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Anon, The Arraignment of Co-Ordinate-Power - Joyce Lee Malcom, The Struggle for Sovereignty: Seventeenth-Century English Political Tracts, vol. 2 
The Struggle for Sovereignty: Seventeenth-Century English Political Tracts, 2 vols, ed. Joyce Lee Malcolm (Indianapolis: Liberty Fund, 1999). Vol. 2.
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Anon, The Arraignment of Co-Ordinate-Power
Are laid open to all Honest
With a Touch at the
Plebs aut humiliter servit, aut superbe dominatur, Tacit.
Albeit by the sufferance of the King of England, Controversies between the King and His People are sometimes determined by the High-Court of Parliament, and sometimes by the Lord Chief Justice: Yet all the Estates remain in full Subjection to the King, who is not bound to follow their Advice, neither to consent to their Requests, Bodin de Rep. l.1.c.2.
Irridenda est eorum socordia, qui praesenti potentia credunt se extingui posse sequentis aevi memoriam, Tacit. l.4.
Printed for T. Hunt, Anno Dom. MDCLXXXIII.
The author of this tract hid his identity so well that it remains a mystery. He is likely to have been a barrister however, as he claims expertise in the law and familiarity with the views of barristers. The publication of this tract in 1683, the year of the Rye House Plot, coincided with, and appears to be a part of, fierce government repression of Whigs and dissenters and a propaganda campaign against their ideology. Charles and his party demanded unity, obedience, and control.
“The Arraignment of Co-Ordinate-Power” disparages the institution of Parliament at a time when Charles II had no intention of summoning another. Indeed the King had secretly promised Louis XIV he would not do so. For two decades there had been a parliament in session all but two years. In 1683 none was held or anticipated. The first five chapters of “The Arraignment of Co-Ordinate-Power” reprinted below consider the antiquity and role of Parliament in relation to that of the King and the judicial powers of the two houses. Because the remainder of the tract treats more narrow questions of law, it has been omitted.
The author begins by directing attention to two documents of 1681 that claim for Parliament great power, especially judicial power: the debates of the House of Commons in October 1680, published in 1681; and the petition of the mayor and aldermen of London in January 1681. The author’s quarrel with the former is its claim that barristersbelieve “the proceedings of the House of Commons are Things above them, and which they have neither Power or Ability to make determination of the same.” This he proposes to answer. The second document, the London petition, complained about the interruption of public justice during the prorogation of Parliament. The petition figured prominently in the indictment the Crown brought against London in 1683 to force that Whig stronghold to surrender its charter.
The tract is a clear exposition of the Tory viewpoint in the 1680s. Its title page sports a quotation from Bodin that prepares readers for what is to come: “Albeit by the sufferance of the King of England, Controversies between the King and His People are sometimes determined by the High-Court of Parliament, and sometimes by the Lord Chief Justice: Yet all the Estates remain in full Subjection to the King, who is not bound to follow their Advice, neither to consent to their Requests.” The dedication to Lord Noble complains that “It is against the Liberty of the Subject, that Loyal and Obedient Subjects should be either Terrify’d or Dismay’d by their own Representatives, whose Electors . . . cannot give away all their own Rights, Power and Freedoms unto them, without His Majesties Consent, or the Promulgation of a known Law, and leave nothing to themselves for a Self-preservation.” Only a single edition of the tract seems to have been published.
The Power of the Parliament of this Kingdom.
I Cannot presume that He or They that writ the Pamphlet printed for Richard Baldwin on the 28 of June 1681.1was so well acquainted with Benchers, Ancients, and most of the Barresters of the several Inns of Court, as he pretends to be; for assuredly then in that Paper there had not been so much of the Language of Billingsgate,2and so little of that of Westminster-Hall therein to be found. Now for that it is therein said, That the Inns of Court-men have declared, that the proceedings of the House of Commons are Things above them, and which they have neither Power or Ability to make determination of the same. By these words this Writer being so great an intelligent Athleta, let us consider the Power of the Parliament, &c.
THE Power of the Parliament of this Kingdom being agreed by most Men, if not by all, to have no other Limits, save only such as are set by the Law of Nature preceptive, and the dispersed Divine Laws, written and declared in the Sacred Volumes of the Old and New Testaments, whose Acts by conjecture bear a relation thereunto, yet are always subject to the mistakes of Human Frailties. The Doubts that at this time seem necessary to require a Dispute, are, to whom and to what this Name The Parliament is due, and what things cannot be done but by the Concurrence of all the Three Estates, Lords Spiritual and Temporal, and Commons; what Power the King hath over both or either Houses of Parliament: which not being rightly understood by the greater part of the People, much hath passed for current, to the endangering a Relapse to the whole Kingdom, that otherwise would have plainly appeared counterfeit, and base Alloy: For the clearing of which, I shall, with some brevity and demonstration, state and argue these Ten Questions following.
I. What the Parliament is?
II. Whether the name Parliament hath been, or can properly be given to any part or parts of this Body?
III. What Power the Lords in Parliament have as a Judicial Court of Record, touching particular Suits between the King and Subject, or between Subject and Subject?
IV. Whether the House of Commons be any Judicial Court of Record, touching particular Suits between the King and Subject, or between Subject and Subject?
