter were the only Lay constituent Members of Parliament so the still smaller Tenents to those that held in Capite and the smaller Tenents in Capite if not they only did elect the Knights of Shires But I shall as fair as Records will give me light by particulars clear this and the power that was given them by the Community of the County to the Knights The first (w) Cl. 22 E. 1. m. 6. dorso Writ hitherto found is only That the Sheriff shall cause to be chosen two Knights and that they have power c. as I have before related in the Writ to the Sheriff of Northumberland See below the Choice in Yorkshire it is to cause two Knights to come chosen by the consent of the County and to have full power for themselves singly and the Community of the County and so likewise two Citizens and two Burgesses with the Assent of the Community of the City or Burrough The Knights were elected by the Community of the County that is as Dr. Brady makes it clear in his (x) P. 33â—34 Glossary the greater and less Tenents in Capite and as for Cities and Burroughs such were the chusers as held Lands in Free Burgage of the King or some great Lords who held in Capite Ann. 26 E. 1. (y) Bundel num 1. expresseth no more but the Election in general and the power to be given the Elected Ita quod dicti Milites plenam sufficientem potestatem pro se Communitate Com. praedict dicti Cives Burgenses pro se Comunitate Civitatum Burgorum praedictorum divisim ab ipsis tunc ibidem habeant c. Before I proceed any further Manucaptors or Pledges that Knights elected should meet in Parliament we must note that in the Returns made by the Sheriffs to these Writs there are found 26 E. 1. four Manucaptors for every person elected and in others two these did engage themselves that the Knights Citizens or Burgesses so elected should appear at the Parliament according to the time appointed In the County of Bedford I find Rich. de Rous Knight elected and no Manucaptors returned but that the Sheriff distrained eight Oxen and four Horses of him that he should come at the Day c. This was done by vertue of that Clause in the Writ eos ad nos ad praedictos diem locum venire facias and this way of having Manucaptors continued till the 12 E. 4. (z) Brief Register part 2. p. 50. though many had none in latter times Mr. Prynne observes That the Knights in every Shire were elected in the full County by and for the whole County and that the Citizens and Burgesses were then also elected per totam Communitatem In all the Writs of Richard the Second there is this Clause more fully inserted than in any before That the Election be in pleno Comitatu tuo de communi assensu ejusdem Comitatus Upon the making the Statutes 7 H. 4. c. 15. and 11 H. 4. c. 1. The Statutes for ordering Elections for regulating abuses in Elections the Writs of Summons 8 H. 4. and all his time and so (a) Cl. 1 H. 5. m. 9. 37. 1 H. 5. were accordingly altered that Proclamation should be made by the Sheriff in the next County day after the receipt of the Writ and the Knights to be chosen libere indifferenter Free Choice free and indifferently by those that were present at the
Proclamation and shall return the names of the Knights Citizens and Burgesses Return of Indentures in certain Indentures betwixt the Sheriff and those that were present at the Election whether the persons elected were present or not c. The Returns to the Writs 1 H. 5. Who were Chusers of Burgesses shew the Election to be by common assent and consent of those present as that for Lestwythiel where 32 Electors are named and that for Surry hath only four but adds omnium aliorum fidelium ibidem existentium The Indenture for Sussex is in French and saith Les Gentilles homes Communes the Gentlemen and Commons had chosen Richard Sayvile c. The Sheriff of Bristol saith Coadunatis discretioribus magis sufficientibus Burgensibus ex assensu Johannis Clive Majoris Villae praedictae aliorum plurimorum existentium eligimus c. The elected were two Burgesses of Bristol Thomas Norton and John Leycester both for Knights for the County of Bristol and Burgesses for the Villa of Bristol and in another these are called Burgenses and Mercatores The next alteration that I find is after the Statute of the (b) Cl. 23 H. 6. m. 21. dorso The Knights to be resident in the County and the Electors to have at least 40 s. a year Lands 8 H. 6. c. 7. which agrees with that of 23 H. 6. that every Knight to be chosen within the Kingdom of England to come to the Parliament shall be chosen by such as live in the County whereof every one have a free Tenement to the value of Forty Shillings per annum beyond all Reprizes and that those who are elected be abiding and resident in the said County and the Sheriff have power upon Oath to examine the Electors what yearly Estate they have and that the Sheriff incur the penalty of 100 Marks for his false return and the Knights so returned lose their Wages There are several Precepts that command that at such Elections (c) Proclamari inhiberi facias ne aliqua persona tunc ibidem armata seu modo guerrino arraiata ad electionem illam accedat Rot. Parl. 8 H. 6. m. 13. num 18. None to come in an Hostile manner to elect no person come there Armed or arrayed in Warlike manner or do nor attempt any thing that may be in disturbance of the Kings Peace or the Election as particularly is expressed in the Writs 2 E. 3. m. 31. dorso and several others to be perused in the first part of Prynne's Brief Register a p. 27. ad 28 177 214. Cl. 5 E. 2. m. 22. dorso 18 H. 6. and several other places which were prohibited that Elections thereby might be made free That it may appear that the Elections in ancient times were not made by such as we now call Freeholders of forty Shillings a Year which now is established by Statute Law I think it not amiss to insert what I find of a particular usage in Yorkshire (d) Prynne's Brevia Parliamentaria Rediviva p. 152 153 154. Atturneys of Noblemen and Ladies in Yorkshire Electors whereâ—â— it appears by the first Indentures of the Elections and Returns of Knights for the County of York that the Atturnies of the Archbishop of York and of sundry Earls Lords Nobles and some Ladies who were annual Suitors to the County Court of Yorkshire were sole Electors of the Knights as appears by the Return 13 H. 4. upon the Writ of 12 H. 4. betwixt Edm. Sandford Sheriff on the one part and Will. Holgate Attorney of Ralph Earl of Westmorland Willâ— de Kyllington Atturney of Lucy Countess of Kent Will. Hesham Atturney of Pet. Lord de Mâ—lolacu William de Burton Atturney of William Lord de Roos Rob. Evedal Atturney of Ralph Baron of Graystock William do Heston Atturney of Alex. de Metham Knight Henry de Preston Atturney of Henry de Percy Knight chuse John de Ever Knight and Robert de Plompton Knight Also 2 H. 5. The Indenture is betwixt William de Harrington Knight Sheriff of Yorkshire and Robert Maulevereâ— Atturney of Henry Archbishop of York William Fencotes Atturney of Ralph Earl of Westmorland William Archer Atturney of John Earl Marshal and so the Atturnies of Hen. le Scrop Knight Lord of Masham of Peter de Mulolacu Alexander de Metham Robert Roos of Margaret which was Wife of Henry Vavasor Knight and of Henry Percy The like are found in the Eighth and Ninth of H. 5. and the 1 2 3 5 7 H 6. in all which the Atturnies only of Nobles Barons Lords Ladies and Knights who were Suitors made the Elections of the Knights of Yorkshire in the County Court and sealed the Indenture I have a French Letter of Atturney from the Lady Ross to that purpose concerning which if God give me Life I shall give an account in my Antiquities of Yorkshire This Method ceased before 25 H. 6. at which time the Return made by Robert Vghtred Sheriff of Yorkshire hath the Names of Forty two Gentlemen most of which are of very ancient Families and such as had great Estates then and so continue to have though I doubt not but as it is the Custom now the much lesser part of those present were only inserted as Parties to the Indentures However by the Community we may understand who elected were not like the Freeholders now The next thing we are to consider in the Writs of Summons to Parliament What the Knights Citizens and Burgesses were summoned for is what the Knights Citizens and Burgesses so elected were by the Writ authorized to do The first Writ (e) Ad consulendum consentiendum pro se communitate illa hiis quae Comites Barones Proceres praedicti concorditer ordinaverint in praemissis Cl. 22. E. 1. m. 6. dorso that we find for Election of Knights of Shires expresseth their convening to be To consult and consent for themselves and the Community to those things which the Earls Barons and foresaid Nobles unanimously should ordain in the premisses and the Writ to the Sheriff of Northumberland is ad aâ—diendum faciendum quod tunc ibidem plenius injungemus to hear and do what we shall then and there fullier enjoin In the Writ 25 (f) Cl. 25 e. 1. m. 6. dorso E. 1. the King intending to confirm the great Charter and Charter of the Forrest that he might levy the eighth part of all the Goods of his Lieges for his most urgent necessity against the French convenes the Parliament before Prince Edward his Son and the Knights are to meet to receive the said Charters facturi ulterius quod per dictum Filium nostrum ibidem fuerit ordinatum to do further what should be ordained by the Prince The Writ 25 E. 1. (g) Bundel num 1. Ad faciâ—ndum quod tunc de Communi Conciliâ— ordinabitur in praemissis expresseth that the Knights Citizens and Burgesses are to do what then shall be
ordained in the Premisses by the Common Council and so the Returns are ad faciendum quod tunc ibidem ordinabitur In 17 E. 2. (h) Cl. 17 E. 2. m. 27. dorso it is enjoyned that the Knights c. be there ad faciendum consentiendum hiis quae in dicto Parliamento ordinari contigerit super negotiis antedictis Anno 21 E. 3. (i) Cl. 21 E. 3. m. 12. dorso there is some more Power granted to the Knights c. ad tractandum consulendum consentiendum hiis quae tunc favente divina Clementia contigerit ordinari Whereas before it was only to hear and do what was ordained by the King the Prince or the great Council here it is to treat consult and consent to what then should be ordained But the Writ Anno 36. (k) Cl. 36 E. 3. m. 16. dorso explains who had the ordaining Power for it runs ad consentiendum hiis quae per nos ac dictos Praelatos Magnates Proceres ordinari contigerit So here the King the Bishops and the Nobles ordain and the House of Commons are to assent Anno 47 E. 3. (l) Cl. 47 E. 3. m. 13. dorso the words are ad faciendum consentiendum eis quae tunc de Communi Concilio Regni nostri favente Domino contingant ordinari which Form is continued to this day so that according to the import of the Writ the Commons are to do and assent to what shall be ordained in Parliament by which two words I suppose they have the full Power to frame Bills and to assent which also implies a Power of Dissent to the Bills sent to them by the House of Lords Having thus drawn into one Scheme the most material Alterations and variety of Expressions from all the Writs of Summons of Mr. Prynne and others that fill so great Volumes and truly as I hope quoted all the Records which illustrate these Particulars and in a very clear Landscape represented the most material Parts of the two so noble and wisely constituted Houses from whose great Wisdom with the Sovereigns Authority and Fiat all those wholesome and necessary Laws are derived that establish this great Monarchy I shall now pass to some general Remarques and from thence to the ancient and modern Priviledges of the House of Commons First it is very obvious Kings not confined to two Knights c. that the Kings of England formerly were not confined to summon only two Knights Citizens and Burgesses as now for Anno 22 (m) Cl. 22 E. 1. m. 6. dorso E. 1. the King issued out his Writs of Summons for two Knights of every County after which follows a second Writ entred immediately after in the same Dorse for other two Knights in these words Praeter illos duos Milites eligi facias alios duos Milites legales c. So 28 E. 1. three Knights or other three de probioribus legalioribus discretioribus Liberis Hominibus c. eligi These probi legales homines were such as held in Capite So in the (n) Cl. 26 E. 3. m 14. dorso Vâ— hâ—mines ab ista occupaâ—â—one autumpâ—alibus quo minus possumus retrahamus 26 of E. 3. the King considering that it was Harvest time that he might not withdraw Men from that Employment unum tantum Militem de quolibet Comitatu ad dictum Concilium mittendum habere volumus ista vice So (o) Cl. 45 E. 3. m. 21. dorso Ordinavimus ut laboribus parâ—atur expensis 45 E. 3. the King in his Writ saith That he might spare the Labours and Expences he will have treaty with some only of the Magnates by which the Knights of Shires here are to be understood Citizens and Burgesses One Citizen and one Burgess therefore appoints one Knight for the County of Kent one Citizen for Canterbury and one for Rochester whom he names if they be alive otherwise the Companion of him that was before In 18 E. 3. the Writs issued only for two (p) Brevia Parl. rediviva p. 144. ad 147. Knights in every County and no Writ for Electing Citizens or Burgesses and 26 E. 3. the Writs are for one Knight in every County and no Citizens or Burgesses yet in (q) These things are now reduced to a certainty by the Statutes 5 R. 2. c. 4. and others Prynne's Brief Regisâ— par 2 p. 32. this the King issued out particular Writs to Mayors and Bailiffs oâ— Cities and Burroughs to elect and return one Citizen for every City and one Burgess for every Burrough Secondly That the Kings of England had a Power to supersede particular Persons being chosen to resummon those that returned without leave or appoint others in their places and omit sending Writs to some Cities and Burroughs that had formerly sent and to create new Burroughs So the Lord Camoys (r) See Brief Regist p. 118. ad 123. as I have instanced before being elected by the King 's first Writ the King by new Writ declared it null and ordered to proceed to a new Election and the King appears in that Age to be the sole Judge of void and double Elections So in the (s) Cl. 28 E. 1. m. 7. dorso 28 Ed. 1. Phillip de Geyton being chosen one of the Knights for the County of Northampton and could not attend the King orders another to be chosen So 5 (t) Cl. 5 E. 2. m. 26. dorso E. 2. because the Knights Citizens and Burgesses of Yorkshire went away for certain causes not there expressed it is probable without the Kings Leave therefore he sends his Precept to the Sheriff to cause them to return vel alios ad hoc idoneos loco eorum si ad hoc vacare non possint But this more especially is to be taken notice of when I come to discouse of Priviledges of Parliament As to the last particular of the King 's appointing new Burroughs The King makes new Burroughs impowering them by special Charters to send Citizens and Burgesses to all Parliaments to be afterwards held by the King his Heirs and Successors Judge (u) Reports p. 14 15. Hobarts hath cleared it and (w) Brief Register par 2. p. 170. Mr. Prynne hath reduce them all into Chronological Tables and he makes it a certain Note that where the Sheriff makes his Return nulli sunt Cives nec Burgenses in Com. praedict or non est alia Civitas vel Burgus or non sunt alii Burgi we may certainly conclude that every City or Burrough omitted then out of those ancient Returns and since returned for Cities or Burroughs were made Cities and Burroughs since that time as the curious may see at large in his (x) P. 223. ad 297. Brevia Parliamenta Rediviva But on the other side Old Burroughs discontinued for what reason we find many Burroughs who elected Burgesses in 26 E. 1. as particularly Pontefract and
Malton in Yorkshire had no Summons that are yet found from 26 E. 1. to 12 E. 4. Now whether this were by the King 's special Directions the Desire of the Places as not being willing to be at the Charge of paying their Burgesses Wages which were in that Age exacted or the Carelesness of the Sheriffs is a Question not easily to be determined though it is certain it might be by any of these Causes That Poverty was a principal Cause appears in the numerous Returns of the Sheriffs of Lancashire (y) Id. p. 236. when Lancaster and Preston before 33 E. 3. used to return Burgesses but from thence till after the Reign of King Edward the Fourth we find the Return to be Non est aliqua Civitas neque Burgus in Balliva mea And the Reason is given in the Return 38 E. 3. Propter eorum debilitatem seu paupertatem inopiam paupertatem or paupertatem debilitatem throughout the whole For it was anciently really reputed a great Burthen for poor and small Burroughs to send Burgesses to Parliament they being bound to defray their Charges (z) Pat. 42 E. 3. par 1. m. 8. So the Bailiffs and Commonalty of Toriton did repute it and petitioned the King in Parliament to free them from this Burthen as likewise did the Abbat of Leicester Anno 14 E. 3. the Prior of St. James without Northampton Anno 12 E. 2. by reason (a) Selden's Titles of Honour p. 730. ad 734. Coke 4. Instit p. 44 45. of their Poverty and extraordinary Expences in repairing to Parliaments to be exempted from all future Parliaments they not holding by Barony and obtained their Request So the Abbat of St. Augustine in Bristol Pat. 15 E. 3. p. 1. m. 13. Mr. Prynne (b) Brev. Parl. rediviva p. 240. owns That the King by his Letters Patents may exempt a Burrough unduely charged by the Practice of Sheriffs or others to send Men to Parliament against Right and common Usage but not (c) 15 E. 3. Stat. 2. c. 6. such as by Duty and Custom ought to send and find Burgesses Under this Head we may consider the Temporary (d) 5 R. 2. c. 4.23 H. 6. c. 15. See more at large for this Prynne's Animadversions on Sir E. Coke's Instit p. 32. Exemption of R. 2. 6 Regni to the Burgesses of Colchester for five years in consideration of the new building and fortifying their Walls yet this did not exempt them for it was against the Statute made 5 Ric. 2. (e) 5 R. 2. Parl. 2. c. 5. wherein it is expresly provided That all Persons and Commonalties which shall from henceforth have Summons to the Parliament shall come in the manner as they be bound to do and have been accustomed within this Realm of England of old time And the Sheriffs are punishable who leave out of the said Returns any Cities or Burroughs which be bound Sheriffs punishable that omâ—t summoning and of old times were wont to come to the Parliament And in (f) C. 15. 23 H. 6. it is said That divers Sheriffs of the Counties have sometimes returned none of the Knights Citizens and Burgesses lawfully chosen but such which were never duly chosen and other Citizens and Burgesses than those which by the Mayors and Bayliffs were to the said Sheriffs returned and moreover made no Precepts to the Mayors or Bayliffs for the Electing of Citizens and Burgesses to come to Parliament Which makes Mr. Prynne (g) Brev. Parl. rediv. p. 241. Sheriffs formerly took liberty what Places to send Writs to infallibly resolve that Sheriffs did before these Acts arbitrarily issue out their Precepts to what Cities and Burroughs they pleased which they might the more freely do because the Precept to them was indefinite de qualibet Civitate quolibet Burgo used in all Writs since the 23 (h) Membr 4. dorso E. 1. without designing the particular Cities or Burroughs by name By which means Sheriffs might use a kind of Arbitrary Power according as their Judgment directed them or their affections of favour partiality malice or the solicitations of any private Burrough to them or of Competitors for Citizens or Burgesses places within their County swayed them which opinion of Mr. Prynn's as also that no new Burroughs by the Kings mere Grant or the House of Commons Order can be legally created or old long discontinued Burroughs be enabled by Vote of the House of Commons to chuse and return Burgesses to our English Parliaments I shall leave to the discussionof those it may concern There was one Custom anciently used which was taken away by the Statute of the 36 H. 6. Knights Citizens and Burgesses elected at the County-Court the same day that in many Counties the Knights Citizens and Burgesses were elected on the same day in their County Courts by the Suitors or others resorting to it or by four or five Citizens and Burgesses only whereof the Mayor Bayliffs or chief Officer was usually one sent from every City and Burrough to the County Court there to elect their Citizens and Burgesses so soon as the Knights were chosen returning them often in one (i) Brev. Parl. rediv. p. 176. Indenture or the Knights alone and the Citizens and Burgesses in another under the Seals of the Citizens and Burgesses electing them as appears by the Indenture for Cumberland 2 H 5. and that of Kent 12 H. 4. of Wilts 1 H. 5. and Bedford 2 H. 5. Before I dismiss this head I shall note out of the great (k) Ibid. p. 223. Collections of Mr. Prynne How many Cities and Burroughs anciently that the total number of the Cities Burroughs and Ports either summoned by the Sheriffs Precepts or Writs to Elect and Return or actually electing and returning Citizens Burgesses or Barons of the Cinque Ports from King Edward the First 's Reign to the end of Edward the Fourth were but a Hundred and Seventy and no more whereof Seven never sent after E. 1st's time and Twenty of them but once during these Kings Reigns and Thirteen of our Abbats and Twenty Seven of our Priors were summoned to our Parliaments but once and several Burroughs but twice thrice four or five or six times all the whole time else being omitted and as some were thus neglected New Burroughs erected in several Kings Reigns so new ones supplied the number In Edward the Second's time Nineteen new Burroughs being added and as many in Edward the Third's time During the Reignâ— of Richard the Second Henry the Fourth and Fifth no new Burroughs created at all and during the Forty Nine Years Reign of Henry the Sixth but Five new Burroughs and in Edward the Fourth's time but one He saith that Fourteen new Burroughs have been made in Cornwal since K. Ed. 4. (l) Idem 230. By which is discovered the Error of the Compiler of the absurd gross late Imposture Intituled Modus tenendi Parliamentum so magnified
