Government and for the safety and interest of the People and when either the Militia which is given him for the execution and support of the Law shall be imploy'd by him to subvert it as in the case of Ship-Money it was or the Treasure shall be mis-apply'd and made the Revenue of Courtiers and Sycophants as in the time of Edward the Second or worthless or wicked People shall be put into the greatest places as in the reign of Richard the Second In this case though the Prince here cannot be questionable for it as the Kings were in Sparta and your Doges I believe would be yet it is a great violation of the trust reposed in him by the Government and a making that Power which is given him by Law unlawful in the Execution And the frequent examples of Justice inflicted in Parliament upon the King's Ministers for abusing the Royal Power shews plainly that such authority is not left in his hands to use as he pleases Nay there have be fallen fact troubles and dangers to some of thâ—se Princes themselves who have abused their Power to the prejudice of the Subjects which although they are no way justifiable yet may serve for an Instruction to Princes and an example not to hearken to ruinous Councils for men when they are enraged do not always consider Justice of Religion passion being as natural to man as reason and vertue which was the Opinion of divine Machiavil To answer you then I say That though we do allow such Powers in the King yet since they are given him for edification and not destruction and cannot be abused without great danger to his Ministers and even to himself we may hope that they can never be abused but in a broken Government And if ours be so as we shall see anon the fault of the ill execution of our Laws is not to be imputed either to the Prince or his Ministers excepting that the latter may be as we said before justly punishable for not advising the Prince to consent to them ending the frame of which we shall talk more hereafter but in the mean time I will come to the Kings other Prerogatives as having all Royal Mines the being serv'd first before other Creditors where mony is due to him and to have a speedier and easier way than his Subjects to recover his debts and his Rents c. But to say all in one word when there arises any doubt whether any thing be the king's Prerogative or no this is the way of deciding it viz. To consider whether it be for the good and protection of the people that the King have such a Power For the definition of Prerogative is a considerable part of the Common Law by which Power is put into the Prince for the preservation of his People And if it be not for the good of his Subjects it is not Prerogative not Law for our Prince has no Authority of his own but what was first intrusted in him by the Government of which he is Head nor is it to be imagined that they would give him more Power than what was necessary to Govern them For example the power of pardoning Criminals condemned is of such use to the Lives and Estates of the People that without it many would be exposed to die unjustly As lately a poor Gentleman who by means of the Harangue of a Strepitous Lawyer was found guilty of Murder for a Man he never kil'd or if he had the fact had been but Man-slaughter and he had been inevitably murdered himself if his Majesty had not been graciously pleased to extend his Royal Mercy to him As he did likewise vouchsafe to do to a Gentleman convicted for speaking words he never utter'd or if he had spoken them they were but foolishly not malitiously spoken On the other side if a Controversie should arise as it did in the beginning of the last Parliament between the House of Commons and the Prerogative-Lawyers about the choice of their Speaker these latter having interested his Majesty in the Contest and made him by consequence disoblige in limine a very Loyal and a very Worthy Parliament and for what for a Question which if you will decide it the right way will be none for setting aside the Presidents and the History when the Crown first pretended to any share in the Choice of a Speaker which Argument was very well handled by some of the Learned Patriots then I would have leave to ask what man can shew and what reason can be alledged why the protection and welfare of the People should require that a Prerogative should be in the Prince to chuse the Mouth of the House of Commons when there is no particular person in his whole Dominion that would not think it against his interest if the Government had given the King Power to nominate his Bayliff his Attorney or his Referree in any Arbitration Certainly there can be no advantage either to the Soveraign or his Subjects that the person whose Office it is to put their deliberations into fitting words and express all their requests to his Majesty should not be entirely in their own Election and appointment which there is the more reason for too because the Speakers for many years past have received Instructions from the Court and have broken the Priviledges of the House by revealing their Debates Adjourning them without a Vote and committed many other Misdemeanours by which they have begotten an ill understanding between the King and his House of Commons to the infinite prejudice both of his Majesties