THE Free-holders GRAND-INQUEST Touching Our Sovereign Lord the King, and His Parliament.
EVery Free-holder that hath a Voice in the Election of Knights, Citizens or Burgesses for the Parliament, ought to know with what Power he trusts those whom the chooseth, because such Trust is the Foundation of the Power of the House of Commons.
A Writ from the King to the Sheriff of the County, is that which gives Authority and Commission for the Free-holders to make their Election at the next County-Court-day after the Receipt of the Writ; and in the Writ there is also expressed the Duty and Power of the Knights, Citizens and Burgesses that are there elected.
[Page 2]The means to know what Trust, or Authority the Country or Free-holders confer, or bestow by their Election, is in this, as in other like Cases, to have an eye to the words of the Commission, o [...] Writ it self: thereby it may be seen whether that which the House of Commons doth act be within the Limit of their Commission: greater or other Trust than is comprised in the Body of the Writ, the Free-holders do not, or cannot give if they obey the Writ: the Writ being Latine, and not extant in English, few Free-holders understand it, and fewer observe it; I have rendred it in Latine and English.
QUia de Advisamento & Assensu Concilii nostri pr [...] quibusdam arduis & urgentibus Negotiis, Nos, statum, & defensionem regni nostri Angliae, & Eccles [...] Anglicanae concernen', quoddam Parliamentum nostru [...] apud Civitatem nostram West. duodecimo die Novembr [...] prox. futur' teneri ordinavimus, & ibid. cum Praelat [...] Magnatibus & Proceribus dicti regni nostri colloquiu [...] habere & tract: Tibi praecipimus firmiter injungent [...] quod facta proclam. in prox. comitat' tuo post receptione [...] hujus brevis nostri tenend' die & loco praedict. duos mili [...] gladiis cinct' magis idoneos & discretos comit' praedict [...] & de qualib. civitate com' illius duos Cives, & de qu [...] libet Burgo duos Burgenses de discretior' & magis suffcientibus libere & indifferenter per illos qui proclam' h [...] jusmodi interfuerint juxta formam statutorum inde ed [...] & provis' eligi, & nomina eorundum milit', civium [...] Burgensium, sic electorum in quibusdam indentur' int [...] te & illos qui hujusmodi election' interfuerint, inde confidend' [Page 3] sive hujusmodi electi praesentes fuerint vel absentes, inseri: eósque ad dict' diem & locum venire fac'. Ita quod iidem milites plenam & sufficientem potestatem pro se & communitate comit' praedicti, ac dict' Cives & Burgenses pro se & communitat' Civitatum & Burgorum praedictorum divisim ab ipsis habeant, ad faciendum & consentiendum his quae tunc ibid' de communi Consilio dicti reg. nostri (favente Deo) contigerint ordinari super negotiis ante dictis: Ita quod pro defectu potestatis hujusmodi, seu propter improvidam electionem milit' civium aut Burgensium praedictorum, dicta negotia infecta non remaneant quovismodo. Nolumus autem quod tu nec aliquis alius vic' dicti reg. nostri aliqualiter sit electus. Et electionem illam in pleno comitatu factam, distincte & aperte sub sigillo tuo & sigillis eorum qui electioni illi interfuerint, nobis in cancellar' nostram ad dict' diem & locum certifices indilate, remittens nobis alteram partem indenturarum praedictarum praesentibus consut' una cum hoc breve. Teste meipso apud Westmon.
‘WHereas by the Advice and Consent of our Councel, for certain difficult and urgent Businesses concerning Us, 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 the day of next ensuing, and there to have Conference, and to treat with the Prelates, Great men and Peers of our said Kingdom. We command and straitly enjoyn you, that making Proclamation at the next County-Court after the Receipt of this our Writ, to be holden the day, and [Page 4] place aforesaid: 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; of every Borough, two Burgesses of the discreeter and most sufficient; to be freely, and indifferently chosen by them who shall be present at such Proclamation, according to the Tenor of the Statutes in that case made and provided: 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: 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 Boroughs, may have severally from them, full and sufficient Power to Perform, and to Consent to those things which then by the Favour of God shall there happen to be ordained by the CommonCouncel of our said Kingdom, concerning the Businesses aforesaid: So that the Business may not by any means remain undone for want of such Power, or by reason of the improvident Election of the aforesaid Knights, Citizens, and Burgesses. But We will not in any case you or any other Sheriff of Our said Kingdom shall be elected; And at the Day and Place aforesaid, the said Election made in the full County-Court, you shall certifie 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, [Page 5] together with this Writ.’ Witness Our Self at Westminster.
By this Writ we do not find that the Commons are called to be any part of the Common Councel of the Kingdom, or of the Supream Court of Iudicature, or to have any part of the Legislative Power, or to Consult de arduis regni negotiis, of the difficult Businesses of the Kingdom. The Writ only sayes, the King would have Conference, and Treat with the Prelates, Great men, and Peers: but not a word of Treating or Conference with the Commons; The House of Commons which doth not minister an Oath, nor fine, nor imprison any, but their own Members (and that but of late in some Cases) cannot properly be said to be a Court at all; much less to be a part of the Supream Court, or highest Judicature of the Kingdom: The constant Custom, even to this day, for the Members of the House of Commons to stand bare, with their Hats in their Hands in the Presence of the Lords, while the Lords sit covered at all Conferences, is a visible argument, that the Lords and Commons are not fellow Commissioners, or fellow Counsellors of the Kingdom.
The Duty of Knights, Citizens, and Burgesses, mentioned in the Writ, is only ad Faciendum, & Consentiendum, to Perform and to Consent to such things as should be ordained by the Common Councel of the Kingdom; there is not so much mentioned in the Writ as a Power in the Commons to dissent. When a man is bound to appear in a Court of Justice, the words are, ad Faciendum & recipiendum quod ei per curiam injungetur: which shews, that this word Faciendum is used as a Term in Law to signifie to give Obedience: For this, we meet with a Precedent [Page 6] even as ancient as the Parliament-Writ it self, and it is concerning Proceedings in Parliament. 33. Ed. 1. Dominus Rex mandavit vicecom' quod &c. summon' Nicolaum de Segrave, & ex parte Domini regis firmiter ei injungeret, quod esset coram Domino Rege in proximo Parl. &c. ad audiendum voluntatem ipsius Domini Regis &c. Et ad Faciendum & recipiendum ulterius quod curia Domini Regis consideraret in Praemissis: ‘Our Lord the King commands the Sheriff to summon Nicholas Segrave to appear before the Lord our King in the next Parliament to hear the Will of the Lord our King himself, and to Perform and receive what the Kings Court shall further consider of the Premises.’
Sir Ed. Coke to prove the Clergy hath no Voice in Parliament; saith, that by the Words of their Writ their Consent was only to such things as were ordained by the Common Councel of the Realm. If this argument of his be good, it will deny also Voices to the Commons in Parliament, for in their Writ are the self-same words, viz. to consent to such things as were ordained by the Common Councel of the Kingdom. Sir Edw. Coke concludes, that the Procuratores Cleri, have many times appeared in Parliament, as Spiritual Assistants, to Consider, Consult, and to Consent; but never had voice there; how they could consult, and Consent without Voices he doth not shew: Though the Clergy (as he saith) oft appeared in Parliament, yet was it only ad consentiendum, as I take it, and not ad faciendum, for the Word Faciendum is omitted in their Writ; the cause, as I conceive is, the Clergy, though they were to assent, yet by reason of Clerical Exemptions, they were not required to Perform all the Ordinances or Acts of Parliament.
But some may think, though the Writ doth not express a Calling of the Knights, Citizens, and [Page 7] Burgesses to be part of the Common Councel of the Kingdom; yet it supposeth it a thing granted, and not to be questioned, but that they are a part of the Common Councel.
Indeed if their Writ had not mentioned the Calling of Prelates, Great men, and Peers to Councel, there might have been a little better colour for such a Supposition: but the Truth is, such a Supposition doth make the Writ it self vain and idle; for it is a senseless thing to bid men assent to that which they have already ordained: since ordaining is an Assenting; and more than an Assenting.
For clearing the meaning and sense of the Writ, and Satisfaction of such as think it impossible but that the Commons of England have alwayes been a part of the Common Councel of the Kingdom, I shall insist upon these Points. 1. That anciently the Barons of England were the Common Councel of the Kingdom. 2. That until the time of Hen. 1. the Commons were not called to Parliament. 3. Though the Commons were called by Hen. 1. yet they were not constantly called, nor yet regularly elected by Writ until Hen. 3. time.
For the first point M. Cambden in his Britania, doth teach us, that in the time of the English Saxons, and in the ensuing Age, a Parliament was called, Commun [...] concilium, which was (saith he) Praesentia Regis, Praelatorum, Procerumque collectorum, the Presence of the King, Prelates and Peers assembled; No mention of the Commons: the Prelates and Peers were all Barons.
The Author of the Chronicle of theApud Selden. Church of Lichfield, cited by M. Selden, saith, Postquam Rex Edvardus, &c. Concilio Baronum Angliae, &c. After King Edward was King; by the Councel of the Barons of England he revived a [Page 8] Law which had layen asleep threescore and seven years: and this Law was called the Law of St. Edward the King.
In the same Chronicle it is said, that Will. the Conquerour anno regni sui quarto apud Londin', ha [...] Concilium Baronum Suorum, a Councel of his Barons And of this Parliament it is, that his Son Hen. 1. speaks saying, I restore you the Laws of King Edward the Confessor, with those amendments wherewith my Father amended them by the Councel of his Barons.
In the fifth year, as M. Selden thinks, of the Conquerour, was a Parliament or Principum conventus, a [...] Assembly of Earls and Barons at Pinenden Heath i [...] Kent, in the Cause between Lanfranke the Arch-bishop of Canterbury, and Odo Earl of Kent. The King gave Commission to Godfrid, then Bishop of Constan [...] in Normandy, to represent His own Person for Hearing the Controversie (as saith M. Lambard;) and caused Egelrick the Bishop of Chichester (an aged man, singularly commended for Skill in the Laws and Customes of the Realm) to be brought thither in a Wagon for his Assistance in Councel: Commanded Haymo the Sheriff of Kent to summon the whole County to give in Evidence: three whole dayes spent in Debate: in the End Lanfranke and the Bishop of Rochester were restored to the Possession o [...] Detling and other Lands which Odo hath withholden▪
21. Ed. 3. fol. 60. There is mention of a Parliament held under the same King William Apud Selden. the Conquerour, wherein all the Bishops of the Land, Earls and Barons, made an Ordinance touching the Exemption of the Abby of Bury from the Bishops of Norwich.
In the tenth year of the Conquerour: Episcopi, Comites, & Barones regni regia potestate ad universalem [Page 9] Synodum pro causis audiendis & tractandis convocati, saith the Book of Westminster.
In the 2 year of William 2. there was a Parliament de cunctis regni Principibus; another which hadSelden. quos (que) regni proceres: All the Peers of the Kingdom.
In the seventh year was a Parliament at Rockingham-Castle in Northampton-shire. Episcopis, Abbatibus cunctique regni Principibus una coeuntibus.
A year or two after, the same King, de statu regni acturus, &c. called thither, by the Command Selden. of his Writ, the Bishops, Abbots, and all the Peers of the Kingdom.
At the Coronation of Hen. 1. All the People of the Kingdom of England were called, andSelden. Laws were then made; but it was Per Commune Concilium Baronum meorum, by the Common Councel of my Barons.
In his third year, the Peers of the Kingdom were called without any mention of the Commons:Selden. and another a while after, consensu Comitum & Baronum, by the consent of Earls and Barons.
Florentius Wigoriensis saith, these are Statutes which Anselme and all the other Bishops in the Presence▪ of King Henry, by the assent of his Barons ordained: and in his tenth year, of Earls and Peers; and in his 23. of Earls and Barons. In the year following the same King held a Parliament, or great Councel with His Barons Spiritual and Temporal.
King Hen. 2. in his tenth year had a great Councel or Parliament at Clarendon, which was an Assembly of Prelates and Peers.
22. Hen. 2. saith Hovenden, was a great Councel at Nottingham, and by the Common Councel of the Archbishops, Bishops, Earls and Barons, the Kingdom [Page 10] was divided into six parts. And again, Hovende [...] saith, that the same King at Windsor (apud Wind [...] shores) Communi Concilio of Bishops, Earls, and Barons, divided England into four Parts. And in hi [...] 21 year a Parliament at Windsor of Bishops, Earl [...] and Barons. And another of like Persons at Northampton.
King Richard 1. had a Parliament at Nottingham in his fifth year, of Bishops, Earls, and Barons: Thi [...] Parliament lasted but four days, yet much was don [...] in it: the first day the King disseiseth Gerard de Canvil of the Sherifwick of Lincoln, and Hugh Bardol [...] of the Castle and Sherifwick of York. The second day he required judgment against his Brother Iohn who was afterwards King; and Hugh de Nova [...] Bishop of Coventry. The third day was granted to th [...] King of every Plow-land in England 2 s. He required also the third part of the Service of every Knights F [...] for his Attendance into Normandy, and all the Woo [...] that year of the Monks Cisteaux, which, for that [...] was grievous, and unsupportable, they fine for Mo [...] ny. The last day was for Hearing of Grievances [...] and so the Parliament brake up; And the same yea [...] held another at Northampton of the Nobles of th [...] Realm.
King Iohn, in his fifth year, He and his Great m [...] met, Rex & Magnates convenerunt: and th [...] Selden. Roll of that year hath Commune Concilium B [...] ronum Meorum, the Common Councel of my Baron [...] at Winchester.
In the sixth year of King Henry 3. the Noble [...] granted to the King, of every Knights Fee, two Mark [...] in Silver.
[Page 11]In the seventh year he had a Parliament at London, an Assembly of Barons. In his thirteenth year an Assembly of the Lords at Westminster. In his fifteenth year of Nobles both Spiritual and Temporal.
M. Par. saith that 20. H. 3. Congregati sunt Magnates ad colloquium de negotiis regni tractaturi, the Great men were called to confer and treat of the Business of the Kingdom. And at Merton, Our Lord the King granted by the Consent of his Great men, That hereafter Usury should not run against a Ward from the Death of his Ancestor.
21. Hen. 3. The King sent his Royal Writs, commanding all belonging to His Kingdom, that is to say, Arch-bishops, Bishops, Abbots and Priors installed, Earls and Barons, that they should all meet at London, to treat of the Kings Business touching the whole Kingdom: and at the day prefixed, the whole multitude of the Nobles of the Kingdom met at London, saith Mat. Westminster.
In his 21 year, At the Request, and by the Councel of the Lords, the Charters were confirmed.
22. Hen. 3. At Winchester the King sent his Royal Writs to Arch-bishops, Bishops, Priors, Earls and Barons, to treat of Business concerning the whole Kingdome.
32. Hen. 3. The King commanded all the Nobility of the whole Kingdom to be called to treat of the State of His Kingdom. Mat. Westm'.
