of the People or by any other way whatsoever or whether some Few or a Multitude govern the Commonwealth yet still the Authority that is in any One or in Many or in All these is the only Right and Natural Authority of a Supreme Father There is and always shall be continued to the End of the World a Natural Right of a Supreme Father over every Multitude although by the secret Will of God many at first do most unjustly obtain the Exercise of it To confirm this Natural Right of Regal Power we find in the Decalogue That the Law which enjoyns Obedience to Kings is delivered in the terms of Honour thy Father as if all power were originally in the Father If Obedience to Parents be immediately due by a Natural Law and Subjection to Princes but by the Mediation of an Humane Ordinance what reason is there that the Laws of Nature should give place to the Laws of Men as we see the power of the Father over his Child gives place and is subordinate to the power of the Magistrate If we compare the Natural Rights of a Father with those of a King we find them all one without any difference at all but only in the Latitude or Extent of them as the Father over one Family so the King as Father over many Families extends his care to preserve feed cloth instruct and defend the whole Commonwealth His War his Peace his Courts of Justice and all his Acts of Sovereignty tend only to preserve and distribute to every subordinate and inferiour Father and to their Children their Rights and Privileges so that all the Duties of a King are summed up in an Universal Fatherly Care of his People CHAP. II. It is unnatural for the People to Govern or Chose Governours 1. ARistotle examined about the Freedom of the People and justified 2. Suarez disputing against the Regality of Adam 3. Families diversly defined by Aristotle Bodin and others 4. Suarez contradicting Bellarmine 5. Of Election of Kings 6. By the Major part of the People 7. By Proxy and by silent Acceptation 8. No Example in Scripture of the Peoples chosing their King Mr. Hooker's Iudgment therein 9. God governed always by Monarchy 10. Bellarmine and Aristotle's Iudgment of Monarchy 11. Imperfections of the Roman Democratie 12. Rome began her Empire under Kings and perfected under Emperours In danger the People of Rome always fled to Monarchy 13. Whether Democraties were invented to bridle Tyrants or rather that they came in by Stealth 14. Democraties vilified by their own Historians 15. Popular Government more bloody than Tyranny 16. Of a mixed Government of the King and People 17. The People may not judge or correct their King 18. No Tyrants in England since the Conquest 1. BY conferring these Proofs and Reasons drawn from the Authority of the Scripture it appears little less than a Paradox which Bellarmine and others affirm of the Freedom of the Multitude to chose what Rulers they please Had the Patriarchs their Power given them by their own Children Bellarmine does not say it but the Contrary If then the Fatherhood enjoyed this Authority for so many Ages by the Law of Nature when was it lost or when forfeited or how is it devolved to the Liberty of the Multitude Because the Scripture is not favourable to the Liberty of the People therefore many fly to Natural Reason and to the Authority of Aristotle I must crave Liberty to examine or explain the Opinion of this great Philosopher but briefly I find this Sentence in the Third of his Politiques Cap. 16. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 It seems to some not to be natural for one man to be Lord of all the Citizens since a City consists of Equals D. Lambine in his Latine Interpretation of this Text hath omitted the Translation of this word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by this means he maketh that to be the Opinion of Aristotle which Aristotle alleadgeth to be the Opinion but of some This Negligence or Wilful Escape of Lambine in not translating a word so Material hath been an occasion to deceive many who looking no farther than this Latine Translation have concluded and made the World now of late believe that Aristotle here maintains a Natural Equality of Men and not only our English Translator of Aristotle's Politiques is in this place misled by following Lambine but even the Learned Monsieur Duvall in his Synopsis bears them company and yet this Version of Lambine's is esteemed the best and Printed at Paris with Causabon's corrected Greek Copy though in the rendring of this place the Elder Translations have been more faithful and he that shall compare the Greek Text with the Latine shall find that Causabon had just cause in his Preface to Aristotle's Works to complain that the best Translations of Aristotle did need Correction To prove that in these words which seem to favour the Equality of Mankind Aristotle doth not speak according to his own Judgment but recites only the Opinion of others we find him clearly deliver his own Opinion that the Power of Government did originally arise from the Right of Fatherhood which cannot possibly consist with that Natural Equality which Men dream of for in the First of his Politiques he agrees exactly with the Scripture and lays this Foundation of Government The first Society saith he made of Many Houses is a Village which seems most naturally to be a Colony of Families or foster Brethren of Children and Childrens Children And therefore at the beginning Cities were under the Government of Kings for the eldest in every house is King And so for Kindred-sake it is in Colonies And in the fourth of his Politiques cap. 2 He gives the Title of the first and Divinest sort of Government to the Institution of Kings by Defining Tyranny to be a Digression from the First and Divinest Whosoever weighs advisedly these passages will find little hope of Natural Reason in Aristotle to prove the Natural Liberty of the Multitude Also before him the Divine Plato concludes a Commonweal to be nothing else but a large Family I know for this Position Aristotle quarrels with his Master but most unjustly for therein he contradicts his own Principles for they both agree to fetch the Original of Civil Government from the prime Government No doubt but Moses's History of the Creation guided these two Philosophers in finding out of this Lineal Subjection deduced from the Laws of the First Parents according to that Rule of St. Chrysostom God made all Mankind of One Man that he might teach the World to be Governed by a King and not by a Multitude The Ignorance of the Creation occasioned several Errors amongst the Heathen Philosophers Polybius though otherwise a most profound Philosopher and Judicious Historian yet here he stumbles for in searching out the Original of Civil Societies he conceited That Multitudes of Men after a Deluge a Famine or a Pestilence met together like Herds of Cattel without any