Affairs and his People Since I have given this rule to Judge Prerogative by I shall say no more of it for as to what concerns the King's Office in the Intervals of Parliament it is wholly Ministerial and is barely to put in Execution the Common Law and the Statutes made by the Soveraign Power that is by Himself and the Parliament without varying one tittle or suspending abrogating or neglecting the Execution of any Act whatsoever and to this he is Solemnly Sworn at his Coronation And all his Power in this behalf is in him by Common Law which is Reason itself written as well in the hearts of rational Men as in the Lawyers Books Noble Ven. Sir I have heard much talk of the Kings Negative Voice in Parliaments which in my Opinion is as much as a Power to frustrate when he pleases all the endeavours and labours of his People and to prevent any good that might accrue to the Kingdom by having the right to meet in Parliament for certainly if we in Venice had placed any such Prerogative in our Duke or in any of our Magistracies we could not call ourselves a free People Eng. Gent. Sir I can answer you as I did before that if our Kings have such a Power it ought to be used according to the true and genuine intent of the Government that is for the Preservation and Interest of the people and not
You ask me a very fine question Doctor If I say I would have the people stir in that case then the King and his Laws take hold of me and if I should answer that I would have them be quiet the people would tear me in pieces for a Iesuit or at least believe that I had no sense of the Riligion Laws and Liberty of my Countrey De facto I do suppose that if the people do continue long in this heat which now possesseth them and remain in such a passion at the time of the Kings death without setling matters they may probably fall into tumults and Civil War which makes it infinitely to be desired and prayed for by all good English men that during the quiet and peace we injoy by the blessing of his Majesties life and happy Reign we might likewise be so wise and fortunate as to provide for the safety and prosperity of the next generation Doct. But if you would not have the people in such a case take the Duke of Monmouth for their Head what would you have them do Eng. Gent. Doctor you ask me very fine questions do not you know that Machivel the best and most honest of all the modern Polititians has suffered sufficiently by means of Priests and other ignorant persons who do not understand his Writings and therefore impute to him the teaching Subjects how they should Rebel and conspire against their Princes which if he were in any kind guilty of he would deserve all the reproaches that have been cast upon him and ten times more and so should I if I ventured to obey you in this I am very confident that if any man should come to you to implore your skill in helping him to a drug that might quickly and with the least fear of being suspected dispatch an enemy of his or some other by whose death he was to be a gainer or some young Lass that had gotten a Surruptitious great Belly should come to you to teach her how to destroy the fruit I say in this case you would scarce have had patience to hear these persons out much less would you have been so wicked to have in the least assisted them in their designs no more than Solon Lycurgus Periander or any other of the Sages could have been brought to have given their advice to any persons who should have begged it to enable them to ruine and undermine the government of their own Commonwealths Doct. Sir this Reprehension would be very justly given me if I had intended by this question to induce you to counsel me or any other how to rebel my meaning was to desire you who have heretofore been very fortunate in prophesying concerning the events of our changes here to exercise your faculty a little at this time and tell us what is like to be the end of these destractions we are under in case we shall not be so happy as to put a period to them by mending our Government and securing our Religion and Liberty in a regular way Eng. Gent. Doctor I will keep the reputation of Prophecy which I have gained with you and not hazard it with any new predictions for fear they should miscarry yet I care not if I gratifie your curiosity a little in the point about which you first began to Interrogate me by presaging to you that in case we should have troubles and combustions here after his Majesties decease which God avert we must expect a very unsuccesful end of them if we should be so rash and unadvised as to make the great Person we have been lately speaking of our head and that nothing can be more dangerous and pernitious to us than such a choice I have not in this discourse the least intention to except against much less to disparage the personal worth of the Duke of Monmouth which the world knows to be very great but do believe that he hath Courage and Conduct proportionable to any imployment that can be conferred upon him whether it be to manage Arms or Counsels but my opinion is that no person in his circumstance can be a proper head in this case for the people having been already put on upon his scent of the title to the Crown will be very hardly called off and so will