V. Whether the House of Commons alone can make any Ordinance to bind any of the Commonalty, but their own Members; or where some Contempt is committed, by breaking the present Priviledges belonging to the Members of that House?
VI. Whether the House of Commons alone have any Power to imprison any of the Commonalty, for Breach of their Votes or Ordinances, unless a Member of the House, or where there is a Contempt committed by Breach of the Priviledges belonging to the Members, being such as before is mentioned?
VII. Whether the Lords alone, or the Lords and Commons together, (without the King) can make Ordinances to imprison, bind the Persons and Estates of the Subject, where there is no Suit before them between the King and a Subject, or between Subject and Subject; or where it doth not concern the regulating their own Members, or where there is no Contempt committed against their Proceedings given them by the Law of England?
VIII. Whether there be not greater reason to be given, that taking men into Custody by a Vote of the House of Commons, where their Priviledges are not concerned, should be within the Statute of 27.E.3.1. and the 16R.2. then for the High Court of Chancery to hold Cognizance of a Cause after Judgment given in a Court at Law?
IX. Whether the Priviledges of Parliament as now pretended to be used, be not an Oppression to the People?
X. Whether the House of Commons can prohibit a Councellor at Law to speak in behalf of his Client?3
Q.1. What the Parliament is?
The Parliament is the Common Councel, or great Court of the Kingdom: A Body Politick, consisting of the Three Estates aforesaid, whereof the King is the Head, the Lords, the Noble Members in person, and the Commons the inferiour Members. By their Representatives the two latter called by the King’s Writ, in which Councel or Court alone old Laws may be annulled, abrogated, restrained, enlarged, or so declared, as shall bind other Courts or New Laws made by the King, done with the advice and consent of the Lords and Commons, and not otherwise.
Every part of this being indeed a description of the Parliament, is made good by the Writ of Waste and other Writs upon Statutes and in Authors of great Reputation in this Kingdom. The Parliament is called Commune Concilium Angliae, the Common Councel of England; and Magna Curia, the Great Court. And there is great reason it may be so called, there being, in effect, the common advice and judgment of the whole; amongst others, I instance these in the Margent.
From this name Parliament, some persons before the Statute 13 Car. 2.4 were of Opinion, That both or either Houses of Parliament, had a Legislative Power without the King; since which time the like Principle hath been revived, that both or either Houses of Parliament hath a co-ordinate power and share in the Government with the King, and that this is the ancient Constitution of the Government of this Kingdom, as the London-Petition5 gravely asserts it. As if it would stand with any colour of reason, that the King, who by His Prerogative hath the sole Sanction of Laws, which is the only reason of our Obedience; that the King, to whom the protection and preservation of the Laws of the People, their Lives, Liberties, and their Estates, with the whole Kingdom, are especially committed; That the King, who is exempt from Human Laws, and may command the Laws themselves for the Publick Good; and by whom only Parliaments can be called, and at His Pleasure dissolved; and who indeed is Anima Republicae, God’s Lieutenant, Salus Populi, and an Emperour in His own Dominions, should have Associates and Collegues joined with His Royal Person, and yet these persons be only called Counsellors and Advisers. As if it were not necessary that in every Commonwealth, that some one Authority should be established, that is superiour and above all Laws.
First, To supply the defect of Laws.
Secondly, To correct the severity of Laws: Because the event of future matters cannot be foreseen, and so every Act that is the exercise of Supreme Power, doth suppose that the Agent hath a proportionable power to itself.
The Chronologers and Historians that do keep within the compass of their own bounds, do prudently and safely say, That the name Parliament is a name of no great Antiquity; that it is a French word, derived from Parler-le-ment, that is, to speak one’s mind, and to discourse freely; that before the time of King Henry I to signifie the King’s great Court, or Councel. On the contrary, some persons that affect Popularity, and make it their studies to enlarge the Jurisdictions of the Commons, are not contented with that old name, The King’s great Court, or Councel; where the Rights and Liberties of the Subject are as well, if not better secured and maintained, than they are in the same Court called by the new name, The Parliament.
These kind of men have such Fancies, and imperfect, and partial Animadversions for this name, The Parliament, that instead of making this name serviceable to the King, and His Subjects, they endeavour by misrepresentation, and otherwise, to ease His Majesty of great Trouble, and give the Commons dominion, and make the Laws subservient unto them. And so King Charles I. complained, That the Oaths of Allegiance and Supremacy to defend the Crown, and assist and defend all Jurisdictions, Priviledges and Authorities belonging to Us, obliges them not, they are to be associated in these Regal Powers; the Sword and Scepter may be in Pictures and Statues, but not in the King’s hand alone.
So I find in Vox Populi, a Pamphlet printed 1681.6 that when they came to mention King Alfred’s appointing the meeting of an Assembly, Pur Parlementer de grandment de People, the which signifies to discourse freely concerning the great Affairs of the People; They, on purpose to delude the Vulgar, falsly translate these words, to mean, That they shall assemble themselves at London, to treat in Parliament of the Government of the People.