with the Ensigns of their Offices some of the Nobles being appointed to carry the Sword and the Cap of Maintenance Three great Gilt Maces are carried See for this more fully Elsyng's Method of holding Parliaments p. 86. and all the Heralds attend in their Cloth of Gold Coats The two Archbishops and Bishops in their Robes sit upon Benches next the Wall on the Right-hand and the rest of the Great Officers that stand not by the State and all the Nobility in order upon the Bench on the Left-hand or on the Forms that stand in the middle where also sit the Judges Master of the Rolls Secretaries of State twelve Masters of Chancery Atturney General Solicitor General and Clerk of the Crown and the other Clerks Assistants which it is not my business exactly to describe The King being Seated when it 's his pleasure Leave given to the Commons to chuse their Speaker the House of Commons are sent for who standing bare at the Lords Bar attend the King's Speech and the Chancellor's and then have leave to chuse their Speaker whom commonly some of the Members of the House that are of the King's Privy-Council propose and if any one oppose it (u) Hackwel p. 127. he is to name another But I shall refer the curious to Mr. Elsyng and others that treat of this at large Sir Edward Coke (w) 4. Instit p. 8. saith That though the Commons are to chuse their Speaker yet seeing that after their choice the King may refuse him for avoiding expence of time and contestating about it the use is as in the Conge de eslier of a Bishop that the King by some of his Privy-Council as in this present Parliament was done by the Earl of Middleton on of his Majesty's Principal Secretaries doth name a discreet and learned Man whom the Commons elect for without their Election no Speaker can be appointed for them because he is their Mouth and trusted by them and so necessary as the House of Commons cannot sit without him So that if he be totally disabled by grievous Sickness another must be chosen in his place as he instanceth in Sir John Cheney 1 H. 4. and Sir John Tirrel Whether the two Houses sate together 15 H. 6. But whereas (x) 4. Instit c. 1. sect 2. he affirms that in antient time the two Houses sate together and the surest mark of the time of the division of them was when the House of Commons had a continual Speaker Mr. Prynne (y) P. 8 9. in his Animadversions hath made the contrary very clear by several Records wherein it 's expresly said they consulted apart as particularly in 6 E. 3. (z) Et les Chivalers des Countez Gents du Communs par eux mesmes Rot. Parl. 6 E. 3. num 6. at York the Prelates Earls Barons and great Men by themselves and the Knights of the Counties and the People of the Commons by themselves treated of the Business propounded to them Another (a) Freeholders Grand Inquest p. 19. saith That if Sir Edward means the Lords and Commons did sit and vote together in one Body few will believe it because the Commons never were wont to lose or forgo any of their Liberties or Priviledges and for them to stand now bare where they were used to sit and vote upon this Supposal is an alteration not imaginable to be indured by them and when we consider the sole Power of Judicature in the Lords and who the Burgesses were in old times it still makes it more improbable and it is to me a very remarkable thing that neither in History or Record any thing is to be found that will clear this doubt However it is certain that (b) Rot. Parl. 50 E. 3. num 8. 50 and 51 E. 3. the Commons had a Speaker and Sir Edward Coke (c) Coke Instit 4. p. 255. saith that the accustomed (d) Ancient Place saith Elsyng p. 84. place of that thrice worthy Assembly of the Knights Citizens and Burgesses of Parliament when held in Westminster was in the Chapter-house of the Abbat of Westminster and it continued so till the Statute of 1 Ed. 6. c. 14. which gave the King Colleges free Chappels c. whereby the King enjoyed the beautiful free Chappel of St. Stephen founded by King Stephen which had Lands and Revenues of the old yearly value of 1089 Pound ten Shillings five Pence since which time the Chappel thereof hath served for the House of Commons when Parliaments have been held at Westminster As Sir Edward Coke because he believed the two Houses sate together will not allow them to have had a Speaker before 50 E. 3. so on the other hand Mr. (e) Id. p. 123. Elsyng saith That the Commons ever had a Speaker none will doubt for their Consultation apart from the Lords though he thinks they often met and did sit together in one Room and then a Speaker was necessary to avoid Confusion of Speech and Argument But he brings no better Argument for it (f) Lib. Sti. Albani Bibl. Cotton fol. 207. than that Petrus de Mountfort (g) It should be 42 H. 3. That Peter Mountfort was not Speaker of the Commons House 44 H. 3. signed the Letter to Pope Alexander touching the recalling of Adomar elect Bishop of Winchester from Banishment Wherein they say if the King and the Regni Majores hoc volent Communitas tamâ—n ipsius in Angliam jam nullatenus sustineret and this was sealed by all the Lords and by Peter de Mountford vice totius Communitatis which he saith sheweth plainly they had a Speaker In answer to which I suppose it a great mistake to say that Petrus de Mountfort signed the Letter vice Communitatis which either ignorantly or willfully is Printed in Mr. Elsyng Comitatus for (h) Additament Math. Paris 1132 1133. Anno Dom. 1258. 42 H. 3. ult Edit Matthew Paris who relates the whole Story saith it was signed by ten Persons who were all great Barons vice totius Communitatis and the Preface of the Letter shews it was Communitas Comitum Procerum Magnatum aliorumque Regni Angliae and this aliorum can mean only the Milites which held by Military Service of the great Barons and the lesser Tenents in Capite which were no Representatives of the Commons as our Knights Citizens and Burgesses at this day are and the Inscription of the Popes Letter shews who he understood this Communitas to be when he superscribes it dilectis Filiis Nobilibus viris Consiliariis clarissimi in Christo Filii nostri illustris Regis Angliae ac caeteris Proceribus Magnatibus Regni Angliae Now the Persons that subscribed this are thus ranked by Matthew Paris R. de Clare Gloverniae Herefordiae S. de Monteforti Legriae E. Bigod Marescallus Angliae H. de Bohun Hertfordiae Essex W. Albemarle J. de Placeto Warewici Comitis H. Bigod Justiciarius Angliae P.
Council being in the Charter to my judgment reckoned as one of their Franchises or rather something exceeding their municipal Liberties and Free Customs being coupled to them with an and to have a Priviledge to have some of them Members of the great Council of the Kingdom What the Tenents in Capite were summoned for for so I think the words ad habendum commune Concilium Regni de Auxiliis must be understood But then when it is restricted there with de Auxiliis only it may very well give a ground to their opinion that think the principal use was to proportion the Aid or Tax and assent to what the King the Bishops Abbats Priors Earls Barons and Peers did ordain However this was That such great Numbers sate not with the Lords it seems clear to me that this numerous body of so different an Order from the Barons majores must have a distinct Place for consulting apart and must select Committees to transact with the King and Lords and must for order sake appoint some to speak for them what they petitioned for or assented to and could not constantly sit with the Prelates and Lords and do rather believe that the Prelates had one place where they sate and the Barons another and these Tenents in Capite a third at least for their usual Consultations among their own Order and met in the public place when there was occasion or might have access by Committees which certainly was the practice in after-times as appears in that Parliament of 6 E. 3. (k) Rot. Parl. 6 E. 3. num 2. Cest assavoir les Prelâ—â—z par eux meâ—mes les ditz Countes Barouns autres Grantz par eux mesmes auxint les Chivalers des Countes par eux mesmes No mention of Citizens or Burgesses the morrow after the Nativity of our Lady the King requiring the advice of his Parliament touching his French Affairs and Voyage thither It is said they thereupon treated and deliberated that is to say the Prelates by themselves and the said Earls Barons and other great men by themselves and also the Knights of the Counties by themselves and then gave their advice From whence by the way we may observe the true ground of calling our Parliament Houses without the King the three Estates Having dispatched this I come now to consider the Speakers of the House of Commons Hackwel (l) Modâ—â— tenendi p. 200. Method of Parl. 124. The first Speaker upon Record and Elsyng name the first that is found upon Record to be Sir William Trussel 13 E. 3. Num. 9. where it is said Les Chivalers des Countes les Commons responderent per Monsieur William Trussel but the Record names him not Speaker however he performed that Office then Hackwel names Scroope before him 6 E. 3. and Sir Peter de la Mare after him but the first that Mr. Elsyng or Mr. Prynne (m) Prynne's Abridgment p. 151. finds upon Record and by the name of Speaker is Sir Thomas Hungerford 51 E. 3. for it is said that the last day of the Parliament he declared that during the Parliament he had generally moved the King to pardon all such as were in the last Parliament unjustly convicted which imports that this was a Petition of the Commons presented by him their Speaker Anno 1 R. 2. Sir Peter de la Mare being Speaker made his Protestation that what he had to say was from the whole House therefore required if he should speak any thing haply without their consents that the same ought to be amended before his departure from the said place The first Petition we meet with that a Speaker (n) Abridgment of Records p. 174. Petition for Freedom of Speech made to the King from the Commons was 2 R. 2. by Sir James Pickering their Speaker that if he should speak any thing that haply might be ill taken it might be as nothing so as the Commons might at any time amend the same and the like he petitioned for himself which is the first Petition as to Liberty of Speech we meet with The first Speaker presented to the King in full (o) Id. p. 360. Parliament by the Commons 20 Ric. 2. was Sir John Bushey the King 's great Favourite In this Parliament the Houses sate together in a long (p) Hackwel Moâ—us p. 202. House built of Timber in the Palace-Yard at the Impeachment of the Duke of Gloucester the Earls of Arundel and Warwick Sir Arnold Savage was Speaker 2 H. 4. who is the first upon Record that the Commons were required by the King to chuse as Speaker and he was again in 5 H. 4. who desired the King in the name of the Commons that they might freely make complaint of any thing amiss in Government which was yielded to by the King Anno 7 H. 4. Sir John Tiptost was chosen Speaker who desired to be discharged because of his Youth but he was allowed he forgot to make the usual Protestation but came up the next day and made it with this Addition (q) Rot. Parl. 7 H. 4. num 6. That if any Writing were delivered by the Commons in this Parliament and they should desire to have it again to amend any thing therein it might be restored to them which was granted While he was Speaker he Signed and Sealed the Deeds of the entailing of the Crown on H. 4. (r) 7 H. 4. with these words Nomine totius Communitatis He was a Person of extraordinary Parts Son of John Lord Tiptost and for all the Apology for his young Age he was within three Years after made Lord Treasurer of Enggland and by H. 6. made Marquess of Worcester Anno 1 H. 5. William Sturton Esquire was chosen Speaker who without the assent of his Companions did agree before the King to deliver in Parliament certain Articles but three days after the Commons sent Sir John Doreword (r) 7 H. 4. with several of their Members to the House of Lords to declare to the King that their Speaker had no Authority from them to yield thereto and the King was pleased to accept of it There are three Petitions the approved Speaker makes to the King First That the Commons may have freedom of Speech as of (s) 25 H. 1. num 10. The Speakers of latter Times express the particular Privilege of Freedom from Arrest right and custom they have had and all their ancient and just Privileges and Liberties allowed them In Sir Thomas Moor's Speech 14 H. 8. it was thus worded 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 upon Record which was granted only I find that H. 4. (t) Rot. Parl. H. 4. num 10. said that the hoped or doubted not that the Members of Parliament would not speak any unfitting thing or abuse
expiration of their Protection if the House will not call them to an account should not only lose the Favour of their Prince but should be punished for Sedition as far as by Law is allowed as well as they are liable to other proceedings in Law It becomes therefore all lovers of the excellent Constitution of Parliaments to be very wary in this point lest as Mr. Justice Hutton said in another Case Things being carried disastrously by some Members Ambition may bring such a distast against the course of Parliaments as we and all that love the Commonwealth have just cause to be sorry for it SECT 9. Of the Privilege from Arrests ALthough the Speakers formerly petitioned only That all their Ancient and Just Privileges and Liberties be allowed them yet we (z) Hackwell Catal. 213 215. Elsyng p. 137 138. This Privilege petitioned for by the Speaker find that Sir Tho. Gargrave Sir Tho. Richardson Sir Thomas Crew Sir Heneage Finch and all later Speakers have expressed this Privilege particularly that for better attending the Publick and Importunate Service of the House themselves and their necessary Attendants may be free both in Person and Goods from all Arrests and trouble according to our Ancient Priviledges and Immunities which Sir Tho. Gargrave 1 Eliz. is said first to make the first of any This indeed is one of the ancientest Privileges the House of Commons may claim and Mr. Prynne labours to prove it the only Privilege properly so to be called and Sir Edward (a) 4. Instit p. 24. Coke mentions no other The first thing that appears upon Record is the Petition of (b) Petitiones coram Domino Rege ad Parliam c. 18 E. 1. Rot. 7. Thesaur Recept Sâ—accarii The first Grant of Freedom from Arrest the Master of the Temple in which he desires Quod habeat licentiam distringendi tempore Parliamenti to which the King answers thus Non videtur honestum quod Rex concedat quod illi de Concilio suo distringantur tempore Parliamenti set alio tempore distringat per hostia fenestras ut moris est that is The Master petitions that he may have power to distrein for Rent in time of Parliament to which the King answers That it seems not honest that the King should grant that they of his Council should be distrained in time of Parliament but that he may distrain at another time by the Door and Windows as the Custom was Mr. (c) P. 478. ad 483.625 to 699.817 to 869.989.1213 to 1220. How Mr. Prynne qualifies this Privilege Prynne in his Fourth Part of his brief Register would have the Privilege to be Personal and so to necessary Servants attending and but to take place the first day he is a Member after he hath taken the Oath and not to extend to Chancery Suits and I know not how many diminutions of this Privilege so I shall only recommend the Inquisitive Reader to his Collections and for the full enumeration of all Cases that have been determined by the House of Commons to (d) Memorial p. 88. ad 116. Mr. Hackwel who hath collected all Modern Precedents it being a Book very useful to understand the modern usage of the House of Commons in passing Bills and other necessary points that such as are not versed in the practice of may find very beneficial to them and shall add upon this Head the Summary of King Edward the Second's Writ to the Sheriff of Yorkshire to take Pledges of Walter Fleming of York and three others to appear the next Easter Term to show why they Arrested the Prior Malton returning from the Parliament at Lincoln to his Priory How the King is obliged to protect the Members from Arrests whenas the King ought to protect and defend the Members of Parliament in their coming to staying there and returning from the Parliament the words are Cum ad Parliamenta in quibus tam nostri quam Regni nostri negotia debent pertractari Praelatos Comites Barones alios tam Clericos quam Laicos per quorum industriam super negotio hujusmodi Consilium salubrius poterit adhiberi ad mandata nostra vocatos comparentes in veniendo ad eadem Parliamenta ibidem morando exinde redeundo ab omnimodis injuâ—iis oppressionibus gravaminibus nos oportet protegere tueri How grounded upon Edward the Confessor's Law This Privilege seems to be grounded upon King (e) Hoveden Annal. pars poster p. 601. Lambard Archaion Spelman Conc. tom 1. p. 689. Edward the Confessor's Laws properly applicable to Liberty to attend Divine Worship Synods and Chapter-meetings the words are Si quispiam devote ad celebrationem Sancti pacem habeat eundo subsistendo redeundo item omnibus ad Ecclesiam causa Orationis euntibus pax in eundo redeundo sit eis similiter ad Synodum ad Capitula venientibus The curious may see more in the Leges Saxonicae Sect. 9. and in Frederick (f) Cod. ex Legum Antiq. p. 475. Lindebrogus It is to be noted that this as all other Privileges in from the Kings Grant Fol. 60. This Privilege of the King's Grant as Dyer is express in his Argument on this Case That the person of every such Member ought to be privileged from Arrest at the Suit of any private Person during the time that he is busied about the Affairs of the King and the Realm and this (g) Et tiâ—l Privilege ad estre touts foits grant per le Roy a ses Commoners al Request del Prolocutor del Parlement le primer jour Privilege is always granted by the King to his Commons at the Request of the Speaker of Parliament the first day and those that had the benefit of this Privilege obtained it by a Writ of Privilege issuing out of Chancery but of late it is done by the Houses verbal Order Serjeant or Mace without any Writ of Privilege Habeas Corpus previous complaint Petition to or Order from the King and Lords as in former times against which usage Mr. Prynne makes loud Complaints The first Precedent Mr. Prynne or others can discover being that of Mr. Ferrers recited at large in (h) Hist p. 1584.33 H. 8. Mr. Ferrers Case the first when the Commons had liberty to punish the Breakers of this Privilege Holingshed which in short is this Mr. George Ferrers being the Kings Servant and Burgess for Plymouth was Arrested by a Process out of the Kings Bench carried to the Counter Byorder of the House the Serjeant of the Parliament was sent to demand delivery but was forceably resisted and the Crown of the Mace of Arms was beaten off in defending the Serjeant This being declared to the House of whom there were not a few as well of the Kings Privy Council as also of his Privy Chamber they would sit no longer without their Burgess but retired to the Upper House where the whole Case was declared by Sir
Thomas Moile their Speaker before Sir Thomas Audley Lord Chancellor and all the Lords and Judges there assembled judging the contempt to be very great referred the punishment thereof to the Order of the Commons House The Lord Chancellor offered to grant them a Writ to the Sheriffs of London to require delivery which the House refused being clear in opinion that all Commandments and other Acts proceeding from the nether House were to be done and executed by their Serjeant without Writ only by shew of his Mace which was his Warrant The House applying it self to the Lords who were saith Mr. Prynne (i) Brief Register part 4. p. 860. the ancient proper Judges of the Violations and Violators of the Commons Privileges was the right Parliamentary way for their Members Release and if they had applied themselves to them at first they had prevented all Affronts to (k) Id. p. 862 863. themselves and Officers and met with no opposition And Mr. Prynne humbly apprehends that this Precedent will not warrant an absolute Jurisdiction in the House of Commons without any antecedent Complaint or (l) See Freeholders Grand Inquest from p. 50. to 64. Petition to the King or Lords in Parliament to punish any breach of their Members Privileges not first complained of to Application to be made to the King and Lords for punishment of Violators of this Privilege and adjudged by the King or Lords to be an actual breach or referred to themselves by the Lords or King to punish or without their subsequent Ratification or that it will justifie the Enlargement of any of their Members or menial Servants out of Execution by their Mace alone without an Habeas Corpus Writ of Privilege or special Act of Parliament or matter of Record for the Sheriff or Officers Indemnity against Actions of Escape or for the Plaintiffs relief to recover his Debt by a second Execution for the proof of all this I must refer the inquisitive Reader to Mr. Prynne's (m) Sect. 10. a p. 622. ad 870. Fourth Part of his Brief Register wherein he hath largely examined most of the then claimed Privileges of the House of Commons and disallows of them when not judged by the King and Lords In which Controversie I shall not presume to write any thing because it will be more pleasant and satisfactory to have recourse to himself SECT 10. Concerning Regulating Elections THE first thing I find concerning new Elections in the place of Absents and Defaulters is in the 5 E. 2. Cl. 5 E. 2. m. 26. dorso as I have touched before divers Knights Citizens and Burgesses departing from the Parliament the King thereupon issued out Writs to several Sheriffs to summon them to return to the Parliament Vel alios ad hoc idoneos loco ipsorum sâ— ad hoc vâ—care non possunt eligere or to chuse other fit persons in their places if they cannot be at leisure to come up The Commons in this Age medled not with the re-summoning or causing new ones to be Elected in the rooms of those that could not come I have before instanced in several Summons The King anciently only ordered new Elections wherein the Kings ordain the Sheriffs to re-summon the Members of former Parliaments or others for those who were dead or unable and sometimes but one of those By which it appears that in those days the King solely Authorized new Elections where any were dead or disabled The first Petition against an undue Election First Petition against undue Elections Prynne 's Brevia Parl. râ—â—iviva p. 286. A nosâ—re tres excellâ—nt tres gracious Seignior nostre Seignior le Roy les â—res nobles Seigniors Sâ—ges Comuns c. pleignont les Major c. that I have met with is Anno 7 R. 2. from the Mayor Bailiffs and Commons of Shaftsbury To our thrice Excellent and thrice Gracious Lord our Lord the King and the thrice noble Lords and sage Commons of this present Parliament That whereas they had chosen Walter Henly and Thomas Steward the Sheriff of Dorsetshire for the last had returned Thomas Camel to the great dammage of our Lord the King and contrary to the Will of the Mayor c. So that here the Complaint is to the King the Lords and Commons jointly and the name of this Camel is not endorsed returned in the Writ but the other two In all the Statutes made for regulating Elections they run See Freeholders Grand Inquest p. 15 16. The King willeth and commandeth 5 Ric. 2. c. 4. Our Lord the King at the grievous complaint of the Commons hath ordained 7 H. 4. c. 15. and so Our Lord the King ordained 11 H. 4. c. 1.5 H. 5. and such like in all the Statutes to 8 H. 6. So in the Statute 5 R. 2. Par. 2. c. 4. All Persons which shall from henceforth receive the Summons of Parliament Prynne's Plea for Lords p. 393. and come not at the said Summons except he may reasonably and honestly excuse himself to our Soveraign Lord the King shall be amerced and otherwise punished as of old time c. So that here the Excuse is to be made to the King so that it was not then in use for the Commons to fine and tax their Members In the Parliament holden at Westminster 5 H. 4. Id. 391. Rot. Parl. 5 H. 4. num 38. because the Writ of Summons of Parliament returned by the Sheriff of Rutland was not sufficiently or duly returned as the Commons conceived the said Commons prayed our Lord the King The Commons petition the King and Lords to examine and order undue Returns and the Lords in Parliament that this matter may be duly examined in Parliament c. Whereupon our Lord the King in full Parliament commanded the Lords in Parliament to examine the said matter and to do thereupon as to them should seem best in their Discretions So the Lords called before them the Sheriffs and Parties and it was agreed by the said Lords that the Sheriff should amend his Return and the Sheriff for his default should be discharged of his Office and committed Prisoner to the Fleet and make Fine and Ransom at the King's pleasure Upon this and other Precedents Mr. Id. p. 364 365. Mr. Prynne's Opinion Prynne saith That no Statute doth give the Commons House the least Power or Authority to judg or determine the Legality or Illegality of any Elections but leaves this to the King and Lords to redress as at first before their making and gives the Knights duly chosen but not returned a hundred Pound Damages against the Sheriffs and Citizens and Burgesses forty Pound against Mayors and Bailiffs who make false Returns by way of Action of Debt in the Kings Courts at Westminster or in the Star-Chamber when in being or before the King Lords and Council as in Bronker's case Dyer fol. 113 168. Plowden fol. 118. to 131. Old Book of