49. Hen. 3. The King had a Treaty at Oxford with the Peers of the Kingdom. M. Westminster.
At a Parliament at Marlborow 55. Hen. 3. Statutes were made by the Assent of Earls and Barons.
[Page 12]Here the Place of Bracton, Chief Justice in thi [...] Kings time, is worth the observing; and the rathe [...] for that it is much insisted on of late, to make fo [...] Parliaments being above the King. The words i [...] Bracton are, The King hath a Superiour, God; also th [...] Law by which he is made King; also his Court, viz the Earls and Barons. The Court that was said i [...] those days to be above the King was a Court of Earls and Barons, not a Word of the Commons, or th [...] representative Body of the Kingdom being any pa [...] of the Superiour Court. Now for the true Sen [...] of Bractons words, how the Law, and the Court [...] Earls and Barons, are the Kings Superiours; the [...] must of Necessity be understood to be Superiours, [...] far only as to advise, and direct the King out of hi [...] own Grace and Good Will only: which appea [...] plainly by the Words of Bracton himself, wher [...] speaking of the King, he resolves thus, Nec potest [...] necessitatem aliquis imponere quod injuriam suam corrig [...] & emendat, cum superiorem non habeat nisi Deum; [...] satis ei erit ad poenam, quod Dominum expectat ultore [...] Nor can any man put a necessity upon Him to corre [...] and amend his Injury unless he will himself, sin [...] he hath no Superiour but God; it will be sufficie [...] Punishment for him, to expect the Lord an avenge [...] Here the same man, who speaking according to som [...] mens Opinion saith, the Law and Court of Earls a [...] Barons are superiour to the King; in this place tel [...] us himself, the King hath no Superiour but God: th [...] Difference is easily reconciled; according to the D [...] stinction of the School-men the King is free from t [...] Coactive Power of Laws or Councellors: but may be su [...] ject to their Directive Power, according to his ow [...] Will: that is God can only compell, but th [...] [Page 13] Law and his Courts may advise Him.
Rot. Parliament. 1 Hen. 4. nu. 79. the Commons expresly affirm, Iudgment in Parliament belongs to the King and Lords.
These Precedents shew, that from the Conquest untill a great part of Henry the Third's Reign (in whose dayes it is thought the Writ for Election of Knights was framed) which is about two hundred years, and above a third part of the time since the Conquest to our dayes, the Barons made the Parliament or Common Councel of the Kingdom: under the name of Barons; not only the Earls, but the Bishops also were Comprehended, for the Conquerour made the Bishops Barons. Therefore it is no such great Wonder, that in the Writ, we find the Lords only to be the Counsellours, and the Commons Called only to perform and consent to the Ordinances.
Those there be who seem to believe that under the word Barons, anciently the Lords of Court-Ba [...]ons were Comprehended, and that they were Called to Parliament as Barons; But if this could be proved to have been at any time true, yet those Lords of Court-Barons were not the representative Body of the Commons of England, except it can be also proved that the Commons, or Free-holders of the Kingdome chose such Lords of Court-Barons to [...]e present in Parliament. The Lords of Manors [...]ame not at first by Election of the People, as Sir Edw. Coke, treating of the institution of Court-Ba [...]ons, resolves us in these words: By the Laws and Ordinances of ancient Kings, and especially of King Al [...]red, it appeareth, that the first Kings of this Realm [...]ad all the Lands of England in Demean; and les grand Manors and Royalties they reserved to themselves, [Page 14] and of the remnant they, for the Defence of the Real [...] enfeoffed the Barons of the Realm with such Iurisdiction as the Court-Baron now hath. Coke's Institute [...] First part, Fol. 58.
Here, by the way, I cannot but note that if th [...] first Kings had all the Lands of England in Demean, [...] Sir Edward Coke saith they had; And if the fir [...] Kings were chosen by the People, (as many thin [...] they were) then surely our Forefathers were a ver [...] bountiful (if not a prodigal) People, to give all th [...] Lands of the whole Kingdom to their Kings, wit [...] Liberty for them to keep what they pleased, and t [...] give the Remainder to their Subjects, clogg'd an [...] cumbred with a Condition to defend the Realm [...] This is but an ill sign of a limited Monarchy by original Constitution or Contract. But to conclude th [...] former Point, Sir Edward Coke's Opinion is, th [...] in the ancient Laws, under the name of Barons were comprised all the Nobility.
This Doctrine of the Barons being the Comm [...] Councel, doth displease many, and is denied, a [...] tending to the Disparagement of the Commons, an [...] to the Discredit, and Confutation of their Opinio [...] who teach, that the Commons are assigned Councello [...] to the King by the People, therefore I will call in M [...] Pryn to help us with his Testimony: He in his Boo [...] of Treachery and Disloyalty &c. proves that before th [...] Conquest, by the Laws of Edward the Confesso [...] cap. 17. The King by his Oaths was to do Iustice [...] the Councel of the Nobles of his Realm. He also resolves, that the Earls and Barons in Parliament a [...] above the King, and ought to bridle him, when he exor [...] tates from the Laws. He further tells us, the Peers an [...] Prelates have oft translated the Crown from the right He [...]
- [Page 15]1. Electing and Crowning Edward, who was illegitimate; and putting by Ethelred, the right Heir after Edgars decease.
- 2. Electing and Crowning Canutus, a meer Foreigner, in opposition to Edmund the right Heir to King Ethelred.
- 3. Harold and Hardiknute, both elected Kings successively without title; Edmund and Alfred the right Heirs being dispossessed.
- 4. The English Nobility, upon the Death of Harold, enacted that none of the Danish bloud should any more reign over them.
- 5. Edgar Etheling, who had best Title, was rejected; and Harold elected and crowned King.
- 6. In the second and third year of Edw. 2. the Peers and Nobles of the Land, seeing themselves contemned, entreated the King to manage the Affairs of the Kingdome by the Councel of his Barons. He gave his Assent, and sware to ratifie what the Nobles ordained; and one of their Articles was, that he would thenceforward order all the Affairs of the Kingdom by the Councel of his Clergy and Lords.
- 7. William Rufus, finding the greatest part of the Nobles against him, sware to Lanfranke that if they would choose him for King, he would abrogate their overhard Laws.
- 8. The Beginning, saith Mr. Pryn, of the Charter of Hen. 1. is observable; Henry by the Grace of God of England, &c. Know ye, That by the Mercy of God and Common Councel of the Barons of the Kingdom, I am Crowned King.
- 9. Maud the Empress, the right Heir, was put by the Crown by the Prelates and Barons, and Stephen, Earl of Mortain, who had no good Title, assembling the [Page 16] Bishops and Peers, promising the amendment of the Law [...] according to all their Pleasures and Liking, was by th [...] all proclaimed King.
- 10. Lewis of France Crowned King by the Barons in stead of King John.
All these Testimonies from Mr. Pryn may satisfie, that anciently the Barons were the Common Councel▪ or Parliament of England. And if Mr. Pryn could have found so much Antiquity, and Proof for th [...] Knights, Citizens, and Burgesses, being of the Common Councel: I make no doubt but we should have heard from him in Capital Characters: but alas he meets not with so much as these Names in those elder Ages. He dares not say the Barons were assigned by the People, Councellors to the King; for he tells us, every Baron in Parliament doth represent hi [...] own Person, and speaketh in behalf of himself alone▪ but in the Knights, Citizens, and Burgesses, are represented the Commons of the whole Realm: therefore every one of the Commons hath a greater voice in Parliament than the greatest Earl in England. Nevertheless Maste [...] Pryn will be very well content if we will admi [...] and swallow these Parliaments of Barons for the representative Body of the Kingdom; and to that Purpose he cites them, or to no Purpose at all. But to prove the Treachery and Disloyalty of Popish Parliaments, Prelates, and Peers, to their Kings: which i [...] the main Point, that Master Pryn by the Title of hi [...] Book is to make good, and to prove.
As to the second Point; which is, That untill the time of Hen. 1. the Commons were not called to Parliament: besides, the general Silence of Antiquity which never makes mention of the Commons Coming to Parliament untill that time; our Histories [Page 17] say, before his time only certain of the Nobility were called to Consultation about the most important affairs▪ of the State: He caused the Commons also to be assembled by Knights, Citizens, and Burgesses of their own Appointment: much to the same Purpose writes Sir Walter Raleigh, saying, it is held that the Kings of England had no formal Parliaments till about the 18th year of King Hen. 1. For in his Third year, for the Marriage of his Daughter, the King raised a Tax upon▪ every Hide of Land, by the Advice of His Privy Councel alone. And the Subjects (saith he) soon after this Parliament was established, began to stand upon Terms with their King, and drew from him by strong hand, and their Swords, their Great Charter; it was after [...]he establishment of the Parliament, by colour of it, that [...]hey had so great Daring. If any desire to know the [...]ause why Hen. 1. called the People to Parliament, [...]t was upon no very good Occasion, if we believe Sir Walter Raleigh; The Grand Charter (saith he) was not originally granted Regally and freely; for King Hen. 1. did but usurp the Kingdom, and therefore the [...]etter to assure himself against Robert his elder Brother, [...]e flattered the People with those Charters: yea, King John [...]hat confirmed them, had the like Respect: for Arthur D [...] Britain was the undoubted Heir of the Crown, upon whom John usurped: so these Charters had their original [...]rom Kings, de facto, but not de jure: and then afterwards his Conclusion is, that the Great Charter had▪ [...]rst an obscure Birth by Usurpation, and was fostered, and [...]ewed to the World by Rebellion: in brief, the King cal [...]ed the People to Parliament, and granted them Magna Charta; that they might confirm to him the Crown.
The third Point consists of two parts; First, that [...]he Commons were not called unto Parliament until [Page 18] Hen. 3. dayes, this appears by divers of the Prec [...] dents formerly cited, to prove that the Barons we [...] the Common Councel. For though Hen. 1. called a [...] the People of the Land to His Coronation, and agai [...] in the 15. or 18. year of his Reign; yet alwayes h [...] did not so; neither many of those Kings that di [...] succeed him, as appeareth before.
Secondly, for calling the Commons by Writ, find it acknowledged in a Book, intituled, The Privilege and Practice of Parliaments, in these words; l [...] ancient times after the King had summoned His Parliament, innumerable multitudes of People did ma [...] their Access thereunto, pretending that Privilege [...] Right to belong to them. But King Hen. 3. havi [...] Experience of the Mischief, and inconveniences by occasion of such popular Confusion, did take order that no [...] might come to His Parliament but those who were spec [...] ally summoned. To this purpose it is observed b [...] Master Selden, that the first Writs we find accompani [...] with other Circumstances of a Summons to Parliamen [...] as well for the Commons as Lords, is in the 49 [...] Hen. 3. In the like manner Master Cambden speaking of the Dignity of Barons hath these Words King Hen. 3. out of a great Multitude which w [...] seditious and turbulent, called the very best by Writ [...] Summons to Parliament; for he, after many Troubles a [...] Vexations between the King himself, and Simon [...] Monefort, with other Barons; and after appeased: d [...] decree and ordain, That all those Earls and Barons u [...] to whom the King himself vouchsafed to direct H [...] Writs of Summons should come to his Parliament, an [...] no others: but that which he began a little before h [...] Death, Edward 1. and his Successours constantly o [...] served and continued. The said prudent King Edwar [...] [Page 19] summoned always those of ancient Families, that were most wise, to His Parliament; and omitted their Sons after their Death, if they were not answerable to their Parents in Understanding. Also Master Cambden Cambden. in another place saith, that in the time of Edw. 1. select men for Wisdom and Worth among the Gentry were called to Parliament, and their Posterity omitted if they were defective therein.
As the power of sending Writs of Summons for Elections, was first exercised by Hen. 3. so succeeding Kings did regulate the Elections upon such Writs, as doth appear by several Statutes, which all speak in the Name and Power of the Kings themselves; for such was the Language of our Fore-fathers.
In 5 Ric. 2. c. 4. these be the words, The King Willeth and Commandeth all Persons which shall have Summons to come to Parliament; and every Person that doth absent himself (except he may reasonably and honestly excuse him to Our Lord the King) shall be amerced, and otherwise punished.
7 Hen. 4. c. 15. Our Lord the King, at the grievous complaint of his Commons, of the undue Election of the Knights of Counties, sometimes made of affection of Sheriffs, and otherwise against the Form of the Writs, to the great slander of the Counties, &c. Our Lord the King, willing therein to provide Remedy, by the Assent of the Lords and Commons, Hath Ordained, That Election shall be made in the full County-Court, and that all that be there present, as well Suitors as others, shall proceed to the Election freely, notwithstanding any Request, or Command to the contrary▪
11 Hen. 4. c. 1. Our Lord the King Ordained, that a Sheriff that maketh an undue Return, &c. shall incur the Penalty of 100 l. to be paid to Our Lord the King.
[Page 20]1 H. 5. c. 1. Our Lord the King, by the Advice and Assent of the Lords, and the special Instance and Request of the Commons, Ordained, that the Knights of the Shire be not chosen, unless they be resiant within the Shire the day of the date of the Writ: and that Citizens and Burgesses be resiant, dwelling, and free in the the same Cities and Burroughs, and no others, in any wise.
6 Hen. 6. c. 4. Our Lord the King, willing to provide remedy for Knights chosen for Parliament, and Sheriffs, Hath Ordained, that they shall have their Answer, and traverse to Inquest of Office found against them.
8 Hen. 6. c. 7. Whereas Elections of Knights have been made by great Out-rages, and excessive number of People, of which most part was of People of no value, whereof every of them pretend a Voice equivalent to Worthy Knights, and Esquires; whereby Man-slaughters, Riots, and Divisions among Gentlemen shall likely be▪ Our Lord the King hath Ordained, That Knights of Shires be chosen by People dwelling in the Counties, every of them having Lands or Tenements to the value of 2 l. the year at the least, and that he that shall be chosen, shall be dwelling and resiant within the Counties.
10. H. 6. Our Lord the King ordained, that Knight [...] be chosen by People dwelling, and having 2 l. by the year within the same County.
11 H. 6. c. 11. The King, willing to provide for the Ease of them that come to the Parliaments and Councels of the King by his Commandment, hath ordained that if any Assault or Fray be made on them that com [...] to Parliament, or other Councel of the King; the Par [...] ▪ which made any such Affray or Assault, shall pay doubl [...] Damages, and make Fine and Ransom at the Kings Wil [...]
[Page 21]23. H. 6. c. 15. The King considering the Statutes of 1 H. 5. c. 1. & 8. Hen. 6. c. 7. and the Defaults of Sheriffs in returning Knights, Citizens, and Burgesses, ordained;
- 1. That the said Statutes should be duely kept.
- 2. That the Sheriffs shall deliver Precepts to Maiors, and Bayliffs to chuse Citizens and Burgesses.
- 3. The Penalty of 100 l. for a Sheriff making an untrue Return concerning the election of Knights, Citizens and Burgesses.
- 4. The Penalty of 40 l, for Maiors or Bayliffs, making untrue Returns.
- 5. Due Election of Knights must be in the full County-Court, between the Hours of Eight and Eleven before noon.
- 6. The Party must begin his Suit within 3 Moneths after the Parliament began.