2. They say the Court of Parliament is the most ancient Court. Let this Court be called by what Name you please, be it either Wittena Gemot. Geredner Micellemod, as Mr. Campden hath it, or the Senateof the King’s great Court, the Parliament Treaty or Assembly, as the Statute of 7 E.1. and the 13 Car. 2.15. calls it; Yet by the Laws of England, never any of these Courts had a share in the Government, as government of the People, as hereafter will appear.
This Court, by the name of the King’s great Court, may well be called the most Ancient Court; for there were Kings before there were Laws, witness that Story of King Lucius and Eleutherius, and that Kings had Councels before Courts.
This Kingdom flourished as much, if not more, before the Name of Parliament was known. The Parliament of Paris, which is the ancientest, was established and constituted in the time of King Philip le Bel, in the year 1294. That of Toulouse during the Reign of Charles VII. in the year 1444. That of Bordeaux in the time of the said King, in the year 1451. That of Dauphin in the time also of the said King: But by the Authority of King Lewis XI. His Son, at Dolphin, then inhabiting in Dolphin in the year 1459. The Parliament of Dion and of Province in that time of the said King Lewis; That of Rouen in the time of King Lewis XII. in the year 1553, and so it would be absurd to say, That Parliamenta est Curia Antiquissima, that we took the Name Parliament from the French, whose first Court of Parliament was held at Paris, in the year 1294, as aforesaid.
Such like ancient Parliaments, were those of Magna Carta, held in the 9th year of Henry 3 afterwards, wherein some time the assent of the Lords and Commons were not at all mentioned; such like most ancient Courts was that held at Clarendon in Normandy, in the time of King Henry II. wherein those excellent Laws were made against Thomas A Becket, yet no House of Commons were ever there: The which shews, That good Laws have been made for the People to their own contents by His Majesty, without any consent of the Commons, Pes Regis sepes legis sospes Civis.
Polidore Virgil says, That before the time of King Henry I. Regesnon consuevisse populi conventum consultandum causa raro facere. That it was very rare or seldom, that the Kings of England, before the time of King Henry I. called an Assembly of the People, to know their advice and counsel; For, saith he, the Vulgar that came to consult in such Assemblies were unlearned, Cuivis proprium est nihil sapere; they had so little knowledge, they did but hinder, instead of giving a dispatch to the King’s Council. Some persons appeared in respect of their Tenures, the which might cause some opposition to be made on their behalf, But at this time of day it is not material to search into Antiquity, concerning the time when, and place where the Commons first met and sat, either together with the Lords, or by themselves, but chiefly concerning their Power: However, thus far I will concur with the Petitioners and Presenters, that the Name Parliament is the most famous Idol that ever was, to be thus bowed down to, and worshipped in respect of time, before it ever was born or heard of in the world. Concerning this mixture of Power, let us first look into the danger of it.
First, The Poets are against this mixture:
So concerning Ruffinus, the treacherous Tutor of Arcadius, that endeavoured to supplant him by the help of King Alericus:
The truth whereof we find in the Emperour Constans, that when he suffered his two Brothers Tiberius and Heraclius, to be his Fellow Consorts in the Government, he cut off both their Noses, lest afterwards they should enjoy the dignity of being Emperours.
And so it is observed of Constantine and Maxentius, Nullam Regni societatem diu esse patientem consortis. For the like cause Henry 2. put out his Brother Robert’s eyes. And when Henry 2. out of his great care to his Son, caused him to be crowned King; and at the Solemnity of the Feast made on that occasion, carried up the first Dish to his Son’s Table, to honour his Son the new King, and waited likewise upon him. But before the Feast was ended, King Henry 2. said, Eius penitet! Penitet me extulisse hominem. It repented him he had made his Son a Consort in the Government; so in a short time he did see, (when it was too late) that a Crown is no Estate to be made over in Trust; and what trouble would ensue thereupon both to himself and the whole Kingdom.
So the Adoption of Pisoky Galba, was the cause of Pisor’s Ruine, Cornelius Tacitus Hist. I.
In the 36 Fable of Aesop, concerning the Husbandman, and the Wood; the Husbandman petitions Jupiter but for so much Wood as would only make him a Hatchet Helve, the which Petition being granted, the Husbandman cut down the whole Wood; upon the Moral of which Fable, Mr. Ogilby pleasantly saith:
So concerning Julius Caesar, and his Collegue Bibulus Augustus, Lepidus and Antonius.
His Majesty is the Exis, the Soul of Human Things; the Bond of Society, which cannot otherwise subsist; the vital Spirit, whereby so many millions of Men do breath, and the whole nature of things; His Majesty hath peculiar Rights to himself, called Sanctimonia summae potestatis, the which are sacred and individual.
In the presence of His Majesty, both, or either Houses of Parliament, have no Power to command: And, as Rivers lose their Name and Power, at the Mouth or Entrance into the Sea; and the Stars their light, in the presence of the Sun: So the Power of both or either Houses of Parliament, is but upon sufference, in the presence of their Sovereign His Majesty.
It is said concerning Arbates, Rex Medorum Tanta erat Regia illa veneratio honorem deferens ei insidere Sellae quam vocabunt Thronon Basilicôn capitale esset, Praescribi à subditis nequit immunitus ab obedientia principis vel ipsius correctione, vel ut eum non possit appellari quia potestas praecipiendi judicandi & castigandi omnino intrincise est potestate Principis respectu subditorum.
