and in the 3. Chap. Our Lord the King hath ordained that a Woman after the death of her Husband shall recover by a Writ of Entry The Stat. of Quo Warranto saith Our Lord the King at his Parliament of his special Grace and for Affection which he beareth to his Prelates Earls and Barons and others hath granted that they that have Liberties by Prescription shall enjoy them In the Stat. de finibus Levatis the Kings words are We intending to provide Remedy in our Parliament have ordained c. 28 Edw. 1. c. 5. The King wills that the Chancellor and the Justices of the Bench shall follow Him so that he may have at all times some near unto him that be learned in the Laws and in Chap. 24. the words are Our Lord the King after full Conference and Debate had with his Earls Barons Nobles and other Great men by their whole Consent hath ordained c. The Stat. de Tallagio if any such Statute there be speaks in the Kings Person No Officer of Ours No Tallage shall be taken by Us We will and Grant 1 Edw. 2. begins thus Our Lord the King willeth and Commandeth The Stat. of 9. the same King saith Our Lord the King by the Assent of the Prelates Earls and other great States hath Ordained 10 Edw. 2. It is provided by our Lord the King and his Justices The Stat. of Carlile saith We have sent our Command in writing firmly to be observed 1 Edw. 3. begins thus King Edw. 3. at his Parliament at the request of the Commonalty by their Petition before him and his Councel in Parliament hath granted c. and in the 5th Chap. The King willeth that no man be charged to arm himself otherwise than he was wont 5 Ed. 3. Our Lord the King at the Request of his People hath established these things which He Wills to be kept 9. Of the same King there is this Title Our Lord the King by the Assent c. and by the Advice of his Councel being there hath ordained c. In his 10. year it is said Because Our Lord King Edw. 3. hath received by the Complaint of the Prelates Earls Barons also at the shewing of the Knights of the Shires and his Commons by their Petition put in his Parliament c. Hath ordained by the Assent c. at the Request of the said Knights and Commons c. The same year in another Parliament you may find these be our Articles accorded by Our Lord the King with the Assent c. at the Request of the Knights of the Shires and the Commons by their Petition put in the said Parliament In the year-book 22 Edw. 3.3 pl. 25. It is said The King makes the Laws by the Assent of the Peers and Commons and not the Peers and Commons The Stat. of 1 Ric. 2. hath this Beginning Richard the 2. by the Assent of the Prelates Dukes Earls and Barons and at the Instance and special Request of the Commons Ordained There being a Statute made 5 Ric. 2. c. 5. against Lollards in the next year the Commons Petition Him Supplient les Commons que come un estatute fuit fait c. The Commons beseech that whereas a Statute was made in the last Parliament c. which was never Assented to or Granted by the Commons but that which was done therein was done without their Assent In this Petition the Commons acknowledge it a Statute and so call it though they assented not to it 17 Rich. 2. nu 44. The Commons desire some pursuing to make a Law which they conceive hurtful to the Commonwealth that His Majesty will not pass it As for the Parliaments in Hen. 4. Hen. 5. Hen. 6. Edw. 4. and Rich. 3. Reigns the most of them do agree in this one Title Our Lord the King by the Advice and Assent of his Lords and at the special Instance and Request of the Commons hath ordained The Precedents in this Point are so numerous that it were endless to cite them The Statutes in Hen. 7. days do for the most part agree both in the Titles and Bodies of the Acts in these words Our Lord the King by the Assent of the Lords Spiritual and Temporal and the Commons in Parliament Assembled and by the Authority of the same hath ordained Unto this King's time we find the Commons very often petitioning but not petitioned unto The first Petition made to the Commons that I meet with among the Statutes is but in the middle of this King Hen. 7. Reign which was so well approved that the Petition it self is turned into a Statute It begins thus To the Right Worshipful Commons in this present Parliament Assembled Sheweth to your Discreet Wisdoms the Wardens of the Fellowship of the Craft of Vpholsters within London c. This Petition though it be directed to the Commons in the Title yet the Prayer of the Petition is turned to the King and not to the Commons for it Concludes Therefore it may please the Kings Highness by the Advice of the Lords Spiritual and Temporal and his Commons in Parliament c. Next for the Statutes of Hen. 8. they do most part agree both in their Titles and the Bodies of the Acts with those of his Father King Hen. 7. Lastly in the Statutes of Edw. the 6. Qu. Mary Qu. Elizabeth K. James and of our Sovereign Lord the King that now is there is no mention made in their Titles of any Assent of Lords and Commons or of any Ordaining by the King but only in general Terms it is said Acts made in Parliament or thus At the Parliament were Enacted yet in the Bodies of many of these Acts of these last Princes there is sometimes Mention made of Consent of Lords and Commons in these or the like words It is Enacted by the King with the Assent of the Lords and Commons Except only in the Statutes of our Lord King Charles wherein there is no mention that I can find of any Consent of the Lords and Commons or Ordaining by the King But the words are Be it Enacted by Authority of Parliament or else Be it Enacted by the King the Lords Spiritual and Temporal and Commons as if they were all Fellow-Commissioners Thus it appears that even till the time of K. Ed. 6. who lived but in our Fathers days it was punctually expressed in every Kings Laws that the Statutes and Ordinances were made by the King And withal we may see by what degrees the Styles and Titles of Acts of Parliament have been varied and to whose disadvantage The higher we look the more absolute we find the Power of Kings in Ordaining nor do we meet with at first so much as the Assent or Advice of the Lords mentioned Nay if we cast our eye upon many Statutes of those that be of most Antiquity they will appear as if they were no Laws at all but as if they had been made only to teach us that the punishments
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 Bellarmine 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 but 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 somewhat 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 some Laws are now obsolete and out of use and the Practice quite contrary to what it was in Former Times as the Lord Chancellour 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 witness 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 speaks 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 supplied 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 Judgment therein and permits them to rectify whatsoever upon Tryal thy find to be better than the Written Laws Besids 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 King's 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 Judicare si Solus ad id sufficere possit c. The King and no body else ought to give Judgment if he were able since by virtue 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 Justices 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 John Briton Bishop of Hereford We will saith he that Our own Jurisdiction be above all the Jurisdictions 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 Judgements as do appertain without other Process wheresoever we know the Right Truth as Judges 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
the King a Subject Councel loseth the name of Counsel and becomes a Command if it put a Necessity upon the King to follow it such Imperious Councels make those that are but Counsellors in name to be Kings in Fact and Kings themselves to be but Subjects We read in Sir Robert Cotton that towards the end of the Saxons and the first times of the Norman Kings Parliaments stood in Custom-grace fixed to Easter Whitsuntide and Christmas and that at the Kings Court or Palace Parliaments sate in the Presence or Privy Chamber from whence he infers an Improbability to believe the King excluded His own Presence and unmannerly for Guests to bar him their Company who gave them their Entertainment And although now a-days the Parliament sit not in the Court where the Kings houshold remains yet still even to this day to shew that Parliaments are the Kings Guests the Lord Steward of the Kings Houshold keeps a standing Table to entertain the Peers during the sitting of Parliament and he alone or some from or under him as the Treasurer or Comptroller of the Kings Houshold takes the Oaths of the Members of the House of Commons the first day of the Parliament Sir Richard Scroop Steward of the Houshold of our Sovereign Lord the King by the Commandment of the Lords sitting in full Parliament in the Great Chamber put J. Lord Gomeniz and William Weston to answer severally to Accusations brought against them The Necessity of the King's Presence in Parliament appears by the Desire of Parliaments themselves in former times and the Practice of it Sir Robert Cotton proves by several Precedents whence he concludes that in the Consultations of State and Decisions of private Plaints it is clear from all times the King was not only present to advise but to determine also Whensoever the King is present all Power of judging which is derived from His ceaseth The Votes of the Lords may serve for matter of Advice the final Judgment is only the Kings Indeed of late years Queen Mary and Queen Elizabeth by reason of their Sex being not so fit for publick Assemblies have brought them out of Use by which means it is come to pass that many things which were in former times acted by Kings themselves have of late been left to the Judgment of the Peers who in Quality of Judges extraordinary are permitted for the Ease of the King and in his absence to determine such matters as are properly brought before the King Himself sitting in Person attended with His great Councel of Prelates and Peers And the Ordinances that are made there receive their Establishment either from the Kings Presence in Parliament where his Chair of State is commonly placed or at least from the Confirmation of Him who in all Courts and in all Causes is Supreme Judge All Judgment is by or under Him it cannot be without much less against his Approbation The King only and none but He if he were able should judge all Causes saith Bracton that ancient Chief Justice in Hen. 3. time An ancient Precedent I meet with cited by Master Selden of a judicious Proceeding in a Criminal Cause of the Barons before the Conquest wherein I observe the Kings Will was that the Lords should be Judges in the Cause wherein Himself was a Party and He ratified their Proceeding The case was thus Earl Godwin having had a Trial before the Lords under King Hardicanute touching the Death of Alfred Son to King Ethelbert and Brother to him who was afterward Edward the Confessor had fled out of England and upon his Return with hope of Edward the Confessor's Favour he solicited the Lords to intercede for him with the King who consulting together brought Godwin with them before the King to obtain his Grace and Favour But the King presently as soon as he beheld him said Thou Traytor Godwin I do appeal thee of the Death of my Brother Alfred whom thou hast most Trayterously slain Then Godwin excusing it answered My Lord the King may it please your Grace I neither betrayed nor killed your Brother whereof I put my self upon the Judgment of your Court Then the King said You noble Lords Earls and Barons of the Land who are my Liege men now gathered here together and have heard my Appeal and Godwin's Answer I will that in this Appeal between us ye decree right Judgment and do true Justice The Earls and Barons treating of this among themselves were of differing Judgments some said that Godwin was never bound to the King either by Homage Service or Fealty and therefore could not be his Traytor and that he had not slain Alfred with his own hands others said that neither Earl nor Baron nor any other Subject of the King could wage his war by Law against the King in his Appeal but must wholly put himself into the King's Mercy and offer competent Amends Then Leofric Consul of Chester a good man before God and the World said Earl Godwin next to the King is a man of the best Parentage of all England and he cannot deny but that by his Counsel Alfred the King's Brother was slain therefore for my part I consider that He and his Son and all we twelve Earls who are his Friends and Kinsmen do go humbly before the King laden with so much Gold and Silver as each of us can carry in our Arms offering him That for his Offence and humbly praying for Pardon And he will pardon the Earl and taking his Homage and Fealty will restore him all his Lands All they in this form lading themselves with Treasure and coming to the King did shew the Manner and Order of their Consideration to which The King not willing to contradict did ratifie all that they had judged 23 Hen. 2. In Lent there was an Assembly of all the Spiritual and Temporal Barons at Westminster for the determination of that great Contention between Alfonso King of Castile and Sancho King of Navarre touching divers Castles and Territories in Spain which was by comprise submitted to the Judgment of the King of England And The King consulting with his Bishops Earls and Barons determined it as he saith Himself in the first Person in the Exemplification of the Judgment 2. Of King John also that great Controversie touching the Barony that William of Moubray claimed against William of Stutvil which had depended from the time of King Hen. 2. was ended by the Council of the Kingdom and Will of the King Concilio Regni Voluntate Regis The Lords in Parliament adjudge William de Weston to Death for surrendring Barwick Castle but for that Our Lord the King was not informed of the manner of the Judgment the Constable of the Tower Allen Bruxal was commanded safely to keep the said William until he had other Commandment from our Lord the King 4 Ric. 2. Also the Lords adjudged John Lord of Gomentz for surrendring the Towns and Castles of Ardee and for
Treason and he calls the Statute of 11 Hen. 7. an unjust and strange Act. But it may be Mr. Pryn will confess that Laws chosen by the Lords and Commons may be unjust so that the Lords and Commons themselves may be the Judges of what is just or unjust But where the King by Oath binds his Conscience to protect just Laws it concerns him to be satisfied in his own Conscience that they be just and not by an implicit Faith or blind Obedience no man can be so proper a Judge of the Justness of Laws as he whose Soul must lye at the Stake for the Defence and Safeguard of them Besides in this very Oath the King doth swear to do equal and right Justice and Discretion in Mercy and Truth in all His Judgments facies fieri in omnibus judiciis tuis aequam rectam justitiam discretionem in Misericordia Veritate if we allow the King Discretion and Mercy in his Judgments of Necessity he must judge of the Justness of the Laws Again the clause of the Oath quas vulgus elegerit doth not mention the Assenting unto or granting any new Laws but of holding protecting and strengthening with all his Might the just Laws that were already in Being there were no need of Might or Strength if assenting to new Laws were there meant Some may wonder why there should be such Labouring to deny the King a negative Voice since a negative Voice is in it self so poor a thing that if a man had all the Negative Voices in the Kingdom it would not make him a King nor give him Power to make one Law a Negative Voice is but a privative Power that is no Power at all to do or act any thing but a Power only to hinder the Power of another Negatives are of such a malignant or destructive Nature that if they have nothing else to destroy they will when they meet destroy one another which is the reason why two Negatives make an Affirmative by destroying the Negation which did hinder the Affirmation A King with a Negative Voice only is but like a Syllogism of pure negative Propositions which can conclude nothing It must be an Affirmative Voice that makes both a King and a Law and without it there can be no imaginable Government The Reason is plain why the Kings Negative Voice is so eagerly opposed for though it give the King no Power to do any thing yet it gives him a Power to hinder others though it cannot make him a King yet it can help him to keep others from being Kings For Conclusion of this Discourse of the negative Voice of the King I shall oppose the Judgment of a Chief Justice of England to the Opinion of him that calls himself an utter Barrister of Lincolns Inn and let others judge who is the better Lawyer of the two the words are Bracton's but concern Mr. Pryn to lay them to heart Concerning the Charters and Deeds of Kings the Justices nor private men neither ought nor can dispute nor yet if there rise a Doubt in the Kings Charter can they interpret it and in doubtful and obscure Points or if a word contain two Senses the Interpretation and Will of our Lord the King is to be expected seeing it is His part to interpret who makes the Charter full well Mr. Pryn knows that when Bracton writ the Laws that were then made and strived for were called the Kings Charters as Magna Charta Charta de Foresta and others so that in Bracton's Judgment the King hath not only a Negative Voice to hinder but an Affirmative to make a Law which is a great deal more than Master Pryn will allow him Not only the Law-maker but also the sole Judge of the People is the King in the Judgment of Bracton these are his words Rex non alius debet judicare si solus ad id sufficere possit the King and no other ought to judge if He alone were able Much like the words of Bracton speaketh Briton where after that he had shewed that the King is the Vice-roy of God and that he hath distributed his Charge into sundry portions because He alone is not sufficient to hear all Complaints of his People then he addeth these words in the Person of the King Nous volons que nostre jurisdiction soit sur touts Jurisdictions c. We Will that Our Jurisdiction be above all the Jurisdictions 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 or cause to be yielded such Judgments as do appertain without other Process wheresoever we know the right Truth as Judges Neither was this to be taken saith Mr. Lambard to be meant of the Kings Bench where there is only an imaginary presence of His Person but it must necessarily be understood of a Jurisdiction remaining and left in the Kings Royal Body and Breast distinct from that of His Bench and other ordinary Courts because he doth immediately after severally set forth by themselves as well the Authority of the Kings Bench as of the other Courts And that this was no new-made Law Mr. Lambard puts us in mind of a Saxon Law of King Edgar's Nemo in lite Regem appellato c. Let no man in Suit appeal unto the King unless he cannot get Right at home but if that Right be too Heavy for him then let him go to the King to have it eased By which it may evidently appear that even so many years ago there might be Appellation made to the Kings Person whensoever the Cause should enforce it The very like Law in Effect is to be seen in the Laws of Canutus the Dane sometimes King of this Realm out of which Law Master Lambard gathers that the King himself had a High Court of Justice wherein it seemeth He sate in Person for the words be Let him not seek to the King and the same Court of the King did judge not only according to meer Right and Law but also after Equity and good Conscience For the Close I shall end with the Suffrage of our late Antiquary Sir Henry Spelman in his Glossary he saith Omnis Regni Justitia solius Regis est c. All Justice of the Kingdom is only the King 's and He alone if He were able should administer it but that being impossible He is forced to delegate it to Ministers whom he bounds by the limits of the Laws the positive Laws are only about Generals in particular Cases they are sometimes too strict sometimes too remiss and so oft Wrong instead of Right will be done if we stand to strict Law also Causes hard and difficult daily arise which are comprehended in no Law-books in those there is a necessity of running back to the King the Fountain of Justice and the Vicegerent of God himself who in the Commonwealth of the Jews took such Causes to His own cognisance and left
