An old mould to cast new lawes by compiled by the Honourable Sir Thomas Smith, Knight, doctor of both lawes, and one of the principall secretaries unto two most worthy princes, King Edward & Queen Elizabeth ; reprinted out of the Common-wealth of England by a friend to old bookes and an enemy to new opinions ; together with King James his declaration to both Houses at White-hall, of the kings power in the Parliament of Scotland in making lawes, March 31, 1607. — Common-wealth of England. Selections. 1643

An old mould to cast new lawes by compiled by the Honourable Sir Thomas Smith, Knight, doctor of both lawes, and one of the principall secretaries unto two most worthy princes, King Edward & Queen Elizabeth ; reprinted out of the Common-wealth of England by a friend to old bookes and an enemy to new opinions ; together with King James his declaration to both Houses at White-hall, of the kings power in the Parliament of Scotland in making lawes, March 31, 1607. — Common-wealth of England. Selections. 1643

Table of contents

Title page

OF THE PARLIAMENT, and the Authority thereof.

Of the forme of holding the Parliament.

King IAMES His Declaration to both Houſes at White-Hall, of the Kings power in the Parliament of SCOTLAND in making Lawes. March 31. 1607.

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AN OLD MOULD TO CAST NEW LAWES BY; COMPILED By the Honourable Sir Thomas Smith Knight, Doctor of both Lawes, and one of the Principall Secretaries unto two moſt worthy Princes, King EDWARD, & Queen ELIZABETH. Reprinted out of the Common-wealth of ENGLAND, by a friend to old Bookes, and an Enimy to new Opinions. TOGETHER, With King JAMES His Declaration to both Houſes at White-hall, of the Kings Power in the Parliament of Scotland in making Lawes. March 31. 1607.

Remember the dayes of old, Conſider the years of many Generations; ask thy Father, and he will ſhew thee, thy Elders and they will tell thee.

Deut. 32. 7.

Vir bonus eſt Quis? Anſwer is made,

Qui conſulta Patrum, qui Leges jura (que) ſervat.

Printed, M.DC.XLIII.

OF THE PARLIAMENT, and the Authority thereof.

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THe moſt high and abſolute power of the Realme of England conſiſteth in the Parliament. For as in Warre where the King himſelfe in Perſon, the Nobility, the reſt of the Gentility and the Yeomanry are, is the force and power of England: ſo in Peace and Conſultation where the Prince is to give life, and the laſt and higheſt Commandement: the Barrony or the Nobility for the higher: the Knights, Eſquires, Gentlemen and Commons for the lower part of the Common-wealth, the Biſhops for the Clergy be preſent to advertiſe, conſult, and ſhew what is good and neceſſary for the Common-wealth, and to conſult together, and upon mature deliberation every Bill or Law being thrice read and diſputed upon in either Houſe, the other two parts, firſt each a part, and after the Prince himſelfe in preſence of both the partyes doth conſent unto, & alloweth. That is the Prince's and the whole Realmes deed: whereupon juſtly no man can complain, but muſt accommodate himſelfe to find it good and obey it.

That which is done by this conſent is called Firme, Stable, and Sanctum, and is taken for Law. The Parliament abrogateth old Lawes, maketh new, giveth order for things paſt, and for things hereafter to be followed, changeth rights and poſſeſſions of private men, legitimateth baſtards, eſtabliſheth formes of Religion, altereth waights and meaſures, giveth forme of ſucceſſion to the [Page] Crown, defineth of doubtfull rights, whereof is no Law already made, appoynteth Subſidies, Tailes, Taxes and impoſitions, giveth moſt free pardons & abſolutions, reſtoreth in blood & name, as the higheſt Court, condemneth or abſolveth them whom the Prince will put to that tryall. And to be ſhort, all that ever the People of Rome might doe, either in Centuriatis Comitiis or tributis, the ſame may be done by the Parliament of England, which repreſenteth and hath the power of the whole Realme, both the head and the body. For every Engliſh man is intended to be there preſent, either in Perſon, or by Procuration, or Atturney of what Preheminence, State, Dignity or Quality ſoever he be, from the Prince (be he King or Queen) to the loweſt perſon of England. And the conſent of the Parliament is taken to be every mans conſent.

