Barons only i. e. By Reason of the Temporal Baronies annexed to their Bishopricks and not as they are Spiritual Persons And they further urge in Confirmation of their Opinion 1. That no Bishop notwithstanding his Election Consecration Confirmation c. can be a Lord of or sit in Parliament till the King has granted to him the Temporalities of the Bishoprick 2. N. B. Tho this Stat. was repealed by Q. Mary yet that Repeal was repealed by Q. Elizabeth c. As the Parliamt at Bury 24 E. 1. 1 Eliz. all the Acts about Religion passed Dissentientibus Episcopis See Journal Dom. Procer 11 H. 7.27 Bro. Par. 107. Kelway 184. 3 The Commons See hereafter See Sadler's Rights p. 79. to 93. That by Virtue of the Stat. 1 E. 6. c. 2. still in Force The King may constitute Bishops by his Letters Patent only without any Election or Consecration and 3. That Parliaments have been and may be held Excluso Clero exclusive of the Bishops and Clergy and that some of our most beneficial Statutes have been enacted whereto the whole Body of the Clergy dissented all which they say prove the Bishops to be no essential Part or any of the three Estates of Parliament And in Trinity Term 7 H. 8. tis agreed by all the Judges of England That the King may well hold his Parliament by himself and his Lords Temporal and Commons without any Bishops or Spiritual Lords at all The third Estate of which we shall herein principally treat is on all Hands confess'd to consist of the Knights Citizens and Burgesses with the Barons of the Cinque-Ports all which being at this Day elected by the free Votes of the Freemen of Great Britain are properly esteem'd the Representative Body of the People and constitute that Part of the Parliament usually called the House of Commons N. B. The antient Modus Tenendi Parl. reckons up six Degrees or Orders of Parliament but that Division cannot be denominated six Estates The Numbers of the Commons Numb of Commons formerly See Mr. Willis's Preface to his 1 Vol. of Net Parl. Prynn of Parliamentary Writs I find to have been formerly variant according as the Sheriffs of Counties from what Motive is uncertain were pleased to direct their Precepts to the several Cities or Burros within their respective Counties or as the same Sheriffs made their Returns thereupon But indeed another Cause of this Variation was That it was usual for the Prince on his Accession to the Throne to grant Charters to antient Demesne Vills and other popular Towns thereby erecting 'em into free Burros and this consequently gave 'em a Right to be represented in Parliament And by this Artifice among others the Crown advanced its Interests in the House of Commons For it must be confess'd That by the antient Constitution there were no Representatives of the Commons as Commons in Parliament besides the Knights for the Shires the Barons for the Cinque Ports Crompt of Courts f. 2.3 c. Stat. 23. H. 6. c. 11. the Citizens for the Cities and the Burgesses for the ancient Burros only and that the Elections for all those were to be made by such Persons only as were possess'd of Lands or Tenements held by them as Freeholds or free Burgage Tenures which consequently excluded all Villeins and Copyholders Stat. 12. R. 2. c. 12. Crom. 2.3.4.5 Bro. Ant. Dem. 43â— as also Tenants in antient Demesne which were but the King's Villeins and the Tenants and Dependants of other Lords Parl. 96. Reg. 261. Nat. Bre. 14. from being either the Electors or elected of the House of Commons Indeed the Practice of increasing the Number of the Representatives of the Commons See Bohun's Col. per Tot. began very early viz. Temp. Johan if not before for I find it a Practice of that Prince to grant usually in Consideration of Money c. Charters to Antient demesne Towns as generally all Sea-Port Towns were thereby erecting 'em into free Burroughs The Representative of London and West p. 14. 10 p. 21. Spelm. in voce Major and hence it was as I conceive That Bridport Dorchester Harwich Helstone Kingston upon Hull and divers other antient demesne Towns came to be erected into free Burros which originally had no Right of being represented in Parliament But whatever Methods were then taken to encrease the Number of the House of Commons I find their Number to be much the same from the End of H. the 6th's Reign Fortescue p. 40. to the Beginning of that of H. the 8th viz. about 300. That H. 8. MS. Penes Authorem added to their Number 38. King Ed. 6. added to their Number 44. Queen Mary added to their Number 25. Queen Elizabeth added to their Number 62. King James the 1st added to their Number 27. And King Charles the 1st about 10. or 12. so that at the Time of the Restoration of King Charles 2. I find their Numbers to have been about 500. But the Commons about that Time restrained this mischievous Practice for the Future so that they declared the Elections made by Virtue of that Prince's Charters void and as Chester had been enabled to send two Members for the County and two for the City by Virtue of a Sta. 34.35 St. 34.35 H. 8. c. 13 St. 25. C. 2. c. 9. H. 8. so an Act past in the 25 Car. 2. enabling Durham to send four Members in like Manner and thus the Number of the House of Commons stood at 513 till the Union of the Kingdoms of England and Scotland when by Virtue of the Union Act St. 5. An. c. 8. forty-five Scottish Members were added which made the whole Number of that House to be 558 as it now stands Mr. Prynn and Others observe Denominations of Parliam Prynn's Rights of the Com. c. p. 99. 