this State of the Empire and of absolute Sovereign Princes (x) Leges jubere universis singulis civilâ—s dare De Repub lib. 1. c. 10. lib. 3. Bodin saith it is the first and principal part of Majesty to command Laws and impose them on all and singular the Subjects and he saith That in the Emperors time the name of the Senate was inscribed only to testify such Laws were made and to render them more acceptable to the People by the opinion they would then have that they were made with Council and Prudence So (y) Polit. c. 11. Law-making the Prerogative of Sovereign Princes Anisaeus ranks it among the first of the Jura Majestatis to make Laws for that the Government saith he is for the most part by Laws therefore they should be in the hand of the Sovereign for that they have no Power but as they are inforced by his Authority who possesseth the Plenitude of Empire I shall only note a few things of the absoluteness of the Roman Emperors in point of Law-making or abrogating and so pass to the considerations of our English Monarchy referring the larger and more explicit treating of it to the Chapters of Parliaments In the Capitol now Lateran Palace is extant a Table of (z) Gruteri Inscript p. 142. A Fragment of the Lex Regia yet extant Brass where is to be seen a fragment of the Lex Regia renewed as to Vespasian confirming many things of Sovereign and sole Authority as descending upon him from his Predecessors and enacting That what he had done decreed or commanded before his Ratification should be held and taken for as good Law as if the People it self had done decreed or commanded it So that tho' he might make use of the Senate or Peoples Ratification yet his Right was as strong before So (a) Tit. De Legibus lib. 1. Constantine challengeth to himself alone Authority to judge betwixt Law and Equity and so in point of Repeal of Laws (b) Non ab aliis sed a sese leges abrogatas suisse Lib. 3. Theodosius and Valentinian say That the Laws were to be abrogated by no other but themselves It is not to be doubted but that great and vast Empires require for their better Government a more absolute Power in the Sovereign to make Laws suitable to Emergencies for the Preservation of the whole So the Ottoman Empire and those of China Persia and the Mogul could not well be conserved entire without it Yet in these there are established Laws agreeable to the Laws of Nature and of Nations whereby the Rights of meum and tuum to Strangers are adjusted and the Subjects though they have no Property like the Europaeans yet are kept in Order and under Protection of the Laws and their Absoluteness consists principally in the ordering the Execution of any Subject without Juridical Process in placing and displacing Governours or depriving Cities Provinces and Kingdoms of Priviledges I have enlarged upon this Head to show how happy we are in England The happy State of England in the disposing of the Legislative Power that though the Force and Vigor of all our Laws flow from our Sovereigns Paternal Care â—â—ace and Bounty yet in the Point of making and abrogating Laws not only Consultation is had with so venerable a Body as the two Houses of Parliament are but nothing is done by the Sovereign without their own Preparation of Bills for his Royal Assent A wise and wealthy part of which are chosen by our selves and by the Kings Permission impowered in that particular to act for us in deliberating upon and fashioning such Bills as they petition the Sovereign to grant So that what the Judicious (c) Preface to the Reader Comp. History Dr. Brady after many other learned Men asserts is most true That by time and the Concessions of our Kings the Subjects of this Government have and may enjoy all Freedom and Happiness that sober rational Men can desire and such as is no where to be found but in this Island and the Dominions to it belonging nor can any Man that loves his Prince or Country wish for other than the present Constitution By the whole series of great Councils in the Saxon times until 49 Hen. 3. and the Parliaments succeeding I shall make it clear That the Royal Assent is that which forms the Preparatory Bills presented by both Houses into Laws and that in ancienter times the Laws were made by the Kings sole Grant by way of Charter I shall here only lay down some Preliminaries to shew in general what the ancient Usage was referring Particulars to the following Chapters First it appears That there were no certain (d) Sheringham's Supremacy p. 51. Anciently Kings called whom they pleased to advise them in making Laws Persons designed by Law whose Concurrence was required to constitute a great Council but the Kings used the Advice only of those whom they pleased to call unto themselves who were always such as they thought most able to counsel and direct them in the matters that were to be consulted of and whose assent was most likely to add most Credit and Estimation to the Laws that were to be divulged So we find in (e) Chron. Sax. Anno 670. fol. 516. And tha haefde getheal mid his witum freondam mid heora Teymenysse fultum gethafunge Christes geleassan onfeng Bed Eccl. Hist lib. 3. c. 22. Bede that Segebert or Sigbercht who was King of the East Saxons in the time of Oswi King of Northumberland who perswaded him to become a Christian held a Council with his Wites i.e. Nobles and Wisemen and his Friends and by their Advice Aid and Consent received the Christian Faith We find that Offa King of the Mercians made Laws without the Assent of his Great Council for he being at Rome (f) Mat. Paris vita Offae p. 171. Hoc autem per totam suam ditionem teneri in perpetuum constituit golng into the School of the English which was there out of his Royal Munificence He gave to the support of the People of his Kingdom that should come thither a Penny to be paid yearly for ever out of every Family by all whose Goods in the Fields exceeded the value of Thirty Pence and this he made a perpetual Constitution throughout all his Dominions excepting the Lands conferred upon the Monastery of St. Albans This Imposition and Law continued a long while in force though we find it not confirmed by any great Council in his own time or his Successors only in the Laws of King Edgar and King Edward it is enjoyned to be payed as the Kings Alms which implies it was the Kings Gift solely not by consent of a great Council So his Son (g) Matt. Paris Auct additam fol. 239 240. Ecgfrid grants Thyreseld to St. Albans with the Consent and Testimony of his Magnates which imports it to be granted by Consent of a Great
is not only able to master and subdue others but also his own oppressive and extorting disposition which he saith a King that governs Politically can do and ever doth Therefore we may look upon all such as now or in the late times have made such terrible outcries for fear of their Properties being invaded since we find two such great Men in distant ages so freely and elaborately writing against Arbitrariness as men that rather design Sedition and Rebellion by raising in the Peoples minds groundless jealousies and fears than that there can be any umbrages of such fears in the constitution of the Government especially under such a just Prince as we have who will make the Laws the Rule by which he will square his Royal Administration and hath given such assurance of it in his never to be sufficiently valued Declaration at his Majestie 's first sitting in his Council to the infinite joy of his Subjects of all conditions Therefore since we have our Properties so well secured and provided for by the gracious Grants of our Sovereigns in Magna Charta the Petition of Right and other Acts let us thankfully acknowledg this great Blessing and with so much more duty and industry endeavour to defend in our several capacities the Royal Prerogatives of our Kings which as much appertain to them and in a more transcendent way than our Properties are ascertained unto us For it must be owned that the primary end of all Government is for the better ordering the People whereby they may live in accord among themselves and follow their several imployments under the protection of the Soveraign Therefore whoever endeavour to disjoynt and discompose the frame of Government by the wisdom of our Ancestors and long experience found so agreeable to the English Genius are to be reputed either ignorant of their own happiness or designers of as horrid mischiefs Whether they be such as according to Mr. Hobs's Principles may lessen the affection and tenderness of Princes to their Subjects or lessen the duty and obedience of Subjects to their Prince and make them less love the constitution of Government they live under or they be such as would cramp the Sovereign Power and wrap it in soft Ermines and Robes of State without a Sword or Scepter Having thus far treated of Government in general and of the usefulness of it to mankind I think it necessary to give an account of the several Governments which have been hitherto used in the World and that I may give a more distinct account of them I have chosen to represent them as I find they have been practised in the ancientest times and finding so many in the last age and this so zealous for a Commonwealth-Government and some yet bewitched with the notions of it I think it incumbent on me to be more copious in the representing of the inconveniences of all other Governments besides Monarchy tht as far as my reading may afford me helps I may disabuse his Majestie 's Subjects and represent to them the excellency and beauty of the English Monarchy which is the whole scope and intendment of this discourse and I must beg pardon if either in the words of my Authors whom I shall endeavour faithfully to quote or in my own I use any smarter or sharper expressions than they are willing to hear For I think it much more advantageous to the persons concerned that they feel the acrimony of my Ink and the small punctures of my Pen than that following such mischievous Principles of our late Republicans they should have their bloods tainted or suffer the edge of those severe Laws which are steeled against Rebels and think it safer for them to be blackned by my Ink than that their blood should stain the Scaffolds CHAP. VI. Of Democracy and the Inconveniences of it ALL Ages have allowed of Aristotle's division of Government where he saith (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. l. 3. c. 7. that the Republic and the public Administration are the same and this public administration is the Lord or Sovereign of the City and that Sovereign is either one a few or the multitude 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 In Democracy the People is the Prince and in Oligarchy the few To this division (c)) 4. Annal. Tacitus assents where he saith Cunctas Nationes Vrbes Populus aut Primores aut singuli regunt That either the People the principal Citizens or single Persons govern all Nations and Cities Every one of these are again subdivided The Government of one is either a (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. l. 3. c. 7. King who rules for the good of his whole Subjects or a Tyrant who pretending the Protection of the People against the too severe Rule of a King or the States exerciseth Arbitrary Rule over all The few constitute an (e) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. li. 4. c. 8. Aristocracy wherein a select and small number of the principal Citizens Rule for the public good or Oligarchy where the Rich only rule for their particular Profit As to the Rule of the People or wherein all the People have by amicable consent an equal right in the Government and accord to manage it for the common good of the whole it is call'd Democracy If not for the common benefit of Rich and Poor it is call'd Oclocracy or the mis-rule of the Rable All (f) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which he includes in that division that whatever forms of Administration regard the common benefit they are regular and such as are consentaneous to Justice but whoever having the Administration consult their own Profit only they are depraved and distorted from the right Forms of Government The 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a mixture of all these or any two of them is often mentioned by the Philosopher but of this I have no present occasion to discourse I shall begin with democracy which is the Clay and Iron Feet of Nebuchadnezzar's Image It is but one remove from Anarchy wherein all the People have or pretend to have equal right to Authority where all govern and all obey For the People saith the Philosopher is a Monarch or simple Government by aggregation of many being many Lords not as single Persons but as Members of the All which he thus expresseth (g) Polit. l. 4. c. 4. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Of this sort of Government the (h) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. Philosopher makes five Kinds The first when Rich and Poor are equally capable of Government Subdivisions of Democracy The second when a small real Estate is required to capacitate them A third where all Citizens not by some Qualifications debarred are admitted but so that the (i) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Laws govern or are the Standard A fourth where only the Inhabitants of the City not those that live dispersed in the Villages depending on the City had share in Government the Law also being the Rule The
affords us many Examples of Persons selling their Country and putting their great Councils upon ill attempts and labouring with their utmost cunning to frustrate good Designs because their Dependance upon a Foreign State or Kingdom was worth much more unto them than they could hope to gain by honest Service to their Country Supposing both the King and Optimacy be willing to promote the Peoples Happiness yet he is more able to compass that End by reason he hath a more United Power and the Execution of all Designs depends upon a single resolve and therefore may be managed with a certain closeness and all convenient swiftness so that good Councils shall be first discovered in their effects Whereas a great Body move slowly and most times the opportunity of Doing is gone by while they are but half way in their deliberation Besides More Inconveniences under Common-wealths than under Kings cateris paribus as there are many Advantages peculiar to Monarchy as in these three Chapters I hope I have evinced so there is not one Inconvenience to which a People living under Aristocracy are not subject in a much higher Degree than they are under Monarchy For supposing a King cruel yet one Man's Cruelty cannot reach so many as that of Multiplied oppressors when every one takes their peculiar Province to fleece or exercise their Lordliness over according as their Estates or Interests are divided The Covetousness likewise of Senators is more devouring because we may feed one Fire with less Expence of Fewel than five Hundred A Princes profuse Largesses to his Favourites is infinitely over-balanced by so many providing for their poor Kindred and making Friends and purchasing Dependants This very thing must likewise be practised by Senators for underproping their several reputations hiring Advocates to plead for them in their absence purchasing of Votes in their private concerns and obtaining of Offices Places and Estates for themselves and their Relations So that these must require more considerable Supplies from the People who must be squeezed every time any single Grandee wants than are necessary to nourish the Liberality of a Prince who hath a large Patrimony standing Revenue and places of Honour and Profit to gratify his Servants withal The wisest States having made ample allowances to their Princes to enable them to bestow Favours according to Merits or liking Some think that of Ecclesiastes Wo to thee O Land when thy King is a Child a strong Argument against Monarchy Another Objection answered because this Calamity is not incident to a Senate because they are not subject to Nonage But the place rightly understood saith a learned (i) Idem p. 23. Writer whom I have epitomized in the Parallel is a very full Confirmation of the happy Condition we have reason to expect under Monarchy and of the Calamities and Woes which probably attend an Aristocracy For the cause of those Miserie 's foretold is plainly thus A King during his Infancy being not able personally to Rule the Government is managed by the Nobles and thence come Factions and all the Mischiefs that accompany them To close therefore this Chapter we may consider that Kings have no Rivals whom they fear and must keep under as Governours of Commonwealths have which is no small Blessing to a People Kings as Proprietors take all the care possible saith a very (k) Jus Regin◠p. 58. Learned Author to improve their Dominions whereas Republicans are as Tenants mind nothing so much as their private Profit and the very Pretenders to Liberty and Property in this and the last Age have been the great Cheats of the Nation They when raised to govern grew insolent whereas Princes are still the same and their Passions rise not because their Fortunes do not The Prevailing Factions in Commonweals spare none that oppose them having no consideration of them but as Enemies whereas Kings pity even Rebels as considering them still as their Subjects and though I cannot say with my (l) Idem Author of one Year yet I may say of the whole time of the Usurpation That more were murthered and ruined in that Reforming Age than suffered by the Great Mogul and King of France in that space of time and more Severity was exercised by those Reformers than by all the Race of our Kings these Six hundred years And whatever Evil Ministers Kings are said to have yet what that Judicious Author notes of Scotland we may say the like of England That after they had taken from the Blessed King his Prerogative of chusing Judges and Councellors the Parliament did the next year put in I will not say with him the greatest Blockheads and Idiots in the Nation but men of much meaner Parts and more corrupt and unfit either for knowledge or the upright dispensing of the Laws Justice and Equity than any Age had known I have discoursed of this Head before and so shall say no more but that as well as in Antient times the unequal Distribution of Justice hath been noted so the Severity of the State of Venice against their Nobles and the executing Men without Citing or Hearing upon meer Jealousies induced a wise Spaniard who hath collected the Arbitrary Courses practised and allowed in that State to say That there is less of Liberty there than under the worst of Monarchies And for the State of Holland it hath been more than once observed how ingrateful they have been to all their Neighbours who have assisted them in their greatest need and with what a Jealousie they treat the Prince of Orange whose Ancestors setled them in the Possession of what they have as well as to the Crown of England is obvious to common Observation By them their Allies have been unworthily deserted In the matter of Trade no Pact or Faith hath been kept In their Country Mint and Cummin Coleworts and Herbs are excised nothing worn nothing fed upon or necessary for Humane Life but pays something to their Exchequer You pay a Tribute for the Ground you walk on for the Rivulets you pass on only they have not yet found out a Tax upon their Foggy Air. CHAP. X. The Character of a good King in general BEfore I come to treat of the Sovereignty I think it convenient to discourse of the usefullest Qualifications of Monarchs and the benefits that will redound to themselves and their Subjects thereby The (a) Ethic. 8. c. 10. Polit. lib. 3. 5. c. 4. Philosopher in several places compares a King to a Parent and Shepherd but a Tyrant to a Lord over Slaves and a Wolf Difference of a King and a Tyrant The One in his Government having a special Regard to the Peoples Benefit the Other governing without or against Law pro nutu arbitrio reducing all things under their absolute will and Power in such a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as is unhappy to their People and in the Conclusion to themselves The ancient Authors Description of a Good
Clem. lib. 1. c. 3. being that Soul that Life which enlivens directs and orders all the Subjects in their several Capacities more sensibly than the Philosophers Aether or Anima Mundi doth the Macrocosm or Sublunary World Therefore Seneca saith of the Soveraign That he is the Bond which holds fast the State together he is that vital Breath which so many Thousands draw in which otherwise as a liveless and unwieldy Load would prove a Booty if that Soul of the Empire were taken away Of this Sovereignty of Princes it is that (s) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 phant apud Stobaeum Serm. 46. Kings called Gods as deriving Authority from God or his Vicegerents Ecphantas the Pythagorean saith It is the Priviledge first of God and then of the King under him not to be ruled by any and it may be rationally conceived that it was from this sence of absolute Sovereignty flowing from the Divine Being that disposeth of the great and weighty Affair of Government That Sovereigns are both â—n Scripture and by Heathen and Christian Writers called Gods The import of which Name being a Denomination of a Being Sovereign over other subjected Beings In the Chapter of Monarchy I have recited some of the expressions in Scripture and for Heathen Writers one can scarce read any Historian where their Emperors are not called Dii or Divi (t) Contzen de Rep. lib. 7. c. 4. and in Justinian Divus Imperator is generally used for Emperor So the Majestic Pavillions or Cloath of Estate under which the Emperors usually sate were called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 little Heavens for such Gods to sit under and tho' some (u) Sueton. in Domit. c. 13. affected these too much or had them given them by their Flatterers as in Martial of Domitian Edictum Domini Deique nostri and the Persian Monarchs more than any affected such Titles as (w) Aâ—â—mian Marcel Hist 17. Rex Regum Sapor particeps Syderum Frater Solis Lunae Sapor King of Kings partaker of the Stars or one endowed with the Heavenly Nature of the Stars Brother of the Sun and Moon yet if we take these Expressions in the sence of the Emperor Cantacuzen it may be allowed For he saith (x) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Apol. 6. adv Mahâ—met That absolutely the Name of Lord and so of God is only due to God Almighty and that man hath it with some Addition of Person or Place And we may consider that as the Supremacy of Princes and their Governments is delegate from the highest their Judgment being also called his so in a general Name they are titled Gods even by God himself (y) Sthenid Pythagâ—apad Stobaeum Ser. 46. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 because here on Earth they should for their Power be his Imitators and we find the Apostle Rom. 13. calls Supreme Governours Potestates supereminentes In the Codes we frequently read long after Christianity was received nostra Divinitas nostra Perennitas nostra Aeternitas Divinae Vocis Oraculum Yet we find the Christian Fathers refusing to give the Title of God to the Heathen Emperors So (z) Hist Eccles lib. 6. in Prâ—â—â—m 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Socrates saith He doubts he shall be reprehended of some because he did not stile the Emperors most Divine and Lords and by other Titles which the use of times had allowed And (a) 〈…〉 imperatorem qui dâ—um diciâ— nisi homo sit non est Imperator Apol. c. 33. Tertullian saith That he cannot call the Emperor God either because he cannot lie or dare not mock him or because he will not be so stiled who is a Man For he denies him saith he to be Emperor who calls him a God for unless he be a Man he is no Emperor This stile of God the Samaritans gave to Antiochus (b) Joseph Archaeol 12. c. 7. Epiphanes stiling him in their Epistles God who had to his utmost defiled the Temple of the true God So the Jews in their (c) Act. Apost 12. v. 22. Acclamations stiled Herod Agrippa no longer Man but a Deity and (d) Cato in Orig. apud Macrob. Mezentius commanding his Subjects to offer unto him all such Sacrifices as they had Destinated to the Gods professing withal that no Deity was above himself justly deserved the Title of contemptor Divûm The obsequious Impiety in the Elder times saith (*) Titles of Honour part 1. c. 4. Mr. Selden of attributing the Name of God to the Emperors was the Cause it seems that as well in the Christian as Heathenish Times and States Swearing by the Prince the Subjects of the Empire continued that ill Custom of swearing by their Princes So in Antoninus's and Commodus's time it was usual to swear per Genium Principis per Principis Venerationem as it is in a Rescript of (e) Const it Alex. Sev. c. De rebus creditis Alexander Severus under whom the learned (f) Citius per omnes Deos quam per unum Genium Caesaris pejeratur Apol. c. 28. Tertullian upbraids the Romans that they readilier forswore themselves by all the Gods than by the one Genius of Caesar Horace speaking of Augustus saith Jurandasque tuum per Nomen ponimus Aras and (g) Nam Imperatori cum Augusti nomen accepit tanquam praesenti corporali Deo sidelis prastanda est devotio impendendus pervigil samulatus Deo enim vel privatus vâ—l militans servit cum sideliter eum diligit qui Deo regnat autore Veget. de Re milit c. 5. The Names of Heathen Deities in the Names of Kings Vegetius gives the Reason for it because to the Emperor when he takes the Name of Augustus upon him faithful Devotion is to be exhibited and watchful Service as to a present and corporal God For he that is a private or a military Person serves God when he faithfully loves him who governeth by Gods Authority from whence and many other Authorities the great Selden saith it appears how both among Christians Mahometans and Heathens a certain Sanctitas Regum as in Suetonius Julius Caesar calls it was specially regarded and he instanceth in many Nations who had a Deities Name in the Kings as from Baal and Astaroth Beleastartus Abdastartus Ithobaal so from Nebo a Babylonian Idol Nebuchodonezar Nabopollassar so from Belin or Abellio a British Deity Cassebelin Cynobelin All which seem not only to be the Affectation of the Princes but to be intended to denote the Divine Character that Princes bore Titles of first Founders of Empires continued to Successors Caesar Hence we may Note Titles of first Founders of Empires continued to Successors Caesar That the Name of 〈◊〉 Czar is used by all the German and Muscovite Emperoâ—s because the Roman Empire was founded by Julius Caesar and this Custom was of older Date For in Holy Story all the Aegyptian Kings 'till Solomon's time are called Pharaoh which was not a proper Name or Sirname of