puts an end to the Sessions so that what ever Bills are ready and pass not the Royal Assent must be again read three times in either House for the more security it is usual to insert a Proviso That the Session is not thereby concluded The Royal Assent is given two ways First Royal Assent by Patent by Commission since the Statute of the 33 H. 8. c. 21. wherein it is expressed That the Kings Royal Assent by his Letters Patents under the Great Seal Signed by his hand and declared and notified in his absence to the Lords Spiritual and Temporal and to the Commons Assembled in the higher House is and ever was of as good strengh and force as if the King had been there personally present and assented openly and publickly to the same The manner of the King 's giving his Publick Assent is in this manner The King cometh in Person in his Parliament-Robes Royal Assent when the King present and sitteth in his State and the Upper House sit in their Robes The Speaker with all the Commons House cometh to the Bar of the Lords House and in Sir Thomas Smith's time Sir Th. Smith's Commonwealth p. 45. Speeches used to be made there the Chancellor for the Lords and the Speaker for the Commons in set Speeches returned the Prince Thanks for that he hath so great Care of the good Government of his People and for calling them together to advise of such things as should be for the Reformation Establishing and Ornament of the Commonweal After which the Chancellor in the Prince's Name giveth Thanks to the Lords and Commons for their Pains and Travel taken which he saith the Prince will remember and recompense when Time and Occasion shall serve and that the Prince is ready to declare his Pleasure concerning their Proceedings whereby the same may have perfect Life and Accomplishment by his Princely Authority I think now mostly Hackwell of Passing of Bills p. 181 182. the Speaker of the House of Commons makes a Speech acquainting the King with the purport of the Bills Then the Clerk of the Crown readeth the Title of the Bills in such Order as they are in Consequence After the Title of every Bill is read singly The Clerk of the Crown pronounceth the Royal Assent or Dissent the Clerk of the Parliament pronounceth the Royal Assent according to certain Instructions given from his Majesty in that behalf If it be a Publick Bill to which the King assenteth the Answer is Le Roy le veult The King willeth If a Private Bill allowed by the King the Answer is Soit fait comme il est desire Let it be done as it is desired And upon a Petitionary Bill the like is used If it be a Publick Bill which the King forbeareth to allow he saith Le Roy se avisera The King will advise To a Subsidy Bill the Clerk pronounceth Le Roy remercie ses loyaux Subjects accepte leur Benevolence aussi le veult The King thanks his Loyal Subjects accepts their Benevolence and also willeth To a general Pardon is pronounced Les Prelates Seigneurs Communs en cest Parlement assembles au nom de touts vous autres Subjects remercient tres humblement vostre Majesty prient Dieu vous donner en sante bone vie longe The Prelates Lords and Commons in this Parliament assembled in the name of all your other Subjects thrice humbly give thanks to your Majesty and pray God to give you in health a good Life and long These P. 46. saith Sir Thomas Smith be taken now as perfect Laws and Ordinances of the Realm of England and none other and as shortly as may be are printed except it be some Private Acts made for the Benefit or Prejudice of some Private Man these be only exemplified under the Seal of the Parliament CHAP. XXIX Of Factious Combinations in Parliaments I Hope in the foregoing Chapters I have so explained the Constitution of Parliaments and the Legislative Power that unbiassed and unprejudiced Persons will no more be misled by the Sophisms and plausible pretences which to aggrandize the Power of the two Houses at first and after of the Commons House only the Penmen of the long Parliament made use of yet because many of late were furbishing the rusty Armour of their Demagogues and trimming their Helmets with fresh Plumes I conceive it necessary to take notice of some of their chiefest Arguments and examine those which had greatest Influence upon the People The great and venerable name of Parliament and its Authority was constantly used as Shield and Buckler to ward off all the Force of the Loyal Assaults and Mr. Prynne writ a large Volume which he stiled The Soveraign Power of Parliaments and when the very Lees and Dregs of the Commons House was put in Ferment that very Kilderkin would admit no lower Stile than the supreme Authority of the Nation to be pearched on its Bunghole Therefore to disabuse the less considerate The various Acceptation of the word Parliament and to detect the Frauds of those which under that great Name applyed whatever they met with in the Laws or History to the House of Commons I think it necessary in the first place to clear the acceptation of the Word Appropriated to the Lords House Sometimes the word Parliament is used for the House of (a) Egerton sect 4. 22 23. Lords only as when upon Writ of Error any Judgment in the King's-Bench is examined in the House of Lords the Judgment is said to be affirmed or reversed by Parliament The Appellation of Parliament is likewise used for the two Houses To both the Houses in regard they are the gross Body whereof the Parliament consists there only wanting the Sovereign Head to compleat it But they are so far from being the High Court of Parliament that they cannot co-unite to be an entire Court either of Sovereign or Ministerial Justice but only in concurring in Votes in their several Houses for preparing of matters in order to an act of all the Body which when they have done their Votes are so far from having any legal Authority in the State as in Law there is no Stile or Form of their joynt Acts further than Bills nor doth the Law so much as take notice of them till they have Royal Assent without which the Votes of the two Houses dye in the Womb like an Embryo So that the proper use of the word Parliament How properly the High Court of Parliament as Authority of Law-making is annexed to the name is only when the King and the two Houses concurr in one Act and in that sence only is the Parliament the Supream Court the highest Judicatory and the most Sovereign Power Not for any Soveraignty in the two Houses and from them transferred to the King by their joining and consenting with him but because every compleat and perfect Act of it is the Act of
and after by himself and his mock-Representatives by Councils of State and Safety and such new Names and Powers as our Laws never heard of and all this under pretence that they Acted by the Peoples Authority and suffrage and all the sad Devastations of that Age resulted from the confiding so much in the pretended Representatives of the People Which (a) England's Universal Distraction p. 4. one some Years before the sad Catastrophe plainly foretold tho' like belief was given to him as of old to Cassandra His Words are That the so much exalting the Power of the Representatives was first to destroy the King by the Parliament and next the Parliament and Kingdom by the People Thus ignorant Politicians that build upon such Quick-sands soon live to see their Insanae Structurae ruinously fall about their Ears Thirdly Whereas the Advocates for the Representatives would gladly have possessed the People that they could rely upon none so securely and safely as upon those they had themselves chosen they being less subject to private ends and affections than any particular man such a Body being not likely to counsel or consent to any thing but what is publickly advantageous It is to be considered that it is a false Postulatum Such a Body being but an Aggregate of particulars may have as many private ends as any other number of Subjects it being well known that Communities themselves are subject to dangerous Inclinations from private Incitements and I the Representatives subject to misleading Factions and Ambitions of private Men and by coalition of Parties when they fall into designs they are most dangerous and fatally violent and tho' it may at first View seem to be repugnant that an Universality should have private ends yet seeing it is not the number of Agents but the capacity in which they act and the quality of the Actors and the coherence or incoherence of what they pursue with the publick end and weal which makes the Actions of men public or private It must needs follow That if without Authority or out of the way of Public Ordinances men pursue any thing though the whole Community concur in the pursuit yet it is all of the nature of a private Action and done to a corrupt and private end Because the Author of some Observations upon some of K. Charles the 1st Messages was reputed the great Champion of the two Houses I shall content my self with culling out some of the daringest assertions Why Reason and Law were not hearkned to by the Advocates of the Long Parliament he and some other of their Triarii used and apply such of those Answers and Reasonings as the Learned and Loyal offered then against them though they could not be heard while the Torrent bore all down the stream The hideous noise of Tumults and after of Drums Trumpets Cannons and Fire-Arms hushed and silenced all the still voice of Law and Reason But now it is to be hoped when Mens Eyes are unsealed the Mask and Vizard dropped or pulled off the fatal Consequences of such pernicious Principles throughly manifested and the loud Thunder of the Two Houses Ordinance allayed mens Spirits will be better fitted to hear them refuted Besides what I have endeavoured to answer before concerning the Authority of the Representative which they would make an Assembly in which the People in underived Majesty are by these Proxies convened to affirm an Imaginary Power supposed to be theirs originally and in such a convention to be put in execution I say besides this which in several places I have refuted That filled all their Declarations Messages and Treatises when they were contriving the setting up the Commons House Topmost to prove That they were a Body that was not easily corrupted byassed tempted or prevailed upon to Act any thing but what was the best for the Peoples advantage Therefore I think fit in many particulars to shew how such Bodies may be warped to sinister ends and especially how that House not only deceived but tyrannized over the whole Nation Private (b) Answer to Observer p. 130 131. How Passions Affections Interests and Factions may sway Representatives Quarrels and the memory of former Sufferings may work upon some discontent and envy at other mens preferment may transport others the fear of the lash and desire to secure themselves have forced some to personate a part great Offices and Honours have been a Pearl in some Mens Eyes to hinder their Fight others have been like Organ Pipes to whom the wind of popular Applause hath only given a sound others who have premeditated their Parts before their design was discovered have upon some pretences or other suppose of an unlawful Election being Monopolists Abhorrers or such like got those excluded by Vote whom they conceived to be likely to oppose their designs The bewitching Power of Oratory prevails upon many In others there is a Speechless Humour of following the Drove The Ambition and Covetousness of Representatives Can we not easily conceive several of this Body may be ambitious which would prompt them to alter the old way of bestowing Offices and collating of Honours so by disservice as well as service in Parliaments some Men have obtained Honours Offices and Estates finding it a good way to get preferment by putting the King upon necessity of granting Good Woodmen say That some have used Deer-stealing as an Introduction to a Keepers place So we have seen a Non-conformist's mouth stopped I might instance in other Professions with a good Benefice whereas before he was satisfied he could gape as wide as his Neighbours Others by more only ways slip into Preferment for Covetousness and Ambition will sail with any Wind. The Covetousness of the Members of the long Parliament by woful experience was found insatiable witness their Voting for one anothers Offices Governments satisfaction for their losses out of Delinquents Estates sharing the Kings Lands and Revenue the Bishops Deans and Chapters Lands and the Estates of the Royal Party hence together with the itch of Arbitrary rule they drew the determination of Causes out of the ordinary Courts of Justice before their Houses and Committees of them and in every County had their Sub-committees to Tyrannize over the People and fleece them Their cruelty appeared in their erecting High Courts of Justice Major Generals and other Arbitrary Courts The Cruelty of the Long Parliament where many a Loyal and brave man for serving his King against such Rebels either lost his Life or his Liberty and Estate and when they were the gentlest yet they could show hatred enough by Imprisoning upon I know not what suspicion and at leasure prosecuting such as they had a pique against The partiality of Members in such Conventions are very frequent The Partiality in shielding their friends from being questioned though their Corruptions were notorious to all the World So in the fatal Parliament of 1641. A Monopolist if a Loyal man was sure to be
expelled the House but if a favourer of the Cause he was never recriminated with that or any other by-past or present ill disposition In such Assemblies there often happen one sort of People who are always representing grievances complaining of Male-administration troubling the Church and State shaking up the Lees and Dregs in the richest Vessel of Wine these have learned to catch Eels Tacitus notes the corruptions of the Roman Senate The Corruptness of the Roman Senate which necessitated the change of that State into a Monarchy under Augustus fully significantly and concisely after his manner Suspecto Senatus Populique imperio ob certamen Potentium avaritiam Magistratuum invalido legum auxilio qua vi ambitu postremo pecuniaturbabantur The Provinces observing in this Supremacy of the Senate and People the contests of the most Powerful the Covetousness of the Magistrates the feeble help the Laws afforded by the Arbitrariness of the Senate we may presume by what force and moyen and lastly how all things were distracted by Bribery they were the more easily induced to admit of one Soveraign These particulars were most obvious in the fatal House of Commons Besides these things I have hinted at Of cunning and designing Men. in such a body as we are speaking of where there cannot want men designing some dangerous Revolutions for the establishing their own greatness though some few wise men may be apprehensive of their designs yet we know maxima est pars artis celare artem Such contrivers will be sure by all imaginable Arts to conceal their intentions and obtain an Ascendent over the Judgment of the gross Body who either are not so quick-sighted or aiming at no such things themselves judge others candor by their own and so by their helps the designers may carry the Vote against even such as penetrate further into the aims of the Contrivers than the Majority do so that those that have good ends may be hood winked by others whose ends are worse Fallit enim vitium specie virturis umbra and private ends will steal upon well affected for all grand Conspiracies are veiled under the Mask of Reformation of removing Grievances and evil Counsellors Gallant and vertuous actions do not more often ingratiate men with such a mixed body than a rolling Tongue a precipitate Head vain-glorious profusion oyly insinuations feigned devotions sufferings though deserved from Superiours and above all opposition to the present State So the memorable long Parliament of 1641. by the specious pretences of redressing Grievances The specious Pretences of the Long Parliament taking care of the Public and particularly of the Liberty of the Subject and their Privileges together with vehement Expressions of their Resolutions of Establishing the Kings Throne upon more firm foundations of the peoples Hearts and Affections by insensible Screws wound themselves into the credit of Patriots and being thereby able to carry a numerous party with them in all their Votes by little and little made such encroachments upon the Soveraignty that having undermined it past support they took the advantage of its fall and ruine out of the same specious pretence that the Commonwealth might suffer no detriment to propose their long designed Model of Government not as by them forethought on but as a necessary expedient to accomplish the end as they pretended they had all this while been aiming at viz. the Peoples prosperity which 〈◊〉 they endeavoured to make the World believe they were most Zealous for when God knows the upshot of all was the total dissolution of the best constituted Government and the Establishing themselves a fattened Commonwealth out of the rich spoils of Monarchy Yet these very men were they who some years before possessed as many as they could delude with an opinion Their Hypocritical Promises that none knew better nor affected more the sweetness of so well ballanced a Monarchy than they and that the Kings just Authority was Sacred to them that they would make him more rich and glorious than any of his Predecessors The Observer told the World That it had been often in the Power of former Parliaments to load the Government with greater Fetters and Clogs but they would not and that change of Government could not be in their desires because the advantage of the Lords and Commons in the State was so great that no change of Government could better them except each one could obtain an hereditary Crown But these were but vain flourishes and empty aiery offers success altered their Principles and they were ill troubled to find out excuses and evasions after the Murther of the Blessed King and change of Government for these their so hypocritical Declarations From all which I shall only desire that Posterity may be cautious how they credit the truth of those who in such Conventions are the most active for any Innovation if they see that they zealousliest pretend some greater happiness to the People by lessening the Authority of the Crown It is reported of Frederick the Emperour (c) Aeneas Sylvius de diaetis Fred. Imp. that in the Speech to the Senators he desired them before they entred into the House of their Assembly they would leave two things behind them and then they would give right Judgment and being asked what those were he told them Simulatio dissimulatio Counterfeiting and Dissembling Another of their Arguments How many Counsellors may mislead for the preference of the Houses Counsel before all other Councils was that many Eyes of so many choice Gentlemen from all parts see more than fewer which Sophism easily midwived in the conclusion that then the two Houses judgment of Affairs was to be preferred before the King and his Privy Councils and the Commons before the Peers and by a parity of Reason though they desired not it should be urged so far home that the body of the People was to be preferred before the Commons House which might be urged upon as common a Proverb That By-standers see more than Gamesters But who are so blind as those that will not see Those very Seers if they would have made use of their Eyes to have perused the Histories of former Ages on what specious pretensions Rebellions had begun and how the Laws had settled the Government in an unparallel'd security of the Peoples Rights as well as the Prerogative of the Crown or by serious consideration foreseen the certain and inevitable miseries that would follow the weakning of the Crown and the necessitating the King for his defence to take up Arms these quick-sighted Commoners might have prevented all those Calamities that ensued The Elected like the Electors Whoever considers how easie it is to possess a People with prejudices against the Government of which elsewhere I must enlarge will soon find that it is no difficult matter to have such Elections of Members as were like to be of the same perswasion with the Electors So that