Ordinance then it follows that the Governours were Supreme and not the King Or if it be said that both King and Governours are sent by God then they are both equal and so neither of them Supreme Therefore St. Peter's meaning is in short obey the Laws of the King or of his Ministers By which it is evident that neither St. Peter nor S. Paul intended other-Form of Government than only Monarchical much less any Subjecton of Princes to Humane Laws That familiar distinction of the Schoolmen whereby they Subject Kings to the Directive but not to the Coactive Power of Laws is a Confession that Kings are not bound by the Positive Laws of any Nation Since the Compulsory Power of Laws is that which properly makes Laws to be Laws by binding men by Rewards or Punishment to Obedience whereas the Direction of the Law is but like the advice and direction which the Kings Council gives the King which no man says is a Law to the King 4 There want not those who Believe that the first invention of Laws was to Bridle and moderate the over-great Power of Kings but the truth is the Original of Laws was for the keeping of the Multitude in Order Popular Estates could not Subsist at all without Laws whereas Kingdoms were Govern'd many Ages without them The People of Athens as soon as they gave over Kings were forced to give Power to Draco first then to Solon to make them Laws not to bridle Kings but themselves and though many of their Laws were very Severe and Bloody yet for the Reverence they bare to their Law-makers they willingly submitted to them Nor did the People give any Limited Power to Solon but an Absolute Jurisdiction at his pleasure to Abrogate and Confirm what he thought fit the People never challenging any such Power to themselves So the People of Rome gave to the Ten Men who were to chuse and correct their Laws for the Twelve Tables an Absolute Power without any Appeal to the people 5. The reason why Laws have been also made by Kings was this when Kings were either busyed with Wars or distracted with Publick Cares so that every private man could not have accesse to their persons to learn their Wills and Pleasure then of necessity were Laws invented that so every particular Subject might find his Prince's Pleasure decyphered unto him in the Tables of his Laws that so there might be no need to resort to the King but either for the Interpretation or Mitigation of Obscure or Rigorous Laws or else in new Cases for a Supplement where the Law was Defective By this means both King and People were in many things eased First The King by giving Laws doth free himself of great and intolerable Troubles as Moses did himself by chusing Elders Secondly The people have the Law as a Familiar Admonisher and Interpreter of the King's pleasure which being published throughout the Kingdom doth represent the Presence and Majesty of the King Also the Judges and Magistrates whose help in giving Judgment in many Causes Kings have need to use are restrained by the Common Rules of the Law from using their own Liberty to the injury of others since they are to judge according to the Laws and not follow their own Opinions 6. Now albeit Kings who make the Laws be as King Iames teacheth us above the Laws yet will they Rule their Subjects by the Law and a King governing in a setled Kingdom leaves to be a King and degenerates into a Tyrant so soon as he seems to Rule according to his Laws yet where he sees the Laws Rigorous or Doubtful he may mitigate and interpret General Laws made in Parliament may upon known Respects to the King by his Authority be Mitigated or Suspended upon Causes only known to him And although a King do frame all his Actions to be according to the Laws yet he is not bound thereto but at his good Will and for good Example Or so far forth as the General Law of the Safety of the Common-Weale doth naturally bind him for in such sort only Positive Laws may be said to bind the King not by being Positive but as they are naturally the Best or Only Means for the Preservation of the Common-Wealth By this means are all Kings even Tyrants and Conquerours bound to preserve the Lands Goods Liberties and Lives of all their Subjects not by any Municipial Law of the Land so much as the Natural Law of a Father which binds them to ratifie the Acts of their Fore-Fathers and Predecessors in things necessary for the Publick Good of their Subjects 7. Others there be that affirm That although Laws of themselves do not bind Kings yet the Oaths of Kings at their Coronations tye them to keep all the Laws of their Kingdoms How far this is true let us but examine the Oath of the Kings of England at their Coronation the words whereof are these Art thou pleased to cause to be administred in all thy Iudgments indifferent and upright Iustice and to use Discretion with Mercy and Verity Art thou pleased that our upright Laws and Customs be observed and dost thou promise that those shall be protected and maintained by thee These two are the Articles of the King's Oath which concern the Laity or Subjects in General to which the King answers affirmatively Being first demanded by the Arch-bishop of Canterbury Pleaseth it you to confirm and observe the Laws and Customs of Ancient Times granted from God by just and devout Kings unto the English Nation by Oath unto the said People Especially the Laws Liberties and Customs granted unto the Clergy and Laity by the famous King Edward We may observe in these words of the Articles of the Oath that the King is required to observe not all the Laws but only the Upright and that with Discretion and Mercy The Word Upright cannot mean all Laws because in the Oath of Richard the Second I find Evil and Unjust Laws mentioned which the King swears to abolish and in the Old Abridgment of Statutes set forth in Henry the Eighth's days the King is to swear wholly to put out Evil Laws which he cannot do if he be bound to all Laws Now what Laws are Upright and what Evil who shall judge but the King since he swears to administer Upright Justice with Discretion and Mercy or as Bracton hath it aequitatem praecipiat misericordiam So that in effect the King doth swear to keep no Laws but such as in His Iudgment are Upright and those not literally always but according to Equity of his Conscience join'd with Mercy which is properly the Office of a Chancellour rather than of a Judge and if a King did strictly swear to observe all the Laws he could not without Perjury give his Consent to the Repealing or Abrogating of any Statute by Act of Parliament which would be very mischievable to the State But let it be supposed for truth that Kings do swear to observe
all the Laws of their Kingdoms yet no man can think it reason that Kings should be more bound by their Voluntary Oaths than Common Persons are by theirs Now if a private person make a Contract either with Oath or without Oath he is no further bound than the Equity and Justice of the Contract ties him for a man may have Relief against an unreasonable and unjust promise if either Deceit or Errour or Force or Fear induced him thereunto Or if it be hurtful or grievous in the performance Since the Laws in many Cases give the King a Prerogative above Common Persons I see no Reason why he should be denyed the Priviledge which the meanest of his Subjects doth enjoy Here is a fit place to examine a Question which some have moved Whether it be a sin for a Subject to disobey the King if he Command any thing contrary to his Laws For satisfaction in this point we must resolve that not only in Human Laws but even in Divine a thing may be commanded contrary to Law and yet Obedience to such a Command is necessary The sanctifying of the Sabbath is a Divine Law yet if a Master Command his Servant not to go to Church upon a Sabbath-day the Best Divines teach us That the Servant must obey this Command though it may be Sinful and Unlawful in the Master because the Servant hath no Authority or Liberty to Examine and Judge whether his Master Sin or no in so Commanding for there may be a just Cause for a Master to keep his Servant from Church as appears Luke 14. 