99. Spelm. Glossary in verb. Parlam Debata That our Ancestors had many Expressions and Phrases which signify'd a Parliamentary Assembly as Magnates Regni Omnes Regni Nobiles Proceres et Fideles Regni Universitas Regni Communitas Regni Discretio Totius Regni Generale Concilium Regni and many others varying the Stile in successive Ages till at length it came to be fix'd in the Word Parliament See divers Records and Precedents touching this Matter in the Appendix to Mr. Petyt's Miscellanea Parliamentaria Mr. Prynn also says Prynn's Truth triumphing over Falshood c. f. 69. Petyt's Antient Rights c. p. 68. That by many antient Precedents before the Conquest it is apparent that all our pristine Synods and Councils were nought else but Parliaments and that our Kings Nobles Senators Aldermen Wisemen Knights and Commons were usually present and voted in them as Members and Judges And Mr. Lambard Sir Robert Atkyns's Argument p. 18. see hereafter in his Archaeion maintains That Parliaments were used in the Saxon Times as in the Time of King Ina Ann. 712 and other Saxon Princes and that they then consisted of King Lords and Commons And that the
against his Body and the like And by this it appeareth what Persons are de Jure triable by the Lords in Parliament viz. their Peers only which Bishops are not Judgments in Parliaments for Death have generally been strictly guided per Legem Terrae i.e. Lex Parliamenti d. 168. The Parliament hath three Powers Sir Rob. Atkyns Argument c. 36. a Legislative in Respect of which they are call'd the three Estates of the Realm a Judicial in respect of this it is call'd Magna Curia or the High Court of Parliament a Counselling Power hence it is call'd Commune Concilium Regni The Parliament gives Law to the Court of King's-Bench Id. 49. and to all other Courts of the Kingdom and therefore it is absurd and preposterous that it shou'd receive Law from it and be subject to it The greater is not judged of the less All the Courts of Common Law are guided by the Rule of the Common Law Id. 50 but the Proceedings of Parliament are by quite another Rule The Matters in Parliament are to be discussed and determined by the Custom and Usage of Parliament and the Course of Parliament and neither by the Civil nor the Common Law used in other Courts Ibid. The Judges of all the Courts of Common Law in Westminster are but Assistants and Attendants to the High Court of Parliament And shall the Assistants judge of their Superiors The High Court of Parliament is the dernier Refort Ibid. and this is generally affirm'd and held but it is not the last if what they do may yet again be examin'd and controlled Because the High Court of Parliament proceeds by a Law peculiar to that High Court Id 52. which is call'd Lex Consuetudo Parliamenti and not by the Rules of the Common Law and consists in the Customs Usages and Course of Parliament no Inferior Court can for this very Reason judge or determine of what is done in Parliament or by the Parliament A Statute Arc. Parl. 85. or Act of Parliament need not be proclaim'd for the Parliament represents the Body of the whole Realm for there are Knights and Burgesses of every County and Town But otherwise where it is ordained by the Act that it shall be proclaimed A Man Attainted of Felony Id. 100. or Treason shall not be restored in Blood without Parliament 28 Ed. 1. Petyt's Appendix to Miscel Parliam n. 38. A Truce being concluded between the English and French by King Edward's Ambassadors who therein had dishonourably agreed to include the Scots the Ambassadors at the ensuing Parliament were sharply rebuked and corrected not only by the King himself the Prelates and Nobles but by the Commons The Court of Parliament was the Sanctuary Turner's Case of Bankers 36. whether the distressed Subject in his Exigence fled for Shelter and Refuge and alway found it Into the Sacred Bosom of Parliaments it was Ibid Vide Several Precedent and Records that they poured out their Sighs and Groans with constant Success and when in Cases of high Nature the Common Law was arrested and stopt in her proceedings Parliaments evermore ran into ther Rescue and in dutiful ways discharged those Locks and Bars which had been unjustly fastned on the Exchequer The Right of the Crown of England Stat. Prov. 25 Ed. 3. Rast Stat. 99. and the Law of the said Realm is such that upon the Mischiefs and Damages which happen to the Realm the King ought and is bound by his Oath of the Accord of his People in Parliament thereof to make Remedy c. To conclude this Chapter Le Parliament ad Absolute poiar en touts Cases come a faire Leys d'adjuger Matters en Ley a trier vie del home a reverser Errors en Bank le Roy especialment lou est ascun Commune Mischief que l'ordinary Course del Ley n'ad ascun means a remedier en tiel Case ceo est le proper Court Et tonts choses que ils font sont come Judgments Et si le Parliament mesme erre Finche's Nomotecnia l. 2. c. 1. f. 21. 