An Essay Concerning Parliaments/Chapter 1
AN ESSAY
Concerning Parliaments at a Certainty.
CHAP. I.
If a Man would have an entire View of the Engliſh Conſtitution, he muſt have recourſe to thoſe Able and Approved Authors who have written Purpoſely on that Subject. For it is a Rule, Parva eſt Authoritas aliud Agentis; and what is ſaid by the by, is of leſs Weight, than what is profeſſedly handled; provided it have been Maturely conſidered, by a Competent Judge of that Matter of which he treats. And in this kind we do not find a Man better Qualified than the Learned Lord Chancellor Forteſcue, who was an Aged Lawyer, and had been Lord Chief Juſtice of England when he wrote his Book de laudibus Legum Anglicæ, which was on purpoſe in a Dialogue with the Prince of Wales, to inform him of the Nature. of the Engliſh Conſtitution, and to let him know by what Sort of Laws the Realm, in which he was to Succeed his Father, was to be Governed. And therefore he adjures him over and over again to Addict himſelf to the Underſtanding of the Laws of his Father’s Realm, wherein he was to Succeed, Fol. 16. a. and having ſhewed the Prince the Different nature of Realms, where a King could Tyrannize, and where he could not, being reſtrained by Politick Laws, Fol. 26. b. Rejoyce therefore (ſays he) moſt Excellent Prince and be glad, That the Law of the Realm in which you are to ſucceed is Such, for it ſhall exhibit and miniſter to You and your People no ſmall Security and Comfort.
But out of that excellent Book which believe no Way Warped, (for then it muſt lean towards the Court, partly becauſe of the Flattery and Officiouſneſs which is too often found in Dialogues with Princes, and partly becauſe the Author was retained on the Crown ſide by the Greateſt Office in England;) I will confine my Self to thoſe Paſſages only which relate to the Frequency of Parliaments. And the firſt I meet with is in his 18th Chap. concerning the Statutes of England in theſe words. “Et ſi Statuta hæc, tantâ ſolemnitate & prudentiâ edita, efficaciæ tantæ, quantæ conditorum cupiebat intentio, non eſſe contingant: Concitò reformari ipſa poſſunt, at non ſine Communitatis & Procerum Regni illius aſſenſu, quali ipſa primitùs emanarunt.” And it theſe Statutes fall ſhort of their intended Efficacy, though deviſed with ſuch great Solemnity and Wiſdom of Parliament; they may very Quickly be Reformed, bur not without the Aſſent of the Commons and Peers of the Realm, which was their Source from the beginning.
Now I only deſire that the word Concitò may be taken notice of, which is the quickeſt Word that can be imagined, and ſhews that our Parliaments were always at Hand; and the whole Paſſage ſhews for what Wiſe and Juſt Reaſons they were ſo.
The next Paſſage is Chap. 53. Fol. 129. a. “Neque leges Angliæ frivolas & infructuoſas permittunt inducias. Et ſiquæ in Regno illo dilationes in Placitis minùs accommodæ fuerint uſicatæ, in Omni Parliamento amputari illæ poſſunt: etiam & Omnes Leges Aliæ in Regno illo uſitatæ, cum in aliquo Claudicaverint, in Omni Parliamento poterunt Reformari. Quo recte concludi poteſt, quod omnes Leges Regni illius Optimæ ſunt in actu vel potentiâ, quo faciliter in actum duci poterunt & in Eſſentiam realem. Ad quod faciendum, quoties æquitas id popoſcerit, ſinguli Reges ibidem Sacramento aſtringuntur, ſolemniter præſtito tempore receptionis Diadematis ſui.” Neither do the Laws of England allow in Law-ſuits frivolous and fruitleſs Delays. And if in this Kingdom Delays in Pleas which are not to the purpoſe ſhould be uſed, they may in every Parliament be cut off. Yea, and all other Laws uſed in the Realm, when they Halt or are Defective in any point, they may in every Parliament be ſet to Rights. Whereupon it may be rightly Concluded, that the Laws of England are the Beſt in the World, either Actually or Potentially, ſince they can eaſily be brought into Act or Being. To the performance whereof, as often as Equity ſo requireth, Every King is bound by an Oath ſolemnly taken at the time of receiving his Crown.
Out of this laſt Paſſage I will not trouble you with any more Obſervations than theſe;
Firſt, That Parliaments are the Remedy againſt Delays in Law Proceedings: But how if Parliaments themſelves ſhould be Delayed?