- 7. Knights of the Shire shall be notable Knights of the County, or such notable Esquires, or Gentlemen born of the said Counties as shall be able to be Knights, and no man to be such Knight which standeth in the Degree of a Yeoman, and under.
The last thing I observe in the Writ for Election of Members for Parliament, is, That by the express words of the Writ, Citizens and Burgesses for the Parliament were eligible at the County-Court as well as Knights of the Shire; and that not only Free-holders, but all others, whosoever were present at the County-Court, had Voices in such Elections: see the Stat. 7. Hen. 4. cap. 15.
I have the longer insisted on the Examination of the Writ, being the Power, and Actions of the House of Commons are principally justified by the Trust which the Free-holders commit unto them by virtue of this Writ.
[Page 22]I would not be understood to determine what Power the House of Commons doth, or may exercise if the King please: I confine my self only to the Power in the Writ. I am not ignorant that King Hen. 7. in the Cause of the Duke of Britain, and King Iames in the Business of the Palatinate asked the Councel of the House of Commons; and not only the House of Commons, but every Subject in particular by Duty and Allegiance, is bound to giv [...] his best Advice to his Sovereign, when he is though [...] worthy to have his Councel asked.
13. Edw. 3. nu. 10. All the Merchants of England were summoned by Writ to appear at Westminster in proper Person, to confer upon great business concerning the Kings Honour, the Salvation of the Real [...] and of themselves.
In Passages of publick Councel it is observable (saith Sir Rob. Cotton) that in ancient times the Kings Cotto [...] of England did entertain the Commons with weighty Causes, thereby to apt and bind them to a readiness of Charge; and the Commons to shun Expence ha [...] warily avoided to give Advice.
13. Edw. 3. The Lords and Commons were called to consult how the domestick Quiet may be preserved, the Marches of Scotland defended, and th [...] Sea secured from Enemies. The Peers and Commons having apart consulted, the Commons desired Not to be charged to Councel of things of whic [...] they had no Cognisance; de queux ils n' ont pas de Cognisance.
21. Edw. 3. Justice Thorp declaring to the Pee [...] and Commons that the French War began by thei [...] Advice: the Truce after by their Assent accepted and now ended: the Kings Pleasure was to hav [...] [Page 23] their Counsel in the Prosecution: the Commons, being commanded to assemble themselves, and when they were agreed, to give notice to the King, and the Lords of the Councel; after four days Consultation, Humbly desire of the King that he would be advised therein by the Lords and others of more Experience than themselves in such Affairs.
6. Ric. 2. The Parliament was called to consult whether the King should go in Person to rescue Gaunt, or send an Army. The Commons, after two dayes Debate, crave a Conference with the Lords, and Sir Thomas Puckering (their Speaker) protests, that Councels for War did aptly belong to the King and His Lords; yet since the Commons were commanded to give their Advice, they humbly wished a Voyage by the King.
7. Ric. 2. At the second Session, the Commons are willed to Advise upon View of Articles of Peace with the French; whether War or such Amity should be accepted; they modestly excuse themselves, as too weak to Counsel in so weighty Causes. But charged again, as they did tender their Honour and the Right of the King; they make their Answer, giving their Opinions, rather for Peace, than War.
For fuller Manifestation of what hath been said touching the Calling, Election, and Power of the Commons in Parliament, it is behooful to observe some Points delivered by Sir Edw. Coke in his Treatise of the Jurisdiction of Parliaments; where,
First, he fairly begins, and lays his Foundation, that the High Court of Parliament consisteth of the Kings Majesty sitting there, and of the three Estates;
- 1. The Lords Spiritual.
- 2. The Lords Temporal.
- [Page 24]3. And the Commons.
Hence it is to be gathered, that truly and properly it cannot be called the High Court of Parliament, but whilst the King is sitting there in Person: so that the Question now a days, whether the Parliament be above the King, is either false or idle: false, if you exclude, and idle if you include the King's Person in the word Parliament: The case truly put, and as it is meant, is, whether the three Estates (o [...] which is all one, the Lords and Commons) assembled in Parliament be above the King: and not whether the King with the three Estates be above the King: It appears also that they are much mistaken, who reckon the King one of the three Estates as Mr. Pryn, pag. 20. and many others do; for the three Estates make the Body, and the King is Caput▪ Principium, & finis Parliamentor, as confesseth Sir Edw. Coke.
Secondly, Sir Edw. Coke delivers, That certain it is, both Houses at first sate together, and that it appears in Edward the Third's time, the Lords and Commons sat [...] together, and the Commons had no continual Speaker. If he mean, the Lords and Commons did sit, and Vote together in one Body; few there be that will believe it, because the Commons never were wont to lose, or forego any of their Liberties, or Privileges; and for them to stand now with their Hats in their hands (which is no Magistratical Posture) there, where they were wont to sit and Vote, is an alteration not imaginable to be indured by the Commons. It may be, in former times, when the Commons had no constant Speaker, they were oft, and perhaps for the most part, in the same Chamber, and in the presence of the Lords, to hear the Debates and Consulations [Page 25] of the Great Councel, but not to sit, and Vote with them: for when the Commons were to Advise among themselves, the Chapter-house of the Abby of Westminster was oft-times their place to meet in, before they had a settled House, and their meetings not being very frequent, may be the reason, I conceive, why the name of the House of Commons is not of such great Antiquity, or taken notice of; but the House of Lords was only called the Parliament-House: and the Treatise called, Modus tenendi Parliamentum, speaks of the Parliament as but of one House only. The House, where now the Commons sit in Westminster, is but of late Use, or Institution: for in Edward the Sixth's dayesStow. it was a Chappel of the Colledge of Saint Stephen, and had a Dean, Secular Canons and Chorists, who were the Kings Quire at his Palace at Westminster, and at the dissolution were translated to the Kings Chappel at White-hall.
Also I read, that Westminster-hall being out of Repair, Ric. 2. caused a large House to be builded betwixt the Clock-tower, and the Gate of the great old Hall in the midst of the Palace Court: the House was long and large, made of Timber, covered with Tiles, open on both sides, that all might see and hear what was both said and done: four thousand Archers of Cheshire, which were the Kings own Guard, attended on that House, and had bouche a Court, and 6 d. by the day.
Thirdly, he saith, The Commons are to chuse their Speaker, but seeing after their Choice the King may refuse him, the Use is (as in the conge d'eslire of a Bishop) that the King doth name a Discreet, Learned man whom the Commons Elect: when the Commons have [Page 26] chosen, the King may allow of his Excuse, and Disallow him, as Sir John Popham was, (saith his Margin.)
Fourthly, he informs us, That the first day of the Parliament four Iustices assistants, and two Civilian [...] (Masters of the Chancery) are appointed Receivers [...] Petitions, which are to be delivered within six dayes following: and six of the Nobility, and two Bishops, calling to them the Kings Learned Councel, when nee [...] should be, to be Tryers of the said Petitions, whether the [...] were reasonable, good, and necessary to be offered and propounded to the Lords. He doth not say, that any [...] the Commons were either Receivers, or Tryers [...] Petitions: nor that the Petitions were to be propounded to Them, but to the Lords.
Fifthly, he teacheth us, that a Knight, Citizen, [...] Burgess, cannot make a Proxy, because he is Electe [...] and Trusted by multitudes of People: here a Questio [...] may be, whether a Committee, if it be Trusted to [...] any thing, be not a Proxy? since he saith, the Hi [...] Power of Parliament to be committed to a few, is hold [...] to be against the Dignity of Parliaments; and that [...] such Commission ought to be granted.
Sixthly, he saith, The King cannot take notice of [...] thing said, or done in the House of Commons, but by [...] Report of the House. Surely, if the Commons sa [...] with the Lords, and the King were present, [...] might take notice of what was done in His Presence. And I read in Vowel, that the old Usage w [...] that all the Degrees of Parliament sate together, [...] every man that had there to speak, did it openly, bef [...] the King and his whole Parliament.
In the 35 Eliz. there was a Report, that the Commons were against the Subsidies, which was to [...] [Page 27] the Queen: whereupon, Sir Henry Knivet said, it should be a thing answerable at the Bar for any man to report any thing of Speeches, or Matters done in the House. Sir John Wolley liked the Motion of Secrecy; except only the Queen, from whom, he said, there is no reason to keep any thing: And Sir Robert Cecil did allow, that the Councel of the House should be secretly kept, and nothing reported in malam partem. But if the meaning be, that they might not report any thing done here to the Queen, he was altogether against it.
Seventhly, he voucheth an Enditement or Information in the Kings Bench against 39 of the Commons, for departing without License from Parliament, contrary to the Kings Inhibition: whereof six submitted to their Fines, and Edmund Ployden pleaded, he remained continually from the beginning to the end of the Parliament: Note, he did not plead to the Jurisdiction of the Court of Kings Bench, but pleaded his constant Attendance in Parliament, which was an Acknowledgment, and submitting to the Jurisdiction of that Court: and had been an unpardonable betraying of the Privileges of Parliament by so learned a Lawyer, if his Case ought only to be tryed in Parliament.
Eighthly, he resolves, that the House of Lords in their House have Power of Iudicature, and the Commons in their House: and both Houses together. He brings Records to prove the Power of Judicature of both Houses together, but not of either of them by it self. He cites the 33 Edw. 1. for the Judicature of both Houses together: where Nicholas de Segrave was adjudged per Praelatos, Comites, & Barones, & alios de Concilio, by the Prelates, Earls and Barons, and others of the Councel. Here is no mention of [Page 28] the Judgment of the Commons. Others of th [...] Councel, may mean, the Kings Privy Councel, [...] his Councel Learned in the Laws, which are called by their Writs to give Counsel; but so are not the Commons. The Judgment it self saith, ‘Nichol [...] de Segrave confessed his fault in Parliament, and submitted himself to the Kings Will: thereupo [...] the King, willing to have the Advice of the Earl [...] Barons, Great men, and others of his Councel, enjoyned them by the Homage, Fealty, and Alleg [...] ance which they owed, that they should faithfull counsel Him what Punishment should be inflicte [...] for such a Fact: who all, advising diligently, sa [...] That such a Fact deserves loss of Life and Member [...] Thus the Lords (we see) did but Advise the Kin [...] what Judgment to give against him that deserte [...] the Kings Camp to fight a Duel in France.’
Ninthly, he saith, Of later times, see divers not ab [...] Iudgments at the Prosecution of the Commons by t [...] Lords: where the Commons were Prosecutors, the [...] were no Judges, but (as he termes them) gener [...] Inquisitors, or the Grand Inquest of the Kingdom. Th [...] Judgments he cites are but in King Iames his daye [...] and no elder.
Tenthly, also he tells us, of the Iudicature in t [...] House of Commons alone; his most ancient preceden [...] is but in Queen Elizabeths Reign, of one Tho. Lon [...] who gave the Maior of Westbury 10 l. to be elect [...] Burgess.
Eleventhly, he hath a Section, entitled, The Hous [...] of Commons (to many Purposes) a distinct Court: an [...] saith, Nota, the House of Commons to many Purposes, [...] distinct Court: of those many Purposes he tells but one that is, it uses to adjourn it self. Commissioners tha [...] [Page 29] be but to examine Witnesses, may Adjourn themselves, yet are no Court.
Twelfthly, he handles the Privileges of Parliament, where the great Wonder is, that this great Master of [...]he Law, who hath been oft a Parliament-man, could [...]ind no other, nor more Privileges of Parliament [...]ut one, and that is, freedom from Arrests: which, he [...]aith, holds, unless in three cases, Treason, Felony, and [...]he Peace. And for this freedom from Arrests, he cites Antient Precedents for all those in the House of Lords, but he brings not one Precedent at all for the Commons Freedom from Arrests.
It is behooful for a Free-holder to consider what Power is in the House of Peers; for although the Free-holder have no Voice in the Election of the Lords, yet if the Power of that House extend to make Ordinances that bind the Free-holders, it is necessary for him to enquire what and whence that Power is, and how far it reacheth: The chief Writ of [...]ummons to the Peers was in these words,
CAROLUS Dei Gratia, &c. Reverendissimo in Christo patri G. eadem gratia Archiepiscopo Cantuarien [...]i, totius Angliae Primati & Metropolitano, salutem. Quia de advisamento & assensu Concilii nostri, pro qui [...]usdam arduis & urgentibus negotiis, Nos & statum & defensionem regni nostri Angliae, & ecclesiae Anglica [...]ae concernentibus, quoddam Parliamentum nostrum apud W. &c. teneri ordinavimus, & ibidem vobiscum, & cum [...]aeteris Praelatis, Magnatibus & Proceribus dicti regni nostri Angliae colloquium habere, & tractatum: Vobis [...]n fide, & dilectione quibus nobis tenemini firmiter injungendo [Page 30] mandamus, quod consideratis dictorum negotioru [...] arduitate, & periculis imminentibus, cessante quacunqu [...] excusatione dictis die & loco personaliter intersitis, Nobiscum & cum caeteris Praelatis, Magnatibus, & Procerib [...] praedictis, super dictis negotiis tractaturi, vestrumque concilium impensuri, & hoc sicut Nos & Honorem nostr [...] ac salvationem regni praedicti, ac ecclesiae sanctae, expeditionem (que) dictorum negotiorum diligitis, nullatenus omittati [...] Praemonentes Decanum & capitulum ecclesiae vestrae Ca [...] tuariensis, ac Archidiacanos, totumque Clerum vestrae Di [...] cesis, quod idem Decanus & Archidiaconi in propriis pe [...] sonis suis, ac dictum Capitulum per unum, idemque Cler [...] per duos Procuratores idoneos, plenam & sufficientem po [...] statem ab ipsis Capitulo & Clero habentes, praedictis die [...] loco personaliter intersint, ad consentiendum hiis quae tu [...] ibidem de Commune Concilio ipsius Regni Nostri, divin [...] favente Clementia, contigerint ordinari. Teste Meipso ap [...] West. &c.
CHARLES by the Grace of God, &c. To the mo [...] Reverend Father in Christ W. by the sam [...] Grace Arch-bishop of Canterbury, Primate and Metropolitan of all England, Health. Whereas by th [...] Advice and Assent of our Councel, for certain difficult and urgent Businesses concerning Us, the Stat [...] and Defence of Our Kingdom of England, and [...] the English Church: We have Ordained a certa [...] Parliament of Ours to be holden at W. &c. a [...] there to have Conference, and to treat with you th [...] Prelats, Great men, and Peers of Our said Kingdo [...] We straitly Charge and Command, by the Fai [...] and Love by which you are bound to Us, that co [...] sidering the Difficulties of the Businesses aforesai [...] and the imminent Dangers, and setting aside all Excuse [Page 31] you be personally present at the Day and Place aforesaid, to treat and give your Counsel concerning the said Businesses: And this, as you love Us and Our Honour, and the Safeguard of the foresaid Kingdom and Church, and the Expedition of the said Businesses, you must no way omit. Forewarning the Dean and Chapter of your Church of Canterbury, and the Arch-deacons, and all the Clergy of your Diocese, that the same Dean, and the Arch-deacon in their proper Persons, and the said Chapter by one, and the said Clergy by two fit Proctors, having full and sufficient Power from them the Chapter and Clergy, be personally present at the foresaid Day and Place, to Consent to those things, which then and there shall happen by the favour of God, to be Ordained by the Common Councel of our Kingdom. Witness Our Self [...]t Westm.