The Iudges in Parliament are the King or Queens Majeſty, the Lords Temporall and Spirituall, the Commons preſented by the Knights and Burgeſſes of every Shire and Burrough Town. Theſe all, or the greateſt part of them, and that with the conſent of the Prince for the time being muſt agree to the making of Lawes.

The officers in Parliament are the Speakers, two Clarkes, the one for the Higher Houſe, the other for the Lower, and Committees.

The Speaker is he that doth commend and preferre the Bills exhibited into the Parliament, and is the Mouth of the Parliament. He is commonly appoynted by the King or Queen, though accepted by the aſſent of the Houſe.

The Clarkes are the keepers of the Parliament Rolles and Records, and of the Statutes made, and have the cuſtody of the private Statutes not Printed.

The Committees are ſuch as either the Lords in the Higher Houſe, or Burgeſſes in the Lower Houſe, doe chuſe to frame the Lawes upon ſuch Billes as are agreed upon, and afterward to be ratified by the ſame Houſes.

Of the forme of holding the Parliament.

THe Prince ſendeth forth His reſcripts or writs to every Duke, Marqueſſe, Baron, and every other Lord Temporall or Spirituall, [Page] who hath voyce in the Parliament, to be at his great Councell of Parliament ſuch a day (the ſpace from the date of the writ is cōmonly at the leaſt 40. dayes) he ſendeth alſo writs to the Sheriffes of every Shire, to admoniſh the whole Shire to chuſe two Knights of the Parliament in the name of the Shire, to heare, and reaſon, and to give their advice and conſent in the name of the Shire, and to be preſent at that day: likewiſe to every Citty and Towne, which of ancient time hath been wont to find Burgeſſes of the Parliament, ſo to make election that they may be preſent at the firſt day of the Parliament. The Knights of the Shire be choſen by all the Gentlemen and Yeomen of the Shire, preſent at the day aſſigned for the election [...] voyce of any abſent can be counted for none. Yeomen I call here (as before) that may diſpend at the leaſt 40s. of yearly rent of free land of his own. Theſe meeting at one day, the two who have the more of their voyces, be choſen Knights of the Shire for that Parliament: likewiſe by the plurality of the voyces of the Cittizens & Burgeſſes, be the Burgeſses elected. The firſt day of the Parliament the Prince and all the Lords in their Robes of Parliament doe meet in the Higher Houſe, where after prayers made, they that be preſent are written, and they that be abſent upon ſickneſse, or ſome other reaſonable cauſe, (which the Prince will allow) doe conſtitute under their hand and Seale, ſome one of theſe who be preſent, as their Procurer, or Atturney, to give voyce for them, ſo that by preſence or Atturney and Proxy they be all there, all the Princes and Barons, and all Arch-Biſhops and Biſhops, and (when Abbots were) ſo many Abbots as had voyce in Parliament. The place where the aſſembly is, is richly Tapeſſed and Hanged, a Princely and Royall Throne as appertaineth to a King, ſet in the midſt of the higher place thereof. Next under the Prince ſitteth the Chancellor, who is the voyce and Orator of the Prince. On the one ſide of that Houſe or Chamber, ſitteth the Arch-biſhops & Biſhops each in his ranke; on the other ſide the Dukes and Barons.