a Family but only a Title which every one had belonging to him as he was King which as Manetho saith begun in Pharaoh Narecho and Josephus saith in Menis much ancienter than Abraham but Suidas is positive That it was derived from the first King or him that first had that called Ptolomies So the Parthian Princes from Arsaces their first great Monarch were called Arsaces according to whose Memory saith (h) Cujus memoriae hunc honorem Parthi tribuerunt ut omnes exinde Reges suos Arsacis nomine nuncupent Hist lib. 41. Justin the Parthians attributed that Honour that all their Kings from thence forward were called Arsaces So the Title of Augustus was given to Octavius next Successor to Julius by the Senate as if he had been something more than Human saith (i) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 In vita Dio And as (k) Non tatum novo sed etiam ampliore cognomine quod 〈◊〉 quaeque Religiosa in quibus Augurato quid consecratur Augusta dicuntur Suetonius saith not only by a new but a more ample Sirname because that all Religious places in which any thing Augurly was consecrated were called Augnsta for which he cites Ennius Augusto Augurio postque inclyta condita Roma est This came from Augeo which besides the common sense of it is a proper word enough to sacrifice as augere Hostias and in Sextus Pompeius Augustus is interpreted Sanctus the Greeks interpret it by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Venerable or most honourable and it seems to be translated from the holy Use of the Word whence it was derived and as (l) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 In vita Dio saith a Designation of the splendor or greatness of their Dignity the Emperors after were stiled Caesares Augusti neither of the words denoting any Power in them but are now and ever since the first Family ended honorary According to this kind of continuance of Names in Succession are those Patronymics of Achemenidae in the Persian Kings Alevadae in the Thessalian Cecropidae in the Athenian from Achemenes Alevas Cecrops So the Alban Kings in Italy had every of them the addition of Sylvius most of the Bithynian Kings were called Nicomedes In the latter times the Constantinopolitan Emperors much affected to give their Children and themselves the great Name of Constantine So were the Danish Kings anciently titled Shieldungs from their King Shield The French had their Merovings and the old Kentish Kingdom here its Oiscings from Merove and Oisca Concerning this successive assuming such honorary Names from the first Families the curious Reader may observe many more in the most disquisitive Mr. Selden The use I make of it is to show That Sovereign Princes The Reason of such Titles as some of them affected to derive their Power and Authority from the Deity so others from such as had been more Signal and Eminent in their several Reigns that they might with the Title seem to derive a Fame Glory and Authority from them and in those Attributes be judged their rightful Successors Of the first Kings from Adam Before I treat of some Attributes that are given to Sovereign Princes I shall take notice of some things I have either omitted or less fully explained in the Chapter of Monarchy especially considering it will give some light to the Authority and Sovereignty many learned Men have ascribed to Princes in general (m) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Cedrenus Cedrenus makes Adam the first King and Governour when he saith he governed or commanded all mankind as long as he lived and Seth succeeded him in the Empire and if we may believe the Letter of Alexander the Great to Aristotle mentioned by (n) Lib. 2. c. 11. Joseph Ben Gorion a Jew and Rabbi Abraham Zacuthius and others Kenan the Son of Enoch Grandchild of Seth was Emperor over all the World In Berosus we find the Kings of Chaldaea that were before the Flood were Alorus Alasparns Amchon Amenon Metalarus Daorus Adorachus Amphis Ottartes and Xisuther which according to Cedrenus and others was Noah From him the Greek Authors derive the supreme Monarchy of the Earth to Sem. The first mention in Holy Writ of a Kingdom is that of Nimrod's The first Kingdom from Nimrod of whom Moses saith The beginning of his Kingdom was in Babel Erech Acad and Calna in the Land of Sinaar and he is by most Writers judged the Founder of the Assyrian Monarchy which he had begun about the Forty fifth Year of Abraham Cedrenus saith The Assyrians made Nimrod a God and placed him among the Stars of Heaven and called him Orion In his Age saith the Judicious (o) Tit. Hon. ◠1. p. 1◠Selden there was so general a Propagation of this Title of King over the Earth that there is scarce a Nation whereof there is Memory in those Ages without a King or Prince or Monarch assigned to it So besides the Division of the Earth among Noah's Posterity said in Scripture to be according to their Language and according to the Families in their Nations we find in Profane Histories Kings first Governours in all Countries that the Kingdom of the Sicyonians began in Aegialeus that of Tanaus in Scythia and of Vexoris in Aegypt and others are cast in in the Age of Nimrod In the Holy Text also are frequent Occurrences of Kings to be referred to that Age as that of Abraham's Wars with Kedorlaomer King of Elam and the Kings of divers other Nations are mentioned whence it is (p) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Cedrenus saith that about Serug's days who was born about 170 Years after the Flood Men arrogating to themselves Power over each other made themselves Emperours and Kings and did first use Arms and made War on each other Afterwards the Course of the Holy Story shews us the same not only naming expresly the particular Kings which had been made either by Sword or by Choice but saith The Israelites desired Samuel to give them a King to judge them according as all other Nations had Although saith Mr. Selden divers of the chiefest States of the old Grecians and I think saith he only of the Grecians in the elder Ages were in their most flourishing Times Democracies or Optimacies yet the more ancient States there were in every place Monarchies as is expresly noted by (q) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 In Boeoticis Pausanias That every where in Greece in the ancient Times their States were Monarchical and not Popular Having premised this I come now to the Epithets given to such Sovereign Princes as Kings Emperours Lords and the Attributes of Majesty c. in the Abstract or in the second or third Person and other high and lofty Titles given to them either justly The Title of Kings or by Flattery Concerning Kings The Title of Kings the Account that I have given of them in the Chapter of Monarchy may suffice I shall only add That
by whose Council and Advice the Kings used in the making Laws are the Witan Wites From Wita which Womner renders Optimas Princeps Sapiens a Nobleman Prince or Wiseman from witan to know and understand So in the Laws of King Ina we read Gethungenes Witan a famous noble or renowned Wite from Gethungen So in the version of Bede by King Alfred Witum is rendred Counsellors so by Sapientes when we meet with it in any Authors that render Witan by it we are to understand not only Judges but sometimes Dukes Earls Prapositi Provosts Thegns the King's Officers or Ministers So in the Charter (i) Histor Privileg Eccl. Eliensis fol. 117. b. of King Edgar to the Church of Ely Anno 970. Alferre Egelwinc and Brithnoth are called Dukes and Hringulph Thurferth and Alfric are called Ministri The first of which in another Charter is called Alderman and the other by the name of Sapientes Upon perusal and collating several Transcripts of Deeds and Councils I am of opinion that where Wites or Sapientes are used for Princes Noblemen and great Personages those are to be understood that were called to the Kings Council had command over Countries as Lord Lieutenants or were Members of the great Councils So that they were of the most wise and knowing of the great Princes Dukes Earls and Barons and where it doth not seem to import such great Men of Birth then it signifies Judges Which as to the first seems to be clear by what is said in the Auctuary (k) Lamb. fol. 147. tit de Heretochiis Qui Heretoches â—pud Angloâ—voâ—abantur se Barones Nobiles insignes sapientes vocati ductores excercituum c. to the 35 Law of Edward the Confessor where it is said There were other Powers and Dignities appointed through the Provinces and all the Countries and several Shires which are called by the English Heretoches in King Ina's Laws Here Thegne i. e. Noble Ministers or Officers and when he reckons up those who were to be understood by this name Heretoges he calls them Barons Nobles and famous Wisemen called Generals or great Officers in the Army and as to the latter Signification Doctor Brady hath sufficiently cleared it in Adelnoth's Plea against the Monks of Malmsbury where it is said that in the Presence of the King subtili disceptatione a Sapientibus suis i. e. Regis audita where by Sapientes must be understood the King's Judges Alderman Alderman or Ealderman was both a general Name (l) Spelman 's Glossary given to Princes Dukes Governours of Provinces Presidents Senators and even to Vice-Roys as also to particular Officers hence Aldermannus totius Angliae like my Lord Chief-Justice Aldermannus Regis Comitatus Civitatis Burgi Castelli Hundredi c. of whose Offices it is not easy particularly to define This being so copiously discoursed of by Sir Henry Spelman I shall refer the Reader to him The word Thane or Thegen was used by the Saxons in their Books variously sometimes it signified a stout Man Thane Soldier or Knight other times Thanus (m) Cyninges Thegen Med mera Thegen Woruld Thegen Maesse Thegen Somner Dial. Regius signified the Kings great Officer a Nobleman or Peer of the Realm other times a Thane or Nobleman of lower degree sometimes we meet with secular or Lay Thanes other times Spiritual Thanes or Priests Some Thanes were as the King's Bailiffs Praefects Reeves of which Doctor Brady gives account in his Argum. Antinorm Page 283. In several of the Councils we find no particular orders denominated but only a division of the whole into the Clergy Clergy and Laity and Laity So in the Council that Sir H. Spelman (n) Spelm. 1. Tom. Concil tells us Ethelbert King of Kent held 685. with Bertha his Queen and Eadbald his Son and the Reverend Bishop Austine Communi concilio tam Cleri quam Populi and the rest of the Optimates Terrae at Christmass having called a Common-Council of the Clergy and People by which it is apparent that both the Clergy o and Laity there understood are comprehended under the name Optimates Terrae the Nobility of Land So in King Ina's Laws as I shall hereafter particularize the command is given to Godes Theowas Gods Servant and eales folces all People So King Edmund held a great Council at Easter in London of Gods (p) Egther ge godcundra hada ge woruld cundra Order and the Secular Order or Worlds Order which Brompton (q) Mandavit omnibus Majoribus Regnorum veniunt Wintoniam Clerus Populus renders Laici in another part of King Edward's Laws So the Majores Regnorum of King Edgar are commanded to come and then it is said There came to Winchester the Clergy and People those were the Majores Regnorum The like was frequently used after the Conquest so at the Coronation of Henry the First Matthew Paris speaks of the gathering of the Clergy and all the People and then saith Clero Angliae Populo universo The Clergy answering him and all the Magnates and in another place Clero Populo favente the Clergy and People favouring Further we find in a great Council held by the King Anno 1102. 2 H. 2. (r) Omnes Principes Regni sui Ecclesiastici secularis ordinis Flo. Wigor fol. 651. lin 21. all the chief Men of his Kingdom of the Ecclesiastic and secular Order So that Plebs Populus Vulgus Incola where by way of Antithesis or contra-Opposition they are used do signify the Clergy and Laity or Lay-Princes not the common People After the Conquest we meet with the Word Regnum sometimes and other times Regnum Sacerdotium As to the first the Sence is to be understood best in the Quadripartite History (s) Quadrilog lib. 1. c. 26. of the Life of Thomas Becket where it is said the King called to Clarendon Regnum universum all the Kingdom and then saith To whom came the dignified Clergy and the Nobles which Matt. Paris puts out of all doubt by the enumeration that he makes of all that appertained to the Kingdom to be the Arch-Bishops Bishops Abbats and Priors Installed and the Earls and Barons So the meaning is best understood of the words in the last Chapter of Magna Charta that the Arch-Bishops Bishops Abbats Priors Earls Barons Knights and free Tenents and all of the Kingdom gave a fifteenth part of their Moveables and in other places after the Barons it is said Omnes alii de Regno nostro qui de nobis tenent in Capite concerning which the most Learned Doctor Brady hath given plentiful Proofs Magnates Proceres By the words Magnates Proceres frequently found in the Councils after the Conquest are to be understood the Arch-Bishops Bishops Abbats and Priors for the Clergy and the Earls and Barons for the Laity only unless afterwards that Dukes were included However they were used always to contra-distinguish
had with Ecclesiasticks and Laicks and in the Laws it is often said Thonne cwaedon these we pronounce or appoint and sometimes the single person is used and in other places us betweonan heoldan it is holden betwixt us Here we find the Great Council summoned by the King and the constituent parts of it to be the Clergy and Laity and that the Laity were only the Princes Dukes Earls great Officers Military Commanders the Kings Ministers Graeves Praepositi Thanes sometimes denoted by the general names of Wites translated Sapientes Magnates Optimates c. as is every where beyond all possible doubt cleared by the most Judicious Dr. Brady in his Answer to Mr. Petyt to whose great collection for the proof of this point before I proceed further I shall only in transitu instance in a few The Title of the Council of Berghamsted (f) Spelman Concil vol. 1. fol. 194. Anno 697. Withrad 5 of Withred King of Kent is This Synd Wightraedes domas Cantuara Cyninges Saxon Great Councils These are the Judgments of Withred King of Kent and the persons mentioned particularly are the King that convened them and Birthwald Bretone Heahbisceop High or Archbishop of Britain Gibmund Bishop of Rochester and the rest of the Ecclesiastick (g) Aelc had ciricean thaere maegthe acmodlice Order of that Nation mid thy Hersuman Folcy with the Military Persons such as in after times were called Here-Thegni in King Ina's Laws and Heretoches in the Auctuary (h) Lamb. tit Heretoch fol. 147. to the 35 Laws of King Edward the Confessor which are there interpreted Barones Nobiles Insignes Sapientes Ductores Excercitus So in the Council at Clovesho 3. Cal. Nov. Anno Dom. 824. under (i) Spelm. Conc. vol. 1. fol. 333. Beornwulph Beornwulph King of the Mercians besides the Archbishop VVulfred and several Bishops and Abbats are enumerated only Beornoth Eadberht Sigered Egberht Eadwulf Alheard Mucel Vhtred and Ludica under the stile of Duces Bynna Frater Regis Aldred Thelonius So in the Great Council at London (k) Idem fol. 336. Egbert 26 May Anno 833. the Title is Presidentibus Egberto Rege West-Saxoniae Withlasio Rege Merciorum utroque Archiepiscopo caeterisque Angliae Episcopis Magnatibus and besides the Bishops and Abbats that subscribe we find these Adelwulphus filius Regis West-Saxoniae Wulhardus Dux Athelmus Dux Herenbrithus Dux So in the Council at Kingsburie Anno 851. Bertulph Idem fol. 344. under Bertulph King of the Mercians it is said to be praesentibus Ceolnotho Dorobernensi Archiepiscopo caeterisque Regni Merciae Episcopis Magnatibus and the Subscribers are besides the Bishops and Abbats Ernulphus Dux Osrithus Dux Serlo Comes Elbertus Comes Huda Comes Oflat Pincerna Regis I have upon this occasion instanced in these few of the Ancientest to clear who the Persons were according to their Orders Ranks and Degrees that constituted these Great Councils and shall now proceed to other Saxon Councils succeeding Eldred King of all England gave the Monastery (l) Ingulphi Hist fol. 477. King Eldred's Great Council of Croyland to Abbat Turketul and his Monks by his Charter dated in Festo Nativitatis B. M. Virginis Anno Dom. 948. cum universi Magnates Regni per Regium edictum summoniti when all the great Men of the Kingdom were summoned by the Kings command and then more particularly he divides them into the two Orders of Ecclesiasticks and Laicks thus Tam Archiepescopi Episcopi Abbates quam caeteri totius Regni Proceres Optimates Londoniis convenissent ad tractandum de negotiis publicis totius Regni Some may object That Ingulphus giving this account may rather express the Members and the occasion of it to treat of the Publick Affairs of the whole Kingdom according to the usage of the Age he lived in than of the Age the Great Council was held in which is well to be observed in many cases But in the Laws of King Edgar I shall shew it was then used in such manner to give account of the great Councils as both his Laws and those I have hitherto mentioned of the oldest Date manifest The Preface to King Edgar's Laws is thus This is seo geraednysse the Eadgar Cyng mid his Witena getheahte geraed King Edgar's Laws Lamb. Conc. fol. 62. Regn. coepit 959. desiit 975. This is the Constitution Act or Decree which King Edgar with his Wisemen or Great-men hath made ready trimmed or enacted Then follow the three great Ends for which such Councils are called viz. God to lofe to the Love Glory or Praise of God in appointing Religious Laws him Sylfum to Cynescipe rendred by Lambard ad Regiae Majestatis ornamentum or according to the significancy of the Words himself to make Kingly or his own Kingship or Soveraignty to manifest and thirdly eallum his leodscip to thearf all his People or Nation to profit or according to Lambard ad totius Reipublicae utilitatem The same King Edgar (m) Spelmanâ— Concil Tom. 1. fol. 4â—5 in his Charter to Glastonbury concludes it thus Hanc privilegii paginam Rex Edgarus XII Regni sui Sacro Scripto apud Londoniam communi Concilio Optimatum suorum confirmavit So that it appears this was in the presence of a great Council and the Witnesses named are Elfgina Regis mater Edward Clito filius Kinedius Rex Albaniae Mareusius Archiparata Admiral Then follow both the Archbishops and several Bishops and Abbats after whom the secular Optimates viz. Elpher Oslac Ethelwine by the Title of Duces Oswold Eufward Ethelsic Ellshie by the Title of Ministri which were Officers under the King as Thegns praepositi In the account given of a Council held at (n) Idem 490. Winchester in this Kings Reign those present at it are reckoned thus Praesentibus Edgaro Rege cum Conjuge Dunstano Archiepiscopo Elfero Principe Merciorum Ethelwino Duce Orientalium Anglorum and the same persons called Duces in the foregoing Charter Elfwoldo suo Germano Brithnotho Comiti cum Nobilitate totius Regni So that none but the Nobility were present The Witnesses to a Charter of the same King to the Monastery of Hyde in Winchester are the King Archbishop Dunstan Eadmund Clito legitimus praefati Regis filius Edward eodem Rege Clito procreatus Aelftheyth Regina Eadgita Regis avia the present Queen hath the precedence of the Queen Dowager Then follow several Bishops and Abbats after whom the Lay-Peers viz. Odgar Athelstan Athelwin Dukes Aethelweard Aelfweard and Walston Ministri It is to be noted That most do make the Laws of King Edward the Confesson to be principally a revival of King Edgar's Laws mixing such as Canutus had adjoyned to them The Preamble to the Laws of King Ethelred runs thus The Laws of Ethelred fol. 88. Regn. coepit A. 979. desiit 1016. This is tha geraednyss the Ethelred Cyning his Witan geraeddon eallum Folc to fritherbote These are the Constitutions King
according to the Title the Knights Agelnodus Walfricus Sywardus Godricus To the third Charter (d) Id. 636. when he dedicated St. Peter's Church Anno 1066. there are these more added to the Lay-Nobility besides Osbern Peter and Robert the King's Chaplain who are placed next after the Chancellor As to King Edward's Laws and their Confirmation by the Conqueror and the Addâ—â—ions and Amendments see Dr. Brady fol. 254. Aâ—gum Aâ—tinorm 296 298 299. As to the â—arallel betwixt the Saxon and Norman Laws see his Preface to the Norman Story before the Dukes Gud Comes Marheâ—â—s Comes Radulphus Minister Agelnodus Minister and besides that Wulfric Syward and Godrich in the aforesaid Charter are called here Knights there are added Colo and Wulsward Knights and the Conclusion of all is Omnes consentientes subscripsimus So that here may be noted the use of the Subscriptions of the Noblemen to the King's Charters which then were only by the mark of a Cross and in after times by their Seals to those we call Acts of Parliament as hereafter will be shown Having thus treated of the General Councils and such like Conventions under the Saxon and Danish Kings I shall pass to the Norman Kings and so descending to the present Age show the constituent Parts of the great Councils and Parliaments and by what variety of Expressions in the gradual Progress of the respective Kings Reigns the Soveraigns enacting of Laws was exhibited only before I enter I cannot but take notice that Mr. Selden by what compliance I know not Ab his vix alios ante Saxones comperio Custodes sub eis varie partitos c. Explent numerum Rex Conâ—â—â—â—â—ularius Cancellarius Thesaurarius Angliae Aldermannus Aldermannus Provinâ—â—arum Gravii Janus Angl. p. 40. with the mode of his time calls those which we make constituent Parts of the great Councils of the Saxon times Custodes and saith he scarce meets with any of these Guardians of the Laws different from these Lawmakers Yet he brings no Representatives of the Commons for he makes them the King the Lord High-Constable the Chancellor the Treasurer the Alderman of England the Aldermen of Provinces and the Graves I cannot but wonder that he should not at least give some hint what difference there was betwixt the King and his Graeve in the point of Law-making Surely he knew the Constitution of the great Councils as well as any but being a Sitting Member in that long Parliament was in that Particular tainted per contagionem uvaque livorem deducet ab uva CHAP. XXV Of the great Councils of the Norman Kings 'till the end of the Reign of King John WHAT Changes William the Conqueror made in the Government how he brought in the Feudal Laws of Normandy and many other Alterations Doctor Brady hath proved at large in his Argumentum Anti-Normanicum and the Preface to his Complete History so that I shall touch very little upon that Subject The Conqueror saith the learned Sir (a) Praefâ—tio ad LL. Willielmi primi pag. 155. Edit Wheeloch Three things the Conqueror designed Roger Twysden having obtained the Kingdom by dint of Sword and knowing that no Empire is firmly established by Arms without Justice applied his mind to three things First That he might have a sufficient Military Force Secondly That he might gratifie his French and Norman Adventurers yet so as the English might not by over much severity be instigated to rebel And Thirdly That the Husbandmen might live as Servants and to perform the Drudgery but not to be wholly extirpated As to the First He disposed the Militia so as (b) Lib. 4. p. 523. About his Militia and Revenue Ordericus Vitalis tells us it was reported That he could expend 1600 l. and 30 s. three Half-pence Sterling Money every day besides the Presents Fines for remitting of Punishments upon Transgressions of the Laws and many other ways whereby his Treasury was encreased and he made the Kingdom be surveyed and all his Tributes or Revenues Piscos as in the time of King Edward he made be truly described His Lands he so distributed to his Soldiers Disposed the Lands in Military Service and disposed them so that in the Kingdom of England he had 60000 Horsemen which he could with great readiness call together therefore in the 58 Law ascribed to him and which is in the Red Book of the Exchequer it is thus expressed We (c) Statuimus etiam sirmiter praecipimus ut omnes liberi homines totius Regni nostri sint fratres cenjurati ad Monarchiâ—m nostram ad Regnum nostrum pro viribus suis facultatihus contra inimicos pro posse suo defendendum viriliter servandum Pacem Dignitatem Coronae nostrae integram observandâ—m judicium rectum justitiam constanter omnibus modis pro posse suo sine delatione â—aciendam Fol. 171. appoint and firmly command that all the Liberi Homines such as held in Military Service to whom he had distributed all the Lands of the English except what he kept in his own Possession as in all Authors that treat of such matters is most evident of his whole Kingdom should be sworn Brothers to defend and manfully preserve his Monarchy and the Kingdom according to their Power against all Enemies and keeping entire the Peace and Dignity of his Crown and for the executing of right Judgment and Justice constantly in all ways according to their Power without Deceit or Delay I have inserted this at large because it seems the Primary Law upon which his Government was established and it seemeth to me to be the Substance of the Oath of Fealty that all the Subjects which held in Capite were to take or that the same Oath was to the same ends and purpose This Law is said to be made in the City of London But without doubt it was much according to the (d) Monsieur Berault Custom Norman fol. 86. usage of Normandy established by Rollo and what had been practised by the Francks when they conquered the Gauls in the declining of the Roman Empire who distributed their Lands among their Soldiers to whom was reserved the Dignity of Gentlemen and the Management of Arms and the use of them taken from the Ancient Gauls who were called Roturiers and they were only permitted to manage the matters of Husbandry and Merchandice So the Conqueror gave to some of his Followers (e) Brady's Preface Norm History p. 159. whole Counties to some two or three or more Counties with a great Portion of Land to others Hundreds Mannors or Towns who parcelled them out to their Dependants and Friends 'till at last though the Saxons most frequently held their own Estates of those new Lords and by new Titles from them some Soldiers and ordinary Men had some proportionable Shares for their Services though upon hard Conditions possessing them for the most part as Feudatories Of the Feudal Law and
him liberty to go telling him that he owned not Vrban pro Apostolico and that it had neither been his nor his Fathers custom that any should own (d) Paternae consuetudinis eatenus extitisse ut praeter suam licentiam aut electionem aliquis in Regno Angliae Papam nominaret quicunque sibi hujus dignitatis potestatem vellet praeripere unum foret ac si coronam suam sibi conaretur auferre Idem num 50. any Pope in the Kingdom of England without his Licence or Election and whoever would take from him this Power of his Dignity did the same as if he endeavoured to despoil him of his Crown But Anselm persisted that he had declared before he would consent to be Bishop while he was Abbat of Becc that he received Vrban for Pope neither that he would in any manner depart from his Obedience and Subjection At which the King was very angry protesting that Anselm could not against the Kings good pleasure keep his Faith which he owed to him and his Obedience to the Apostolick See So Anselm saving his Reason or Argument which he declared concerning his Subjection and Obedience to the Roman Church desired Respite for the examining the Matter in Question till it might be defined by common consent the Bishops Abbats and all the Princes of the Kingdom meeting together whether saving his Reverence and Obedience to the Apostolick See he could keep his Faith to his Earthly Prince The Question moved Whether Archbishop Anselm could keep his â—aith to thâ— King saving his Obedience to the Apostolick See and if it be proved that both of them could not be done he had rather depart the Kings Land till the Pope was owned than for an Hour deny Obedience to St. Peter and his Vicar Then it follows Idem num 10. Dantur ergo Induciae atque ex Regia Sanctione ferme totius Regni Nobilitas 5. Id. Martii pro ventilatione istius causae in unum apud Rochingheham exit The Convention was on Sunday in the Church of the Castle The King and those (e) Rege suis secretius in Anselmum Concilium stuâ—iese texentibus Anselmus autem Episcopis Abbatibus Principibus ad se a Regio secreto vocatis that were of the Kings part secretly and studiously contriving their Councils against Anselm then follows a plain description who they were that constituted this Great Council Anselmus autem Episcopis Abbatibus Principibus ad se a Regio secreto vocatis Anselm calling the Bishops Abbats and Princes to himself from the Kings Secret Council or from the Consultation they had with the King By these I conceive we may understand the constituent Parts of this Great Council Then follows eos assistentem Monachorum Clericorum Laicorum numerosam multitudinem hac voce alloquitur Anselm makes his Speech to those that is to the Bishops Abbats and Princes and likewise to the numerous multitude of Monks Clerks and Laicks there present standing or sitting there as Auditors not Assessors as the sequel will show (f) Id. num 30 40 50. He tells them how he was forc'd to leave his Country by reason of the Kings desire that Council being taken it pleased the King and them to chuse him and that then he declared for Pope Vrbane and then tells them the straits he was in as before related and so desired their Counsel and prays them all especially his Brethren and Co-Bishops to give him advice The (g) Id. fol. 27. num 10. Bishops tell him They would advise him to submit to the King in all things as they were ready to do but if he commanded they would acquaint the King with his Discourse and return his Answer and the King (h) Anselmus ad hospitium suum Curiam manere petiturus reverteretur ordered that all things should be deferred till the next day because that was Sunday and Anselm should return to his Lodging he being about to petition that the Court might remain unless the words are to be read curiam mane repetiturus he to return to the Court in the Morning because the following words are Factum est ita mane juxta condictum reversi sumus It was so done and in the Morning according to agreement we returned Then it follows Anselmus in medio Procerum conglobatae multitudinis sedens ita orsus est Si juxta quod a vobis Domini Fratres hesterno die consilium de praesenti causa petivi vel nunc dare velletis acciperem Anselm sitting in the midst of the Nobles and the encompassing multitude begun thus If you my Lords and Brothers will give me counsel about the present Cause as I Yesterday desired or petitioned I will receive it In which we may observe that he applies himself principally to the Clergy unless we read the words disjunctively Domini Fratres as we shall presently find he doth They give him the same Answer they did the day before That he should submit to the Pleasure of the King but if he according to God expected Counsel from them which might in any thing gainsay the Kings Will it would be labour in vain for they would not assist him in it Then Anselm lifting up his Eyes aloft with a lively Countenance and a reverend Voice speaks to them thus Cum nos qui Christianae Plebis Pastores vos qui Populorum Principes vocamini When we that are the Pastors of the Christian People and you that are called the Princes of the People will give me Counsel not otherwise than according to the Will of one Man your Prince I will run to the chief Pastor and Prince of all to the Angel of the Great Council c. In which we may observe to my purpose In this Contest is discovered who were the Members of the Great Councils that he divides this Curia or Great Council into two parts the Pastors of the People or the Bishops and Abbats and the Princes of the People so as here are no Commons as in the acceptance of the word in this and later Ages they are understood For the Multitudo here mentioned are to be taken to be Spectators who flocked to hear the Cause as in other Courts and even at this day upon the hearing of Appeals at the Bar of the House of Lords it is usual for many to croud in as far as the Bar. That these Great Councils met where the King kept his Court at Christmas Easter and Whitsontide by custom often is mentioned in our Histories and needs no further Proof than what Doctor Brady hath produced therefore upon this occasion of Archbishop Anselm I shall only relate what Eadmerus saith Great Council at Pentecost de more That he attended the King at Pentecost sometimes at Dinner-time when he made his great Feasts and other times during the Holidays to try if the King's Mind was altered but found no change (i) Peractis igitur Festivioribus diâ—bus