The same Form of Writ mutatis mutandis, concluding with, you must no way omit. Witness, &c. [...]s to the Temporal Barons: But whereas the Spiritu [...]l Barons are required by the Faith and Love; the Temporal are required by their Allegiance or Homage.
The Difference between the two Writs is, that the Lords are to Treat and to Give Counsel; the Commons [...]re to Perform and Consent to what is ordained.
By this Writ the Lords have a deliberative or a [...]onsultive Power to Treat, and give Counsel in difficult Businesses: and so likewise have the Judges, Barons [...]f the Exchequer, the Kings Councel, and the Ma [...]ters of the Chancery, by their Writs. But over and [...]esides this Power, the Lords do exercise a decisive [Page 32] or Iudicial Power, which is not mentioned or found in their Writ.
For the better Understanding of these two different Powers, we must carefully note the distinction between a Iudge and a Counsellor in a Monarchy: the ordinary Duty, or Office of a Iudge is to give Judgment, and to command in the Place of the King; but the ordinary Duty of a Counsellor is to advise the King what he himself shall do, or cause to be done: The Iudge represents the Kings Person in his absence, the Counsellor in the Kings Presence gives his Advice: Iudges by their Commission o [...] Institution are limited their Charge and Power, and in such things they may judge, and cause their Judgments to be put in Execution: But Counsellors have no Power to command their Consultations to b [...] executed, for that were to take away the Sovereignty from their Prince, who by his Wisdom is to weigh [...] the Advice of his Councel, and at liberty to resolv [...] according to the Judgment of the wiser part of hi [...] Councel, and not always of the greater: In a word▪ regularly a Counsellor hath no Power but in th [...] Kings Presence, and a Iudge no Power but out o [...] his Presence; These two Powers, thus distinguished▪ have yet such Correspondency, and there is so nee [...] Affinity between the Acts of judging, and counselling; that although the ordinary Power of the Judg [...] is to give Judgment: yet by their Oath they ar [...] bound in Causes extraordinary, when the King pleaseth to call them, to be his Counsellors; and o [...] the other side, although the proper work of a Counsellor be only to make Report of his Advice to his Sovereign, yet many times for the Ease only, and by the Permission of the King, Counsellors are allowed [Page 33] to judge, and command in Points wherein ordinarily they know the mind of the Prince; and what they do is the act of the Royal Power it self: for the Councel is always presupposed to be united to the Person of the King, and therefore the Decrees of the Councel are styled, By the King in his Privy Councel.
To apply this Distinction to the House of Peers: we find originally they are called as Counsellors to the King, and so have only a deliberative Power specified in their Writ, and therefore the Lords do only then properly perform the Duty for which they are called, when they are in the Kings Presence, that He may have Conference and treat with them: the very Words of the Writ are, nobiscum ac cum Praelatis, Magnatibus & Proceribus praedictis super dictis negotiis tractaturi vestrumque concilium impensuri, with Us and with the Prelates, Great men and Peers to treat and give your councel: the word Nobiscum implieth plainly the Kings Presence. It is a thing in reason most absurd, to make the King assent to the Judgments in Parliament, and allow Him no part [...]n the Consultation; this were to make the King [...] Subject. Councel loseth the name of Councel, [...]nd becomes a Command if it put a Necessi [...]y upon the King to follow it: such Imperious Councels, make those that are but Counsellors [...]n name to be Kings in Fact: and Kings themselves to be but Subjects. We read in Sir Ro [...]ert Cotton, that towards the end of the Saxons, and [...]he first times of the Norman Kings, Parliaments stood [...] Custom-grace fixed to Easter, Whitsontide, and Christmas; and that at the Kings Court, or Palace, [Page 34] Parliaments sate in the Presence, or Privy Chamber from whence he infers, an Improbability to believe the King excluded His own Presence; and unmannerly f [...] Guests to bar Him their Company who gave them the [...] Entertainment. And although now a-days the Parliament sit not in the Court where the Kings houshol [...] remains, yet still even to this day, to shew that Parliaments are the Kings Guests, the Lord Steward o [...] the Kings Houshold keeps a standing Table to entertain the Peers during the sitting of Parliament; and he alone, or some from, or under him, as the Treasurer, or Comptroller of the Kings Houshold take [...] the Oaths of the Members of the House of Commo [...] the first day of the Parliament.
Sir Richard S [...]roop Steward of the HousholdSeld [...] of our Sovereign Lord the King, by the Commandment of the Lords sitting in full Parliament i [...] the Great Chamber, put I. Lord Gomeniz and William Weston to answer severally to Accusations brough [...] against them.
The Necessity of the King's Presence in Parliamen [...] appears by the Desire of Parliaments themselves i [...] former times; and the Practice of it Sir Robert Cotto [...] proves by several Precedents: whence he conclude [...] that in the Consultations of State, and Decisions of private Plaints, it is clear from all times, the King w [...] not only present to advise, but to determine also. Whensoever the King is present, all Power of judging which is derived from His, ceaseth: The Votes of the Lords may serve for matter of Advice, the fina [...] Judgment is only the Kings. Indeed, of late years▪ Queen Mary, and Queen Elizabeth, by reason of thei [...] Sex, being not so fit for publick Assemblies, have brought it out of Use, by which means it is com [...] [Page 35] to pass, that many things which were in former times acted by Kings themselves, have of late been left to the Judgment of the Peers; who, in Quality of Judges extraordinary, are permitted for the Ease of the King, and in His absence, to determine such matters as are properly brought before the King Himself sitting in Person, attended with His great Councel of Prelates and Peers. And the Ordinances that are made there, receive their Establishment either from the Kings Presence in Parliament, where his Chair of State is constantly placed; or at least from the Confirmation of Him, who in all Courts, and in all Causes is Supream Judge. All Judgement is by, or under Him; it cannot be without, much less against his Approbation. The King only and none but He, if He were able, should judge all Causes; saith Bracton, that ancient Chief Justice in Hen. 3. time.
An ancient Precedent I meet with cited by Master Selden, of a judicial Proceeding in a Criminal Cause of the Barons before the Conquest, wherein I observe the Kings Will was, that the Lords should be Judges, [...]n the Cause wherein Himself was a Party; and He [...]atified their Proceeding: The case was thus, Earl Godwin having had a Trial before the Lords under King Hardicanute, touching the Death of Alfred (Son to King Ethelbert, and Brother to him who was afterward Edward the Confessor) had fled out of England; and upon his Return, with Hope of Edward the Confessor's Favour, he solicited the Lords [...]o intercede for him with the King; who (consulting together) brought Godwin with them before the King to obtain his Grace and Favour: But the King▪ [...]resently, as soon as he beheld him, said, Thou [Page 36] Traytor Godwin, I do appeal thee of the Death of my Brother Alfred, whom thou hast most trayterously slain; Then Godwin excusing it, answered, My Lord the King, may it please your Grace, I neither betrayed nor killed your Brother, whereof I put my self upon the Iudgment of your Court: Then the King said, You noble Lords, Earls, and Barons of the Land, who are my Liege men now gathered here together, and have heard My Appeal, and Godwins Answer, I Will that in this Appeal between Us, ye decree right Iudgment, and do true Iustice. The Earls and Barons treating of this among themselves, were of differing Judgments; some said that Godwin was never bound to the King either by Homage, Service, or Fealty, and therefore could not be his Traytor, and that he had not slain Alfred with his own hands: others said, that neither Earl nor Baron, nor any other Subject of the King could wage his War by Law against the King in his Appeal; but most wholly put himself into the Kings Mercy, and offer competent Amends. Then Leofric Consul of Chester, a good man before God and the World, said, Earl Godwin next to the King, is a man of the best Parentage of all England, and he cannot deny but that by his Counsel Alfred the Kings Brother was slain, therefore for my part I consider, that He and his Son, and all we twelve Earls who are his Friends and Kinsmen, do go humbly before the King, laden with so much Gold and Silver as each of us can carry in our Arms, offering him That for his Offence, and humbly praying for Pardon; And he will pardon the Earl, and taking his Homage and Fealty, will restore him all his Lands. All they in this form lading themselves with Treasure, and coming to the King, did [Page 37] shew the Manner and Order of their Consideration, to which, The King not willing to contradict, did ratifie all that they had judged.
23 Hen. 2. In Lent there was an Assembly of all the Spiritual and Temporal Barons at Westminster, Selden. for the determination of that great Contention between Alfonso King of Castile, and Sancho King of Navarre, touching divers Castles, and Territories in Spain, which was by compromise submitted to the Judgment of the King of England. And the King, consulting with his Bishops, Earls, and Barons, determined it (as he saith) Himself in the first Person, in the Exemplification of the Judgement.
2 Of King Iohn also, that great Controversie touching the Barony that William of Moubray claimed against William of Stutvil, which had depended from the time of King Hen. 2. was ended by the Councel of the Kingdom, and Will of the King: Concilio regni, & voluntate Regis.
The Lords in Parliament adjudge William de Weston to Death for surrendring Barwick Castle, but forSelden. that Our Lord the King was not informed of the manner of the Judgment, the Constable of the Tower, Allen Buxall, was commanded safely to keep the said William untill he hath other Commandment from our Lord the King. 4 Ric. 2.
Also the Lords adjudged Iohn Lord of Gomentz for surrendring the Towns, and Castles of Ardee: Selden. and for that he was a Gentleman, and Bannaret, and had served the late King, he should be beheaded, and for that our Lord the King was not informed of the manner of the Iudgment, the Execution thereof shall be respited untill our Lord the [Page 38] King shall be informed. It is commanded to the Constable of the Tower, safely to keep the said John, untill he hath other commandement from our Lord the King.
In the case of Hen. Spencer Bishop of Norwich, 7 Ric. 2. who was accused for complying with the French, and other Failings; the Bishop complained, what was done against him, did not pass by the Assent and Knowledge of the Peers; whereupon it was said in Parliament, that The cognisance and Punishment of his Offence did, of common Right, and antient Custom of the Realm of England, solely and wholly belong to Our Lord the King, and no other: Le cognisance & punissement de commune droit & auntienne custome de Royalme de Engleterre, seul & per tout apperteine au Roy nostre Seignieur, & a nul autre.
In the case of the Lord de la Ware, the Judgment of the Lords was, that he should have place next after the Lord Willoughby of Erisbe, by consent of all, except the Lord Windsor: and the Lord Keeper was required to acquaint Her Majesty with the Determination of the Peers, and to know her Pleasure concerning the same.
The Inference from these Precedents, is, that the Decisive or Iudicial Power exercised in the Chamber of Peers, is merely derivative, and subservient to the Supreme Power, which resides in the King, and is grounded solely upon his grace and favour: for howsoever the House of Commons do alledge their Power to be founded on the Principles of Nature, in that they are the Representative Body of the Kingdom (as they say) and so being the whole, may take care, and have power by Nature to preserve themselves: yet the House of Peers do not, nor cannot [Page 39] make any such the least Pretence, since there is no reason in Nature, why amongst a company of men who are all equal, some few should be picked out to be exalted above their Fellows, and have power to Govern those who by Nature are their companions. The difference between a Peer and a Commoner, is not by Nature, but by the grace of the Prince: who creates Honours, and makes those Honours to be hereditary (whereas he might have given them for life onely, or during pleasure, or good behaviour) and also annexeth to those Honours the Power of having Votes in Parliament, as hereditary Counsellours, furnished with ampler Privileges than the Commons: All these Graces conferred upon the Peers, are so far from being derived from the Law of Nature, that they are contradictory and destructive of that natural equality and freedom of mankind, which many conceive to be the foundation of the Privileges and Liberties of the House of Commons: there is so strong an opposition between the liberties of Grace and Nature, that it had never been possible for the two Houses of Parliament to have stood together without mortal Enmity, and eternal jarring, had they been raised upon such opposite foundations: But the truth is, the Liberties and Privileges of both Houses have but one, and the self same foundation, which is nothing else but the meer and sole Grace of Kings.
Thus much may serve to shew the Nature and Original of the deliberative and decisive Power of the Peers of the Kingdom.
The matter about which the deliberative power is conversant, is generally the Consulting and Advising [Page 36] [...] [Page 37] [...] [Page 38] [...] [Page 39] [...] [Page 40] upon any urgent Business which concerns the King, or Defence of the Kingdom: and more especially sometimes in preparing new Laws; and this Power is grounded upon the Writ.
The décisive Power is exercised in giving Judgment in some difficult Cases; but for this Power of the Peers, I find no Warrant in their Writ.
Whereas the Parliament is styled the Supreme Court it must be understood properly of the King sitting in the House of Peers in Person; and but improperly of the Lords without him: Every Supreme Court must have the Supreme Power, and the Supreme Power is alwayes Arbitrary; for that is Arbitrary which hath no Superiour on Earth to control [...] it. The last Appeal in all Government, must still b [...] to an Arbitrary Power, or else Appeals will b [...] in Infinitum, never at an end. The Legislative Power is an Arbitrary Power, for they are termini convertibiles.
The main Question in these our dayes is, Where this Power Legislative remains? or is placed; upon conference of the Writs of Summons for both Houses, with the Bodies and Titles of our Ancient Acts of Parliament, we shall find the Power of making Laws rests solely in the King. Some affirm, that a part of the Legislative Power is in either of the Houses; but besides invincible reason from the Nature of Monarchy it self, which must have the Supreme Power Alone; the constant Antient Declaration of this Kingdom is against it. For howsoever of later years in the Titles and Bodies of our Acts of Parliament it be not so particularly expressed who is the Author and Maker of our Laws, yet in almost all our elder Statutes it is precisely expressed, that they [Page 41] are made by the King Himself: The general words used of later times, that Laws are made by Authority of Parliament, are particularly explained in former Statutes, to mean, That the King Ordains, the Lords Advise, the Commons Consent, as by comparing the Writs with the Statutes that expound the Writs, will evidently appear.
Magna Charta begins thus, Henry by the grace of God, Know ye, that WE of Our Meer and Free Will have given these Liberties.
In the self-same style runs Charta de Foresta, and tells us the Author of it.
The Statute de Scaccario 41 H. 3. begins in these words, The King Commandeth, that all Bailiffs, Sheriffs, and other Officers, &c. And concerning the Justices of Chester, the King Willeth &c. and again, He Commandeth the Treasurer and Barons of the Exchequer upon their Allegiance.
The Stat. of Marlborough, 52 Hen. 3. goeth thus: The King hath Made these Acts, Ordinances, and Statutes, which He Willeth to be Observed of all his Subjects, high and low.
3 Edw. 1. The Title of this Statute is, These are the ACTS of King EDWARD; and after it follows, The KING hath Ordained these ACTS; and in the first Chapter, The King Forbiddeth and Commandeth, That none do hurt, damage, or grievance [...]o any Religious Man, or Person of the Church: and in the thirteenth Chapter, The King prohibiteth that none do Ravish or take away by force, any Maid within age.