5. yet it is not fit to tye the Master to acquaint his Servant with his Secret Counsels or present Necessity And in such Cases the Servants not going to Church becomes the Sin of the Master and not of the Servant The like may be said of the King 's Commanding a man to serve him in the Wars he may not Examine whether the War be Just or Unjust but must Obey since he hath no Commission to Judge of the Titles of Kingdoms or Causes of War nor hath any Subject Power to Condemn his King for breach of his own Laws 8. Many will be ready to say It is a Slavish and Dangerous Condition to be subject to the Will of any One Man who is not subject to the Laws But such men consider not 1. That the Prerogative of a King is to be above all Laws for the good only of them that are under the Laws and to defend the Peoples Liberties as His Majesty graciously affirmed in His Speech after His last Answer to the Petition of Right Howsoever some are afraid of the Name of Prerogative yet they may assure themselves the Case of Subjects would be desperately miserable without it The Court of Chancery it self is but a Branch of the Kings Prerogative to Relieve men against the inexorable rigour of the Law which without it is no better than a Tyrant since Summum Ius is Summa Injuria General Pardons at the Coronation and in Parliaments are but the Bounty of the Prerogative 2. There can be no Laws without a Supreme Power to command or make them In all Aristocraties the Nobles are above the Laws and in all Democraties the People By the like Reason in a Monarchy the King must of necessity be above the Laws there can be no Soveraign Majesty in him that is under them that which giveth the very Being to a King is the Power to give Laws without this Power He is but an Equivocal King It skills not which way Kings come by their Power whether by Election Donation Succession or by any other means for it is still the manner of the Government by Supreme Power that makes them properly Kings and not the means of obtaining their Crowns Neither doth the Diversity of Laws nor contrary Customs whereby each Kingdom differs from another make the Forms of Common-Weal different unless the Power of making Laws be in several Subjects For the Confirmation of this point Aristotle saith That a perfect Kingdom is that wherein the King rules all things according to his Own Will for he that is called a King according to the Law makes no kind of Kingdom at all This it seems also the Romans well understood to be most necessary in a Monarchy for though they were a People most greedy of Liberty yet the Senate did free Augustus from all Necessity of Laws that he might be free of his own Authority and of absolute Power over himself and over the Laws to do what he pleased and leave undone what he list and this Decree was made while Augustus was yet absent Accordingly we find that Vlpian the great Lawyer delivers it for a Rule of the Civil Law Princeps Legibus solutus est The Prince is not bound by the Laws 9 If the Nature of Laws be advisedly weighed the Necessity of the Princes being above them may more manifest it self we all know that a Law in General is the command of a Superior Power Laws are divided as Bellermine divides the Word of God into written and unwritten not for that it is not Written at all but because it was not Written by the first Devisers or Makers of it The Common Law as the Lord Chancellor Egerton teacheth us is the Common Custom of the Realm Now concerning Customs this must be considered that for every Custom there was a time when it was no Custom and the first President we now have had no President when it began when every Custom began there was something else than Custom that made it lawful or else the beginning of all Customs were unlawful Customs at first became Lawful only by some Superiour which did either Command or Consent unto their beginning And the first Power which we find as it is confessed by all men is the Kingly Power which was both in this and in all other Nations of the World long before any Laws or any other kind of Government was thought of from whence we must necessarily infer that the Common Law it self or Common Customs of this Land were Originally the Laws and Commands of Kings at first unwritten Nor must we think the Common Customs which are the Principles of the Common Law and are but few to be such or so many as are able to give special Rules to determine every particular Cause Diversity of Cases are infinite and impossible to be regulated by any Law and therefore we find even in the Divine Laws which are delivered by Moses there be only certain Principal Laws which did not determine out only direct the High-priest or Magistrate whose Judgment in special Cases did determine what the General Law intended It is so with the Common Law for when there is no perfect Rule Judges do resort to those Principles or Common Law Axiomes whereupon former Judgments in Cases some-what like have been delivered by former Judges who all receive Authority from the King in his Right and Name to give Sentence
according to the Rules and Presidents of Antient Times And where Presidents have failed the Judges have resorted to the General Law of Reason and accordingly given Judgment without any Common Law to direct them Nay many times where there have been Presidents to direct they upon better Reason only have Changed the Law both in Causes Criminal and Civil and have not insisted so much on the Examples of former Judges as examined and corrected their Reasons thence it is that so no Laws are now obsolete and out of use and the Practice quite contrary to what it was in Former Times as the Lord Chancellor Egerton proves by several Instances Nor is this spoken to Derogate from the Common Law for the Case standeth so with the Laws of all Nations although some of them have their Laws and Principles Written and Established for witnesse to this we have Aristotle his Testimony in his Ethiques and in several places in his Politiques I will cite some of them Every Law saith he is in the General but of some things there can be no General Law when therefore the Law sqeaks in General and something falls out after besides the General Rule Then it is fit that what the Law-maker hath omitted or where he hath Erred by speaking Generally it should be corrected or supplyed as if the Law-maker himself were Present to Ordain it The Governour whether he be one Man or more ought to be Lord over all those things whereof it was impossible the Law should exactly speak because it is not easie to comprehend all things under General Rules whatsoever the Law cannot Determine it leaves to the Governours to give Iudgment therein and permits them to rectifie whatsoever upon Tryal they find to be better than the Written Laws Besides all Laws are of themselves Dumb and some or other must be trusted with the Application of them to Particulars by examining all Circumstances to pronounce when they are broken or by whom This work of right Application of Laws is not a thing easie or obvious for ordinary capacities but requires profound Abilities of Nature for the beating out of the truth witness the Diversity and sometimes the contrariety of Opinions of the learned Judges in some difficult Points 10 Since this is the common Condition of Laws it is also most reasonable that the Law-maker should be trusted with the Application or Interpretation of the Laws and for this Cause anciently the Kings of this Land have sitten personally in Courts of Judicature and are still Representatively present in all Courts the Judges are but substituted and called the Kings Justices and their Power ceaseth when the King is in place To this purpose Bracton that learned Chief Justice in the Reign of Henry the Third saith in express terms In doubtful and obscure points the Interpretation and Will of our Lord the King is to be expected since it is his part to interpret who made the Law for as he saith in another place Rex non Alius debet Iudicare si Solus ad id sufficere possit c. The King and no body else ought to give Iudgment if He were able since by vertue of his Oath he is Bound to it therefore the King ought to exercise Power as the Vicar or Minister of God but if our Lord the King be not able to determine every cause to ease part of his Pains by distributing the Burthen to more Persons he ought to chuse Wise men fearing God c and make Iustices of them Much to the same purpose are the words of Edward the First in