diversorum negotiorum causae in medium duci ex more coeperunt Id. p. 37. num 40. Ann. 1096. vel 1097. Therefore the Festival-days being passed the causes of divers affairs according to custom began to be transacted saith my Author among which that that of Anselm's was one But to draw to a Conclusion of this King's Reign my Author clears who were the Members of the Great Councils and that they were convened at the King's Pleasure in the relating that in the following (k) Mense Augusto cum de statu Regni acturus Rex Episcopos Abbates quosque Regni Proceres in unum praecepti sui sanctione egisset c. Id. p. 38. num 10. Month of August when the King being to transact things concerning the State of the Kingdom by his Summons had convened the Bishops Abbats and all the Noblemen of his Kingdom The affairs for which they were assembled being dispatched and every one prepared to return home Anselm moves again his Petition and in October when the Convention was dissolved he applied himself again to the King at Winchester Here we may observe that it was the King The King solely summons the Great Councils and dismisseth them who being to transact things about the State of the Kingdom by the Authority of his Precept or Summons called together the Members of the Great Council who are expresly mentioned to be the Bishops Abbats and all the Noblemen of the Kingdom Since therefore we find no other kinds of Great Councils in any Authors that write of this King we may conclude the Commons were no ways represented in any of them Most Authors mention this King with no good Character One old Writer saith Omnis jam legum silâ—it Justitia causisque sub justitio positis sola in Principibus imperabat pecunia Florent Wigorn. That all Justice of Laws was in his time hushed in silence and Causes being put in a Vacation without hearing Money alone bore sway among the great ones Polydore Virgil will have the right or duty of First-fruits called Annats which our Kings claimed for vacant Abbies and Bishopricks to have had their Original from King William Rufus However that be it is certainly true that at his Death the Bishopricks of Canterbury Winchester and Salisbury and twelve Monasteries besides being without Prelates and Abbats payed in their Revenues to the Exchequer We may judge likewise of his burthensome Exactions Matt. Paris fol. 74. Edit penult by what we find in his Brother King Henry the First 's Charter Wherein he saith because the Kingdom was oppressed with unjust Exactions he makes the Holy Church free and all evil Customs wherewith the Kingdom of England was unjustly oppressed he doth henceforth take away and they are all in a manner mitigations of the Severity of the feudal Tenor as any one may see in Matthew Paris Mr. Selden and Dr. Brady and is plain by the very first concerning the Laity That if any one of my Barons Counts or others that hold of me shall dye his Heirs shall not redeem his Lands as he was wont to do in the time of my Father c. And in another Praecipio ut homines mei similiter se contineant erga silios silias uxores hominum suorum That according to the relaxation he had made to his Homagers they should regulate themselves towards the Sons Daughters and Wives of their Homagers Of the Great Councils in King Henry the First 's time COncerning the Great Councils in King Henry the First 's time as also till Edward the First 's time I must refer the inquisitive Reader to Dr. Brady's answer to Mr. Petyt in the respective Kings Reigns and to his Appendix in which he hath amassed out of Eadmerus Simeon Dunelmensis Florentius Wigornensis Hoveden Gervasius Dorobernensis Matt. Paris Malmsbury and other Authentick Writers the Emphatical Expressions by which the constituent Parts of the Great Councils are fully proved to be only the Bishops Abbats and Priors for the Clergy or the great Nobility or prime Tenents in Capite such as the King pleased to summon under the names of Magnates Comites Proceres Principes Optimates Barones or Sapientiores Regni expresly used for Barones Where the Populus is used by way of Antithesis as contradistinct from the Clerus and where Regni Communitas or Ingenuitas is used the same Doctor Brady by pregnant Proof puts it beyond dispute that none of the Commons as now we understand them could be meant as Representatives So that though I had collected a considerable number of such Proofs e're I saw the Learned Doctor 's Book I shall now wave them all and only add in every King's Reign some few that he hath omitted or wherein something remarkable relating to the King's Soveraignty or the manner of constituting Laws is found by him noted or as I have met with them in my Reading In the third of Henry the First in the Feast of St. (a) Omnes Principâ—s Regni sui Ecclesiastici Secularis Ordinis Flor. Wigorn. Anno 1102. 3 H. 1. Michael saith the Monk of Worcester the King was at London and with him all the Princes of his Kingdom of the Ecclesiastick and Secular Order and of the same Council Malmsbury saith The King bidding (b) Ipso Rege annuente communi consensu Episcoporum Abbatum Principum totius Regni adunatum est Conciltum De Gest Pontif. Anno 1102. or willing with the common Consent of the Bishops and Abbats and Princes of the whole Kingdom the Council was united and this being mostly about Ecclesiastick affairs it is added that in this Council the Optimates Regni at the Petition of Anselm were present and gives the reason For that whatever might be decreed by Authority of the Council might be maintained firmly by the mutual care of both orders Whereby we may note the Obligation upon Subjects of both Orders to observe the Laws once enacted by the King and Council Anno 1107. 7 H. 1. Matth. Paris saith (c) Factus est conventus Episcoporum Abbatum pariter Magnatum ad Ann. c. there was a convention of the Bishops and Abbats as likewise of the Magnates i. e. Noblemen at London in the King's Palace Archbishop Anselm being President To which the King assented and speaking of what was established he saith Rex statuit To him Hoveden agrees only what the one calls Magnates the other calls Proceres The Manuscript of Croyland (d) Tum Episcoporum Abbatum totius Cleri Angliae by which must be understood the great dignified Clergy Sub Wifrido Abbate p. 104. saith The same Year the King giving manifold thanks to God for the Victory he had given him over his Brother Robert and other Adversaries appointed a famous Council at London as well of the Bishops and Abbats of the whole Clergy of England as of the Earls Barons Optimatum Procerum totius Regni In this Council
times appointed through England and by his writing and Seal confirmed to Bishops and Abbats Charters of Priviledges whose Charter runs thus Hen. c. Baronibus fidelibus suis Francis Anglis salutem Sciatis me ad Honorem Dei Sanctae Ecclesiae pro communi emendatione Regni mei concessisse reddidisse praesenti Charta mea confirmasse c. and so confirms the Charter of King Henry the First his Grand-father As to the Council of Clarendon about (b) Answer to Petyt fol. 31. ult Edit See Selden's Correction of Matt. Paris in his Epinomis Thomas Becket Archbishop of Canterbury after he had once promised and his after refusing to set to his Seal in Confirmation of the Ancient Laws I must refer the Reader to what Doctor Brady hath collected and shall only touch upon that of (c) Matt. Paris fol. 84. num 20. ult Edit Clarendon Anno 1164. 10 Hen. 2. where those present by the King's Mandate were the Archbishops Bishops Abbats Priors Earls Barons and Noblemen of the Kingdom and there was a Recognition of parts of the Customs and Liberties of King Henry the King's Grandfather and of other Kings which were comprised in sixteen Chapters Concerning the Laws of this King see Selden's Epinomis These Matthew Paris calls wicked Customs and Liberties because they subjected the Clergy-men more to the Crown than he and others would have had them yet he saith the Archbishops Bishops Abbats Priors Clergy with the Earls Barons and Nobility swore to them all Proceres and promised firmly in the word of Truth to hold and observe them to the King and his Heirs in good Faith and without Evil and then adds decrevit etiam Rex by which it appears that the Members of the Great Council did not only assent but did bind themselves by Oath and solemn Promise obligatory to themselves and their Posterity to keep and observe them and upon the whole it is the King that decrees appoints and constitutes In all the great Councils of this King it is manifest that the Members were only such as in former Kings Reigns only in that of the 22 H. 2. (d) Ben. Abb. p. 77. Anno Dom. 1176. it is said Rex congregatis in urbe Londoniarum Archipraesulibus Episcopis Comitibus Sapientioribus Regni sui where Sapientiores are instead of Barones and for the Kings Summons it is always said Rex convocat congregavit praecepit convenire or mandavit as is most expresly said in that great Council Anno 1177. 23 H. 2. (e) Ben. Abbas p. 86. That the King sent Messengers through the whole Isle of England and commanded the Archbishops Bishops Earls and Barons of all England that they should be with him at London the next Sunday after the beginning of Lent Of the Great Councils in King Richard the First 's time THere are few great Councils met withal in his short Reign he being so great a part of it out of the Kingdom The first I find is in (a) Fol. 129. num 16 Matthew Paris Anno 1189. 1 Reg. That in the day following the Exaltation of the Holy Cross at Pipewel Archiepiscoporum Episcoporum aliorum Magnatum suorum fretus Concilio He supplied the Vacances of several Bishops Sees The Second I find is (b) Hoved. fol. 376. a. num 30. when he and the King of France agreed to go to the Holy Land where it is said that his Earls and Barons who took the Crusado in the General Council at London swore c. of which it is that (c) Fol. 155. num 50. Matthew Paris saith That the King of England convocatis Episcopis Regni Proceribus received the Oath from the Messengers of the King of France In the Fifth of King Richard (d) Hoved. fol 418. b. num 20. we have a full Example of the holding a Great Council by Commission for during the Imprisonment of King Richard Adam de Sancto Edmundo Clerk was sent from Earl John the Kings Brother to his Friends in England to defend his Castles against the King and dined with Hubert Archbishop of Canterbury boasting much of the French Kings assisting Earl John After Dinner the Mayor of London seized on him in his Lodgings and upon all his Breves and Mandates who delivered them to the Archbishop This occasioned the Archbishop being the Kings Commissioner to convene a great Council the next day A Great Council called on a Days warning but surely Summons had issued out before or else it is a great Instance that the great Councils might be called of such of the Clergy and Nobility as were nearest at Hand for my Author expresly saith (e) Qui iâ— crastino convocatis coram co Episcopis Comitibus Baronibus Regni ostendit eis literas Comitis Johannis earum tenuras statim per commune concilium Regni desinitum est quod Comes Johannes dissaisiretur Idem That the Archbishop the next day called before him the Bishops Earls and Barons of the Kingdom and showed to them the Letters of Earl John and the Tenor of them and adds that instantly by the Common Council of the Kingdom it was defined that Earl John should be disseised This Adam saith Hoveden came into England not long before King Richard's release from his Imprisonment The next great (f) Idem 419. â— 30. A Great Council of four Days Council I find was upon the Thirtieth of March summoned to meet the King at Nottingham and at this were present Alienor the Kings Mother Hubert Archbishop of Canterbury Geoffery Archbishop of York and seven Bishops more Earl David brother to the King of Scots Hamelin Earl Warren Ralph Earl of Chester William Earl Ferrers William Earl of Salisbury and Roger Bigot and names no more but saith the same day the King disseized (g) Rex dissaisivit Gerardum de Canvil de Comitatu Linc. Hug. Bardolf de Castro Comitat. Ebor. Gerard de Canvil and others It appears that this Council sat but four days on the second day the King required Judgment against Earl John his Brother on the third day the King (h) Rex constituit sibi dari c. deinde praecepit exigit Concerning the Form of Proceeding in the Pleas of the Crown the Assize of the Forest wherein the Laws made in this King's time are set down see Selden's Epinomis appointed to be given him 2 s. of every Carucate of Land through England and that every one should perform the third part of Military Service according to their respective Knights Fees to pass over Sea with him into Normandy and then exacted of the Cestertian Monks all their Wool of that year for which they compounded and the fourth and last day Complaints were heard against the Archbishop of York and further Prosecution of Gerard de Canvil Hoveden gives an account of the King's Progress till the 11th of the same Month to which time the
injuries which were brought upon the King beyond Sea by which not only the King but many of the Earls and Barons were disinherited therefore the King required Counsel and Aid of them of a Fifteenth Upon this the Archbishop and the whole number of Bishops Magna Charta granted Earls Barons Abbats and Priors having had deliberation answered the King That they would willingly yield to the Kings desire if he would grant them the long desired Liberties The King saith my Author being led by Covetousness or as he means being desirous of a supply yielded to what the Magnates desired so he granted that which is called Magna Charta so deservedly priz'd by all Englishmen ever since and the (f) Idem num 30. Charta de Foresta and presently Charters were got drawn and the King sealed them and they were sent into all Counties two one of the Liberties and the other of the Forests Matth. Paris saith expresly That they (g) Ita quod chartae utrorumque Requm in nullo invâ—niuntur dissimiles were the same that King John had granted and so refers the Reader to peruse them in what he had writ on his Reign It is to me very strange that since so many Original Grants of the Kings of England and other ancienter Deeds being every where to be found among the ancient Evidences of many Noble and Gentlemens Families yet no where that I can learn any of these Original Charters are to be found except one at Lambeth as Mr. Pryn hath observed That upon Record being only an Exemplification in King Edward the First 's time Anno 1232. on the Nones of March the King called a Great Council to (h) Idem fol. 314. num 20.17 H. 3. Westminster where there met Magnates Angliae tam Laici quam Praelati The King required an Aid for the payment of his Debts contracted by his Expeditions beyond Sea To which Ralph Earl of Chester on behalf of the Nobility answered That the Earls Barons and Knights that held of the King in Capite being with the King personally in that Expedition and having fruitlesly spent their Money were poor so that of (i) Vnde Regi de Jure auxilium non debebant Idem num 30. The Tenents in Capite having personally served according to the Tenure of their Service deny the King Aid right they ow'd not Aid to the King And so my Author saith the Laics having asked leave all departed and the Prelates answered That many Bishops and Abbats being absent they desired respite till some other meeting which was appointed fifteen days after Easter By this we may observe who they were that had the power of giving consent or granting aid for if there had been any other Members of the Lay Order besides Earls Barons and Knights that held in Capite the Earls of Chester's Argument had been of no validity In the Statute of Merton (k) Pulâ—on Stat. p. 1. In one part it is said Our Lord the King granted by the Consent of his Magnates 20 H. 3. it is thus expressed Before William Archbishop of Canterbury and other his Bishops and Suffragans and before the greater part of the Earls and Barons of England there being assembled for the Coronation of the said King and Helioner the Queen about which they were called thus it was provided and granted as well of the foresaid Archbishop Bishops Earls and Barons as of the King himself and others I shall only cull out some few of the Great Councils in this Kings Reign wherein most fully are expressed the true Members of them or such wherein something remarkable was transacted Anno 1237. 21 H. 3. The King keeping his Christmas at Winchester sent his (l) Matt. Paris fol. 367. num 30. Misu c. scripta Râ—galia pracipiens omnibus ad Regnum Angliae spectantibus c. ut omnes sine omissiâ—ne conveairent Regni negotia tractaturt totum Regnum contingentia Royal Writs through all England commanding all that appertained to the Kingdom of England that is all who were to be Members of the great Council which my Author explains particularly thus viz. Archbishops Bishops Abbats Priors installed Earls and Barons that without failure they should meet at London on the Octaves of the Epiphany to treat of the Affairs of the Kingdom concerning the whole Kingdom then he adds That on the day of St. Hilary there met at London an (m) Insinita Nobilium multitudo viz. Regni totalis universitas infinite Multitude of the Nobles viz. The whole University of the Kingdom which were the Persons of those Orders before particularized Anno 1246. 30 H. 3. By the Kings (n) Edicto Regio convocata convenit ad Parliamentum generali â—â—mum â—otius Regni Anglicani totalis Nobilitas Idem p. 609. num 10. Edict was called to the most general Parliament saith Matthew Paris all the Nobility of the whole Kingdom of England viz. of the Prelates as well Abbats and Priors as Bishops also Earls and Barons and a few Pages after concerning the same Parliament he saith All the Magnates of the Kingdom met and the King himself first spake to the Bishops apart then to the Earls and Barons and last to the Abbats and Priors In this The word Parliament now used that which frequently in Matthew Paris is called Colloquium now he gives the Title of Parliament to from the French word parler to confer or speak together and we find what is meant also by totalis Nobilitas Anno 1253. 37 H. 3. By the (o) Tota edicto Regio convocata Angliae Nobilitas convenit de arduis Regni Negotiis simul cum Râ—ge tractatura Idem fol. 745. num 40. Kings Edict the Nobility of England being summoned met at London to treat together with the King of the arduous Affairs of the Kingdom and there were present with most of the Earls and Barons the Archbishop Boniface and almost all the Bishops of England In this great Council were the Tenents in Capite according to King John's Charter The King in this Parliament or Colloquium requires Money for an Expedition into the Holy Land but for fifteen days there were great Contests about it till the King de novo confirmed King John's Charters and a solemn Excommunication was agreed upon to be pronounced against the Infringers of it and my Author saith Rex Magnates Communitas Populi protestantur in the Presence of the Venerable Fathers c. That they never consented or do consent that any thing be added or altered in the Charters but plainly contradict it so 3 May (p) Pat. 37 H. 3. m. 13. Anno 1253. in Westminster-Hall the Exemplification passed the Seal of the King and other great Men. But it is principally to be considered what is expressed in the Patent * Praefatus Dominus Rex in prolatione praefatae sententiae omnes libertates consuetudines Regni sui Angliae usitatas dignitates Jura Coronae
called 50 Regni By the Statute of Marleburgh 52 H. 3. it is evident All the Barons not summoned but the more discreet and so of the lesser Barons That even all the great Barons were not summoned but only the more Discreet and such as the King thought fit to call and the like is observed of the lesser Barons or Tenents in Capite For if it had been by General Summons that Restriction of the more Discreet had been useless so that it appears that what (z) Britannia fol. 122. Quibus ipâ—â— Rex dignaâ—us est brevia summonitionis dirigere venirent c. non alii Mr. Camden's ancient Author observes is true That after the horrid Confusions and Troubles of the Barons Wars those Earls and Barons whom the King thought worthy to summon by his Writ to meet came to his Parliaments and no other The Preamble to this Statute of (a) Stat. Edit 1576. p. 15. Marlebridge runs thus in Tottel Providente ipso Domino Rege ad Regni sui Angliae meliorationem exhibitionem Justitiae prout Regalis Officii poscit Vtilitas pleniorem convocatis discretioribus ejusdem Regni tam majoribus quam minoribus provisum est statutum ac concordatum ordinatum According to Pulton the (b) Fol. 14. Preamble is thus That whereas the Realm of England of late had been disquieted with manifold Troubles and Dissentions for Reformation whereof Statutes and Laws be right necessary The Use and Benefit of Laws whereby the Peace and Tranquillity of the People must be observed wherein the King intending to devise convenient Remedy hath made these Acts Ordinances and Statutes underwritten which he willeth to be observed for ever firmly and inviolably of all his Subjects as well high as low Thus we see in the whole Reign of H. 3. excepting in that Parliament of Montfort's Faction the Bishops and dignified Clergy Earls Barons and Tenents in Capite were only summoned as Members of the great Councils and there were no Representatives of the Commons and the Kings Authority in summoning dissolving and making Laws is most manifest Of Parliaments in King Edward the First 's Reign I Shall now glean out of Tottel and Pulton's Editions of the Statutes the most material Preambles which give light to the constituent Parts of Parliaments to the Legislative Power in the King with the Concurrence of the two Houses and how that in the Series of the Kings Reign hath been expressed and such other matters relating to the Parliament as may shew the gradual Progress of their Constitution to the usage of this present Age leaving the Reader to make his own remarques from the matters of Fact and the expressions used by my Authors and explaining some The Preface to the Statute of (a) Ceux sont les establishments le Roy Ed. fitz Roy Hen. fait a Westminst c. par son Councel par Passentments des Archevesques Evesques Abbes Priores Countes Barons tout le Commonalty de la terre illonques summons Tottel Stat. fol. 24. Pulton p. 19. Westminster begins thus These are the Establishments of King Edward Son to King Henry made at Westminster at his first General Parliament after his Coronation c. by his Council and by the Assent of the Archbishops Bishops Abbats Priors Earls Barons and the whole Commonalty of the Land thither summoned This Parliament was prorogued before it met and the Writ of Prorogation mentions only Quia generale Parliamentum nostrum quod cum Praelatis Magnatibus Regni nostri proposuimus habere c. Therefore having prorogued it mandamus c. Intersitis ad tractandum ordinandum una cum Praelatis Magnatibus Regni nostri (b) Brady against Petyâ— fol. 147. c. So that all the Members are included in the two general Terms of Praelati Magnates which great Men very frequently comprehended as well the Barones Majores as Minores the Earls Barons and greater Tenents in Capite and the less which then were called the Community of the Kingdom The rest of the Preamble of the Statutes made at (c) Pulton's Stat. An. 1275.3 E. 1. f. 19. Westminster runs thus Because our Lord the King hath great Zeal and desire to redress the State of the Realm c. the King hath ordained and established these Acts under written The Preface to the Statute de Bigamis 4 Oct. 4 Ed. 1. is thus (d) In prasentia venerabilium purum quâ—ruâ—dam Episcoporum Angliae aliorum de Concilio Râ—gis â—â—citatae sâ—â—erunt constitutiones â—ub â—riptae postmodâ—â—m coram Domino Rege Concilio sâ—o auditae publicatae Quia omnes de consiliâ—â—am â—usâ—â—â—â—arii quam alii concordaverunt c. Tottel p. 39. b. expressed In the Presence of certain Reverend Fathers Bishops of England and others of the Kings Council the constitutions under written were recited and after heard and published before the King and his Council for as much as all the King's Council as well Justices as others did agree that they should be put in writing for a perpetual memory and that they should be stedfastly observed In the First Chapter it is said Concordatum est per Justiciarios alios sapientes de Concilio Regni Domini Regis It was agreed by the Justices and other wise or sage Men of the Council of the Kingdom of the Lord the King Perhaps saith the judicious Doctor Brady the best understanding of the preamble and first Chapter may be that the Laws and Constitutions were prepared by the King and his (e) Answer to Pâ—tyt fol. 148. Council with the Assistance of the Justices and Lawyers that were of it or called to assist in it and declared afterwards in Parliament (f) Praeâ—iâ—â—ae autem constitutiones eâ—iâ—â— suerunt c. exâ—une lâ—â—um habeanâ— Tottel fol. 40. for it is said in the close of the Statute The aforesaid Constitutions were published at Westminster in the Parliament after the Feast of St. Michael the 4th of the Kings Reign and thence forward to take place The Preamble to the Statute of Gloucester Anno 1278. 6 E. 1. is thus (g) Pour amendment de son Roialm pur plus pleinir exhibition de droit si comâ—â—â—â— prâ—sit dâ— Office demanâ— appâ—lles le plues discretes de son Roialme auâ—â— bien des Granders comâ— des Meindres establie est concordantment ordine Tottel fol. 50. The King for the amendment of the Realm and for the more full Exhibition of Justice according as the benefit of his Office requires having called the most discreet of his Realm as well the greater as the smaller It is established and unanimously ordained as Pulton adds after by the King and his Justices certain Expositions were made The Statute of Mortmain is thus prefaced Nos pro (h) Tottel p. 48. Vtilitate Regni volentes providere Remedium de Concilio Praelatorum Comitum Baronum aliorum fidelium