infallible and every Member an Angel But the Observer Objection That if the King have a Negative Voice there will be no need of Parliaments and his Pewfellows urge That if the Houses can do no Act for publick good without the King's consent and if the King may reject their Counsels and Advice it were needless to put the Country to the charge of choosing Members of Parliament And if the King may prefer other opinions before Parliamentary Motives then Parliaments are vain and useless helps Princes are unlimited and the People miserable These Objections are of such an odious nature Answer That no good Subject can take delight in them whose duty is to pray for the like consent among the several Orders of the Kingdom as is supposed to be among the several Orbs of Heaven The King undoubtedly the Primum movens the Great and Privy Council the lower Spheres The usual but not the only form of the Kings Answers to such Bills as they were not willing to pass Le Roy s'avisera proves (e) Answer to Observations p. 56. That after the advice of this his Great Council he is yet at liberty to advise further with persons or occasions as his own Wisdom shall think meet But these Authors will by no means take notice That the use of Council is to perswade not to compel as if a Man in business of great concernment might not very prudently consult with many Friends and yet at last follow the advice perhaps of one if it appear more proportionable to the end he aims at If it were because they are a more numerous body therefore their Counsel is upon that account to be yielded to then the liberty of dissenting may be denied to the House of Peers in comparison of the House of Commons and to that House too in comparison of the People and so both King Lords and Commons are voted out of Parliament Besides Natural Wisdom and Fidelity there is a thing called Experience of high concernment in the managery of Publick Affairs He that will steer one Kingdom aright must know the right Constitution of all others their Strength their Affections their Counsels and Resolutions that upon each different Face of the Skie he may alter his Rudder The best Governments have more Councils than one One for the Publick Interest of the Kingdom another for the Affairs of State a Council for War and a Council for Peace Let them be as wise and faithful Counsellors as the Observer pleaseth only let them be but Counsellors Necesse est us Lancea in libra ponderibus impositis deprimi sic animum perspicuis cedere Let their conlusions have as much credit as the premisses deserve and if they can necessitate the Prince by weight of Reason and convincing Evidence of experience let them do it on Gods name But it is not to be done upon the Authority of a bare Vote as I think all uninterested persons are satisfied in the Votes of the Houses in 1641. about the Militia Church-Government and the voted Nineteen Propositions or the late Votes about the Bill of Seclusion the Repealing of the branch of the Statute of Queen Elizabeth against Protestant Dissenters and the Loans upon the Kings Revenue There are other ends besides Counsel for which Parliaments are called as consenting to new Laws furnishing the Public with Moneys and maintaining the Interest of the Government and liberty of the Subject from the removing one social end to inferr that an Action is superfluous deserves no answer but silence and contempt This should teach the Electors Wisdom not to chuse such as have Factious Bents or are not truly qualified in their Allegiance to their Prince or Malecontents who render such Conventions useless to the Publick Ends of Government and the Peace Tranquillity and Prosperity of both Prince and People Because the Long Parliament Writers would have no Stone unturned nor any specious Argument uninforced Concerning the Coronation-Oaths of the King of England that might bring the King to their Lure to consent to what they proposed they endeavoured to make the World believe that the King was bound by his Coronation Oath to pass all such Bills as they presented or tendered to him grounding as Mr. Prynne and others alledged on a promise of the Kings at his Coronation to grant and keep the Laws and Customs which the Commonalty shall chuse Before I come to give the particular Answer I think it not unfit to take this opportunity to give a full account of the Coronation Oaths of our Kings and how the same from Age to Age were varied by which the Ingenious Reader will find what the respective Kings by their Oaths did promise That I may deduce as high as I have yet found the Original of Soveraign Princes taking Oaths at their Coronations it may be noted that the first Emperor that was Crowned and had any Coronation Oath prescribed was (f) Evagrius Hisâ— Eccles lib. 3. c. 32. Who first took a Coronation-Oath Anastasius the Greek Emperor who being elected by the Senate and Soldiers about Ann. 486. Euphemius Patriarch of Constantinople suspecting him to be addicted to the Heresy of Eutychius and the Manichees would not consent to his Coronation till he should deliver him a Writing under his Hand ratified with his Oath wherein he should plainly declare That if he were Crowned Emperour he would maintain the true Faith and Synod of Chalcedon during his Reign and bring in no Novelty to the Church of God This Writing ratified with his Oath Macedonius the Treasurer was to keep and after he was made Patriarch the Emperor demanded it and said It was a great discredit unto his Subjects that his Hand-writing should be kept to testifie against him or that he should be tied to Pen and Paper There is no mention of any Coronation Oath used from thence to the Year 804. that (g) Eutrop. lib. 24. p. 145 146. Zonar Annal. tom 3. fol. 142 143. Imperatorio Diademate est ornatus postulato prius scripto quo promitteret se nulla Ecclesiae statuta violaturum Stauratius Son to Nicephorus slain in his Wars against the Bulgarians being declared Emperor by some Michael Curopolata was adorned by the Patriarch with the Diadem a Writing before being desired in which he promised to violate none of the Statutes of the Church c. Which is the first Precedent of a Promise not an Oath demanded from or given by any Roman King for confirming the Laws of the Church c. The first Emperor Crowned at Rome by any Pope (h) Onuphr was Charles the Great Anno 800. but without an Oath and Henry the Fifth (i) Dicens Imperatorem nemini jurari debere cum juramentorum sacramenta ab omnibus sint sibi adhibenda Hermold Chron. Scl. l. 1. c. 40. Sim. Dunelm 232 237. refused to take any Corporal Oath saying That an Emperor ought to Swear to none for that Oath i. e. of Fealty
Second as they found it in the Latin (o) Cl. 1. R. 2. m. 44. Records therefore before I apply those it is needful to note the Latin which as we find it 1 R. 2. was this Capto per Archiepiscopum Cantuar. Sacramento Dom. Regis Corporali de concedendo servando cum sucra confirmatione Leges consuetudines ab antiquis justis Deo devotis Regibus Angliae Progenitoribus Plebi Regni Angliae concessas praesortim leges consuetudines libertates a gloriosissimo sanctissimo Rege Edwardo Clero Populoque Regni praedicti concessas servando Deo Ecclesiae Sanctae Domini Cleroque Populo pacem concordiam integre in Deo juxta vires suas de faciendo fieri in omnibus judiciis suis aequam rectam Justitiam discretionem in misericordia veritate otiam de tenendo custodiendo justas Leges Consuetudines Ecclesiae de faciendo per ipsum Dom. Regem eas esse protegendas ad honorem Dei corroborandas quas vulgus juste rationabiliter elegerit juxta vires ejusdem Dom. Regis This is an additional Clause This is verbatim the Latin for the preceding French except in the additional Clause and the Conclusion which makes the just Laws and Customs both to relate to those of the Church and those that the Vulgar shall have justly and reasonably chosen The like we find (q) Rot. Parl. 1 H. 4. num 16 17. 1 H. 4. and in the Pontificale of the Archbishops and Bishops and it is added after the King hath King Henry the Fourth's Oath as before expressed answered to the Proposals Pronunciatis omnibus confirmat Rex se omnia servaturum Sacramento super Attari praestito coram cunctis i. e. that the King by his Oath taken upon the Altar before all present to observe these confirms them The Solemnities and Ceremonies used at the Coronation of King Richard the Second may be perused at large in Tho. (r) Hist Aug. fol. 194 195. Juravit coraem Archiepiscopo Proceribus qui ibi aderant quoniam ipsi solum ejus Juramentum audire potuerunt Walsingham and he saith he swore before the Bishops and Nobles there present for they only could hear his Oath that he would permit the Church to enjoy its Liberties and would honour it and its Ministers that he would hold right Faith and would forbid Rapines and all Iniquities in all their Degrees 2ly That he would make to be kept every where the good Laws of the Land and especially the Laws of St. Edward King and Confessor who was buried in that Church and would make all evil Laws to be abrogated 3ly That he would not be an accepter of Persons but would make right Judgment betwixt man and man that especially he (s) Praecipue misericordiam observaret sicut sibi suam indulgeat misericordiam clemens misericors Deus would observe Mercy as the Clement and Merciful God might grant Mercy to him Having thus given an account of these Coronation Oaths I come to the Objections First They (t) Prynne's Treachery and Disloyalty Answer to the Objections about the Words Quas vulgus elegerit say that the word Vulgus doth signifie the two Houses and the word elegerit is to be taken in the Future Tense so that the King is obliged to consent to such Laws as the two Houses especially the Commons do chuse It is a wonder to me how men that pretended to any reading or learning in Antiquities or in the Constitution of the Government could defend their Cause with such pitiful Reasonings especially against King Charles the First who neither had taken such an Oath nor many of his Predecessors before him The Latin Translation of two French words gave all the occasion of dispute for that which is called Communate is rendered Plebs and Vulgus and aura eslu is translated elegerit whereas were it to have been understood in the Future Tense it should have been eslira and agreeable to that in all the Authentick Records of the Exchequer the word elegerit is Englished in the Preterperfect Tense Thus much may suffice as to the word elegerit Dr. Brady's Glossary will satisfie the Curious about the import of the word it self Concerning the word Vulgus one solid (u) Freeholders Grand Inquest b. 46. What meant by Vulgus according to the Opinion of some Author saith That we may be confident that neither the Bishops Privy Council Parliament or any other whosoever they were that framed or penned this Oath ever intended in this word the Commons in Parliament much less the Lords they would never so much disparage the Members of Parliament as to disgrace them with a Title both base and false It had been enough if not too much to have called them Populus the People but Vulgus the Vulgar the rude multitude which hath the Epithete of ignobile vulgus is a word as dishonourable to the Composers of the Oath to give or for the King to use as for the Members of the Parliament to receive therefore he judgeth that by Vulgus must be meant the Common People not the Lords and Commons But then saith the same Author the doubt will be what the Common People or Vulgus out of Parliament have to do to chuse Laws In answer to which the preceding word is to be considered Consuetudines quas Vulgus elegerit the Customs which the Common People have chosen If we observe the nature of Custom Customs chosen by the Vulgar or Common People it is the Vulgus or Common People only who chuse Customs Common usage time out of mind creates a Custom and the commoner the usage is the stronger and the better is the Custom No where can so common an usage be found as among the Vulgar who are still the far greatest part of every multitude If a Custom be common through the whole Kingdom with us it is all one with the Common Law of England which is often called Common Custom so that to protect the Customs which the Vulgar chuse is to swear to protect the Common Laws of England Agreeable to this is what the learned Dr. Brady (w) Glossary p. 36. notes That upon the whole it signifies no more than that the Community had chosen that is owned submitted to and desired still to use their Old Customs which by use time out of mind they had enjoyed for the better management of Affairs and Conveniency betwixt Man and Man all the Nation over or in any particular County Hundred Town City or Burrough such long practices being the foundation of all Customs but these are to be just which intrench not upon the Government or Laws and by permission and sufferance only become Laws But the same (x) Id. p. 35. Author judiciously affirms That the Community here intended was the Community of the Bishops What meant by the Community Abbats Priors
and his People as they loved to phrase it they answer by their Prolocutor that those who contract to their own ruin or esteem such Contracts before their own preservation are felonious to themselves and rebellious to Nature Inferring from thence That if the legal Constitution of Government The Writers for the Parliament affirm That where the Houses think the Constitution of the Government is not agreeable to the Liberty of the People they may alter it be not agreeable to the Liberties the House conceives needful for them they are obliged to contend to alter them which is no more nor less than if a Criminal being condemned to be hanged should be guilty of another Felony and Treason against Nature to yield to the Sentence but that he ought in his own defence to kill as many as he could that he might thereby save his life by escape Thus I hope I have made apparent the falshood of the Positions ranged in defence of that dismal Parliament How the Long Parliament voted all the Power into their own Hands who made use of them as Platforms upon which to plant the Artillery of their Acts and Ordinances For under the pretext of their obligation to preserve the Kingdom they voted to put it in a posture of defence and they voted from the King his Navies Officers Privy Counsellors and Revenues pretending the Navies were still reserved for the King in better hands than he would put them and for the other they would furnish him with better principled Ministers Whereas by the same Precedent the Subjects were bound to give up their Estates to their ordering as often as they pretended they could dispose of them more wisely For they might alledge the State which they reputed themselves had an interest paramount in them in case of publick extremity so that as they pretended the Head without the Body was the State before so now it was fit the Body should be without the Head whereas the Law hath provided against either exorbitances and if there was necessity we must fall into one we ought in reason to chuse the former because being better acquainted with that we could better digest it and it would be less burthensom to our Estates to satisfie one than five hundred nay ten thousand as it appeared when the greedy Commonwealths men with their Committees Armies c. was that flat Vermine in the Bowels which how true soever it is of the lumbricus latus was certainly true of this Monster That it was every where Head and Mouth It is to be well weighed When Parliaments beneficial when not that as Parliaments are in the highest degree beneficial when they keep within the bounds of duty and sobriety so when they will have their Ordinances to have the force of Laws and not govern themselves by known Laws they are the cause of many Distempers in a Kingdom and the Subjects condition is most unhappy in the Multitude of Physicians for extraordinary Remedies such as they always pretend to use are saith Sir Henry Wotton like hot Waters which may help at a pang but being too often used spoil the Stomach A Compleat Parliament is that (f) Answer to Observ p. 150. Panchreston or Soveraign Salve for all Sores but some would make the name of Parliament a Medusa's Head to transform reasonable men into Stones and subordinate Monarchy to the two Houses who must be denied nothing but with their good will would claim for them a paramount interest with the Soveraign whom they would advance only to the height and mighty Dignity of a Doge of Venice or a Roman Consul whilest they must be the Tribunes of the People their Supervisors So that we cannot be content to gather the blessed fruits right constituted Parliaments would afford us but we must rend away the top Branch yea stub up the Tree that we may scramble for the Fruit. Tacitus (g) 10 Annal. gives a Caution how a Prince may support his Authority that he do not vim Principatus resolvere cuncta ad Senatum revocando Kings not to grant away their Prerogatives at the Importunity of Parliaments It is fit a Prince should have the Glory of performing those things himself which are his Prerogatives and not to refer such things to Conventions of Parliament which properly belong not to their Cognizance Since therefore by the condescensions of our Wise and Gracious Princes there are several things in England the King cannot by Law do alone it is a most requisite Wisdom in Princes that as they observe the Laws in securing the Peoples Liberties and Privileges so by no Arbitrary Assumption of either or both Houses to let their Prerogatives be invaded for those are now no more than are rationally and politically necessary for orderly and established Government The Encroachments of the never to be forgotten long Parliament several of which I have in this and the foregoing Chapter hinted may be sufficient documents to Princes not to yield such a body too much Power for if the ballance once decline a little weight will sink it Therefore though Princes are not to enlarge their Prerogatives nova siti ad alia aliaque properare yet they ought to preserve those that remain For any Raveling once yielded will make the Royal Cittadel defenceless Testudo ubi collecta est in suum tegmen tuta est ad omnes ictus ubi exerit partes aliquas quodcunque nudavit obnoxium infirmum est The Tortoise as long as it keeps within its shell and coverture is safe but if it unbare any part it is obnoxious to danger Above all things a Prince should he careful never to part with the Prerogative of Summoning and Dissolving Parliaments For we cannot forget that the Houses of 1641. not content with a Bill for Triennial Parliaments got an Act for perpetuating themselves and that would not satisfie but they prepared a Bill for the certainty of future Parliaments whether the King had occasion for them or not so that if the King omitted the sending out of Writs and Summons the Chancellor might and for failure the Sheriff and I know not what inferiour Officers of which the Blessed King complains I cannot dismiss this Subject without taking notice of the Fundamental cause of Factious Members of Parliament The fundamental Cause of Factious Members in Parliament In England there is no such powerful Engine to make Faction and Sedition formidable and dangerous to Government as when the Majority of the Freeholders are wrought upon by the Arts I have in some measure hinted before and shall more largely in the Chapter of Faction to chuse Members of the House of Commons of their own Temper for such a Number being imbodied in that House give and receive mutual strength from one another For when such are met they do not take care to unite the minds of the Subjects to their Prince or one to another or imploy their time upon the great concerns of