Multum falluntur qui existimant cum Regis acta quaedam sua nolunt rata esse nisi a Senatu aut alio coetu aliquo probentur partitionem fieri potestatis nam quae acta eo in modo rescinduntur intelligi debent rescindi Regis ipsius Imperio quo eo modo sibi cavere volunt ne quid fallaciter impetratum pro vera ipsius voluntate haberetur.9 Dr. Taylor is of the same opinion, who saith, That the consent of the People gives no Authority to the Law; therefore it is no way necessary to the Sanction and Constitution, saving only to prevent Violence, Rebellion, and Disobedience; as for Example:
Asivius Gallus cum Tiberius simulate partem sibi Reipublicae petisset, interrogato inquit Caesar, quam partem Reipublicae tibi mandari velis, mox cum vultu offensionem confectasset. Non se ideo interrogasse ait ut divideret quae seperari nequirent, sed ut sua confessione argueretur unum esse Reipublicae corpus atque unius animo regendum.
Decius Imperator cum decimum filium suum imperiali diademate proponeret insignari renuit filius dicens, vereor ne si fiam Imperator, dediscam esse filius, malo non esse Imperator quam filius indevotus imperet, pater meus meum imperium scit parere humiliter imparanti nam parentum affectum exuit qui male suprapositum filium extinguit prius enim claudi & nutriendi sunt pueri & cum processerant quis procedere debent invite ascendunt.10
That is, Decius the Son refused to receive the Crown, and participate in the Government with his Father Decius; for in respect of the difficulty that did attend Supreme Power, he said he had rather be no Emperour, than after the acceptance thereof, prove to be a disobedient Son.
Erat ipsi pelvis aurea in qua tam ipse Amasis quam convive omnes semper pedes lavabunt contusa ergo pelvi statuam Dei ex illa fecit. Et inea urbis parta collocavit ubi erat commodissimum Aegyptii irantes ad statuam studiose eam coluerunt quo Amasis cognito accersitis Aegyptiis exposuit statuam ex pelvi factam esse ex qua prius levarit pedes modo autem religiose ab illis coliunt igitur eadem est mea quae pelvis ratio uti enim prius fuerint plebeius nunc tamen Rex vester sum honorare igitur me & venerari voce jubeo hac quidem ratione Aegyptios sibi reconciliavit & equum judicarent ipsi servare.11
But yet to come nearer to the purpose: Admit that the Two Houses have a share in making Acts by their advice and consent only, yet they have no power in the Government itself, either before or after the Statutes made; for that the sole Empire is in the King, the King is the only Supreme Governour of this Realm; in all the world there is no other Sovereignty touching the Regality of the Crown of England, 4 Inst. 89. The Lord Bishop of Lincoln, p. 4. printed 1679.
The King hath sufficient power to do Justice in all Cases within His Dominions.
Curia Domini Regis nos debet deficere conquerentibus in justicia exhibenda.
Eum à quo aliquis constituitur esse superiorem constituto, id est cujus affectus perpetuo pendet a voluntate constituentis.
All external Actions are under the Command of the Civil Power, in order to the Publick Government; and if they were not, the Civil Power sufficiently provided for the acquiring the ends of its institution, so all that God made were not good.
That the Information against Sir John Elliot is good Law, notwithstanding the Vote of the Commons for making him reparation for damages;12 for the Statute saith, For that to the King it belongeth at all times and seasons to defend, force of Armour, and all other force against the Peace at all times, and to punish them that shall do the contrary; and hereunto the Subjects are bound to aid our Sovereign Lord the King at all seasons when need shall be. And so the Civil Rights of the Subject are under a general Protection, otherwise Sovereign Power cannot subsist. And as these Statutes extend to punish Force within the Lords House, so the Book of 3 E.3. 19 Bro. Corone 161. extends to punish a Peer for departing the Parliament without the King’s Licence; much more for a Commoner, that pretends that whatsoever is acted and done in their House, is acted and done in a Superior Court, and cannot be called in question in any of His Majesty’s Courts in Westminster-Hall, and the reason is, for that the King hath no Peer in his own Land.
That it is the Rights of the Crown, to declare all Acts of Parliament to be void unto which the King doth not freely consent at the time of the making thereof.
So it was when the Prelates and Citizens had obtained an Act of Parliament, That if anything was done by any of what estate or condition he be contrary to their Franchises, that it should be redressed in the next Parliament; and so from Parliament to Parliament, and they shall be made quit of the Exchequer.
So great was the King’s Prerogative before the Statute 8 H.5. cap. 1. for the care and safety of the Subject, that if a Parliament was summoned by Writ under the Teste of the King’s Lieutenant, during the time that the King was in Foreign Parts beyond the Sea, at the King’s Return, such Parliament was dissolved.
Thus having shewed what the Parliament is, what Power the King hath over both or either House of Parliament, and what kind of share both or either House of Parliament can pretend to in the Government, what danger there is in a Colegislative Power, I descend to the second Question.