Government as the former rule doth from limitation by Laws Thus in brief I have traced Aristotle in his crabbed and broken passages touching diversities of Kings where he first finds but four sorts and then he stumbles upon a fifth and in the next Chapter contents himself only with two sorts of Kings but in the Chapter following concludes with one which is the true perfect Monarch who rules all by his own will in all this we find nothing for a regulated or mixed Monarchy but against it Moreover whereas the Author of the Treatise of Monarchy affirms it as a prime Principle That all Monarchies except that of the Jews depend upon humane designment when the consent of a Society of men and a fundamental Contract of a Nation by original or radical Constitution confers Power he must know that Aristotle searching into the Original of Government shews himself in this point a better Divine than our Author and as if he had studied the Book of Genesis teacheth That Monarchies fetch their Pedigree from the Right of Fathers and not from the Gift or Contract of People his words may thus be Englished At the first Cities were governed by Kings and so even to this day are Nations also for such as were under Kingly Government did come together for every House is governed by a King who is the eldest and so also Colonies are governed for kindred sake And immediately before he tells us That the first Society made of many Houses is a Village which naturally seems to be a Colony of a House which some call Foster-brethren or Children and Childrens Children So in conclusion we have gained Aristotle's judgment in three main and essential points 1. A King according to Law makes no kind of Government 2. A King must rule according to his own will 3. The Original of Kings is from the right of Fatherhood What Aristotle's judgment was two thousand years since is agreeable to the Doctrine of the great modern Politician Bodin Hear him touching limited Monarchy Vnto Majesty or Soveraignty saith he belongeth an absolute power not subject to any Law Chief power given unto a Prince with condition is not properly Soveraignty or power absolute except such conditions annexed to the Soveraignty be directly comprehended within the Laws of God and Nature Albeit by the sufferance of the King of England controversies between the King and his People are sometimes determined by the high Court of Parliament and sometimes by the Lord Chief Justice of England yet all the Estates remain in full subjection to the King who is no ways bound to follow their advice neither to consent to their requests It is certain that the Laws Priviledges and Grants of Princes have no force but during their life if they be not ratified by the express consent or by sufferance of the Prince following especially Privileges Much less should a Prince be bound unto the Laws he maketh himself for a man may well receive a Law from another man but impossible it is in nature for to give a Law unto himself no more than it is to command a mans self in a matter depending of his own will The Law saith Nulla obligatio consistere potest quae à voluntate promittentis statum capit The Soveraign Prince may derogate unto the Laws that he hath promised and sworn to keep if the equity thereof be ceased and that of himself without the consent of his Subjects The Majesty of a true Soveraign Prince is to be known when the Estates of all the People assembled in all humility present their requests and supplications to their Prince without having power in any thing to command determine or give voice but that that which it pleaseth the King to like or dislike to command or bid is holden for Law wherein they which have written of the duty of Magistrates have deceived themselves in maintaining that the power of the People is greater than the Prince a thing which causeth oft true Subjects to revolt from their obedience to their Prince and ministreth matter of great troubles in Commonwealths of which their opinion there is neither reason nor ground for if the King be subject unto the assemblies and Decrees of the people he should neither be King nor Soveraign and the Commonwealth neither Realm nor Monarchy but a meer Aristocracy So we see the principal point of Soveraign Majesty and absolute power to consist principally in giving Laws unto the Subjects in general without their consent Bodin de Rep. l. 1. c. 8. To confound the state of Monarchy with the Popular or Aristocratical estate is a thing impossible and in effect incompatible and such as cannot be imagined for Soveraignty being of it self indivisible how can it at one and the same time be divided betwixt one Prince the Nobility and the people in common The first mark of Soveraign Majesty is to be of power to give Laws and to command over them unto the Subjects and who should those Subjects be that should yield their obedience to the Law if they should have also power to make the Laws who should he be that could give the Law being himself constrained to receive it of them unto whom himself gave it so that of necessity we must conclude That as no one in particular hath the power to make the Law in such a State that then the State must needs be a State popular Never any Commonwealth hath been made of an Aristocracy and popular Estate much less of the three Estates of a Commonweal Such states wherein the rights of Soveraignty are divided are not rightly to be called Commonweals but rather the corruption of Commonweals as Herodotus has most briefly but truly written Commonweals which change their state the Sovereign right power of them being divided find no rest from Civil wars and broils till they again recover some one of the three Forms and the Soveraignty be wholly in one of the states or other Where the rights of the Soveraignty are divided betwixt the Prince his Subjects in that confusion of state there is still endless stirs and quarrels for the superiority until that some one some few or all together have got the Soveraignty Id. lib. 2. c. 1. This Judgment of Bodin's touching Limited and Mixed Monarchy is not according to the mind of our Author nor yet of the Observator who useth the strength of his Wit to overthrow Absolute and Arbitrary Government in this Kingdom and yet in the main body of his discourse le ts fall such Truths from his Pen as give a deadly wound to the Cause he pleads for if they be indifferently weighed and considered I will not pick a line or two here and there to wrest against him but will present a whole Page of his Book or more together that so we may have an entire prospect upon the Observators mind Without Society saith the Observator men could not live without Laws men could not be sociable and without Authority
not then divided into Shires On the contrary there be of our Historians who do affirm that Henry the First caused the Commons first to be Assembled by Knights and Burgesses of their own Appointment for before his Time only certain of the Nobility and Prelates of the Realm were called to Consultation about the most Important Affairs of State If this Assertion be true it seems a meer matter of Grace of this King and proves not any Natural Right of the People Originally to be admitted to chuse their Knights and Burgesses of Parliament though it had been more for the Honour of Parliaments if a King whose Title to the Crown had been better had been Author of the Form of it because he made use of it for his unjust Ends. For thereby he secured himself against his Competitor and Elder Brother by taking the Oaths of the Nobility in Parliament and getting the Crown to be setled upon his Children And as the King made use of the People so they by Colour of Parliament served their own turns for after the Establishment of Parliaments by strong hand and by the Sword they drew from him the Great Charter which he granted the rather to flatter the Nobility and People as Sir Walter Raleigh in his Dialogue of Parliaments doth affirm in these words The great Charter was not Originally granted Legally and Freely for Henry the First did but Vsurp the Kingdom and therefore the better to assure himself against Robert his Elder Brother he flattered the Nobility and People with their Charters yea King John that Confirmed them had the like respect for Arthur Duke of Britain was the undoubted Heir of the Crown upon whom King John Vsurped and so to conclude these Charters had their Original from Kings de facto but not de jure the Great Charter had first an obscure Birth by Vsurpation and was secondly fostered and shewed to the World by Rebellion 15. A third consideration must be that in the former Parliaments instituted and continued since King Henry the First 's time is not to be found the Usage of any natural Liberty of the People for all those Liberties that are claimed in Parliament are the Liberties of Grace from the King and not the Liberties of Nature to the People for if the Liberty were natural it would give Power to the Multitude to assemble themselves When and Where they please to bestow Soveraignty and by Pactions to limit and direct the Exercise of it Whereas the Liberties of Favour and Grace which are claimed 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 King's Writs appoint The prudent King Edward the First summoned always those Barons of ancient Families that were most wise to his Parliament but omitted 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 Freeholders in the Counties and Freemen in the Cities and Burroughs yet in the City of Westminster all the House-holders though they be neither Freemen nor Free-holders have Voices in their Election of Burgesses Also during the time of Parliament those Privileges 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 a-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 Privileges 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 Supream Judg 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
and the Bishop of Rochester were restored to the Possession of Detling and other Lands which Odo had withholden There is mention of a Parliament held under the same King William the Conquerour wherein all the Bishops of the Land Earls and Barons made an Ordinance touching the Exemption of the Abby of Bury from the Bishops of Norwich In the tenth year of the Conquerour Episcopi Comites Barones regni regià potestate ad universalem Synodum pro causis audiendis tractandis convocati saith the Book of Westminster In the 2 year of William 2. there was a Parliament de cunctis regni Principibus another w ch had quosque regni Proceres All the Peers of the Kingdom In the seventh year was a Parliament at Rockingham-Castle in Northamptonshire Episcopis Abbatibus cunctisque regni Principibus una coeuntibus A year or two after the same King de statu regni acturus c. called thither by the Command of his Writ the Bishops Abbots and all the Peers of the Kingdom At the Coronation of Hen. 1. All the People of the Kingdom of England were called and Laws were then made but it was Per Commune Concilium Baronum meorum by the Common Councel of my Barons In his 3 d. year the Peers of the Kingdom were called without any mention of the Commons and another a while after consensu Comitum Baronum by the consent of Earls and Barons Florentius Wigorniensis saith these are Statutes which Anselme and all the other Bishops in the Presence of King Henry by the assent of his Barons ordained and in his tenth year of Earls and Peers and in his 23. of Earls and Barons In the year following the same King held a Parliament or great Councel with His Barons Spiritual and Temporal King Hen. 2. in his tenth year had a great Councel or Parliament at Clarendon which was an Assembly of Prelates and Peers 22 Hen. 2. saith Hovenden was a great Councel at Nottingham and by the Common Councel of the Arch-bishops Bishops Earls and Barons the Kingdom was divided into six parts And again Hovenden saith that the same King at Windsor apud Windeshores Communi Concilio of Bishops Earls and Barons divided England into four Parts And in his 21 Year a Parliament at Windsor of Bishops Earls and Barons And another of like Persons at Northampton King Richard 1. had a Parliament at Nottingham in his fifth year of Bishops Earls and Barons This Parliament lasted but four days yet much was done in it the first day the King disseiseth Gerard de Canvil of the Sherifwick of Lincoln and Hugh Bardolph of the Castle and Sherifwick of York The second day he required Judgment against his Brother John who was afterwards King and Hugh de Novant Bishop of Coventry The third day was granted to the King of every Plow-land in England 2 s. He required also the third part of the Service of every Knights Fee for his Attendance into Normandy and all the Wool that year of the Monks Cisteaux which for that it was grievous and unsupportable they sine for Money The last day was for Hearing of Grievances and so the Parliament brake up And the same year held another at Northampton of the Nobles of the Realm King John in his fifth year He and his Great men met Rex Magnates convenerunt and the Roll of that year hath Commune Concilium Baronum Meorum the Common Councel of my Barons at Winchester In the sixth year of King Henry 3. the Nobles granted to the King of every Knights Fee two Marks in Silver In the seventh year he had a Parliament at London an Assembly of Barons In his thirteenth year an Assembly of the Lords at Westminster In his fifteenth year of Nobles both Spiritual and Temporal M. Par. saith that 20 H. 3. Congregati sunt Magnates ad colloquium de negotiis regni tractaturi the Great men were called to confer and treat of the Business of the Kingdom And at Merton Our Lord the King granted by the Consent of his Great men That hereafter Vsury should not run against a Ward from the Death of his Ancestor 21 Hen. 3. The King sent his Royal Writs commanding all belonging to His Kingdom that is to say Arch-bishops Bishops Abbots and Priors installed Earls and Barons that they should all meet at London to treat of the King's Business touching the whole Kingdom and at the day prefixed the whole multitude of the Nobles of the Kingdom met at London saith Matt. Westminster In his 21 year At the Request and by the Councel of the Lords the Charters were confirmed 22 Hen. 3. At Winchester the King sent his Royal Writs to Arch-bishops Bishops Priors Earls and Barons to treat of Business concerning the whole Kingdom 32 Hen. 3. The King commanded all the Nobility of the whole Kingdom to be called to treat of the State of His Kingdom Matt. Westm ' 49 Hen. 3. The King had a Treaty at Oxford with the Peers of the Kingdom Matt. Westminster At a Parliament at Marlborough 55. Hen. 3. Statutes were made by the Assent of Earls and Barons Here the Place of Bracton Chief Justice in this Kings time is worth the observing and the rather for that it is much insisted on of late to make for Parliaments being above the King The words in Bracton are The King hath a Superiour God also the Law by which he is made King also his Court viz. the Earls and Barons The Court that was said in those days to be above the King was a Court of Earls and Barons not a word of the Commons or the representative Body of the Kingdom being any part of the Superiour Court Now for the true Sense of Bractons words how the Law and the Court of Earls and Barons are the Kings Superiours they must of Necessity be understood to be Superiours so far only as to advise and direct the King out of his own Grace and Good Will only which appears plainly by the Words of Bracton himself where speaking of the King he resolves thus Nec potest ei necessitatem aliquis imponere quod injuriam suam corrigat emendat cum superiorem non habeat nisi Deum satis ei erat ad poenam quod Dominum expectat ultorem Nor can any man put a necessity upon him to correct and amend his Injury unless he will himself since he hath no Superiour but God it will be sufficient Punishment for him to expect the Lord an Avenger Here the same man who speaking according to some mens Opinion saith the Law and Court of Earls and Barons are superiour to the King in this place tells us himself the King hath no Superiour but God the Difference is easily reconciled according to the Distinction of the School-men the King is free from the Coactive Power of Laws or Counsellors but may be subject to their Directive Power according to his own Will