the beginning of his Book of Laws written by his appointment by Iohn Briton Bishop of Hereford We will saith he that our own Iurisdiction be above all the Iurisdictions of our Realm so as in all manner of Felonies Trespasses Contracts and in all other Actions Personal or Real We have power to yield such Iudgments as do appertain without other Process wheresoever we know the right truth as Iudges Neither may this be taken to be meant of an imaginary Presence of the King's Person in His Courts because he doth immediately after in the same place severally set forth by themselves the Jurisdictions of his Ordinary Courts but must necessarily be understood of a Jurisdiction remaining in the King 's Royal Person And that this then was no New-made Law or first brought in by the Norman Conquests appears by a Saxon Law made by King Edgar in these words as I find them in Mr. Lambert Nemo in lite Regem appellato nisi quidem domi Iustitiam consequi aut impetrare non poterit sin summo jure domi urgeatur ad Regem ut is Onus aliqua ex parte Allevet provocato Let no man in Suit appeal to the King unless he may not get Right at home but if the Right be too heavy for him then let him go to the King to have it eased As the Judicial Power of Kings was exercised before the Conquest so in those setled times after the Conquest wherein Parliaments were much in use there was a High-Court following the King which was the place of Soveraign Justice both for matter of Law and Conscience as may appear by a Parliament in Edward the First 's time taking Order That the Chancellour and the Iustices of the Bench should follow the King to the end that He might have always at hand able men for His Direction in Suits that came before Him And this was after the time that the Court of Common-Pleas was made Stationary which is an Evidence that the King reserved a Soveraign Power by which he did supply the Want or correct the Rigour of the Common Law because the Positive Law being grounded upon that which happens for the most part cannot foresee every particular which Time and Experience brings forth 12. Therefore though the Common Law be generally Good and Just yet in some special Case it may need Correction by reason of some considerable Circumstance falling out which at the time of the Law-making was not thought of Also sundry things do fall out both in War and Peace that require extraordinary help and cannot wait for the Usual Care of Common Law the which is not performed but altogether after one sort and that not without delay of help and expence of time so that although all Causes are and ought to be referred to the Ordinary Processe of common Law yet rare matters from time to time do grow up meet for just Reasons to be referred to the aid of the absolute Authority of the Prince and the Statute of Magna Charta hath been understood of the Institution then made of the ordinary Jurisdiction in Common Causes and not for restraint of the Absolute Authority serving only in a few rare and singular Cases for though the Subjects were put to great dammage by False Accusations and Malitious Suggestions made to the King and His Council especially during the time of King Edward the Third whilst he
in Parliaments are restrained both for Time Place Persons and other Circumstances to the Sole Pleasure of the King The People cannot Assemble themselves but the King by his Writs calls them to what place he pleases and then again Scatters them with his Breath at an instant without any other Cause shewed than his Will Neither is the whole Summoned but only so many as the Kings Writs appoint The prudent King Edward the First summoned always those Barons of ancient Families that were most wise to his Parliament but omited their Sons after their Death if they were not answerable to their Parents in Understanding Nor have the whole people Voices in the Election of Knights of the Shire or Burgesses but only Free-holders in the Counties and Freemen in the Cities and Burroughs yet in the City of Westminster all the House-holders though they be neither Free-men nor Free-holders have Voices in their Election of Burgesses Also during the time of Parliament those priviledges of the House of Commons of freedom of Speech Power to punish their own Members to examine the Proceedings and Demeanour of Courts of Justice and Officers to have access to the King's Person and the like are not due by any Natural Right but are derived from the Bounty or Indulgence of the King as appears by a solemn Recognition of the House for at the opening of the Parliament when the Speaker is presented to the King he in the behalf and name of the whole House of Commons humbly craves of His Majesty That He would be pleased to grant them their Accustomed Liberties of freedom of Speech of access to his Person and the rest These Priviledges are granted with a Condition implyed That they keep themselves within the Bounds and Limits of Loyalty and Obedience for else why do the House of Commons inflict punishment themselves upon their own Members for transgressing in some of these points and the King as Head hath many times punished the Members for the like Offences The Power which the King giveth in all his Courts to his Judges or others to punish doth not exclude Him from doing the like by way of Prevention Concurrence or Evocation even in the same point which he hath given in charge by a delegated Power for they who give Authority by Commission do always retain more than they grant Neither of the two Houses claim an Infallibility of not Erring no more than a General Council can It is not impossible but that the greatest may be in Fault or at least Interested or Engaged in the Delinquency of one particular Member In such Cases it is most proper for the Head to correct and not to expect the Consent of the Members or for the Parties peccant to be their own Judges Nor is it needful to confine the King in such Cases within the Circle of any one Court of Justice who is Supreme Judge in all Courts And in rare and new Cases rare and new Remedies must be sought out for it is a Rule of the Common Law In novo Casu novum Remedium est apponendum and the Statute of Westminst 2. cap. 24. giveth Power even to the Clarks of the Chancery to make New Forms of Writs in New Cases lest any man that came to the King's Court of Chancery for help should be sent away without Remedy A President cannot be found in every Case and of things that happen seldom and are not common there cannot be a Common Custom Though Crimes Exorbitant do pose the King and Council in finding a President for a Condigne Punishment yet they must not therefore pass unpunished I have not heard that the people by whose Voices the Knights and Burgesses are chosen did ever call to an account those whom they had Elected they neither give them Instructions or Directions what to say or what to do in Parliament therefore they cannot punish them when they come home for doing amiss If the people had any such power over their Burgesses then we might call it The Natural Liberty of the people with a mischief But they are so far from punishing that they may be punished themselves for intermedling with Parliamentary Business they must only chuse and trust those whom they chuse to do what they list and that is as much liberty as many of us deserve for our irregular Elections of Burgesses 15 A fourth point to be consider'd is that in Parliament all Statutes or Laws are made properly by the King alone at the Rogation of the people as His Majesty King Iames of happy memory affirms in His true Law of free Monarchy and as Hooker teacheth us That Laws do not take their constraining force from the Quality of such as devise them but from the Power that doth give them the Strength of Laws Le Roy le Veult the King will have it so is