Q. 2. Whether the Name of Parliament can properly be given to any Part or Parts of this Body, not being the Whole?
In all Bodies, whether Natural or Politick, there is one Name which is proper only to the whole taken together, and divers Names proper to the Members respectively, as the whole reasonable Creature is called Man, and the parts by several other Names, and the chief the Head, the rest the Arms, &c. And so the whole irrational Creature is called a Horse, a Dog, or such like, according to their difference; but of the parts one is called the Head, &c. A Man shall scarcely in an Age hear any person never so ignorant call the Head of a Man, a Man; or of a Horse, a Horse. In Bodies Politick, the Whole is called the Empire, the Kingdom, the State, the City, the Colledge, but the Members by particular Names: As the Emperour, the King, the Head, the Nobles, and the Commons; the President, the Mayor, the Master, &c. Doth ever anyone call the Mayor of London, or the Aldermen, (though many) the City? No, the reason is plain, because in truth that is the name of the Whole, which consists of the Mayor, Aldermen and Commonalty, whereof the Mayor and Aldermen are but Parts, though but chief ones; so the Name the Parliament, is the Name due to the Whole, and not to any Part or Parts not being the Whole, nor can properly be given to them. The Commandment which God gave unto Adam, was to impose Names to all, significant to every Creature, but to give to every particular Part, or to some Part, not being the Whole, the same Name, would not only be repugnant to the definition of a Name, but also destroy the end for which Names were given, which is, that one thing may be distinguished from another; which cannot be, if the same Name be given to a Part, which belongeth to the Whole. And there would follow Confusion, besides Absurdity. Uno Absurdo dato, mille sequuntur; one Absurdity being admitted, infinite do follow. It is likewise a Rule, Nemo praesumendus est velle absurdi. And shall we have so base an opinion of our wise Ancestors, as to think they gave the Name Parliament to a part of that Parliament, which is so absurd as hath been said.
May it not come to pass, that if the King, and the Lords in the Upper House, and the Commons in the Lower House, differ in opinion; the one by the Name of Parliament, ordain for one thing, and the other against it, and what remedy will there be, but such as may prove worse than the Distemper, Unde summam confusionem sequi necesse est cognitionem de re eadem pro jure potestatis; when the dispute arises concerning the Right of Power, of necessity it is, great confusion must follow.
There is more reason, that if the Name proper to the whole Parliament may be given to a part, that it should be given to the King the Head, than to any other part; for that the Head is the supreme and most noble, in respect of its regent part of all natural Bodies. The head of a Man by Plautus is called divinissimum, and so it is, and must be in the Head Politique.
Hence it is, that great mistakes have come from this word Parliament, and great confusion hath arisen from these words of Sir Edward Cooke, in respect of the Priviledge of the Commons; That theJustices should not in any wise determine the Priviledges of this High Court of Parliament, for it is so high and mighty in its nature, that it may make new Laws; and that which is Law, they may make no Law; and the determination and knowledge of the Priviledges belongeth to the Lords of Parliament, and not to the Justices.
In which words it is very plain, that the word Parliament is Nomen collectivum, and means the King, Lords and Commons; for it is they jointly that can make Laws. And that which is Law, is by them to be made no Laws; and so the House of Commons alone are but a Society, and a distinct Court, the determination of whose Priviledges belong to the Lords, and cannot be called the Parliament: Nor can this Name be given to the King alone, or to the King and Lords, or to the Lords and Commons, or to the King and Commons; for then we should have several Parliaments, which cannot be allowed by the Laws of England.
Q. 3. What Power the Lords in Parliament have as a Judicial Court of Record, touching particular Suits between the King and a Subject, or between Subject and Subject?
Their Power is to hear and determine matters duly brought before them, either by Presentment, or Impeachment from the House of Commons Information on behalf of His Majesty, or complaint of any particular person grieved by Error, or corrupt Judgment, Decree, Sentence, or other unjust pressure; but with these Limitations:
I. That the Suits before that, which by the known Laws or course of Equity of the Realm the Party ought to have had, to avoid that Judgment, Decree or Sentence, which is against the same Laws or course of Equity.
II. That the Defendant be called and admitted to make his defence as in other Courts of the King, as in all Justice he ought.
III. That if the Defendant deny the matter alledged, it must be proved either by Record, or Witnesses upon Oath.
IV. That the Judgement, Sentence, Decree or Ordinance of the Lords in such Cases, be only such as by the known Laws or course of Equity of the Kingdom it ought to have been given in Chancery, King’s Bench, Common Pleas, or other Courts of the King.
For the office of the Lords in these Cases, is jus dicere, to say what the Law saith, and not jus dare, to give Law as they please. If the Lords in the Cases aforesaid were not limited, then in effect they might do as much as the whole Parliament, for the Judgments, Decrees, and Ordinances, would make Laws if there were none to warrant them, it being in truth nothing less, if they have liberty to proceed as they will, and give what Judgments, Decrees and Ordinances they please, and those to be held good.
And for what do the Judges attend in the Upper House, and not in the Lower, unless it be to inform the Lords what the Law is, as in the 7 H.7.20.13 It is, That the Lords with their advice proceed to correct erroneous Judgments. In the Case of the 21 E.3.46. which I cited before, the Lords in Parliament gave Judgment for repealing a Patent, being against Law. But because they had not (as the Common Law required) first awarded a Writ of Scire Facias, to summon the Patentee to shew cause if he could, to maintain the Patent, the Judgment was by the Lords in Parliament held erroneous, and therefore reversed. And if the Lords were so clear of that opinion, having better consulted what the Law was, which we must intend they did, as to condemn their own former Judgment; methinks it should satisfie any reasonable person, who labours not to be troublesome herein.