force the wiser men who may design better things to consent that he be Proclaimed King immediately except there be some other head who by his Power Wisdom and Authority may restrain the forwardness of the multitude and obviate the acts of some men whose interest and hopes may prompt them to foment the humours of the people Now the consequences of hurrying a man to the Throne so tumultuously without the least deliberation are very dismal and do not only not cure the politick distempers of our Countrey which we have talked so much of but do infinitely augment it and add to the desease our State labours under already which is a Consumption a very violent Feaver too I mean War at home and from abroad which must necessarily follow in a few years nor is it possible to go back when once we have made that step for our new King will call a Parliament which being summoned by his will neither will nor can question his Title or Government otherwise than by making Addresses and by presenting Bills to him as they do to his now Majesty Nob. Ven. It seems to me that there needs nothing more than that for if he consent to all Laws as shall be presented to him you may reform your Government sufficiently or else it is your own fault Eng. Gent. We have shewed already and shall do more hereafter that no Laws can be executed till our government be mended and if you mean we should make such as should mend that besides that it would be a better method to capitulate that before you make choice of your Prince as wise people have done in all ages and the Cardinals do at Rome in the Conclave before they choose their Pope I say besides this it is not to be taken for granted that any Bills that tend to make considerable alterations in the administration and such we have need of as you will see anon would either in that case be offered or consented to both Prince and People being so ready to cry out upon Forty-one and to be frighted with the name of a Common-wealth even now when we think Popery is at the door which some people then will think farther off and so not care to make so great alterations to keep it out besides the great Men and favourites of the new Prince will think it hard that their King should be so bounded and limited both in power and Revenue that he shall have no means to exercise his liberality towards them and so may use their interest and eloquence in both Houses to dissuade them from pressing so hard upon a Prince who is a true zealous Protestant and has alwaies headed that party and who is justly
for the disappointing the Counsels of a Parliament towards reforming Grievances and making provision for the future execution of the Lawes and whenever it is applyed to frustrate those ends it is a violation of Right and infringement of the King's Coronation-Oath in which there is this Clause That he shall Confirmare consuetudines which in the Latine of those times is leges quas vulgus elegerit I know some Criticks who are rather Grammarians than Lawyers have made a distinction between elegerim and elegero and will have it That the King Swears to such Laws as the people shall have chosen and not to those they shall chuse But in my Opinion if that Clause had been intended onely to oblige the King to execute the Laws made already it might have been better exprest by servare consuetudines than by confirmare consuetudines besides that he is by another clause in the same Oath sworn to execute all the Laws But I shall leave this Controversie undecided those who have a desire to see more of it may look into those quarrelling Declarations pro and con about this matter which preceded our unhappy Civil Wars This is certain that there are not to be found any Statutes that have passed without being presented to his Majesty or to some commissioned by him but whether such Addresses were intended for Respect and Honour to His Majesty as the Speaker of the House of Commons and the Lord Mayor of London are brought to him I leave to the Learned to Discourse onely thus much we may affirm That there never were yet any Parliamentary Requests which did highly concern the Publick presented to any King and by him refused but such denials did produce very dismal effects as may be seen in our Histories ancient and late it being certain that both the Barons Wars and our last dismal Combustions proceeded from no other cause than the denial of the Princes then reigning to consent to the desires of the States of the Kingdom and such hath been the wisdom and goodness of our present gracious Prince that in twenty years and somewhat more for which time we have enjoy'd him since his happy Restauration he hath not exercis'd his Negative Voice towards more than one publick Bill and that too was to have continued in force if it had passed into an Act but for six Weeks being for raising the Militia for so long time and as for the private Bills which are matters of meer grace it is unreasonable his Majesty should be refused that Right that every Englishman enjoys which is not to be obliged to dispence his favours but where he pleases But for this point of the Negative Vote it is possible that when we come to Discourse of the Cure of our Political Distemper some of you will propose the clearing and explanation of this