the Interpretive Phrase pronounced at the King 's passing of every Act of Parliament And it was the ancient Custom for a long time till the days of Henry the Fifth that the Kings when any Bill was brought unto them that had passed both Houses to take and pick out what they liked not and so much as they chose was Enacted for a Law but the Custom of the later Kings hath been so gracious as to allow always of the entire Bill as it hath passed both Houses 16 The Parliament is the King's Court for so all the oldest Statutes call it the King in his Parliament But neither of the two Houses are that Supreme Court nor yet both of them together they are only Members and a part of the Body whereof the King is the Head and Ruler The King 's Governing of this Body of the Parliament we may find most significantly proved both by the Statutes themselves as also by such Presidents as expresly shew us how the King sometimes by himself sometimes by his Council and other-times by his Judges hath over-ruled and directed the Judgments of the Houses of Parliament for the King we find that Magna Charta and the Charter of Forrests and many other Statutes about those times had only the Form of the Kings Letters-Patents or Grants under the Great Seal testifying those Great Liberties to be the sole Act and Bounty of the King The words of Magna Charta begin thus Henry by the Grace of God c. To all Our Arch-Bishops c. and Our Faithful Subjects Greeting Know ye that We of Our meer free-Will have granted to all Free-men these Liberties In the same style goeth the Charter of Forrests and other Statutes Statutum Hiberniae made at Westminster 9. Februarii 14. Hen. 3. is but a Letter of the King to Gerrard Son of Maurice Justice of Ireland The Statute de anno Bissextili begins thus The King to His Iustices of the Bench Greeting c. Explanationes Statuti Glocestriae made by the King and his Iustices only were received always as Statutes and are still Printed amongst them The Statute made for Correction of
our Soveraign Lord the King in his Parliament by their Petition that for his Profit and the Commodity of his Prelates Earls Barons and Commons it may please him to provide remedy our Soveraign Lord the King desiring the profit of his people by the assent of his Prelates Earles Barons and other Nobles of his Council being there hath ordained In the Parliament primo Edwardi the Third where Magna Charta was confirmed I find this Preamble At the Request of the Commonalty by their Petition made before the King and His Council in Parliament by the assent of the Prelates Earles Barons and other Great Men Assembled it was Granted The Commons presenting a Petition unto the King which the King's Council did mislike were content thereupon to mend and explain their Petition the Form of which Petition is in these words To their most redoubted Soveraign Lord the King praying the said Commons That whereas they have pray'd Him to be discharged of all manner of Articles of the Eyre c. Which Petition seemeth to His Council to be prejudicial unto Him and in Disinherison of His Crown if it were so generally granted His said Commons not willing nor desiring to demand things of Him which should fall in Disinherison of Him or His Crown perpetually as of Escheators c. but of Trespasses Misprisions Negligences and Ignorances c. In the time of Henry the Third an Order or Provision was made by the King's Council and it was pleaded at the Common Law in Bar to a Writ of Dower The Plantiffs Attorney could not deny it and thereupon the Iudgment was ideo sine die It seems in those days an Order of the Council-Board was either parcel of the common-Common-Law or above it The Reverend Judges have had regard in their Proceedings that before they would resolve or give Iudgment in new Cases they consulted with the King 's Privy Council In the Case of Adam Brabson who was assaulted by R. W. in the presence of the Iustices of Assize at Westminster the Judges would have the Advice of the Kings Council For in a like Case because R. C. did strike a Juror at Westminster which passed in an Inquest against one of his Friends It was adjudged by all the Council that his right hand should be cut off and his Lands and Goods forfeited to the King Green and Thorp were sent by Judges of the Bench to the Kings Council to demand of them whether by the Statute of 14. Ed. 3. cap. 16. a Word may be amended in a Writ and it was answered that a Word may well be amended although the Statute speak but of a Letter or Syllable In the Case of Sir Tho. Oghtred Knight who brought a Formedon against a poor Man and his Wife they came and yielded to the Demandant which seemed suspitious to the Court whereupon Iudgment was stayed and Thorp said That in the like Case of Giles Blacket it was spoken of in Parliament and we were commanded that when any like Case should come we should not go to Iudgment without good advice therefore the Judges Conclusion was Sues au Counseil comment ils voillet que nous devomus faire nous volume faire auterment nient en cest case Sue to the Council and as they will have us to do we will and otherwise not in this Case 18. In the last place we may consider how much hath been attributed to the Opinions of the Kings Iudges by Parliaments and so find that the Kings Council hath guided and ruled the Iudges and the Iudges guided the Parliament In the Parliament of 28. Hen. 6. The Commons made Suit That William de la Poole D. of Suffolke should be committed to Prison for many Treasons and other Crimes The Lords of the Higher House were doubtful what Answer to give the Opinion of the Iudges was demanded Their Opinion was that he ought not to be committed for that the Commons did not charge him with any particular Offence but with General Reports and Slanders This Opinion was allowed In another Parliament 31. Hen. 6. which was prorogued in the Vacation the Speaker of the House of Commons was condemned in a thousand pound dammages in an Action of Trespass and was committed to Prison in Execution for the same When the Parliament was re-assembled the Commons made suit to the King and Lords to have their Speaker delivered the Lords demanded the Opinion of the Judges whether he might be delivered out of Prison by priviledge of Parliament upon the Judges answer it was concluded That the Speaker should still remain in Prison according to the Law notwithstanding the priviledge of Parliament and that he was the Speaker Which Resolution was declared to the Commons by Moyle the King's Serjeant at Law and the Commons were commanded in the Kings Name by the Bishop of Lincolne in the absence of the Arch-bishop of Canterbury then Chancellour to chuse another Speaker In septimo of Hen. 8. a question was moved in Parliament Whether Spiritual Persons might be convented before Temporal Iudges for Criminal Causes There Sir Iohn Fineux and the other Judges delivered their Opinion That they might and ought to be and their Opinion was allowed and maintained by the King and Lords and Dr. Standish who before had holden it the same Opinion was delivered from the Bishops If a Writ of Errour be sued in Parliament upon a Judgment given in the Kings Bench the Lords of the higher House alone without the Commons are to examine the Errours the Lords are to proceed according to Law and for their Judgment therein they are to be informed by the advice and counsel of the Judges who are to inform them what the Law is and so to direct them in their Judgment for the Lords are not to follow their own Opinions or Discretions otherwise So it was in a Writ of Errour brought in Parliament by the Dean and Chapter of Lichfield against the Prior and Covent of Newton-Panel as appeareth by Record See Flower Dew's Case P. 1. H. 7. fol. 19. FINIS 1 Kings 20. 16. Gen. 27 29. Arist. Pol. Lib. 1. c. 2.