that is God can only compel but the Law and his Courts may advise Him Rot. Parliament 1 Hen. 4. nu 79. the Commons expresly affirm Judgment in Parliament belongs to the King and Lords These Precedents shew that from the Conquest until a great part of Henry the Third's Reign in whose days it is thought the Writ for Election of Knights was framed which is about two hundred years and above a third part of the time since the Conquest to our days the Barons made the Parliament or Common Councel of the Kingdom under the name of Barons not only the Earls but the Bishops also were Comprehended for the Conquerour made the Bishops Barons Therefore it is no such great Wonder that in the Writ we find the Lords only to be the Counsellors and the Commons Called only to perform and consent to the Ordinances Those there be who seem to believe that under the word Barons anciently the Lords of Court-Barons were comprehended and that they were Called to Parliament as Barons but if this could be proved to have been at any time true yet those Lords of Court-Barons were not the representative Body of the Commons of England except it can be also proved that the Commons or Free-holders of the Kingdom chose such Lords of Court-Barons to be present in Parliament The Lords of Manors came not at first by Election of the People as Sir Edw. Coke treating of the Institution of Court-Barons resolves us in these words By the Laws and Ordinances of ancient Kings and especially of King Alfred it appeareth that the first Kings of this Realm had all the Lands of England in Demean and les grand Manors and Royalties they reserved to themselves and of the remnant they for the Defence of the Realm enfeoffed the Barons of the Realm with such Jurisdiction as the Court-Baron now hath Coke's Institutes First part Fol. 58. Here by the way I cannot but note that if the first Kings had all the Lands of England in Demean as Sir Edw. Coke saith they had And if the first Kings were chosen by the People as many think they were then surely our Fore-fathers were a very bountiful if not a prodigal People to give all the Lands of the whole Kingdom to their Kings with Liberty for them to keep what they pleased and to give the Remainder to their Subjects clogg'd and encumbred with a Condition to defend the Realm This is but an ill sign of a limited Monarchy by original Constitution or Contract But to conclude the former point Sir Edward Coke's Opinion is that in the ancient Laws under the name of Barons were comprised all the Nobility This Doctrine of the Barons being the Common Councel doth displease many and is denied as tending to the Disparagement of the Commons and to the Discredit and Confutation of their Opinion who teach that the Commons are assigned Councellors to the King by the People therefore I will call in Mr. Pryn to help us with his Testimony He in his Book of Treachery Disloyalty c. proves that before the Conquest by the Laws of Edward the Confessor cap. 17. The King by his Oaths was to do Justice by the Councel of the Nobles of his Realm He also resolves that the Earls and Barons in Parliament are above the King and ought to bridle him when he exorbitates from the Laws He further tells us the Peers Prelates have oft translated the Crown from the right Heir 1. Electing and Crowning Edward who was illegitimate and putting by Ethelred the right Heir after Edgars decease 2. Electing and Crowning Canutus a meer Foreigner in opposition to Edmund the right Heir to King Ethelred 3. Harold and Hardiknute both elected Kings successively without title Edmund and Alfred the right Heirs being dispossessed 4. The English Nobility upon the Death of Harold enacted that none of the Danish bloud should any more reign over them 5. Edgar Etheling who had best Title was rejected and Harold elected and crowned King 6. In the second and third year of Edw. 2. the Peers and Nobles of the Land seeing themselves contemned entreated the King to manage the Affairs of the Kingdom by the Councel of his Barons He gave his Assent and sware to ratifie what the Nobles ordained and one of their Articles was that He would thenceforward order all the Affairs of the Kingdom by the Councel of his Clergy and Lords 7. William Rufus finding the greatest part of the Nobles against him sware to Lanfranke that if they would choose him for King he would abrogate their over-hard Laws 8. The Beginning saith Mr. Pryn of the Charter of Hen. 1. is observable Henry by the Grace of God of England c. Know ye That by the Mercy of God and Common Councel of the Barons of the Kingdom I am Crowned King 9. Maud the Empress the right Heir was put-by the Crown by the Prelates and Barons and Stephen Earl of Mortain who had no good Title assembling the Bishop and Peers promising the amendment of the Laws according to all their Pleasures and Liking was by them all proclaimed King 10 Lewis of France Crowned King by the Barons instead of King John All these Testimonies from Mr. Pryn may satisfie that anciently the Barons were the Common Councel or Parliament of England And if Mr. Pryn could have found so much Antiquity and Proof for the Knights Citizens and Burgesses being of the Common Councel I make no doubt but we should have heard from him in Capital Characters but alas he meets not with so much as these Names in those elder Ages He dares not say the Barons were assigned by the People Councellors to the King for he tells us every Baron in Parliament doth represent his own Person and speaketh in behalf of himself alone but in the Knights Citizens and Burgesses are represented the Commons of the whole Realm therefore every one of the Commons hath a greater voice in Parliament than the greatest Earl in England Nevertheless Master Pryn will be very well content if we will admit and swallow these Parliaments of Barons for the representative Body of the Kingdom and to that Purpose he cites them or to no Purpose at all But to prove the Treachery and Disloyalty of Popish Parliaments Prelates and Peers to their Kings which is the main Point that Master Pryn by the Title of his Book is to make good and to prove As to the second Point which is That until the time of Hen. 1. the Commons were not called to Parliament besides the general Silence of Antiquity which never makes mention of the Commons Coming to Parliament until that time our Histories say before his time only certain of the Nobility were called to Consultation about the most important affairs of the State He caused the Commons also to be assembled by Knights Citizens and Burgesses of their own Appointment much to the same purpose writes Sir Walter Raleigh saying it is held that the Kings of England
but of late Use or Institution for in Edward the Sixth's days it was a Chappel of the Colledge of St. Stephen and had a Dean Secular Canons and Chorists who were the Kings Quire at his Palace at Westminster and at the dissolution were translated to the Kings Chappel at White-hall Also I read that Westminster-hall being out of Repair Ric. 2. caused a large House to be builded betwixt the Clock-tower and the Gate of the great old Hall in the midst of the Palace Court the House was long and large made of Timber covered with Tiles open on both sides that all might see and hear what was both said and done four thousand Archers of Cheshire which were the Kings own Guard attended on that House and had bouche a Court and 6 d. by the day Thirdly he saith The Commons are to chuse their Speaker but seeing after their Choice the King may refuse him the Vse is as in the conge d' eslire of a Bishop that the King doth name a Discreet Learned man whom the Commons Elect when the Commons have chosen the King may allow of his Excuse and Disallow him as Sir John Popham was saith his Margin Fourthly he informs us That the first day of the Parliament four Justices assistants and two Civilians Masters of the Chancery are appointed Receivers of Petitions which are to be delivered within six days following and six of the Nobility and two Bishops calling to them the Kings Learned Councel when need should be to be Tryers of the said Petitions whether they were reasonable good and necessary to be offered and propounded to the Lords He doth not say that any of the Commons were either Receivers or Tryers of Petitions nor that the Petitions were to be propounded to Them but to the Lords Fifthly he teacheth us that a Knight Citizen or Burgess cannot make a Proxy because he is Elected and Trusted by multitudes of People here a Question may be whether a Committee if it be Trusted to act any thing be not a Proxy since he saith the High Power of Parliament to be committed to a few is holden to be against the Dignity of Parliaments and that no such Commission ought to be granted Sixthly he saith The King cannot take notice of any thing said or done in the House of Commons but by the Report of the House Surely if the Commons sate with the Lords and the King were present He might take notice of what was done in His Presence And I read in Vowel that the old Vsage was that all the Degrees of Parliament sate together and every man that had there to speak did it openly before the King and his whole Parliament In the 35 Eliz. there was a Report that the Commons were against the Subsidies which was told the Queen whereupon Sir Henry Knivet said It should be a thing answerable at the Bar for any man to report any thing of Speeches or Matters done in the House Sir John Woolley liked the Motion of Secrecy except only the Queen from whom he said there is no reason to keep any thing And Sir Robert Cecil did allow that the Councel of the House should be secretly kept and nothing reported in malam partem But if the meaning be that they might not report any thing done here to the Queen he was altogether against it Seventhly He voucheth an Inditement or Information in the Kings Bench against 39 of the Commons for departing without Licence from Parliament contrary to the Kings Inhibition whereof six submitted to their Fines and Edmund Ployden pleaded he remained continually from the beginning to the end of the Parliament Note he did not plead to the Jurisdiction of the Court of Kings Bench but pleaded his constant Attendance in Parliament which was an acknowledgment and submitting to the Jurisdiction of that Court and had been an unpardonable betraying of the Privileges of Parliament by so learned a Lawyer if his Case ought only to be tryed in Parliament Eighthly he resolves that the House of Lords in their House have Power of Judicature and the Commons in their House and both Houses together He brings Records to prove the Power of Judicature of both Houses together but not of either of them by it self He cites the 33 Edw. 1. for the Judicature of both Houses together where Nicholas de Segrave was adjudged per Praelatos Comites Barones alios de Concilio by the Prelates Earls and Barons and others of the Councel Here is no mention of the Judgment of the Commons Others of the Councel may mean the Kings Privy Councel or his Councel Learned in the Laws which are called by their Writs to give Counsel but so are not the Commons The Judgment it self saith Nicholas de Segrave confessed his fault in Parliament and submitted himself to the Kings Will thereupon the King willing to have the Advice of the Earls Barons Great men and others of his Councel enjoyned them by the Homage Fealty and Allegiance which they owed that they should faithfully counsel Him what Punishment should be inflicted for such a Fact who all advising diligently say That such a Fact deserves loss of Life and Members Thus the Lords we see did but Advise the King what Judgment to give against him that deserted the Kings Camp to fight a Duel in France Ninthly he saith Of later times see divers notable Judgments at the Prosecution of the Commons by the Lords where the Commons were Prosecutors they were no Judges but as he terms them general Inquisitors or the Grand Inquest of the Kingdom The Judgments he cites are but in King James his days and no elder Tenthly also he tells us of the Judicature in the House of Commons alone his most ancient precedent is but in Queen Elizabeths Reign of one Tho. Long who gave the Mayor of Westbury 10 l. to be elected Burgess Eleventhly he hath a Section entitled The House of Commons to many Purposes a distinct Court and saith Not a the House of Commons to many Purposes a distinct Court of those many Purposes he tells but one that is it uses to adjourn it self Commissioners that be but to examine Witnesses may Adjourn themselves yet are no Court. Twelfthly he handles the Privileges of Parliament where the great Wonder is that this great Master of the Law who hath been oft a Parliament-man could find no other nor more Privileges of Parliament but one and that is Freedom from Arrests which he saith holds unless in three cases Treason Felony and the Peace And for this freedom from Arrests he cites Ancient Precedents for all those in the House of Lords but he brings not one Precedent at all for the Commons Freedom from Arrests It is behooveful for a Free-holder to consider what Power is in the House of Peers for although the Free-holder have no Voice in the Election of the Lords yet if the Power of that House extend to make Ordinances that bind the Free-holders it is necessary
that he was a Gentleman and Bannaret and had served the late King He should be beheaded and for that our Lord the King was not informed of the manner of the Judgment the Execution thereof shall be respited until our Lord the King shall be informed It is commanded to the Constable of the Tower safely to keep the said John until he hath other commandment from our Lord the King In the case of Hen. Spencer Bishop of Norwich 7 Ric. 2. who was accused for complying with the French and other Failings the Bishop complained what was done against him did not pass by the Assent and Knowledge of the Peers whereupon it was said in Parliament that The Cognisance and Punishment of his Offence did of common Right and ancient Custom of the Realm of England solely and wholly belong to our Lord the King and no other Le Cognisance Punissement de commune droit auntienne custome de Royalme de Engleterre seul per tout apperteine au Roy nostre Seignieur a nul autre In the case of the Lord de la Ware the Judgment of the Lords was that he should have place next after the Lord Willoughby of Erisby by consent of all except the Lord Windsor and the Lord Keeper was required to acquaint her Majesty with the Determination of the Peers and to know her Pleasure concerning the same The Inference from these Precedents is that the Decisive or Judicial Power exercised in the Chamber of Peers is meerly derivative and subservient to the Supreme Power which resides in the King and is grounded solely upon his grace and favour for howsoever the House of Commons do alledge their Power to be founded on the Principles of Nature in that they are the Representative Body of the Kingdom as they say and so being the whole may take care and have power by Nature to preserve themselves yet the House of Peers do not nor cannot make any such the least Pretence since there is no reason in Nature why amongst a company of men who are all equal some few should be picked out to be exalted above their Fellows and have power to Govern those who by Nature are their Companions The difference between a Peer and a Commoner is not by Nature but by the grace of the Prince who creates Honours and makes those Honours to be hereditary whereas he might have given them for life only or during pleasure or good behaviour and also annexeth to those Honours the power of having Votes in Parliament as hereditary Counsellors furnished with ampler privileges than the Commons All these Graces conferred upon the Peers are so far from being derived from the Law of Nature that they are contradictory and destructive of that natural Equality and Freedom of Mankind which many conceive to be the Foundation of the privileges and Liberties of the House of Commons There is so strong an opposition between the Liberties of Grace and Nature that it had never been possible for the two Houses of Parliament to have stood together without mortal Enmity and eternal Jarring had they been raised upon such opposite Foundations But the Truth is the Liberties and Privileges of both Houses have but one and the self-same Foundation which is nothing else but the meer and sole Grace of Kings Thus much may serve to shew the Nature and Original of the deliberative and decisive Power of the Peers of the Kingdom The matter about which the deliberative power is conversant is generally the Consulting and Advising upon any urgent Business which concerns the King or Defence of the Kingdom and more especially sometimes in preparing new Laws and this Power is grounded upon the Writ The decisive Power is exercised in giving Judgment in some difficult Cases but for this Power of the Peers I find no Warrant in their Writ Whereas the Parliament is styled the Supreme