reason because it passed under his Broad Seal Likewise when the Constitution of Parliament was altered 49 H. 3. whereby in place of the Tenents in Capite which were numerous two Knights were chosen probably by the rest of the Tenents in Capite for the Shires and two Citizens and two Burgesses for Burroughs to represent all those that held in Capite and it is likely all other their Subfeudatary Tenents yet the number was not constantly observed there being sometimes Knights and no Citizens or Burgesses sometimes one Knight one Citizen and one Burgess other times two or three Knights left as it seems to the Sheriffs or the Chusers Election till after it was fixed as it now is for two Knights two Citizens and two Burgesses unless in some places of Wales where to this Day some two or three Burroughs chuse but one or two Burgesses Likewise it is worth the observing how gradually the Advice and Assent hath pass'd from the Advice of the Bishops and Nobles to the Assent likewise and sometimes at their request only the King ordains and then from the Potition of the Commons to their joyning in Advice and after to their Assent and many other material progressive alterations which in this recapitulation I cannot insist upon till it hath come to that constitution so much to be valued by all wise Englishmen as it is the product of the generous condescensions of Gracious Kings and the wise contrivance of our considerate Ancestors Therefore I shall now pass to consider our present Constitution of Parliaments CHAP. XXVIII Of the modern rightly constituted Parliaments SECT 1. Of the General Vse of Parliaments I Have before given an account how the Persian Laws were made by the (a) Daniel cap. 6. v. 7 8. King his Princes Governours Nobles and Captains as in a great Council of several Orders with the Sovereign but we have an older example in Scripture Great Councils in Scripture that seems to be the Pattern of all great Councils such as we call Parliaments under a Monarchy For it is said (b) Legem praecepit nobis Moyses haereditatem multitudinis Jacob. Erit apud rectissâ—â—um Rex congregatis Principibus populi cum Tribubus Israel Deâ—â— cap. 33. v. 4 5. Moses commanded us a Law even the Inheritance of the Congregation of Jacob and he was King in Jesurun when the Heads of the People and Tribes of Israel were gathered together Here is the King Moses commanding a Law and the Heads of the People the Princes or House of Lords and the Tribes that is some to represent the chief of the Tribes like our House of Commons The Roman Senate under the Emperors resembled our ancient Great Councils that consisted of such as the King convened and of the Patrician and Equestrian Order The Comitia bore no resemblance with our Commons and the Amphictyonican (c) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Assemblies the Achaian Booâ—â—an and Pan Aetolian were Assemblies of Deputies as the States General of Holland Such Assemblies in all sorts of Governments are necessary Necessary in all Governments for be the Empire never so vast and the Sovereigns Power never so great and uncontroulable yet without Consultation had with the Princes and wise Men for the constituting Laws and modelling the frame and methods of his Government it would soon without such (d) Vis consilii expers mole ruit sua Horat. lib. 3. Od. 4. Buttresses and Undersetters sinking in its Foundation by its own weight with an hideous rush be crushed into an heap of Rubbish In Democracy Great Councils are needful that thereby the (e) Plato de LL. In Democracy Male cuncta ministrat impetus Statius Precipitancy and fury of the Common-People by their gravity may be attempered the common sort being apt to do every thing with a willful Violence which never succeeds well when not directed to a right end If their publick affairs were not committed to a select number of Trustees nothing would be brought to any Issue since none can be heard where all speak nor any good Product be from a jumble of those Atoms Aristocracy it self consists in a select number of the wisest and ablest to govern In Aristocracy who in publick Consultations have no private ends Yet in the great Councils of neither of these forms of Government is there to be found that stayedness orderliness or resolution for the public good as in Monarchy Why such Assemblies are not only convenient In Monarchy but necessary under Monarchy there are many weighty Reasons (f) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Xenoph. Cyropaed 8. Satisfactory to the Subject Xenophon observes that a single Person sees or hears but little and Princes must have many Eyes and Ears which in a special manner these Great Councils are from all parts of the Dominions bringing notice of what is amiss and wants redress as well as what is orderly and wants encouragement Besides Princes thereby have the opportunity to give their Subjects satisfaction in their Administration preventing the surmises and jealousies of the Nobility Gentry and common People that he sleights them in not calling them sometimes to consult about affairs of Moment Furthermore the Prince by such congress The Prince thereby knows the Worthy Subjects consults his own Interest in coming to the Knowledg of the most able active and popular Subjects whereby he may single out such as are most fitted for public Imployments to serve him in the several offices of Government and all who thus have a share in the debating and consulting about Laws will not only be witnesses of the Prince's Grace and Favour in granting such as they have desired and assented to but will be so many Heralds of his Wisdom and care of his Peoples good Government and so many vigorous enforcers of the Execution of those Laws they have so lately assisted to prepare Likewise The Prince is skreened from Obloquy as Privy-Counsellors and other Officers are sometime as Skreens to Princes to ward off the Obloquy of the Mobile when something is imposed that may be wholesome though something bitter to their Palates So especially are these great Conventions necessary where useful Laws though severe are to be enacted Money to be raised or other Impositions laid upon the People who do much more chearfully and less repiningly obey when they know (g) Tum caetera parit Turba libens subit propriis quia legibus acta the Nobility and their own Representatives have judged them convenient All Men naturally loving that such Impositions may immediately result from themselves rather than they should be enjoyned by the Princes Arbitrary power according to that of Claudian Observantior aequi Fit Populus nec ferre negat cum viderit ipsum Auctorem parere sibi The General use of good Parliaments is summed up in the (h) MS. Speech An. 1562. The general Benefits of Parliaments Chancellors Speech 2 Eliz. thus That the principal cause of their
should be forwardest to supply the necessities of the Crown to shew all Loyal Dutifulness to their Sovereign whereby a most dangerous Rebellion in both Kingdoms was the easilier crushed and which endears them to the King that there can be no danger but whatever good and wholsome Laws they shall propose for the general good of the Kingdom will find a chearful allowance by him How happy had our Forefathers been if King Charles the First had met with such considerate Parliaments who by a seasonable supply and compliance might have had without that vast effusion of Blood and Treasure all their Grievances redressed and the flourishing State of the Kingdom preserved and the Memories of a great many Noblemen and Gentlemen had been transmitted without stain to their remote Nephews But to draw towards a Conclusion of this Discourse Some not willing to hear of the Miscarriages of Parliaments think this Discourse needless Some that may not be willing to hear of the Miscarriages of some Parliaments wherein probably they were concerned may say what need is there now to bring again upon the Stage the rigorous Proceedings of the two Houses of Parliament or more properly of the leading and designing Men in the House of Commons in the Years 1640 and 1680. since we are now happily past these Rocks Quicksands and treacherous Shores All the World indeed must acknowledg we have a Royal wise Pilot Because we have a most wise King and good Parliament who knows full well to steer the Soveraignty of the Commonweal He hath weathered out high going Seas so that neither their over-whelming liquid Mountains nor the terrible Shot from the floating Castles have daunted him magnanimity unparallel'd Courage and an Experience beyond most Crowned Heads have raised him great Trophies of his Victorious toils He is served with sage Councils both private and National So that all must confess we have less cause to fear any more dangers of Hurricanes and Shipwracks But though we now enjoy Halcyon days Yet we are not secure but that in after-Ages evil Members of Parliament may be under a Sovereign enriched with Royal abilities to the heighth of our Wishes though he is blessed with a Parliament as Loyal as can be desired betwixt whom there is no other Strife but who shall out-pass the other in mutual Obligations Yet are we secure that no ill Exhalations may be gathered in after-Ages Can we expect always temperate Weather pleasing Sunshine and fruitful Showres No in small revolutions of Years we find Epidemical Diseases return excesses of Drought Rains or Frosts are often marked in our Annals even after promising Configurations of the Coelestial Bodies I write not an Almanack for a Year The Design of the Author in writing against the Exorbitances of some or Pamphlet for a time my Design is not Infandum renovare Dolorem out of any Pique but as much as in me lies to show from the by-past Irregularities and Exorbitances of some Men how Loyal good and Just Men may measure things by the Golden Standard of the Laws how mischievous Practices and Principles may be obviated how every one may see what the upshot of rebellious Principles will be how to detect and how to avoid the same kind of Rocks and Sands in after-Ages I know some Persons recovered from a valitudinary Condition Some love not to hear of their Distempers love not to hear of the Torments they have undergone nor of the Extravagances of their delirous State Yet this should not hinder but the Healthful and those that would avoid the Calenture should patiently endure to hear a Description of the Causes and Symptoms In this Discourse I have only culled out such Particulars The Author's Apology for himself as I find Judicious Authors have insisted upon against the unprecedented Proceedings of some late Houses of Commons which I think all Loyal Persons disapprove and I believe a great many as well as my self have heard many of the then sitting Members dislike when things were carried with an impetuous Torrent that it was more dangerous to speak against their proceedings or question the unlimited Power assumed by that House than it was to speak Seditious I had almost said Treasonable Words against the King Therefore I hope none of this present Honourable House of Commons who have so signalized their Loyalty in the last Session will take offence at what from such judicious Persons as I have met with I have delivered the Sentiments of My intention is no ways to lessen the Rights or necessary Privileges of that venerable Assembly which never can be unbeneficial to the King or People but when Discontent Faction and Sedition hath too spreadingly infected the Electors The continuance of that worst of Parliaments of 1641. What evil Principles taught during the Long Parliament in their disloyal Practices so long by the overgrowing of the Tares which were only suffered to thrive occasioned so much corrupt seed to be sown as in twenty years there was no wholesom grain left We saw too late how by some evil Seedsmen a fertile but dangerous Crop was shooting up apace It is not a little Labour nor small diligence will howe and weed out the Briars Thistles and destructive Shrubs and poysonous Weeds that shoot their spreading Roots so far But I hope the great Wisdom of this Loyal Parliament will find out ways and methods to prevent the danger of their thriving in a Soil worthy of better Plants than any will be set by Republican Hands CHAP. XXX Of the Kings most Honourable Privy-Council I Find by several Authors Four kinds of the King's Councils The First that there are reckoned Four Councils of the King First The Magnum Concilium consisting of the Prelates and Nobles in Parliament of which Bracton (a) Lib. 1. c. 2. may be consulted and what I have writ in the Chapter of Parliaments Secondly A Convention of the Peers of the Realm The Second Lords of Parliament yet not meeting as a Parliament which appears manifestly in the Record 25 Aug. 5 H. 7. upon an exchange made of some Lands betwixt the King and the Earl of Northumberland the King promiseth to deliver the Earl Lands to the value c. by (b) Per advice assent du Estates de son Realm de son Parliament parensi que Parliament soit devant le Feast de St. Lucy ou autrement per advice de son Grand Council autres Estates de son Realm que le Roy serra assemblez devant le dit Feast in case que le Parliament ne soit Coke 1. Instit lib. 2. c. 10. sect 164. the Advice of the Estates of his Realm of his Parliament if the Parliament be convened before the Feast of St. Lucy or otherwise by the Advice of his Great Council and other Estates of his Realm which the King shall Assemble before the said Feast in case the Parliament be not called which well
agreeth with the Act of Parliament 37 E. 3. c. 18. where it is said before the Chancellor Treasurer and Great Council Thirdly The Kings Privy Council which appears to be different from the last Great Council by many Records and particularly by that of (c) Rot. Claus 16 E. 2. m. 5. dorso 16 E. 2. where it is said Hen. de Bellomont Baron of the Kings Great and Private Council was sworn This Council is called Concilium Privatum secretum continuum Regis The Privy Council properly so called Lord President The First Member of this Council is the Lord President who was anciently called Principalis Consiliarius and sometimes Capitalis Consiliarius The first Lord President Sir Edward Coke (d) 4. Instit c. 2. fol. 55. 1. par Pat. num 22. John Bishop of Norwich is mentioned 7 Jo. by Matt. Paris fol. 205. mentions was the Earl of Lancaster 50 E. 3. 1 R. 2. then he reckons these in order the Duke of Bedford 1 H. 6. the Duke of Gloucester 10 H. 6. the Duke of York 11 and 22 H. 6. John Russel Bishop of Rochester and after of Lincoln is called President 13 E. 4. John Fisher Bishop of Rochester 12 H. 7. Charles Brandon Duke of Suffolk from the 25th to the 37th of H. 8. the Lord Pawlet 1 E. 6. the Duke of Northumberland 5 and 7 of E. 6. the Earl of Arundel 1 and 2 Ph. and M. in Q. Elizabeth's time we find none but in this Catalogue Mr. Prynne (e) Animadv p. 45. Pat. 13 E. 4. part 1. m. 3. hath truly noted That the Bishop of Rochester was not made President of the Kings Council but of the Prince's and was his Tutor as appears by the Patent it self there cited dated the 10th of Nov. This Office of Lord President was never granted but by Letters Patents under the Great Seal durante beneplacito In the Statute of 21 H. 8. c. 2. he is said to be attendant on the Kings most Royal Person the reason of which saith Sir Ed. Coke is That of latter times he hath used to report to the King the Passages and the State of the business at the Council Table The Lord Privy Seal is the next Principal Person that hath Precedence in the Kings Council Lord Privy-Seal concerning whose Office my Lord (f) 4. Instit c. 2. fol. 56. Coke hath discoursed at large to whom I must refer the Curious Reader as also to him for the Acts of Parliament Orders of the same and Acts of Council together with Mr. Prynne's (g) P. 45. Animadversions whereby the Privy-Council was to be regulated and concerning the Jurisdiction and Proceedings of the Kings Council Mr. Lambard's (h) P. 108. to 116. fol. 29. Archaion and Mr. Crompton's Jurisdiction of Courts may be consulted the several Bundels of Petitions to the King and his Council in the Tower of London and the Answers to them the Placita Parliamentaria coram Rege Concilio in the Tally Office of the Exchequer and in the Parchment Book of them in the Tower under King Edward the First printed by Mr. (i) In Placit Parl. Append. Those summoned to Parliaments as Assistants called the King's Council and in Parliament-time joyned with the King's Council in several Cases Ryley Of this Privy Council there seems to me to be two sorts one constantly attending the King and his Affairs the other in Parliament time only which had their particular Summons as I have before at full discoursed of and these two I find so obscurely distinguished that it is difficult in some places to understand which are meant but I think in time of Parliament these were joyned to the Kings Council for besides that they had a distinct Summons and in them as a specifical distinction the word caeteris was omitted in that part of the Summons which runs dictis die loco personalitor intersitis nobiscum ac cum caeteris Praelatis Magnatibus c. because they were not Parliamentary Barons there was also added in proceedings and judgments upon them these words coram ipso Domino Rege ejus concilio ad Parliamenta sua or ad Parliamentum suum or coram Concilio nostro in praesenti Parliamento For the particular Instances of which being they are very numerous Mr. Prynn's (k) A pag. 363. ad pag. 393. brief Register may be consulted wherein it seems to me upon the perusal of the several Records that these Assistants to the House of Lords were likewise joyned to the rest of the Kings standing Council in Parliament time so it is expressed in the Case of (l) Idem pag. 378. John Salâ—eyn and Margaret his Wife and Isabel her Sister Daughters and Heirs of Robert de Ross de Work thus Habito super praemissis diligenti tractatu per ipsum Dom. Regem totum Concilium and in the same it is thus also worded videtur Dom. Regi Concilio suo concordatum est consideratum per ipsum Dom. Regem Concilium suum So in others per Concilium Archiepiscoporum Episcoporum Comitum Baronum caeterorumque (m) Idem pag. 380. de Concilio suo existentium singulis de Concilio suo totius Concilii Domini Regis So in 21 E. 1. the Archbishop of York's Case videtur Domino Regi in pleno Parliamento praedicto Comitibus Baronibus Justiciariis similiter toti Concilio ipsius Dom. Regis and so it is said Magnates alios de Concilio ipsius Domini Regis rogavit This is further cleared by sundry (n) Idem pag. 383. The Court of Star-chamber was said to be coram Rege Concilio suo See Coke Inst 4. c. 5. Prefaces to and passages in our Printed Statutes as formerly I have noted So the Statute of Bigamy 4 Oct. 4 E. 1. saith In the presence of certain Reverend Fathers Bishops of England and others of the Kings Council the constitutions under written were recited after heard and published before the King and his Council for as much as all the Kings Council Justices and others did agree So the Statute of Quo Warranto 30 E. 1. Cum apud Westminster per nos Concilium nostrum provisum So 33 E. 1. it is agreed and ordained by the King and all his Council So 42 E. 3. c. 3. the Statute made on Petition of the Commons in Parliament begins (o) Plese a nostre Seigneur le Roy son bon Counsel pur droyt Government de son Peuple ordeigner Pleaseth it our Lord the King and his good Council for the better Government of his People to ordain By great store of Records it is apparent that in old times the Kings and their Councils gave Judgment in divers Cases of difficulty and other Common Cases concerning the Law of the Realm (p) See 11 H. 4. num 28. 63. Respectuatur per Dom. Principem Concilium Pryn. Animadv p. 39. 264 265 267 296.
ei nihil turpe cui nihil satis 3ly That he should be Avarus Rei Publicae covetous for the Kings Treasure and Commonwealth 4ly That he super omnia sit expertus that he be expert in what place the King shall imploy him for great Offices are never well managed by a Deputy When quick and when deliberate Counsels are best where the Officer himself is but a Cypher As to Counsels themselves Livy (p) In rebus asperis tenuis spei fortissima quaeque consilia tutissima sunt Lib. 22. excellently notes That in matters that are ground to an edge or drawn to a sharp point and where hope is only left in the bottom the boldest and quickest Counsels are safest yet it must be with great circumspection well considered when and upon what occasions such Counsels must be taken for the same (q) Consilia calida audacia prima specie laeta sunt tractatu dura eventu tristia Idem lib. 31. Author notes elsewhere That subtile and bold Counsels on the first view may be pleasing but are difficult in handling and in the event often Calamitous therefore rashness can never consist with Counsel duo adversissima rectae menti saith (a) Lib. 3. Male cuncta ministrat impetus Statius Thucydides Celeritas Ira Haste and Passion are of all things most opposite to Right Counsel therefore Curtius (b) Novanâ—is quam gerendis rebus aptiora ingenia illa ignca speaking of such saith Fiery and furious Spirits are more fit to innovate things and create Factions than to manage Affairs steddily (c) Praepropera consilia sunt raro prospera So hasty Counsels are rarely Prosperous because Resolution should never go before Deliberation nor Execution before Resolution When (d) Prinsquam incipias consuli o ubi consulueris mature fado opus est Sallust upon Debate and Deliberation it is by the Council-Table well resolved the change thereof upon some private information is neither safe nor honourable nor that after timely Resolution timely Execution be delay'd Violent (e) Coke Inst 4. p. 57. courses are like to hot Waters that may do good in an extremity but the use of them doth spoil the Stomach and it will require them stronger and stronger and by little and little they will lessen their own operation To leave this great Theme as too illustrious and sublime a Subject for one to treat of that hath lived in the Shade I shall now proceed to make some other remarks why our Laws give our Kings the sole power of chusing to themselves a Privy-Council and how the designers of 41. would have wrested that Power from the King Besides (f) Review of Observations p. 10. The King's Prerogative to chuse his Privy-Council what is common to all men to have a free liberty to whom they will impart their private Affairs and desire Counsel upon them our Laws being built upon firm foundations of reason considering that in the power of making of Laws the power of two numerous bodies were opposed against the Person of the single Soveraign it foresaw and found that by the Soveraigns consenting to Laws for the ease and benefit of the Subject things might pass to the prejudice and diminution of the Soveraignty If his single Person surcharged with the care of the manifold Affairs of the Kingdom should be left all alone to advise and dispute his right against all the Wisdom and Solicitation of the Representative Body of the Subject See Prynne's Brief Register sect 3. from p. 341. to the end concerning the King's Council in Parliament and out of it Therefore to prevent that it ordered That the King should at his discretion swear to himself a Body of Council sometimes in our Laws called his Grand Council to advise him in matters of State and concernments of his Soveraign Right and safety and a Body of Council at Law to advise him in matters of Justice that he might neither do or suffer contrary to the Rule of Laws especially sitting the two Houses when the wrong might be perpetual and seeing the Government must be continually upon its Guard and Watch without intermission molding and forming all things for its safety and prosperity and consequently of the Peoples this Council must be constantly attending upon the Kings pleasure and daily and hourly considering the best ways and methods of promoting the Kings and Commonweals advantage As to the (g) Pulton 37 56. 72. first particular we find it frequently in several Statutes expressed That the King by himself and by his Council at his Parliament made and ordained The necessity of a Privy-Council That this was not the great Council of Parliament appears by that of Edward the First (b) Idem p. 80. These are the Establishments of the King by his council and by the Assent of the Archbishops Bishops Abbats Priors Earls Barons and the whole Commonalty of the Land thither summoned and Edward the Second saith he caused the Articuli Cleri to be rehearsed before his Council and Answer given c. and much more may be observed in the Acts of the great Councils not fit here to be repeated From hence it is that the Law defines The King can do no wrong Privy-Counsellors responsible for if any evil be committed in matter of State the Privy-Council and if in matters of Law the Justices and Judges must answer for it As to the second particular the Parliament of 1641. cast the odium of most of the management of Affairs of State The Votes of the Long Parliament to traduce the King under the pretence of using Evil Counsellors that were ungrateful to them upon the Kings evil Counsellors as they called them which was a great artifice of the designers of that Rebellion for thereby being then not hardned enough to caluminate the King openly they would make the World believe they paid a just deference to his Majesty yet slily wounded his Reputation through his Counsellors sides leaving the application to the People Tacitly insinuating that the King being mis-led by such Councils was not so Just or Wise as to be wished and when afterwards they had got Power they always made it one of their propositions That the two Houses should have the nominating That the two Houses should have the nominating of Privy-Counsellors So in Henry the Third's time we find Mountfort's Model of Twenty four to redress the Kingdom to chuse Counsellors c. or approving and removing the Privy-Council or great Officers of State pretending they would set such just and righteous Persons in those places as would execute them for the publick good only and upon the same score though on another pretence they were importunate that the Judges should hold their places tam diu quam se bene gesserint rather than be removeable at the Kings pleasure Thus by vote without legal proof of Crimes they blackned as many of the Kings Privy-Council
(p) 14 E. 3. c. 5. Stat. 1. Rot. Parl. 2 â— 2. num 63. confirmed by Parliament a Court for redress of Delays of Judgment in the Kings Great Courts raised by Statute 14 E. 3. whereby one Prelate two Earls and two Barons the Chancellor Lord Treasurer the Justices of both the Benches and other of the Kings Council have Power to call before them the Tenor of Records and Processes of such Judgments so delayed and to proceed to take a good accord and Judgment and so remand all to the Justices before whom the Plea did depend He likewise (q) 4. Instit c. 6. fol. 67. tells us That by the Common-Law it is required that both plena celeris Justitia fiat and all Writs of Praecipe quod reddat are quod juste sine dilatione reddat c and that there did and yet doth lye a Writ de pracedendo ad Judicium when the Justices or Judges of any Court of Record or not of Record delayed the Party Plaintiff or Defendant Justice and in Case the Prelate the two Earls two Barons the Chancellor Treasurer c. may not for the Difficulty determine it then to bring it to the next Parliament there to have a final accord From this whole Discourse I hope it is apparent that as our Kings authorize the Justices to do right to every one according to the Laws and Customs of England so the Judges cannot well fail of performing it Before I end this Chapter I cannot omit the inserting of some of the Expressions that I find in the Saxon Laws whereby the desire those Kings had that equal Justice should be administred is very manifest The eighth Law of King Ina inflicts a mulct of thirty Shillings upon every (r) Hwilcum scirmen oththe othrum dâ—man Shireman or other Judge that grants not Justice to him that requires it and besides that within a Week he afford him right in Saxon thus binnan seoffon nihte gedo hine rihtes wrythe The first of the secular Laws of King Edgar runs thus That every one enjoy the Benefit of right Judgment whether he be Poor or Rich but in exacting of Punishments let there be that Moderation that they may be attempered to Divine Clemency and may be tolerable to Men. The Saxon runs thus That ole mà n sy folc rihtes wyrth ge earm geeadig and him mon righte Domas deme sy on thaerebote swylec forgyffenysse swylec hit fore God ge beorglice sy and for weoruld aberendlic The third Law of the same King is that the Judg who shall pass false Judgment on any shall pay the King a Hundred and twenty Shillings unless he confirm it by Oath that he did it by Error and Ignorance not for Malice However he shall be removed (s) Et tholige a his Thegnscipes butan he aeft al thaem Cyng gebiege swa he hin gethasian wills out of his place unless he obtain the same again of the King By which it further appears that in those days the King removed and placed Judges at his Pleasure The first of the secular Laws of King Canutus runs thus First I will that Man (t) That man ribte laga upp araere aegh wylec unlaga georne assylle set up right Laws and unjust Laws be suppressed and that every one according to his Power pluck up utterly by the Roots all unrighteousness and set up Gods Right i. e. Divine Justice and for the time to come the Poor as well as the Rich enjoy right Judgment and to both of (u) Fole rihtes wyrthe him man ribte domes deme them right Dooms be deemed Then the next Law is for exhibiting Mercy in judgment that even in Capital Matters such moderation be used in imposing the mulct that it be (w) Swa it for Gode sy gebeolice for woruld aberendlice As in the Law of King Edgar attempered to divine Clemency and be to be born by Men and that he that judgeth think in his Mind what he asks when he saith in the Lords Prayer and forgive us our Debts or Trespasses as we forgive them that trespass against us and he forbids that any Christian be put to Death for any small or contemptible cause that for a (x) Et ne forspille man for litlum Godes handgeweorce his agenne ceap the he deorgevobt small matter they suffer not to perish the work of Gods Hands which he hath redeemed with a great price In the Eleventh Law we find that the King saith That by all help and work it is to be endeavoured by what reason principally he may gain Counsel that may (y) His man fyrmest mâ—g raed aredian Theode to Thearfe ribâ—ne Cristendom swy thort araeran agh wilec unlaga georne assyllan confirm such things as are for the profit of the Republick and may confirm Christian Piety and may totally overthrow Injustice from hence that Profit at last coming to the Kingdom that Iniquity may be suppressed and Justice may be set up in the Presence of God and Men. I could add more but I shall have occasion in the next Chapter to mention something of this Subject and shall only close with that Admonition of King James (z) Dalton's Justice of Peace c. 2. the First to the Judges in the Star-Chamber 1616. wherein he gave them in Charge to do Justice uprightly and indifferently without delay without Partiality Fear or Bribes with stout and upright Hearts with clean and uncorrupt Hands and not to utter theirown Conceits but the true meaning of the Law not making Laws but interpreting the Law and that according to the true Sence thereof and after deliberate Consultation remembring their Office is Jus dicere not Jus dare CHAP. XXXIV Of Justices of Peace and their Sessions SIR Edward Coke (a) 4. Instit c. 31. fol. 170. observes that the Constitution of Justices of Peace is such a form of subordinate Government for the Tranquillity and quiet of the Realm as no part of the Christian World hath the like which may be true in the particular Limitation of the Power Officers like our Justices of Peace anciently in other Countries But that in other Countries such like Officers have been appointed particularly for the preservation of Peace is evident in the ancient Laws of the Wisigothes (b) Lib. 2. c. 16. compiled by Theodoricus their King about the Year of our Lord 437. which constituted Pacis Assertores and appointed them Judges to hear and determine those causes quas illis Regia deputaverit ordinandi Potestas So in the Sicilian (c) Anno 1221. Ibid. p. 704. to 722. lob 1. tit 8. Laws compiled by the Emperor Frederick the Second we find one Title de cultu pacis generali pace in Regno servanda and another de (d) Ibid. tit 41. officio Justiciaratus where the Title Office and Commission of the Justiciarii Regionum is at large recited almost in Parallel terms with ours at this Day The