Besides, it were against reason, destructive to Property, Liberty, and all manner of Repose, to make the common Law uncertain, which is a great misery to a People. It is well said, Misera est servitus, ubi jus est vagum; where Law is wanting, there is miserable servitude. That Judgments, Decrees, and Ordinances, not warrantable by Law, or course of Equity of the Kingdom, or the Parties’ consent should bind unquestionably, for that man could not call anything his own, or enjoy any security, which are the ends of all Society: Omnis Societas eo intendit ut suum cuique fit salvum communi opere & conspiratione. All Society tends to this, that every one may by the common aid and design, as it were, enjoy what is his own in safety.
That the Lords do not sit or act anything as they are a peculiar, Judicial Court, by so much as the Election of the People, for the King is the only Fountain of Honour; nor have they consent to do what they please with the People, or their Estates, I suppose all men unconcerned that know anything of the Policy, Law or Government of the Kingdom, will confess.
The chief Reason why an Act of Parliament binds all, (if it were so intended it should) is in effect every one, both King and People, by himself, or his Representative, is consenting thereunto; in which regard the Lawyers hold, and truly too, That an Act of Parliament (they mean a Free Parliament, for such only are according to the Frame and excellent fundamental Policy of this State) cannot be said to do any wrong, relying upon a Maxim in Law, Volenti non fit injuria, a thing is not a wrong to him that willeth it, as it is with the People and their Representatives, so in this it is with the King and his Representatives.
Moreover, unless the Lords have the consent of the Commons, who do represent all the Commons England, and have power from them, as joining with the King in doing of such things as cannot be done but by the concurrence of all the Estates of the Kingdom, they take upon themselves and exercise as great an arbitrary Power as may be; and how vast and pernicious a Crime that hath been esteemed in all Ages, see Wingate’s Abridgment,14 Title, Accusation, and Stat. 17 Car. I cap. 10.15&c. If the Lords had any such Power, it would have appeared by the Records of the Lords House; but it doth not appear, therefore it follows, that they have no such Power or Authority.
To conclude, The Lords in Parliament never claimed such unlimited and arbitrary Power, the which certainly they would have done, if it had belonged unto them. The Lords at this time are contented with the Legal Power and Jurisdiction that always hath been allowed them, if they be not incroached upon therein by others.
Let us now see if the House of Commons are contented with that Jurisdiction which the Law allows them likewise.
Q. 4. Whether the House of Commons be any Judicial Court of Record, touching particular Suits between the King and a Subject, or between Subject and Subject?
Although I do acknowledge, and that most willingly, That they are an Honourable Assembly, and have privity in the promulgation of Laws, and are a kind of Court of Record as touching the Members of their own House, if they be remiss, or offend, quasi Parliament-men, that is, if they offend in anything which is contrary to the course of Proceedings of the House; and also for preserving their necessary Priviledges of that House, given and allowed them by the Law, without which it may be probable, they may be hindered in attending the Service of the Common-weal, for which they are elected and set up; yet I hold they are no Judicial Court of Record, to determine Suits between the King and a Subject, or between Subject and Subject, upon these Reasons.
1. Because they have not the means whereby to know the truth, as by Law and in Reason is required; for they cannot administer an Oath to a Witness to make any kind of Evidence, either before themselves, or any other Court whatsoever. And that is clear, not only by the opinion of all persons that know the Laws, but by this, that it doth not appear that ever any Oath was administered by them quasi Parliament-men, Knights, Citizens, and Burgesses, otherwise why should Sir William Scroggs, late Chief Justice, be sent for by one of their Members to desire his assistance and advice in the House? And when he was there, then to make use of him to have an Oath or Oaths administered by him before them, to make out such Evidence as might prove acceptable unto them.
2. Yea, when any Committee, or the House itself, hath been desirous to be satisfied by Affidavits, the direction hath been, and the like is practised at this very day, That an Affidavit is to be made before the Lords, or else in the Chancery, the which is a most strong evidence, that they cannot administer an Oath themselves. And can it stand with any colour of reason, that if the Law had made them such a Court, it would have denied the means; for, qui negat medium, negat finem; he that denies the means, destroys the end; whereas the meanest Court that is, without scruple exerciseth that power.
3. They cannot take a Recognizance, and the Defendant ought in many Cases to be bailed, if he tender Bail; and if he so doth, he ought not to be imprisoned, but delivered; and there is no Court of Record, but may take a Recognizance, which is but an obligation upon Record.
4. There is not any Record of any Suit to be found between the King and Subject, or between Subject and Subject, adjudged, and determined by the Commons alone.
5. The Commons are so far from being a Court of Record, that their Journal Book did but begin in the time of King Edward 6: and some say 1 Henry 7. concerning his Marriage. It must be intended, that if the Commons had any such Power, they would have exercised the same as well as the Lords, especially considering, that in most, if not in all Parliaments, there hath been in the House of Commons some men greatly learned in the Laws, as conscientious to perform that Trust and Duty, which if Judges, they ought to have performed; and the People by nearness of degree, or other causes, more likely to apply themselves unto them for redress, rather than to the Lords. And as to criminal Causes, it is a great Argument they are no Court of Record.