Court it must be understood properly of the King sitting in the House of Peers in Person and but improperly of the Lords without him Every Supreme Court must have the Supreme Power and the Supreme Power is always Arbitrary for that is Arbitrary which hath no Superiour on Earth to controll it The last Appeal in all Government must still be to an Arbitrary Power or else Appeals will be in Infinitum never at an end The Legislative Power is an Arbitrary Power for they are termini convertibiles The main Question in these our days is Where this Power Legislative remains or is placed upon conference of the Writs of Summons for both Houses with the Bodies and Titles of our Ancient Acts of Parliament we shall find the Power of making Laws rests solely in the King Some affirm that a part of the Legislative Power is in either of the Houses but besides invincible reason from the Nature of Monarchy it self which must have the Supreme Power Alone the constant Antient Declaration of this Kingdom is against it For howsoever of later years in the Titles and Bodies of our Acts of Parliament it be not so particularly expressed who is the Author and Maker of our Laws yet in almost all our elder Statutes it is precisely expressed that they are made by the King Himself The general words used of later times that Laws are made by Authority of Parliament are particularly explained in former Statutes to mean That the King Ordains the Lords Advise the Commons Consent as by comparing the Writs with the Statutes that expound the Writs will evidently appear Magna Charta begins thus Henry by the Grace of God Know ye that WE of Our Meer and Free Will have given these Liberties In the self-same style runs Charta de Foresta and tells us the Author of it The Statute de Scaccario 41 H. 3. begins in these words The King Commandeth that all Bailiffs Sheriffs and other Officers c. And concerning the Justices of Chester the King Willeth c. and again He Commandeth the Treasurer and Barons of the Exchequer upon their Allegiance The Stat. of Marlborough 52 Hen. 3. goeth thus The King hath made these Acts Ordinances and Statutes which He Willeth to be observed of all his Subjects high and low 3 Edw. 1. The Title of this Statute is These are the ACTS of King EDWARD and after it follows The KING hath Ordained these ACTS and in the first Chapter The King Forbiddeth and Commandeth That none do Hurt Damage or Grievance to any Religious Man or Person of the Church and in the thirteenth Chapter The King prohibiteth that none do Ravish or take away by Force any Maid within Age. 6 Edw. 1. It is said Our Sovereign Lord the King hath established these Acts commanding they be observed within his Realm and in the fourteenth Chap. the words are The King of his special Grace granteth that the City of London shall recover in an Assise Damage with the Land The Stat. of West 2. saith Our Lord the King hath ordained that the Will of the Giver be observed
amongst the printed Statutes one called the Statute of Ireland dated at Westminster 9 Feb. 14. Hen. 3. which is nothing but a Letter of the King to Gerard Son of Maurice Justicer of Ireland The Explanations of the Statute of Gloucester made by the King and His Justices only were received always for Statutes and are still printed with them Also the Statute made for the correction of the twelfth Chapter of the Statute of Gloucester 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 2 Maii 9 Edw. 1. requiring that they should do and execute all and every thing contained in it though the same do not accord with the Stat. of Gloucester in all things The Provisions of Merton made by the King at an Assembly of Prelates and the greater part of the Earls and Barons for the Coronation of the King and his Queen Elenor are in the Form of a Proclamation and begin Provisum est in Curia Domini Regis apud Merton 19 Hen. 3. a Provision was made de assisa praesentationis which was continued and allowed for a Law until the Stat. of West 2. which provides the contrary in express words In the old Statutes it is hard to distinguish what Laws were made by Kings in Parliament and what out of Parliament when Kings called Peers only to Parliament and of those how many or whom they pleased as it appears anciently they did it was no easie matter to put a difference between a Councel-Table and a Parliament or between a Proclamation and a Statute Yet it is most evident that in old times there was a distinction between the Kings especial or Privy Councel and his Common Councel of the Kingdom and His special Councel did sit with the Peers in Parliament and were of great and extraordinary Authority there In the Stat. of Westm. 1. it is said These are the Acts of King Edw. 1. made at His first Parliament by His Councel and by the Assent of Bishops Abbots Priors Earls Barons and all the Commonalty of the Realm The Stat. of Acton Burnell hath these words The King for himself and by His Councel hath Ordained and Established In articulis super Chartas when the Great Charter was confirmed at the Request of the Prelates Earls and Barons are found these two provisions 1. Nevertheless the King and his Councel do not intend by reason of this Statute to diminish the Kings Right 2. Notwithstanding all these things before-mentioned or any part of them both the King and his Councel and all they that were present will and intend that the Right and Prerogative of His Crown shall be saved to Him in all things The Stat. of Escheators hath this Title At the Parliament of our Sovereign Lord the King By His Councel it was agreed and also by the King himself commanded 1 Ed. 3. where Magna Charta was confirmed this Preamble is found At the request of the Commonalty by their Petition made before the King and His Councel in Parliament by the Assent of the Prelates Earls and Barons c. The Statute made at York 9 Ed. 3. goeth thus Whereas the Knights Citizens and Burgesses desired Our Sovereign Lord the King in His Parliament by their Petition c. Our Sovereign Lord the King desiring the profit of his People By the Assent of His Prelates Earls Barons and other Nobles of His Realm and by the Advice of His Councel being there Hath Ordained 25 Ed. 3. In the Statute of Purveyors where the King at the request of the Lords and Commons made a Declaration what Offences should be adjudged Treason It is there further said if per-case any man ride Armed with Men of Arms against any other to slay him or rob him It is not the Mind of the King or of his Councel that in such cases it shall be adjudged Treason By this Statute it appears that even in the Case of Treason which is the Kings own Cause as whereas a man doth compass or imagine the Death of our Lord the King or a man do wage War against our Lord the King in His Realm or be adherent to the Kings Enemies in His Realm giving to them Aid or Comfort in the Realm or elsewhere in all these cases it is the Kings Declaration only that makes it to be Treason and though it be said that Difficult points of Treason shall be brought and shewed to the King and his Parliament yet it is said it is the mind of the King and his Councel that determines what shall be adjudged Treason and what Felony or Trespass 27 Edw. 3. The Commons presenting a Petition to the King which the Kings Councel did mislike were content thereupon to amend and explain their Petition the Petition hath these words To their most redoubted Sovereign Lord the King praying your said Commons that whereas they have prayed him to be discharged of all manner of Articles of the Eyre c. which Petition seemeth to his Councel 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 or of his Crown perpetually as of Escheats c. But of Trespasses Misprisions Negligences Ignorances c. And as in Parliaments the Kings Councel were of Supereminent Power so out of Parliament Kings made great Use of them King Edw. 1. finding that Bogo de Clare was discharged of an Accusation brought against him in Parliament commanded him nevertheless to appear before him and his Councel ad faciendum recipiendum quod per Regem ejus Concilium fuerit faciendum and so proceeded to the Examination of the whole Cause 8 Edw. 1. Edw. 3. In the Star-chamber which was the ancient Councel-table at Westminster upon the complaint of Eliz. Audley commanded James Audley to appear before Him and His Councel and determined a Controversie between them touching Land contained in her Jointure Rot. claus de An. 41 Edw. 3. Hen. 5. In a Suit before Him and His Councel For the Titles of the Manors of Serre and St. Lawrence in the Isle of Thanet in Kent took order for the Sequestring the Profits till the Right were tried Hen. 6. commanded the Justices of the Bench to stay the Arraignment of one Verney in London till they had other Commandment from Him and His Councel 34 Hen. 6. rot 37. in Banco Edw. 4. and his Councel in the Star-chamber heard the Cause of the Master and poor Brethren of Saint 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 Plow-land within the Counties of York Westmorland Cumberland and Lancashire Rot. pat de an 8. Edw. 4. part 3. memb 14. Hen. 7. and his Councel 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 Plumsted in Kent forasmuch as the matter had been heard first before the Councel of Edw. 4. after that before the President of the Requests of that King Hen. 7. and then lastly before the Councel of the said King 1 H. 7. In the time of Hen. 3. an Order or Provision was made by the Kings Councel and it was pleaded at the Common Law in Bar to a Writ of Dower the Plaintiffs Attorney could not deny it and thereupon the Judgment was ideo sine die It seems in those days an Order of the Kings Councel was either parcel of the Common Law or above it Also we may find the Judges have had Regard that before they would resolve or give Judgment in new Cases they consulted with the King 's Privy Councel In the case of Adam Brabson who was assaulted by R. W. in the Presence of the Justices of Assise at Westminster the Judges would have the Advice of the Kings Councel for in a like Case because R. C. did strike a Juror at Westminster which passed against one of his Friends It was adjudged by all the Councel that his right hand should be cut off and his Lands and Goods forfeited to the King Green and Thorp were sent by the Judges to the Kings Councel to demand of them whether by the Stat. of 14 Edw. 3.16 a word may be amended in a Writ and it was answered that a word may be well amended although the Stat. speaks but of a Letter or Syllable In the Case of Sir Thomas Ogthred 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 Judgment was staid 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 should come we should not go to Judgment without good Advice therefore the Judges Conclusion was Sues au counsell comment ils voilent que nous devomus faire nous volums faire autrement ment en cest case sue to the Councel and as they will have us to do we will do and otherwise not in this Case 39 Edw. 3. Thus we see the Judges themselves were guided by the Kings Councel and yet the Opinions of Judges have guided the Lords in Parliament in Point of Law All the Judges of the Realm Barons of Exchequer of the Quoif the Kings learned Councel and the Civilians Masters of Chancery are called Temporal Assistants by Sir Edw. Coke and though he deny them Voices in Parliament yet he confesseth that by their Writ they have power both to treat and to give Counsel I cannot find that the Lords have any other Power by their Writ the Words of the Lords Writ are That you be present with us the Prelates Great men and Peers to treat and give your Counsel The Words of the Judges Writ are That you be present with Vs and others of the Councel and sometimes with Vs only to treat and give your Counsel The Judges usually joined in Committees with the Lords in all Parliaments even in Queen Eliz. Reign until her 39th Year and then upon the 7th of November the Judges were appointed to attend the Lords And whereas the Judges have liberty in the upper House it self upon leave given them by the L. Keeper to cover themselves now at Committees they sit always uncovered The Power of Judges in Parliament is best understood if we consider how the judicial Power of Peers hath been exercised in matter of Judicature we may find it hath been the Practice that though the Lords in the Kings Absence give Judgment in Point of Law yet they are to be directed and regulated by the Kings Judges who are best able to give Direction in the difficult Points of the Law which ordinarily are unknown to the Lords And therefore if any Errour be committed in the Kings Bench which is the highest ordinary Court of Common Law in the Kingdom that Errour must be redressed in Parliament And the manner is saith the Lord Chancellor Egerton If a Writ of Errour be sued in Parl. upon a Judgment given by the Judges 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 the Law and for their Judgments therein they are to be informed by the Advice and Councel of the Judges who are to inform them what the Law is and to direct them in their Judgment for the Lords are not to follow their own Discretion or Opinion otherwise 28 Hen. 6. the Commons made Sute that W. de la Pool D. of Suffolk 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 Judges 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 31 Hen. 6. A Parliament being prorogued in the Vacation the Speaker of the House of Commons was condemned in a thousand Pounds Damages in an Action of Trespass and committed to Prison in Execution for the same when the Parliament was re-assembled the Commons made Sute 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 Privilege of Parliament upon the Judges Answer it was concluded that the Speaker should remain in Prison according to the Law notwithstanding the Privilege of Parliament and that he was Speaker which Resolution was declared to the Commons by Moyle the Kings Serjeant at Law and the Commons were commanded in the Kings name by the Bishop of Lincoln in the absence of the Arch-bishop of Canterbury then Chancellor to chuse another Speaker 7 Hen. 8. A Question was moved in Parliament Whether Spiritual Persons might be convented before Temporal Judges for Criminal Causes there Sir John Fineux and the other Judges delivered their Opinion that they might and ought to be and their Opinion allowed and maintained by the King and Lords and Dr. Standish who before had holden the same Opinion was delivered from the Bishops I find it affirmed that in Causes which receive Determination in the House of Lords the King hath no Vote at all no more than in other Courts of ministerial Jurisdiction True it is the King hath no Vote at all if we understand by Vote a Voice among others for he hath no partners with him in giving Judgement But if by no Vote is meant He hath no Power to judge we despoil him of his Sovereignty It is the chief Mark of Supremacy to judge in the highest Causes and last Appeals This the Children of Israel full well understood when they petitioned for a King
to judge them if the dernier resort be to the Lords alone then they have the Supremacy But as Moses by chusing Elders to judge in small Causes did not thereby lose his Authority to be Judge himself when he pleased even in the smallest Matters much less in the greatest which he reserved to himself so Kings by delegating others to judg under them do not hereby denude themselves of a Power to judge when they think good There is a Distinction of these times that Kings themselves may not judge but they may see and look to the Judges that they give Judgment according to Law and for this Purpose only as some say Kings may sometimes sit in the Courts of Justice But it is not possible for Kings to see the Laws executed except there be a Power in Kings both to judge when the Laws are duly executed and when not as also to compel the Judges if they do not their Duty Without such Power a King sitting in Courts is but a Mockery and a Scorn to the Judges And if this Power be allowed to Kings then their Judgments are supream in all Courts And indeed our Common Law to this purpose doth presume that the King hath all Laws within the Cabinet of His Breast in Scrinio pectoris saith Campton's Jurisdiction 108. When several of our Statutes leave many things to the Pleasure of the King for us to interpret all those Statutes of the Will and Pleasure of the Kings Justices only is to give an absolute Arbitrary Power to the Justices in those Cases wherein we deny it to the King The Statute of 5 Hen. 4. c. 2. makes a Difference between the King and the Kings Justices in these words Divers notorious Felons be indicted of divers Felonies Murders Rapes and as well before the Kings Justices as before the King himself arraigned of the same Felonies I read that in An. 1256. Hen. 3. sate in the Exchequer and there set down Order for the Appearance of Sheriffs and bringing in their Accounts there was five Marks set on every Sheriffs Head for a Fine because they had not distrained every Person that might dispend fifteen pounds Lands by the Year to receive the Order of Knighthood according as the same Sheriffs were commanded In Michaelmas Term 1462. Edw. 4. sate three days together in open Court in the Kings Bench. For this Point there needs no further Proofs because Mr. Pryn doth confess that Kings themselves have sate in Person in the Kings Bench and other Courts and there given Judgment p. 32. Treachery and Disloyalty c. Notwithstanding all that hath been said for the Legislative and Judicial Power of Kings Mr. Pryn is so far from yielding the King a Power to make Laws that he will not grant the King a Power to hinder a Law from being made that is he allows Him not a Negative Voice in most Cases which is due to every other even to the meanest Member of the House of Commons in his Judgment To prove the King hath not a Negative Voice his main and in Truth his only Argument insisted on is a Coronation-Oath which is said anciently some of our Kings of England have taken