vertuous but less innocent for there is rarely any rising without a Commixture of good and bad Acts but it is reasonable that the Memory of their Vertues remain to Posterity and their Faults dye with themselves (c) miserum est aliorum incumbere famae Ne collapsa ruant subduct is tecta columnis Juv. Sat. 8. v. 77 78. It is glorious in the Progeny of the old Nobility and useful to themselves their King and Country to study to imitate the Perfections and eschew the Imperfections of their noble Progenitors who were Founders of their Families and Honours They no doubt were Learned Judicious and able Ministers of State such as eased their Prince of their otherwise unsupportable Burthen of Government such as were sensible of the true Fountain of Honour true Patriots of their Country because zealous for the established Government and coveted not to make themselves popular in opposition to their Prince Honour is one of the prime Badges of Nobility The Use of Nobility the winning of that saith (d) St. Alban's Essays Of Honour and Reputation the learned Chancellor is the revealing of a mans Virtue without disadvantage If a man perform that which hath not been attempted before or attempted and given over or hath been atchieved but not with so good Circumstances he hath purchased more Honour than by effecting a matter of greater difficulty or Virtue when he is but a follower Honour that is gained broken upon another hath the quickest reflection like Diamonds cut with Fucets therefore it s commendable for any to exceed his Competitors in Honour by outshooting them in their own Bows (e) Idem Essays c. 14. A Monarchy where there is no Nobility at all as among the Turks is ever a pure and absolute Tyranny For Nobility attempers Soveraignty a great and potent Nobility addeth Majesty to a Monarch but diminisheth Power putteth Life and Spirit into the People but presseth their Fortunes It is well when Nobles are not too great for Soveraignty or Justice and yet maintained in that heighth as the Insolence of Inferiors may be broken upon them before it come on over fast upon the Majesty of Kings A numerous Nobility causeth Poverty and Inconvenience in a State Concerning numerous Nobility brings a surcharge of Expence and some falling to be weak in Estate it makes a kind of Dis-proportion betwixt Honour and Means To keep Nobles at some distance is not amiss but to despise them Kings to countenance their Nobility may make a King less safe and less able to perform any thing he desires This Henry the Seventh did and though they continued Loyal to him yet they did not co-operate with him in his Business The reason of State that we may presume swayed with so wise a King was for that the Wars betwixt the Houses of York and Lancaster had been carried on by the sidings of the Nobility who had in those Days numerous Retinues the younger Sons of the Gentry and sometimes the elder making a great part of the vast Families of Noblemen and their Tenents holding their Lands by small Rents and due Service enabled them to make great alterations in the State accordingly as the chief of the Nobility were combined So that he made Laws against the number of Retainers to lessen such dependences and likewise bringing in use the making of Leases made the Tenents less obliged to their Lords paying their Rents and by such Tenures for Years Honours not to be too common they grew Rich so that thereby Freeholders exceedingly encreased and all this helped to subduct from the Power of the Nobility Honours are not rashly to be made common or prodigally given otherwise they grow dis-esteemed and unregarded rare and few Honours are more glorious saith (f) Honores non essâ— remere pervulgandos aut essuse dandos alioquin eos obsoleseere raros enim honores tenues esse gloriosos effusos pervulgatos esse obsoletos contemptos Giphanii Com. in cap. 3. lib. 5. olit Arist the judicious Comentator diffused and common bring Contempt and Sleight Consentaneous to which is what the forementioned Chancellor saith That States which aim at greatness St. Alban's Essays Of Greatness of Kingdoms must take heed how the Nobility and Gentry multiply too fast for that maketh the common Subject to grow to a Peasant driven out of Heart and in effect but a Gentleman's Labourer As in Copice Wood if you leave the Stadle too thick you shall never have clean Underwood but Shrubs and Bushes and so you bring that the Hundredth Poll is not fit for the Helmet especially as to the Infantry which is the State of France not of England But in this Particular the Custom of other Nations a Princes Service and incident conveniences are to be considered For some will be won as much by Honours as Offices of Profit and it is less Expence to a Prince in the gratifying his well-deserving Subjects Besides something must be allowed to Aemulations and a rich Soil will bring a greater Crop than a barren In all Ages likewise some of the ancient Nobility are extinguished and it is fit to plant new Standards in the room of the decayed So that what these Learned Men assert concerning spare Distribution of Honours is to be considered with just Limitations The Splendor Magnificence and great Retinues of Noblemen conduce much to Martial greatness Great Retinues of the Nobility useful except in Poland the State of Free-Servants and Attendants upon Noblemen and the richer Gentlemen hath been observed to be no where so peculiar in former times as in England Those Retainers and humble Friends are fitted for all gentile Employments and are a Seminary of the more polite Yeomanry whereas a close and reserved living of Noblemen and Gentlemen causeth a Penury of Military Forces and well-bred Yeomanry The Nobility may be Eclipsed by sinking beneath their Orbs in affecting Popularity in opposition to their Prince The Nobility not to Desert the Crown or rearing their Heads among the Clouds in Ambition Whenever by Malevolent Aspects of other Planets their Influence on the State is less benign or that the putrid Breath of some Male-contents taint their Allegiance the Contagion is of a large Spread their Blood being mingled with so many others of Power takes Fire at once and can neither be shed or rectified alone Sometimes their Blood may be chilled when they conceive others interpose betwixt them and the warmer Gleams of the Throne and they will not want Factious Torpedoes that will benum their brisker Souls The old Nobility not to envy the new ones if they be not wary to avoid their touch But when their Lordships consider that as they and their happy Ancestors have had a plentiful Portion of their Princes Regards and Bounty so they should be content that others share with them in their Princes Munificence and should not expect that their Families should be every Ages Darlings they
scarce one particular Branch of the Constitution of the Monarchy the black Parliament did not alter I have been obliged under all those Heads to examine their Principles detect their Frauds sinister designs and the mischievous Consequences of those alterations or subversions they made and have treated so much the largelier of those Pests of all Governments Faction Sedition and Rebellion as I conceived the quiet repose and tranquillity of the Government required it Yet I flatter my self that all concerned therein will take my advice reasoning and collections in good part Since I have no other design but to prevent their Personal Rain and the Calamities that have been so wastingly brought upon these Kingdoms by them and may be brought again if ever the like should be attempted For the effectual prevention of which I am in hopes that the right understanding the Constitution of the Government will be an useful Antidote and would wish all Male-contents to consider what the consulting of History and their own Experience may teach them that however the English Monarchy for a time by Faction Sedition or Rebellion may be weakned or Eclipsed yet the just Monarohy like the Sun ever dissipates all the Mists hazy Weather and Clouds and will at last though sometimes not without Thunder and Lightning clear the Air and shine with more Powerfullness and Splendor than before The rude shocks of popular Disturbance do but more securely establish the Throne It being the Prudence of every Governour to make more defensible that part of the Fortress which by any Assault hath been found most weak and untenable As I have endeavoured on the one hand to keep the Subjects in their Duty and by all Dehortments reclaim them from Sedition and Rebellion and have laid open the ancient State of the Government and the absoluteness of our Princes for some Ages after the Conquest nevertheless I would not be understood to intend the reducing the Subject to their Pristine Bondage This is far from my Thoughts What I have done in this kind is not only because the subject matter required the describing the ancient Model of the Government and that of late the Power of our Monarchs hath been endeavoured to be too much restrained but principally upon three Accounts First to discover the gradual Relaxations of the absoluteness of our Princes for the greater case of the Subjects Secondly to let all know that our Liberties Priviledges and Immunities have proceeded from the Grants Benevolences and Gracious Condescensions of our Kings Thirdly to induce the Subjects with due thankfullness to acknowledg the bountiful Favour of our Soveraigns and the Wisdom of our Ancestors in solliciting for and obtaining such Liberties as we enjoy beyond the degree of any Subjects either to Crowned Heads or Republicks There being such Barriers set in England betwixt the Soveraign and his Subjects as neither can remove without fatal Inconvenience For as the Princes greatest Ease Prosperity and Glory is when he Reigns not so much over the bodies as in the hearts of his Subjects and rules by the Laws So the Peoples Profit Plenty and Tranquillity is the most certain and established when they are content with the Enfranchisements the Laws allow and endeavour not to invade the Prerogatives of the Crown as the Houses of Parliament 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 6. Hist p. 452. C. convened 1641. did by their dethroning Propositions and Bills which if they had been granted would not only have unsoveraigned the King but rendred the condition of the Subject more miserable and enslaved than it had been for many centuries of years by-past I have endeavoured in the whole work to discover how much the English Monarchy excells other ancient and modern Governments and even the Utopia and Fictitious Ideas of the Philosophers The judicious Polybius hath a memorable observation That every Monarchy is not to be called a Kingdom but that only which is yielded to by the willing that is which is freely submitted to to distinguish it from Tyranny and which is governed by Counsel rather than by fear or force Also that every Government of few is not to be called the Principality of the Optimacy but that wherein the just and Prudent by Election have the Power That he saith further is not to be called the Empire of the People where every multitude hath Power of doing what they will or purpose but where the Countries Customes flourish where the Gods are worshipped Parents honoured the Elder Persons reverenced and the Laws obeyed All which I hope I have made apparent are better provided for in our Hereditary Monarchy than in any other known Government especially as to the Peoples benefit in the rare Constitution of the Legislative and yet the Soveraign hath retained sufficient Power to secure the Peace of his Countries and be able to bear the Port of a great and just Monarch In this Treatise I meddle not with the Arcana Imperii they have too much of Majesty impressed upon them to be described by such Pencils as I can use and like the Kings Coin are incircled with a Decus Tutamen may neither be clipped nor adulterated Neither have I medled with the Religious part of the Government that not being my Province I write abstractedly of the Soveraign and the Constitution without regard to the Religion of the Prince as being well satisfied that whatever Qualifications the Subjects may wish for in their Prince yet Religion qua Religion should neither influence the Succession nor their Obedience In so great an undertaking I hope it will be considered that as in a great Building all the Rooms are not alike richly furnished There are some Vtensils fit for the Kitchin which are not for the Dining Room Some Pictures suit the Hall others the Stair-case Such as are for Chimney-pieces are not agreeable to the Great Chamber The choicest are fit for the withdrawing Room and the enriched Closets So in this work I am obliged to keep a decorum In some places I have reason to use a more close and contracted in others a more free and loose way of Arguing Sometimes I am forced to use the significant though obsolete Saxon or the crabbed Terms of Law and Arts and intermix the less refined Sentences of old Authors according as the subject matter required so that I could no waies use that politeness of phrase or roundness of Period◠the curious may expect I presume not that every one will be equally delighted with the researches I have made into the usages of remote Ages or with the Censures upon some mens later Actions But most I hope will find good use of either and when they consider I have endeavored to follow great Authors and have faithfully quoted them they will more readily acquit me Therefore I beg that the Ingenious Peruser will not pass his Censure upon parcels but after he hath perused the whole will be so charitable to believe that those Parts which are less acceptable to him
may be grateful to others and will allow that in so great a work wherein much variety of Reading and Argument was requisite I cannot expect to adapt things to the Genius of every one Yet as far as I am able even in this particular I have endeavoured it Non vero nudas sparsas sententias dedimus nediâ— Huerent effet quod dicitur Arena sine Calce sed eas inter se haud indecentervinximus interdum velut cemento quodam commitimus nostrorum verborum Ut Phrygâ—ones e varii coloris filo unum aliquod Aulaeum formant sic nos e mille aliquot particulis uniforme hoc cohaerens corpus Lipsii Polit. de Concilio Forma Operis by interspersing in every Chapter either Historical Remarques or the weighty Sentences of Grave Authors and though I lose some of the Elegancy and Emphasis in rendring them into English yet I hope the Reader will have recourse to the Margent where he will find I have not wittingly falsified any Quotation What Apologie Lipsius makes for himself I must crave the benefit of That though I have culled out from Learned Authors great variety of Sentences yet I have not so scatteringly strowed them that they might seem Sand without Lime but have with such Cement as I could not undecently inlaid them And as the workers of Hangings from threads of divers colours weave one piece of Tapistry So from a thousand Arguments and materials I have fashioned the uniform and connected discourse of the English Monarchy which though in single branches hath with great Judgment and Arts been composed by others yet that I know of hath not been so digested in one body before This consideration leads me to another necessary Apology for my self that whereas by an heedlesness I dare not excuse I had not in my first draught noted the Pages in some Modern Authors nor the Authors themselves yet have transcribed their whole Sentences I desire the candid Authors and Reader not to Interpret this a studied Plagiarism but rather impute it to the good Opinion I had of the vivacity and significancy of their expressions which made me insert them and no design to vend stollen Wares undiscovered for it will be easily found that I challenge them not as my own and if the attentive collate such places he will find that what ever rich Gemms or Metals I have borrowed I have endeavoured to place them with advantage and though I cannot say I have enriched them in the setting yet have mostly used some workmanship about them or have added some ancient Authority parallel to them This having been the product of many spare Hours and my Profession which no other studies have ever interfered with having often obliged me to leave the matter abruptly in the middle of a Paragraph whereby I returned not again to it with the same warmth and train of thoughts and the sending up my Copy in parcels at distant times to the Press I hope will prevail with the considerate to pardon what inconnexion broken ends or some small repetition may be found in it I must here also advertise the Reader that the whole Original was writ and the most part Printed before the last Session of Parliament Nov. the 9th So that what hath fallen out since he can expect no touches upon and though at present the Harmony be not the same that was formerly betwixt the King and his two Houses yet it is to be hoped that betwixt so Wise and Gracious a King and so Loyal a Parliament there can be no long discord especially when it is considered who will have the greatest advantage by it If this Treatise contribute any thing to it I shall think my self very happy However I hope Gentlemen and Scholars will find it a pleasing divertisement in their Closets and Studies it being fitted for the hours of such recess and upon every head there being variety of matter collected and great Volumes epitomized and several Authors noted who treat upon that Subject it will be a Promptuary or Common-place out of which many out of this Ore upon occasions of moment may digest for their own use refineder notions and having a competent store of Observations from Writers of good esteem laid before them may with more ease bring them to the Test of their own Judgments Having dealt thus frankly with all I hope Gentlemen will allow me that plea which most require that for some Moles Dimples or Scars an otherwise tolerable mien is not to be contemned and though I must expect the fate of all Builders that most will conclude they could have contrived better In magnis veluse yat est yet I hope three things First That the well-wishers to English Monarchy will have a favourable opinion of the design what ever they have of the performance Secondly That this may excite some who have more leisure greater helps and more refined Judgments to undertake this useful subject with happier Auspices And lastly That none will entertain a worse opinion of the Government by reason of my unskilful describing of it or despise the whole because I may for all my Circumspection have committed Errors in following the Sentiments of some Authors or mistaken the true sence of any of them which hath not been done willfully by N. Johnston OF THE EXCELLENCY OF Monarchical Government Especially of the English Monarchy WHEREIN Is largely Treated of the several Benefits of KINGLY GOVERNMENT and the Inconvenience of COMMON-WEALTHS c. CHAP. I. A Comparison of the Body Natural and Politic with an account of the subject Matter treated of FROM the Contemplation of our selves in the Faculties of our Souls and the Subservience of our Bodies no doubt wise Men have fram'd the Idaeas of Government with is agreeable to what the Great and Ancient Philosopher (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Arist Polit. lib. 1. c. 5. notes That every living Creature consists of Body and Soul whereof the one by Nature commands and the other obeys and in another place (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ib. he distinguisheth the manner of the Soul's Rule in that it rules the Body by a Masterly and Absolute and the Mind rules the Affections by a Kingly Command As the Natural Body consists of Head and Members made stable and erect by the Bones tyed together and curiously interwoven by the Nerves Ligaments Tendons Muscles and Membranes Comparison of the natural with the Politic body pervaded by the nutritious juice Lympha and Blood irradiated by Natural Vital and Animal spirits animated and enlivened in all its motions by the Energy of a Rational Soul So in the Political the Sovereign the Head and the People the Members are held together by the strong Sinews and Nerves of good Laws and Political Constitutions actuated and enlivened in all their motions by the influence of the Prince and his Government as the Soul Archaeus and Coelestial fire whereby every Member performs its Offices in this
great Oeconomy the whole System is kept in regular and orderly Motion is firmly established and enabled to exert all those beneficial Powers that are admired in a well composed Body Politic. The Body without the Head being but a Trunk and inanimate Carcase and the Head without the Body as a curious piece of Clock-work without Motion It must be owned to be a noble Enterprise to make researches into the constituent Parts Harmony and Composure of Government which is that benign Supreme Power which influenceth vast Societies of men and combines all tempers constitutions and interests in one noble Machine for the benefit of the whole and every part and makes every Dominion a little World wherein Beauty Order and the Blessings of this Life are inspired into all the Members how minute soever with that calmness when no disturbances are given it that we scarce hear the motions of the (c) Sic orbem Reipubliâ—e esse conversum ut vix sonitum audire vix impressam orbitam viâ—ere possumus Cic. â—â— Attic. Ep. 36. Machine or see the Springs that move it But as in the Body Natural the (*) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Philosopher observes That by the turbulence of depraved Appetites by heady Rashness and seducing Passions in the vitious and ill-affected the Body seems to command the Soul and Reason is dethron'd So in the Commonweal when from mistakes and misguided Zeal Discontent Ambition and other vitious Inclinations People are infected whereby the Malignant Fever of Sedition or the Pest of Rebellion rageth in a State the Sovereign is for a time kept from the Exercise of his Royal Power The Scheme of the whole work and sometimes dethron'd But to leave this pleasing Allegory which I could pursue in comparing all the Members of the Body and Faculties of the Soul with the constituent Parts and Offices of Government I shall instead of that draw a short Scheme of my design in this Work which I had never undertaken if it had not been that I was invited to it by a Great and Wise Minister of State My Lord President whose glorious Service to his Prince and Country will be celebrated in remotest Ages and having liv'd to make some Observations on the Causes and Managery of the Rebellion against King Charles the Martyr and the tendency to another Civil War of later date and revolving with my self that though many wise and judicious Persons both know and have learnedly writ of the secret Springs and Movements of them infinitely beyond what I can pretend to and that both our own Country-men have in Parts writ of all the branches of the English Government and many Foreigners of Politics in general or such as were fitted for the Governments under which they lived yet having met with none that had so particularly writ of the Excellency of the English Monarchy as to illustrate it so as it might be useful to the preventing Seditions and Rebellions and to clear the Commodiousness and Necessity of submitting to it and placing a great Portion of our happiness here in living under it I conceived it might be a profitable Essay to excite those who have not leisure and opportunity to peruse great and numerous Volumes to extract for their use such things as had occurred in my poor Reading to induce them to prize it as they ought and to furnish them with such Arguments as my low Reasoning was able whereby to answer the Objections of our late Republicans against it and discover their Methods of Proceedings towards the overthrowing it and to caution all the well-meaning Subjects against all the Arts of Factious and Seditious People and Principles And though I cannot promise my self the success I wish yet I hope I may excite some more knowing learned and judicious to furnish our little World with a more Copious and Elaborate Piece which may supply my defects and more abundantly satisfy the ingenious and curious Reader to whom I shall now draw the Curtain and expose the Model of the designed Work First Therefore (d) cap. 2. as a Foundation I shall treat of the necessity of Government in General In which Chapter I shall discourse of its Original in Families c. (e) cap. 3. Then that the People are not the original of Government Then (f) cap. 4. of the benefit of Government in instituting Laws In (g) cap. 5. securing Property and other particulars From this I proceed to treat of the (h) cap. 6. inconvenience of Democracy and of the several (i) cap. 7. Forms of Common Wealth Governments before and in Aristotle's time After which (k) cap. 8. of the inconvenience of all kinds of Republick Governments Then of the preference (l) cap. 9. of Monarchical Government before all others In all which Chapters I touch upon the Principles and Practices of our late Republicans which having dispatched I give the Character of a good (m) cap. 10. King in general Then that the care (n) cap. 11. of Religion is incumbent upon Kings Then of the (o) cap. 12. Clemency Prudence (p) cap. 13. Courage (q) cap. 14. and Military Conduct of Kings of the (r) cap. 15. burden and care of Kings (s) cap. 16. The Excellency of Hereditary Monarchy Then I proceed to the King's Authority and (t) cap. 17. Sovereignty in general and more (u) cap. 18. particularly according to our Laws by the Enumeration of many particulars (w) cap. 19. Then as a Corollary that the Sovereign is not accountable to any upon Earth That the King is not to be (x) cap. 20. Resisted or Rebelled against In what cases he may (y) cap. 21. dispence with the Execution of the Laws of his Country Then I treat of the King's Authority (z) cap. 22. in making Laws and of the Laws of the Romans in Britain and of the British and German Polity Next of the Saxons (a) cap. 23. great Councils of whom they consisted and how the Laws were established by the respective Kings Then of the great (b) cap. 24. Councils from the Conquest to the beginning of Hen. 3. Then of the great Councils (c) cap. 25. and Parliaments during the Reign of Hen. 3. to the end of Edw. 3. After which of the Parliaments (d) cap. 26. of England during the Reign of Edw. 2. to the 22. of King Charles the 2d Then of Modern (e) cap. 27. rightly constituted Parliaments and of the Factious (f) cap. 28. Members of Parliaments wherein I discourse at large of the Encroachments of some Parliaments especially of some Houses of Commons Then from the great Council I pass to the (g) cap. 29. Right Honourable the Privy Council their Qualifications to be at the King 's sole appointing Of Ministers (h) cap. 30. of State c. Then of the King's Sovereignty in appointing (i) cap. 31. Magistrates (k) cap. 32.
