A TREATISE, Shewing That the Soveraignes Person is required in the great Councells or Assemblies of the State, as well at the Consultations as at the Conclusions.
Written by Sir ROBERT COTTON, Knight and Baronet.
Printed in the Yeare 1641.
The right VVorshipfull Sir ROBERT COTTON, Knight and Baronnet his Speech in Parlament.
That the Soveraignes person is required in the great Councells or Assemblies of the State, as well at the Consultations, as at the Conclusions.
SInce of these Assemblies few Dieries or exact Journall Books are remaining, and those but of late, and negligently entred the Acts and Ordinances only reported to posteritie are the Rolls.
This Question (though cleare) in generall [Page 2] reason and conveniencie must be wrought out of, for the particular out of such incident proofes, as the Monument of Storie and Records by pieces learne us. And to deduce it the clearer downe, some essentiall circumstances of Name, Time, Place, occasion, and Persons must be in generall shortly touched before the force of particular proofes be layd downe.
This noble body of the State (now called the houses in Parliament) is knowne in severall ages by severall names.
Concilia, the Councells in the Eldest times, afterwards Ex Conciliis Reg. Saxon. Cantuar. Magnum, commune et generale Concilium, Curia magna Capitalis et curia Regis: Sometimes Generale placitum, and sometimes Glanvill. Synodus, and Synodalia decreta, although as well Liber Ely. the causes of the Common wealth as Church Leges Etheldredi regis. were there decided.
The name of Parlament (except in the Abbots Chapters) was never heard of unto the reigne Ingulphus Croylandensis. of King Iohn, and then but rarely.
At the Kings Court were these Conventions Registr. Monast. usually, and the Presence, Privie Chamber, and other room convenient for the Kings in former times, (as now) then used: For what is the present house of Lords, but so at this day? and was before the firing of the Palace at Westminster about Palat. Regale Westmonast. 17. H. 8. who then and there resided.
Improbable it is to beleeve the King excluded his owne privie, and unmannerly it is for guests to barre him their companie, who gave to them their entertainment.
[Page 3] It was now at first (as now) Edicto Principis, Regist. Eliense. at the Kings pleasure.
Towards the end of the Saxon, and in the Annales Monaster. first time of the Norman Kings it stood in Custome-Grace, to Easter, Whitsuntide, and Christmas fixed: the Bishops, Earles, and Lords (ex more) then assembled: So are the frequent Liber de Bello. words in all the Annalls: The King of course revested with his Imperiall Crowne by the Bishops, and the Peeres assembling, in Recognition Registr. Wigorniense. of their preobliged faith and present dutie and service; untill the unsafe time of King Iohn (by over-potent and popular Lords) gave discontinuance to this constant grace of Kings, and then it returned to the uncertaine pleasure of the Soveraigne Summons.
The causes then (as now) of such assemblies, Ioannes Ewegden. were provision for the support of the State in Men and Money, & well ordering of the Church Matth. Parls and Common-wealth, and determining of such Hoveden. Bracton. causes, which ordinarie Courts nesciebant iudicare, (as Glanvill the grand Iudge under H. 2. Glanvill Fleta saith) Where the presence of the King was still required, it being otherwise absurd to make the King assentor to the judgements of Parliament, and afford him no part of the Consultation.
The necessitie hereof is well and fully deduced unto us in a reverend Monument not farre from that grave Mans time, in these words, Rex tenetur omnimodo personalitèr interesse Parliamento, Modus tenendi Parliament. nisi per corporalem aegritudinem detineatur, [Page 4] and then to acquaint the Parliament of such occasion by severall Members of either House. Causa est quòd solebat clamor et rumor esse pro absentiâ Regis, quia res damnosa & periculosa est est toti Communitati, Parliamento, & Regno, cum Rex a Parliamento absens fuerit: Nec se absentare debet, nec potest, nisi duntaxat in causâ supradictâ.
By this appears the desire of the state to have the Kings presence in these great Councells by expresse necessitie.
I will now endeavour to lead the practise of it from the darke and eldest times to these no lesse neglected of ours.
From the yeare 720. to neare 920. during all the Heptarchy, in all the Councell remaining Ex registr. Concili r. Cantuar. Ex Concilio Withredi R composed ex Episcopis, Abbatibus, Ducibus, Satrapis, et omni dignitate optimatibus, ecclesiasticis scilicet & secularibus personis pro utilitate Ecclesiae & stabilitate Regni pertractatum. Seven of them are Rege presidente, and but one by deputy; and incongruous it were, and almost Nonsence, to barre his presence that is President of such an Assembly.