the Nation but are drawn to promote private Animosities under (h) King's Speech 6 March 1678. pretence of the Publick and are so far from proceeding calmly and peaceably to curb the motions of unruly Spirits that endeavour to disturb them that they expose the King to the Calumny and danger of those worst of men who endeavour to render him and his Government odious to the People I shall now touch upon some of the Artifices used to bring in such Members in the Parliament of 1678. and some succeeding ones whereby their Conventions were rendred useless for the King and People and inglorious to themselves though they pretended to as much Loyalty and Publick good as those in 1641. did at their first sitting The King having dissolved the long Parliament and summoned this to sit the 6th of March 1678. The Artifices used by designing People to get such as they desired to be elect ed. the industry of the Dissenters Male-contents and we may suppose Common-wealths men was extraordinary great as now hoping they should be able to chuse such Members as would be more favourable to them They had been long instilling into the Peoples Heads The Characters they gave Men of the Court-party that in the former House there had been a Court and Country Party the former were for Arbitrary Government fleecing the People Persecution and such as gave no great credit to the Tragical representation of the Popish Plot The latter were moderate men and not so much for Ceremonies as the purity of Religion would stand for the Peoples Liberties and Properties by riding night and day about the Villages and trudging about Corporations and the weekly Conventicles they spread this Character abroad and with all the Arts imaginable endeavoured to proselyte (i) Address part 2. p. 2 3. all that were not sharp-sighted enough to pierce into their designs If any seemed not to believe those Characters or declared himself for the Government Civil or Ecclesiastical established by Law and neither for Popery or Arbitrary Government nor yet for a Commonwealth or Dissenters they run them down with noise traduced them behind their backs as Papists in Masquerade and men of Arbitrary Principles Papists in Masquerade And if any were so bold as to scruple the coherence of the Narratives of the Popish Plot he was vilified as a Defamer of the Kings Evidence as stifler of the Plot and from hence they concluded to insinuate into the Populace that those Loyal Gentlemen who had been Members of the late long Parliament had joyned with the Court to hinder the Discovery of the Plot and if any gainsaid them they used such questions What Are you for Popery Will you give your Voice for a Papist Are you willing to have your Throat cut Are you for Arbitrary Government By which means they won over too many to joyn with them Excluding Loyal and Orthodox Gentlemen to exclude many Loyal and Orthodox Gentlemen from being chosen Members of Parliament Their design was advantaged because some were their friends of old others had come the half way over to gain the reputation of moderate men others had been disgusted by the Government The Conventicle Teachers rallied up their Flocks and they all joyned to slander the Clergy as if they had a kindness for Popery in their hearts though they durst not discover it for the present And generally blasted all the Loyal Gentry as Popishly affected the Court-Party Pensioners c. So that if any one bore any Publick Office Military or Civil he was eo nomine to be rejected The Persons they recommended to the People to be chosen were first all those Gentlemen who called themselves the Country (k) Idem p. 5. Party who had appeared most zealous against his present Majesty the Queen Dowager and Ministers of State To these they added as many as they could of the reliques of the old Rebellion or their Children and made up the number out of the moderate and discontented Gentlemen Burgesses and Tradesmen It was sufficient recommendation if the Government had displaced any for these were looked upon as not to be corrupted or bought off and here and there they took in an honest Gentleman in hopes to win him to their side by this kindness After the dissolution of this Parliament when his late Majesty issued out his Writs for another to convene 17 Oct. 1679. they added to their former Arts the loud clamours against French Pensioners French Pensioners Popery Arbitrariness and all those who voted against the Bill of Exclusion as Popishly affected or downright Papists traducing his Majesty the Court the Ministers of State and almost all the Loyal Gentry and Clergy for endeavouring to have those men chosen The second advantage they made was the pretended discovery of (l) Address part 3. p. 5. Sir Stephen Fox of the Pensioners of the late long Parliament which discovery being hastily made and no Record of it being entred Pensioners to the King they took the confidence to add to it whomsoever they pleased to have so thought They made the People believe they knew who would be Pensioners likewise and led the diffidence to that height as to exclude as far as they could possibly not only all the Courtiers and other Persons who had any places of profit and advantage under his Majesty but their Relations too and wanted not much that they had excluded all those who bore any Honorary Imployment So that nothing recommended a man so effectually for a Parliament man as that he had not been thought fit to be trusted in the least by his then Majesty or their Neighbour Gentry these they cried up as true Friends to the Protestant Religion and the Country and he was an hard-hearted Man in their Dialect who called the Sincerity of their Loyal Intentions in question However by their Actings many of them have been discovered to be but cold Friends to the Government But Intending to discourse more fully of the several Arts us'd by designing Men in the Chapter of Factions I shall at present quit this Subject and only desire Kings to consider that they can condescend no lower to gratifie Importunities of Parliament or People in yielding up any of their Privileges The Philosopher of old hath noted how Kingly Authority was lessened among the Grecians which was no ways profitable to them He speaking of Kings in the Heroick times (m) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. l. 3. c. 14. That then they had the Government and Administration of Matters in the Cities and the adjoyning Territories within their Dominions and what extended without the Limits of the Empire viz. to preserve and protect their Subjects against their Enemies make War and Peace c. But after partly by the spontaneous Concessions of the Princes and partly by the Encroachment of the People they came to be lessened in Power and in some Cities had only the Power of Sacrificing left in others
agreeth with the Act of Parliament 37 E. 3. c. 18. where it is said before the Chancellor Treasurer and Great Council Thirdly The Kings Privy Council which appears to be different from the last Great Council by many Records and particularly by that of (c) Rot. Claus 16 E. 2. m. 5. dorso 16 E. 2. where it is said Hen. de Bellomont Baron of the Kings Great and Private Council was sworn This Council is called Concilium Privatum secretum continuum Regis The Privy Council properly so called Lord President The First Member of this Council is the Lord President who was anciently called Principalis Consiliarius and sometimes Capitalis Consiliarius The first Lord President Sir Edward Coke (d) 4. Instit c. 2. fol. 55. 1. par Pat. num 22. John Bishop of Norwich is mentioned 7 Jo. by Matt. Paris fol. 205. mentions was the Earl of Lancaster 50 E. 3. 1 R. 2. then he reckons these in order the Duke of Bedford 1 H. 6. the Duke of Gloucester 10 H. 6. the Duke of York 11 and 22 H. 6. John Russel Bishop of Rochester and after of Lincoln is called President 13 E. 4. John Fisher Bishop of Rochester 12 H. 7. Charles Brandon Duke of Suffolk from the 25th to the 37th of H. 8. the Lord Pawlet 1 E. 6. the Duke of Northumberland 5 and 7 of E. 6. the Earl of Arundel 1 and 2 Ph. and M. in Q. Elizabeth's time we find none but in this Catalogue Mr. Prynne (e) Animadv p. 45. Pat. 13 E. 4. part 1. m. 3. hath truly noted That the Bishop of Rochester was not made President of the Kings Council but of the Prince's and was his Tutor as appears by the Patent it self there cited dated the 10th of Nov. This Office of Lord President was never granted but by Letters Patents under the Great Seal durante beneplacito In the Statute of 21 H. 8. c. 2. he is said to be attendant on the Kings most Royal Person the reason of which saith Sir Ed. Coke is That of latter times he hath used to report to the King the Passages and the State of the business at the Council Table The Lord Privy Seal is the next Principal Person that hath Precedence in the Kings Council Lord Privy-Seal concerning whose Office my Lord (f) 4. Instit c. 2. fol. 56. Coke hath discoursed at large to whom I must refer the Curious Reader as also to him for the Acts of Parliament Orders of the same and Acts of Council together with Mr. Prynne's (g) P. 45. Animadversions whereby the Privy-Council was to be regulated and concerning the Jurisdiction and Proceedings of the Kings Council Mr. Lambard's (h) P. 108. to 116. fol. 29. Archaion and Mr. Crompton's Jurisdiction of Courts may be consulted the several Bundels of Petitions to the King and his Council in the Tower of London and the Answers to them the Placita Parliamentaria coram Rege Concilio in the Tally Office of the Exchequer and in the Parchment Book of them in the Tower under King Edward the First printed by Mr. (i) In Placit Parl. Append. Those summoned to Parliaments as Assistants called the King's Council and in Parliament-time joyned with the King's Council in several Cases Ryley Of this Privy Council there seems to me to be two sorts one constantly attending the King and his Affairs the other in Parliament time only which had their particular Summons as I have before at full discoursed of and these two I find so obscurely distinguished that it is difficult in some places to understand which are meant but I think in time of Parliament these were joyned to the Kings Council for besides that they had a distinct Summons and in them as a specifical distinction the word caeteris was omitted in that part of the Summons which runs dictis die loco personalitor intersitis nobiscum ac cum caeteris Praelatis Magnatibus c. because they were not Parliamentary Barons there was also added in proceedings and judgments upon them these words coram ipso Domino Rege ejus concilio ad Parliamenta sua or ad Parliamentum suum or coram Concilio nostro in praesenti Parliamento For the particular Instances of which being they are very numerous Mr. Prynn's (k) A pag. 363. ad pag. 393. brief Register may be consulted wherein it seems to me upon the perusal of the several Records that these Assistants to the House of Lords were likewise joyned to the rest of the Kings standing Council in Parliament time so it is expressed in the Case of (l) Idem pag. 378. John Salâ—eyn and Margaret his Wife and Isabel her Sister Daughters and Heirs of Robert de Ross de Work thus Habito super praemissis diligenti tractatu per ipsum Dom. Regem totum Concilium and in the same it is thus also worded videtur Dom. Regi Concilio suo concordatum est consideratum per ipsum Dom. Regem Concilium suum So in others per Concilium Archiepiscoporum Episcoporum Comitum Baronum caeterorumque (m) Idem pag. 380. de Concilio suo existentium singulis de Concilio suo totius Concilii Domini Regis So in 21 E. 1. the Archbishop of York's Case videtur Domino Regi in pleno Parliamento praedicto Comitibus Baronibus Justiciariis similiter toti Concilio ipsius Dom. Regis and so it is said Magnates alios de Concilio ipsius Domini Regis rogavit This is further cleared by sundry (n) Idem pag. 383. The Court of Star-chamber was said to be coram Rege Concilio suo See Coke Inst 4. c. 5. Prefaces to and passages in our Printed Statutes as formerly I have noted So the Statute of Bigamy 4 Oct. 4 E. 1. saith In the presence of certain Reverend Fathers Bishops of England and others of the Kings Council the constitutions under written were recited after heard and published before the King and his Council for as much as all the Kings Council Justices and others did agree So the Statute of Quo Warranto 30 E. 1. Cum apud Westminster per nos Concilium nostrum provisum So 33 E. 1. it is agreed and ordained by the King and all his Council So 42 E. 3. c. 3. the Statute made on Petition of the Commons in Parliament begins (o) Plese a nostre Seigneur le Roy son bon Counsel pur droyt Government de son Peuple ordeigner Pleaseth it our Lord the King and his good Council for the better Government of his People to ordain By great store of Records it is apparent that in old times the Kings and their Councils gave Judgment in divers Cases of difficulty and other Common Cases concerning the Law of the Realm (p) See 11 H. 4. num 28. 63. Respectuatur per Dom. Principem Concilium Pryn. Animadv p. 39. 264 265 267 296.
saith That Enrollments (l) Pur le Enrolments de Pardon de Roy in le Chancery en temps le Roy Alfred of Pardons of the King were in the Chancery in the time of King Alfred Altho' Mauricius Regis Cancellarius by that title subscribes as witness to the Charter of King William the Conquerer to the Abby of Westminster yet none of these prove that such a Court was in those Ages constituted as we now call the Chancery For Sir Henry Spelman (m) Gless p. 107 ◠proves the Chancery was no Court but only the Ship as he calls it of the Kings Writs and Charters in old time now consisting of three Parts sc è Collegio Scribarum Regiorum è Foro Juris communis è Praetorio boni aqui Mr. Lambard (n) Archaion p. 62 63. hath proved that till the Reign of King Edward the First we find nothing of the Chancellors hearing and determining of Civil causes for till then the Justiciarius Angliae had the great Power Sir William Dugdale 's Origines Jurid fol. 36. b. which being then restrained ad placita coram Rege tenenda the King together with the trust and charge of the Great Seals appointed him to represent his own Royal and extraordinary Preheminence of Jurisdiction in Civil Causes and he gives this particular reason for his opinion That Britton a Learned Lawyer in Edward the First 's time writing of all other Courts from the highest Tribunal to a Court Baron maketh no mention of this Chancery Yet towards (o) 28 E. 1. c. 5. the latter end of his Reign we find it enacted The Chancellor and Justices of the King's-Bench to follow the King That the Chancellor and Justices of the Bench should follow the King that is remove with the Kings Court so that he might have at all times near him some Sages of the Law which were able to order all such matters as should come unto the Court at all times when need should require Yet this Act did not give an absolute Power to the Chancellor alone of determining in such Civil Causes as may seem by that Law which was made 20 Ed. 3. (p) Cap. 6. where it appears the Treasurer was joyned with him to hear complaints against Sheriffs Escheators c. something like this about Purveyors and Escheators that they might not oppress was enacted (q) Cap. 3. 36 Ed. 3. Nevertheless Mr. Lambard observes When Causes in Equity determined in Chancery that it doth not appear in the Reports of the Common Law that there is any frequent mention of Causes usually drawn before the Chancellor for help in Equity till from the time of King Henry the fourth nor are there found any Bills and Decrees in Chancery before the 20 of H. 6. such Causes as since that time were heard in that Court having formerly been determined in the Lords House of Parliament So Sir Edward Coke saith In the Chancery are two Courts First the ordinary coram Domino Rege in Cancellaria where in the Lord Chancellor or Lord Keeper of the Great Seal proceeds according to the right line (r) Secundum Legen Consuetudinem Angliae of the Laws and Statutes of the Realm Secondly extraordinary according to the Rule of Equity Secundum aequum bonum But it is not my business to enter into particulars The curious may consult Sir Edward (s) 4. Instit c. 8. Coke Mr. Richard Cromptom cap. 3. Sir Henry Spelman 1. glossar 1. de Cancellario à pag. 105. ad pag 113. Ryley's Appendix Ash's Repertory tit Courts Sect. 2. Roll's Abridgment p. 374. to 587. Prynne's Animadversions p. 48. Anno 5 Eliz. (t) Cap. 18. it was Enacted that the Lord Keeper for the time being hath always had used and executed and so may for the future The Lord Keeper equal to Lord Chancellor the like place Authority Preheminence Jurisdiction Execution of Law c. as the Lord Chancellor of England for the time being lawfully used The Oath of the Chancellor or Lord Keeper is to be found (u) Rot. Parl. 10 R. 2. col 8. 10 R. 2. consisting of six Parts First That well and truly he shall serve our Soveraign Lord the King and his People in the Office of Chancellor The Oath of the Lord Chancellor or Lord Keeper Secondly That he shall do right to all manner of people Poor and Rich after the Laws and usages of the Realm Thirdly That he shall truly counsel the King and his Counsel he shall layen i. e. hide or keep secret Fourthly That he shall not know nor suffer the hurt or disheriting of the King or that the Rights of the Crown be decreased by any means as far as he may lett it Fifthly That if he may not lett it he shall make it clearly and expresly to be known to the King with his true Advice and Counsel Sixthly That he shall do and purchase the Kings profit in all that he reasonably may as God help him and by the Contents of this Book SECT 6. Of the Court of the Exchequer SIR Edward Coke saith the Authority of this Court is of original Jurisdiction without any Commission Bracton mentioneth nothing of this Court and Fleta giveth a very short account that the King hath his Court and his Justiciaries residing at his Exchequer but descends to no particulars of the Jurisdiction (w) Fol. 2 b. But x Britton who lived in Edward the First 's Reign and all along writes in the name of the King as if his whole work had been the Kings gives us an account of the Nature of this Court in several particulars To hear and determine all Causes which touch the Kings Debts his Fees and the incident Causes without which these cannot be tried So of Purprestures Rents Farms Customs and generally of whatever appertained to the Revenue of the Crown the Tenants and Receivers of it so that the Court is divided into two Parts viz. Judicial Accounts called Scaccarium Computorum and into the Receipt of the Exchequer The principal Officer is the Lord Treasurer of England who formerly had this great Office The Lord Treasurer principal Officer of the Exchequer by delivery of the Golden Keys of the Treasury and hath the Office this day by delivery of a white Staff at the Kings Will and Pleasure his Oath is much-what the same as the Chancellors differing principally in that clause That the Kings Treasure he shall truly keep and dispend The other great Officers are the Treasurer of the Exchequer the Chancellor and Chief Baron and other Barons of the Exchequer The rest of the Officers are particularly reckoned in Sir (x) 4. Instit fol. 106 107 108. Edward Coke The Oath of the Barons of the Exchequer is to be found in the Statutes (y) The Oath of 〈◊〉 Barons of the 〈◊〉 chequer 20 Ed. 3. cap. 2. whereof the principal parts are That he shall truly charge and discharge
the Commission of Sewers by Law (e) Discretio est discernere per Legem quid sit justum Coke Inst 4. fol. 41. 3 H. 8. allowing the Commissioners to make Orders c. according to their Judgments and Discretions the word Discretion is interpreted by Lawyers to discern by Law what is Just as appears when a Jury do doubt of the Law and desire to do what is Just they find the special matter and the entry is Et super tota materia petunt advisamentum discretionem Justiciariorum that is they desire that the Judges would discern by Law what is Just and give Judgment accordingly It was resolved in the Court of Common-Pleas when a new Court was (f) Whyte's Sacred Laws p. 33. erected 31 H. 8. to hear and determine according to Law and Custom or otherwise to their sound discretion That the last Clause was against Law For when Laws are writ and published Magistrates know what to command and the People to obey otherwise the Law must necessarily be errant wandring uncertain and unknown which is a (g) Miser servitus ubi jus vagum miserable yea the most miserable Slavery This was the ground of the taking away the most August and very Ancient Court of the Star-Chamber The Court of Star-chamber dissolved though appointed by Act of Parliament (h) 3 H. 7. c. 1. 21 H. 8. and consisting of very great Personages as the Lord Chancellor Lord President of the Council Lord Privy-Seal Bishops Lords and Justices For tho' there were other Reasons that moved the Houses to be so pressing to get that Act pass the grounds of its Repeal alledged in the (i) 17 Car. 1. c. 10. Preamble of the Act are That the Judges have not kept themselves to the points limited by the Statutes and have undertaken to punish where no Law doth warrant and to make Decrees for things having no such Authority and have inflicted heavier punishments than by Law warranted and that all matters Examinable and Determinable before them had their proper Remedy Redress and Punishment by Common Law and in the ordinary Courts of Justice elsewhere In the like manner and on the same reason were the Court of Request (k) Ibid. cap. 9. before the (l) Cap. 48. President of the Marches of Wales of the President and Council in (m) Cap. 49. the North and of the County-Palatine (o) Cap. 37. of Chester either totally abolished or much eclipsed Having thus far discoursed of the several standing Courts I think it necessary to give an account of the Oath the Judges of either Bench are enjoyned to take having before spoke of the Lord Chancellor Lord Treasurer and Barons of the Exchequers Oath SECT 10. Of the Judges Oath COncerning this Oath there is a Controversie betwixt Mr. (p) Animadv on Coke's 4. Inst fol. 38. Prynne and Sir Edward Coke the latter affirming it to be in our Printed Statutes but not upon Record which Mr. Prynne disproves thus That the Oath of the Judges Barons of the Exchequer and Justices Itinerant and the Ordinances annexed to the Oath were made by the King because of divers complaints to him by the assent of the great men and other wise men of his Council and commanded to be openly published by the Sheriffs of every County by (q) 7 May 20 E. 3. special Writs issued to them for the Reasons specified in the beginning and close of the Writs at least three Months before the Parliament was held that Year and they are all entred upon Record as they are Printed in the Statute Books at large (r) Cl. 20 E. 3. part 1. m. 12 13. 20 E. 3. in the Clause-Rolls but not in the Parliament or Statute-Rolls of that Year because not made in but before the Parliament From whence I note a good Argument of the Kings Prerogative in appointing Judges and Commissionating them himself without any Parliamentary concurrence since he appoints the very Oath which was to direct them in their Office out of Parliament We find the Commons so well pleased with this Oath that in the (s) Rot. Parl. 20 E. 3. num 25. Parliament 20 E. 3. they petitioned the King that the Justices of Assise and Enquiry might be sworn by the same Oath as the Justice of the Bench Abridgment of Records p. 48. and that the chief of them might have power to swear the rest which the King assented to with some Qualifications but when in the Twenty first of his Reign they petitioned that his other Ministers might take the Oath and might be sworn to take nothing from any other the King answered that he would advise what other Ministers shall be fit to take the Oath Mr. Prynne refers us to the Cl. 18 H. 3. m. 19. Cl. 35 E. 1. m. 7. Cl. 1 E. 2. m. 19. and Cl. 5 E. 3. m. 27. for some Clauses of the Oaths of Justices agreeing with those prescribed to the Kings Council But the Oath as it hath been after used is to this purpose That they shall swear well and lawfully to serve our Lord the King and his People in the Office of Justice and lawfully counsel the King in his Business not counsel or assent to any thing which may turn him in damage or disherison by any manner way or colour and shall not know of any such thing but cause the King to be warned thereof by themselves or others shall do equal Justice and Execution of Right to all the Subjects and take neither by themselves nor others privily or apertly Gift or Reward of Gold or Silver nor of any thing which may turn to their profit unless it be Meat or Drink and that of a small value of any man that shall have any Plea or Process hanging before them c. shall take no Fee as long as they are Justices nor Robes of any man great or small but of the King give no Advice to any man great or small where the King is Party If any of what condition soever come before them in their Sessions with force and Arms or otherwise against the Peace or against the Statute thereof made to disturb the execution of the Common Law or to menace the People that they may not pursue the Law That they cause their Bodies to be Arrested and put in Prison and if they cannot be Arrested that the King be certified That they themselves nor others maintain no Plea or Quarrel hanging in the Kings Court or elsewhere in the Country That they deny to no man Common Right by the Kings Letter nor none other mans nor for none other Cause and in case any other Letters come to them contrary to the Law they do nothing by such Letters but certifie the King thereof and proceed to execute the Law notwithstanding any such Letters That they shall procure the profit of the King and of his Crown and if in default shall be at the Kings Will of Body Lands and