In the midſt thereof upon Woolſacks ſit the Iudges of the Realme, the Maſter of the Rolles, and the Secretaries of State. But theſe that ſit on the Woolſacks have no voyce in the Houſe, but only ſit there to anſwer their knowledge in the Law, when they be askt if any doubt ariſe among the Lords. The Secretaries doe anſwer [Page] of ſuch Letters or things paſſed in Councell whereof they have the cuſtody and knowledge, and this is called the Vpper Houſe, whoſe conſent and diſſent is given by each man ſeverally, and by himſelfe, firſt for himſelfe, and then ſeverally for as many as he hath Letters and Proxies, when it cometh to the queſtion, ſaying only content or not content, without farther reaſoning or replying. In this mean time the Knights of the Shires, and Burgeſſes of the Parliament (for ſo they are called that have voyce in Parliament, and are Choſen as I have ſaid before to the number betwixt three and foure Hundred) are called by ſuch as it pleaſeth the Prince to appoynt, into an open great houſe or chamber by name, to which they anſwer: and declaring for what Shire or Town they anſwer, then they are willed to chooſe an able and diſcreet man, to be as it were the mouth of them all, and to ſpeak for, and in the name of them, and to preſent him ſo choſen by them to the Prince: which done they comming all with him to the Barre, which is at the nether end of the upper Houſe, there he firſt prayſeth the Prince, then maketh his excuſe of inability, and prayeth the Prince that He would command the Commons to chooſe another. The Chancellor in the Princes name doth ſo much declare him able, as he did declare himſelfe unable, and thanketh the Commons for chooſing ſo wiſe diſcreet and eloquent a man, and willeth them to goe and conſult of Lawes for the Common-wealth. Then the Speaker maketh certain requeſts to the Prince in the name of the Commons, Firſt, that His Majeſty would be content, that they may uſe and injoy all their Liberties & priviledges that the Commons Houſe was wont to injoy.

Secondly, that they may frankly and freely ſay their minds in diſputing of ſuch matters as may come in queſtion, and that without offence to His Majeſty.

Thirdly, if any ſhould chance of that Lower Houſe to offend, or not to doe or ſay as ſhould become him, or if any ſhould offend any of them being called to that His Majeſties Highneſſe Court, that they themſelves (according to the ancient cuſtome) might have the puniſhment of them. And fourthly, that if there came any doubt whereupon they ſhall deſire to have the advice, or conference with His Majeſty, or with any of the Lords, that they might doe it; all [Page] which he promiſeth in the Commons names, that they ſhall not abuſe, but have ſuch regard, as moſt faithfull, true, and loving Subjects ought to have to their Prince.

The Chancellor anſwereth in the Princes Name as appertaineth. And this is all that is done for one day, and ſometimes for two. Beſides the Chancellor, there is one in the upper Houſe, who is called the Clarke of the Parliament, who readeth the Bills. For all that commeth in conſultation either in the upper Houſe, or in the neather Houſe, is put in writing firſt in paper, which being once read he that will, riſeth up, and ſpeaketh with it or againſt it, and ſo one after another ſo long as they ſhall thinke good: That done, they go to another, & ſo to another Bill. After it hath been once or twice read, and doth appeare that it is ſomewhat liked as reaſonable, with ſuch amendment in words and peradventure ſome ſentences, as by diſputation ſeemeth to be amended, in the upper Houſe the Chancellor asketh, if they will have it ingroſſed, that is to ſay, put into Parchment: which done; & read the third time, and that eft-ſoones, if any be diſpoſed to objected, diſputed againe among them, the Chancellor asketh if they will go to the queſtion; and if they agree to go to the queſtion, then he ſaith, here is ſuch a Law, or Act concerning ſuch a matter, which hath been thrice read here in this Houſe, are ye content that it be enacted or no? If the not contents be more, then the Bill is daſhed, that is to ſay, the Law is annihilated, and goeth no farther. If the contents be the more, then the Clarke writeth underneath: Soit baille aux Commons. And ſo when they ſee time, they ſend ſuch Bills as they have approved, by two or three of thoſe which doe ſit on the wool-ſacks to the Commons, who asking licence, and comming into the houſe with due reverence, ſaith to the ſpeaker: Maiſter ſpeaker, my Lords of the upper Houſe, have paſſed among them, and thinke good that there ſhould be enacted by Parliament ſuch an Act, & ſuch an Act, and ſo readeth the titles of that Act or Acts. They pray you to conſider of them, & ſhew them your adviſe; which done, they go their way. They being gone, and the doore againe being ſhut, the Speaker rehearſeth to the houſe what they ſaid. And if they be not buſie diſputing at the time in another Bill, he asketh them ſtraight way, if they will have that Bill, or (if there be moe) one of them.