6 Edw. 1. It is said, Our Sovereign Lord the King hath established these Acts, commanding they be [...]bserved within this Realm: and in the fourteenth [Page 42] Chap. the words are, The King of his special Grace granteth, that the Citizens of London shall recover in an Assise, Damage with the Land.
The Stat. of West. 2. saith, Our Lord the King hath ordained, that the Will of the Giver be observed and in the 3. Chap. Our Lord the King hath ordained, that a woman after the Death of her Husband shal recover by a Writ of Entry.
The Stat. of Quo Warranto saith, Our Lord the King at His Parliament, of his special Grace, and for Affection which he beareth to his Prelates, Earls, and Barons, and others, hath granted, that they that have Liberties by Prescription shall enjoy them.
In the Stat. de finibus Levatis, the Kings Words are, We intending to provide Remedy in our Parliament have ordained, &c.
28. Edw. 1. c. 5. The King Wills, that the Chancellor, and the Iustices of the Bench shall follow Him▪ so that he may have at all times some neer unto him tha [...] be learned in the Laws: and in Chap. 24. the words are, Our Lord the King, after full Conference and Debate had with his Earls, Barons, Nobles, and other Great men, by their whole Consent, hath ordained &c.
The Stat. de Tallagio (if any such Statute there be) speaks in the Kings Person, No Officer of Ours▪ No Tallage shall be taken by Us; We Will and Grant.
1. Edw. 2. begins thus, Our Lord the King Willeth and Commandeth.
The Stat. of 9. the same King, saith, Our Lord the King, by the Assent of the Prelates, Earls, and other great States, hath Ordained.
[Page 43]10. Edw. 2. It is provided by our Lord the King and his Iustices.
The Stat. of Carlile saith, We have sent our Command in writing firmly to be observed.
1. Edw. 3. begins thus, King Edw. 3. at his Parliament at the request of the Commonalty by their Petition before him, and his Councel in Parliament, hath granted, &c. and in the 5th Chap. The King willeth, that no man be charged to arm himself otherwise than he was wont.
5. Edw. 3. Our Lord the King, at the Request of his People, hath established these things, which He Wills to be kept.
9. Of the same King there is this Title, Our Lord the King by the Assent &c. and by the Advice of his Councel being there, hath ordained, &c.
In his 10 year, it is said, Because Our Lord King Edw. 3. hath received by the Complaint of the Prelates, Earls, Barons; also at the shewing of the Knights of the Shires, and his Commons by their Petition put in his Parliament, &c. Hath ordained, by the Assent &c. at the Request of the said Knights and Commons, &c.
The same year in another Parliament you may find, these be the Articles accorded by Our Lord the King, with the Assent, &c. at the Request of the Knights of the Shires, and the Commons by their Petition [...]ut in the said Parliament.
In the year-Book 22 Edw. 3. 3. pl. 25. It is said, The King makes the Laws by the Assent of the Peers and Commons; and not the Peers and Commons.
The Stat. of 1. Ric. 2. hath this Beginning, Rich [...]d the 2. by the Assent of the Prelates, Dukes, Earls and Barons, and at the Instance and special Request of [...] Commons, Ordained.
[Page 44]There being a Statute made 5 Ric. 2. c. 5. against Lollards, in the next year the Commons Petition Him, Supplient les Commons que come un estatute fuit fait, &c. The Commons beseech, that whereas a Statute was made in the last Parliament, &c. which was never Assented to, nor Granted by the Commons, but that which was done therein was done without their Assent. In this Petition the Commons acknowledge it a Statute, and so call it, though they assented not to it.
17 Ric. 2. nu. 44. The Commons desire, some pursuing to make a Law which they conceive hurtful to the Commonwealth; That His Majesty will not pass it.
As for the Parliaments in Hen. 4. Hen. 5. Hen. 6. Edw. 4. and Ric. 3. Reigns, the most of them do agree in this one Title, Our Lord the King by the Advice and Assent of His Lords, and at the special Instance and Request of the Commons, Hath ordained. The Precedents in this Point are so numerous that it were endless to cite them.
The Statutes in Hen. 7. days do for the most part agree, both in the Titles and Bodies of the Acts▪ in these words: Our Lord the King by the Assent of the Lords Spiritual and Temporal, and the Commons i [...] Parliament assembled, and by the Authority of the same, hath ordained.
Unto this Kings time we find the Commons very often petitioning, but not petitioned unto. The first Petition made to the Commons that I meet with among the Statutes, is but in the middle of this King Hen 7. Reign, which was so well approved, that the Petition it self is turned into [...] Statute: It begins thus, To the Right Worshipfu [...] Commons in this present Parliament assembled [Page 45] Sheweth to your discreet Wisdoms, the Wardens of the Fellowship of the Craft of Upholsters within London, &c. This Petition, though it be directed to the Commons in the Title; yet the Prayer of the Petition is turned to the King, and not to the Commons; for it concludes, therefore it may please the Kings Highness by the Advice of the Lords Spiritual and Temporal, and his Commons in Parliament, &c.
Next for the Statutes of Hen. 8. they do most part agree, both in their Titles, and the Bodies of the Acts, with those of his Father King Hen. 7.
Lastly, In the Statutes of Edw. 6. Qu. Mary, Q. Elizabeth, K. Iames, and of our Sovereign Lord the King that now is, there is no Mention made in their Titles of any Assent of Lords and Commons, or of any Ordaining by the King, but only in general terms it is said, Acts made in Parliament: or thus, At the Parliament were Enacted: yet in the Bodies of many of these Acts of these last Princes, there is sometimes Mention made of Consent of Lords and Commons, in these or the like words: It is Enacted by the King, with the Assent of the Lords and Commons; Except only in the Statutes of our Lord King Charles, wherein there is no Mention, that I can find, of any Consent of the Lords and Commons; or Ordaining by the King: But the words are, Be it Enacted by Authority of Parliament: or else, Be it Enacted by the King, the Lords Spiritual and Temporal, and Commons; as if they were all Fellow-Commissioners.
Thus it appears, that even till the time of K. Ed. 6. who lived but in our Fathers dayes, it was punctually expressed in every King's Laws, that the Statutes & Ordinances were made by the King. And withal we [Page 46] may see by what degrees the Styles, and Titles o [...] Acts of Parliament have been varied, and to whose Disadvantage. The higher we look, the more absolute we find the Power of Kings in Ordainin [...] Laws: nor do we meet with at first so much as th [...] Assent or Advice of the Lords mentioned. Nay, [...] we cast our eye upon many Statutes of those that b [...] of most Antiquity, they will appear as if they we [...] no Laws at all; but as if they had been made only to teach us, that the Punishments of many Offenc [...] were left to the meere pleasure of Kings. The punitive part of the Law, which gives all the Vigo [...] and Binding Power to the Law, we find committed by the Statutes to the Kings meer Will and Pleasure, as if there were no Law at all. I will offer a few Precedents to the Point.
3 Edw. 1. c. 9. saith, That Sheriffs, Coroners, a [...] Bailiffs, for concealing of Felonies, shall make grievo [...] Fines at the Kings pleasure.
Chap. 13. Ordains, That such as be found culpabl [...] of Ravishing of Women, shall Fine at the Kings pleasure.
Chap. 15. saith, The penalty for detaining a Priso [...] er that is mainpernable, is a Fine at the Kings pleasure, or a grievous Amercement to the King; and, he th [...] shall take Reward for deliverance of such, shall be at th [...] Great Mercy of the King.
Chap. 20. Offenders in Parks or Ponds shall ma [...] Fines at the Kings pleasure.
Chap. 25. Committers of Champerty, and Extortioners, are to be punished at the Kings pleasure.
Chap. 31. Purveyors, not paying for what they tak [...] shall be Grievously punished at the Kings pleasure.
[Page 47]Chap. 32. The King shall punish Grievously the Sheriff, and him that doth maintain Quarrels.
Chap. 37. The King shall grant Attaint in Plea of Land where it shall seem to him necessary.
7 Edw. 1. saith, Whereas of late, before certain Persons deputed to Treat upon Debates between Us and certain Great Men, it was accorded, that in our next Parliament provision shall be made by Us, and the common Assent of the Prelates, Earls, and Barons, that in all Parliaments for ever, every man shall come without Force and Armour. And now in our next Parliament the Prelates, Earls, Barons, and Commonalty have said, That to US it belongeth, through Our Royal Signory, straitly to defend Force of Armour at all times, when it shall please Us, and to punish them which shall do otherwise, and hereunto they are bound to Aid Us their Sovereign Lord at all Seasons when Need shall be.
13 Edw. 1. Takers away of Nuns from Religious Houses, Fined at the Kings Will.
If by the Default of the Lord that will not avoid the Dike, Underwoods, and Bushes in High-wayes, murder be done, the Lord shall make Fine at the Kings pleasure.
28 Edw. 1. If a Gold-smith be attainted for not Assaying, Touching, and Working Vessels of Gold, he shall be punished by Ransome at the Kings pleasure.
2 Hen. 4. The Commons desire they may have Answer of their Petitions before the gift of any Subsidy; to which the King answers, He would conferr with the Lords, and do what should be best according to their Ad [...]ice; and the last day of Parliament He gave this An [...]er, That that manner of Doing had not been Seen, [Page 48] nor used in no time of his Progenitors or Predecessors, that they should have any Answer of then Petitions, or knowledge of it before they have shewed, and finished all their other Business of Parliament, be it of any Grant, Business, or otherwise, and therefore the King would not in any wayes change the Good Customs and Usages Made and Used of Antient Times.
5 Hen. 4. c. 6. Whereas one Savage did Beat and maime one Richard Chedder Esquire, Menial Servan [...] to Tho. Brook, Knight of the Shire for Somerset-shire, the Statute saith, Savage shall make Fine and Ransom at the Kings Pleasure.
8 Hen. 4. It is said, POTESTAS PRINCIPIS NON EST INCLUSA LEGIBUS, the Power of the Prince is not included in the Laws.
13 Hen. 4. nu. 20. we read of a Restitution i [...] Bloud, and Lands of William Lasenby, by the King, by the Assent of the Lords Spiritual, and Commons; omitting the Lords Temporal.
2 Hen. 5. in a Law made, there is a Clause, That it is the Kings Regalty to grant or deny such of their Petitions as pleaseth Himself.
6 Hen. 6. c. 6. An Ordinance was made for to endure As long as it shall please the King.
11 Hen. 7. c. 1. hath this Law, The King o [...] Sovereign Lord, calling to His remembrance the duty of Allegiance of His Subjects of this His Realm, and that by reason of the same they are bound to serve their Prince and Sovereign Lord for the time being in His Wars, for the Defence of Him, and the Land, against every Rebellion, Power, and Might reared against Him, and with Him to enter and abide in Service in Battel, if Case so require; and that for the same Service, what fortune [Page 49] ever fall by chance in the same Battel, against the Mind and Will of the Prince (as in this Land some time past hath been seen) that it is not reasonable, but against all Laws, Reason, and good Conscience, that the said Subjects, going with their Sovereign Lord in Wars, attending upon Him in His Person, or being in other places, by his Commandement within the Land, or without; any thing should lose or forfeit, for doing their true Duty and Service of Allegiance; Be it therefore Enacted, That no Person that shall attend upon the King, and do Him true Service, shall be attainted therefore of Treason, or any other Offence by Act of Parliament, or otherwise.
Also the 18 Chap. of the same Year saith, Where every Subject by the Duty of his Allegiance is bounden to Serve and Assist his Prince and Sovereign Lord at all Seasons when need shall require, and bound to give attendance upon his Royal Person, to defend the same when He shall fortune to go in Person in War for Defence of the Realm, or against His Rebels and Enemies, for the Subduing and Repressing of them, and their malitious purpose.
Christopher Wray, Serjeant at Law, chosen Speaker, 13 Eliz. in his Speech to Her Majesty, said, that for the orderly Government of the Commonwealth, three things were necessary:
- 1. Religion.
- 2. Authority.
- 3. Law.
By the first, we are taught not only our Duty to God, but to obey the Queen, and that not only in Temporals, but in Spirituals, in which Her Power is absolute.
Mr. Grivel in the 35 Eliz. said in Parliament, He [...]ished not the making of many Laws; since the more we [Page 50] make, the less Liberty we have our selves; Her Majesty not being bound by them.
For further proof that the Legislative Power is proper to the King, we may take notice, that in antient time, as Sir Edw. Coke saith, All Acts of Parliament were in form of Petitions: if the Petitions were from the Commons, and the Answer of them the King's, it is easie thereby to judge who made the Act of Parliament: Also Sir Io. Glanvil affirms, that in former times the course of Petitioning the King was this, The Lords and Speaker, either by Words or Writing, preferr'd their Petition to the King; this then was called the Bill of the Commons, which being received by the King, part He received, part He put out, and part he ratified; for as it came from Him, it was drawn into a Law.
Also it appears, that Provisions, Ordinances, and Proclamations, made heretofore out of Parliament, have been alwayes acknowledged for Laws and Statutes: We have amongst the printed Statutes,Chanc. one called the Statute of Ireland, datedEgerton. at Westminster, 9 Feb. 14 Hen. 3. which is nothing but a Letter of the King to Gerard Son of Maurice Justicer of Ireland.
The Explanations of the Statute of Gloucester made by the King and His Iustices only, were received alwayes for Statutes, and are still printed with them.
Also the Statute made for the correction of the twelfth Chapter of the Statute of Gloucester, was Signed under the Great Seal, and sent to the Justices of the Bench after the manner of a Writ Patent, with a certain Writ closed, dated by the Kings hand at Westminster, 2 Maii 9 Edw. 1. requiring that they should do and execute all and every thing contained [Page 51] in it, though the same do not accord with the Stat. of Gloucester in all things.
The Provisions of Merton made by the King at an Assembly of Prelates, and the greater part of the Earls and Barons, for the Coronation of the King, and his Queen Elinor, are in the form of a Proclamation, and begin Provisum est in Curia domini Regis apud Merton.
19 Hen. 3. a Provision was made, de assisa praesentationis, which was continued and allowed for a Law untill the Stat. of West. 2. which provides the contrary in express words.
In the old Statutes it is hard to distinguish what Laws were made by Kings in Parliament, and what out of Parliament: when Kings called Peers only to Parliament, and of those how many, or whom they pleased, (as it appears anciently they did) it was no easie matter to put a difference between a Councel-Table, and a Parliament: or between a Proclamation and a Statute: Yet it is most evident, that in old times there was a distinction between the Kings special or Privy Councel, and His Common Councel of the Kingdom: and His special Councel did sit with the Peers in Parliament, and were of great and extraordinary Authority there.
In the Stat. of Westm. 1. it is said, These are the Acts of K. Edw. 1. made at His first Parliament by His Councel, and by the Assent of Bishops, Abbots, Priors, Earls, Barons, and all the Commonalty of the Realm.