Goods thereof to be done as shall please him There is in this Oath as great Security taken Observations on this Oath as morally can be that the Judges perform their Office uprightly and judge according to the Law and if this will not make them wary how they give Judgment contrary to Law there are other Constraints upon them As first That the King may displace them when he pleases they holding their Places only durante beneplacito Secondly The House of Commons may question them for any false Judgment and Miscarriage in their Office which must be a great Check and deterring of them from giving any unjust Judgment either for Lucre-sake by Bribes or Partiality of Affection There are besides others two illustrious Examples of punishment of Corrupt Judges the one of Sir William Thorp (t) Rot. Parl. 25 E. 3. Rot. 10. condemned for breach of his Oath in taking Bribes Judges punished for breaking their Oath He was Indicted before the Earls of Arundel Warwick and Huntingdon the Lord Gray and Lord Burghers 24 E. 3. and the Record saith Ideo consideratum per dictos Justiciarios assignatos ad judicandum secundum voluntatem Regis secundum Regale posse suum because he broke the Oath which he took to the King and so was adjudged to be hanged The (u) Exact Abridgment p. 74. Record of this Judgment was brought into the Parliament 25 E. 3. the King having by a Writ under the Privy-Seal stayed his Execution and it was read opeâ— before the Lords and all the Lords affirmed the Judgment to be good provided this Judgment should not be drawn into example against any other Officers who should break their Oaths but (z) Qui praedictum Sacramentum fecerunt fregerunt habent Leges Regales Augliae ad custodiendas only those that took the said Oath of Justices and broke it such to whom the Royal Laws of England are committed The other is the Famous Sir Francis Bacon Lord St. Albans who being Lord Chancellor was found guilty of taking Bribes by his Servants whom though many for his great Learning would acquit as leaving too much to his Servants yet he fell an illustrious example of Justice against the highest Judges and in the forecited Record against Sir William Thorp it is apparent that the Lords who in those days were the sole Judges in Parliament thought no persons breach of Oath was capitally to be punished but only the Justices Before I come to speak to some of the long Parliaments writing Champions misapplication of the Kings Power in his Courts I think it expedient to give some Characters I have met withall of the qualifications of Judges In a Speech made to Justice (a) MS. Speech penes Rad. Thoresby de Leedes Gen. Manwood when he was chosen Lord Chief Baron the Chancellor tells him There are four things requisite in a Judge First His knowledge of the Law which is presumed every one hath that the King appoints to be his Justiciary Secondly Discretion that though in his Judgment he may vary from the letter of the Law yet he may never judge contrary to the intention of it which is Animus Legis Thirdly Integrity for it were better to have a Judge of convenient learning and discretion that would command and rule his Affection and Judgment than one of excellent knowledge and discretion that will submit the same to his corrupt Affections Fourthly Care and diligence For if a judge be furnished with all the preceeding qualifications yet if he be slothful and do not expedite his Judgment all the former serve to little purpose for qui diâ— distulit diâ— noluit My Lord St. Albans (b) Essays though he fell as before I have noted under great censure yet in his Essays tells us that a Judge's Office is Jus dicere non Jus dare that they ought to be more wise than witty more reverend than plausible more advised than confident and above all things that Integrity was their Portion and proper Vertue The unjust Judge being a Capital remover of Land-marks Injustice making Judgment bitter and delay sowre Another famous (c) E. of Clarendon's Survey p. 125. Chancellor whose unexpected exile after he was raised to the happiest Estate of a Subject may teach all to judge no State of Felicity assured upon Earth tells us that Judges are presumed by Education to be fitted for the understanding of the Laws and by their Oaths bound to judge according to Right and so must be the most competent to explain the difficulties of the Law which no Soveraign as Soveraign can be presumed to understand and comprehend and that the judgments and decisions those Judges make are the Judgment of the Soveraign who hath not qualified them but Authoritatively appointed them to judge in his stead and are to pronounce their Sentence according to the reason of the Law not the reason or will rather he means of the Soveraign But now I proceed to other matters The Long Parliament impeached all the Judges that had voted the legality of Ship-mony The Long Parliaments Impeachment of Judges as also brought to their Bar the Lord Chancellor that thereby they might strike a greater terror on the Kings Loyal Subjects especially in the House to make them comply with them and though they would have had the Power of nominating and removing the Judges and have rent that branch of his Royal Prerogative from him yet they not trusting if they effected this that it would do them any service when they had put in such Judges as they liked if the King might still Commissionate them according to old form pro beneplacito Therefore they pressed hard They would alter pro beneplacito that every Judge should continue quamdiu se bene gesserit which I only note to show they were desirous to new model the whole Government As the long Parliament of 1641. by their dissolving of Church-Government gave birth to varieties of Opinions The Long Parliament endeavours to weaken the King's Prerogative Schisms and Heresies in Religion so by their design of unloosening mens Obligation to the Monarchy they were forced to make use of many false Inferences and Judgments of the known Laws Amongst which one was when they were beaten off from the several pretences of having some Paramount Power over the King whereby he stood obliged to resign his reason to their Votes they alledged that since the King could not reverse a Judgment given in an inferior Court a fortiori he could not frustrate their Votes being the Supreme Court as well as Council In Answer to which it is to be considered How Judges in their Judgments sustain the Person of the King that in other Courts the Judges sustain the Person of the King the Law is deposited in the hands of the King and all Justice is administred by him and in his name so that his consent is by Law involved in what by Law they
preserved in Peace Arms are necessary and they cannot be provided for without Taxes The Subjects receive the benefit of protection and by the care of the Government peaceable possession of their Houses Fields and Cattle Liberty of Trade dispensation of Justice and other great Emoluments by its guard and vigilance which require a numerous retinue of Officers of State Justice and War and Multitude of subordinate Ministers Something also must be allowed for the grandeur and port is necessary for the regulating it at home and abroad the maintaining Correspondence by Ambassadors the providing for defence against foreign Invasions and preserving Tranquillity at home in all which the Publick is concerned therefore the reason is very just and equitable that besides a standing Revenue for defraying these constant charges there should be subsidiary supplys upon emergencies adequate to the occasions As Cicero justly admonisheth Da operam ut omnes intelligant si salvi esse volunt necessitati esse parendum That the Subjects be made to understand that if they will be safe As the Subject is protected so he ought to support the Government they must yield to necessity this absolute necessity of parting with a portion of their Estates for securing the rest For though it be prudence in a private man justly and moderately to enrich himself yet craftily to withhold from the Publick and to defraud it of such parts of the Wealth as is by Law required is no sign of prudence saith Mr. Hobs as judiciously as any position he lyes down but want of knowledge of what is necessary Civil War for their own defence and covetousness to part with nothing they can hold makes this restive humour in many That the Kings of England have quitted that Soveraign badge of raising money upon the Subject by their own Impositions without consent of Parliament is manifest since Edward the First 's time (b) 27 E. 1. c. 5. Anno 1299. The Act for which runs thus For so much as divers People of our Realm are in fear that the Aids and Tasks which they have given us before time towards our Wars and other business of their own grant and good will howsoever they were made might turn to a Bondage to them and their Heirs because they might be at another time found in the Rolls and likewise for the prices taken throughout the Realm by our Ministers We have granted for us and our Heirs that we shall not draw such Aids Task nor Prices into a Custom for any thing that hath been done heretofore be it by Roll or any other Precedent that may be found (c) Cap. 6. The next is thus Moreover we have granted for us and our Heirs as well to Archbishops Bishops Abbats Priors and other folk of Holy Church as also to Earls Barons and to all the Commonalty of the Land that for no business from henceforth we shall take such manner of Aids Tasks nor Prices but by the common assent of the Realm and for the common profit thereof See for this the Charter of King John saving the ancient Aids and Prices due and accustomed These being not fully enough expressed the Statute of 34. E. 1. though as short in words as any to be found yet is of the largest extent and as liberal a Boon of Royal bounty as any People can boast of from their Prince It is thus No Tallage or Aid shall be taken or levied by Us or our Heirs in our Realm without the good will and assent of Archbishops Bishops Earls Barons Knights Burgesses and other Free-men of the Land Therefore all those who would enjoy the benefit of this Law must take care they preserve the Succession and the two Houses of Parliament (d) MS. Speech second Parl. Elâ—z an 1562. Inducements to supply the Sovereign The Lord Chancellor in Queen Elizabeth's time thus by the Queens command discourseth to the Houses If when any part of the natural Body hap to be in danger the Head and every part hasteth to the relief so how inconvenient and unnatural is it when danger is offered to the whole that the Head should take the whole care and bear the whole burthen and the Members remain uncareful and uncharged It is certain (e) Coke Instit 1.90 the Prince can make no War of any great concernment without the assistance of his Subjects Purses as well as Bodies unless all would voluntarily serve upon their own charges for that neither sudden dangers can be evaded nor Forces raised and all things necessary for them provided nor peace be long preserved when the Prince hath an empty Exchequer for Treasure is Firmamentum Belli Ornamentum Pacis A late (f) States of France Objection French Author concerning his own Country makes this objection That Princes having assigned for their usual charges of the Government Tribute and other Incomes they ought to be therewith contented and not without occasion raise new Taxes to the detriment of the Liege people and contrary to the intention of the Trust Yet he owns this ought to be soberly understood for a wise Physician applies those Remedies necessary without the Patient's leave and will force him though by cutting off a Limb to save his life So when there may happen a necessity urgent and unforeseen that either will suffer no delay or which ought not for some time to be divulged in such cases saith he the King without the States and whether they will or no may lay new Impositions and make all other necessary provisions by the absolute Power he hath to rule and preserve his State and Subjects he not being able to defend them without necessary Forces Therefore in such occasions it is to be supposed that with the Power of Government there is transferred to the Prince the Power to do that without which good Government cannot be executed but when there is not that kind of necessity the States are called Thus far my Author Since therefore (g) Coke 1. Insiit p. 161. qui diruit medium destruit finem he that takes away the necessary means for a King to preserve his people in uncommon events hazards the ruine of the People some have inferred that when dangers should be so sudden that there could not be time to convene a Parliament or that such a Parliament met should for some design deny the Prince Money then the Kings Prerogative might extend to the raising of Money and they instance in the Loans by Privy Seals exacted upon the Subjects even in Queen Elizabeth's time This indeed was the Plea for Ship-money and as the case was stated by King Charles the First Concerning Ship-Money all the Judges once subscribed their affirmative opinions though Mr. Justice Hutton and Crooke retracted after and with great learning the case was argued and Judgment given in favour of the King Yet he hoping by the yielding to the abolishing of it to have stopped the misery of a War consented to an
Act for that purpose yet that prevented not the Inundation of blood and we found those men that moved Heaven and Earth with their clamours against the King as governing arbitrarily when they got the Power made it their dayly practice to lay what unprecedented illegal Taxes they pleased on their fellow Subjects to the value as some compute of Forty Eight Millions Therefore all Judicious persons lovers of their King The Advantages to Prince and People when the Crown is liberally provided for Country and Posterity finding the sad effects those disputes brought to the Blessed King and the whole Kingdom will think it a necessary prudence in a Prince to have always such a provision of Money ready as will enable him in all difficulties that may occur in the Administration of the Government without being obliged to part with any of his Royal Prerogatives when any discontented or designing Factious Members shall be able to take advantage of his Wants whereby to drive their barter with the Crown for thereby he shall defeat their ends On the other side it will be the most prudent and dutiful course both for their own security and the Princes honour for Parliaments upon all just and honourable Wars or occasions of assisting Allies preparing Fleets in readiness upon necessary defence to assist the Prince liberally and repay out of the Publick what for publick Service he hath expended out of his own Revenue rather than he should be in disesteem with his Neighbours and Allies whereby the honour of the Prince and consequently of his Subjects should be Eclipsed or he be necessitated to take any unusual course for raising Money or be compelled to make any inglorious Peace for we can never forget how the want of supplies to King Charles the First brought not only Ship-money and Knight-hoodmony Monopolies and the long disuse of Parliaments but at last that most calamitous War upon the whole Nation We cannot forget how zealous an House of Commons was of late to prevent any Arbitrariness as it was insinuated Decemb. 17.1680 The Care of some Parliaments to keep the King poor in the late King so that they voted a Bill to be brought in against illegal Exaction of Money upon the People under the Penalty of Treason not foreseeing that the Charters of the City of London and many other Corporations were forfeitable upon that account which if it had been made Treason the King had got a good Revenue against the intentions of those who in all appearance voted for a contrary end which further appeared in their Vote Jan. the 7th following (h) Address part 3. That whosoever should lend or cause to be lent by way of advance any Money upon the branches of the Kings Revenue arising by Customs Excise or Hearth-money the three principal branches should be judged to hinder the sitting of Parliament and be responsible for the same in Parliament So that they would give nothing themselves but as much as in them lay terrified others from lending or advancing any Money to him which was not according to their Writ to advise but by duress and force to compel the King to submit to their Judgments and instead of giving him Assistance to support his Allies and enable him to preserve Tangier they tended to the disenabling him from contributing to either by his own Revenue and Credit not only exposing him to the dangers that might happen either at home or abroad but endeavouring to deprive him of the Possibility of supporting the Government it self and reduce him to a more helpless Condition than the meanest of his Subjects as the King sadly and justly complained and in that Vote the Subjects Liberty and Property was invaded in that he could not dispose of his Money to his own Profit and the Benefit of the Government if either Insurrection or Rebellion happened in the interval of Parliament or a foreign Force on a sudden should attacque us yet these Gentlemen would be counted Loyal and Dutiful Subjects It is not to be denyed but that if a Prince's standing Revenue were so great that by it he might not only support the ordinary expences of the Government but lay by a summ sufficient to defray all extraordinary incident Charges either occasioned by intestine Rebellions or foreign Invasions that a King should not have occasion to have so often recourse to Parliaments for Aids Yet when we confider that there would be many other occasions of frequent convening that great Council for making wholesom Laws which is one great Portion of their Business and that the Subjects never can be happy under a poor Prince who thereby should be brought into contempt and how much greater mischiefs accrue to the Subjects by rendring their Prince impotent and unable to preserve them from factious disturbers of their Peace and Repose and the preserving their Properties as well as the defending them from the designs of foreign Princes who would injure our Merchants lock us in our Island and force us to sell our own native Commodities and receive theirs at what Rates they pleased if our Soveraign were not able to keep a sufficient Fleet and infinite other Mischiefs which would accompany a starved Exchequer we should too late find that the Expence of many Millions would not again restore us to that condition of Prosperity and Renown that one timely bestowed on our Prince would preserve us in It is much less Charge to keep in good Repair a well-built Fort Castle or Man of War than to build a new one especially if upon the demolishing of the old we were to fight for the Ground and Materials whereupon and wherewith we should build the new It is a singular Security to the English Subject that no Money can be levied upon him but by Act of Parliament to which in his Representatives he gives his Consent and the House of Commons is generally careful that they understand a great necessity ere they pass any Money-bill yet we have known in our Age some that have stood upon such terms with their Sovereign that either he hath chosen rather to want Supplies than have them upon such hard Terms or their Principals have suffered a thousand times more by such denials than they had done if they had been granted So was Constantinople lost to the Turks for want of furnishing the Emperor with the hundredth part of that which the victorious Enemy plundered the Citizens of and so the Count Palatine elected King of Bohemia lost that Kingdom and all his Hereditary Seigniories by unfurnishing his Soldiers with present Pay when he had it by him And how many suffer by the want of a liberal and proportionable Supply to pay off the Debts of the Exchequer is too sadly felt by many and if the Parliament of 1639. had furnished King Charles the First with twelve Subsidies as it appears by the sequel the Expence of four times as many Millions besides the infinite quantity of Christian Blood shed in the