to shake off those Bonds and Fetters imposed on them by their Superiors or voluntarily yielded to by themselves if they judge that thereby their common Freedom is impeached for that they say the People never submitted to any Government but by way of Agreement and Contract unless in cases of absolute Conquest Therefore one whom the Commonwealth-men esteem their (a) Mr. Algernon Sydney Martyr asserted That Kings have Usurped over the People a power inconsistent with their natural liberty and that Kings owe their right to prescription which the greatest Tyrant may maintain by force and to that consent which they may procure by violence or flattery I am sensible that I might more orderly have placed what I have to answer to these assertions in the Chapter of Monarchy but intending to prove that to be the best of all the known Governments and that Chapter and the other preceding it being so large I judge it not so fit to clog it with this but make it as a preliminary For though I oppose Monarchy principally to this sentiment yet it hath something in it also of use to the right stating of the Original of Government in general First therefore I shall endeavour to evince That God Almighty was the Original Donor of the Authoritative Power of Government The Power was given from God to One and not to Many there neither was nor is Natural Freedom and that not to any collective body of the People Secondly that there never was such a state of primitive freedom or natural liberty as is challenged Thirdly That where ever the Peoples Election was admitted in constituting a Soveraign they capitulated not for any reservery of power of resumption and Lastly that in the present State of our English Monarchy no such Power ought to be challenged First then with a Reverend (b) Dr. Hammond's Address to the Lord Fairfax p. 8 9. The State of Government in the first Ages Kingly Author it is to be considered that if Adam had never fallen and his posterity had remained in the same innocence yet in order to civil life they would have been capable of civil precept and in reason one man or more should have had the superiority over all others as Parents over Children and the consideration of the divers orders of Angels that never fell evidenceth that even in the state of Innocency God designed Superiority not Equality But since from the Fall it is apparent that the irregular passions of Men have caused a need both of Rules and Rulers Laws and Law-makers it was but reasonable that God should and it is most certain that he did design and appoint Government and so gave not man that freedom which is supposed to be the foundation of this Doctrine Hence we may note what God says to Eve Gen. 3.16 That her desire shall be subject to her Husband and he shall rule over her so that here is the first Dominion And the second we find in Scripture is Gen. 4.7 where God tells Cain that his Brother Abel's desire shall be subject to him and he shall rule over him and this was as he was the first-born though after he wickedly slew Abel We have reason to judge according to Scripture that God gave Adam as an universal Monarch Dominion over all his Fellow Creatures and of all Men that should be born into the World as long as he liv'd and the like may be said of Noah so that whatever property as it is clear Cain and Abel had and what share of Government over any part of the World either of their Sons had they held it all of them originally by gift and Assignment Allotment and Authority without awaiting the Election or consent of or entring into any Articles or Capitulations with the People that were to be governed by them So that in the Infancy of the World all Men were born Subjects either to him that was naturally their Father or to him that by Right of Primogeniture was representatively their Father That this continued for many succeeding Generations is most apparent in the Blessing that Jacob and Esau receiv'd from their Father Isaac For Rebecca knowing that such a Blessing was of the same force that now the last Will and Testament or Deed of Gift of a Parent is and of much more absolute force contrived that way to obtain the Blessing of Primogeniture for her Son Jacob that his Brother Esau might serve hm (c) Dudley Digs p. 15. After the multiplying of Mankind though I cannot say with a Learned Author there were so many absolute Princes within the compass of a Parish that a Man had scarce room to walk in a Territory when a Common-wealth was lodged in a Cottage yet it appears from Gen. 10.32 That the Families that sprung from Noah's Sons divided the Earth and gave distinction to Nations and the Cadets of the first Houses travelling to distant places exercised Authority and gave Laws to their Descendants and being thus separated to settle new Plantations every Planter becoming so by himself a Father encreased to a Family and that into divers Families those into a City and thence into divers Cities and at last into a large Dominion (d) Review of Observations p. 2. So that a King in the first Ages of the World was no more than a common Father either by natural right as a Parent or after by a legal Right as the eldest Descendant of such a Father and when the pleasantness or profitable commodiousness of one Soil allured several to covet it then arose Contests and the Conqueror possess'd it forcing the Conquered to seek other Habitations or made them his Slaves and so a Succession of some brave Princes enlarged their Dominions to Empires establishing them by just Laws and good Government So upon the overthrow and breaking up of Kingdoms Instance may be given that some victorious Person obtain'd the Peoples Subjection to him for that being depriv'd of their natural common Father and Sovereign they necessarily entertained such supply of their loss as their Fortunes could best afford them and whatever those conquered People did it was no other but the chusing of one to bear the known Office of the true natural common Father even as those might do who either like Swarms and Colonies voluntarily separated from the main Stock to more roomy and rich Plantations or those who escaped from the Conquerors Sword into a remote unpeopled Land setled themselves in Society and under the Government of one For as hereafter I shall make it appear the world was grown to a great Age e're any form of Government was known but what was Kingly Whereas if the People had known of any such Right they had of Government inherent in and connatural to themselves we should in the Sacred or Prophane Histories have had Instances of it whereas we find the very Savage Americans who if any People live according to natural Instinct to be govern'd by Kings and
which are all the ways whereby any right can be legally established Therefore we must look upon all such as cast in such Baits for the People to nibble at that they intend to make a prey of them and having fastned the gilded Hook in their Jaws may draw them out of their own Element to a free air indeed but such as will stifle them For when any Subjects by the instigation of such pretended Patriots are excited to put in their claim of Original Power and shake the Government though their Rebellion be prosperous it is not without vast effusion of Blood that the Government can be changed After which how will it be possible that the Community of the People can be put into that pristin state of freedom those State-Mountebanks promise but rather into an Anarchy which is contrary to the end of all Society and to quiet and peace and is the Parent of all confusion which is much worse than the hardest subjection This truth by a most chargeable tryal we experimented in the late War when the Pretended Saviours of the Nation and great Promoters of Spiritual and Temporal Liberty having wheedled the People into a belief of their honest Intentions and by their prosperous Arms overthrown the most temperate Monarchy by the effusion of infinite Blood and Treasure by pretended agreements of the People they assumed the Government to themselves enslaving both the Nobility Gentry and Commonalty more than any Foreign Conqueror would do or ever their Ancestors had been in any Age and the Golden Scepter and that of King Edward with the Dove was turned into a Rod of Iron and a Flaming Sword Basilisks and Fiery Serpents CHAP. IV. The Benefit of Government from the Establishing and Instituting of Laws THe (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Rhetor. ad Alex. c. 1. Philosopher describes Law to be the Promulgation of what by the common consent of the City is defined which commands upon Terms how every thing is to be done Which is to be understood after Government is established where the Lawgivers are agreed upon and the Subjects known that are to obey them In another place the same (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ethic. Nicom c. 5. Philosopher saith Laws are to be declared concerning all things that may respect the common Benefit of all or of the Optimacy viz. the Nobility or Prime Gentry or the Sovereign or be agreeable to Vertue or to any other Necessity of the People and these he calls Common Laws The same (c) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 De Repab l. 2. c. 6. Learned and Wise Composer of Politicks tells us That the Law hath no force to compel Obedience but as it receives it from Usage and Custom and this springs not from any thing so much as from length of Time and multitude of Years Of these kind of Laws few Nations make such use as we do in England under the Title of Common Laws and Customs and it is no small Credit to them that so Judicious and Ancient a Writer hath given such a Character of these kind of Laws by which we have something more than a shadow of ours The same (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. Philosopher likewise with great Judgment tells us That to forego Laws received and long used and over-easily to substitute new ones is to make weak and infirm the Laws themselves Yet he is not for tying Posterity to the Laws of their Progenitors too strictly for that it is likely saith he the first Ancestors of them being such as he calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Sons of the Earth or such as escaped from some great Calamities and Destructions were rude and illiterate such as he calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 so that it would be (e) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. absurd to persist in their Decrees therefore he saith All seek not their (f) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. Countrys Laws but those onely that are good as generally such are which have had the Approbation of Ages By what hath been noted from so Ancient and Judicious an Author I may easily infer That Laws resulted from Government and were the necessary Products of such Counsels as the first Leaders or Monarchs entertained to order their People by and since he (g) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. makes the Laws of such like validity and force in the Commonwealth as the Rules and Orders of Parents in private Families we may well conclude That as those had their Origination from the Will of the Father of the Family so the other from the Prince who is his Peoples Common Parent Therefore in Homer Kings are called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Givers of Laws or Judges of the People as well as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Pastors or Feeders Conductors Defenders or Shepherds of the People So in Sacred Writ the first Hebrew Captains or Kings were called Judges Therefore Pomponius Laetus saith In the ancientest Times before Laws were agreed upon the King's Will was a Law And (i) Regis nutus Arbitrium pro Legibus lib. 10. Dionysius is express That the intimation of their Mind by Signs and their absolute Wills were in stead of Laws (k) Romulus ad libitum imperitaverat dein Numa Religionibus Divino Jure Populum devinxit Sed praecipuus Servius Tullius sanctor Legum fuit quis etiam Râ—g â—s obtemperarent 3 Annal Tacitus giving an account of the Roman Laws saith of Romulus That he commanded at his own pleasure and after him Numa bound the People with Religion and Divine Laws Some were found under Tullus and Ancus but the principal Institutor of Laws was Servius Tullius to which even Kings should obey that is they thought themselves obliged to observe and keep the Laws they had appointed He then notes That after Tarquin was expell'd the People prepared many Laws for the defence of their Liberty and to strengthen their Concord against the Factions of the Fathers A late Judicious (l) Nalson Common Interest p. 14 15. Author saith That God and Nature investing Primogeniture with the Right of Kings and Magistrates they made Laws and this not being observed or wilfully disowned by some Popular Patrons who would possess the People that the Laws made Kings and Governours hath created the greatest Mischiefs by giving an Inlet to the Changes of Governors and Government For granting this most enormous Doctrine and dangerous Principle Laws being alterable for the Convenience of Prince or People by consequence the Right of the Sovereign if it be onely from the Laws must be precarious also The Opinion is in it self most absurd and unreasonable for there never could be Laws till there was some Form of Government to establish and enact such Laws and give them their energy and vigour For nothing can have the force or power of a Law or oblige men to Obedience unless it proceed from such Person or Persons as have a Right to command and Authority to punish the
found the greatest perfections of Human Nature to 〈◊〉 the like They do so justly and clearly support the Grandeur of Majesty the Dignity of the Crown with the Peace Liberty and Property of the Subject Whether Property was before Government or not that all Nations round about envy us for that felicity they can never hope to enjoy To disturb this blessed condition of the English Subject there are two Extremes The one of a People fond of a Notion of the Primitive fundamental of Government in the People that they will needs have Property in order of Nature before Government without considering that nothing is gained to their advantage by the concession of it For it must also be (f) Bishop of Lincoln's Preface to Power of Princes proved that it was before it in order of time for as one of the principal ends of Government is the preservation of mens acquisitions of Cattle and Fields by their industry so we must suppose some Government first because the right which any man hath to the acquired stock and lands must be ascertain'd to him by some Law which supposeth Government So that the dispute saith the Reverend Bishop is de Lana Caprina and when men have crowded themselves into the Circle they reap nothing but a Brain-sick giddiness and it is like the dispute in Macrobius Whether the Hen or Egg were first All that believe the Creation must own that Adam's Government was before any Mans property and the like may be said of Noah so that there is no need to have recourse to Articles or capitulations with the People which those make such a noise with unless they can first evince the World to be Eternal and Men to have sprung in some rank Soil as Tubera terrae Mushroms after a fruitful shower Another Extreme is what Mr. Hobbs every where in his Leviathan Against Arbitrary Sovereignty endeavours to establish viz That the Sovereign should be so absolute and so arbitrary that he should upon Exigents of State or at his own pleasure have the disposal of every Subjects fortune which how necessary it may be for vast Empires such as the Ottomans I dispute not But the Soveraigns of Christendom especially of England take no such measures to the advantages of themselves or their Subjects slavery The most judicious Earl of Clarendon in his eleborate Treatise against (g) Survey of Leviathan p. 110. Mr. Hobbs hath with great judgment refuted this opinion from whose Armory I shall borrow some of the Artillery though I dare not presume to use them with the same dexterity and address his Lordship doth This Propriety saith he introduceth the beauty of building and the cultivating of the Earth by art as well as industry that they and their Children might dwell in the Houses they were at the charge to build and reap the Harvest of those lands they had been at the charge to sow whatsoever is of civility and good manners all that is of art and beauty of rule and solid wealth in the world is the product of this the Child of beloved property and they 〈◊〉 at would strangle this Issue desire to demolish all buildings eradicate all plantations to make the Earth barren and live again in Tents and nourish their Cattle by successive marches into the Fields where the Grass grows Nothing but joy in propriety redeemed us from this barbarity and nothing but security in the same can preserve us from returning to it again If there be no Propriety continueth the great Lord there is nothing worth defending from foreign Enemies or from one another and consequently it is no matter what becomes of the Commonwealth For the Government can never be so vigorously assisted by a People who have nothing to lose as by those who defending it defend their own Goods and Estates which if they do not believe their own they will not much care into whose hands they fall To this wise Lord I may add what a great (h) Seneca Jure civili omnia Regis sum tamen illa quorum ad Regem pertinet universa possessio in singulos dominos discerpta sunt unaquaeque res habet possessorem suum Itaque dare Regi domum mancipia pecuniam possumus nec donare illi de suo dicimur Ad Reges enim poâ—stas omnium pertinet ad sâ—gula proprietas Statesman and Scholar hath long since observed That though by the Civil Law all are the Kings yet even those things whereof the Universal possession belongs to the King have their peculiar Owners So that we may give the King House Freehold or Money yet are not said to give him his own For to the King the Power over all appertains but to every single Person his Property according to that of Bulgaris to Zeno Omnia Rex possidet Imperio singuli dominio If it were thus under the absolute Power of the Roman Emperors in Seneca's time how much more secure may we judge Propriety in ours when so guarded by the Royal Sword and Scepter that in several cases Actions may be brought in defence of a Mans right even against the Crown and the Judges have pronounced Sentence against some claims of the King and ought to do so Whatever pains Mr. Hobs takes to render those precious words of Property unvaluable and insignificant we see that a better Philosopher than He and who understood the Rules of Government having lived under just such a Soveraign as Mr. Hobs would set up gives his judgment otherwise where he expresly tells us that he is (i) Errat si quis tutum sibiesse Regem putat ubi nihil a Rege tutum est Securitas securitaâ—e paciscenda est much deceived that thinks that King is in safety from whom the Subject is not safe in what he enjoys the security of the one being from the stipulation of the security of the other That in former ages also the condition of the English Subject hath been happier in enjoying greater security as to their Persons and Estates than the Subjects of Foreign Countries and that the English Laws and Government have been very tender of them appears by what another (k) De laudibus Legum Ang. c. 37. Lord Chancellor writes who lived in a turbulent age and was forced into exile with the Prince eldest Son to King Henry the Sixth He in many places treats of the miseries of the Peasants in France and of the generality of the French Subjects too tedious here to relate and in his free way of Dialogue with the Prince he divides Kingly Government into that which is Regal and Absolute and that which is Political In which last are condescensions of Princes to bound their Prerogative and this he commends to his Prince saying (l) Quis enim potentior liberiorve esse potesi quam qui non solum alios sed seipsum sufficit debellare Ib. No Prince can be reputed powerfuller or freer than that Prince who
fifth when the Multitude rule by majority of Voices and not the Law so that their temporary Votes were Law We have resemblance of these kinds of Governments in our Corporations Concerning the Democracies in Corporations where in the Elections of Magistrates in some places all Freemen in others those only who have Burgage Land in others a Common-Council solely have Vote and the whole Body or such and such parts have Power to make By-laws If we had no other Argument against Democracy but this that it is of that narrow capacity that it cannot be adapted to order Regions of large extent it would be sufficient to discredit it for we find in those incorporated little Democracies there are more Factions and divisions than in the whole large adjoining tracts of Land about them though the Villages contain a much numerouser People It is rarely found but that in all Votes relating to the public Combinations are made by Kindreds Companies or Factions The inferior sort having equal Vote often out-number the Richer and Wiser and so businesses are aukwardly or tumultuarily determin'd and the meaner People must either neglect their domestic affairs to attend frequent Conventions or leave the managery to a stirring factious Party which is (k) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. l. 5. c. 5. contrary to the fundamental equality and freedom they labour for As these Corporations were first created by the Sovereigns Grace and Favour for the encrease of Trade and enriching the places and administration of Justice so while they keep themselves within the bounds of their Duties are Loyal to their Prince and Faithful to the Government and presume not by their Pragmaticalness to dispose of the Fate of the Empire or by their factious Elections to make disturbances It is very necessary they should enjoy all their municipal Priviledges But so many Corporations having of late acted contrary it is no wonder that the late King upon solid reason of State issued out his Quo Warranto's against them and in all the new Charters reserv'd a Power in the Crown of displacing the Evil Magistrates at pleasure But to leave this to another place I shall note out of the Philosopher such Arguments as he useth against Democracy 1. Argument against Democracy Injustice As first that the common People being the greater number and the Soveraignty being supposed to be in the whole complex Body whatever they approve must be establish'd as a Right and Law (l) Vbi plebs est domina necesse est ut quod plurimis visum sit hoc quoque sit ratum hoc sit jus Polit. l. 6. c. 2. and suppose they vote a Dividend of the richer Citizens Estates among themselves though this by the force of their Government be just yet in its own nature it is great Injustice to destroy the rich Man's Propriety as well as it were for the Rich to do the same to the Poor 2dly 2. Against the Common Peoples Liberty of Elections Liberty being the principle of all Democratical Government it consists in two things either to live (m) Plerisque jucundius est licenter vivere quam modeste Ib. c. 2. licentiously which in Athens and other places was very fatal and as Demosthenes Isocrates and Cicero complain that under the specious pretence of Liberty even Anarchy prevail'd Or Secondly in the free and uncontroulable Power of chusing their Magistrates and this accasioned the contest of parties for Victory hence Crowds Tumults Routs Riots Frays and Quarrells and after all Heart-burnings (n) In Licurg Vide Giphanii Com. in c. 7. l. 2. Polit. Arist Plutarch gives us an account of the manner of some Elections for Senators that certain Persons being closed in a Room where they might hear the peoples Voices but not see the People One Competitor after another was proposed and him who was judged to have most Voices they carried Crowned to the Temples of the Gods Women and Children following him with Shouts This (o) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 2. Polit. c. 9. Aristotle calls a Childish action in so grave an affair it being not fit for any to seek Magistracy in such a way that by the judgment of the Multitude only is thought fit to Rule but (p) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. he that is worthy be he willing or unwilling should have the place Therefore we observe where the King hath the sole Power of nominating Judges Sheriffs Justices of Peace c. though they are of as great advantage to the Peace and order of the Government as Mayors Sheriffs or Common-Council Men of Corporations there are neither Hubbubs or Quarrels at their Elections and they are generally better qualified than such as court the peoples Favour Therefore (q) Rempublicam perituram in qua viri Principes consultant Populus vero imperita plebecula decernit Laertius exclaims justly that the Common-weal must perish in which the Nobility consult but the People and unskillful common Rabble give Judgment 3dly 3. Their Faction In this Government there is a continual spawning of Faction So it is (r) Giphanii Comment in lib. 5. c. 5. Polit. observ'd that at Athens the Democratical Government mostly obtain'd yet in the Attick State there were no less than three Factions according to the tripartite division of the People viz. the Diacrii that inhabited the mountainous Parts who were for pure Democracy the Pediaci who inhabited the lower Grounds and they were for a mixture of Oligarchy and the Parulii or Inhabitants on the Sea-Coasts and those were a mixture of both which Aristotle calls the Politick Hence Pisistratus appearing an Enemy to the Pediaci made himself gracious with the People and so easily got the Government So he instanceth in the changes of those of Milesia by the Prytania which was like a Consulship or Dictatorship at â—â—me So he gives an account of Dionysius feigning himself to be wounded by the Nobility who hated him for his love to the People raised a great Envy and Rage of the People against them and so established himself So Theagenes by slaying the Cattle of the Nobility animated the People of Maegara to follow him till by suppressing the Nobility and Richer he got himself to be Master of all The like we may read in (s) Lib. 13. c. 9. Diodorus Siculus that Agathocles did at Syracuse All which Changes were the Issues of Factions betwixt the Nobility and Common-people which is as inseparable from this sort of Government as the Prickle is from the Thistle or the Husk from the Corn. Fourthly The Philosopher notes That in this Government the Demagogues were most used These indeed were the Bell-wethers of Faction the Conductors of the Peoples Wills and Affections by the power of their Popularness The (t) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Pol. l. 4. c. 4. Philosopher tells us there was no use of them where the Law commanded but where Matters were judged by the Decrees of the
and Death is owned by the (g) Pater vitae necisque potestatem habebat in filios Cicero Orator in his time to remain when he saith The Father had the Power of Life and Death over his Children So that what Brutus the first Consul did in beheading his two Sons in not taken by most to be done qua Consul but as Parent for that the Consuls never had any Regal Power without leave of the People If we consider the Scope of (h) Numb 11. Moses's Expostulation with God Almighty Why layest thou the burthen of all this People upon me Have I conceived all this People Have I begotten them must from hence infer That if He had been their common Parent he ought to have had the Charge and Government of them so natural seems the Connection betwixt Fatherly Authority and Filial Obedience and that this was an Original Truth the Philosopher cites (i) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Odyss 11. Homer who saith That every Father to his Children and his Wives gives Laws This kind of Power seems to be confirmed in Scripture concerning Cain Abraham sacrificing Isaac Thamar and Jephtha But in after times when Fathers abused that Authority it was judged expedient to deprive them of it and place it in the hands of the more publick Father the King Having thus cleared the point The Antiquity of Monarchy from History and Testimony That Monarchy is according to the Institution of Nature I come now to speak of the Antiquity of it (k) Vide Stillingfleet 's Origines Sacrae Sanconiathan of greater Antiquity than any Greek Historian gives a large account of the Phoenician Monarchy the like Manetho gives of the Aegyptian and the true Berosus of the Babylonian So * Polit. lib. 5. c. 11. Aristotle speaks of the long Duration of the Molossiac Kingdom which began in Pyrrhus Son of Achilles and according to (l) De Antiquis Familiis Regum Reinerus lasted nine Hundred and Fifty years and the Lacedaemonian according to Plutarch Eusebius and others continued near upon as long The Philosopher (m) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 1. c. 1. advanceth the Origin of Kingly Government as high as the Heathen Religion or Philosophy could carry him when he saith That the very Heathen Deities were under this Form and Regimen So what Herodotus saith of the Egyptians may as truly be said of all other Nations That they could not live without Kings So Isocrates saith Before Democracy and Oligarchy the barbarous Nations and Cities of Greece obeyed Kings Therefore the Philosopher (n) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. saith At first Kings governed Cities and now Nations So Salust (o) In terris nomen Imperii primum fuit saith The name of Empire was first known in the World and Justin (p) Principio rerum Nationumque omnium imperium penes Reges erat Lib. 1. most expresly In the beginning of all things and Nations the Power and Government was solely and absolutely in Kings So (q) Certum est omnes Antiquas Gentes Regibus paruisse Lib. 3. de LL. Cicero saith That it is certain that all Ancient Nations did obey Kings If we consult Homer Plato Lucretius Diodorus Siculus lib. 2. Josephus lib. 4. c. 1. or any Historian Greek or Latin we shall find no Tract of Time nor Society of Men without Kingly Government The first Popular State we read of The first Common-wealths is that of Athens after the Reign of Erixias Anno Mundi 3275. and after that several other Cities of Greece as Sparta Corinth c. followed their examples expelling their Kings and in their Rooms erected little Commonwealths but great Tyrannies being in a continual broil either among themselves about their Magistrates or with their Neighbours for Preheminence till the time of Alexander the Great and the Macedonian Monarchy when the Country returned to their pristin Government and might so have continued if the Roman Arms and Ambition had not overthrown it As to Rome it self it was two Hundred and Fifty Years under Kings and Kingly Government was found under Lavinius when the Trojans came from that little Kingdom of Pergamus Therefore (r) Vrbem Romam a principio Reges habucre 1. Annal. Tacitus tells us That the City of Rome from the beginning had Kings to govern it Their Commonwealth began upon the Regifugium So that saith a Judicious (s) Dr. Nalsâ—n's Common Interest Author for three Thousand Years Monarchy possessed an Universal and Uninterrupted Empire over all the Affairs of the Universe so that the Sun the glorious Monarch of the day does not in all his Travels round the earthly Globe behold any spot of Ground inhabited by any thing but Brutes where Monarchy either is not at present or hath not been the Antient Original and fundamental way of Government From the consideration of this Naturalness of Monarchy Authors deducing Monarchy from a Divine Original and the Venerable Antiquity of it we may conclude the reason why the best and Ancientest Writers have adorned it with such Eulogiums deducing its Original from the Divine Being So Hesiod (t) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Theog v. 91. saith Kings are from Jove and (v) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Hymn in Jovem Callimachus adds that none are so Divine as they So in Homer (w) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ihad 6. v. 277. as well as in Hesiod they are stiled nourished of God and born of God not as deriving their Pedigrees but Kingly Honours from Jove as Eustachius notes and from Homer's making the Scepter of Agamemnon to be the Gift of Jove though a late (x) Absolute Power p. 63. Author contemptuously compares it to a Constables Staff He (y) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Iliad 4. v. 738. saith The King hath both his Scepter and Jurisdiction from God Of which the curious Reader may see more Authorities in the learned Tract of Archbishop Vsher's Power of Princes (z) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Plato according to Synesius de Regno makes the Regal Office to be a Divine Good among Men and a King to be as it were a God among Men And (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 In Politico Diotogenes the Pythagorean saith that God hath given him Dominion Others have stiled them Gods which a late (b) Absolute Power p. 66. Author saith may be allowed for want of a better in Hobs's State of Ignorance and Atheism and would have him have the Epithete of Optimus as well as Maximus Thus some take a Liberty to ridicule all things most Sacred and Venerable But I shall have occasion to enquire into such Mens Principles afterwards and at present shall only say That no Mans Hyperbole or Expression is further to be understood than as it makes the Kingly Original from God and makes Kings his Viceroys upon Earth Therefore I shall not balk such Authorities (c) 2. de LL. Plato affirms Monarchy to be the