Secondly, That if any or all our Laws ſhould Halt, and our Parliaments at the ſame time ſhould be Crippled too, and not able to come together; they could not help one another.
In the next and laſt Chapter of that Book, Fol. 129. b. the Prince immediately replies. “Princeps. Leges illas, nedum bonas ſed & optimas eſſe Cancellarie, ex proſecutione tuâ in hoc Dialogo certiſſimè deprehendi. Et fiquæ ex illis meliorari depoſcant, id Citiſſimè fieri poſſe. Parliamenttorum ibidem Formulæ nos erudiunt. Quo realiter, potentialiterve, Regnum illud ſemper præſtantiſſimis Legibus gubernatur. Nec tuas in hâc concionatione doctrinas futuris Angliæ Regibus inutiles fore Conjicio; dum non delectent regere legibus quæ non delectant.” Says the Prince, My Lord Chancellor by the Tenour of your Diſcourſe in this Dialogue I am throughly ſatisfied, that the Laws of England are not only Good, but the Beſt in the World. And in caſe any of the Laws want to be mended or improved, the Rules of the Engliſh Parliaments do inſtruct us, That that may be done forthwith. Whereupon the Realm of England is always Governed by the very beſt Laws, either in Reality or in Poſſibility. And beſides I conjecture that the Doctrines that have been held forth in this Dialogue will be very uſeful to the Kings of England that ſhall come hereafter; ſince no Body likes to Govern by Laws which they do not like.
After all theſe Lauds and Praiſes of the Engliſh Laws, which the Chancellor has ſtuck all over with Stars quite through his Book, and has made their Perfection to Center in this, that they either Are or Soon may be the Beſt in the World, becauſe in cafe they labour under any defect, that Fault may be Immediately amended by a wiſe Senate: What if that wiſe Senate be no where to be found, or is at no Certainty? It is then Impoſſible to render the Chancellor’s Latin into Engliſh. For the ſpeedy Perfection of the Engliſh Laws which the Prince and he are agreed is Concitò & Citiſſimè, may be rendred, either at the Four Years end, or the Twelve Years end, or at the World’s end. For ſo I am ſatisfied it was meant, after a Ten Year’s Interval of Parliaments, if the Herb-woman at Edinburgh had not thrown her Cricket-ſtool at the Arch-Biſhop’s Head. And ſo Dr. Heylin I remember does not ſo much acknowledge that Secret as Juſtify it. It is in his little Book of Obſervations upon Hammond L’Eſtrange’s Hiſtory of the Reign of K. Charles I. Says Hammond, upon the Diſſolution of that wiſe Parliament in 28. (to whom we owe the Petition of Right) All wiſe Men concluded that there was an end of all Parliaments. Yes, ſays Heylin, ſo they might well, the King having been troubled with their Impertinencies, and having an Example in France before his Eyes, where Parliaments have been ſo much diſcontinued, that it is become a Proverb amongſt them, Voyons le Jeu de Troi Eſtats, as the ſtrangeſt Sight which cm be ſeen in an Age. I have not the Book now by me, but I will be anſwerable for the Subſtance of this Quotation, having retained this Paſſage in my Head above theſe Five and Twenty Years.
I can only touch ſeveral other Arguments which might be enlarged upon. The High Court of Parliament is the Dernier Reſort in this Kingdom; and if that fail, there may be a failure of the Engliſh Juſtice.
Bracton ſays of an Ambiguous or Diffilut Cauſe, Reſpectuetur ad magnam Curiam; but unleſs Parliaments be Frequent, ſuch a cauſe is Adjourned to a long Day.
Every Body that underſtands the Engliſh Conſtitution knows that it is exactly the ſame as it was laid down in Parliament 8 Ed. 4. by the Lord Chancellour that then was. You have it in Sir Robert Cotton’s Abridgment of the Rolls in the Tower, p. 682. in theſe words. “He then declared the three Eſtates to comprehend the Governance of this Land, the Preheminence whereof was to the King as chief, the ſecond to the Lords and Biſhops, and the third to the Commons.” Now if we are at a loſs or uncertainty about our Parliaments, we are at a loſs or uncertainty about two Thirds of our Government.
But I will ſay no more upon this Head, intending to ſhew in the following Chapters, how the matter of Parliaments ſtood in former Ages.