wherein they grant to defend and protect the just Laws and Customs which the Vulgar hath or shall chuse Justas Leges Consuetudines quas Vulgus elegerit hence Mr. Pryn concludes that the King cannot deny any Law which the Lords and Commons shall make Choice of for so he will have vulgus to signifie Though neither our King nor many of his Predecessors ever took this Oath nor were bound to take it for ought appears yet we may admit that our King hath taken it and answer we may be confident that neither the Bishops nor Privy Councel nor Parliament nor any other whosoever they were that framed or penn'd this Oath ever intended in this word Vulgus the Commons in Parliament much less the Lords they would never so much disparage the Members of Parliament as to disgrace them with a Title both base and false it had been enough if not too much to have called them Populus the People but Vulgus the Vulgar the rude multitude which hath the Epithet of Ignobile Vulgus is a word as dishonourable to the Composers of the Oath to give or for the King to use as for the Members of the Parliament to receive it being most false for the Peers cannot be Vulgus because they are the prime Persons of the Kingdom next the Knights of the Shires are or ought to be notable Knights or notable Esquires or Gentlemen born in the Counties as shall be able to be Knights then the Citizens and Burgesses are to be most sufficient none of these can be Vulgus even those Free-holders that chuse Knights are the best and ablest men of their Counties there being for every Free-holder above ten of the Common People to be found to be termed the Vulgar Therefore it rests that Vulgus must signifie the vulgar or common People and not the Lords and Commons But now the Doubt will be what the Common People or Vulgus out of Parliament have to do to chuse Laws The Answer is easie and ready there goeth before quas vulgus the Antecedent Consuetudines that is the Customs which the Vulgar hath or shall chuse Do but observe the Nature of Custom and it is the Vulgus or Common People only who chuse Customs Common Usage time out of mind creates a Custom and the commoner an Usage is the stronger and the better is the Custom no where can so common an Usage be found as among the Vulgar who are still the far greatest part of every Multitude if a Custom be common through the whole Kingdom it is all one with the Common Law in England which is said to be Common Custom Thus in plain terms to protect the Customs which the Vulgar chuse is to swear to protect the Common Laws of England But grant that Vulgus in the Oath signifies Lords and Commons and that Consuetudines doth not signifie Customs but Statutes as Mr. Pryn for a desperate Shift affirms and let elegerit be the Future or Preterperfect Tense even which Mr. Pryn please yet it cannot exclude the Kings Negative Voice for as Consuetudines goeth before quas vulgus so doth justas stand before leges consuetudines so that not all Laws but only all just Laws are meant If the sole Choice of the Lords and Commons did oblige the King to protect their Choice without Power of Denial what Need or why is the Word justas put in to raise a Scruple that some Laws may be unjust Mr. Pryn will not say that a Decree of a General Councel or of a Pope is infallible nor I think a Bill of the Lords and Commons is infallible just and impossible to erre if he do Sir Edward Coke will tell him that Parliaments have been utterly deceived and that in cases of greatest Moment even in case of High
to Kings not only the Example of such Jurisdiction but the Prerogative also Of Privilege of Parliaments WHat need all this ado will some say to sift out what is comprised in the Writ for the Election of the Commons to Parliament since it is certain though the Writ doth not yet Privilege of Parliament gives sufficient Power for all Proceedings of the Two Houses It is answered that what slight Esteem soever be made of the Writ yet in all other cases the Original Writ is the Foundation of the whole business or action and to vary in Substance from the Writ makes a Nullity in the Cause and the Proceedings thereupon and where a Commissioner exerciseth more Power than is warranted by his Commission every such Act is void and in many Cases punishable yet we will lay aside the Writ and apply our selves to consider the Nature of Privilege of Parliament The Task is the more difficult for that we are not told what the number of Privileges are or which they be some do think that as there be dormant Articles of Faith in the Roman Church which are not yet declared so there be likewise Privileges dormant in the House of Commons not yet revealed we must therefore be content in a generality to discourse of the Quality or Condition of Privilege of Parliament and to confine our selves to these three points 1. That Privilege of Parliament gives no Power but only helps to the execution of the Power given by the Writ 2. That the Free-holders by their Elections give no Privilege 3. That Privilege of Parliament is the Gift of the King First The End or Scope of Privilege of Parliament is not to give any Power to do any Publick Act not warranted by the Writ but they are intended as Helps only to enable to the Performance of the Duty enjoyned and so are subservient to the Power comprised in the Writ For Instance the grand Privilege of Freedom from Arrests doth not give any Power at all to the House of Commons to do any Act but by taking away from the Free-holders and other Subjects the Power of Arrests the Commons are the better inabled to attend the Service to which they are called by the King In many other Cases the Servants or Ministers of the King are privileged and protected much in the same Nature The Servants in Houshold to the King may not be arrested without special Licence Also the Officers of the Kings Courts of Justice having a Privilege not to be sued in any other Court but where they serve and attend and to this Purpose they are allowed a Writ of Privilege Likewise all such as serve the King in his Wars as are imployed on Foreign Affairs for him are protected from Actions and Sutes Nay the King's Protection descends to the privileging even of Laundresses Nurses and Midwives if they attend upon the Camp as Sir Edward Coke saith quia Lotrix seu Nutrix seu obstetrix Besides the King protects his Debtors from Arrests of the Subject till his own Debts be paid These sorts of Protections are Privileges the Common Law takes Notice of and allows and hath several Distinctions of them and some are Protections quia profecturus and others are quia moraturus some are with a Clause of Volumus for Stay of Suits others with a Clause of Nolumus for the Safety of mens Persons Servants and Goods and the King's Writs do vary herein according to the Nature of the Business But none of these Privileges or Protections do give any Power they are not positive but privative they take away and deprive the Subject of the Power or Liberty to arrest or sue in some cases only no Protection or Privilege doth defend in point of Treason Felony or Breach of the Peace Privileges are directly contrary to the Law for otherwise they should not be Privileges and they are to be interpreted in the strictest manner as being odious and contrary to Law we see the Use of Privileges they do but serve as a Dispensation against Law intended originally and principally for the expediting of the Kings Business though secondarily and by accident there do sometimes redound a Benefit by them to the Parties themselves that are protected Strictly and properly every Privilege must be against a publick or common Law for there is no Use or Need of a private Law to protect where there is no publick Law to the contrary Favours and Graces which are only besides and not against the Law do not properly go under the name of Privileges though common Use do not distinguish them I know no other Privilege that can be truly so called and to belong to the House of Commons which is so vast and great as this Privilege of their Persons Servants and Goods this being indeed against the Common Law and doth concern the whole Kingdom to take notice of it if they must be bound by it Touching this grand Privilege of Freedom from Arrests I read that in the 33 Hen. 8. the Commons did not proceed to the Punishment of Offenders for the breach of it until the Lords referred the Punishment thereof to the Lower House The Case is thus reported George Ferrers Gentleman Servant to the King and Burgess for Plymouth going to the Parliament-House was arrested in London by Process out of the Kings Bench for Debt wherein he had before been condemned as Surety for one Welden at the Sute of one White which Arrest signified to Sir Thomas Moyl Speaker and to the rest the Serjeant called Saint-Johns was sent to the Counter in Breadstreet to demand Ferrers The Officer of the Counter refused to deliver him and gave the Serjeant such ill Language that they fall to an Affray the Sheriff coming taketh the Officers part the Serjeant returned without the Prisoner This being related to the Speaker and Burgesses they would sit no more without their Burgess and rising repaired to the Upper House where the Case was declared by the Speaker before Sir Thomas Audley Chancellor and the Lords and Judges there assembled who judging the Contempt to be very great referred the Punishment thereof to the House of Commons it self This Privilege of Freedom from Arrests is the only Privilege which Sir Edward Coke finds to belong to the House of Commons he cannot or at least he doth not so much as name any other in his Section of the Privileges of Parliament neither doth he bring so much as one Precedent for the Proof of this one Privilege for the House of Commons which may cause a Doubt that this sole Privilege is not so clear as many do imagine For in a Parliament in the 27 Eliz. Richard Coke a Member being served with a Subpoena of Chancery the Lord Chancellor thought the House had no such Privilege for Subpoena's as they pretended neither would he allow of any Precedents of the House committed unto them formerly used in that Behalf unless the House of Commons could also prove the same to have
men and yet we find no particular Point of Pride charged upon him but that he enjoyned the Romans to labour in cleansing and casting of Ditches and paving their Sinks an Act both for the Benefit and Ornament of the City and therefore commendable in the King But the Citizens of Rome who had been Conquerours of all Nations round about them could not endure of Warriers to become Quarriers and Day-labourers Whereas it is said that Tarquin was expelled for the Rape committed by his Son on Lucrece it is unjust to condemn the Father for the Crime of his Son it had been fit to have petitioned the Father for the Punishment of the Offender The Fact of young Tarquin cannot be excused yet without wrong to the Reputation of so chaste a Lady as Lucrece is reputed to be it may be said she had a greater Desire to be thought chaste than to be chaste she might have died untouched and unspotted in her Body if she had not been afraid to be slandered for Inchastity both Dionysius Halicarnasseus and Livie who both are her Friends so tell the Tale of her as if she had chosen rather to be a Whore than to be thought a Whore To say Truth we find no other Cause of the Expulsion of Tarquin than the Wantonness and Licentiousness of the People of Rome This is further to be considered in the Roman Government that all the time between their Kings and their Emperours there lasted a continued strife between the Nobility and Commons wherein by Degrees the Commons prevailed at last so to weaken the Authority of the Consuls and Senate that even the last sparks of Monarchy were in a manner extinguished and then instantly began the Civil War which lasted till the Regal Power was quickly brought home and setled in Monarchy So long as the Power of the Senate stood good for the Election of Consuls the Regal Power was preserved in them for the Senate had their first Institution from Monarchy It is worth the noting that in all those places that have seemed to be most popular that weak Degree of Government that hath been exercised among them hath been founded upon and been beholden unto Monarchical Principles both for the Power of assembling and manner of consulting for the entire and gross Body of any People is such an unweildy and diffused thing as is not capable of uniting or congregating or deliberating in an entire Lump but in broken Parts which at first were regulated by Monarchy Furthermore it is observable that Rome in her chief Popularity was oft beholden for her Preservation to the Monarchical Power of the Father over the Children by means of this Fatherly Power saith Bodin the Romans flourished in all Honour and Vertue and oftentimes was their Common-weal thereby delivered from most imminent Destruction when the Fathers drew out of the Consistory their Sons being Tribunes publishing Laws tending to Sedition Amongst others Cassius threw his Son headlong out of the Consistory publishing the Law Agraria for the Division of Lands in the Behoof of the People and after by his own private Judgment put him to Death the Magistrates Serjeants and People standing thereat astonied and not daring to withstand his Fatherly Authority although they would with all their Power have had that Law for Division of Lands which is sufficient Proof this Power of the Father not only to have been sacred and inviolable but also to have been lawful for him either by Right or Wrong to dispose of the Life and Death of his Children even contrary to the Will of the Magistrates and People It is generally believed that the Government of Rome after the Expulsion of Kings was popular Bodin endeavours to prove it but I am not satisfied with his Arguments and though it will be thought a Paradox yet I must maintain it was never truly popular First it is difficult to agree what a popular Government is Aristotle saith it is where Many or a Multitude do rule he doth not say where the People or the major part of the People or the Representors of the People govern Bodin affirms if all the People be interessed in the Government it is a Popular Estate Lib. 2. c. 1. but after in the same Chapter he resolves that it is a Popular Estate when all the People or the greater part thereof hath the Sovereignty and he puts the Case that if there be threescore thousand Citizens and forty thousand of them have the Sovereignty and twenty thousand be excluded it shall be called a popular Estate But I must tell him though fifty nine thousand nine hundred ninety nine of them govern yet it is no popular Estate for if but one man be excluded the same reason that excludes that one man may exclude many hundreds and many thousands yea and the major part it self if it be admitted that the People are or ever were free by Nature and not to be governed but by their own Consent it is most unjust to exclude any one man from his Right in Government and to suppose the People so unnatural as at the first to have all consented to give away their Right to a major part as if they had Liberty given them only to give away and not to use it themselves is not only improbable but impossible for the whole People is a thing so uncertain and changeable that it alters every moment so that it is necessary to ask of every Infant so soon as it is born its Consent to Government if you will ever have the Consent of the whole People Moreover if the Arbitrary Tryal by a Jury of Twelve men be a thing of that admirable Perfection and Justice as is commonly believed wherein the Negative Voice of every single Person is preserved so that the dissent of any of the Twelve frustrates the whole Judgment How much more ought the natural freedom of each man be preserved by allowing him his Negative Voice which is but a continuing him in that Estate wherein it is confessed Nature at first placed him Justice requires that no one Law should bind all except all consent to it there is nothing more violent and contrary to Nature than to allow a major part or any other greater part less than the whole to bind all the People The next difficulty to discovering what a Popular Estate is is to find out where the Supreme Power in the Roman Government rested it is Bodin's Opinion that in the Roman State the Government was in the Magistrates the Authority and Council in the Senate but the Sovereign Power and Majesty in the People Lib. 2. c. 1. So in his first Book his Doctrine is that the ancient Romans said Imperium in Magistratibus Authoritatem in Senatu Potestatem in plebe Majestatem in Populo jure esse dicebant These four words Command Authority Power and Majesty signifie ordinarily one and the same thing to wit the Sovereignty or supreme Power I cannot find that Bodin knows how to