The Saxon Monarchy under Alfred, Etheldred, Edgar in their Synods, or placita generalia, went Ex Synodis & legibus Alfredi, Etheldredi, Edgari. in the same practise, and since. Thus Ethelwold appealed Earle Leofrick from the Countie ad generale placitum, before King Etheldred and Edgyra the Queen, against Earle Goda to Eldred the King at London, congregatis Principibus & sapientibus Angliae. Ex Regist Ab [...]ington.
[Page 5] In the yeare 1052. under Edward the Confessor, Gesta St. Ed [...]. Ga [...]i [...]è. statutum est placitum, magnum extra Londinum, quod Normanni (ex Francorum consuet udine) Parliamentum appellant, where the King Allured. Rivalens. vita Ed [...]. Confessoris. and all his Barons appealed: Godwin for his brother Alureds death, the Earle denyed it, and the King replyed thus, My Lords, you that are my Liege men, Earles and Barons of the Land here assembled together, have heard my appeale, and his answer: unto you be it left to doe right betwixt us.
At the great Councell at Westminster. 1072. in Registr. Cantuar. Easter week the cause of the two Arch-Bishops Lanfrank, and Thomas, Ventilata suit in praesentia Regis Gulielmi, and after at Windsor sinem accepit in praesentia Regis.
At the same Feast, Anno 1081. (the usuall 10 [...]1. time of such assemblies) the King, the Arch-Bishops, Bishops, Abbots, Earles, and chiefe Nobilitie of the Kingdome were present: for so are the words of the Record.
The cause betweene Arsast Bishop of Norway, Registrum Sancti Edmundi. and Baldwin Abbot of Burie, was also argued, Et ventilata in publico Rex jubet teneri Iudicium, causis auditis amborum.
The diligence of his sonne (the learned H. 1.) in executing of this part of his kingly function, is commended to posteritie by Walter Maps (a learned man, trained up, and dear in favour with Walterus Maps de R [...] gis [...]. H. 2.) in these words: Omnia Regali more, decentique moderamine faciebat, neminem volebat egere justitia, vel pace: constituerat autem ad tranaquillitatem [Page 6] omnium, ut diebus vacationis, vel in Domo magna sub dio copiam sui faceret usque adhoram sextam, (which was till 10, as wee now account) secum habens Comites, Barones, Proceres, et vavasores, to heare and determine causes, Henr. Hunting Malmsbury. whereby he attained the sir-name of Leo Iustitiae in all Stories, and so out went) in quiet quiddance of the state) his best Progenitors.
The next of his name that succeeded, is remembred Vita Tho. Cantuariensis. Fitz-Stephan. every where for the debates and disputes he heard in person with Thomas the Arch-bishop, and others of his part at the greatest Councels, both at London, Clarendon, and Northampton for the redresse of the many complaints Gesta H. 2. Benedic. Abbate Authore. of the Commons against out-rages, and extortions of Clergie men.
In the yeare 1057. die Pentecost. Apud 8. Edmundum: The same King (diademate insignitus) Reg. Monast. de bello. with the Bishops, Abbots, Earles, and Barons of the Kingdome sate dayly himselfe and heard all the debates concerning the liberties & Charters of Batell Abbie. The interlocutorie speeches as well of the King as the Lords and parties are at full related in a Register of the Church:
The suit between the Church of Lincolne and S. Albans in praesentia Regis H. Archiepiscoporum, Episcoporum omnium Angliae & comitatum & Reg. Lincolniense. Baronum Regni, was at Westmin. debated and ended: and had the love of Memorie and Truth bin a Protector to the publick Records of the state, [Page 7] as the awe of the Clergies censure was a guard to theirs in tempestuous times, we had not been now left to the onely friendship of Monkes diligence for example in this kinde.
At Lincolne the Arch-Bishop, some Bishops, Lib. Burton-Monaster. but all the Earles and Barons of the Kingdome, unà cum Rege Joanne congregati ad colloquium de concordia Regis Scotiae, (saith a Register of that Church.)
This use under King H. 3. needeth no further proofe than the Writ of Summons, then (as some report) framed, expressing both the Kings mind and practice.
It is Nobiscum & Praelatis, & Magnatibus nostris Rot. claus. a. 59. H. 3. quos vocari fecimus super premissis tractare, & Concilium impendere: which word Nobiscum implyeth plainly the Kings presence.