Govern it that so though they have not a King amongst them yet they may have as good as a King Over them For the Common Danger of an Enemy keeps them in better Unity than the Laws they make themselves 15 Many have exercised their Wits in parallelling the Inconveniences of Regal and Popular Government but if we will trust Experience before Speculations Philosophical it cannot be denyed but this one Mischief of Sedition which necessarily waits upon all Popularity weighes down all the Inconveniences that can be found in Monarchy though they were never so many Itis said Skin for Skin yea all that a man hath will he give for his Life and a man will give his Riches for the ransome of his Life The way then to examine what Proportion the mischiefs of Sedition and Tyranny have one to another is to enquire in what kind of Government most Subjects have lost their Lives Let Rome which is magnified for her Popularity and vilified for the Tyrannical Monsters the Emperours furnish us with Examples Consider-whether the Cruelty of all the Tyrannical Emperours that ever ruled in this City did ever spill a quarter of the Blood that was poured out in the last hundred years of her glorious Common wealth The Murthers by Tyberius Domitian and Commodus put all together cannot match that Civil Tragedy which was acted in that one Sedition between Marius and Sylla nay even by Sylla's part alone not to mention the Acts of Marius were fourscore and ten Senators put to death fifteen Consuls two thousand and six hundred Gentlemen and a hundred thousand others This was the Heighth of the Roman Liberty Any Man might be killed that would A favour not fit to be granted under a Royal Government The Miseries of those Licentious Times are briefly touched by Plutarch in these Words Sylla saith he fell to sheding of Bloud and filled all Rome with infinite and unspeakable Murthers This was not only done in Rome but in all the Cities of Italy throughout there was no Temple of any God whatsoever no Altar in any bodies House no Liberty of Hospital no Fathers House which was not embrewed with Blood and horrible Murthers the Husbands were slain in the Wives Armes and the Children in the Mothers Laps and yet they that were Slain for private Malice were no-nothing in respect of those that were Murthered only for their Goods He openly Sold their Goods by the Cryer sitting so proudly in his Chair of State that it grieved the People more to see their goods packt up by them to whom he gave or disposed them than to see them taken away Sometimes he would give a whole Countrey or the whole Revenues of certain Cities unto Women for their Beauties or to pleasant Jeasters Minstrels or wicked Slaves made free And to some he would give other mens VVives by force and make them be Married against their wills Now let Tacitus and Suetonius be searched and see if all their Cruel Emperours can match this Popular Villany in such an Universal Slaughter of Citizens or Civil Butchery God only was able to match him and over-matched him by fitting him with a most remarkable Death just answerable to his Life for as he had been the Death of many thousands of his Country-men so as many thousands of his own Kindred in the flesh were the Death of him for he died of an Impostume which corrupted his Flesh in such sort that it turned all to Lice he had many about him to Shift him continually Night and Day yet the Lice they wiped from him were nothing to them that multiplied upon him there was neither Apparel Linnen Bathes VVashings nor meat it self but was presently filled with Swarms of this vile Vermine I cite not this to extenuate the Bloody Acts of any Tyrannical Princes nor will I plead in Defence of their Cruelties Only in the Comparative I maintain the Mischiefs to a State to be less Universal under a Tyrant King for the Cruelty of such Tyrants extends ordinarily no further then to some Particular Men that offend him and not to the whole Kingdome It is truly said by his late Majesty King Iames a King can never be so notoriously Vitious but he will generally favour Justice and maintain some Order except in the particulars wherein his inordinate Lust carries him away Even cruel Domitian Dionysius the Tyrant and many others are commended by Historians for great Observers of Justice A natural Reason is to be rendered for it It is the Multitude of People and the abundance of their Riches which are the only Strength and Glory of every Prince The Bodies of his Subjects do him Service in VVar and their Goods supply his present wants therefore if not out of Affection to his people yet out of Natural Love to Himself every Tyrant desires to preserve the Lives and protect the Goods of his Subjects which cannot be done but by Justice and if it be not done the Princes Loss is the greatest on the contrary in a Popular State every man knows the publick good doth not depend wholly on his Care but the Common-wealth may well enough be governed by others though he tend only his Private Benefit he never takes the Publick to be his Own Business thus as in a Family where one Office is to be done by many Servants one looks upon another and every one leaves the Business for his Fellow until it is quite neglected by all nor are they much to be blamed for their Negligence since it is an even Wager their Ignorance is as great For Magistrates among the People being for the most part Annual do always lay down their Office before they understand it so that a Prince of a Duller understanding by Use and Experience must needs excell them again there is no Tyrant so barbarously Wicked but his own reason and sense will tell him that though he be a God yet he must dye like a Man and that there is not the Meanest of his Subjects but may find a means to revenge himself of the Injustice that is offered him hence it is that great Tyrants live continually in base fears as did Dionysius the Elder Tiberius Caligula and Nero are noted by Suctonius to have been frighted with Panick fears But it is not so where wrong is done to any Particular Person by a Multitude he knows not who hurt him or who to complain of or to whom to address himself for reparation Any man may boldly exercise his Malice and Cruelty in all Popular Assemblies There is no Tyranny to be compared to the Tyranny of a Multitude 16 What though the Government of the People be a thing not to be endured much less defended yet many men please themselves with an Opininion that though the People may not Govern yet they may partake and joyn with a King in the Government and so make a State mixed of Popular and Regal power which they take to be the best tempered and equallest Form of Government
Tyrants Besides we do not find in all Scripture that Saul was Punished or so much as Blamed for committing any of those Acts which Samuel describes and if Samuel's drift had been only to terrifie the People he would not have forgotten to foretell Saul's bloody Cruelty in Murthering 85 innocent Priests and smiteing with the Edge of the Sword the City of Nob both Man Woman and Child Again the Israelites never shrank at these Conditions proposed by Samuel but accepted of them as such as all other Nations were bound unto For their Conclusion is Nay but we will have a King over Vs that We also may be like all the Nations and that Our King may Iudge us and go out before us to fight our Battels Meaning he should earn his Privileges by doing the work for them by Judging them and Fighting for them Lastly Whereas the mention of the Peoples Crying unto the Lord argues they should be under some Tyrannical Oppression we may remember that the Peoples Complaints and Cries are not always an Argument of their Living under a Tyrant No man can say King Solomon was a Tyrant yet all the Congregation of Israel complain'd that Solomon made their Yoke grievous and therefore their Prayer to Rehoboam is Make thou the grievous Service of thy Father Solomon and his heavy Yoke which he put upon us lighter and we will serve thee To conclude it is true Saul lost his Kingdom but not for being too Cruel or Tyrannical to his Subjects but by being too Merciful to his Enemies his sparing Agag when he should have slain him was the Cause why the Kingdom was torn from him 3. If any desire the direction of the New Testament he may find our Saviour limiting and distinguishing Royal Power By giving to Caesar those things that were Caesar 's and to God those things that were God's Obediendum est in quibus mandatum Dei non impeditur We must obey where the Commandment of God is not hindred there is no other Law but Gods Law to hinder our Obedience It was the Answer of a Christian to the Emperour We only worship God in other things we gladly serve you And it seems Tertullian thought whatfoever was not God's was the Emperours when he saith Bene opposuit Caesari pecuniam te ipsum Deo alioqui quid erit Dei si omnia