The Stat. of Acton Burnell hath these words, The King for Himself, and by His Councel, hath Ordained and Established.
[Page 52] In articulis super Chartas, when the Great Charter was confirmed at the Request of the Prelates, Earls, and Barons, are found these two provisions:
- 1. Nevertheless the King and his Councel do not intend by reason of this Statute to diminish the Kings Right.
- 2. Notwithstanding all these things before-mentioned, or any part of them, both the King and his Councel, and all they that were present, Will and intend, that the Right and Prerogative of His Crown shall be saved to Him in all things.
The Stat. of Escheators hath this Title, At the Parliament of our Sovereign Lord the King, By His Councel it was agreed, and also by the King himself commanded.
1 Edw. 3. where Magna Charta was confirmed, this Preamble is found, At the request of the Commonalty, by their Petition made before the King and His Councel in Parliament, by the Assent of the Prelates, Earls, and Barons, &c.
The Statute made at York 9 Edw. 3. goeth thus: Whereas the Knights, Citizens, and Burgesses desired Our Sovereign Lord the King in His Parliament by their Petition, &c. Our Sovereign Lord the King, desiring the profit of His People, By the Assent of His Prelates, Earls, Barons, and other Nobles of His Realm, and by the Advice of His Councel being there, Hath Ordained.
25. Edw. 3. In the Statute of Purveyors, where the King, at the request of the Lords and Commons, made a Declaration what Offences should be adjudged Treason: It is there further said, if per-case any man ride Armed with Men of Arms against any other to slay him, or rob him, It is not the Mind of the King, or of His Councel: that in such cases it shall be adjudged Treason. By this Statute it appears, that [Page 53] even in the case of Treason, which is the Kings own Cause, as, whereas a man doth compass, or imagine the Death of Our Lord the King, or a man do wage War against Our Lord the King in His Realm, or be adherent to the Kings Enemies in his Realm, giving to them Aid or Comfort in the Realm, or elsewhere▪ in all these cases it is the Kings Declaration onely that makes it to be Treason: and though it be said, that Difficult points of Treason shall be brought and shewed to the King, and His Parliament, yet it is said, it is the mind of the King and his Councel, that determines what shall be adjudged Treason, and what Felony, or Trespass.
27 Edw. 3. the Commons presenting a Petition to the King which the Kings Councel did mislike, were content thereupon to amend and explain their Petition: the Petition hath these words, To their most redoubted Sovereign Lord the King, Praying, Your said Commons, that whereas they have prayed him to be discharged of all manner of Articles of the Eyre &c. which Petition seemeth to his Councel to be prejudicial unto him, and in Disinherison of his Crown if it were so generally granted. His said Commons not willing nor desiring to demand things of Him, or of his Crown perpetually, as of Escheats, &c. But of Trespasses, Misprisions, Negligences, Ignorances, &c.
And as in Parliaments the Kings Councel were of Supereminent Power, so out of Parliament Kings made great Use of them.
King Edw. 1. finding that Bogo de Clare was discharged of an Accusation brought against him in Parliament, commanded him nevertheless to appear before him and his Councel, ad faciendum & recipiendum quod per Regem & ejus Concilium fuerit [Page 54] faciendum, and so proceeded to the Examination of the whole Cause, 8 Edw. 1.
Edw. 3. In the Star-chamber (which was the ancient Councel-table at Westminster) upon the complaint of Eliz. Audley, commanded Iames Audley to appear before Him and His Councel; and determined a Controversie between them, touching Land contained in her Jointure, Rot. claus. de An. 41 Edw. 3.
Hen. 5. In a Suit before Him and His Councel, For the Titles of the Manors of Serre and St. Lawrence in the Isle of Thanet in Kent, took order for the Sequestring the Profits till the Right were tried.
Hen. 6. commanded the Justices of the Bench to stay the Arraignment of one Verney in London, till they had other Commandment from Him and His Councel, 34 Hen. 6. rot. 37. in Banco.
Edw. 4. and his Councel in the Star-Chamber heard the Cause of the Master and poor Brethren of Saint Leonard's in York, complaining that Sir Hugh Hastings, and others, withdrew from them a great part of their Living, which consisted chiefly upon the having of a Thrave of Corn of every Plow-land within the Counties of York, Westmorland, Cumberland, and Lancashire, Rot. pat. de an. 8. Edw. 4. part. 3. memb. 14.
Hen. 7. and his Councel in the Star-Chamber, decreed, that Margery and Florence Becket should sue no further in their cause against Alice Radley Widow, for Lands in Wolwich and Plumsted in Kent, for as much as the matter had been heard first before the Councel of Edw. 4. after that before the President of the Requests of that King Hen. 7. and then lastly before the Councel of the said King, 1 Hen. 7.
[Page 55]In the time of Hen. 3. an Order or Provision was made by the Kings Councel, and it was pleaded at the Common Law in Bar to a Writ of Dower; the Plaintifs Atturney could not deny it, and thereupon the Judgment was, ideo sine die. It seems in those days an Order of the Kings Councel, was either parcell of the Common Law, or above it.
Also we may find, the Judges have had Regard, that before they would resolve or give Judgment in new Cases, they consulted with the Kings Privy Councel.
In the case of Adam Brabson who was assaulted by R. W. in the Presence of the Justices of Assise at Westminster, the Judges would have the Advice of the Kings Councel: for in a like Case, because R. C. did strike a Juror at Westminster which passed against one of his Friends, It was adjudged by all the Councel that his right hand should be cut off, and his Lands and Goods forfeited to the King.
Green and Thorp were sent by the Judges to the Kings Councel, to demand of them whether by the Stat. of 14 Edw. 3. 16. a word may be amended in a Writ, and it was answered that a word may be well amended, although the Stat. speaks but of a Letter or Syllable.
In the Case of Sir Thomas Ogthred, who brought a Formedon against a poor man and his Wife; they came and yielded to the Demandant, which seemed suspitious to the Court; whereupon Judgment was staid, and Thorp said that in the like case of Giles Blacket it was spoken of in Parliament, and we were commanded that when any like should come we should not go to Judgment without good Advice; therefore the Judges Conclusion was, Sues an counseil [Page 56] & comment ils voilent que nous devomus faire, nous volums faire, & autrement nient en oest case; sue to the Councel, and as they will have us to do, we will do; and otherwise not in this Case, 39 Edw. 3.
Thus we see the Judges themselves were guided by the Kings Councel, and yet the Opinions of Judges have guided the Lords in Parliament in Point of Law.
All the Judges of the Realm, Barons of Exchequer, of the Quoif; the Kings learned Councel, and the Civilians, Masters of Chancery, are called Temporal Assistants by Sir Edw. Coke, and though he deny them Voices in Parliament, yet lie confesseth, that by their Writ they have Power both to treat, and to give Councel. I cannot find that the Lords have any other Power by their Writ: the Words of the Lords Writ are, That you be present with Us the Prelates, Great men, and Peers, to treat and give your Counsel: The words of the Judges Writ are, that you be present with Us, and others of the Counsel (and sometimes with Us only) to treat and give your Counsel.
The Judges usually joyned in Committees with the Lords in all Parliaments, even in Queen Eliz. Reign, untill her 39th Year; and then upon the 7th of November, the Judges were appointed to attend the Lords. And whereas the Judges have Liberty in the upper House it self, upon Leave given them by the L. Keeper, to cover themselves, now at Committees they sit always uncovered.
The Power of Judges in Parliament is best understood, if we consider how the judicial Power of Peers hath been exercised in matter of Judicature: we may find it hath been the Practice, [Page 57] that though the Lords in the Kings Absence give Judgment in Point of Law, yet they are to be directed and regulated by the Kings Judges, who are best able to give Direction in the difficult Points of the Law; which ordinarily are unknown to the Lords. And therefore, if any Errour be committed in the Kings Bench, which is the highest ordinary Court of Common Law in the Kingdom, that Errour must be redressed in Parliament. And the Manner is, saith the Lord Chancellor Egerton, If a Writ of Errour be sued in Parl. upon a Iudgment given by the Iudges in the Kings Bench, the Lords of the higher House alone, (without the Commons) are to examine the Errours. The Lords are to proceed according to the Law, and for their Iudgments therein they are to be informed by the Advice and Councel of the Iudges, who are to inform them what the Law is, and to direct them in their Iudgment; for the Lords are not to follow their own Discretion or Opinion otherwise.
28 Hen. 6. the Commons made Sute that W. de la Pool D. of Suffolk, should be committed to Prison for many Treasons, and other Crimes; the Lords of the higher House were doubtful what Answer to give; the Opinion of the Iudges was demanded, their Opinion was, that he ought not to be committed, for that the Commons did not charge him with any particular Offence, but with general Reports and Slanders: this Opinion was allowed.
31. Hen. 6. A Parliament being prorogued, in the Vacation the Speaker of the House of Commons was condemned in a thousand Pounds Damages in an Action of Trespass, and committed to Prison in Execution for the same: when the Parliament [Page 54] [...] [Page 55] [...] [Page 56] [...] [Page 57] [...] [Page 58] was re-assembled, the Commons made sute to the King, and Lords, to have their Speaker delivered. The Lords demanded the Opinion of the Judges whether he might be delivered out of Prison by Privilege of Parliament; upon the Judges Answer it was concluded, that the Speaker should remain i [...] Prison according to the Law, notwithstanding the Privilege of Parliament, and that he was Speaker; which Resolution was declared to the Commons by Moy [...] the Kings Serjeant at Law, and the Commons were commanded in the Kings name by the Bishop [...] Lincoln (in the absence of the Arch-bishop of Canterbury, then Chancellor) to chuse another Speaker.
7 Hen. 8. A Question was moved in Parliament, Whether Spiritual Persons might be convented before Temporal Iudges for criminal Causes? there Sir Iohn Fineux and the other Judges delivered their Opinion, that they might and ought to be; and their Opinion allowed and maintained by the King and Lords, and Dr. Standish who before had holden the same Opinion, w [...] delivered from the Bishops.
I find it affirmed, that in Causes which receive Determination in the House of Lords, the King hath [...] Vote at all, no more than in other Courts of ministerial Iurisdiction. True it is, the King hath no Vote at all if we understand by Vote, a Voice among others: for he hath no partners with Him in giving Judgement. But if by no Vote is meant he hath no Power to judge; we dispoil him of his Sovereignty: It is the chief Mark of Supremacy to judge in the highest Causes, and last Appeals. This the Children of Israel full well understood, when they petitioned for a King to judge them; if the dernier reso [...] be to the Lords alone, then they have the Supremacy. [Page 59] But as Moses by chusing Elders to judge in small Causes, did not thereby lose his Authority to be Judge himself when he pleased, even in the smallest matters; much less in the greatest, which he reserved to himself: so Kings by delegating others to judge under them, do not thereby denude themselves of a Power to judge when they think good.
There is a Distinction of these times, that Kings themselves may not judge, but they may see and look to the Iudges, that they give Iudgment according to Law, and for this Purpose only (as some say) Kings may sometimes sit in the Courts of Justice. But it is not possible for Kings to see the Laws executed, except there be a Power in Kings both to judge when the Laws are duely executed, and when not; as also to compell the Judges if they do not their Duty. Without such Power a King sitting in Courts is but a Mockery, and a Scorn to the Judges. And if this Power be allowed to Kings, then their Judgments are supream in all Courts. And indeed our Common Law to this Purpose doth presume that the King hath al [...] Laws within the Cabinet of His Breast, in Scrinio pectoris, saith Crompton's Jurisdiction. 108.
When several of our Statutes leave many things to the Pleasure of the King, for us to interpret all those Statutes of the Will and Pleasure of the Kings Iustices only, is to give an absolute Arbitrary Power to the Justices in those Cases wherein we deny it to the King.
The Statute of 5 Hen. 4. c. 2. makes a Difference between the King, and the Kings Iustices, in these words, Divers notorious Felons be indicted of divers Felonies, Murders, Rapes: and as well before the Kings Iustices, as before the King himself, arreigned of the same Felonies.
[Page 60]I read, that in An. 1256. Hen. 3. sate in the E [...] chequer, and there set down Order for the Appearance Sheriffs, and bringing in their Accounts; there w [...] five Marks set on every Sheriffs Head for a Fine, b [...] cause they had not distrained every Person that mig [...] dispend fifteen pounds Lands by the Year, to receive t [...] Order of Knighthood, according as the same Sherif [...] were commanded.
In Michaelmas Term, 1462. Edw. 4. sate th [...] dayes together in open Court in the Kings Bench.
For this Point there needs no further Proofs, b [...] cause Mr. Pryn doth confess, that Kings themselv [...] have sate in Person in the Kings Bench, and other Cou [...] and there given Iudgment, p. 32. Treachery and D [...] loyalty, &c.
Notwithstanding all that hath been said for t [...] Legislative and Judicial Power of Kings, Mr. Pry [...] is so far from yielding the King a Power to ma [...] Laws, that he will not grant the King a power to hinder a Law from being made; that is, [...] allows Him not a Negative Voice in most case which is due to every other, even to the Mea [...] est Member of the House of Commons in his Judgment.
To prove the King hath not a Negative Voice, [...] main, and in truth, his only Argument insisted o [...] is a Coronation-Oath, which is said anciently so [...] of our Kings of England have taken, wherein th [...] grant to defend and protect the just Laws and Custom [...] which the Vulgar hath, or shall chuse: Iustas Leg [...] & Consuetudines quas vulgus elegerit: Hence M [...] Pryn concludes, that the King cannot deny any Ia [...] which the Lords and Commons shall make cho [...] of; for so he will have vulgus to signifie.
[Page 61]Though neither our King, nor many of His Predecessors ever took this Oath, nor were bound to [...]ake it, for ought appears; yet we may admit [...]hat our King hath taken it; and answer, we may be confident, that neither the Bishops, nor Privy Councel, nor Parliament, nor any other whosoever they were that framed, or penn'd this Oath, ever intended in this word Vulgus 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 Epithet 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; it being most false: for the Peers cannot be Vulgus, because they are the prime Persons of the Kingdom: next, the Knights of the Shires are, or ought to be notable Knights, or notable Esquires, or Gentlemen, born in the Counties, as shall be able to be Knights: then the Citizens and Burgesses are to be most sufficient, none of these can be Vulgus: even those Free-holders that chuse Knights, are the best and ablest men of their Counties; there being for every Free-holder, above ten of the Common People to be found to be termed the Vulgar: Therefore it rests that vulgus must signifie the vulgar or common People, and not the Lords and Commons.
But now the Doubt will be, what the Common People, or vulgus, out of Parliament, have to do to chuse Laws? The Answer is easie and ready; [Page 62] there goeth before quas vulgus, the Antecede [...] Consuetudines, that is, the Customs which the Vulghath, or shall chuse. Do but observe the Nature [...] Custom, and it is the Vulgus or Common People only who chuse Customs: Common Usage time out [...] mind creates a Custom, and the commoner [...] Usage is, the stronger and the better is the Custom no where can so common an Usage be found, [...] among the Vulgar, who are still the far great [...] part of every Multitude: if a Custom be commo [...] through the whole Kingdom, it is all one with the Common Law in England, which is said to be Common Custom. Thus in plain Terms to protect the Customs which the Vulgar chuse, is to swear to protect the Common Laws of England.