What the succeeding practice was from the 15. year of E. 4. the proper Records of this Inquirie, (the Iournall books being lost) I am inforced to draw from out the Rolls of Acts wherein sometimes by chance they are remembred.
Edward the 2. was present in Parliament the Rot. Parl. 15. E. 2. 15. yeare of his reigne, at the complaint against the Spencers, and at a second Parlament that year for the repeale of their banishment.
In the 4. of E. 3. the King was present at the Rot. Parl. 4. E. 3. Rot. parl. 5. E. 3. Accusation of Roger Mortimer, but not the Triall, and the next yeare in the treaty of the French affaires.
[Page 8] In the 6. yeare, Intererat rex in causa Iohannis de Gray & Guilielmi de la Zouch: and the same yeare 2. die Parliamenti, the King was present at the debate about his voyage into Scotland.
In the 15. yeare the King in the Painted Chamber sitting with the Lords in consultation, the Arch-Bishop after pardon, prayes that for better cleering himselfe, hee may be tryed in full Parlament, Rott. Parl. 15. E. 3. which was granted.
In the 17. in Camera alba (now called the Rot. Parl. 17. E. 3. Court of Requests) Rex cum magnatibus conveniunt communes super negotiis Regni.
In the 10. of R. 2. the King departed from the Parliament in some discontent, when after some time, Lords are sent to pray his presence, and to informe his Majestie, that if hee forbeare his presence amongst them 40. dayes, that then Chronicon Henvici Knighton. ex antiquo Statuto, they may returne absque domigerio Regis, to their severall homes.
Henrie the 4. began his first Parlament the first of November, and was the 27. day of the same moneth at a debate about the Duke of Rot. Parl. 3. H. 4 Britanie: the 30. day the cause of the Arch-Bishop was before him proposed onely.
The 3. of Nov. he was at the debate whether the Commons had right of Iudicature, yea, or no.
On the 10. hee was with the Lords in their Consultation about the expedition against the Scots, the creation of the Duke of Lancaster, and the prohibition of a new Sect from entring this Kingdome. Some Ordinances were at this [Page 9] time consulted of concerning the staple, and the sentence against Haxey after dispute revoked.
This King began his second Parliament the 20 Rot. Parl. 2. H. 4. of Ianuarie, and on the 9. of Februarie was present to make agreement betwixt the Bishop of Norwich, and Thomas of Erpingham.
On the 20. day of the same moneth, hee was present at Councell for repressing of the Welch Rebells, for revocations of stipends, and concerning the Priors Aliens.
On the 26. they advise before the King of the Sestertian Order.
On the 2. of March of the Statute of Provisions, the keeper of the privie Seale, and relieving of the two Vniversities.
On the 9. of March they mediate before the Rot. Parl. 4. H. 4. King a reconciliation betwixt the Earle of Rutland, and the Lord Fitzwaters.
He also began a parliament in his fifth yeare, upon the 15. of Ianuarie, and the 10. they advise before the King, of guarding of the Seas, and the Welch Rebellion.
On the 8. of Februarie, the Earle of Northumberland is charged before the King, and in his presence, and by his permission, divers of whom hee knew no harme were removed from the Court.
The next day at the petition of the Commons, hee tooke upon him to reconcile the Earles of Northumberland & Westmerland, and on the 22. of Februarie of Northumberland and Dunbar.
[Page 10] In a parlament of the 27. of H. 6. a challenge of Seat in parliament betwixt the Earles of Arundell and Devonshire was examined and appoynted Rott. Parl. 27. H. 6. by the K. with the advice of the Lords.
In that great capitall cause of the Duke of Suffolke, 28. H. 6. I find not the King once present at the debates, but the Duke appealing from his tryall by Peerage to the K. is brought from out the house of Lords to a private chamber, where the King (after the Chancellor in grosse had declared his offence, and refusall) himselfe (but not in place of judgement) adjudged his banishment.
By the Rolls of K. Ed. 4. it appeareth that hee Rot. Parl. E. 4. was many dayes (besides the first and last) in parliament, and there are entred some Speeches by him uttered, but that of all the rest is most of marke, the Reporter then present tells it thus, of the Duke of Florence, and the King, Trist is disceptatio inter duos tantae humanitatis Germannos: Regist. Croylandense. Nemo arguit contra Ducem nisi Rex, nemo respondit Regi nisi Dux. Some other testimonies were brought in; with which the Lords were satisfied, and so formârunt in eum sententiam damnationis, by the mouth of the Duke of Buckingham (then Steward of England:) All which was much distasted by the house of Commons.