Q. 5. Whether the House of Commons alone can make any Order or Ordinance to bind any of the Commonalty, but their own Members; or where some Contempt is committed, by breaking the present Priviledges belonging to the Members of that House?
The House of Commons have a twofold Power, touching those persons that sent them, the Commonalty from whom they derive part of it; and that is limited by the Writ, and by the Indenture: The other for regulating their Members, and maintaining their Priviledges, as before is expressed; but I hold they cannot by any Ordinance of theirs, and the common People, or their Estates, by reason of any Suit between Subject and Subject, because, they have no Judicial Court of Record, as before is proved; and that they cannot where there is no Suit.
The Writs whereupon the Members of the Commons House are chosen, without which they could not be directly so, the Election and Authority given by the Commons, is to do and consent to such things as are to be treated and concluded by the Common-Council of the Kingdom, which consists of the Three Estates. And that appears plainly by the Writ and Indenture of Election, admitting the common people had any such power; yet not having given it, they cannot by an Authority derived, for the people work otherwise, for Authority must exactly be pursued: As for instance, If a Letter of Attorney be made to two to do a thing, one of them cannot do it without the other. So if a Commission be granted by the King to twenty men, nineteen of them cannot do anything without the other, unless there be a special Clause in the Commission that enables part of them so to do. If two men refer their differences to the award of three, two of these three can do nothing; yea, in Authority, every circumstance of time, place and manner, must be observed. And it is great reason so to be, for to whom the Authority is given by his or their acceptance, he or they agree to the qualifications.
It would be of mischievous consequence for the Lower House, if they might make one Law touching the Goods, Contracts and Inheritance of the common People, and the Lords the quite contrary, concerning the Goods, Contracts, and Inheritance of Noble-men, and a third touching the Grants, Goods, and Inheritance of the Crown.
As it is in the Natural Body, so it is in the Body Politick of this Common-weal, the Goods of each of the Three Estates hath dependency in the good of the other two, and one cannot be prejudiced, but the other will suffer.
Altera poscit opem res ut conservat amice.16
As for instance, If the Revenues of the Crown be wasted, will not the other two Estates be grieved at it? I fear much the former times have found it so, and therefore Princes by reason of their extremities that they have often been put unto, have consented to Acts of Resumption of the Lands of the Crown alienated away. This mischief hath taken deep root in the Fortunes and Affections of the Subjects, when Princes, to repay the Breaches of their own Revenues, have often resumed the possessions of their people, as Edward the 2d the 5th and 8th year of Reign, Omnes donationes per Regem factas ad dampnum & diminutionem Regis & Coronae suae. King Richard the 2d in the 10th year of his Reign, did the like of all Grants made to unworthy men by his Grandfather, and recalled all Patents dated since the 40th year of the Reign of King Edward the 3d. Thus did Henry 5. in the 20th year of his Reign, and Henry 6. in the 23d year of his Reign, and Edward 4. in the 3d and 12th year of his Reign, Henry the 7th in the third year of his Reign, with all Offices of his Crown, granted either by the Usurper, or his Brother. Neither is this in itself unjust, since the reason of State as Rules of best Government, the Revenues and Profits, Quae ad sacrum Patrimonium Principis, should remain firm and unbroken. And certainly Theodosius was in the right, who said, Periculosis simum animal est pauper Rex, a poor King is a dangerous Creature. And so the Citizens of Constantinople found it, when Constantinus Peleologus, in whose time the famous City of Constantinople was took by Mahomet the Great, in the year 1452, the miserable Emperour who had in vain gone from door to door, to beg or borrow money to pay his Soldiers, which the Turks found in great abundance when he took the City.
So Sir Richard Baker tells us a Story of a Jew in King John’s Reign, would not pay his Taxation, till the King caused every day one of his great Teeth to be pulled out by the space of seven days; and then he was content to give the King a £.1000 of Silks, that no more might be pulled out, for he had but one left.
Again, If the common People decay, will not the King suffer many ways in the Customs and Aids he may expect from them, to defend the Kingdom against Foreign Invasions, and other ways?
The Common-weal hath a Supreme Property in the Estates and Persons of every one, and may only by the joint consent of the Three Estates, scilicet, by Act of Parliament, dispose the same as shall be thought fit. Now if the House of Commons alone by their Ordinance bind the common People, their Persons and Estates as they please, then may they deprive the other two Estates, and that whether the King or Lords will or no, the which is against Reason.
Admit the Commons should make an Ordinance, That every third Person of the Common-weal should go to Pensylvania in America, and place themselves there, would not this prejudice the King, and the Lords too; It is most apparent it would.
In the ninth year of King Henry the 4th an Act of Parliament was made, that all the Irish People should depart the Realm, and go into Ireland before the 25th of December following, the which Act was a terrour to the People, and utterly against the Law; Besides, Solomon saith, That the Honour of a King, is in the multitude of his People.
Perchance it will be objected, That the House of Commons doth not claim any power to make any Ordinance of a new Law, but declaratory of the old, and that to bind only during Parliament.