will have more honourable and contented Thoughts and own not only the Truth but yield to the necessity of that of (g) Fato quodam aut sorte nascendi ut caetera ita Principum inclination in hos ossensio in illos Annal. lib 4. Tacitus That as our Birth s are ascribed to Fate or Chance so the Inclinations of Princes to some and their dislike to others as he instanceth in Lepidus under Tiberius We see in the great Oeconomy of the World which we must believe is disposed by the Universal Monarch some noble Families in every Age are Extinct and other new ones by their Vertues and great Accomplishments are raised and the Cadets of others like some Rivers are hid for some space under Ground till when they appear again they are know by their refined Parts to be of noble Abstract Not to repine at the Prince's Favours bestowed on others The Sun is the same most luminous Body though some Maculae are observed in it by curious Telescopes and if Princes Beams shine not always with the same Serenity upon the district of some Families that it hath done it is no more than the Sun in the great Vortex doth and is no more to be repined at Therefore it becomes those noble Souls to be content with their large allotments and shake off all those Vipers that would sting them with Envy and Discontent It is well worth such Noblemens Consideration how their Interests are interwoven with that of the Crown and if any unhappily have loosened the twine or frozen the Zeal they have for its support let them call to Mind the Vertue and Bravery of their Ancestors and observe what Gemms or Gold-work they were of it and strive to fasten themselves there again and out of the Embers kindle again that Loyalty they have derived ex traduce from their generous Ancestors so that (a) Lucan 1.2 v. 557. Fervidus hac iterum circa praecordia Sanguis Inacleat And as the Crown hath bestowed Honour and Wealth upon their noble Families so let them never be wanting with their utmost Industry to support it in all its splendid Prerogatives and of all the Infamy of Mortals let not ingratitude be laid to their Charge How the Nobility may honourably acquaint their Prince with Grievances The Nobility are Conciliarii nati and as their Birth and places give them easy access to the Princes Privy-Chamber and Cabinet though they be not of his secret Council so they have opportunities to present the State of Affairs and ill managery or grievances of the People when they conceive them concealed from their Prince both better and more effectually than others of a lower Rank But then it should be done like Persons of Honour with all Respect and Duty to their Prince and the ostentation of this sort of Charity should not lessen the usefulness of it much less should they blow a Trumpet when they perform it either to aggrandize the Enterprize or to raise discontent at the denial In every Kings Reign it hath been a flourishing time and happy when the Nobility studied with a refined laudable Contention to aemulate one anothers Vertue striving to out-do one another in the Service of their King and Country uniting in that glorious Testudo to defend their Princes Prerogative and the Laws that adjust their own and the Peoples Priviledges It is never to be forgot how in our late Commonwealth How Common-wealths depress the Nobility the House of Peers was by the very Posteriors of the Commons Voted useless and dangerous No sooner was that sacred Head separated from them but they were degraded to Commoners as to any Legislative Power and though those Noblemen that were content to fit in the lower House were highly caressed and applauded yet a few Years hath changed the note and their Names will be recorded to Posterity in far less Lustre than if they had more strenuously espoused the afflicted Kings Quarrel and it is not to be doubted but the Sence of that will be a most prevalent Antidote against the Defection of any of the Nobility that will consider the naturalness of such a degrading if the Commonwealth-Men should ever appear again without their Vizors and it will be an excellent amulet to keep them from the Infection of such Principles and Practice It is worth noting that William the Conqueror giving to his Nobility great Fees to be held of him in Capite How the Nobility had greater Power anciently than now for some Ages the Nobility had great Interests and numerous dependences and had special Jurisdiction over great Baronies and while they served the Crown according to their Tenures the inferior Gentry and Commoners being one way or other Tenents to them could do little in opposition to the Crown But when in King John and Henry the Third's time their greatness was dangerous to the Crown the Commons were brought in to be a part of the Parliament Yet for some while after they retained their Grandeur till as I have hinted Henry 7. retrenched them and Queen Elizabeth preferring so many new Men makeing less use of the ancient Nobility studied to gain the common Peoples Affections by all Arts and Bounties she could use and in after-Ages the Nobility being less valued by the Freeholders and encreased in Number and some of them adhering to the two Houses against their Sovereign their interests both with the Parliament and People grew less But now under a Prince who sets a true value upon the Nobility if they he not wanting to themselves they may hope to attain the lustre of their noble Ancestors and the Commoners be no ways abridged of their Priviledges For then the Government is in the happiest Condition when the Nobility are great without Ambition rich without Oppression eminent in Vertue as in Character The Gentry so deporting themselves to the Commonalty as they desire the Nobility may to them and the Commonalty with humble Industry peaceably enriching themselves and enjoying that freedom and liberty which may keep them in Heart and Courage to serve their Prince and Country with chearful Alacrity and out-do those of their Rank in all other Dominions which in the English Soldiery is observed in all Wars to be their peculiar Excellency ascribable principally to the Benignity of the Government which dispirits them not and when this liberty is not abused to Licentiousness but restrained within the Bounds of humble Candor and Modesty Reverence to their Superiors and thankfulness to their Prince all is in an happy Frame CHAP. XXXVIII Of the Gentry of England I Shall not detain the inquisitive Reader upon the derivation of the Word Gentilhom or Gentleman but refer him to (a) Titles of Honour P. 861 862. Whence the Name Mr. Selden who at large discusseth the point whether with Velserus and some others it be derived from Gentilis or Heathen as introduced when the Goths Hunns and Vandals having overrun the Roman Provinces were in a
it was so once by the Prince and so the vulgar instantly credit his Sentiments as Oracles so that he having already acquired an easy belief with the greatest facility in the World puts a false gloss upon the Princes best designed Actions and retaining his old dependences they will whisperingly disperse his sence of things Let him then make himself heads of the Country Party and the true Protestants as of late some affected to be called and he is presently without further labour and industry adored as the Peoples prime Patriot Having got Tools enough to work with still pretending his concern for the Publick weal of the People and at the same time tacitly insinuating some reflections upon his Quondam-fellow Counfellors depreciating their Wisdom and Honesty and leaves the application to his Admirers They will be sure to aggravate all appearances of Male-Administration since his laying aside and insinuate that Affairs have a tendency to oppression of the People altering Religion or such like plausible Subjects and so by little and little the Peoples affections will be estranged from their Prince and shall be set upon this new Idol the fallen Lucifer If the Soveraign upon some emergences by necessitated to call a Parliament he shall obtain a great if not a major part of the Members chosen according to the Common Peoples by as he shall put upon them most opposite to the Kings Interest In such an Assembly he shall be sure to have great Interest and under some pretences of Grievances of the Subject render useless to the Affairs of the Soveraign and upon its necessary dissolution improve still his Interest that the succeeding Parliament shall be as wayward and by promoting Bills he knows his Soveraign can neither in Honour or Conscience assent to still more alienate the Peoples affections from him till at last he get to be sole Director of such Assemblies having all this while the Wisdom and cunning to keep himself within the compass and reserve that for Words or Actions he be not obnoxious to the Laws Having obtained this height he is able to influence the Elected of City Magistrates secure himself by them and at last to form Conspiracies against his Prince till which time he being the Idol of the People is only feared and suspected but nothing of Traiterous Designs being yet pregnantly discovered he runs on his risk till some fortunate discovery of his designs force him to abscond and then his whole machinations come to light and if he escape the hand of Justice he is forced to leave his Countrey and ends his life ingloriously abroad This is the common exit of such who had much better have offered violence to these headstrong Passions and been content with a quiet retreat and dieted and physicked their virulent distempers with the applications of sage Counsel and the Precepts of Judicious Men finding out the cure for their Diseases in Books and Solitude than thus to live in the Pangs and Throes of Ambition to the disquiet of their Prince and the emptying of their Country Of such we may not only say with (h) Percandam posthac modestiam ut contentius esset Tacit. 4. Annal. Drusus That Modesty must be prayed to that they be content with their Greatness but Justice must be invoked to prune such luxuriant Branches as not only overtop and Shade all the rest but suck away from them all their Sap and Nourishment In (i) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lib. 2. Dio Cassius I find it advised That such Criminals as these that are above the stroke of Justice and whom a Prince cannot with security to himself bring to a Publick Trial should not be arraigned but as open Enemies instantly punished So some Princes finding such subtle ambitious Men beyond the reach of their Justice by way of publick Arrest and Trial by the Law being satisfied in their Consciences that they were hatching great mischiefs to their State and the subversion of their Government have commanded by their Soveraign Power execution of them by private hands So fell Frier (k) History of Hungary George newly made Cardinal for tampering with Solyman the magnificent to bring him into Transilvania and exclude King Ferdinand by direction from the King to Castald his General there So fell the Duke of Guise and the Cardinal of Burbon but this sort of Justiec brought as great mischiefs afterwards to their Crowns as they could in probability have sustained by their lives at least if the Prince had with watchful oversight so timed the Execution that they had let them live till they had made their Treasons more manifest So Tacitus (l) Inauditi atque indefensi tanquam inno centes â—erierunt 1. Histor speaking of Galba's putting to death Cingonius Varro and Petronius Turpillianus saith That they being not suffered to be heard and defend their Causes judicially perished in the repute of Innocents Therefore there are other ways more just and safe for Princes to take with so great and subtile Criminals As to toyle them into some great errours give them opportunities to shew their ill Conduct and Council or to do something ungrateful to the People that they may go out of their places with such a scar as will stick by them in their retirement and study to enjoy a quiet recess lest they be called to an account for what they connived at when they fell so if they can be rendred unuseful and of little credit with the People they will have none to back them in their attempts but Persons of small Reaches and Interest and then for smaller Transgressions they may be called to an account and if they be conscious to themselves of any guilt they will quit their undertakings for fear of a suddener Catastrophe than Ostracism If such Ambitious Persons have gained so great Interest that neither by setting Spies upon them or by other Arts their secret drift can be sifted out * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 5. Polit. c. 11. then Aristotle's Rule is to be observed by compassings and windings to remove them and not to tak all their Power away at once or to remove them to some higher place where they may have a new Administration to begin in which they are not so well versed on wherein they can do nothing without the Prince and his Councils daily inspection and where no dependences are to be gained Above all a Prince is to take care to follow the (m) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. Philosophers Rule to make no man too great for as he saith It is the safeguard of the Principality to make no one Man great For Tacitus (n) Semper periculosum privati hominis nomen supra nomen Principis attolli Vita Agricolae well observed It is most inconvenient and dangerous to have any one more in vogue than the Prince for if such have not powerful Principles of Loyalty lodged in their breasts they have great temptations and opportunities to do Mischiefs especially
sought after as the Trumpets and Kettle-drums that call together the whole Array against the Government And if they cannot be dispossessed of that Evil Spirit by gentler means they are to undergo the severity of the Laws which are made against Incendiaries of a Kingdom which is of more dangerous consequence than the firing of a Private Man's Habitation The danger from these Libels are the greater because (g) In civitate discordi ob crebras Principum mutationes inter libertatem licentiam incerta parvae quoque res magnis motibus agebantur Tacit. 2. Hist in times of Faction and the often Changes of Government the People being unfixed fluctuating betwixt Liberty and Licentiousness small Matters are transacted with great Emotions As to Corporations they have all of them been endowed with their Privileges by the Grace and Bounty of the Sovereign from whence all Immunities and Honours do flow The first Institution of them was no doubt Concerning Corporations that Justice might be executed in them for the better governing their numerous Inhabitants that they might be the Places of Traffick where the adjacent Country might be supplied and their Neighbours might vend their Growth and Manufacture And thus being enriched by Commerce separated from their Country-Neighbours by Honours Offices and Liberties something a Gentiler Education might be expected there whereby they might be Patterns to their adjoyning Neighbours of good and vertuous Deportment being exempted from the Jurisdiction of the Justices of Peace and attendance upon Assizes whereby Legal Matters in order to the necessary Administration of Justice are executed in their Precincts by their own Members and many of them besides the Privileges to be found at large in the Statutes and Law-Books have power to chuse as many to represent them in Parliament as the whole County hath It would fill a large Volume to recount the particular Powers and Freedoms have been granted to them by the Royal Favour of the successive Kings of England whereby they are erected into little Commonwealths Therefore there is good reason as they may do much good or harm and they have all the enriching Streams and Conduits from the Sovereign Spring and Fountain so they should have a strict dependence upon the Sovereign that they may not employ those great Privileges against the Laws and Government nor the rich pragmatical Magistrates Citizens and Freemen animate Factions and Seditions against it or presume to obtrude their impertinent Advices upon their Sovereign or by their clamorous Petitions for Redress of pretended Grievances and Male-administration or by their Election of Factious Representatives dispose of the Fate of the Empire as they did in 1641. by their general Combinations with the then Parliament which they so effectually assisted in their Rebellion It is too manifest how little Justice the two last Kings could have in the great Metropolis the King 's Imperial Chamber or in other Corporations although they had all less or more received great Instances of their Royal Favours and Graces And tho' the great City by the late King of Immortal Memory 's Royal Munificence and Princely Care as much as in him lay by Act of Parliament and his own particular Bounty after it was so fatally reduced to Ashes was raised into one entire Palace so beautiful and splendid as all People must acknowledge it the Eighth Wonder yet the grateful Returns were unproportionable This great City enjoyed as ample and beneficial Privileges as any could wish for and though it be deprived of some of them yet by the Munificence of our late and present Sovereign it enjoys what is needful for its well governing in subordination to the Publick Since therefore the Corporations mostly were found to have made ill Returns to their Sovereigns for all their special Graces by a most wise Council it hath been judged fit to enquire by what Warrant they enjoyed those Privileges and to recall those Charters that new ones might be granted mostly with Additions of Privileges only that the Magistrates if they should abuse their Authority might be displaced at the King's Pleasure A most necessary Resumption of Power whereby they might not be in a capacity for the future to give any Disturbance to the Government Elsewhere I have given short Hints of the Practice of former Kings in vacating the Charters of the great City and shall only add what I find in the most Judicious Historian was done in a like Case by the Senate of Rome in Tiberius his Reign The Licence (h) Crebrescebat enim Graecas per urbes licentia atque impunitas asyla statuendi complebantur â—â—mpla pessimis servitiaâ—um eodem subsidio obaeraâ—i adversus creditores suspectique capitalium criminum receptabantur nec ullum satis validum Imperium erat coercendis seditionibus populi flagitia hominum ut Caeremonias Deum protâ—entes Igitur placitum ut mitterent civitates Jura atque Legauos c. Magnaque ejus diei species fuit quo Senatus majorum beneficia sociorum pâ—cta Regum etiam qui ante vim Romanam valuerant decreta Ipsorum numinum Religiones introspexit libero ut quondam quod firmaret mutareâ—ve Tacit. 3. Annal. and Impunities of ordaining Sanctuaries and Privileged Places encreased saith my Author throughout the Cities of Greece the Temples were filled with most lewd Bondslaves in the same were received Debtors against their Creditors and Men guilty of Capital Crimes were protected neither was there any powerful Authority able to bridle the Sedition of the People Villanies were protected no less than the Ceremonies of the Gods Therefore it was appointed That the Cities should send their Agents with their Laws Some by way of Resignation of their Charters freely remitted those things they had falsely usurped many did confide in the Antiquity of their Superstitions and their Deserts to the People of Rome The Pomp of that Day saith the Historian was great in shew In which the Senate for Tiberius had left the Senate a Shadow of their ancient Estate by sending the Requests of the Provinces to be examined by them considered of the Privileges granted by their Predecessors the Agreements with their Confederates the Decrees of the Kings before the Countries became subject to the Romans and the Religion of the Gods themselves to confirm or alter all By which it may appear to be no new thing for Sovereigns to enquire into the Privileges of Cities tho' claimed by Divine Original as many of those were from their Gods or by the Bounties of Princes As to Conventicles the Nurseries of Seditions since the Laws are obvious by which they may be suppressed and that in another Chapter I have treated of them I shall take no further notice of them here being as unwilling that truly consciencious mis led People that endanger not the Government should be severely punished as I heartily wish they would give no Disturbance to it CHAP. XLVI The Preservatives against Faction and Sedition THE general Amulets
a name of Continuance which as the Law presumes shall always remain as Head and Governour of the People For the English Monarchy (x) Coke 4. Report Praef. knows no Interregnum being Successive by inherent Birthright whereby infinite inconveniences are avoided so that the young Phenix stays not to arise out of the Spicy ashes of the old but the Soul of Royalty by a kind of Transmigration passeth immediately out of one body into another and in the same manner will every right Heir acquire the Royalty after his Predecessor ceaseth to be Therefore the judicious Lord (y) Interregnum aut tituli suspensionem â—aeges Regni non permittere Hist H. 7. p. 26. Verulam observes That H. 7. knowing that the Laws permit not any interim suspension or stay of the Title and having no mind to own his Queens Title the best She being the Heiress of the house of York as he in some respects was Heir of the House of Lancaster he ordered the Act so that it should neither be by recognition nor his Title be established by a new Law (z) Potius media via institit simplicis stabilimenti Ideo verbis tectis utrinque nutantibus his ut haereditas Coronae resideres remaneret continuaretur in Rege but chose a milder way viz. of simple Establishment in covert words interpretable several ways that the inheritance of the Crown should reside remain and continue in him So King James in his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 p. 209. tells the Prince That at the very moment of the expiring of the King Reigning the nearest and lawful Heir entreth in his place and so to refuse him or intrude another is not to hold out the Successor from coming in but to expel and put out their Righteous King So Sir (a) Report 7 8 10 11. Calvin ' s Case Watson and Clark ' s Case 1 Jac. 1. Edward Coke affirms That it is a known Maxim of the Laws That in the moment of the descent of the Crown the person on whom it descends which is the next immediate Heir only becomes complete and absolute King to all intents and purposes And so he saith The second Son of the King of England after (b) 3. Instit 8. the death of the first-born is eldest Son within the Statute of 25 E. 3. as it was resolved in the case of Prince Charles concerning the Dutchy of Cornwall It would be a tedious work to recite all the Authorities in this Case may be found in the Statutes and Law-Books I will content my self instead of all others with the Act of (c) Cap. 2. Recognition 1 Jacobi primi wherein The Recognition of King James the First after the two Houses had enumerated the benefits by the Conjunction of the Houses of York and Lancaster and the uniting of England and Scotland in the Kings Person and that They agnize their constant Faith Obedience and Loyalty to him and his Royal Progeny The worlds of the Act are In most humble and lowly manner do beseech your most Excellent Majesty as a memorial to all posterity among the Records of your High Court of Parliament for ever to endure of our Loyalty Obedience and hearty humble affection it may be published and declared in the High Court of Parliament and enacted by Authority of the same That we being bound thereunto by the Laws of God and man do recognize and acknowledge and thereby express our unspeakable joyes that immediately upon the dissolution and decease of Elizabeth late Queen of England the Imperial Crown of the Realm of England c. did by inherent Birthright and lawful undoubted Succession descend and come to your most Excellent Majesty as being lineally justly and lawfully next and sole Heir of the blood Royal of this Realm as is aforesaid c. and thereunto we most humbly and faithfully do submit and oblige our selves our Heirs and Posterities for ever until the last drop of our blood be spent and do beseech your Majesty to accept the same as the first-fruits of this High Court of Parliament of our Loyalty and Faith to your Majesty and your Royal Progeny and Posterity for ever By which it first appears that the Crown of England is an unalterable Entail and the reversion in him only by whom Kings reign without any Election or consent of the People otherwise than by acknowledging the lawful Right of the Kings derived from God by their blood to them Also from this Recognition we may consider How to understand the Act made by Queen Elizabeth against the Claims of Mary Queen of Scots Secondly what to think of that Act of Queen Elizabeth That if any Person shall affirm that the Parliament of England has not full power to bind and govern the Crown in point of Succession and descent that such a Person during the Queens life shall be guilty of High Treason For we must consider that by the words bind and govern we may conceive the sence to be That the Parliament is Judge where there are differences (d) Jus Regium p. 181. betwixt Competitors in nice and controvertible points which cannot be otherwise decided So that such temporary Acts as these are to be interpreted and restrained by other uncontroverted Laws We must also look upon it as made to secure the Queen against Mary Queen of Scots and to let her know it was to no purpose for her to design any thing against the Right or Person of Queen Elizabeth upon that ground as may be presumed the Queen of Scots might claim for that Queen Elizabeth by Act of Parliament had been declared a Bastard Therefore to let her know that it was to no purpose to insist upon any such claim and that her other Right as next undoubted Heir by blood to the Crown might be altered or governed this Act was made So that we must from hence conclude That it was to be reckoned only as one of those Statutes which the Law says are made ad terrorem ex terrore only which may appear the more evidently because it was never made use of For it is to be mainly considered that this Law being made to exclude Queen Mary and the Scotish Line as appears by that clause wherein it is declared That every Person or Persons of what degree or Nation soever they be who shall during the Queens life declare or publish that they have Right to the Crown of England shall be disinabled to enjoy the Crown in Succession Therefore it was never valid (e) Id. p. 183. For if it had been good King James might have thereby been excluded by that person who should have succeeded next to the Scotish Race For it is undeniable that Queen Mary did during Queen Elizabeth's life pretend Right to the Crown upon the account that Queen Elizabeth was declared Bastard Therefore the calling in of King James after this Act and the acknowledging his Title do clearly evince that the