matter and of all others which may concern the King's Power and the Peoples Rights Noble Ven. But pray Sir have not the House of Peers a Negative Voice in all Bills how come they not to be obliged to use it for the Publick Good Eng. Gent So they are no doubt and the Commons too but there is a vast difference between a deliberative Vote which the Peers have with their Negative and that in the Crown to blast all without deliberating The Peers are Co-ordinate with the Commons in presenting and hammering of Laws and may send Bills down to them as well as receive any from them excepting in matters wherein the People are to be Taxed and in this our Government imitates the best and most perfect Commonwealths that ever were where the Senate assisted in the making of Laws and by their wisdom and dexterity polisht fil'd and made ready things for the more populous Assemblies and sometimes by their gravity and moderation reduced the People to a Calmer State and by their authority and credit stem'd the Tide and made the Waters quiet giving the People time to come to themselves And therefore if we had no such Peerage now upon the old Constitution yet we should be necessitated to make an artificial Peerage or Senate in stead of it which may assure our present Lords that though their Dependences and Power are gone yet that we cannot be without them and that they have no need to fear an annihilation by our Reformation as they suffered in the late mad times But I shall speak a word of the peoples Rights and then shew how this brave and excellent Government of England came to decay The People by the Fundamental Laws that is by the Constitution of the Government of England have entire freedome in their Lives Properties and their Persons nether of which can in the least suffer but according to the Laws already made or to be made hereafter in Parliament and duly publisht and to prevent any oppression that might happen in the execution of these good Laws which are our Birth-right all Tryals must be by twelve Men of our equals and of our Neighbourhood These in all Civil Causes judge absolutely and decide the matter of Fact upon which the matter of Law depends but if where matter of Law is in question these twelve Men shall refuse to find a special Verdict at the direction of the Court the Judge cannot Controul it but their Verdict must be Recorded But of these matters as also of Demurrers Writs of Errour and Arrests of Judgment c. I have discours'd to this Gentleman who is a Stranger before now neither do's the understanding of the Execution of our Municipal Laws at all belong to this discourse Onely it is to be noted that these Juries or twelve Men in all Trials or Causes which are Criminal have absolute Power both as to matter of Law and Fact except the Party by Demurrer confess the matter of Fact and take it out of their hands And the first question the Officer asks the Foreman when they all come in to deliver their Verdict is this Is he Guilty in manner or form as he is Indicted or not Guilty which shews plainly that they are to Examine and Judge as well whether and how far the Fact committed is Criminal as whether the person charged hath committed that Fact But though by the Corruption of these times the infallible consequences of a broken frame of Government this Office of the Juries and Right of Englishmen have been of late question'd yet it hath been strongly and effectually vindicated by a learned Author of late to whom I refer you for more of this matter I shall say no more of the Rights of the People but this one thing That neither the King nor any by Authority from him hath any the least Power or Jurisdiction over any Englishman but what the Law gives them and that although all Commissions and Writs go out in the King's name yet his Majesty hath no right to Issue out any Writ with advice of his Council or otherwise excepting what come out of his Courts nor to alter
Impositions upon the People this is reserved to the Parliament it self and the Execution of all Laws to the Judges and Magistrates And I can think of no other Affairs of State than these Doct. Do you intend that the Council for chusing Officers shall Elect them of the King's Houshold that is his Menial Servants Eng. Gent. No that were unreasonable except any of them have any Jurisdiction in the Kingdom or any place or preheminence in Parliament annexed to such Office but in these things which concern the powers and Jurisdictions of these several Councils wherein la guardia della laberta as Machiavil calls it is now to be placed I shall not persume to say any thing but assure your self if ever it come to that it will be very well digested in Parliament they being very good at contriving such Matters and making them practicable as well as at performing all other Matters that concern the Interest and greatness of the Kingdom Doct. I have thought that the Ephores of Sparta were an admirable Magistracy not only for the Interest of the People but likewise for the preservation of the authority of the Kings and of their lives too for Plutarch observes that the Cities of Mesene and Argos had the same Government with Lacedemon and yet for want of erecting such an Authority as was in the Ephores they were not only perpetually