the Election of Saul since Saul was chosen by God himself and governed according to God's Laws The Government from Abraham to Saul is no where called the Kingdom of God nor is it said that the Kingdom of God was cast off at the Election of Saul Mr. Hobs allows that Moses alone had next under God the Sovereignty over the Israelites p. 252. but he doth not allow it to Joshua but will have it descend to Eleazar the High-Priest Aaron's Son His Proof is God expresly saith concerning Joshua He shall stand before Eleazar who shall ask Counsel for him before the Lord after the judgment of Vrim is omitted by Mr. Hobs at his word they shall go out c. therefore the Supreme Power of making Peace and War was in the Priest Answ The Work of the High-Priest was only Ministerial not Magisterial he had no power to Command in War or to Judge in Peace only when the Sovereign or Governour did go up to War he enquired of the Lord by the Ministry of the High Priest and as the Hebrews say the Enquirer with a soft voice as one that prayeth for himself asked and forthwith the Holy Ghost came upon the Priest and he beheld the Breast-plate and saw therein by the Vision of Prophecy Go up or go not up in the letters that shewed forth themselves upon the Breast-plate before his face then the Priest answered him Go up or go not up If this Answer gave the Priest Sovereignty then neither King Saul nor King David had the Sovereignty who both asked Counsel of the Lord by the Priest OBSERVATIONS ON Mr. Milton Against SALMASIVS I. AMong the many Printed Books and several Discourses touching the Right of Kings and the Liberty of the People I cannot find that as yet the first and chief Point is agreed upon or indeed so much as once disputed The word King and the word People are familiar one would think every simple man could tell what they signified but upon Examination it will be found that the learnedst cannot agree of their meaning Ask Salmasius what a King is and he will teach us that a King is he who hath the Supreme Power of the Kingdom and is accountable to none but God and may do what he please and is free from the Laws This Definition J. M. abominates as being the Definition of a Tyrant And I should be of his Mind if he would have vouchsafed us a better or any other Definition at all that would tell us how any King can have a Supreme Power without being freed from humane Laws To find fault with it without producing any other is to leave us in the Dark but though Mr. Milton brings us neither Definition nor Description of a King yet we may pick out of several Passages of him something like a Definition if we lay them together He teacheth us that Power was therefore given to a King by the People that he might see by the Authority to him committed that nothing be done against Law and that he keep our Laws and not impose upon us his own Therefore there is no Regal Power but in the Courts of the Kingdom and by them pag. 155. And again he affirmeth the King cannot Imprison Fine or punish any man except he be first cited into some Court where not the King but the usual Judges give Sentence pag. 168. and before we are told not the King but the Authority of Parliament doth set up and take away all Courts pag. 167. Lo here the Description of a King He is one to whom the People give Power to see that nothing be done against Law and yet he saith there is no Regal Power but in the Courts of Justice and by them where not the King but the usual Judges give Sentence This Description not only strips the King of all Power whatsoever but puts him in a Condition below the meanest of his Subjects Thus much may shew that all men are not agreed what a King is Next what the word People means is not agreed upon ask Aristotle what the People is and he will not allow any Power to be in any but in free Citizens If we demand who be free Citizens That he cannot resolve us for he confesseth that he that is a free Citizen in one City is not so in another City And he is of Opinion that no Artificer should be a free Citizen or have Voice in a well ordered Commonwealth he accounts a Democratie which word signifies the Government of the People to be a corrupted sort of Government he thinks many men by Nature born to be Servants and not fit to govern as any part of the People Thus doth Aristotle curtail the People and cannot give us any certain Rule to know who be the People Come to our Modern Politicians and ask them who the People is though they talk big of the People yet they take up and are content with a few Representors as they call them of the whole People a Point Aristotle was to seek in neither are these Representors stood upon to be the whole People but the major part of these Representors must be reckoned for the whole People nay J.M. will not allow the major part of the Representors to be the People but the sounder and better part only of them and in right down terms he tells us pag. 126. to determine who is a Tyrant he leaves to Magistrates at least to the uprighter sort of them and of the People pag. 7. though in number less by many to judge as they find cause If the sounder the better and the uprighter Part have the Power of the People how shall we know or who shall judge who they be II. One Text is urged by Mr. Milton for the Peoples Power Deut. 17.14 When thou art come into the Land which thy Lord thy God giveth thee and shalt say I will set a King over me like as all the Nations about me It is said by the Tenure of Kings these words confirm us that the Right of Choosing yea of Changing their own Government is by the Grant of God himself in the People But can the foretelling or forewarning of the Israelites of a wanton and wicked Desire of theirs which God himself condemned be made an Argument that God gave or granted them a Right to do such a wicked thing or can the Narration and reproving of a Future Fact be a Donation and approving of a present Right or the Permission of a Sin be made a Commission for the doing of it The Author of his Book against Salmasius falls so far from making God the Donor or Grantor that he cites him only for a Witness Teste ipso Deo penes populos arbitrium semper fuisse vel ea quae placeret forma reipub utendi vel hanc in aliam mutandi de Hebraeis hoc disertè dicit Deus de reliquis non abnuit That here in this Text God himself being Witness there was always a Power in
the People either to use what Form of Government they pleased or of changing it into another God saith this expresly of the Hebrews and denies it not of others Can any man find that God in this Text expresly saith that there was always a Right in the People to use what Form of Government they please The Text not warranting this Right of the People the Foundation of the Defence of the People is quite taken away there being no other Grant or proof of it pretended 2. Where it is said that the Israelites desired a King though then under another Form of Government in the next line but one it is confessed they had a King at the time when they desired a King which was God himself and his Vice-roy Samuel and so saith God They have not rejected thee but they have rejected me that I should not reign over them yet in the next Verse God saith As they have forsaken me so do they also unto thee Here is no Shew of any other Form of Government but Monarchy God by the Mediation of Samuel reigned who made his Sons Judges over Israel when one man constitutes Judges we may call him a King or if the having of Judges do alter the Government then the Government of every Kingdom is altered from Monarchy where Judges are appointed by Kings it is now reckoned one of the Duties of Kings to judge by their Judges only 3. Where it is said He shall not multiply to himself Horses nor Wives nor Riches that he might understand that he had no Power over others who could Decree nothing of himself extra Legem if it had said contra legem Dei it had been true but if it meant extra legem humanam it is false 4. If there had been any Right given to the People it seems it was to the Elders only for it is said it was the Elders of Israel gathered together petitioned for a King it is not said it was all the People nor that the People did choose the Elders who were the Fathers and Heads of Families authorized by the Judges 5. Where it is said I will set a King over me like as all the Nations about me To set a King is not to choose a King but by some solemn publick Act of Coronation or otherwise to acknowledge their Allegiance to the King chosen It is said thou shalt set him King whom the Lord thy God shall choose The Elders did not desire to choose a King like other Nations but they say now make us a King to judge us like all the Nations III. As for Davids Covenant with the Elders when he was anointed it was not to observe any Laws or Conditions made by the People for ought appears but to keep Gods Laws and serve him and to seek the Good of the People as they were to protect him 6. The Reubenites and Gadites promise their Obedience not according to their Laws or Conditions agreed upon but in these words All that thou commandest us we will do and whithersoever thou sendest us we will go as we harkened to Moses in all things so will we harken unto thee only the Lord thy God be with thee as he was with Moses Where is there any Condition of any humane Law expressed Though the rebellious Tribes offered Conditions to Rehoboam where can we find that for like Conditions not performed all Israel deposed Samuel I wonder Mr. Milton should say this when within a few Lines after he professeth that Samuel had governed them uprightly IV. Jus Regni is much stumbled at and the Definition of a King which saith His Power is supreme in the Kingdom and he is accountable to none but to God and that he may do what he please and is not bound by Laws it is said if this Definition be good no man is or ever was who may be said to be a Tyrant p. 14. for when he hath violated all divine and humane Laws nevertheless he is a King and guiltless jure Regio To this may be answered That the Definition confesseth he is accountable to God and therefore not guiltless if he violate Divine Laws Humane Laws must not be shuffled in with Divine they are not of the same Authority if humane Laws bind a King it is impossible for him to have Supreme Power amongst men If any man can find us out such a kind of Government wherein the supreme Power can be without being freed from humane Laws they should first teach us that but if all sorts of popular Government that can be invented cannot be one Minute without an Arbitrary Power freed from all humane Laws what reason can be given why a Royal Government should not have the like Freedom if it be Tyranny for one man to govern arbitrarily why should it not be far greater Tyranny for a multitude of men to govern without being accountable or bound by Laws It would be further enquired how it is possible for any Government at all to be in the World without an arbitrary Power it is not Power except it be arbitrary a legislative Power cannot be without being absolved from humane Laws it cannot be shewed how a King can have any Power at all but an arbitrary Power We are taught that Power was therefore given to a King by the People that he might see by the Authority to him committed that nothing be done against Law and that he keep our Laws and not impose upon us his own therefore there is no Royal Power but in the Courts of the Kingdom and by them p. 155. And again it is said the King cannot Imprison Fine or Punish any man except he be first cited into some Court where not the King but the usual Judges give Sentence pag. 168. and before we are told not the King but the Authority of Parliament doth set up and take away all Courts pag. 167. Lo here we have Mr. Milton's perfect Definition of a King He is one to whom the People gave Power to see that nothing be done against Law and that he keep our Laws and not impose his own Whereas all other men have the Faculty of Seeing by Nature the King only hath it by the Gift of the People other Power he hath none he may see the Judges keep the Laws if they will he cannot compel them for he may not Imprison Fine nor punish any man the Courts of Justice may and they are set up and put down by the Parliament yet in this very Definition of a King we may spy an arbitrary Power in the King for he may wink if he will and no other Power doth this Description of a King give but only a Power to see whereas it is said Aristotle doth mention an absolute Kingdom for no other Cause but to shew how absurd unjust and most tyrannical it is There is no such thing said by Aristotle but the contrary where he saith that a King according to Law makes no sort of Government and after
also to study always to please their Parents But since this Duty is not by force of any moral faculty as those former are but only of Piety Observance and Duty of repaying Thanks it doth not make any thing void which is done against it as neither a gift of any thing is void being made by any Owner whatsoever against the rules of Parsimony In both these times the Right of Ruling and Compelling is as Grotius acknowledgeth comprehended so far forth as Children are to be compelled to their Duty or amended although the power of a Parent doth so follow the person of a Father that it cannot be pulled away and transferred upon another yet the Father may naturally pawn or also sell his Son if there be need In the third time he saith The Son is in all things Free and of his own Authority always that Duty remaining of Piety and Observance the cause of which is perpetual In this triple distinction though Grotius allow Children in some cases during the second and in all cases during the third time to be free and of their own Power by a moral Faculty yet in that he confesseth in all cases Children are bound to study always to please their Parents out of Piety and Duty the cause of which as he saith is perpetual I cannot conceive how in any case Children can naturally have any Power or moral Faculty of doing what they please without their Parents leave since they are always bound to study to please their Parents And though by the Laws of some Nations Children when they attain to years of Discretion have Power and Liberty in many actions yet this Liberty is granted them by Positive and Humane Laws only which are made by the Supreme Fatherly Power of Princes who Regulate Limit or Assume the Authority of inferiour Fathers for the publick Benefit of the Commonwealth so that naturally the Power of Parents over their Children never ceaseth by any Separation but only by the permission of the transcendent Fatherly Power of the Supreme Prince Children may be dispensed with or priviledged in some cases from obedience to subordinate Parents Touching the Point of dissolving the Vows of Children Grotius in his last Edition of his Book hath corrected his first for in the first he teacheth That the power of the Father was greater over the Daughter dwelling with him than over the Son for her Vow he might make void but not his But instead of these words in his last Edition he saith That the power over the Son or Daughter to dissolve Vows was not perpetual but did endure as long as the Children were a part of their Fathers Family About the meaning of the Text out of which he draws this Conclusion I have already spoken Three ways Grotius propoundeth whereby Supreme Power may be had First By full Right of Propriety Secondly By an Vsufructuary Right Thirdly By a Temporary Right The Roman Dictators saith he had Supreme Power by a Temporary Right as well those Kings who are first Elected as those that in a lawful Right succeed to Kings elected have Supreme Power by an usufructuary Right some Kings that have got Supreme Power by a just War or into whose Power some People for avoiding a greater Evil have so yielded themselves as that they have excepted nothing have a full Right of Propriety Thus we find but two means acknowledged by Grotius whereby a King may obtain a full Right of Propriety in a Kingdom That is either by a just War or by Donation of the People How a War can be just without a precedent Title in the Conquerour Grotius doth not shew and if the Title only make the War just then no other Right can be obtained by War than what the Title bringeth for a just War doth only put the Conquerour in possession of his old Right but not create a new The like which Grotius saith of Succession may be said of War Succession saith he is no Title of a Kingdom which gives a Form to the Kingdom but a Continuation of the old for the Right which began by the Election of the Family is continued by Succession wherefore so much as the first Election gave so much the Succession brings So to a Conquerour that hath a Title War doth not give but put him in possession of a Right and except the Conquerour had a full Right of Propriety at first his Conquest cannot give it him for if originally he and his Ancestors had but an usufructuary Right and were outed of the possession of the Kingdom by an Usurper here though the Re-conquest be a most just War yet shall not the Conquerour in this case gain any full Right of Propriety but must be remitted to his usufructuary Right only for what Justice can it be that the Injustice of a third Person an Usurper should prejudice the People to the devesting of them of that Right of Propriety which was reserved in their first Donation to their Elected King to whom they gave but an usufructuary Right as Grotius conceiveth Wherefore it seems impossible that there can be a just War whereby a full Right of Propriety may be gained according to Grotius's Principles For if a King come in by Conquest he must either conquer them that have a Governour or those People that have none if they have no Governour then they are a free People and so the War will be unjust to conquer those that are free especially if the Freedom of the People be by the primary Law of Nature as Grotius teacheth But if the People conquered have a Governour that Governour hath either a Title or not If he hath a Title it is an unjust War that takes the Kingdom from him If he hath no Title but only the Possession of a Kingdom yet it is unjust for any other man that wants a Title also to conquer him that is but in possession for it is a just Rule That where the Cases are alike he that is in Possession is in the better condition In pari causa possidentis melior conditio Lib. 2. c. 23. And this by the Law of Nature even in the Judgment of Grotius But if it be admitted that he that attempts to conquer hath a Title and he that is in possession hath none here the Conquest is but in nature of a possessory Action to put the Conquerour in possession of a primer Right and not to raise a new Title for War begins where the Law fails Vbi Judicia deficiunt incipit Bellum Lib. 2. cap. 1. And thus upon the matter I cannot find in Grotius's Book De Jure Belli how that any Case can be put wherein by a just War a man may become a King pleno Jure Proprietatis All Government and Supreme Power is founded upon publick Subjection which is thus defined by Grotius Publica Subjectio est quâ se Populus homini alicui aut pluribus hominibus aut etiam populo alteri in ditionem dat Lib. 2.