22. come il poet ceo ne poet estre reverse en ascun Lieu forsque en le Parliament Which because it is omitted as several other things are in the Book translated into English I will thus give it the Reader that does not understand French The Parliament hath Absolute Power in all Cases as to make Laws to adjudge Matters in Law to try Men upon their Lives to reverse Errors in the King's Bench especially where there is any Common Mischief which the ordinary Course of the Law hath not any means to remedy in such Case this is the proper Court And all things which they do are as Judgments And if the Parliament it self errs as it may that cannot be reversed in any place but in Parliament Sir Robert Cotton See Sir Robert Cot. Treatise of Parliaments p. 44 45 c in his Discourse of the Privilege and Practice of Parliaments says thus by Parliaments all the wholesom Fundamental Laws of this Land were and are Establish'd and Confirmed By Act of Parliament the Pope's Power and Supremacy in this Kingdom and the Romish Superstition and Idolatry were abrogated and abolished By Act of Parliament God's true Religion Worship and Service are or may be establish'd and maintain'd By Act of Parliament the two Universities of Oxford and Cambridge with other Cities and Towns have had many Privileges and Immunities granted em By Parliament one Pierce Gaveston a great Favourite and Misleader of King Ed. 2. was remov'd and Banished and afterwards by the Lords Executed Also by Parliament the Spencer's Favourites and Misguiders of the same King were Condemned c. and so was Delapool in H. 6. Time and others since By Parliament Empson and Dudley two notable Polers of the Common-wealth by exacting Penal Laws on the Subjects were Discover'd and afterwards Executed By Parliament the Damnable Gunpowder Treason hatch'd in Hell is recorded to be had in Eternal Infamy By Parliament one Sir Giles Mompesson a Caterpiller and Poler of the Common-wealth by exacting upon In-holders c. was discover'd degraded and Banished by Proclamation By Parliament Sir Francis Bacon Note the Censure on the late E. of Macclesfield Quere made by K. James 1. Baron of Verulam Viscount of St. Albans and Lord Chancellor of England was for Bribery c. discover'd and displac'd By Parliament Sir John Bennet one of the Judges of the Prerogative Court being Pernitious to the Common-wealth in his Place was discover'd and displac'd By Parliament Lyonel Cranfield sometime a Merchant of London and made by K. James 1. Earl of Middlesex and Lord Treasurer of England being hurfull in his Place to the Common-wealth was discover'd and displaced By Parliament Note Sir Francis Mitchell a jolly Middlesex Justice of Peace in the Suburbs of London another Canker-worm of the Common-wealth by Corruption in exacting an Execution of the Laws upon poor Alchouse-keepers Victuallers c. was discover'd and degraded from his Knighthood and
less than the united Consent of all and every Person of the Kingdom and under this Notion its Power is Unlimited and Universal its Authority is the most unerring and firm support of Monarchy and Government and has been ever used as the only Expedient to accommodate the differences of Pretenders and Competitors to arbitrate and decree not only the Right and Possession but even the Inheritance and Reversion of the Regal Power to succour and defend the King and Kingdom against all possibility of Injury or Incroachment that might be Intended against or Usurped upon it or its Authority to decree the Nations Liberties ascertain Property and to establish an unquestionable Peace and Security to all the People both from the danger of Grievances at Home or the Assaults of foreign Power In this capacity it hath Power above the Law itself Hollinshead c. 1. vol. 1. p. 173. having Power to alter the common Law of England to declare the meaning of any doubtful Laws to repeal old Patents Grants or Charters and Judgments whatsoever of the King or any other Court of Justice if erroneous or illegal and extends so far as finally to oblige both King and People to punish Offenders of all Sorts to examine into the corruptions of Religion and either to disanul or reform it Anno 1626. 2. Rushw Coll. vol. 1. p. 245. Car. the Commons in their Remonstrances declare that it hath been the antient constant and undoubted Right and Usage of Parliaments to question and complain of all Persons of what degree soever found grievous to the Common-Wealth in abusing the Power and Trust committed to them by the Sovereigns a Course approved of by frequent Presidents in the best and most glorious Reigns appearing both in Records and Histories c. In 30. E. 3. 