# An Essay Concerning Parliaments/Chapter 2

CHAP. II.
I Chuſe to begin with this Period of Time in King 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 Juſtices, 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 it ſelf: But ſeveral things were added to it by a Learned and Wiſe Lawyer Andrew Horne, who ​lived in the Reign of Ed 1. and Ed 2. Antiquity enough for a Book, we deſire no more; for we are ſure that no Common-wealths Man had the Penning of it.
The words of the Myrror are theſe, p. 10. “Pur le eſtate del Royalme fiſt l’ Roy Alfred aſſembler les Comitees, & ordeigne pur Uſage Perpetuelle, que a deur foits per l’ An on pluis-ſovent, pur meſtier, en temps de peace ſe aſſembleront a Londres pur Parliamenter ſur le guidement del people d’ Dieu, coment gents ſe garderent de peche, viverent en quiet, & recieverent droit per certaine uſages & ſaincts judgements. Per cel eſtate ſe fierent pluſiours ordinances per pluſors Royes jeſque al ore Roy; Les quells Ordeinances ſont diſuſes per meins ſages, & pur default que elles ne ſont my miſe en eſcript & publies en Certeine.” 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 oftner 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 Oftner 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 require an Extraordinary Parliament. I ſay, and will make 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 never 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.
But 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 Repugnancies 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. H. 4. m. 20. which K. Richard the 2d. ſolemnly acknowledged of his own Male-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. 182. 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. “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 la ſe font ore per le Roy & ſes Clerks; & per aliens & autres que ​noſent contravener le Roy; eins deſirent de luy plaire; & de luy Counſeller a ſon profit, tout ne ſoit my le Counſel Covenable al Commons del People, ſans enſuer les Rules de droit, & dount pluſores Ordinances ſe foundent ore pluis ſur Volunt, que ſur Droit.” The ſecond Abuſion of the Law is, that whereas Parliaments ought to Convene for the Salvation of the Souls of Treſpaſſors, 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 Counſel him for his own Profit, though it be not Counſel 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, than upon Right.
From this Paſſage I ſhall only obſerve, that the Place of a Parliament’s meeting is Fixed, and ſtill at London, And that the Two Times a Year was ſtanding ​ſtanding Law down to King Edward the Firſt, 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 Abridgment of the Records in the Tower. And there in the very firſt Page, 5. Ed. 2. 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 the Twice a Year is dwindled into Once or Twice.
The next is p. 93. of the fame Book, 36. Ed. 3. “The Print touching the Yearly holding of a Parliament,” cap. 10. agreeth with the Record. Now the Print is, “Item, for Maintenance of the ſaid Articles 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. Ed. 3. 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 the 36. Ed. 3. cap. 10. 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 enquire further afterwards.
In the 50. Ed. 3. 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 Ed. 3d’s Time, 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 Caſes as the Judges doubt of.”
​The King’s Anſwer is. “It ſhall be as it hath been uſed.”
In the 2. R. 2. p. 173. By the King’s Commandment one Cauſe of opening the Parliament is Declared ta 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 the 16 Caroli 1. 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. This 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, a great number of our preſent Lords and Commoners are Older than the Conſtitution, and were Born before it. 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 he holden at leaſt once a Year, ſhall hereafter be duly Kept and Obſerved. Scobel’s Coll. 16. Car. 1. Cap. 1.
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 the 12th does acknowledge were Inſupportable; which were wholly owing to this long Intermiſſion of Parliaments: but it wiſely provides, that in caſe the two firſt Years Parliaments ſhould fail, then came a Peremptory Parliament, which the King and Keeper might call if they pleaſed; but if they did not, the Counties and Burroughs of England were forced to ſend. It is an Act that executes it ſelf, like our Act for Burying in Woollen; and he that will ſee the Wiſdom of it, may read it where I have quoted it.
​After this comes the Act 16 Car. 2. cap. 1. and repeals this Triennial Ad, becauſe ſay they, “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 it 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 fee what Alteration is made by this New Act, 16 Car. 2. which follows in theſe words, Sect. 3. “And becauſe by the Ancient Laws and Statutes of this Realm, made in the Reign of K. Edward the 3d, 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 Ancient 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 wiſhed the Triennial Bill of Forty had never been made; and it muſt be remembred 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 Reſtauration, 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 occaſipn there ſhall be more and oftner Parliaments, than once in Three Years. Now I ask for whoſe ſake was that Clauſe Enabled? Not for the King’s, for he was always 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 Oftner 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 oftner 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 Oftner than once in Three Years.
So much for that Point; the next is this. The The Upſhot of this Act of Parliament, and the Concluſion of the whole Act is in theſe words. “To the end, there may be a frequent Calling, Aſſembling, and Holding of Parliaments once in Three Years at the 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 Charles the 2d. 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 t’ other Day, and conſidered what is the Law at preſent. From King Alfred’s Time down to Edward the Firſt, it ſeems to have been the ſtanding Law to have Parliaments Twice a Year. I know that the Invaſions of ſeveral Nations both Danes and Normans, and the Revolutions and ​Diſturbances of State which happened, muſt needs cauſe frequent Interruptions in the practice of it. But my reaſon to be of that Opinion is this, becauſe Home 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 Horn’s, (if any thing in this World can be bigger than that of an Able and Honeſt Man); But it is a King in his Letter to the Pope. It is in the Clauſe Rolls Anno. 3. Ed. 1. m. 9. Cedula. and is to be ſeen in Prynne’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 ſollicites 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 Michaelmaſs-Parliament next following. At preſent I only mind the wording and way of expreſſing theſe two Parliaments. Concerning the Firſt he fays, “In Parliamento quod circa Octabas Reſurrectionis Dommicæ celebrari in Angliâ 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 Octabis, 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 Michaelmaſs-Parliament which he intended.
Now let us ſee how that is exprſs’d; “Pro firmo ſcituri, pie Pater et Domine, quod in alio Parliamento noſtro quod ad feſtum Sancti Michaelis prox. futur. intendimus, dante Domino, celebrare, havito et communicato conſilio cum Prælatis et Proceribus memoratis, vobis ſuper præmiſſis, ipſorum conſilio dabimus reſponſionem.” Know for certain, Pious Father and Lord, That in another Parliament of Ours which we intend to hold at Michaelmaſs 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 Premiſſes.
​But I will ſay no more upon this Head, being intent upon another.