Caesaris Our Saviour hath well apportioned our Money for Caesar and our selves for God for otherwise what shall God's share be if all be Caesar's The Fathers mention no Reservation of any Power to the Laws of the Land or to the People S. Ambrose in his Apologie for David expresly saith He was a King and therefore bound to no Laws because Kings are free from the Bonds of any Fault S. Augustine also resolves Imperator non est subjectus Legibus qui habet in potestate alias Leges ferre The Emperour is not subject to Laws who hath Power to make other Laws For indeed it is the Rule of Solomon that We must keep the King's Commandment and not to say What dost Thou because Where the Word of a King is there is Power and All that he pleaseth he will do If any mislike this Divinity in England let him but hearken to Bracton Chief Justice in Henry the Third's days which was since the Institution of Parliaments his words are speaking of the King Omnes sub Eo Ipse sub nullo nisi tantum sub Deo c. All are under him and he under none but God only If he offend since no Writ can go against him their Remedy is by Petitioning him to amend his Fault which if he shall not do it will be Punishment sufficient for him to expect God as a Revenger Let none presume to Search into his Deeds much less to Oppose them When the Iews asked our Blessed Saviour whether they should pay Tribute he did not first demand what the Law of the Land was or whether there was any Statute against it nor enquired whether the Tribute were given by Consent of the people nor advised them to stay their payment till they should grant it he did no more but look upon the Superscription and concluded This Image you say is Caesar's therefore give it to Caesar. Nor must it here be said that Christ taught this Lesson only to the conquered Iews for in this he gave direction for all Nations who are bound as much in Obedience to their Lawful Kings as to any Conquerour or Vsurper whatsoever Whereas being subject to the Higher Powers some have strained these words to signifie the Laws of the Land or else to mean the Highest Power as well Aristocratical and Democratical as Regal It seems S. Paul looked for such Interpretation and therefore thought fit to be his own Expositor and to let it be known that by Power he understood a Monarch that carryed a Sword Wilt thou not be afraid of the Power that is the Ruler that carryeth the Sword for he is the Minister of God to thee for he beareth not the Sword in vain It is not the Law that is the Minister of God or that carries the Sword but the Ruler or Magistrate so they that say the Law governs the Kingdom may as well say that the Carpenters Rule builds an House and not the Carpenter for the Law is but the Rule or Instrument of the Ruler And S. Paul concludes for this cause pay you tribute also for they are Gods Ministers attending continually upon this very thing Render therefore Tribute to whom Tribute is due Custom to whom Custom He doth not say give as a gift to Gods Minister But 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Render or Restore Tribute as a due Also St. Peter doth most clearly expound this place of St. Paul where he saith Submit your selves to every Ordinance of Man for the Lords sake whether it be to the King as Supreme or unto Governours as unto them that are sent by him Here the very self same Word Supreme or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which St. Paul coupleth with Power St. Peter conjoineth with the King 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 thereby to maniest that King and Power are both one Also St. Peter expounds his own Words of Humane Ordinance to be the King who is the Lex Loquens a Speaking Law he cannot mean that Kings themselves are an human Ordinance since St. Paul calls the Supreme Power The Ordinance of God and the Wisdom of God saith By me Kings Reign But his meaning must be that the Laws of Kings are Human Ordinances Next the Governours that are sent by him that is by the King not by God as some corruptly would wrest the Text to justifie Popular Governours as authorized by God whereas in Gramatical Construction Him the Relative must be referred to the next Antecedent which is King Besides the Antithesis between Supreme and Sent proves plainly that the Governours were sent by Kings for if the Governours were sent by God and the King be an Humane
was absent in the Wars in France insomuch as in His Reign divers Statutes were made That provided none should be put to answer before the King and His Council without due Processe yet it is apparent the necessity of such Proceedings was so great that both before Edward the Third's days and in his time and after his Death several Statutes were made to help and order the Proceedings of the King and his Council As the Parliament in 28. Edw. 1. Cap. 5. did provide That the Chancellour and Iustices of the King's Bench should follow the King that so he might have near unto him some that be learned in the Laws which be able to order all such matters as shall come unto the Court at all times when need shall require By the Statute of 37. Edw. 3. Cap. 18. Taliation was ordained in case the Suggestion to the King proved untrue Then 38. Edw. 3. Cap. 9. takes away Taliation and appoints Imprisonment till the King and Party grieved be satisfied In the Statutes of 17. Ric. 2. Cap. 6. and 15. Hen. 6. Cap. 4. Dammages and Expences are awarded in such Cases In all these Statutes it is necessarily implyed that Complaints upon just Causes might be moved before the King and His Council At a Parliament at Glocester 2. Ric. 2. when the Commons made Petition That none might be forced by Writ out of Chancery or by Privy Seal to appear before the King and His Council to answer touching Free-hold The King's Answer was He thought it not reasonable that He should be constrained to send for His Leiges upon Causes reasonable And albeit He did not purpose that such as were sent for should answer Finalment peremptorily touching their Free-hold but should be remanded for Tryal thereof as Law required Provided always saith he that at the Suit of the Party where the King and His Council shall be credibly informed that because of Maintenance Oppression or other Out-rages the Common Law cannot have duly her Course in such case the Council for the Party Also in the 13 th year of his Reign when the Commons did pray that upon pain of Forfeiture the Chancellour or Council of the King should not after the end of the Parliament make any Ordinance against the Common Law the King answered Let it be used as it hath been used before this time so as the Regality of the King be saved for the King will save His Regalities as His Progenitors have done Again in the 4 th year of Henry the Fourth when the Commons complained against Subpoena's and other Writs grounded upon false Suggestions the King answered That He would give in Charge to His Officers that they should abstain more than before time they had to send for His Subjects in that manner But yet saith He it is not Our Intention that Our Officers shall so abstain that they may not send for Our Subjects in Matters and Causes necessary as it hath been used in the time of Our Good Progenitors Likewise when for the same Cause Complaint was made by the Commons Anno 3. Hen. 5. the King's Answer was Le Roy s'advisera The King will be advised which amounts to a Denyal for the present by a Phrase peculiar for the Kings denying to pass any Bill that hath passed the Lords and Commons These Complaints of the Commons and the Answers of the King discover That such moderation should be used that the course of the common Law be ordinarily maintained lest Subjects be convented before the King and His Council without just cause that the Proceedings of the Council-Table be not upon every slight Suggestion nor to determine finally concerning Free hold of Inheritance And yet that upon cause reasonable upon credible Information in matters of weight the King's Regallity or Prerogative in sending for His Subjects be maintain'd as of Right it ought and in former times hath been constantly used King Edward the First finding that Bogo de Clare was discharged of an Accusation brought against him in Parliament for that some formal Imperfections were found in the Complaint commanded him nevertheless to appear before Him and His Council ad faciendum recipiendum quod per Regem ejus Concilium fuerit faciendum and so proceeded to an Examination of the whole Cause 8. Edw. 1. Edward the Third In the Star-Chamber which was the Ancient Council-Chamber at Westminster upon the Complaint of Elizabeth Audley commanded Iames Audley to appear before Him and His Council and determin'd a Controversie between them touching Lands contain'd in the Covenants of her Joynture Rot. Claus. de an 41. Ed. 3. Henry the Fifth in a Suit before Him and His Council