But grant that Vulgus in the Oath, signifies Lord [...] and Commons, and that Consuetudines doth not signifie Customs, but Statutes, (as Mr. Pryn for a desperate Shift affirms,) and let elegerit be the Future or Preterperfect Tense, even which Mr. Pryn please yet it cannot exclude the Kings negative Voice; for as Consuetudines goeth before quas vulgus, so doth justas stand before leges & consuetudines: so that not all Laws, but only all just Laws are meant. If the sole Choice of the Lords and Commons, did oblige the King to protect their Choice, without Power of Denial, what Need, or why is the Word justas put in, to raise a Scruple that some Laws may be unjust? Mr. Pryn will not say that a Decree of a General Councel, or of a Pope is infallible, nor ( [...] think) a Bill of the Lords and Commons is infallible just, and impossible to erre; if he do, Sir Edward Coke will tell him that Parliaments have been utterly deceived, and that in eases of greatest Moment, even i [...] [Page 63] case of High Treason: and he calls the Statute of 11 Hen. 7. an unjust and strange Act. But it may be Mr. Pryn will confess that Laws chosen by the Lords and Commons may be unjust, so that the Lords and Commons themselves may be the Judges of what is just, or unjust. But where a King by Oath binds his Conscience to protect just Laws, it concerns him to be satisfied in his own Conscience, that they be just, and not by an implicite Faith, or blind Obedience: no man can be so proper a Judge of the Justness of Laws, as he whose Soul must lie at the Stake for the Defence and Safeguard of them.
Besides, in this very Oath the King doth swear, to do equal and right Iustice and Discretion, in Mercy and Truth in all His Iudgments: facies fieri in omnibus judiciis tuis aequam & rectam justitiam & discretionem in Misericordia & Veritate: if we allow the King Discretion and Mercy in his Iudgments, of Necessity he must judge of the Justness of the Laws.
Again, the clause of the Oath, quas vulgus elegerit, doth not mention the assenting unto, or granting any new Laws, but of holding, protecting, and strengthning with all his Might, the just Laws that were already in Being: there were no need of Might or Strength, if assenting to new Laws were there meant.
Some may wonder, why there should be such Labouring to deny the King a negative Voice, since a negative Voice is in it self so poor a thing; that if a man had all the Negative Voices in the Kingdom, [...]t would not make him a King; nor give him Power to make one Law: a negative Voice is but a [...]ivative Power, that is, no Power at all to do or act [Page 64] any thing; but a Power only to hinder the Power of another. Negatives are of such a malignant or destructive Nature, that if they have nothing else to destroy, they will, when they meet, destroy one another, which is the reason why two Negatives make an Affirmative, by destroying the Negation which did hinder the Affirmation: A King with a Negative Voice only, is but like a Syllogisme of pure negative Propositions, which can conclude nothing▪ It must be an Affirmative Voice that makes both a King, and a Law, and without it there can be no imaginable Government.
The reason is plain why the Kings negative Voice is so eagerly opposed: for though it give the King no Power to do any thing; yet it gives him a Power to hinder others: though it cannot make Him a King, yet it can help him to keep others from being Kings.
For Conclusion of this Discourse of the negative Voice of the King, I shall oppose the Judgment of a Chief Iustice of England, to the Opinion of him that calls himself an utter Barister of Lincolns Inn, and let others judge who is the better Lawyer of the two: the words are Bracton's, but concern Mr. Pryn to lay them to heart; Concerning the Charters and Deeds of Kings, the Iustices nor private men neither ought, nor can dispute; nor yet if there rise a Doubt in the Kings Charter, can they interpret it; and in doubtful and obscure Points, or if a word contain two Senses, the Interpretation, and Will of Our Lord the King is to be expected, seeing it is his part to interpret; who makes the Charter: full well Mr. Pryn knows, that when Bracton writ, the Laws that were then made, and strived for, were called the Kings Charters, as Magna Charta, Charta de Foresta, and others: so that in [Page 65] Bracton's Judgment the King hath not only a Negative Voice to hinder, but an Affirmative, to make a Law, which is a great deal more than Master Pryn will allow him.
Not only the Law-maker, but also the sole Iudge of the People is the King, in the Judgment of Bracton; these are his words: Rex & non alius debet judicare, si solus ad id sufficere possit, the King and no other ought to judge, if He alone were able. Much like the words of Bracton, speaketh Briton, where, after that he had shewed that the King is the Viceroy of God, and that He hath distributed his Charge into sundry portions, because He alone is not sufficient to hear all Complaints of His People, then he addeth these words, in the Person of the King: Nous volons que nostre jurisdiction soit sur touts Iurisdictions, &c. We Will that Our Iurisdiction be above all the Iurisdictions of Our Realm, so as in all manner of Felonies, Trespasses, Contracts, and in all other actions Personal or Real We have Power to yield, or cause to be yielded, such Iudgments as do appertain without other Process, wheresoever we know the right Truth as Iudges.
Neither was this to be taken, saith Mr. Lambard, to be meant of the Kings Bench, where there is only an imaginary presence of His Person, but it must necessarily be understood of a Iurisdiction remaining and left in the King's Royal Body and Brest, distinct from that of His Bench, and other ordinary Courts; because he doth immediately after, severally set forth by themselves, as well the authority of the Kings Bench, as of the other Courts.
And that this was no new-made Law, Mr. Lam [...]d puts us in mind of a Saxon Law of King Edgars. [Page 66] Nemo in lite Regem appellato, &c. Let no man i [...] Suit appeal unto the King, unless he cannot get Right a [...] home, but if that Right be too Heavy for him, then l [...] him go to the King to have it eased. By which i [...] may evidently appear, that even so many years ag [...] there might be Appellation made to the Kings Persae whensoever the Cause should enforce it.
The very like Law in Effect is to be seen in the Laws of Canutus the Dane, sometimes King of th [...] Realm, out of which Law Master Lambard gathe [...] that the King Himself had a High Court of Iustia wherein it seemeth He sate in Person, for the words b [...] Let him not seek to the King, and the same Court [...] the King did judge not only according to mee [...] Right and Law, but also after Equity and goo [...] Conscience.
For the Close, I shall end with the Suffrage [...] our late Antiquary Sir Henry Spelman, in his Glossary, he saith, Omnis Regni Iustitia solius Regis est, &c. All Iustice of the Kingdom is only the King's, and H [...] alone, if He were able, should Administer it; but th [...] being impossible, He is forced to delegate it to Ministers whom he bounds by the limits of the Laws; the positive Laws are only about Generals; in particular Cases, they are sometimes too strict, sometimes too remis [...] and so, oft Wrong instead of Right will be done, if w [...] stand to strict Law: also Causes hard and difficult d [...] ly arise, which are comprehended in no Law-books, [...] those there is a necessity of running back to the King, t [...] Fountain of Iustice, and the Vicegerent of God himself who in the Commonwealth of the Iews took such Cause to His own cognisance, and left to Kings not only the Example of such Iurisdiction, but the Prerogative also.
Of Privilege of Parliament.
WHat need all this ado, will some say, to sift out what is comprised in the Writ for the Election of the Commons to Parliament, since it is certain, though the Writ doth not, yet Privilege of Parliament gives sufficient Power for all Proceedings of the Two Houses? It is answered, that what slight Esteem soever be made of the Writ, yet in all other cases the Original Writ is the Foundation of the whole business, or action: and to vary in Substance from the Writ, makes a nullity in the Cause, and the Proceedings thereupon: and where a Commissioner exerciseth more Power than is warranted by his Commission, every such Act is void, and in many Cases punishable: yet we will lay aside the Writ, and apply our selves to consider the Nature of Privilege of Parliament. The Task is the more difficult, for that we are not told what the number of Privileges are, or which they be; some do think that as there be dormant Articles of Faith in the Roman Church, which are not yet declared; so there be likewise Privileges dormant in the House of Commons, not yet [Page 68] revealed, we must therefore be content in a generality to discourse of the Quality or Condition of Privilege of Parliament, and to confine our selves to these three points:
- 1. That Privilege of Parliament gives no power; but only helps to the execution of the Power given by the Writ.
- 2. That the Free-holders by their Elections give no Privilege.
- 3. That Privilege of Parliament is the Gift of the King.
First, The End or Scope of Privilege of Parliament is not to give any Power to do any publick Act, not warranted by the Writ: but they are intended as Helps only to enable to the Performance of the Duty enjoyned, and so are subservient to the Power comprised in the Writ: For Instance, the grand Privilege of Freedom from Arrests doth not give any Power at all to the House of Commons to do any act; but by taking away from the Free-holders and other Subjects the Power of Arrests, the Commons are the better inabled to attend the Service to which they are called by the King.
In many other Cases the Servants, o [...] Ministers of the King are privileged, and protected much in the same Nature. The [Page 69] Servants in houshold to the King may not be arrested without special Licence: Also the Officers of the Kings Courts of Justice, have a Privilege not to be sued in any other Court but where they serve and attend; and to this Purpose they are allowed a Writ of Privilege. Likewise all such as serve the King in his Wars, or are imployed on forreign Affairs for him, are protected from Actions and Sutes. Nay the Kings Protection descends to the privileging even of Laundresses, Nurses, and Midwives, if they attend upon the Camp, as Sir Edw. Coke saith, quia Lotrix, seu Nutrix, seu obstetrix. Besides the King protects his Debtors from Arrests of the Subject till his own Debts be paid.
These sorts of Protections are Privileges the Common Law takes notice of, and allows: and hath several Distinctions of them; and some are Protections, quia profecturus, and others are, quia moraturus: some are with a Clause of volumus for stay of Suits: others with a Clause of Nolumus for the safety of mens Persons, Servants, and Goods: and the Kings Writs do vary herein according to the Nature of the Business.
But none of these Privileges or Protections do give any Power; they are not positive, [Page 70] but privative: they take away and deprive the Subject of the Power, or Liberty to arrest, or sue, in some cases only: no Protection or Privilege doth defend in point of Treason, Felony, or Breach of the Peace: Privileges are directly contrary to the Law, for otherwise they should not be Privileges, and they are to be interpreted in the strictest manner, as being odious and contrary to Law: we see the Use of Privileges; they do but serve as a Dispensation against Law, intended originally, and principally for the expediting of the Kings Business; though secondarily, and by accident there do sometimes redound a Benefit by them to the Parties themselves that are protected. Strictly, and properly every Privilege must be against a publick or common Law, for there is no Use or Need of a private Law to protect, where there is no publick Law to the contrary: Favours and Graces which are only besides, and not against the Law, do not properly go under the name of Privileges, though common Use do not distinguish them: I know no other Privilege that can be truly so called, and to belong to the House of Commons, which is so vast and great, as this Privilege of their Persons, Servants, and Goods: this being indeed against the Common Law, [Page 71] and doth concern the whole Kingdom to take notice of it, if they must be bound by it.
Touching this grand Privilege of Freedom from Arrests, I read that in the 33 Hen. 8. the Commons did not proceed to the Punishment of Offenders for the breach of it, untill the Lords referred the Punishment thereof to the Lower House. The Case is thus reported, George Ferrers Gentleman, Servant to the King, and Burgesse for Plymouth, going to the Parliament House was arrested in London, by Process out of the Kings Bench for Debt, wherein he had before been condemned as Surety for one Welden at the Sute of one White: which Arrest signified to Sir Thomas Moyl Speaker, and to the rest; the Serjeant (called SaintIohns) was sent to the Counter in Breadstreet to demand Ferrers: The Officer of the Counter refused to deliver him, and gave the Serjeant such ill Language that they fall to an Affray: the Sheriff coming, taketh the Officers part, the Serjeant returned without the Prisoner: This being related to the Speaker and Burgesses, they would sit no more without their Burgess; and rising, repaired to the Upper House, where the Case was declared by the Speaker before Sir Thomas Audley Chancellor, and the Lords and [Page 72] Iudges there assembled, who judging the Contempt to be very great, referred the Punishment thereof to the House of Commons it self.
This Privilege of Freedom from Arrest [...] is the only Privilege which Sir Edward Coke finds to belong to the House of Commons; he cannot, or at least he doth not, so much as name any other in his Section of the Privileges of Parliament: neither doth he bring so much as one Precedent for the Proof of this one Privilege for the House of Commons; which may cause a Doubt that this sole Privilege is not so clear as many do imagine. For in a Parliament in the 27 Eliz. Richard Coke, a Member, being served with a Subpoena of Chancery, the Lord Chancellor thought the House had no such Privilege for Subpoena's as they pretended; neither would he allow of any Precedents of the House committed unto them, formerly used in that Behalf, unless the House of Commons could also prove the same to have been likewise thereupon allowed, and ratified also by Precedents in the Court of Chancery.
In the 39 of Eliz. Sir Edw. Hobby, and Mr. Brograve, Attorney of the Dutchy, were sent by the House to the Lord Keeper, in the name of the whole House, to require his Lordship to [Page 73] revoke two Writs of Subpoena's, which were served upon M. Th. Knevit, a Member of the House, since the Beginning of Parliament. The Lord Keeper demanded of them, whether they were appointed by any advised Consideration of the House, to deliver this Message unto him with the word Required, in such manner as they had done, or no: they answered his Lordship, yea: his Lordship then said, as he thought reverently and honourably of the House, and of their Liberties, and Privileges of the same, so to revoke the said Subpoena's in that sort, was to restrain Her Majesty in Her greatest Power, which is, Iustice in the Place wherein he serveth under Her, and therefore he concluded, as they had required him to revoke his Writ, so he did require to deliberate.
Upon the 22 of February, being Wednesday, 18 Eliz. Report was made by Mr. Attorney of the Dutchy, upon the Committee, for the delivering of one Mr. Hall's man; that the Committee found no Precedent for setting at large by the Mace any Person in Arrest but only by Writ, and that by divers Precedents of Records perused by the said Committee, it appeareth that every Knight, Citizen or Burgess which doth require Privilege, hath used in that case to take a Corporal Oath before the Lord Chancellor, [Page 74] or Lord Keeper, that the party for whom such Writ is prayed, Came up with him, and was his Servant at the time of the Arrest made. Thereupon M. Hall was moved by the House to repair to the Lord Keeper, and make Oath, and then take a Warrant for a Writ of Privilege for his Servant.
It is accounted by some to be a Privilege of Parliament to have power to Examine Misdemeanours of Courts of Justice, and Officers of State: yet there is not the meanest Subjest but hath liberty, upon just cause, to question the misdemeanour of any Court or Officer, if he suffer by them; there is no Law against him for so doing; so that this cannot properly be called a Privilege, because it is not against any publick Law: It hath been esteemed a great Favour of Princes to permit such Examinations: For, when the Lords were displeased with the Greatness of Pierce Gaveston, it is said, that in the next Parliament, the whole Assembly obtain of the King to draw Articles of their Grievances, which they did. Two of which Articles were, First, that all Strangers should be banished the Court and Kingdom: o [...] which Gaveston was one. Secondly, that the business of the State should be treated of by the Councel of the Clergy and Nobles.