a primity of share in the supreme Power is in one but by his own confession he may better call it a mixed Aristocracy or mixed Democracy than a mixed Monarchy since he tells us The Houses of Parliament sure have two parts of the greatest legislative Authority and if the King have but a third part sure their shares are equal The first step our Author makes is this The Soveraign power must be originally in all three next he finds that if there be an equality of shares in three Estates there can be no ground to denominate a Monarch and then his mixed Monarch might be thought but an empty Title Therefore in the third place he resolves us That to salve all a power must be sought out wherewith the Monarch must be invested which is not so great as to destroy the mixture nor so titular as to destroy the Monarchy and therefore he conceives it may be in these particulars First A Monarch in a mixed Monarchy may be said to be a Monarch as he conceives if he be the head and fountain of the power which governs and executes the established Laws that is a man may be a Monarch though he do but give power to others to govern and execute the established Laws thus he brings his Monarch one step or peg lower still than he was before at first he made us believe his Monarch should have the supreme Power which is the legislative then he falls from that and tells us A limited Monarch must govern according to Law only thus he is brought from the legislative to the gubernative or executive Power only nor doth he stay here but is taken a hole lower for now he must not govern but he must constitute Officers to govern by Laws if chusing Officers to govern be governing then our Author will allow his Monarch to be a Governour not else and therefore he that divided Supreme power into Legislative and Gubernative doth now divide it into Legislative and power of constituting Officers for governing by Laws and this he saith is left to the Monarch Indeed you have left him a fair portion of Power but are we sure he may enjoy this It seems our Author is not confident in this neither and some others do deny it him our Author speaking of the Government of this Kingdom saith The choice of the Officers is intrusted to the judgment of the Monarch for ought I know he is not resolute in the point but for ought he knows and for ought I know his Monarch is but titular an empty Title certain of no Power at all The power of chusing Officers only is the basest of all powers Aristotle as I remember saith The common people are fit for nothing but to chuse Officers and to take Accompts and indeed in all popular Governments the multitude perform this work and this work in a King puts him below all his Subjects and makes him the only Subject in a Kingdom or the only man that cannot Govern there is not the poorest man of the multitude but is capable of some Office or other and by that means may some time or other perhaps govern according to the Laws only the King can be no Officer but to chuse Officers his Subjects may all govern but he may not Next I cannot see how in true sense our Author can say his Monarch is the head and fountain of Power since his Doctrine is That in a limited Monarchy the publick Society by original Constitution confer on one man power is not then the publick Society the head and fountain of Power and not the King Again when he tells us of his Monarch That both the other States as well conjunctim as divisim be his sworn Subjects and owe obedience to his commands he doth but flout his poor Monarch for why are they called his Subjects and his Commons He without any complement is their Subject for they as Officers may govern and command according to Law but he may not for he must judge by his Judges in Courts of Justice only that is he may not judge or govern at all 2. As for the second particular The sole or chief power in capacitating persons for the supreme Power And 3. As to this third particular The power of Convocating such persons they are both so far from making a Monarch that they are the only way to make him none by chusing and calling others to share in the supreme Power 4. Lastly concerning his Authority being the last and greatest in the establishing every Act it makes him no Monarch except he be sole that hath that Authority neither his primity of share in the supreme Power nor his Authority being last no nor his having the greatest Authority doth make him a Monarch unless he have that Authority alone Besides how can he shew that in his mixed Monarchy the Monarchs power is the greatest The greatest share that our Author allows him in the Legislative power is a Negative voice and the like is allowed to the Nobility and Commons And truly a Negative voice is but a base term to express a Legislative power a Negative voice is but a privative power or indeed no power at all to do any thing only a power to hinder an Act from being done Wherefore I conclude not any of his four nor all of them put into one person make the State Monarchical This mixed Monarchy just like the limited ends in confusion and destruction of all Government you shall hear the Authors confession That one inconvenience must necessarily be in all mixed Governments which I shewed to be in limited Governments there can be no constituted legal Authoritative Judge of the Fundamental Controversies arising between the three Estates If such do rise it is the fatal disease of those Governments for which no salve can be applied It is a case beyond the possible provision of such a Government of this question there is no legal Judge The accusing side must make it evident to every mans Conscience The Appeal must be to the Community as if there were no Government and as by evidence Consciences are convinced they are bound to give their assistance The wit of man cannot say more for Anarchy Thus have I picked out the flowers out of his Doctrine about limited Monarchy and presented them with some brief Annotations it were a tedious work to collect all the learned contradictions and ambiguous expressions that occur in every page of his Platonick Monarchy the Book hath so much of fancy that it is a better piece of Poetry than Policy Because many may think that the main Doctrine of limited and mixed Monarchy may in it self be most authentical and grounded upon strong and evident reason although our Author perhaps have failed in some of his expressions and be liable to exceptions Therefore I will be bold to inquire whether Aristotle could find either reason or example of a limited or mixed Monarchy and the rather because
sworn to keep or not If a Soveraign Prince promise by Oath to his Subjects to keep the Laws he is bound to keep them not for that a Prince is bound to keep his Laws by himself or by his Predecessors but by the just Conventions and Promises which he hath made himself be it by Oath or without any Oath at all as should a private man be and for the same causes that a Private man may be relieved from his unjust and unreasonable Promise as for that it was so grievous or for that he was by deceit or fraud Circumvented or induced thereunto by Errour or Force or just Fear or by some great Hurt even for the same causes the Prince may be restored in that which toucheth the diminishing of his Majesty And so our Maxime resteth That the Prince is not subject to His Laws nor to the Laws of his Predecessors but well to his Own just and reasonable Conventions The Soveraign Prince may derogate from the Laws that he hath promised and sworn to keep if the Equity thereof cease and that of himself without Consent of his Subjects which his Subjects cannot do among Themselves if they be not by the Prince relieved The Foreign Princes well-advised will never take Oath to keep the Laws of their Predecessors for otherwise they are not Sovereigns Notwithstanding all Oaths the Prince may Derogate from the Laws or Frustrate or Disannul the same the Reason and Equity of them ceasing There is not any Bond for the Soveraign Prince to keep the Laws more than so far as Right and Justice requireth Neither is it to be found that the Antient Kings of the Hebrews took any Oaths no not they which were Anointed by Samuel Elias and others As for General and Particular which concern the Right of men in Private they have not used to be otherwise Changed but after General Assemblies of the Three Estates in France not for that it is necessary for the Kings to rest on their Advice or that he may not do the Contrary to that they demand if natural Reason and Justice do so require And in that the Greatness and Majesty of a true Soveraign Prince is to be known when the Estates of all the People assembled together in all Humility present their Requests and Supplications to their Prince without having any Power in any thing to Command or Determine or to give Voice but that that which it pleaseth the King to Like or Dislike to Command or Forbid is holden for Law Wherein they which have written of the Duty of Magistrates have deceived themselves in maintaining that the Power of the People is greater than the Prince a thing which oft-times causeth the true Subjects to revolt from the Obedience which they owe unto their Soveraign Prince and ministreth matter of great Troubles in Commonwealths of which their Opinion there is neither reason nor ground If the King should be Subject unto the Assemblies and Decrees of the People he should neither be King nor Soveraign and the Commonwealth neither Realm nor Monarchy but a meer Aristocracy of many Lords in Power equal where the Greater part commandeth the less and whereon the Laws are not to be published in the Name of him that Ruleth but in the Name and Authority of the Estates as in an Aristocratical Seignory where he that is Chief hath no Power but oweth Obeisance to the Seignory unto whom yet they every one of them feign themselves to owe their Faith and Obedience which are all things so absurd as hard it is to see which is furthest from Reason When Charles the eighth the French King then but Fourteen years old held a Parliament at Tours although the Power of the Parliament was never Before nor After so great as in those Times yet Relli then the Speaker for the People turning himself to the King thus beginneth Most High most Mighty and most Christian King our Natural and Onely Lord we poor humble and obedient Subjects c. which are come hither by your Command in all Humility Reverence and Subjection present our selves before you c. And have given me in charge from all this Noble Assembly to declare unto You the good Will and hearty desire they have with a most fervent Resolution to Serve Obey and Aid You in all your Affairs Commandments and Pleasures All this Speech is nothing else but a Declaration of their good Will towards the King and of their humble Obedience and Loyalty The like Speech was used in the Parliament at Orleans to Charles the 9th when he was scarce Eleven Years old Neither are the Parliaments in Spain otherwise holden but that even a greater Obedience of all the People is given to the King as is to be seen in the Acts of the Parliament at Toledo by King Philip 1552. when he yet was scarce Twenty Five Years old The Answers also of the King of Spain unto the Requests and humble Supplications of his People are given in these words We will or else We Decree or Ordain yea the Subsidies that the Subjects pay unto the King of Spain they call Service In the Parliaments of England which have commonly been holden every Third Year the Estates seem to have a great Liberty as the Northern People almost all breathe thereafter yet so it is that in effect they proceed not but by way of Supplications and Requests to the King As in the Parliament holden in Octob. 1566. when the Estates by a common Consent had resolved as they gave the Queen to understand not to Treat of any thing until She had first Appointed who should Succeed Her in the Crown She gave them no other Answer but That they were not to make her Grave before she were Dead All whose Resolutions were to no purpose without Her good liking neither did She in that any thing that they requested Albeit by the Sufferance of the King of England Controversies between the King and his People are sometimes determined by the High Court of Parliament yet all the Estates remain in full subjection to the King who is no way bound to follow their Advice neither to consent to their Requests The Estates of England are never otherwise Assembled no more than they are in France or Spain than by Parliament-Writs and express Commandments proceeding from the King which sheweth very well that the Estates have no Power of themselves to Determine Command or Decree any thing seeing they cannot so much as Assemble themselves neither being Assembled Depart without express Commandment from the King Yet this may seem one special thing that the Laws made by the King of England at the Request of the Estates cannot be again repealed but by calling a Parliament though we see Henry the eighth to have always used his Soveraign Power and with his only word to have disannulled the Decrees of Parliament We conclude the Majesty of a Prince to be nothing altered or diminished by the Calling together or Presence of the
Estates But to the contrary His Majesty thereby to be much the Greater and the more Honourable seeing all His People to acknowledge Him for their Soveraign We see the principal Point of Soveraign Majesty and Absolute Power to consist principally in giving Laws unto the Subjects without their Consent It behoveth that the Soveraign Prince should have the Laws in his Power to Change and Amend them according as Occasion shall require In a Monarchy every one in particular must swear to the Observation of the Laws and their Allegiance to One Soveraign Monarch who next unto God of whom he holds his Scepter and Power is bound to No Man For an Oath carrieth always with it Reverence unto whom and in whose Name it is made as still given to a Superiour and therefore the Vassal gives such Oath unto his Lord but receives None from Him again though they be mutually Bound the One of them to the Other Trajan swore to keep the Laws although he under the name of a Soveraign Prince was exempted but never any of the Emperours before him so sware Therefore Pliny the Younger in a Panegyrical Oration speaking of the Oath of Trajan gives out A great Novelty saith he and never before heard of He sweareth by whom we swear Of these two things the one must come to pass to wit the Prince that swears to keep the Laws of his Country must either not have the Soveraignty or else become a Perjur'd Man if he should Abrogate but one Law contrary to his Oath whereas it is not only Profitable that a Prince should sometimes Abrogate some such Laws but also Necessary for him to Alter or Correct them as the infinite Variety of Places Times and Persons shall require Or if we shall say the Prince to be still a Soveraign and yet nevertheless with such conditions that he can make no Law without the Advice of his Councel or People He must also be Dispensed with by his Subjects for the Oath which he hath made for the Observation of the Laws and the Subjects again which are obliged to the Laws have also need to be Dispensed withal by their Prince for fear they should be Perjur'd So shall it come to pass that the Majesty of the Commonweal enclining now to this side now to that side sometimes the Prince sometimes the People bearing sway shall have no Certainty to rest upon which are notable Absurdities and altogether incompatible with the Majesty of Absolute Soveraignty and contrary both to Law and Reason And yet we see many men that think they see more in the matter than others will maintain it to be most Necessary that Princes should be bound by Oath to keep the Laws and Customs of their Countreys In which doing they weaken and overthrow all the Rights of Soveraign Majesty which ought to be most Sacred and Holy and confound the Soveraignty of One Soveraign Monarch with an Aristocracy or Democracy Publication or Approbation of Laws in the Assembly of the Estates or Parliament is with us of great importance for the keeping of the Laws not that the Prince cannot of himself make a Law without the Consent of the Estates or People for even all his Declarations of War Treaties of Peace Valuations of the Coin Charters to enable Towns to send Burgesses to Parliament and his Writ of Summons to both Houses to Assemble are Laws though made without the Consent of the Estates or People but it is a Courteous part to do it by the good liking of the Senate What if a Prince by Law forbid to Kill or Steal is he not Bound to obey his own Laws I say that this Law is not His but the Law of God whereunto all Princes are more straitly bound than their Subjects God taketh a stricter account of Princes than others as Solomon a King hath said whereto agreeth Marcus Aurelius saying The Magistrates are Judges over private men Princes judge the Magistrates and God the Princes It is not only a Law of Nature but also oftentimes repeated among the Laws of God that we should be Obedient unto the Laws of such Princes as it hath pleased God to set to Rule and Reign over us if their Laws be not directly Repugnant unto the Laws of God whereunto all Princes are as well bound as their Subjects For as the Vassal oweth his Oath of Fidelity unto his Lord towards and against all men except his Soveraign Prince So the Subject oweth his Obedience to his Soveraign Prince towards and against all the Majesty of God excepted who is the Absolute Soveraign of All the Princes in the World To confound the state of Monarchy with the Popular or Aristocratical estate is a thing impossible and in effect incompatible and such as cannot be imagined For Soveraignty being of it self Indivisible How can it at one and the same time be Divided betwixt One Prince the Nobility and the People in common The first Mark of Soveraign Majesty is to be of Power to give Laws and to Command over them unto the Subjects And who should those Subjects be that should yield their Obedience to the Law if they should have also Power to make the Laws Who should He be that could Give the Law being he himself constrain'd to Receive it of them unto whom he himself Gave it So that of necessity we must conclude that as no One in particular hath the Power to make the Law in such a State that there the State must needs be Popular Never any Commonwealth hath been made of an Aristocracy and Popular Estate much less of all the Three Estates of a Commonwealth Such States wherein the Right of Soveraignty is Divided are not rightly to be called Commonweals but rather the Corruption of Commonweals as Herodotus hath most briefly but truly written Commonweals which change their State the Soveraign Right and Power of them being Divided find no rest from Civil Wars If the Prince be an Absolute Soveraign as are the true Monarchs of France of Spain of England Scotland Turkey Muscovy Tartary Persia Aethiopia India and almost of all the Kingdoms of Africk and Asia where the Kings themselves have the Soveraignty without all doubt or question not Divided with their Subjects In this case it is not lawful for any One of the Subjects in particular or all of them in general to attempt any thing either by way of Fact or of Justice against the Honour Life or Dignity of the Soveraign albeit he had committed all the Wickedness Impiety and Cruelty that could be spoke For as to proceed against Him by way of Justice the Subject hath not such Jurisdiction over his Soveraign Prince of whom dependeth all Power to Command and who may not only Revoke all the Power of his Magistrates but even in whose Presence the Power of all Magistrates Corporations Estates and Communities cease Now if it be not lawful for the Subject by the way of Justice to proceed against a King How should it then be