7. H. 4. Rot. Parl. N o 31 32. the Parliament accused John de Gaunt the King's Son and Lord Latimer and Lord Nevil for misadvising the King and they went to the Tower for it In 11. Rushw Ib. p. 627. H. 4. N o 13. the Council are complained of and are removed from the King for that they mewed-up the King and disuaded him from the common Good In 4. H. 3. 27. E. 3. 13. R. 2. the Parliament moderateth the King's Prerogative and nothing grows to an Abuse says Sir Edward Coke but the Parliament hath Power to treat of and Correct it And King James the 1st Idem p. 62â— put the Commons assembled in Parliament in mind that it would be the greatest unsaithfulness and breach of Duty to his Majesty and of the Trust committed to them by the Country that could be if in setting forth the Grievances of the People and the Condition of all the Petitions of this Kingdom from whence they come they did not deal clearly with him without sparing any Persons how near and dear soever they were unto him if they were hurtful or dangerous to the Common-Wealth The most High and Absolute Power of the Realm of England Sir Tho. Smith's Common-wealth l. 2. c. 2. p. 72. Arcana Parl. 1. consisteth in the Parliament For as in War where the King himself in Person the Nobility the rest of the Gentility and the Yeomanry are is the Force and Power of England So in Peace and Consultation where the Prince is to give Life and the last and highest Commandment the Barony or Nobility for the higher the Knights Esquires Gentlemen and Commons for the lower part of the Common-wealth the Bishops for the Clergy be present to advertise consult and shew what is good and necessary for the Common-wealth and to consult together and upon mature deliberation every Bill or Law being thrice read and disputed in either House the other two parts first each a part Ibid p. 73. and after the Prince himself in presence of both the Parties doth consent unto and alloweth that it is the Prince's and whole Realm's Deed whereupon justly no Man can complain but must accommodate himself to find it good and obey it Thus the concurrent Consent of these three Estates when reduced to writing Inst Leg. p. 34. and pass'd in Parliament is as it were a Tripartite Indenture between King Lords and Commons and that which is so done by this Consent is called firm stable and sanctum and is taken for Law As to the Power of Parliaments Sir Tho. Smith ibid. Arc. Parl. 2. Vide Crompt Jur. 3. 1. It abrogateth old Laws 2. Maketh new Laws 3. Giveth order for things past 4. Directs things hereafter to be followed 5. Changeth Right and Possessions of private Men. 6. Legitimateth Bastards 7. Establisheth Forms of Religion 8. Altereth Weights and Measures 9. Giveth Form of Succession to the Crown 10. Defineth of doubtful Rights whereof is no Law already made 11. Appointeth Subsidies Tallies Taxes and Impositions 12. Giveth most free Pardons and Absolutions 13. Restoreth in Blood and Name 14. And as the highest Court condemneth or absolveth them who are put upon their Trial. In short Ibid. all that ever the People of Rome might do either Centuriatis Comitiis or Tributis the same may be done by the Parliament of England which representeth and hath the Power of the whole Realm both the Head and Body For every Englishman is intended to be there present either in Person or by Procuration and Attorny of what preheminence state dignity or quality soever he be from the Prince be he King or Queen to the lowest Person of England And the Consent of the Parliament is taken to be every Man's consent As to its Power over both the Statute and Common Law of this Realm Rastal's Statutes fol. 546. 25 H. 8. c. 21. you will be best informed of it from the memorable words of an Act of Parliament itself viz. Whereas this Realm recognizing no Superiour under God but only the King hath been and is free from Subjection to any Man's Laws but to such as have been devised made and ordained within this Realm for the Wealth of the same or to such other as by Sufferance of the King and his Progenitors the People of this Realm have taken at their free Liberty by their own Consent to be used amongst them and have bound themselves by long Use and Custom to the Observance of the same not as to the Observance of the Laws of any Foreign Prince Potentate or Prelate but as to the Custom and antient Laws of this Realm originally established as Laws of the same by the said Sufferance Consents and Custom and none otherwise It standeth therefore with Natural Equity and Good Reason that all and every such Laws Humane made within this Realm by the said Sufferance Consents and Custom that the King and the Lords Spiritual and Temporal and the Commons representing the whole State of this Realm in the most High Court of Parliament have full Power and Authority not only to dispence but also to authorize some Elect Person or Persons to dispence with those and all other Human Laws of