The reigne of H. 7. affords upon the Rolls Ex cartis Parlamen. 12. 11. 7. no one example (the journall Books being lost) except so much as preserves the passages of eight dayes, in the 12. of his reigne, in which the King [Page 11] was some dayes present at debates, and with his owne hand the 31. day of the parlament delivered in a Bill of Trade there read: but had the Memoriall remained, it is no doubt but hee would have beene found as frequent in his great Ex regist. Camerae Stellatae. Councell of Parlament, as hee was in the Starre-Chamber; where by the Register of that Court appeareth, aswell in debate at private causes, that touch neither life nor member, as those of publick care, he everie yeare of all his reigne was often present.
Of H. 8. memorie hath not been curious; but if he were not often present, peradventure that may be the cause of the disorder, which the learned Recorder Fleetwood in his preface to the Ex Annalib. Fleetwood, Recorderi London. Annalls of E. the 5. R. 3 H. 7. & H. 8. hath observed in the Statutes made in that Kings dayes: for which cause hee hath severed their Index from the former; and much lay in the will of Wolsey, who was ever unwilling to let that King see with his owne eyes.
Edward the sixt in respect of his yong yeares may be well excused; but that such was his purpose appeares by a memoriall of his owne hand, who proposing the affaires of Councell to severall persons, reserved those of greatest weight to his owne presence, in these words: These to attend the matters of State, that I will sit with them once a weeke to heare the debating of things of most importance.
Vnfitnesse by Sexe in his two succeeding [Page 12] Sisters to be so frequently present as their former Ancestors led in the ill occasion of such opinion and practise.
YOur most humble servant, in discharge of Obedience and Zeale hath hastned up this Abstract, which in all humilitie he offers up unto your gracious pardon. Presumption to enter the closet of your Counsell is farre from his modestie and dutie. What hath been your powerfull command, he hath made his worke; what is fit to be done with it is onely your divine judgement: He dares not say, that Presidents are Warrants: To direct the successe is as worthy observation as the knowledge thereof, sometimes have made ill examples by extension of Regall power through ill councells, with ill successe. Some as bad, or worse, when the people have had too much of that, and the King too little, the danger no lesse. To cut out of either of these paternes to follow were but to bee in love with the mischiefe for the example. The cleerer I present this to your Highnesse, the nearer I approach the uprightnesse of your heart, (the blessed fortune of your happy subjects.
Pardon (most sacred Majesty) that I offer up to your admired wisedome my weake, but dutifull observations out of all the former gathering.
In Consultations of State, and decisions of [Page 13] private plaints it is cleare from all times, the King was not ouely present to advice and heare, but to determine also.
In the cases Criminall, and not of blood to barre the King apart were to seclude him the Star-Chamber (as far from reason as example:) The doubt is then aloud in crimes meer capitall.
I dare not too much commend the times that left these Patternes, either for the causes or effects, but wish the one and the other never more.
To proceed by publick Act of Commons, Peeres, and King, was most usuall: Appeales are gone by the Law of Henrie the fourth. Of this now in debate, the way I feare is yet obscure. As great advise of State is as needfull for the manner, as for the Iustice.
The example in the cause of the Duke of Suffolke, 28. H. 6. where the King gave judgement, was protested against by the Lords.
That of the Duke of Clarence, 6. E. 4. where the Lords, and the High Steward (the Duke of Buckingham) gave judgement, was protested against by the House of Commons. In both of these the King was sometimes present; but which of these may suit these times I dare not ghesse.
That of 1. R. 2. of Gomenys and Weston accused by the Commons plaint for Treason was tryed by the Lords in absence of the King, but sentenced by the Lord Scroop Steward for the King: The Accused were of the ranke of the Accusers, Commons, and not Lords.
[Page 14] How this will make a president to judge in causes Capitall a peere of Parliament, I cannot tell, but I should conceive a way answerable as well to Parlament as other Courts.
If the King and the Lords were Traytors, and the common Assentors to the Iudgement, to heare together the charge and evidence, the Lords (as doth the Iurie in other Courts) to withdraw, to find the verdict; and then the Steward, for the K. to pronounce the sentence; it passeth so by way of Act: a course that carryeth with it no exception, and likely to avoyd all curious Questions of your Highnesse presence there.
If your humble Servant hath in this expression of his desire to doe you service, presumed too farre, his comfort is, that where Zeale of Dutie hath made a fault, Benignitie of Goodnesse will grant the pardon.