King More particularly the same (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Polit. l. 5. c. 11. Philosopher describes a good King to be one that no ways governs Tyrannically but as the Master of a Family with a Royal mind not challenging or appropriating all to himself but procuring good for and defending his People and Subjects in the course of his Life using Moderation in all things Affable to his Nobles and in Company desirous to show himself of easie Access sweetning his Government to his People by his gracious Declarations By these saith he (c) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. his Empire will not only be more Beautiful more Esteemed and more Fortunate but more Durable being not dreaded or envied of his Subjects but commanding over the good and not over broken and depressed Spirits Such Princes use a moderate just Government according to the Laws more Majorum contented with Power sufficient to support the Government no ways injurious to their People but willing that some things should not be in their Power that they may the more securely perpetuate what they enjoy For (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. they that are Lords over fewer things necessarily subsist the longer So it is recorded of (e) Lamprid. in vita Molliorem sibi potestatem contemptibiliorem sed securiorem diuturniorem Alex. Severus that when his Wife Menemia Daughter of the Consul Sulpitius and Niece of Catulus told him That he had made his Power gentler and more despicable by not taking State enough upon him and Governing more gently He gravely answered That it was more secure and durable The very same Aristotle relates of Theopompus Therefore saith a grave (f) Ille Reipublicae status optabilis firmus est in quo privatim sancte innoxieque vivitur publica Justitia Clementia vigâ—m Polyb. lib. 6. Histor Author That State of a Commonweal is to be desired and is most firm in which private Persons live Holily and unoppressed or Inoffensive and Justice and Clemency are in full Vigor by the Princes care Therefore (g) Verendus potius subditis est quam metuendus Stobaeus Musonius in Stobaeus saith a Prince should so deport himself in his Government That he should rather be revered and honoured than feared by his Subjects The excellent (h) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polyb. Hist lib. 5. Greek Historian tells us That the Practice of Tyrants is to Lord it over the Unwilling by Terror and vitious Exorbitance being always engaged in mutual hatreds betwixt him and his Vassals But on the contrary Kings doing good to all with Liberality and Clemency govern those that freely are subject to them living in a mutual Benevolence and Charity with his People It is by such a Deportment of a Prince to his Subjects that a Prince receives much inward Contentment For as the Painter delights when he hath finished a curious Piece and every Artist when he hath shewed great Mastership in his work so a Prince when he hath by his prudent wise and merciful Government made his Reign Prosperous and Happy to his Subjects The Satisfaction and content a good King takes in his Administration cannot but receive the greatest satisfaction to himself and will thereby acquire a most glorious and durable name It was a Kingly saying of (i) Cum omnia possumus sola credimus licere nobis laudanda Variarum lib. 50. Theodahad in Cassiodorus That whereas Kings can do all things they think and believe those things only to be lawful for them to do which are Praise-worthy As the Pilot saith the Orator designs a prosperous Voyage The Subjects Benefit the End of good Kings the Physician Health to his Patient so the Supreme Magistrate should have care of his Subjects the (k) Beata civium vita praeposita Attic. l. 8. c. 11. 5. de Repub. Lives of them and their Fortunes for that End being committed to them Hence Tacitus commends that Prince who lives with his People as a Parent with his Children when neither to his own Breast Closet or (l) Nihil in penatibus ejus vaenale aut Ambitioni pervium 13. Annal. initio Family any Access is made by Ambition or in which any thing is Mercenary So we find in the same Judicious Historian the advice of Galba to Piso when he had adopted him was That the surest and shortest Rule to sort good from evil was to weigh with himself (m) Cogitare quid aut nolue 〈…〉 Principe 〈◊〉 â—olueris 1 Histor what under another Prince he would have allowed or blamed Therefore Nerva gloried most That he had done nothing in his Government whereby he might not safely live although he should lay down his Empire and live again a private Life So Trajan said He would approve himself such an Emperor over his Subjects as He being a private Man would have wished the Emperor to have been Therefore (n) Panegy Pliny so highly commends the Peoples Vows for him quod bene Rempublicam ex utilitate civium rexerit Thence the same (o) Non minus hominem se quam hominibus praesse 〈◊〉 Ib. Panegyrist commends him That he did not only consider himself to be mortal Man but that he was appointed to govern Men not Brutes It was to the fore-mentioned Nerva that Fronto said (p) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dio. in Nerva It was a great Evil to have such a Prince under whom none can have Liberty but it is worse when every one hath Liberty to do as he list the one discovering a very Tyrannical Disposition and the other a great remissness and negligence in Government Therefore (q) Nec tihi quod rarissimum aut facilitas Auctoritatem aut severitas Amorem diminuat Vita Agricolae Tacitus adviseth that a Prince's Easiness and too much Lenity weaken not his Authority or his too great Severity lessen the Love of his Subjects Lipsius (r) O vere justum legitimum illum Principem qui in summo fastigio non minus magnus quam bonus audire desiderat duas res diversissimas potentiam ac modestiam miscet quem prodeuntem certatim velut beneficum quoddam Numen aspiâ—nt inter amorem timoremque medium Praefat. ad Imperator Reg. c. gives us this noble Character of a good Prince That being raised to the highest Eminence desires not to be accounted more great than good and mingles two the most different things Power and Moderation whom his Subjects in his Progress look upon as a beneficial and comfortable Divinity so that the People attemper'd with Fear and Love with interchangeable Sentiments doubt whether they shall salute him as their Lord or Parent All Princes must necessarily be most dear to their People saith the (s) MS. Speech 1571. Such Princes dear to their People Chancellor to the Parliament Anno 1571. dearer than their own Lives when they by their Actions demonstrate that
they make the whole Scope and design of their Government the Prosperity of their People Among the chiefest of which Benefits that of Peace is to be most valued as being the end and mark that all good Governours direct their Actions to In another place he makes it a sure sign of good Princes when they wish themselves all the good qualifications and fittedness for Government and all the Vertues of the greatest Princes for their Subjects good this being a full Demonstration how precious and valuable the safety and quietness of their Subjects are to them The learned Lord Chancellor Bacon marshals the degrees of Sovereign Honours under five Heads Degrees of Sovereign Honour every one of which are as so many Characteristicks of great and good Kings First the (t) Essays of Honour and Reputation 1. Conditores Imperiorum Layers of the foundations of Empires as Romulus Cyrus Caesar â— (u) 2. Legislatores perpetui Principes Secondly the Founders of their Laws or Law-makers who by constituting good Laws are as second Founders perpetual Princes because they govern by their Ordinances after they are translated from this World Such were Solon Lycurgus Justinian and others (w) 3. Liberatores Salvatores Thirdly such as have freed their People and delivered their Country from Servitude or have put an end to and composed long civil Wars as Augustus Vespasian our King Henry the Seventh and the Fourth of France and most eminently our late Royal Sovereign (x) 4. Propagatores vel propugnatores Fourthly such as by honourable ways enlarge their Territories or make a noble Defence against Invaders Lastly such who reign justly and make the Age good wherein they live therefore stiled Fathers of their Country such both was and is our late and present Gracious Soveraigns So that such a Prince as others describe according to their Wish or as an Exemplar the English Nation Character of King Charlâ—s the Second and all his Majestie 's Subjects above all other Kingdoms in the World have been and are Blessed with under the Reigns of two such unparallell'd Royal Brothers We may justly give our late Sovevereign of immortal memory that Character which we find in Arnisaeas as the Idea of a good Prince That leaving entirely to his Subjects their Properties governed according to God's Nature's and his own Laws founded upon Equity and Justice or that of (y) Rem pepuli esse non suam privatam Dio. vita Hadriani Hadrian's that so managed his Government That all might know that he studied the Peoples not his own private Profit Surely we may hope for great happiness under our present Sovereign Character of King Jarâ— the Second who hath not only been a Copartner in his Royal Brother's sufferings but a Co-adjutor in the management of his great Empire and hath so signalized himself in the hazzard of his Life and glorious Atchievements for his Country and is endowed with all the Heroic Accomplishments that ennoble Princes in the Records of Fame so that we have the greatest Moral assurances if we disturb not his Reign by Sedition and Rebellion that he will out-go most of his Ancestors in the prosperous Government of his People as well for their Glory as their Peace and Tranquillity Religion in a Prince his Duty and Advantage CHAP. XI The Care of Religion a duty incumbent upon Kings IT is not enough to give a Character of a good King in general but we must descend to Particulars and first of his Care of Religion according to that of (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit lib. 7. c. 8. Aristotle That in all Government the first and principal Concern of a Prince is to take care of things Divine For according to the (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Diog. â—pud Stohaeâ—m Stoick It becomes him that is the Best to be worshipped by the Best and that the great Sovereign of the Universe be worshipped by his Earthly Vicegerents For of old it hath been noted That many advantages both accru'd to the Sovereign and People when the Prince was truly Religious Therefore the (c) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. l. 5. c. 11. Philosopher tells us That it is the duty of the supream Governour principally to take care of those things which appertain to the Deity for thereby the People are more obedient to their Princes as not fearing injustice from them For that it is to be supposed that he that is Pious and Just will not do an Unjust and Impious Action and by it he is more secure in the assurance of Protection from the Deity whereby he may hope for its Defence and Patrociny from the Seditions and Treacheries of his Subjects having the Deity to fight for him Consentaneous to which is what (d) Omnia prospere eveniunt sequentibus deos Adversa autem spernentibus Lib. 5. Livy observes That all things happen to them prosperously that follow the Gods and as unprosperously to them that despise them Upon the same Ground it is that the Orator saith The Romans had not conquered the Spaniards by their Numbers or the French by their Strength the Carthaginians by their Stratagems or Grecians by their Arts nor the Italians and Latines and their Nation and Land by their Native and Inbred Wisdom but by Piety and Religion and (e) Atque hac una sapientia quod Deorum Immortalium numine omnia regi gubernarique perspeximus gentes nationesque superavimus De Aruspic by that Wisdom alone that they understood all things to be governed by the Deity they had overcome People and Nations Agreeable to this Affirmation is what we find recorded of Numa That his care of Religion was the chief cause of the succeeding Felicity of Rome For as the (f) Machiavel's Disc lib. 1. c. 12. Florentine Secretary observes That Romulus exercising his People wholly in Military Affairs his Successor Numa finding he had to deal with a Fierce Usefulness of Religion to civilize Subjects Rude Cruel and Ungovernable people thought the way to attemper and soften their minds was to devise some Religious Institutions which being once given credit to might make them more pliable to Government Therefore (g) Omnium primum ut rem ad multitudinem imperitam illis seculis rudem essicacissimam deorum metum injiâ—iendum ratus est Lib. 1. Livy saith That of all things he thought the fear of the Gods to be the most efficacious means for the ordering the unskilful Multitude rude in that Age. And (h) Numa Religionibus divino jure populum devinxit 3. Annal. Tacitus tells us That with Religions and Divine Laws he yoaked them in obedience and so intent he was in the Observance of the Service to the Gods he had introduced that Plutarch tells us That he being one time Sacrificing was told that the Enemies were advancing against him but he would not desist but returned (i) At ego rem divinam
Poet tells us That divine Power enlargeth temperate Government and a grave (i) Potentia mediocritâ— exerâ—ita omnia quaesiâ—a conservat D. Cass lib. 43. Historian tells us That moderately exercised Power conserves all that it hath acquired for Mildness in all Affairs and (k) Remissius imperanti melius paretur Sen. de Clem. Obedience is better payed to gentler Commands than to the more rigid and austere A Prince saith * Amorem apud populares mâ—tum apud hâ—sies quaraâ— Annal. 11. Tacitus should endeavour to obtain Love among his Subjects and fear among his Enemies For as the ‖ Claudianus ad Hoâ—or Poet saith Non sic excubiae non circumstantia tela Quam tutatur Amor. That Love is a better defence than Halberts Battle-Axes and common Guards A Prince having the Love of his Subjects yet must have Guards Yet we have known a Prince who for this Vertue of Clemency deserved as much Love as any designed to be assassinated when wicked Conspirators hoped his small Guards would be too weak to defend his Royal Person against their Force Therefore however commendable Clemency be in a Prince yet it should not be his constant wear some Scarlet with the fine Linnen makes not only a more splendid but an usefuller show Though the (l) Senec. Trag. Overmuch Clemency dangerous Poet say true Hoc Reges habent magnificum Et ingens nullus quod capiet Dies Prodesse Miseris supplices fido lare Protegere Yet the Rule of the Prince of (m) Omnia sâ—irâ— non omnia prosequi parvis peâ—catâ—s veniam magnis â—â—â—eritatem commodare Tacitus vita Agric. Historians is to be observ'd That a Sovereign know all the Stratagems of his Enemies but not to prosecute all to pardon small faults and accommodate Severity to great Crimes For as another Judicious (n) Salutaris severitas vincere inanem speciem clementix Ciâ—ero ad Clâ—â—ent Author saith Healthful Severity should sometimes overcome the unprofitable and ineffectual kind of Clemency for it often happens (o) 〈◊〉 ager crudelem facit medicum Publius That the unruly Patient makes the crueller Physician So (p) Meus hic suror subditos sanos reddit Stobaeus de Regno Cotys the Thracian King answered some that taxed him with Severity in a necessary Case that it was to make his Subjects Healthful for sometimes there is no other way to save the sound Parts but to separate the gangrene by a total Abscission though a gentler Hand is desired by ignorant Spectators (q) Ingenia nostra ut â—obiles generesi equi melius 〈…〉 Sen. 1. de â—â—em In some Cases it is true generous Souls as tender-mouthed Horses are governed by a gentler Bitt and out of (r) 〈…〉 de 〈◊〉 Pity to such as wander ignorantly missing rather than willfully passing out of the way it is better with a gentle Hand to lead them into right Paths than to expel them All this Method our late King followed too long till the cunning Designings of the Achitophels the Pride and Lust of pamper'd Men the contempt of his forgiving Temper and the wilful Deviations from their Allegiance of others had almost put it out of his Power to let the Dutiful and Just see that he had a Care for himself and them I cannot here omit what King (s) Basilicon Doron James the First his Royal Grandfather saith of such a People That he was the Phrygian that too late and at too great a price was wise For whereas by all gentle means he endeavoured to allure them to Obedience the contrary hapned to him so that all the return was he lost his Endeavours upon an ungrateful People and unloosned the Government by his Lenity This Age hath found this Remarque too true and though I should be loth to excite his Royal Grandson to any sort of Severity yet I suppose it is a general Belief That His present Majesty will not suffer Himself to be imposed upon by a Party that have so grosly abused the Lenity of His Royal Grandfather Father and Brother Who deserve not Clemency Nor can it be judged Severity in a Prince who hath seen so great and durable Clemency contemned and disposing men rather to the most cruel and wicked Rebellions to oblige these by the terror of his Laws to be kind to themselves as well as the Publick by creating no Disturbances or publickly affronting his Authority as they did too lately in His Royal Brother's time If there be any such who for sinister Ends are at this time of day pressing him with what was urged to (t) Plut in Lacon Cleomenes That it becomes good Magistrates to be mild to all It is to be presumed they may receive the like Answer That it must not be to that degree as to bring Himself into contempt Much less ought a Prince to use it to those who have at any time heretofore joyned in those Tumultuous Petitions in His Royal Brothers Time or in countenancing the Bill of Seclusion against His Royal Person For although His Majesty may follow the Example of (u) Panormitanus in vita Alphonsi Alphonsus who said That private Offences to his Person he could forgive yet he ought to be severe against those Offences which concerned the Commonweal (x) Phil. de Comines Or as Lewis the Twelfth of France who being advised after he came to the Crown to take some Revenge against that Great General Lewis de Tremoulie that had fought against him replied He would not punish the Affronts done to the Duke of Orleance Kings may forgive Offences against them before they were Kings And so His present Majesty may forgive the Injuries done to Him as Duke of York yet it is not reasonable to think but that he will strenuously assert and defend the Rights and Prerogatives of the Crown So that it will be His Majesty's Interest to trust none of those that would contrary to the Laws of God and Man so wickedly have precluded him from his Right to the Crown And it will be adviseable for all them to repent them of that unjust Act and transmit it as a Caution to their Posterity never to attempt the like Which will be more honourable and advantageous for them to do than the striving to set up a spurious Title CHAP. XIII Of Prudence requisite in a Prince IT is Prudence directs all the great Affairs of a Monarch to that Scope and Terminus Theâ—se of Prudence in Government to which all must aim who design an happy Reign over good Subjects By it they know when to relax and when to straiten the Reins where to place their Favours and whom to employ in every Administration and by it they are guarded from all the Vicious and Malevolent For none dare disturb the Prudent who have no unarmed Parts being all Head all Eyes all Hands Inaccessible by the Flatterers inaccessible by the Vain-glorious the Ambitious and Debauched
Such a Prince is served by the Just the Wise the Prudent and Skilful Nullum Numen abest si sit Prudentia Such a Prince is never short-sighted he foresees every thing in its Original Cause fits every thing to its End Authors commending Prudence The (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Po'â—â— lib. 3. Philosopher tells us That it is the proper and peculiar Vertue of a King For more things saith the Sententious (b) Plura in summa fortuna auspiâ—â—is consiliis quam telis manibus geri 13. Annal Historian are done in great Empires by Conduct and Counsels than by Weapons and Hands Hence Flaccus in his Argonauticks non solis viribus aequum Credere semper acri potior prudentia dextra Hence it is that the great (c) Proprium est prudentiae conciâ—are sibi animos homiâ—um ad usus suns adjungere cum virtutes specâ—â— dispares prudentia junguntur 2. de Officiis ad Brutum Orator saith It is the Property of Prudence to attract and allure Mens Minds and render them useful For Vertues of different Classes by it are united there being nothing that destroyeth Authority so much as the unequal and untimely Interchange of Power pressed too far and relaxed too much and Hatred Timorousness and Temerity Profuseness and Parsimony all which are balanced timed and seasonably applied by Prudence What the Eye is to the Body in discovering the various Figures Dimensions and Distances of Bodies whereby we may direct our Course to or from them that Light of the Soul but much more pure is Prudence which sees not before only and one Hemisphere singly but every where round whereby the Soul forms saith a subtile (d) Jamblichus Episâ— ad Aphalum Philosopher a most beautiful Model and Exemplar of all its Actions It is this Vertue saith another sage (e) Damippus lib. 1. de Prudentia Author which designs and disposeth infinite Things and so is the Parent and Conductor of all other Vertues by whose Prescript and Reason all things are ordered To Exercise this useful Vertue requires a Man not only of Ingenuity The Particulars wherein Prudence useful to a Prince consists Wisdom Memory disquisitive and speculative but also conversant in great and various Affairs in Histories Ancient and Modern whereby he may be able to collate Matters and adjust them to their proper Scope and Designs By this all Men as well as Princes take mature Counsel consider things good and evil commodious and incommodious examine all Instruments as to their fitness and unfitness compare Circumstances revise Examples consider of timing of Business Places and Persons natural tendencies and where Authority is to be used and where Suasives how to countermine how to penetrate into hidden Counsels of others and to unmask their Disguises to ruminate upon things by-past to order the present and provide for the future It is Prudence teacheth how to be skilful in knowing the Causes Symptoms speediest and most effectual Cures of the Diseases of a State For as Prudence is the very healthful constitution of a Soul exerting no sickly or distempered Actions The Diseases of a State 〈…〉 by a Prudent Prince so a prudent Prince endeavoureth with all his Skill and Might to keep the State in a most perfect temper of Health vigour beauty and firmness So that under an old experienced Prince there are no Symptoms of old and decrepit Age in his Kingdom Archytas the Pythagorean saith As a General leads his Army (f) Sicâ—ipsam soelicitatem prasens vitae temperat regitque prudentia Stobaeus the Admiral orders his Fleet the Pilot his Ship or God governs the World and the Soul the Body so presentness of Prudence orders the Happiness of Life It were endless to remember all the Benefits that accrue to a Prince and his People by this only Vertue Prudence Be the Body of the Commonwealth in a Calenture by Factions and Seditions a prudent Prince knows how to extinguish the Fire by substracting the Feeders or breaking the Force of it by subdividing the complication of Causes or diverting of it some other way Doth it bleed by a Civil War He can bind up the Wound Does it suffer by want of Nourishment He can supply it with suitable Food that will neither pamper it to an unwieldy Sloth or luxurious Licentiousness He can by Bleeding or Drenching clear it of all its superfluous Humours He can asswage its Pains by removing Grievances or Oppressions He can invigorate every languid part by cordial Privileges and wholesom Laws can set strait its dislocated or distorted Joynts when any of the great Officers or Magistrates faulter limp or halt in their Duties Medaea never knew so many Balsamick Herbs to renew the old Age of Jason as a prudent Prince doth Rules and Methods to cure all the Distempers of his Kingdom preserve it in a perfect Health or restore it when declining The Consideration of all which made (g) Quam multis virtutibus opus est quibus velut anchoris 〈◊〉 navis firmatur quam varia prudentia qua velut clavo gubernetur Ep. ad Imp. Reg. c. Lipsius say How many Vertues are necessary as Anchors to fasten the Ship of the Commonwealth how various Prudence as a Rudder to govern it CHAP. XIV Of a Prince's Courage and Conduct in Military Affairs IT is not onely necessary that a Prince should know and exercise all those Royal Vertues that make him adorable on the Throne and in his Cabinet-Council when he is clothed with the Robes of Majesty The Benefits to the Subjects under a Martial Prince But he must likewise for the preservation of his People from Foreign Invasions enlarging of his Empire and keeping his Subjects in a profound Peace at home free from intestine Seditions and Rebellions put on his Armour and act the Part of a Generalissimo This requires according to the (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Pol. lib. 2. c. 7. Philosopher many Vertues to establish it Therefore in another place (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Id. l. 7. Pol. c. 2. Laws for encouraging Soldiers he saith In some Countries the Laws were framed towards the attaining of particular Ends to the Governours and People and in some the End of the Laws were that they might rule over their Neighbours as he instanceth in the Lacedaemonian and Cretan Government where the greatest part of their Laws were accommodated to Warfare and concludes That in all Nations which can hope to be Superiour to others such Laws are in honour as he instanceth in the Scythians Persians Thracians and Celtae So in Carthage to encourage Military Service so many Rings were given to the Soldiery as they had served in several Expeditions In Macedonia it had been a Law that he that had killed no Enemy was girt with an Halter And among the Scythians That such an one should not drink of a Cup which at a certain Solemn Feast was to pass round Among
the Spaniards there were as many Obelisks or pointed Pillars set about their Graves as they had killed Enemies All which and infinite more Places in (c) The necessity of having a Standing Force is for preventing Rebellion and defending against Foreigners as appears in Aristotle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lib. 7. c. 8. him and other Authors produceable sufficiently clear the necessity of a Prince's both having and encouraging Military Force and all are as so many Arguments That it is very necessary and conducible to the Prince's Glory and Safety as well as his Peoples that he be not only valiant and couragious in his own Person but that he understand the Office of a great General There are none more famous in the World than such Princes as have themselves led and headed their own Armies as is most eminently proved in Alexander the Great and Julius Caesar So in our King Richard the First and Edward the First Hence it is that (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Diâ— l. 13. Caesar was wont to say There are two things which obtain keep and encrease the Princedom viz. Soldiers and Money For as the great (e) Non ignavia magna imperia continâ—ri sed virorum armorumque faciendum certamen Historian observes By Sloth no great Empires are held together but it must be done by Force of Men and Arms It being (f) Sua retinere privatae domus de alienis certare regiâ—m 〈…〉 15. Annal. the part of a Private Family to retain its own but to carry Arms abroad is a Kingly Praise Such a Prince who hath when a Subject hazzarded his Life for his King and Country shown his great skill in ordering and providing for his Army in disciplining it How a Military Prince prevents Rebellious of his Subjects hath been fortunate and successful hath a Genius to military Employment a brisk and vigorous Soul not only when he comes to be Sovereign himself puts a fresh Spirit into his People by raising their Hopes and Confidence that he will encrease the Glory of his Nation but it makes him secure at home from Seditions and Rebellions For he is very fool-hardy or desperately Revengeful that will challenge a single Man who is experimented to have Valour and Skill at his Weapon much more is he who knowing his Prince such an one and who hath the Power of his Kingdom to assist and defend him will offer to molest his peaceable Reign unless he find some advantagious opportunity strangely favourable to his Design or take some Season before such a Prince be well setled in his Throne as despairing ever after to effect any thing and be in that desperate Condition that if he then cannot push forward his Designs he must for ever live inglorious and miserable Such was the Case of the rash ingrateful and aspiring Duke of Monmouth who to the eternal discredit of the name of Protestant so unpolitickly as well as maliciously raised the late Rebellion against his Lawful Soveraign pretending a Legitimacy which his Father that the best of all Men living knew the falshood of disowned and more than once made publick Declaration of it How he prospered in this attempt the World knows and if He and his Advisers had not been besotted they might have easily foreseen Besides this great and happy advantage to a valorous and Military Prince How a couragious Prince secures his Subjects from Foreign Enemies in the securing his own Country in Peace within themselves the Benefit is likewise great in the preventing of any affronts injuries or Indignities to him or his People from any of his Neighbours for none dare (g) Nâ—mâ— provocare au let aut facere in juriam ei Regno aut populo quem intelligit expeditum atque promptum ad vindicandum Vita Alex. provoke or do Injury to a King his Kingdom or People saith Lampridius that knows the Prince prepared forward and ready to vindicate his People This military Genius in a Prince being supperadded to his other Royal Vertues and Qualifications furbisheth all their Arms sets a fresh Gloss and Lustre upon them and such a Prince being generally successful in his Attempts for that commonly gives the first notice of his Courage and Conduct will have every one readily flock to his Standard to (h) Objicient se mucronibus insidiantium se suaque jactabunt quocun que desideraverit Imperantis salus Sen. 1. de Clem. expose themselves betwixt him and the points of Traitors Swords will have them throw themselves and their Fortunes whereever the safety of their King requires it So Cicero notes that Fabius Maximus Marcellus Scipio Marius and other great Generals had the Emperors Office and Armies committed to them not only for their Vertues but also by reason of their fortunateness to whom (i) Cic. pro Manilio Quibus etiam venti tempeslatesque obsecundant the Winds and Tempests have been favourable It greatly (k) Vehementer enim pertinet ad bella administranda quid hosâ—es quid socii de Imperatoribus existiment Idem conducing to the management of War what opinion the Enemies and Allies have of such Generals as the same Orator notes and the like may be said of Warlike Kings What immortal Glory is it to England that it hath had King Richard the First Of King Richard the First who carried his victorious Ensigns to the Holy Land What a Memorial of his Name and of the Prowess of his People hath King Edward the First left to all Posterity by the advancing his conquering Armes into the very High-Lands of Scotland Of King Edward the Third and the Black Prince What renown did King Edward the Third and the Black Prince his Son win in France when they not only won so great Victories but brought the King Prisoner and what no Nation else can boast of had at the same time the King of Scotland also Prisoner It may be easily conceived that these two valiant Princes and the Sons of that great King spirited the whole English Nation and in that Age the Renown of it equalled what now the French ascribe to their great King The Annals swell with the Atchievements of Henry the Fifth who in so few Years Of Henry the Fifth upon the matter subdued all France So that his Infant Son was Crowned King at Paris It is not to be expected that many Ages can produce such Examples but every Reader of History may observe That in every Age some one or two Crowned Heads carry the Trophies from all the rest fill their Countries with Triumphal Arches and raise pyramids of Glory to their own and their Countries high Renown A strange Factiousness in the Reigns of our three last Kings and the dreadful Rebellion Why our three last Kings could not appear so Formidable abroad have deprived them of the opportunity of showing the English Prowess on the publick Theater as it had been before Yet when they were employed they