Truly if their Ordinance have such power, that whatsoever they declare therein to be Law, and must bind all the Commons of England during that Parliament, may they not when they please, in effect, make a new Law, by declaring that there is such an old one; and by that means during Parliament, take and dispose all the Money, Plate, and personal Estate of the Commons of England, and imprison and banish any of them; and when the Parliament is done and ended, and all gone, what relief will it yield the people that the Ordinance hath now no farther duration? They will have but a lame remedy; but this they need not to fear falling lower, for
Quin jacet in terram non habet unde cadet.17
The Authority given them by the people, is no more to make Ordinances continue during Parliament, than forever; nor is there anything in the Indenture, in the Writ, or in the King’s Warrant to the Chancellor, wherein there is Authority given that hath any shadow of such a thing. Nemo potest in alium transferre quod ipse non habet: The Commonalty cannot assign that to their Representatives, which they never had themselves. The Law cannot be altered for a certain time, but by the assent of the Three Estates, for then why not for 100 years, or for 1000, as well as 100, and then what need of Statutes? You know we have many Statutes made but for a little time.
[1. ]“An Exact Collection of the most considerable Debates In the Honourable House of Commons, at the Parliament Held at Westminster the One and twentieth of October, 1680” (London, 1681).
[2. ]A prison.
[3. ]The sections dealing with questions 1 through 5 are included below.
[4. ]13 Car. II, c.1 (1661), An Act for Safety and Preservation of His Majesty’s Person and Government Against Treasonable and Seditious Practices and Attempts, condemns the opinion that both houses of Parliament, or either of them, has a legislative power without the king.
[5. ]In January 1681 the mayor and council of London petitioned the king to summon a parliament, complaining about the interruption of public justice during its prorogation. This petition figured in the indictment against the city in King’s Bench in 1683 as the Crown moved to force London to surrender its charter. See Ogg, England in the Reign of Charles II, 636-39.
[6. ]See “Vox Populi,” 656-57 above.
[7. ]The allies of the realm have no faith, and all power is averse to a partner.
[8. ]I no longer complain that the unjust have grown to the heights. They are raised aloft so that they may fall the more heavily. Seizing a garment, he rebukes the Arcadian who is delaying. He mounts the lofty tribunal. He declares that a sharer of royal power is an ally.
[9. ]Arbates, the King of the Medes: so great was the royal veneration deferring honor to him that it was a death sentence for him to occupy the seat called the throne of Kings. Unable to be subjected to limits by his subjects, he was immune to princely obedience or to his own emendation or to being hailed to court because owing to the regard of his subjects the power of instructing, judging, and chastising is by nature inherent in a prince’s power.
[10. ]Asivius Gallus, when Tiberius by a pretense had sought a part of the commonwealth for himself, questions him, “Caesar,” he says, “what part of the commonwealth do you want mandated to you?” (Soon he mitigates the offense with a look.) He says that he does not ask the question in order to divide what cannot be separated but so that it might be made clear that by his own admissions the commonwealth is a single unit and should be ruled by the will of single man.
[11. ]He had a golden bowl in which both Amasis and his dinner guests always washed their feet. But he broke up the bowl and cast it into a statue of a god, and he placed it in that part of the city where it was most convenient for Egyptians to approach and devoutly worship it. When Amasis learned of this, he summoned the Egyptians and exposed the statue as being made from a bowl in which he had earlier bathed his feet. But now it was worshipped by them with religious awe. Therefore the rationale underlying my present situation is the same as that of my bowls. For I used to be a plebeian but I am your King. So I order you to honor me and venerate me with words. On this basis he in fact reconciled the Egyptians to him and they thought it just to serve him.
[12. ]Sir John Eliot and two other members of the House of Commons were arrested and imprisoned on 3 March 1628/9 after forcibly detaining the Speaker the previous day to prevent an adjournment of Parliament. Charles I was determined to make an example of Eliot for his outspoken opposition to royal policies. When the three members—Eliot, Denzil Holles, and Benjamin Valentine—were finally indicted, it was for seditious words spoken during the actual session as well as for violence to the speaker. This flew in the face of the Commons’ insistence upon freedom of speech during its debates. The judges found in favor of the Crown. The three men were fined but refused to pay. Holles escaped, Eliot died in prison in 1632 (possibly for want of food), and Valentine was finally released in February 1640 just as the Short Parliament was to be elected. In July 1641 the Long Parliament resolved that the proceedings against the three men had been a gross breach of privilege. In 1668 on the motion of Holles himself the judgment of 1630 was at last reversed on a writ of error.
[13. ]7 Hen. VII, cap. 20 (1491), the reversal of the attainder of Thomas last Lord Roos and restitution of his son Edmund.
[14. ]Edmund Wingate, An Exact Abridgment of All Statutes in Force and Use. From the Begining of Magna Charta, untill 1641. With a Continuation, under Their Proper Titles of All Acts in Force and Use, untill the Year, 1670 (London, 1670). This collection was continued down to the year 1681 and reprinted in that year.
[15. ]An Act for regulating the Privy Council and for taking away the court commonly called the Star Chamber, 1642.
[16. ]One thing demands aid in one way, another in another that each may be preserved on good terms.
[17. ]He who lives in the earth has no place from which to fall.