Issue according to the present interests of his Affairs and Passions that such contradictory Acts could not be all true and though the Responses from Delphos or any Oracles of the Gentile ages might miss the truth as much yet by their dubious answers they forfeited not their reputations so much We may also note (l) Jus Regium p. 178 179. that by God Almighty's Providence and the care of his own Laws the Duke of Richmond was removed by death to prevent the unjust Competitors and Prince Edward was born and by the same Providence and the sence the Subjects had of the great Fundamental of Hereditary Succession contrary to some of these Acts and what Edward the Sixth did in setling the Crown upon the Lady Jane Grey proved of no force for Queen Mary succeeded though she was a Papist and Queen Elizabeth succeeded her though she was declared Bastard The rights of Blood prevailing over the Formalities of Divorce and the Dispensations of the Popes and the Laws made to gratify Henry the Eighth's pleasure as the strength of nature doth often prevail over Poisons and to evince the greater certainty of their being void so little notice was taken of those and the subsequent Acts Anno 1535. that the Heirs of the Blood succeeded without repealing that Act as an Act in it self invalid from the beginning For such Acts are past by without being repealed as we find in the Act of Recognition of Queen Elizabeth no notice was taken of the Act of Parliament against her and Blackwood (m) P. 45. observes very well that so conscious were the makers of these Acts Jus Regium p. 179. of the illegality of them and of their being contrary to the immutable Laws of God Nature and Nations that none durst produce that Kings Testament wherein he did nominate a Successor conformable to the power granted by those Acts but that as soon as they were freed by his Death from the violent oppressions that had forced them to alter a Successor three several times and at last to swear implicitly to whomsoever he should nominate they proclaimed first Queen Mary and after her decease Queen Elizabeth Therefore all these Acts both of Henry the Eighth and Edward the Sixth are to be looked upon as Politick interims to serve for some present ends And as we observe the trepidations vibrations and as we may say uneasiness of things in all that have been displaced till reseated again whereby we have a certain Indicium of any thing Natural so may we note the naturalness of Hereditary Succession by the Tragical Convulsions and unsetledness of things in any State where great force and policy have usurped the Crown till it hath returned to the right owner So we see after the force was removed by the expiration of Henry the Eighth and Edward the Sixth things returned again into their pristin State according to the Laws of the Crown I shall now pass to consider other Reasons and First it may be observed Fundamentals in Government not to be altered That the Venerable Age of such Fundamental Laws should have another kind of respect pay'd to them than to be made obsolete because they will not sort with some new-fashioned Intrigue For it is a most true Maxime Non magis aliunde floret respublica quam si legum vigeat Authoritas So in the first Parliament (n) Cap. 2. of King James the First it is fully expressed That to alter and innovate the Fundamental ad Ancient Laws See Commission for Union 16â—4 Priviledges and good Customs of the Kingdom whereby not only the Kings Regal Authority but the Peoples securities of Lands Livings and Priviledges both in general and particular are preserved and maintained and by the abolishing or alteration of the which it is impossible but that present confusion will fall upon the whole State and frame of Government is of most dangerous consequence whence we may well infer That to endeavour to alter the right of Succession of the Crown in the direct line is one of the most dangerous Innovations of all others as drawing innumerable mischiefs after it Now there can be no greater fundamental right than the Succession of our Monarch The Hereditary Succession is a Fundamental That our Monarchy is Hereditary is the great Basis upon which most of all the positions of the Laws are established which every where we meet with in the Writings of Lawyers viz. That the King never dies the next Successour in Blood is legally King from the very moment in which the last King dies that there needs neither Coronation or Recognition of the People to intitle him to the exercise of his Regal Authority that his Commissions are valid all Men are liable to do him Homage and hold their rights of him and his Heirs he may call Parliaments dispose of the Lands belonging to the Crown and all that oppose him are Rebells Generally this Principle runs through all the Veins of our Laws it is that which gives Life and Authority to our Statutes but receives none from them which are undeniable marks and Characters of a Fundamental Right in all Nations Secondly Such further provision hath the Law made to secure the Succession in the direct line that if the right Heir of the Blood or the Father or Mother of the right Heir be attainted of High Treason by Parliament the Attainder is no obstruction to the descent If he who were to succeed had committed Murther or were declared Traytor formerly to the Crown for open Rebellion against the King and Kingdom yet upon his coming to the Crown he need not to be restored by Act of Parliament but his very right of Blood would purge all these Imperfections For tanta est Regii sanguinis praerogativa dignitas ut vitium non admittat nec se contaminare patiatur saith a (o) Craig learned Lawyer and the Reasons given are For that no Man can be a Rebel against himself nor can the King have a Superior and consequently there can be none whom he can (p) Jus Reg. p. 169. offend and it would be absurd that he who can restore all other Men should need to be restored himself Also the Punishments of Crimes such as Confiscations c. are to be inflicted by the Kings Authority or to fall to the Kings Treasury and it would be most absurd that a Man should exact from himself a Punishment So Richard Plantaginet Duke of York and Edward the Fourth his Son were both attainted yet Edward the Fourth was rightful King and no impediment in the Succession accrued by it So Charles the Seventh of France though banished by Sentence of Parliament did afterwards succeed to the Crown and though Lewis the Twelfth forfeited for taking up Arms against Charles the Eighth yet he succeeded and Alexander Duke of Albany and his Descendants being declared Traytors by his Brother King James the Fourth yet his Son John being called home upon
few Years In Three Books The Whole illustrated with divers accurate Maps and Figures Written originally in Italian by Adam Oliarias Secretary to the Embassie Rendred into English by John Davies of Kidwelly The Second Impression The History of the Execrable Irish Rebellion trac'd from many preceding Acts to the Grand Eruption October 23. 1641. and thence pursued to the Act to Settlement in 1662. The Journals of all the Parliaments during the Reign of Queen Elizabeth both of the House of Lords and House of Commons Collected by Sir Simon D' Ewes of Stow-Hall in the County of Suffolk Knight and Baronet Revised and published by Paul Bowes Esq of the Middle Temple I Ragguagli di Parnasso or Advertisements from Parnassus in Two Centuries With the Politick Touchstone Written originally in Italian by that Famous Roman Traâ—ano Bocalini And now put into English by the Right Honourable Henry Earl of Monmouth Cosmography and Geography In Two Parts The First containing the general and absolute Part of Cosmography being a Translation from that eminent and much-esteemed Geographer Varenius wherein are at large handled all such Arts as are necessary to be understood for the true knowledge thereof To which is added the much wanted Schemes omitted by the Author The Second Part being a Geographical Description of the World taken from the Notes and Works of the Famous Monsieur Sanson late Geographer to the French King To which is added about One hundred Cosmographical Geographical and Hydrographical Tables of several Kingdoms and Isles in the World with their Chief Cities Sea-Ports Bays c. Drawn from the Maps of the said Sanson Illustrated with Maps The Annals of King James and King Charles the First of ever Happy Memory containing a faithful History and impartial Account of the Great Affairs of State and Transactions of Parliaments in England from the Tenth Year of King James 1612. to the Eighteenth of King Charles 1642. Wherein several material Passages relating to the late Civil Wars omitted in former Histories are made known A perfect Copy of all the Summons of the Nobility to the Great Councils and Parliaments of this Realm from the Forty ninth of King Henry the Third until these present Times With Catalogues of such Noblemen as have been summoned to Parliament in Right of their Wives and of such other Noblemen as derive their Titles of Honour from the Heirs Female from whom they are descended and of such Noblemens Eldest Sons as have been summoned to Parliament by some of their Fathers Titles Extracted from Publick Records by Sir William Dugdale Knight Garter Principal King at Arms. The History of the Affairs of Europe in this present Age but more particularly of the Republick of Venice Written in Italian by Baptista Nani Cavalier and Procurator of St. Mark Englished by Sir Robert Honywood Knight The History of Barbadoes St. Christophers Mevis St. Vincents Antego Martinico Monserrat and the rest of the Caribby-Islands in all Twenty eight In Two Books The First containing the Natural the Second the Moral History of those Islands Illustrated with several Pieces of Sculpture representing the most considerable Rarities therein described The Works of the Famous Nicolas Machiavell Citizen and Secretary of Florence Written originally in Italian and now faithfully translated into English A Compleat Treatise of Preternatural Tumors both General and Particular as they appear in Humane Bodies from Head to Foot To which also are added many excellent and Modern Historical Observations concluding most Chapters in the whole 〈…〉 Discourse The Present State of the Ottoman Empire from the Year 1623. to the Year 1677. Containing the Reigns of the Three last Emperors viz. Sultan Morat or Amurat the Fourth Sultan Ibrahim and Sultan Mahomet the Fourth his Son the Thirteenth Emperor By Sir Paul Ricaut late Consul at Smyrna The History of the Cardinals of the Roman Church from the time of their first Creation to the Election of Pope Clement the Ninth With a full Account of his Conclaves In three Parts Written in Italian by the Author of the Nepotismo di Roma The World Surveyed or The Famous Voyages and Travels of Vincent le Blanc of Marcelles into the East and West Indies Persia Pegu Fez Morocco Guinny and through all Africa and the Principal Provinces of Europe A General Collection of Discourses of the Virtuosi of France upon Questions of all sorts of Philosophy and other Natural Knowledge Made in the Assembly of the Beaux Esprits at Paris by the most Ingenious Persons of that Nation Englished by G. Havers In two Volumes A Treatise of the Sibyls giving an Account of the Names and Numbers of them of their Qualities the Form and Matter of their Verses and of their Books Written in French by David Blondell Englished by Jo. Davis of Kidwelly Tracts written by John Selden Esq of the Inner Temple The first entituled Jaâ—â— Anglorum Facies altera Rendred into English with large Notes thereupon by Redman Westcoat Gent. The second England's Epinomis The third Of the Original of Ecclesiastical Jurisdictions of Testaments The fourth Of the Disposition or Administration of Intestate Estates Printed for Tho. Basset and R. Chiswell and sold by R. Clavell Basilica Chymica Praxis Chymiatrica or Royal and Practical Chymistry augmented and enlarged By John Hartman To which is added His Treatise of Signatures of Internal Things or a true and lively Anatomy of the Greater and Lesser World as also the Practice of Chymistry of John Harâ—man M. D. augmented and enlarged by his Son with considerable Additions All faithfully Englished by a Lover of Chymistry The Compleat Chymical Dispensatory in Five Books treating of all sorts of Metals Precious Stones and Minerals of all Vegetables and Animals and Things that are taken from them as Musk Civet c. How rightly to know them and how they are to be used in Physick with their several Doses The like Work never extant before Being very proper for all Merchants Druggists Chirurgeons and Apothecaries and such Ingenious Persons as study Physick or Philosophy Written in Latin by Dr. John Scroder that most Famous and Faithful Chymist and Englished by William Rowland Doctor of Physick The Royal Pharmacopaea Galenical and Chymical according to the Practice of the most Eminent and Learned Physicians of France and published with their several Approbations By Moses Charâ—as the King 's Chief Operator in his Royal Garden of Plants Faithfully Englished and illustrated with several Copper Plates An Abridgment of divers Cases and Resolutions of the Common Law Alphabetically digested under several Titles By Henry Rolls Serjeant at Law Published by the Lord Chief Baron Hales and approved by all the Judges The Reports of Sir George Croke Knight In three Volumes in English Allowed of by all the Judges The second Edition carefully corrected by the Original Les Reports de Henry Rolle Serjeant del ' Ley de divers Cases en le Court del ' Banke le Roy en le Temps del ' Reign de Roy Jaques Colligees
ensuing War had been prevented in all humane probability Therefore it is to be hoped that both Parliaments will be careful to supply the wants of the Crown and Princes will for the future be as careful so to imploy the Monies given that they may encourage their Subjects as often as the urgency of Affairs may require it to give freely what may be useful and sufficient for their Kings urgent occasions (i) Nec juvâ—ntam armis civilibus aut domesticis discordiis imbutam nulla odia nullas injuri is nec cupidinis ultionem afferre 13. Annal. c. 1. It is noted by Tacitus that Nero coming to the Empire told the Senate that he being not brought up in Civil Wars or domestical discords would bring with him neither hatred nor grudge nor desire of Revenge and promised them many good things which were very acceptable (k) An cuncta vectigalia omitti juberet Idque pulcherrimum donum generl mortalium daret Sed impetum ejus multum prius laudata animi magnitudine attenuere Senatores dissolutionem Imperii docendo si fructus quibus Respublica sustineretur diminuerentur Lib. 13. c. 12. to the Senate and People but doubting with himself whether it were best to command that no more Subsidies or Tributes should be levied but he should bestow so fair a Donative on the World though this commended the Bounteousness of his Mind yet the Lords of the Senate stayed him from such a Resolution telling him It would be the Dissolution of the Empire if the Revenues by which it was sustained should be diminished These and such Considerations that ever to be Renowned House of Commons convened 23 May 1685. have had and with an unaccustomed speed supplied the King plentifully which was a most effectual means to stifle the Rebellion of the late Duke of Monmouth and the Earl of Argile and such chearful Aids will render his Majesty able to pursue his most Princely Design not only of making the English Name more considered and respected abroad The King's Speech 30 May 1685. but of carrying the Reputation of it yet higher in the World than it has been in the time of many of his Royal Ancestors Which induced the most wise King to tell them That the readiness and chearfulness that attended the dispatch of it was as acceptable to him as the Bill it self and that he would not call upon them for Supplies but when they should be of publick use and advantage and that he would manage what they gave with good Husbandry and take care to employ them to the uses for which he asked them So long as such a considerately liberal Mind continueth in the two Houses and the Money is lodged in the Exchequer of such a Prince we may presage a most happy time and neither fear intestine Rebellions nor foreign Enemies and besides the unspeakable Benefits to our selves the advantage must redound to his Majesties Allies and the general Repose of Christendom may depend much upon it there being little doubt to be made but if our late Soverereign of Blessed Memory had been seasonably and effectually supplied the Lilies of France had not been so rankly planted and secured in Flanders nor been watered with so much Christian Blood nor probably had we at home been in so imminent a danger of a Civil War as we were by the subtile Devices of those who knew that the Royal Eagle could make no extraordinary flight when his Golden Pinions were shortned CHAP. XXXVII Of the Nobility HAving hitherto treated of the Excellency of Government and particularly of that of England and the just and beneficial Soveraignty of the Prince under several Heads Method requires that I speak something of the Subjects who they are and their Duties and lastly of the causes of Disturbance or Dissolution of Government by Faction Sedition Conspiracy and Rebellion of which in order and first of the Nobility as those who justly make the greatest Figure in the Government next to the Royal Lineage The (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. l 4. c. 4. Philosopher makes four kinds of Nobility First such as have the Possession of great Riches Several kinds of Nobility and are abbe to bear a great Port. Secondly such as have been so from great Antiquity Thirdly those that by Vertue and great Atchievements have acquired Honour and Renown Lastly such as in Learning are Eminent Under these Heads the Nobility may yet be ranked if we take it in a large Sence as the fit Subject upon which the Sovereign may impress that Character But my design is to speak of the second and third Order only How the Word Nobiles hath been used in the Latin and Greek Empire when it was the addition to Caesar in the Branches of the Emperors Families and how in later times I shall not trouble the Reader with but refer the curious to the most Learned Selden and to what I shall note in the Chapter of the Gentry Great Vertues have sublimed their Bloods A Character of the Nobility and separated them from the dregs of the Crowds Others are Vessels of Common Clay they are all China and Porcellane others of Lead Iron Brass or Silver they of pure Gold or Diamonds of the old Rock They are Stars of the first Magnitude in the Firmament of Government yea the Firmament it self betwixt the upper and the nether Waters betwixt the pure Aether of Celestial Intelligences the Sovereign and Princes of the Blood and the terrestrial Waters of the Commons The Blessed Medium the double Trench to defend the Crown and the People That there should be such illustrious Persons is absolutely necessary for that in a Multitude there must be some Necssity of a Nobility who designing to live vertuously and having Souls of a richer Composition by their own proper uncommon Atchievements and the transcendency of their Vertues shall lay the Foundation of that Nobility which afterwards enriched and augmented by the noble Actions of their Successors will make their Families splendid and Illustrious So that Soveraigns the Fountains and Disposers of all Honours justly reward them with the Ensigns of Nobility The present Nobility or their noble Ancestors by fidelity and their great Capacities to serve the Crown and Commonweal have been gilded with those Rayes and have Characters impressed upon them undefaceable by any thing but Treason which taints their Blood or Degeneracy which smuts their Esteem They are the Buttresses of the Throne the Gold and Silver work of the Regalia (b) St. Alban's Essays c. 14. It is a Reverend thing saith the ingenious Chancellor to see an ancient Castle or Building not in Decay Of Ancient Nobility or a fair Timber Tree firm and sound how much more to behold a noble ancient Family which hath stood against the waves and weather of Time New Nobility is but the Act of Power the ancient the Act of Time Those who are first raised to Nobility are commonly more