[Page] In like manner in the lower Houſe, the Speaker ſitting in a ſeat or chayre for that purpoſe, ſomewhat higher, that he may ſee, and be ſeene of them all, hath before him in a lower ſeat his Clarke, who readeth ſuch Bills as be firſt propounded in the lower Houſe, or be ſent down from the Lords. For in that point each Houſe hath equall authority to propound what they thinke meet, either for the abrogating of ſome Law made before, or for making of a new. All Bills be thrice in three divers dayes read, and diſputed upon before they come to queſtion. In the diſputing is a marvailous good order uſed in the lower Houſe. He that ſtandeth up bare-headed, is underſtanded that he will ſpeake to the Bill. If more ſtand up, who that is firſt judged to ariſe, is firſt heard, though the one doe praiſe the Law, the other diſſwade it, yet there is no alteration. For every man ſpeaketh as to the Speaker, not as one to another, for that is againſt the order of the houſe. It is alſo taken againſt the order to name him, whom ye doe confute, but by circumlocution, as he that ſpeaketh with the Bill, or he that ſpeaketh againſt the Bill, and gave this and this reaſon. And ſo with perpetuall oration, not with alteration, he goeth through till he have made an end. He that once hath ſpoken in a Bill, though he be confuted ſtrait, that day may not reply, no though he would change his opinion. So that to one Bill in one day, one may not in that Houſe ſpeake twice, for elſe one or two with alteration would ſpend all the time; the next day he may, but then alſo but once. No reviling or nipping words muſt be uſed. For then all the Houſe will cry 'tis againſt the order, and if any ſpeake irreverently or ſeditiouſly againſt the Prince or the privy Counſell, I have ſeene them not only interrupted, but it hath been moved after to the Houſe, and they have ſent them to the Tower. So that in ſuch a multitude, and in ſuch a diverſity of minds, and opinions, there is the greateſt modeſty and temperance of ſpeech that can be uſed. Nevertheleſſe with much dulce and gentle termes, they make their reaſons as violent, and as vehement the one againſt the other, as they may ordinarily, except it be for urgent cauſes, and haſting of time. At the afternoone they keep no Parliament. The Speaker hath no voice in the Houſe, nor will they ſuffer him to ſpeake in any Bill to move or diſſwade it. But when any Bill is read, the Speakers office is, as briefly and as plainly as he may, to declare the effect thereof [Page] to the Houſe. If the Commons doe aſſent to ſuch Bills as be ſent to them, firſt agreed upon from the Lords thus ſubſcribed, Les Commons ont aſſentus; ſo if the Lords doe agree to ſuch Bills as be firſt agreed upon by the Commons, they ſend them downe to the Speaker, thus ſubſcribed, Les Seigneurs ont aſſentus: if they cannot agree, the two Houſes (for every Bill from whence ſoever it doth come is thrice read in each of the Houſes) if it be underſtood that there is any ſticking, ſometimes the Lords to the Commons, ſometimes the Commons to the Lords doe require that a certaine of each Houſe may meet together, and ſo each part be informed of others meaning, and this is alwayes granted. After which meeting for the moſt part, not alwayes, either part agrees to others Bills.

In the upper Houſe they give their aſſent and diſſent each man ſeverally by himſelfe; firſt for himſelfe, and then for ſo many as he hath Proxy. When the Chancellor hath demanded of them, whether they will go to the queſtion, after the Bill hath been thrice read? they ſaying only content or not content, without further reaſoning or replying, and as the more number doth agree, ſo is it agreed on or daſhed.

