A History and Defence of Magna Charta/Chapter 2
CHAP. II.
Shewing how Parliaments ſtood in King Alfred’s
time, and afterwards.
I chuse to begin with this period of time of K. Alfred’s reign, becauſe we have clear law and hiſtory to ſhew how parliaments ſtood in his time, and what law was ordained concerning them for ever.
It is in the Mirror of Juſtice, which, as my lord Coke ſays in his preface to his tenth reports, was written in the Saxon times, and it appears by the book itſelf: but ſeveral things were added to it by a learned and wiſe lawyer Andrew Horne, who lived in the reign of Edward I. and Edward II. antiquity enough for a book, we deſire no more; for we are ſure that no commonwealths-man had the penning of it[1].
“For the good eſtate of the realm, King Alfred cauſed the counties to aſſemble, and ordained it for a perpetual uſage, that at two times yearly, or oftener if need were, in time of peace, they ſhould aſſemble at London, to ſit in parliament, for the guidance of God’s people, how the nation ſhould keep themſelves from ſin, live in quiet, and receive right by certain uſages and holy judgments. By this eſtate were made many ordinances by ſeveral Kings, down to the King that is now, (which, ſays the margin, was Edward the firſt) which ordinances are diſuſed by ſome that are not ſo wiſe, and for want that they are not put into writing and publiſhed in certain.”
In this paſſage the two times a year ſeem to be ſtationary; the calling a parliament oftener than two times a year, if need were, is plainly intended for contingencies of ſtate, and when the ardua regni, or extraordinary affairs of the nation required an extraordinary parliament. I ſay, and will make it out to all the world, by laws and declarations of parliament, that the King has a power of calling parliaments within the law; but I never did, nor ever will ſay to the end of my life, that the King can hinder parliaments appointed by law. Theſe frequent parliaments were to meet at London in time of peace. We ſee then what has interrupted our parliaments both as to time and place. For London was after in the hands of the Dane, and foreigners’ wars and tribulations came on.
Bur the beſt way is to let an author explain himſelf; which the Mirror does, in telling us likewiſe the abuſions of the law, or the contrarieties and repugnances to right; or, as he calls it, the fraud and force which is put upon law. This way of writing law is the beſt that can be invented; for it is the way of preaching by poſitive and negative, which is a two edged ſword, and cuts both ways. And the truth of it is, the negative part of the law, which lies in a little compaſs, oftentimes teaches us a world of the poſitive. For inſtance, the 33 articles in the roll, 1 Henry IV. m. 20, which K. Richard II. ſolemnly acknowledged of his own mal-adminiſtration, do give us more light into the conſtitution, than a book of ſix times the bigneſs could do.
But to come to the abuſions of law which are in the Mirror, p. 282. he ſays, That the firſt and ſovereign abuſion, is for the King to be beyond the law, whereas he ought to be ſubject to it, as is contained in his oath: though the ſecond is my buſineſs, which is in theſe words[2].
“The ſecond abuſion of the law is, that whereas parliaments ought to convene for the ſalvation of the ſouls of treſpaſſers, and this at London, and two times in the year, now a-days they meet but ſeldom, and at the will of the King for aids and gatherings of treaſure: and whereas ordinances ought to be made by the common aſſent of the King and his counties, now they are made by the King and his clerks, and by aliens and others that dare not contradict the King, but deſire to pleaſe him, and to council him for his own profit, though it be not council which is convenient for the commons of the people; without applying to the counties, and without following the rules of right: whereupon there are ſeveral of the preſent ordinances that are rather founded upon will, that upon right.”
From this paſſage I ſhall only obſerve, that the place of the parliament’s meeting is fixed, and ſtill at London; and that the two times a year was a ſtanding law down to K. Edward I. though abuſions and court practices had broken in upon the law.
Now let us ſee how the law ſtood afterwards; wherein I can only conſult the books I have by me, for I have not health enough to go and tranſcribe the records in the Tower, but take them upon content as they lie in Sir Robert Cotton’s abridgement of the records in the Tower. And, there in the very firſt page, 5 Edward II. it is ordained, Que parliament ſerra tenus un ou deux foits per an. That a parliament ſhall be held one time or two times a year. Here you ſee twice a year is dwindled into once or twice.
The next is p. 93. of the ſame book, 36 Edward III. “The print touching the yearly holding of a parliament, cap. X. agreeth with the record.” Now the print is, “Item, For maintenance of the ſaid attic and ſtatutes, and redreſs of divers miſchiefs which daily happen, a parliament ſhall be holden every year, as another time was ordained by ſtatute.”
Now that ſtatute, as I find by the ſtatute-book, for I cannot find it in Sir Robert Cotton, is thus 4 Edward III. cap. 14. “Item, It is accorded that a parliament ſhall be holden every year once, and more often if need be.”