for the Titles of the Mannors of Seere and S. Laurence in the Isle of Thenet in Kent took order for the Sequestring the Profits till the Right were tryed as well for avoiding the breach of the Peace as for prevention of waste and spoil Rot. Patin Anno 6. Hen. 5. Henry the Sixth commanded the Justices of the Bench to stay the Arraignment of one Verney of London till they had other commandment from Him and His Council because Verney being indebted to the King and others practised to be Indicted of Felony wherein he might have his Clergy and make his Purgation of intent to defraud his Creditors 34. Hen. 6. Rot. 37. in Banco Regis Edward the Fourth and His Council in the Star-Chamber heard the Cause of the Master and Poor Brethren of S. Leonards in York complaining that Sir Hugh Hastings and others withdrew from them a great part of their living which consisted chiefly upon the having of a Thrave of Corn of every Plough-Land within the Counties of York Westmerland Cumberland and Lancashire Rot. Paten de Anno 8. Ed. 4. Part 3. Memb. 14. Henry the Seventh and His Council in the Star-Chamber decreed That Margery and Florence Becket should Sue no further in their Cause against Alice Radley widow for Lands in Wolwich and Plumstead in Kent for as much as the Matter had been heard first before the Council of King Ed. 4. after that before the President of the Requests of that King Hen. 7. and then lastly before the Council of the said King 1. Hen. 7. What is hitherto affirmed of the Dependency and Subjection of the Common Law to the Soveraign Prince the same may be said as well of all Statute Laws for the King is the sole immediate Author Corrector and Moderator of them also so that neither of these two kinds of Laws are or can be any Diminution of that Natural Power which Kings have over their People by right of Father-hood but rather are an Argument to strengthen the truth of it for Evidence whereof we may in some points consider the nature of Parliaments because in them only all Statutes are made 12. Though the Name of Parliament as Mr. Cambden saith be of no great Antiquity but brought in out of France yet our Ancestors the English Saxons had a Meeting which they
the 12th Chapter of the Statute of Glocester was Signed under the Great Seal and sent to the Justices of the Bench after the manner of a Writ Patent with a certain Writ closed dated by the Kings Hand at Westminster requiring that they should do and Execute all and every thing contained in it although the same do not accord with the Statute of Glocester in all things The Statute of Rutland is the Kings Letters to his Treasurer and Barons of his Exchequer and to his Chamberlain The Statute of Circumspecte Agis runs The King to his Iudges sendeth Greeting There are many other Statutes of the same Form and some of them which run only in the Majestique Terms of The King Commands or The King Wills or Our Lord the King hath established or Our Lord the King hath ordained or His Especial Grace hath granted Without mention of Consent of the Commons or People insomuch that some Statutes rather resemble Proclamations than Acts of Parliament And indeed some of them were no other than meer Proclamations as the Provisions of Merton made by the King at an Assembly of the Prelates and Nobility for the Coronation of the King and his Queen Eleanor which begins Provisum est in Curia Domini Regis apud Merton Also a Provision was made 19. Hen. 3. de Assisa ultimae Praesentationis which was continued and allowed for Law until Tit. West 2. an 13. Ed. 1. cap. 5. which provides the contrary in express words This Provision begins Provisum fuit coram Dom. Rege Archiepiscopis Episcopis Baronibus quod c. It seems Originally the difference was not great between a Proclamation and a Statute this latter the King made by Common Council of the Kingdom In the former he had but the advice only of his great Council of the Peers or of his Privy Council only For that the King had a great Council besides his Parliament appears by a Record of 5. Hen. 4. about an Exchange between the King and the Earl of Northumberland Whereby the King promiseth to deliver to the Earl Lands to the value by the advice of Parliament or otherwise by the Advice of his Grand Council and other Estates of the Realm which the King will Assemble in case the Parliament do not meet We may find what Judgment in later times Parliaments have had of Proclamations by the Statute of 31. of Hen. Cap. 8. in these Words Forasmuch as the King by the advice of his Council hath set forth Proclamations which obstinate Persons have contemned not considering what a King by his Royal Power may do Considering that sudden Causes and Occasions fortune many times which do require speedy Remedies and that by abiding for a Parliament in the mean time might happen great prejudice to ensue to the Realm And weighing also that his Majesty which by the Kingly and Regal Power given him by God may do many things in such Cases should not be driven to extend the Liberties and Supremity of his Regal Power and Dignity by willfulness of froward Subjects It is therefore thought fit that the King with the Advice of his Honourable Council should set forth Proclamations for the good of the People and defence of his Royal Dignity as necessity shall require This Opinion of a House of Parliament was confirmed afterwards by a Second Parliament and the Statute made Proclamations of as great validity as if they had been made in Parliament This Law continued until the Government of the State came to be under a Protector during the Minority of Edward the Sixth and in his first year it was Repealed I find also that a Parliament in the 11th year of Henry the Seventh did so great Reverence to the Actions or Ordinances of the King that by Statute they provided a Remedy or Means to levy a Benevolence granted to the King although by a Statute made not long before all Benevolences were Damned and Annulled for ever Mr. Fuller in his Arguments against the proceedings of the High-Commission Court affirms that the Statute of 2. H. 4. cap. 15. which giveth Power to Ordinaries to Imprison and set Fines on Subjects was made without the Assent of the Commons because they are not mentioned in the Act. If this Argument be good we shall find very many Statutes of the same kind for the Assent of the Commons was seldom mentioned in the Elder Parliaments The most usual Title of Parliaments in Edward the 3d Rich. 2. the three Henries 4. 5. 6. in Edw. 4. and Rich. 3. days was The King and his Parliament with the Assent of the Prelates Earles and Barons and at the Petition or at the special Instance of the Commons doth Ordain The same Mr. Fuller saith that the Statute made against Lollards was without the Assent of the Commons as appears by their Petition in these Words The Commons beseech that whereas a Statute was made in the last Parliament c. which was never Assented nor Granted by the Commons but that which was done therein was done without their Assent 17. How far the Kings Council hath directed and swayed in Parliament hath in part appeared by what hath been already produced For further Evidence we may add the Statute of Westminster The first which saith These be the Acts of King Edward 1. made at His First Parliament General by His Council and by the assent of Bishops Abbots Priors Earles Barons and all the Commonalty of the Realm c. The Statute of Bygamy saith In presence of certain Reverend Fathers Bishops of England and others of the Kings Council for as much as all the King's Council as well Iustices as others did agree that they should be put in Writing and observed The Statute of Acton Burnell saith The King for Himself and by His Council hath Ordained and Established In Articuli super Chartas when the Great Charter was confirmed at the Request of his Prelates Earls and Barons we find these Passages 1. Nevertheless the King and His Council do not intend by reason of this Statute to diminish the Kings Right c. 2. And notwithstanding all these things before-mentioned or any part of them both the King and his Council and all they that were present at the making of this Ordinance will and intend that the Right and Prerogative of his Crown shall be saved to him in all things Here we may see in the same Parliament the Charter of the Liberties of the Subjects confirmed and a saving of the Kings Prerogative Those times neither stumbled at the Name nor conceived any such Antipathy between the Terms as should make them incompatible The Statute of Escheators hath this Title At the Parliament of our Soveraign Lord the King by his Council it was agreed and also by the King himself commanded And the Ordinance of Inquest goeth thus It is agreed and Ordained by the King himself and all his Council The Statute made at York 9. Ed. 3. saith Whereas the Knights Citizens and Burgesses desired