In the neather Houſe none of them that is elected, either Knight or Burgeſſe can give his voyce to another, nor his conſent or diſſent by Proxy. The more part of them that be preſent only maketh the conſent or diſſent. After the Bill hath been twice read, and then ingroſſed, and eſt-ſoones read and diſputed on enough as is thought, the Speaker asketh, if they will go to the queſtion, and if they agree? he holdeth the Bill up in his hand, and ſaith, as many as will have this Bill go forward, which is concerning ſuch a matter, ſay, yea. Then they which allow the Bill, cry yea, and as many as will not, ſay no: as the cry of yea, or no is bigger, ſo the Bill is allowd or daſhed. If it be a doubt which cry is bigger, they divide the Houſe, the Speaker ſaying, as many as doe allow the Bill, go downe with the Bill, and as many as doe, not ſit ſtill. So they divide themſelves, and being ſo divided, they are numbred who made the more part, and ſo the Bill doth ſpeed. It chanceth ſometime that ſome part of the Bill is allowed, ſome other part hath much controverſie and doubt made of it, and it is thought if it were amended it would go forward. Then they chuſe certains Committees of them who have [Page] ſpoken with the Bill, and againſt it, to amend it, and bring it again ſo amended, as they amongſt them ſhall think meet: and this is before it is ingroſſed, yea and ſometime after. But the agreement of theſe Committees is no prejudice to the Houſe. For at the laſt queſtion they will accept it or daſh it, as it ſhall ſeem good, notwithſtanding that whatſoever the Committees have done.

Thus no Bill is an Act of Parliament, Ordinance, or Edict of Law, untill both the Houſes have ſeverally agreed unto it after the order aforeſaid, no nor then neither. But the laſt day of that Parliament or Seſſion, the Prince cometh in Perſon in His Parliament Robes, and ſitteth in His State, all the upper houſe ſitteth about the Prince in their States and order in their Robes. The Speaker with all the Commons Houſe cometh to the Barre, and there after thanks-giving firſt in the Lords name by the Chancellor &c. And in the Commons name by the Speaker to the Prince, for that He hath ſo great care of the government of His People, and for calling them together to adviſe of ſuch things as ſhould be for the Reformation; eſtabliſhing and ornament of the Common-wealth. The Chancellor in the Princes name giveth thankes to the Lords and Commons, for their pains and travailes taken, which he the ſaid Prince will remember and recompence when time and occaſion ſhall ſerve, and that he for his part is ready to declare his pleaſure concerning their proceedings, whereby the ſame may have perfect life and accompliſhment, by His Princely authority, and ſo have the whole conſent of the Realme. Then one reads the Titles of every Act, which hath paſſed at that Seſſion, but only in this faſhon: An Act concerning ſuch a thing, &c. It is marked there what the Prince doth allow, and to ſuch he ſaith Le Roy, or La Royn le vults And thoſe be taken now as perfect Lawes, and Ordinances of the Realme of England, and none other, and as ſhortly as may be put in Print, except it be ſome private cauſe, or Law made for the benefit or prejudice of ſome private man, which the Romans were wont to call Privilegia. Theſe be only exemplified under the Seale of the Parliament, and for the moſt part not Printed. To thoſe which the Prince liketh not he anſwereth Le Roy or La Royne ſaduiſera, and thoſe be accounted utterly daſned and of none effect.

This is the Order and Forme of the higheſt and moſt authenticall [Page] Court of England, by virtue whereof all thoſe things be eſtabliſhed whereof I ſpake before, and no other means accounted availeable to make any new for feiture of Life, Member, or Lands of any Engliſh man, where there was no Law ordained for it before.

King IAMES His Declaration to both Houſes at White-Hall, of the Kings power in the Parliament of SCOTLAND in making Lawes. March 31. 1607.

IT hath been objected as another impediment, That in the Parliament of Scotland the King hath not a Negative voyce, but muſt paſſe all the Lawes agreed on by the Lords and Commons.