By the reaſon given in 36 Edward III. cap. X. juſt now recited, for a yearly parliament, one would think it ſhould be a daily parliament; becauſe it is for the maintenance of former ſtatutes, and redreſs of divers miſchiefs which daily happen: but I believe that a parliament which ſits but forty days in the year are able to do that work; concerning which we will inquire further afterwards.
In 50 Edward III. p. 138. The parliament’s demand or petition is this, “That a parliament may be holden every year; the knights of the parliament may be choſen by the whole counties; and that the ſheriff may likewiſe be without brokage in court.”
The King’s anſwer is this, “To the parliament, there are ſtatutes made therefore; to the ſheriffs there is anſwer made; to the knights it is agreed, that they ſhall be choſen by common conſent of every county.”
After theſe three laws in the time of Edward III. we come to the firſt of King Richard the ſecond, p. 163. where the petition or demand for a yearly parliament is this: “That a parliament may be yearly holden in convenient place, to redreſs delays in ſuits, and to end ſuch cafes as the judges doubt of.”
The King’s anſwer is: “It ſhall be as it hath been uſed.”
In 2 Richard II. p. 173. by the King’s commandment one cauſe of opening the parliament is declared to be this: “Secondly, for that it was enacted that a parliament ſhould yearly be holden.”
Nay, if the court inſiſt upon a yearly parliament, the country may and ought.
Thus ſtood the law of England till 16 Caroli I. when that King having diſcontinued parliaments for twelve years and created a diſtruſt of him in the breaſts of his people, which was juſt; (for if a prince ſpoil the government for twelve years together, who ſhall truſt him in the thirteenth?) the nation found a neceſſity of having a cautionary parliament every third year, to ſecure their annual parliaments for the two years immediately foregoing. That is the true reaſon of the act for a triennial parliament, which was a perfect innovation both name and thing. For I challenge any antiquary, lawyer, or perſon whatſoever that has turned over books, to ſhew me the word triennial joined to the word parliament, from the foundation of this government till the year 1640. A triennial parliament therefore is ſo far from being the conſtitution of this government, that if it were ſo, the conſtitution is not ſo antient as has been ſuppoſed, but firſt drew its breath under Charles I. But as I ſaid before, that act was only a cautionary act, as a town or gate of a city is taken in caution, for performance of articles. This appears by the firſt thing which is enacted in that law, namely, That the laws for a parliament to be holden at leaſt once a year, ſhall hereafter be duly kept and obſerved. Scobel’s collect. 16 Car. I. cap. i.
This act was gently drawn up, and had more of a proſpect than a retroſpect, and does not look back into thoſe oppreſſions which King Charles himſelf in his large declaration of Auguſt 12th does acknowledge were inſupportable; which were wholly owing to their long intermiſſion of parliaments: but it wiſely provides, that in caſe the two firſt years parliaments ſhould fail, then came a preremptory parliament, which the King and keeper might call if they pleaſed, but if they did not the counties and boroughs of England were forced to ſend.
After this comes the act 16 Car. II. cap. i. and repeals this triennial act, becauſe they ſay, “It is in derogation of his majeſty’s juſt rights and prerogative, inherent to the imperial crown of this realm, for the calling and aſſembling of parliaments;” whereupon the triennial act is annulled as if it had never been made.
I wish had never been made; but we will ſtop there firſt. It is annulled as if it had never been made. There is nothing loſt by that; for then our parliaments are where they were, which was due annual.
Well, now let us ſee what alteration is made by this new act, 16 Car. II. which follows in theſe words, ſect. 3. “And becauſe by the antient laws and ſtatutes of this realm, made in the reign of King Edward III[3], parliaments are to be held very often (that is, once or twice a year) therefore they ſhall not be diſcontinued above three years at the moſt.” I do not uſe to admire conſequences which I do not underſtand. But, under favour, I would be taken right. I ſay, that the recital of the antient laws of this realm does not repeal them, diſannul them, anneantir any thing, nothing; when there is not one repealing word concerning them in that ſtatute.
I knew what I ſaid when I withed the triennial bill in 1640 had never been made: and it muſt be remembered that that act is as if it had never been made; for it gave occaſion to ſome men that came in with the deluge of the reſtoration, when it rained cavaliers (though I value all mens rights more than my own, and princes moſt becauſe they are biggeſt) and it prompted them to think of turning a cautionary triennial, into a diſcretionary. But, God be thanked! they wanted words to expreſs themſelves; and if they meant it, they have not done it.
But ſo as they did put the act together, and as it now ſtands, there are ſeveral things in it worth obſerving. 1ſt. That if there be occaſion there ſhall be more and oftener parliaments than once in three years. Now I aſk for whoſe ſake was that clauſe enacted? Not for the King’s, for he was enabled by his prerogative, for the ſake of the ardua regni, to call a parliament every month in the year. Well then, it was for the ſake of his people, that if they judged there was occaſion for more or oftener parliaments, they might aſk for them. For I appeal to common ſenſe, whether it be not ridiculous, and wonderfully beneath the dignity of a parliament, when a prince was bound by his coronation-oath to call a parliament once a year, or oftener if need were (for ſo the law ſtood, and ſo this prince was at that time bound) to interpret a law after ſuch a manner, as to ſay he was enabled to call a parliament oftener than once in three years.