the Crown does escheat for want of an Heir Whether doth it not then Divolve to the People The Answer is It is but the Negligence or Ignorance of the People to lose the Knowledge of the true Heir For an Heir there always is If Adam himself were still living and now ready to die it is certain that there is One Man and but One in the World who is next Heir although the Knowledge who should be that One Man be quite lost 2. This Ignorance of the People being admitted it doth not by any means follow that for want of Heirs the Supreme Power is devolved to the Multitude and that they have Power to Rule and Chose what Rulers they please No the Kingly Power escheats in such cases to the Princes and independent Heads of Families for every Kingdom is resolved into those parts whereof at first it was made By the Uniting of great Families or petty Kingdoms we find the greater Monarchies were at the first erected and into such again as into their first Matter many times they return again And because the dependencie of ancient Families is oft obscure or worn out of Knowledge therefore the wisdom of All or Most Princes have thought fit to adopt many times those for Heads of Families and Princes of Provinces whose Merits Abilities or Fortunes have enobled them or made them fit and capable of such Regal Favours All such prime Heads and Fathers have power to consent in the uniting or conferring of their Fatherly Right of Sovereign Authority on whom they please And he that is so Elected claims not his Power as a Donative from the People but as being substituted properly by God from whom he receives his Royal Charter of an Vniversal Father though testified by the Ministry of the Heads of the People If it please God for the Correction of the Prince or punishment of the People to suffer Princes to be removed and others to be placed in their rooms either by the Factions of the Nobility or Rebellion of the People in all such cases the Judgment of God who hath Power to give and to take away Kingdoms is most just Yet the Ministry of Men who Execute Gods Judgments without Commission is sinful and damnable God doth but use and turn mens Vnrighteous Acts to the performance of his Righteous Decrees 10 In all Kingdoms or Common-wealths in the World whether the Prince be the Supream Father of the People or but the true Heir of such a Father or whether he come to the Crown by Usurpation or by Election of the Nobles or 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 Supream 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 Judgment therein 9. God governed always by Monarchy 10. Bellarmine and Aristotle's Judgment 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
know that such Mischiefs are unavoidable and of necessity do follow all Democratical Regiments and the Reason is given because the Nature of all People is to desire Liberty without Restraint which cannot be but where the Wicked bear Rule and if the People should be so indiscreet as to advance Vertuous Men they lose their Power for that Good Men would favour none but the Good which are always the fewer in Number and the Wicked and Vicious which is still the Greatest Part of the People should be excluded from all Preferment and in the end by little and little Wise Men should seize upon the State and take it from the People I know not how to give a better Character of the People than can be gathered from such Authors as lived amongst or near the Popular States Thucydides Xenophon Livy Tacitus Cicero and Salust have set them out in their Colours I will borrow some of their Sentences There is nothing more uncertain than the People their Opinions are as variable and sudden as Tempests there is neither Truth nor Judgment in them they are not led by Wisdom to judg of any thing but by Violence and Rashness nor put they any Difference between things True and False After the manner of Cattel they follow the Herd that goes before they have a Custom always to favour the Worst and Weakest they are most prone to Suspitions and use to Condemn men for Guilty upon any false Suggestion they are apt to believe all News especially if it be sorrowful and like Fame they make it more in the Believing when there is no Author they fear those Evils which themselves have feigned they are most desirous of New Stirrs and Changes and are Enemies to Quiet and Rest Whatsoever is Giddy or Head-strong they account Manlike and Couragious but whatsoever is Modest or Provident seems sluggish each Man hath a Care of his Particular and thinks basely of the Common Good they look upon Approaching Mischiefs as they do upon Thunder only every Man wisheth it may not touch his own Person it is the Nature of them they must Serve basely or Domineer proudly for they know no Mean Thus do they paint to the Life this Beast with many Heads Let me give you the Cypher of their Form of Government As it is begot by Sedition so it is nourished by Arms It can never stand without Wars either with an Enemy abroad or with Friends at Home The only Means to preserve it is to have some powerful Enemies near who may serve instead of a King to 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 Inconveniencies of Regal and Popular Government but if we will trust Experience before Speculations Philosophical it cannot be denied but this one Mischief of Sedition which necessarily waits upon all Popularity weighs down all the Inconveniences that can be found in Monarchy tho they were never so many It is 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 villified 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 Commonwealth 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 shedding of Blood 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 embrued with Blood and horrible Murthers the Husbands were slain in the Wives Arms and the Children in the Mothers Laps and yet they that were slain for private Malice were 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 Country or the whole Revenues of certain Cities unto Women for their Beauties or to pleasant Jesters Minstrels or wicked Slaves made free And to some he would give other Mens Wives 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 Baths Washings 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 than to some particular Men that offend him and not to the whole Kingdom It is truly said by his late Majesty King James A King can never be so notoriously Vicious 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
we cannot think that the King would use their Labours without giving them Wages since the Text it self mentions a Liberal Reward of his Servants As for the taking of the Tenth of their Seed of their Vines and of their Sheep it might be a Necessary Provision for their Kings Household and so belong to the Right of Tribute For whereas is mentioned the taking of the Tenth it cannot agree well to a Tyrant who observes no Proportion in fleecing his People Lastly The taking of their Fields Vineyards and Olive-trees if it be by Force or Fraud or without just Recompence to the Dammage of Private Persons only it is not to be defended but if it be upon the publick Charge and General Consent it might be justified as necessary at the first Erection of a Kingdom For those who will have a King are bound to allow him Royal maintenance by providing Revenues for the CROWN Since it is both for the Honour Profit and Safety too of the People to have their King Glorious Powerful and abounding in Riches besides we all know the Lands and Goods of many Subjects may be oft-times Legally taken by the King either by Forfeitures Escheat Attainder Outlawry Confiscation or the like Thus we see Samuel's Character of a King may literally well bear a mild Sense for greater probability there is that Samuel so meant and the Israelites so understood it to which this may be added that Samuel tells the Israelites this will be the manner of the King that shall Reign over you And Ye shall cry because of your King which Ye shall have chosen you that is to say Thus shall be the common Custom or Fashion or Proceeding of Saul your King Or as the Vulgar Latine renders it this shall be the Right or Law of your King not Meaning as some expound it the Casual Event or Act of some individuum vagum or indefinite King that might happen one day to Tyrannize over them So that Saul and the constant Practice of Saul doth best agree with the Literal Sense of the Text. Now that Saul was no Tyrant we may note that the People asked a King as All Nations had God answers and bids Samuel to hear the Voice of the People in all things which they spake and appoint them a King They did not ask a Tyrant and to give them a Tyrant when they asked a King had not been to hear their Voice in all things But rather when they asked an Egge to have given them a Scorpion Unless we will say that all Nations had 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 smiting 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 Judge 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 God's 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 whatsoever 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 Apology 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 Jews 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 Jews for in this he gave Direction for all Nations who are bound as much in Obedience to their
much as the Natural Law of a Father which binds them to ratifie the Acts of their ForeFathers 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 Judgments indifferent and upright Justice 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 Judgment are Upright and those not literally always but according to Equity of his Conscience joyn'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 Kingdom 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 Error 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 denied the Priviledg 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 Humane 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 Unlawfull 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 tie the Master to acquaint his Servant with his secret Counsels or present Necessity And in such Cases the Servant 's 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 King's Prerogative to Relieve men against the inexorable rigour of the Law which without it is no better than a Tyrant since Summum Jus 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
King Edgar in these words as I find them in Mr. Lambert Nemo in lite Regem appellato nisi quidem domi Justitiam 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 Justices 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 Process 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 Malicious Suggestions made to the King and His Council especially during the time of King Edward the Third whilst he 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 Process 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 Justices 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 Outrages the Common Law cannot have duly her Course in such case the Counsel 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 Subpaena's 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 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 Denial for the present by a Phrase peculiar for the King 's 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 Freehold of Inheritance And yet that upon cause reasonable upon credible Information in matters of weight the King's Regality 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 James Audley to
the King alone at the Rogation of the People as His Majesty King James 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 Supream 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 Justices of the Bench Greeting c. Explanationes Statuti Glocestriae made by the King and his Justices only were received always as Statutes and are still Printed amongst them The Statute made for Correction of the 12 th 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 King's 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 King's Letters to his Treasurer and Barons of his Exchequer and to his Chamberlain The Statute of Circumspecte Agis runs The King to his Judges sendeth Greeting There are many other Statutes of the same Form and some of them which run only in the Majestick 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 Origanally 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 Subjcts 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-Comission 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 Earls 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 King's 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 Edw. 1. made at his first Parliament General by his Council and by the Assent of Bishops Abbots Priors Earls 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 King's Council forasmuch as all the King's Council as well Justices as others did agree that they should be put in writing and observed The Statute of Acton Bunnel saith The King for Himself and by His Council hath Ordaind 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 King's 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 King's 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. Edw. 3. saith Whereas the Knights Citizens and Burgesses desired 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 Earls 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 Earls 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 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 Judgment was ideo sine die It seems in those days an Order of the Council-Board was either parcel of the Common-Law or above it The Reverend Judges have had regard in their Proceedings that before they would resolve or give Judgment 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 Justices of Assize at Westminster the Judges would have the Advice of the King's 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 King's 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 Judgment 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 Judgment 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 Judges by Parliaments and so find that the King's Council hath guided and ruled the Judges and the Judges guided the Parliament In the Parliament of 28 Hen. 6. The Commons made Suit That William de la Poole D. of Suffolk 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 Judges 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 damages in an Action of Trespass and was committed to Prison in Execution for the same When the Parliament was reassembled 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