Of this I can beſt reſolve you, for I am the eldeſt Parliament man in Scotland, and have ſate in more Parliaments then all my Predeceſſors. I can aſſure you, that the forme of Parliament there is nothing inclined to Popularity. About a twenty dayes or ſuch a time before the Parliament, Proclamation is made through the Kingdom, to deliver into the Kings Clark of Regiſter (whom ye here call the Maſter of the Rolles) all Billes to be exhibited that Seſſions, before a certain day. Then are they brought unto the King, and peruſed and conſidered by Him; and only ſuch as I allow of are put into the Chancellors hands, to be propounded to the Parliament and none others. And if any man in Parliament ſpeak of any other matter, then is in this forme firſt allowed by me, the Chancellor tells him there is no ſuch Bill allowed by the King.

[Page] Beſides when they have paſſed them for Lawes, they are preſented unto Mee, and I with my Scepter put into my hand by the Chancellor, muſt ſay, I ratify and approve all things done in this preſent Parliament: And if there be any thing that I diſlike they race it out before: If this may be called a Negative Voyce; then I have one I am ſure in that Parliament.

If I have ſpoken evill bear witneſſe of the evill, but if well, why ſmiteſt thou mee?

Ioh. 18. 23.

If I have ſaid any thing amiſſe tell me.

Eraſ. Paraph.

FINIS.

[Page]

Information about this book

Title statement

An old mould to cast new lawes by compiled by the Honourable Sir Thomas Smith, Knight, doctor of both lawes, and one of the principall secretaries unto two most worthy princes, King Edward & Queen Elizabeth ; reprinted out of the Common-wealth of England by a friend to old bookes and an enemy to new opinions ; together with King James his declaration to both Houses at White-hall, of the kings power in the Parliament of Scotland in making lawes, March 31, 1607.Common-wealth of England. Selections. 1643

Smith, Thomas, Sir, 1513-1577.

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1643

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Wing S4218

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ESTC R37569

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16975222

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105581

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— An old mould to cast new lawes by compiled by the Honourable Sir Thomas Smith, Knight, doctor of both lawes, and one of the principall secretaries unto two most worthy princes, King Edward & Queen Elizabeth ; reprinted out of the Common-wealth of England by a friend to old bookes and an enemy to new opinions ; together with King James his declaration to both Houses at White-hall, of the kings power in the Parliament of Scotland in making lawes, March 31, 1607., Common-wealth of England. Selections. 1643, Smith, Thomas, Sir, 1513-1577., James I, King of England, 1566-1625..

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[2], 10 p.

s.n.],. [Oxford? :: M. DC. XLIII [1643]. (Reproduction of original in the Cambridge University Library.)

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Text selection was based on the New Cambridge Bibliography of English Literature (NCBEL). If an author (or for an anonymous work, the title) appears in NCBEL, then their works are eligible for inclusion. Selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. In general, first editions of a works in English were prioritized, although there are a number of works in other languages, notably Latin and Welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so.

Image sets were sent to external keying companies for transcription and basic encoding. Quality assurance was then carried out by editorial teams in Oxford and Michigan. 5% (or 5 pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet QA standards were returned to the keyers to be redone. After proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of 100 instances per text. Any remaining illegibles were encoded as <gap>s. Understanding these processes should make clear that, while the overall quality of TCP data is very good, some errors will remain and some readable characters will be marked as illegible. Users should bear in mind that in all likelihood such instances will never have been looked at by a TCP editor.

The texts were encoded and linked to page images in accordance with level 4 of the TEI in Libraries guidelines.

Copies of the texts have been issued variously as SGML (TCP schema; ASCII text with mnemonic sdata character entities); displayable XML (TCP schema; characters represented either as UTF-8 Unicode or text strings within braces); or lossless XML (TEI P5, characters represented either as UTF-8 Unicode or TEI g elements).

Keying and markup guidelines are available at the Text Creation Partnership web site.