[Page 75]In the Reign of King Henry the sixth, one Mortimer, an Instrument of the Duke of York, by promising the Kentish men a Reformation, and freedom from Taxations, wrought with the people, that they drew to a Head, and made this Mortimer (otherwise Iack Cade) their Leader: who styled himself Captain Mend-all: He presents to the Parliament the Complaints of the Commons, and he petitions that the Duke of York and some other Lords might be received by the King into favour, by the undue Practices of Suffolk and his Complices, commanded from his Presence; and that all their Opposites might be banished the Court, and put from their Offices, and that there might be a general amotion of corrupt Officers: These Petitions are sent from the Lower House to the Upper, and from thence committed to the Lords of the Kings Privy Councel, who, having examined the particulars, explode them as frivolous, and the Authors of them to be presumptuous Rebels.
Concerning Liberty, or freedom of Speech, I find, that at a Parliament at Black Friars in the 14 of Henry the Eighth, Sir Tho. More being chosen Speaker of the House of Commons: He first disabled himself, and then petitioned the King, that if in Communication [Page 76] and Reasoning, any man in the Commons House should speak more largely than of duty they ought to do, that all such Offences should be pardoned, and to be entred of Record; which was granted. It is observable in this Petition, that liberty or freedom of Speech is not a power for men to speak what they will, or please, in Parliament; but a Privilege not to be punished, but pardoned for the offence of speaking more largely than in duty ought to be; which in an equitable construction must be understood of rash, unadvised, ignorant, or negligent Escapes, and Slips in Speech: and not for wilful, malicious Offences in that kind; And then the Pardon of the King was desired to be upon Record, that it might be pleaded in Bar to all Actions. And it seemeth that Ric. Strood and his Complices, were not thought sufficiently protected for their free Speech in Parliament, unless their Pardon were confirmed by the King in Parliament, for there is a printed Statute to that purpose in H. 8ths time.
Touching the freedom of Speech, the Commons were warned in Q. Eliz. dayes not to meddle with the Queens Person, the State, or Church-government. In her time the Discipline of the Church was so strict, that the Litany was read every morning in the House of Commons, during the Parliament, and when the [Page 77] Commons first ordered to have a Fast in the Temple upon a Sunday, the Queen hindred it.
21 Ian. Saturday, 23 Eliz. the Case is thus reported: Mr. Paul Wentworth moveth for a Publick set Fast, and for a Preaching every morning at 7 of the clock, before the House sate: the House was divided about the Fast, 115 were for it, and an 100 against it; it was ordered, that as many of the House as conveniently could, should on Sunday fortnight after, Assemble, and meet together in the Temple-Church, there to hear Preaching, and to joyn together in Prayer, with Humiliation and Fasting, for the Assistance of God's Spirit in all their Consultations, during this Parliament, and for the Preservation of the Queens Majesty and Her Realms: And the Preachers to be appointed by the Privy Councel that were of the House, that they may be Discreet, not medling with Innovation or Unquietness. This Order was followed by a Message from Her Majesty to the House, declared by Mr. Vice-chamberlain, that Her Highness had a great Admiration of the rashness of this House, in committing such an apparent Contempt of her express Command, as to put in execution such an Innovation, without Her privity, or pleasure first known. Thereupon Mr. Vice-chamberlain moved the House to make humble submission to Her Majesty, acknowledging the said Offence, and Contempt, craving a Remission of the same, with a full [Page 78] purpose to forbear the Committing of the like hereafter: and by the Consent of the whole House, Mr. Vice-chamberlain carried their Submission to her Majesty.
35 Eliz. Mr. Peter Wentworth, and Sir Henry Bromley, delivered a Petition to the Lord Keeper, desiring the Lords of the upper House to be Suppliants with them of the lower House, unto her Majesty for entailing the Succession of the Crown. Whereof a Bill was ready drawn by them. Her Majesty was highly displeased herewith, as contrary to her former strait Command, and charged the Councel to call the Parties before them: Sir Thomas Henage sent for them, and after Speech with them, commanded them to forbear the Parliament, and not to go out of their several Lodgings; after, they were called before the Lord Treasurer, the Lord Buckhurst, and Sir Thomas Henage; Mr. Wentworth was committed by them to the Tower, Sir Henry Bromley, with Mr. Richard Stevens, to whom Sir Henry Bromley had imparted the Matter, were sent to the Fleet, as also Mr. Welch the other Knight for Worcestershire.
In the same Parliament Mr. Morrice, Attorney of the Court of Wards, moved against the hard Courses of the Bishops, Ordinaries, and other Ecclesiastical Judges in [Page 79] their Courts, used towards sundry Learned, and godly Ministers and Preachers; and spake against Subscription, and Oaths; and offer'd a Bill to be read against Imprisonment for refusal of Oaths: Mr. Dalton opposed the Reading of it, as a thing expresly against Her Majesties Command, to meddle in: Doctor Lewin shewed, that Subscription was used even at Geneva: At two of the clock the same day, the Speaker, Mr. Coke, (afterwards Sir Edward Coke) was sent for to the Court, where the Queen Her self gave him in Command a Message to the House: She told him, It being wholly in Her Power to Call, to Determine, to Assent, or Dissent to any thing done in Parliament: that the Calling of This was only, that the Majesty of God might be more religiously observed, by compelling, by some sharp Laws, such as neglect that Service: and that the Safety of Her Majesties Person, and the Realm might be provided for: It was not meant they should meddle with matters of State, or Causes Ecclesiastical, (for so Her Majesty termed them) she wondred that any could be of so high Commandement, to attempt (they were Her own words) a thing so expresly contrary to that which She had commanded: wherefore with this She was highly offended: And because the words spoken by my Lord Keeper, are [Page 80] not now perhaps well remembred, or some b [...] now here that were not then present. Her Majesties present Charge and express Command is, that no Bill touching the said matter of State or Reformation in Causes Ecclesiastical, be exhibited, and upon my Allegiance (saith Mr. Coke) I am charged, if any such Bill be exhibited; not to read it. I have been credibly informed, that the Queen sent a Messenger, or Serjeant at Arms, into the House of Commons, and took out Mr. Morrice, and committed him to prison: within few dayes after, I find Mr. Wroth moved in the House, that they might be humble Suitors to Her Majesty, that She would be pleased to set at liberty those Members of the House that were restrained. To this it was answered by the Privy Counsellors, that Her Majesty had committed them for Causes best known to Her self, and to press Her Highness with this Suit, would but hinder them whose Good is sought: that the House must not call the Queen to account for what she doth of Her Royal Authority: that the Causes for which they are restrained may be High and Dangerous: that Her Majesty liketh no such Questions; neither doth it become the House to searc [...] into such matters.
In the 39 Eliz. The Commons were tol [...] their Privilege was Yea, and No: and tha [...] [Page 81] Her Majesties Pleasure was, that if the Speaker perceived any idle heads which would not stick to hazard their own Estates; which will meddle with reforming the Church, and transforming the Commonweal, and do exhibit Bills to that purpose; the Speaker should not receive them till they were viewed and considered by those, whom it is fitter should consider of such things, and can better judge of them: and at the end of this Parliament, the Queen refused to pass 48 Bills which had passed both Houses.
In the 28 of Eliz. the Queen said, She was sorry the Commons medled with chusing and returning Knights of the Shire for Norfolk, a thing impertinent for the House to deal withal, and only belonging to the Office and Charge of the Lord Chancellor, from whom the Writs issue, and are returned.
4 Hen. 4. The 10 of October, the Chancellor before the King declared, the Commons had sent to the King, praying him that they might have Advice, and Communication with certain Lords about Matters of Business in Parliament, for the common good of the Realm: which Prayer Our Lord the King graciously granted, making Protestation, he would not do it of Duty, nor of Custom, but of his special Grace at this time: and therefore Our Lord the King [...]harged the Clark of the Parliament, that this [Page 82] Protestation should be entred on Record upon the Parliament-Roll: which the King made known to them by the Lord Say, and his Secretary; how that neither of Due nor of Custom, our Lord the King ought to grant any Lords to enter into Communication with them of Matters touching the Parliament, but by his special Grace at this time he hath granted their Request in this Particular: upon which matter, the said Steward and Secretary made Report to the King in Parliament; that the said Commons knew well that they could not have any such Lords to commune with them, of any Business of Parliament, without special Grace and Command of the King Himself.
It hath heretofore been a question, whether it be not an Infringing, and Prejudice to the Liberties and Privileges of the House of Commons, for them to joyn in Conference with the Lords in Cases of Benevolence, or Contribution, without a Bill.
In the 35 Eliz. on Tuesday the first of March, Mr. Egerton, Attorney general, and Doct. Carey came with a Message from the Lords; their Lordships desired to put the House in Remembrance of the Speech delivered by the Lord Keeper, the first day for Consultation and Provision of Treasure, to be had aginst the great and imminent Dangers [Page 83] of the Realm; thereupon their Lordships did look to have something from the Houses, touching those Causes before this time (and yet the Parliament had sate but three dayes, for it began Feb. 26.) and therefore their Lordships had hitherto omitted to do any thing therein themselves. And thereupon their Lordships desired, that according to former laudable Usages between both Houses in such like Cases, a Committee of Commons may have Conference with a Committee of Lords, touching Provision of Treasure against the great Dangers of the Realm, which was presently resolved by the whole House, and they signified to their Lordships the willing, and ready Assent of the whole House. At the Meeting, the Lords negatively affirm, not to assent to less than three Subsidies, and do insist for a second Conference. M. Francis Bacon yielded to the Subsidy, but opposed the joyning with the Lords, as contrary to the Privileges of the House of Commons; thereupon the House resolved to have no Conference with the Lords, but to give their Lordships most humble and dutiful Thanks with all Reverence for their favourable and courteous Offer of Conference, and to signifie that the Commons cannot in those Cases of Benevolence, or Contribution joyn [Page 84] in conference with their Lordships, without prejudice to the Liberties and Privileges of the House: and to request their Lordships to hold the Members of this House excused in their not-assenting to their Lordships said Motion for Conference, for that so to have Assented without a Bill, had been contrary to the Liberties and Privileges of this House▪ and also contrary to the former Precedents of the same House in like cases had. This Answer delivered to the Lords by the Chancellor of the Exchequer, their Lordships said, they well hoped to have had a Conference according to their former Request, and desir'd to see those Precedents by which the Commons seem to refuse the said Conference. But in conclusion it was agreed unto, upon the Motion of Sir Walter Raleigh, who moved, that without naming a Subsidy, it might be propounded in general words, to have a Conference touching the Dangers of the Realm, and the necessary Supply of Treasure to be provided speedily for the same, according to the Proportion of the Necessity.
In the 43 Eliz. Serjeant Heal said in Parliament, he marvail'd the House stood either a [...] the granting of a Subsidy or time of Payment, whe [...] all we have is her Majesties, and She may lawfull▪ at her Pleasure take it from us; and that she had [...] much right to all our Lands and Goods, as to an [...] Revenue of the Crown; and he said he could pro [...] [Page 85] it by Precedents in the time of H. 3. K. John and K. Stephen. The ground upon which this Serjeant at Law went, may be thought the same Sir Edw. Coke delivers in his Institutes, where he saith, the first Kings of this Realm had all the Lands of England in Demesne, and the great Manors & Royalists they reserved to themselves, & of the remnant for the defence of the Kingdom enfeoffed the Barons: from whence it appears, that no man holds any Lands but under a condition to defend the Realm; and upon the selfsame Ground also the Kings Prerogative is raised, as being a Preheminence, in cases of Necessity, above, & before the Law of Property, or Inheritance. Certain it is, before the Commons were ever chosen to come to Parliament, Taxes or Subsidies were raised and paid without their gift. The great and long continued Subsidy of Dane-gelt was without any Gift of the Commons, or of any Parliament at all, that can be proved. In the 8 H. 3. a Subsidy of 2 Marks in Silver upon every Knights fee was granted to the King by the Nobles, without any Commons. At the passing of a Bill of Subsidies the words of the King are, the King thanks his loyal Subjects, accepts their good Will, & also will have [...]so: le Roy remercie ses loyaux Subjects, accept leur [...]enevolence, & ausi ainsi le veult: which last words of ainsi le veult, the King wills it to be so, [...]re the only words that makes the Acts of Sub [...]idy a Law to bind every man to the Pay [...]ent of it.
[Page 86]In the 39 Eliz. The Commons, by their Speaker, complaining of Monopolies, the Queen spake in private to the L. Keeper, who then made answer touching Monopolies, that Her Majesty hoped her dutiful and loving Subjects would not take away Her Prerogative, which is the chiefest Flower in her Garland, and the principal and head Pearl in Her Crown and Diadem, but that they will rather leave that to Her Disposition.
The second Point is, that the Free-holders, or Counties do not, nor cannot give Privilege to the Commons in Parliament. They that are under the Law cannot protect against it, they have no such Privilege themselves as to be free from Arrests, and Actions: for if they had, then it had been no Privilege, but it would be the Common Law: And what they have not, they cannot give; Nemo dat quod non habet, neither do the Free-holders pretend to give any such Privilege, either at their Election, or by any subsequent Act; there is no mention of any such thing in the return of the Writ; nor in the Indentures between the Sheriff, and the Free-holders.
The third Point remains, That Privilege of Parliament is granted by the King. It is a known Rule, that which gives the Form gives the Consequences of the Form; the King [Page 87] by his Writ gives the very Essence, and Form to the Parliament: therefore Privileges which are but Consequences of the Form, must necessarily flow from Kings.
All other Privileges and Protections are the Acts of the King; and by the Kings Writ. Sir Edw. Coke saith, that the Protection of mens Persons, Servants, and Goods, is done by a Writ of Grace from the King. At the presentment of the Speaker of the House of Commons to the King upon the first day of Parliament, The Speaker in the Name and Behoof of the Commons, humbly craveth that his Majesty would be graciously pleased to grant them their accustomed Liberties and Privileges; which Petition of theirs, is a fair Recognition of the Primitive Grace and Favour of Kings in bestowing of Privilege, and it is a shrewd Argument against any other Title: For our Ancestors were not so ceremonious nor so full of Complement as to beg that by Grace, which they might claim by Right. And the Renewing of this Petition every Parliament argues the Grant to be but temporary, during only the present Parliament; and that they have been accustomed, when they have been accustomably sued, or petitioned for. I will close this Point with the Judgment of King Iames, who in his Declaration [Page 88] touching his Proceedings in Parliament 1621. resolves, that most Privileges of Parliament grew from Precedents which rather shew a Toleration than an Inheritance; therefore he could not allow of the Style, calling i [...] their ancient and undoubted Right and Inheritance, but could rather have wished that they had said, their Privileges were derived from the Grace and Permission of his Ancestors and Him: and thereupon he concludes, He cannot with Patience endure his Subjects to use su [...] Antimonarchicall 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 careful of whatsoever Privileges they enjoy by long Custom and uncontrolled and lawful Precedents.