So much for that point; the next is this. The upſhot of this act of parliament, and the concluſion of the whole act is in theſe words: “To the end there maybe a frequent calling, aſſembling, and holding of parliaments once in three years at leaſt.” I do ſay, that if ever we came to low-water mark in our laws about parliaments, and if ever they run dregs, it was in the time of King Charles II. And yet it was enacted, and was the end of that law, that one ſhould be called once in three years at the leaſt. Now I leave it to the lawyers to tell, whether a proclamation can call a parliament, or any thing elſe beſides a writ of ſummons and a writ for elections.
And thus have I run through the law of parliaments till the other day, and conſidered what is the law at preſent. From K. Alfred’s time down to Edward I. it ſeems to have been the ſtanding law to have parliaments twice a year. I know that the invaſious of ſeveral nations, both Danes and Normans, and the revolutions and diſturbances of ſtate which happen, muſt needs cauſe frequent interruptions in the practice of it. But my reaſon to be of that opinion is this, becauſe Horne, who lived in thoſe times, ſays that parliaments at that time ought to meet twice a year, and that at London; and that the intermitting of parliaments was the greateſt abuſion of the law but one: though I think I have ſtill a greater authority than Horne’s (if any thing in this world can be bigger than that of an able and an honeſt man) but it is a King, in his letter to the pope; it is in the clauſe rolls anno 3 Edward I. m. 9 ſcedula, and is to be ſeen in Prynn’s large book, p. 158. I will quote no more of it than is for my purpoſe; it is concerning the yearly tribute of a thouſand marks, which the popes from K. John’s time claimed, and there were ſeveral years due. The Pope’s nuncio ſollicits the matter, but the King excuſes himſelf that he had come to no reſolution in his Eaſter parliament, but by common advice he would give him an anſwer in his Michaelmas parliament next following. At preſent only mind the wording and way of expreſſing theſe two parliaments. Concerning the firſt he ſays, In parliamento quod circa octabas reſurrectionis Dominicæ celebrari in Anglia conſuevit: “In a parliament that uſed to be held in England about the octaves of Eaſter.” That word conſuevit amounts to cuſtom and uſage, and ſeems to expreſs a parliament de more. He ſays that the parliament was in o abis, and by occaſion of his ſickneſs after they had made ſeveral good laws, and redreſſed many grievances, but not all that lay before them) for the reaſon aforeſaid, that parliament was diſſolved, and the King could not treat with them about the pope’s petition of tribute. But he promiſes to do the pope reaſon in his Michaelmas parliament which he intended[4].
“Know for certain, pious father and lord, that in another parliament of our’s, which we intend to hold at Michaelmas next enſuing, with God’s leave; we, and the prelates, and peers aforeſaid, conſulting together, according to their advice will give you an anſwer upon the premiſes.”
But I will ſay no more upon this head, being intent upon another.
- ↑ The words of the Mirror are theſe, p. 10. Pur le eſtate del royalme fiſt le Roy Alfred aſſembler les comitees, & ordeigne pur uſage perpetuelle, que a deux foits per Pan ou pluis ſovent, pur meſtier, en tempts de peace ſe aſſembleront o Londres pur parliamenter ſur le guidement del people de Dieu, comment gents ſe garderent de peche, biverent en quiet, & recieverent droit per certaine uſages & ſaincts judgements. Pur cel eſtate ſe fierent pluſiours ordinances per pluſors Royes jeſque al ore Roy; Les quells ordinances ſont diſuſes per meins ſages, & pur default que elles ne ſont my miſe en eſcript & publies en certaine.
- ↑ Second abuſion eſt, que ou les parlaments ſe duiſſent faire pur le ſalvation des almes de treſpaſſors, & ceo a Londres & deux foits per an, la ne ſe font ils forſque rarement, & a la volunt le Roy pur aides & cuilets de treſore. Et ou les ordinances duiſſent faire al common aſſent del Roy & de ſes counties la le ſe font ore per le Roy & ſes clerkes; & per aliens & autres que noſent contravener le Rey; eins deſirent de luy plaire; & de luy counſeller a ſon profit, tout ne ſoit my le counſel covenable al commons del people, ſans appeller les counties, & ſans enſuer le rules de droit, & dount pluſores ordinances ſe foundent ore pluis ſur velunt, que ſur droit.
- ↑ 4 Edward III. cap. XIV. 36 Edward III. cap. X.
- ↑ Now let us ſee how that is expreſſed; Pro firmo ſcituri, pie pater & domine, quod in alio parliamento noſtro quod ad feſtum ſancti Michaelis prox. futur intendimus, dante Domino, celebrare, habito & communicato conſilio cum prelatis & proceribus memoratis, vobis ſuper praemiſſis, ipſorum conſilio dabimus reſponſionem.