in broils amongst themselves and for that reason ever beaten by their Enemies whereas the Spartans were always victorious but even their Kings were the most miserable of Men being often call'd in question Judicially and so lost their Lives and many of them murdered by Insurrections of the People And at last in both these Cities the Kings were driven out their Families extirpated the Territory new divided and the Government turn'd into a Democracy And I ever thought that this expedient you propose for I have heard you discourse of it often before now would prove a more safe and a more noble reformation than the Institution of the Ephores was and that a Prince who is a lover of his Country who is Gracious Wise and Just such a one as it has pleased God to send us at this time shall be ten times more absolute when this Regulation is made than ever he was or could be before and that whatsoever he proposes in any of these Councils will be received as a Law nay as an Oracle And on the other side ill and weak Princes shall have no possibility of corrupting Men or doing either themselves or their People any kind of harm or mischief But have you done now Eng. Gent. No Sir when this Provision is made for the Execution of the Laws which I think very effectual not to say Infallible although it is not to be doubted but that there will be from time to time many excellent Laws Enacted yet two I would have passed immediately the one concerning the whole Regulation of the Elections to Parliament which we need very much and no doubt but it will be well done that part of it which is necessary to go hand in hand with our Settlement and which indeed must be part of it is that a Parliament be Elected every year at a certain day and that without any Writ or Summons the People Meeting of course at the time appointed in the usual place as they do in Parishes at the Church-House to chuse Officers and that the Sheriffs be there ready to preside and to certifie the Election And that the Parliament so Chosen shall Meet at the time appointed and Sit and Adjuorn as their business is more or less urgent But still setting yet a time for their coming together again but if there shall be a necessity by reason of Invasion or some other Cause for their Assembling sooner then the King to Call the Councellors of these Four Councels all together and with the consent of the major part of them intimate their Meeting sooner but when the day day comes for the Annual Meeting of Another Parliament they must be understood to be Dissolved in Law without any other Ceremony and the new one to take their place Doct. I would have this considered too and provided for That no Election should be made of any person who had not the majority of the Electors present to Vote for him so the Writ orders it and so Reason dictates for else how can he be said to represent the County if not a fifth part have consented to his choice as happens sometimes and may do oftener for where seven or eight stand for one vacant place as I have know in our last Long Parliament where the Votes being set in Columns he who has had most Votes has not exceeded four hundred of above two thousand who were present Noble Ven. This is a strange way I thought you had put every Man by himself as we do in our Government and as I understood they do in the House of Commons when there is any nomination and then if he has not the major part he is rejected Eng. Gent. This is very Material and indeed Essential but I make no doubt but if this Project should come in play in Parliament this and all other particulars which would be both needless and tedious to discourse of here will be well and effectually provided for The next Act I would have passed should be concerning the House of Peers that as I take it for granted that there will be a Clause in the Bill concerning Elections that no new Boroughs shall be enabled to send Members to Parliament except they shall be capacitated thereunto by an Act so it being of the same necessity as to the Liberty of Parliament that the Peers who do and must enjoy both a Negative and Deliberative Voice in all Parliamentary Transactions except what concern Levying of Money Originally be exempted from depending absolutely upon the Prince and that therefore it be declared by Act for the future that no Peer shall be made but by Act of Parliament and then that it be Hereditary in his Male Line Noble Ven. I am not yet fully satisfied how you can order your Matters concerning this House of Peers nor do I see how the Contests between the House of Commons and them can be so laid asleep but that they will arise again Besides the House of Commons must necessarily be extreamly concerned to find the House of Peers which consists of private persons though very great and honourable ones in an Instant dash all that they have been so long hammering for the good of all the People of England whom they represent were it not better now you are upon so great alterations to make an Annual Elective Senate or at least one wherein the Members should be but for Life and not Hereditary Eng. Gent. By no means Sir the less change the better and in this Case the Metaphysical Maxime is more true than in any viz. Entia non sunt multiplicanda sine necessitate for