showed they still retained the old English Valour and now that God hath sent us a King who hath aided both the French and Spanish Armies What we may expect under King James the Second more signally Triumphed at Sea over the Dutch than any Admiral did before or since Who hath a Soul and Genius inclined to Warlike and Heroic Actions and hath with himself resolved and publickly to his two Houses declared by the Assistance and Blessing of God He will adventure his Person as far as any Man in his Dominions for the Good of his People and their safety and endeavour to raise the renown and repute of England as high as any of his Royal Predecessors I cannot see if God prolong his Reign why we should not hope to reap all the advantages either England or any other Nation have enjoyed under their most Victorious Princes and though by so early a Rebellion he hath been necessitated to enter the Field so soon to suppress his ungrateful Subjects it was but the giving him occasion to whet that Sword and scour his Armour which had long been unexposed to the Sun and by this Specimen of his Courage Conduct and good Fortune and his Subjects Valour show to the World that he is able to secure his People from any Foreign Hostile Attacques And if any of his Neighbours be found to have furnished these Rebels with Arms and Money no doubt his Loyal Subjects will be very pressing to be imployed to repay their kindness Character of a Martial Prince and they will find that (l) Tanti esse exercitum quanti Imperatorem Florus l. 2. c. 18. according to the Kings Warlike Spirit so will his Armies be it being true of himself what (m) Nullum genus belli sit in quo illum non exercuerit fortuna Cicero pro lege Manil Cicero saith of another That there hath been no kind of War in which Fortune hath not exercised him so that his Armies may be secure both in his Discipline and Example The Qualifications of an Emperor as (n) Labor in negotio industria 〈◊〉 agendo celeritas 〈◊〉 consiciendo c. Ibid. Cicero describes them all concurring in his Royal Person viz. Labour in Business Fortitude in Danger Industry in Action and Swiftness in Execution joyned with great Temperance Faith and Humanity to which I may adjoyn that of Claudian Ductorque placebit Qui non praecipiti rapiet simul omnia casu Sed qui maturo vel laeta vel aspera rerum Consilio momenta regens nec tristibus impar Nec pro successu tumidus spaciumque norandi Vincendique modum mutatis noscet habenis CHAP. XV. Of the Burthen and Care of Kings in Governing THere are as many other Vertues requisite in a good King as there are in a good Man but I have only treated of those that are the Orientest of the Crown Jewels I shall now consider two great advantages that accrue to People by Kingly Government The first is the Burthen and Care that Kings undergo in the Government of their People and the second the benefit to the People in the Hereditariness of Monarchy and then pass to the King's Sovereignty and the principal Branches of it (a) Nihil aliud est Imperium nisi cura salutis alienae Lib. 29. Ammianus tells us That Empire is nothing else but the Care of the safety of others which according to the extent of their Dominions the well or ill Temperedness of their Subjects are greater or less as will be obvious to all that will consider the continual Consultations and Directions The Benefit of Subjects by their Prince's Care necessary to be sedulously undergone and issued forth the Dispatches Intelligences and regular ordering such an immense Body Which made the great (b) Omnium otium illius labor omnium delicias illius industria omnium vacationem illius occupatio Vt remissam aliquando animam â—abeâ—it nunquarâ— solut◠〈◊〉 Senec. Consol ad Polyb. Moralist and Courtier experimentally to assert That the Sovereigns Watchfulness makes our Sleep secure his Labour procures our Holy-days his Industry our Delight his continual Employment our Vacation and that he may enjoy sometimes a Relaxation but never a Freedom from Cares Which indeed can be no otherwise when we consider what he else-where (c) Vnius curam excubare pro sdute singulorum atque universorum saith That the Care of this one Sovereign watcheth for the Health of the whole and every particular So that the immense (d) Haeâ— immensa multitudo unius Anima circundata illius spiritu regitur illius ratione flectitur Id. de Clem. c. 3. Multitude whether we take it for Men or Business is encompassed with the Soul of one by his Spirit is governed and by his Reason is bowed or inclined I find it reported of Pericles That so often as he was made Commander in Chief he used at the putting on the Military Cloak to excite himself to the consideration of the Weight of his Employment by observing that he was to command over Freemen (e) Plut. in Apop Graecians and Athenians upon which Reflection he was induced to approve himself more Diligent Careful and Industrious The Weight of Government having the Burthen of all their concerns upon him So a great and learned (f) Non licet doâ—mitabundum esse qui clavo assideâ—â—emper itaque assidue Principi vigilandum est ne quid erret quia non nisi plurimorum pâ—rnicie delinquit Lipsius Epist Author tells us He ought not to sleep who sits at the Helm to pilot the Ship since no Sea hath so great Tempests as every Kingdom hath Therefore a Prince is assiduously and constantly to watch lest he err because he cannot do so but it is with Mischief to many So the (g) Alia ex aliis cura fatigat Vexatque animos novâ— tempestas Non sic Libycis Syrtibus furit alternos volvere fluctus Non curarum somnos domitor pâ—ctora solvit Tragedian not unelegantly according to his wont describes the Cares of Kings thus One Care adds Fatigues to another and new Tempests unquiet their minds so that the successive rolling Waves of the Sea rage not so on the Libyan Shelves or Quicksands nor doth sleep the Subduer of Cares unload their Breasts (h) Aelian Variar Histor lib. 2. Lampridius in vita Who not fit for Government Alexander Severus having Information That Ovinius Camillus a Senator of an Antient Family but withal delicately effeminate intended a Rebellion affecting the Government sent for him to the Palace and gave him thanks that he when other good Men refused did spontaneously offer himself to take care of the Republick carried him to the Senate and called him his Companion in the Empire took him home and made him wear the Imperial Robes took him to walk with him a five Miles march allowing him when tired an Horse and when he was wearied of riding being one not
used to bodily Labour he ordered him a Chariot and by other ways letting him understand that the weight of Government was not to be sustained by such Shoulders as his so wearied and discouraged him that he desired to be freed from the toylsomeness of it and when he understood the Emperors drift and expected his severity he only recommended him to those Soldiers that were forward to elect him and sent him to his Village If therefore such little Tryals discouraged Camillus what must we think it will do any Prince that hath untractable Subjects who force him to make Essays of various Methods to reclaim them and of a constant standing upon his Guard to secure himself and the Government Such are they who make many Princes Reigns Calamitous that might have been calm and peaceable Kingdoms saith my Lord St. Albans represent our Bodies Many Particulars wherein the Burthen of Government is discovered have their times of Health and Sickness Seasons of Prosperity and Adversity flourish with Wealth and languish in Poverty and Want suffer Distempers Alterations and Changes If therefore the Care and Concern of the Physician be great that hath the Health of many Patients under his Cure How much more must this great Aesculapius's be who hath the superintending of infinite Numbers of Subjects of all Degrees to preserve them in their perfect State of Felicity and Happiness to watch over the growth of depraved Humors and hinder their Ferments from boyling into the Fevers and Calentures of Rebellion to remove all the Obstructions that may hinder the equal distribution of Nourishment in Trade Commerce and the free Energy and Force of the Laws so to order the infinite Varieties of Tempers and Dispositions that the very lucta and jarring of them may produce an Harmony in the whole Besides these there is a Necessity to cherish the Vertuous and the Brave to discountenance the Vitious and Debauched and keep them from infecting others and finally so to manage all things as not only the present Age but remote Posterity may find the happy Effects of his Reign This is to undergo the nobilem Servitutem as Antigonus told his Son Kingship was Governours to be endowed with various Qualifications Therefore Philo observes That as the Pilot must change his Sails and Rudder and as the Physician useth not one kind of Remedy for all Diseases but observing the Encrease or Remisness of Symptoms the plenty or want of Humors and according to the changes of Causes tries various Experiments So a Supreme Governour ought to be multiform or endowed with variety of Qualifications to act one way in times of Peace and another in War being opposed by few to act resolutely and couragiously if by many to add to these Authoritative Suasives in publick Dangers to act himself and to commit those Ministeries to others which require Labour more than Conduct In his Councils to be a Judge in his Exchequer an Accountant in his Armies a General in his Navies Admiral in his whole Dominions the prime Gentleman Patriot and Peer in Vertue as well as Place Besides all these foregoing Considerations though a Prince by his own Justice Prudence and other Regal Vertues and the well disposedness of his People may keep his own Domimions in Peace and though there were no Whirlwinds Earthquakes or Trepidations of Faction and Sedition in his own Kingdom yet a King's Care is no less in making diligent Observations upon the Designs and Actions of all his Neighbour-Princes and States to shelter his own Subjects from Tempests and Hurricanes from abroad to divert Storms A Prince's Care in preserving his People at home and abroad to mingle Interests or divide as shall be most for the advantage of his Subjects to assist his Allies to countermine the Clandestine Designs of his Enemies abroad These require an Atlas to support this immense Structure of Government The Imployment of many under a Prince These require many Hands of the roughest delicatest and strongest many Feet of the swiftest and steadiest many strong Shoulders and brawny Arms many severe commanding or charming Eyes many wise subtle and toyling Brains infinite Varieties of Tempers and Dispositions which must be directed ordered and imployed by that presiding Soul that every where in every part and in all seasons must give Life and Energy to all its Members Faculties and Imployments Furthermore A Prince much concerned foâ— his Fame the Actions of Princes after their deaths will be judged (i) Suum cuique decus posâ—â—â— it is rependit Tacit. 4. Annal. without Flattery and Varnish As after Death and Corruption of parts the Vertues of Kings perfume their Graves ennoble and by Examples refine Posterity and leave a taste of immortality behind out-living their Marble So if they rule ill they cannot think by their (k) Praesenti potentia extingui posse sequertis avi mâ—moriam Id. present Power to extinguish the memory of the next Age saith the judicious Historian Therefore Lipsius saith ‖ Post fata nullus est locus nullum tempus quo funestorum Principum manes a posteris exeâ—rationibus conquiescent After their Deaths there is no place then or time wherein the Ghosts of detested Princes will be free from Execration Since therefore Kings are like heavenly bodies cause good or evil times have much Veneration but no rest since their Examples are constantly imitated so that as * Aâ— virtutem ille praeit sequimur aâ— vitia inclinamus bene beateque agit sloremâ—s improspere labimur aut ruimus cum illo Epist ad Polit. Flexibiles in quamcunque partem duâ—imur a Principe sequaces Panegyr Lipsius saith If a Prince lead to Vertue we follow if to Vice we easily bend to it if he live happily we flourish if unfortunately we fall into the praecipice with him Or that of Pliny be true That Subjects are mostly plyant and easily handed into whatsoever way the Prince leads it necessarily follows That this Consideration must bring a great Addition to their Cares For such elevated Souls must needs undergo great Anxiety how to comport themselves so as being conspicuous in Vertue and Conduct they may be secure of good Report For as (l) Omnia facta dictaque Principis rumor excipit nec magis ei quam Soli latere contigit 1. de Clem. Seneca saith Fame wafts abroad all the Deeds and Works of Princes that they cannot more lay hid than the Sun Hence Possibly we may conclude the Reason of that Inscription on Constantine's and others Coyn Soli invicto Comiti For as the Sun not only by his Light and enlivening Heat brings that unspeakable benefit to the whole Earth and living Creatures as a King is to do to his Subjects so by its Diurnal Motion we discover it never to be at rest Therefore it must be a great Care in a Prince that is placed in his Kingdom as the Sun in our Vortex whereby his Actions can never be long hid
that he act nothing that (m) Cordati magni Principis est nihil committere quod ipsius dignitati aut famae detrahit may detract from his Fame and the Dignity of his Place All the Actions of Sovereigns being not only Examples but Precepts there being no such Incentments to Vertue or Vice as their Practices Besides A Prince to be Exemplary in Vertue what I have hitherto delivered on this Head there lies still an heavier Burthen upon a Prince That for his Subjects sake he be not only vertuous himself but by all his Industry endeavour to take care that they be so likewise I know this is much facilitated by his own Example For as (n) Vita 〈…〉 ad 〈…〉 ad 〈…〉 perio nobis 〈…〉 quam exemplo Paneâ—â—â— Pliny saith The Life of the Prince is a standing Law of manners to it we direct our course are all Heliotropes turning to it For Subjects need not so much command as Example yet we find that when some in the Senate moved (o) 〈…〉 suasurus 〈…〉 quibus 〈…〉 essemus Lib 3. Annal. Tiberius that he would restrain the Roman Luxury he writes to them That he knows not whether he should perswade them to pass by the strong and overgrown Vices rather than to discover how unable they were to suppress them and so tells them that he would not have the matter of envy to fall upon him but refers it to the proper Officers There being (p) Majus aliqued excelsius a 〈…〉 Ibid. something greater and more sublime required of a Prince viz. the guarding of Italy the Sea and Provinces By this we may see how arduous a task it is to root out vicious Customs and Habits which by a short Intermission of Executing the Laws severely will soon be so overgrown A Prince to 〈◊〉 care that hiâ— Subjects be Vertuous that it will be much Labour to dig up their Roots and requires a long and frequent weeding 'till all the Young Plants the Evil Plentiful Seed hath produced be cleansed out of the Ground This Tiberius that declined this task was at that time in such esteem that some Provinces as particularly the further Spain would have built Temples to him and he denying that yet could tell the Senate That it was (q) Majoribus meis dignum rerumque vestrarum providum const antâ—â—â— in periculis offensionurâ— pro utilitate publica non pavidum credant Tacit Annal. lib. 4. enough to him that he possessed the Supreme place and desired them to witness and Posterity to remember That they believed he was worthy of his Ancestors was provident of their Affairs constant in Danger not fearful to give Offence to any for the profit of the Commonwealth These things to him should be Temples and the beautifulest Statues In this we find a short Description of the Burthen of a Prince and a shorter but comprehensive one in (r) Maximo Imperio maximam esse cur 〈◊〉 Ad Caesarem Sallust That the greatest Empires have the greatest Cares (s) Sed 〈◊〉 adstricti moris Aâ—ctor fuit antiquo ipse cultu victuque 〈◊〉 inde in 〈◊〉 aemulandi amor validior quam poena ex legibus metâ—â— 3. Annal. Tacitus tells us of Vespasian That he was Author of a stricter manner of living than formerly using the Ancient Frugal Dyet and plainer Cloths which had that effect that the study to imitate the Prince was more efficacious than the Fear and Punishment of the Laws If then to be conspicuous in all sorts of Vertue and the Actions (t) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 5. Polit. c. 10. that flow from them and the whole higher and lower class of them in the most Comprehensive Qualifications be no small Labour and require no small sedulous Care to effect in ones self how much more must it be to make so many Millions more Vertuous by Example Precept strict Vigilance and Punishments Every one that attentively reflects on this must needs own it an Herculean Labour and such as exceeds almost the Apprehension of the Subjects Since then we are happy in such a King as hath laid this as a Corner Stone upon which his Throne is built King James the Second's discouraging Vice by his own Example to discountenance all Vice and since so great and weighty a Burthen of the well-ordering and governing so great a People lies with great pressure upon him for our ease and tranquillity let us not be so impolitick unworthy or ingrateful by Seditions Factions or Rebellions to cause him to undergo more disquiets For the result will be Our own Miseries and Calamities will sit close behind us when we set our Faces against such a Prince worthy of the most Imperial of Diadems CHAP. XVI Of the King's Authority and Soveraignty AN awful Reverence The Sublimeness of The Subject Qualm and Trembling must necessarily surprise every one that considerately raiseth his Thoughts to contemplate so sublime a Subject as the Soveraignty of Princes least what he delivers should appear too dis-spirited and below the dignity of the Theam or he should be guilty of such Indiscretion as to think he could enrich the Crown and Scepter with Lacker of his own Composure (a) Magnum propiusque noscendum id eruditissimo viro visum Lib. 6. Epist 16. Jam navibus cinis inciderat quo prepius accederet calidior densior Jam pumices nigrique ambusti fracti igne lapides Ib. Pliny the younger tells us that the great Naturalist his Uncle was so desirous to discover the true causes of the burning of Vesuvius what materials they were that afforded Fuel to so lasting a Fire and by what imprisoned Spirits so violent eruptions of Flame and Cinders were at times belched out of the Caverns of that Mountain though less stupendious than Aetna Hecla or other Vulcano's that his curiosity led him to climb so near the Eruptions of those Flames that Posterity lost the Benefit of his Observations by his untimely Death in the approaches he made We daily see the Pyralis not only singe her Wings but often lose her Life by her rash approaches to the Flame It behoves me therefore with all the Circumspection I can to endeavour to keep my self from such a Fate as Temerity too prying or daring an Attempt may bring upon me on the one hand or that I fall not into as unpitied a Destiny of being contemned and despised for too gross and palpable Flattery in equalling the Throne of Kings with that of the Deity The Flattery of some especially of Valerius Maximâ—â— A bold stroke of this kind of Sycophantry we find in (b) Penes quem hominum deorumque consensus maris ac terrae Regimen esse voluit cujus coelesâ—i providentia virtutes de quibus dicturus sum benignissime foventur vitia severissime vindicantur Prologo Valerius Maximus his Epistle Dedicatory to Tiberius wherein he tells him that he invokes him as Patron of
in the Assyrian Empire Nebuchodonosor is styled King of Kings Daniel c. 2. and after the translation of this Empire to the Persians Artaxerxes Mnemon in his Commission to Ezra for the Restitution of Jerusalem and the Temple thus salutes him Artaxerxes King of Kings to Ezra the Priest And on the Great Cyrus his Tomb this Epitaph was written in Persian Characters if you believe the Authors that have it (r) Eustach ad Dionys Strab. Geog. 15. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Here I Cyrus lie who was King of Kings And the bare Name of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the King without addition is especially used for the Persian whence the Nation is styled also 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The most Kingly Nation (s) Diodor. bibl 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Sesoosis the same with Sesostris in Herodotus King of Egypt attributed to himself the Title of King of Kings in his erected Columns of Victory And (t) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Earth and Water given as Tokens of Homage Plutarch reports That Tigranes King of Armenia was angry and would not vouchsafe to answer Lucullus because in his Letter he had styled him King only and not King of Kings The Acknowledgment of Regal Supremacy paid by way of Homage from Princes or People under the Subjection of such Kings was the Acceptance upon their Demand of Earth and Water A special Example of which is in (u) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Herâ—dot in Melpom. Darius's Letters to Indathyrsus King of the Scythians where he first invites him to the Field but if he would not then bringing to the Sovereign as Gifts Water and Earth come to a Parley as the Words run So in the Assyrian Empire the King commands (w) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lib. Judith Olophernes That he should bid all the Western Nations prepare him Earth and Water By the yielding up of these two Elements they acknowledged a giving up to those Sovereigns their Jurisdiction over them When William the Conqueror landed at (x) Malmesh de Gestis Reg. lib. 3. Hist Norman apud Camd. Hastings in Sussex as he came out of his Ship he fell down and one of his Knights told him Sir you have possession of England and shall be King and observing that he had took up Sand and Earth in his Hand he added And you have taken Livery and Seisin of the Country So when Land is sold in England the way of receiving Possession is by delivering a Clod of the Earth and a Twig of Wood if any be growing on it To denote also the Sovereignty of such Princes kissing of the Feet or embracing their Knees or Adoration was used Kissing the Teet Knees and Hands of Princes (y) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Herodotus saith When the old Persians meet you may know whether they be equal or not for in Salutation they kiss one another but if one be something inferiour they kiss only the Cheeks and if one be far more ignoble he falls down adoring the other The manner of which Adoration is yet observed in the Eastern Empires as may be seen in the Prints of them in Mr. Ogilby's Asia especially in Japan Thence we have Adorari more Persarum and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is expressed by Euripides thus personating Phrygius to Orestes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Falling down I adore thee O King after the Persian manner In Alexander's turning the Grecian Liberty into this Servitude Q. Curtius expresseth it by Venerari procumbere humi corpus prosternere and thereof Justin saith the (z) Retentus est a Macedonibus mos salutandi Reges explosa adoratione Jam coepisset Heliogabalus adorari Regum more Persarum Macedonians retained the manner of saluting their Kings exploding the Adoration Lampridius speaking of Alexander Severus saith That he forbad himself to be adored but Heliogabalus began to be adored after the Persian manner As to the Kissing the Learned (a) Tit. Hon. c. 3. Selden saith It was usual in Adoration among the Romans either to kiss the Images of their Gods or adoring them to stand somewhat off before them (b) Cicero in Varr. Act. 5. Lucret. lib. 1. Sape salutantum c. solemnly moving the Right-hand to the Lips and then casting it as if they had cast Kisses and turning the Body on the same Hand which was the right Form of Adoration and it grew by Custom first that the Emperours being next to Deities and by some accounted as Deities had the like done to them in acknowledgment of their Greatness After some of the Roman Emperours would be called Jupiter be supposed carnally to lie with Venus and the Moon and upon their infinite such-like frantick Conceits pretended themselves to be Divine they were not satisfied with Those usual Customs but thought themselves much wronged and their Majesty impaired if they who saluted them (c) Dio Cass Hist 59. presumed to kiss above the Knee We find Examples of Kissing the Hands and Feet in Caligula Therefore (d) Homo natus in hoc ut mores liberâ—â— civitatis Persica servitute mutaret 2. de Benef. c. 5. Seneca speaking of his offering his Feet to kiss says He was a man born to that so as to change the Customs of a Free City into Persian Servitude Maximinus Junior allowed the kissing the Knees Feet and Hands and Diocletian according to Pomponius Laetus published an (e) Vbi omnes sine generis discrimine proâ—â— rati pedes exosâ—ularentur exornans calceamenta auro gemmis margaritis Edict That all without distinction being prostrate should kiss the Feet therefore he adorned his Shoes with Gold Gems and Pearl Yet this was not allowed by all For Tiberius as Suetonius tells us oscula quotidiana prohibuit edicto and the elder (f) Dii prohibeant ut quisquam ingenuorum pedibus meis osculum figat Capitolin Maximin although a Tyrannical and most wicked Prince yet would suffer none to kiss his Feet saying The Gods forbid that any Freeman kiss my Feet And Alexander Severus was only saluted by his Name God save thee Alexander as Lampridius tells us who adds That if any bowed the Head or spoke any thing like a Flatterer if his Quality permitted he was spurned away or if his Dignity allowed not such an Injury to be done him he was laughed at aloud And (g) Lib. 10. Epig. 72. Martial in Trajan's time rejects those base Flatteries that had been used to Domitian thus Ad Parthos procul ite Pileatos Inopes humilesque supplicesque Pictorum sola basiate Regum Princes use now only the kissing of the Hand besides a profound Obeisance to them in stead of these forementioned Adorations and the kissing of the Hand is offered frequently as a Testimony of serviceable Love to other Great Persons according to that of (h) Inest in aliis partibus quaedam Religio sicut dextra osculis aversa appetitur fide
porrigitur The Romans after they were a Commonwealth hated the Name of King Pliny As the Back of the Right-hand with a kind of Religiousness is desired so with an assurance of Faith it is stretched out This Name of King was among the Romans after they setled themselves under the Government of a Commonwealth reputed so contrary to their Liberty as implying in its Office too great an Absoluteness of Power that in solemn memory of its being cast out by Brutus they yearly celebrated on the Seventh of the Kalends of March our Twenty third of February their Feast Regifugium And lest the giddy Multitude might desire again to have a King they prohibited that no Concourse for Merchandise should ever happen upon the Nones of any Month King Servius Tullius his Birth-day they knew was in the Nones but not of what Month therefore they provided it fearing saith (i) Veriti ne quid nunâ—inis collecta universitas ob Regis dâ—siderium novaret Saturnal c. 13. Macrobius lest the Multitude gathered together at such Fairs should innovate any thing by the desire of a King And (k) Regem Romae posthac nec Dii nec homines esse patientur De Divinatione cap. 2. Cicero though he acknowledged that Caesar was revera Rex fully a King in Power yet upon hate that continued of that Title tells us That hereafter neither Gods nor Men would permit any to be King of Rome Therefore to palliate as Mr. (l) Tit. Hon. cap. 2. Augustus denies the Title of King Selden saith some part of his Ambitions Caesar himself being saluted King by the Multitude withal perceiving that it was very distasteful to the State by the Tribunes pulling of the white Fillet from his Laurel answered Caesarem se non Regem esse refusing it utterly and consecrating the Diadem which Anthony would have often put upon his Head to Jupiter Yet the whole People were sensible that his Authority differed only in Name from that of King as appeared by his Sentiment of it who subscribed Julius his Statue with Brutus quia Reges ejecit Consul primo factus est Hic quia Consules ejecit Rex postremo factus est Thus much may suffice to shew Because the Absoluteness of Kings was against their Liberty That the Romans judged a King to have such Absoluteness as in their Free-State was not to be endured when as in the Change to Emperours they underwent more by some of their Arbitrary Rulings than they did under Kings And though the Terms were milder yet the Yoke of them was heavier But such is the Nature of the Multitude that if their Governours keep but the old Name of the Magistracy they readilier yield Obedience to them such power hath Custom This Observation made Cromwel content himself with the Name of Protector under which by his Arts and Army he exercised more Arbitrariness than ever had been by any King of England I come now to the Title of Emperour This at the first only denoted a General or Leader of an Army Title of Emperour first as General So Julius Caesar having made himself Master of the Roman Free-State thought it safer to retain than innovate his Title of Supremacy Therefore having the perpetual Office of (m) Honores nimies recepit ut continuum consulatum perpetuam Dictaturam praefecturamque morum insuper praenomen Imperatoris Sueton. de Jul. Caesare Dictator and Consulship with the place of General or Imperator as the word had Relation to his Military Force he took that also being as willingly given as the rest for a perpetual Title this Title of Imperator being assumed both by Brutus and Cassius as appears in their Coins though they pretended to be the greatest asserters of the Roman Liberty and the like occurrs in the Coins of Antonius Lepidus and the thirty Tyrants and others This Title of Imperator is said to have been a (n) Vita Jul. Cas 〈◊〉 Praenomen by Suetonius but it was often used after it which when it was it denoted either only or chiefly some great performance by Arms in setling or encreasing the Empire but when a Sirname in those elder times it signified only the Emperor's Supremacy in the State so in the Coin of Augustus where the Inscription is IMP. CAES. AVG. IMP. IX TR. P.V. The Fore-name Imperator signifies his Supremacy and the latter signifies he had been General and as such it may be deserved a Triumph nine times The TR. P. V. For Tribunitiae potestatis quintum shews how often he had been Tribune of the People which was every Year renewed therefore in that the number of the Years of their Empire was expressed as (o) Cassius Hist 53. Dio observes So that what Tacitus relates of Tiberius was most true that eadem Magistratuum vocabula he retained the old Names of the Magistrates so that the first Emperors Authority and Soveraignty consisted in the Power of the Consuls Dictator Tribunes of the People and the Title of Prince Title of Prince The Title of Princeps Principatus and Principium were proper Names also for these Emperors and their greatness therefore (p) Augusius cuncta discordiis civilibusfessa nomine Principis sub Imperium accepit Tacitus saith that Augustus took the Empire under the name of Prince all being wearied with civil Discords though Suetonius saith of Caligula that Title was wanting but that he should suddenly take the Diadem and change the show of a Principality to the form of a Kingdom Now it is to be observed as the Title of Emperor was taken from the Military Employment of a General so this of Prince signified the Superiority of them in the Senate For the Title of Princeps Senatus was known familiarly in Rome and so might upon that Ground be used without Envy Concerning the Grecians using 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for Emperor the difference betwixt the Eastern and Western Empire about both their Titles and the more modern use of both I must referr the Inquisitive Reader to the often but never too much to be commended (q) Titles of Honour par 1. c. 2. Mr. Selden and shall only note out of him that divers Civilians especially of Italy and Germany which profess the old Laws of Rome tell us That the Emperor is at this day of Right Lord of the whole World or Earth as their Text also (r) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 F. ad Leg. Rhod. The Roman Emperours not Lords of all affirms besides divers other flattering Passages in good Authors of the ancient Empire as that of Corippus to the Emperor Justin Deus omnia Regna Sub pedibus debit esse suis And Julius Firmicus (s) Totius orbis terrarum spacium Imperatoris subjacet potestatibus etiam ipsum eorum Deorum numero constitutum esse quem ad sacienda conâ—ervanda omnia Divinitas statuit universalis Mathes lib. 2. c. 33. hath this courtly Expression That the Compass of the whole Globe of
the Empire began to sink the Froth and Flattery came above so that though Augustus and Tiberius forbad any to call them by so proud a Title as Dominus Objectiâ—â—s against the Aâ—tributes given to Princes yet it was lawful to call Domitian Lord and God and his Successors were not satisfied till complemented in the Abstract with Your Everlastingness Your Eternity Divinity c. and when the wooden Eagle was split in two that Chip of the Eastern Empire brake out into Blossoms to a Miracle that with the Porphyrogenneti and Despots were blown about the Sebasto Cratori Pan-hypersebasti protonobilissimi c. and that after these Titles among the Romans so pompous and glorious had been worn a while at Court they descended to the City and Country and further tells us That in France the word Sovereign is commonly used for any Superior as Sovereign of Accounts Treasure Forest Sovereign Judge Sovereign Bailiff c. To him we may add what an older (a) Marcus Antonius surgens Neapoli illustrata Lib. 1. c. 19. sect 10. Author objects That it is an Usurpation of the Attribute only proper to God to give the Title of Majesty to Emperors or Kings and another (b) Jo. 〈◊〉 de Idololatrâ—a Politica c. 1. saith It is a piece of Idolatry to assume the Titles of nostra Divinitas nostrum numen Coeleste Oraculum adorandum Rescriptum c. Which were used by Theodosius and Valentinian and other Christian Emperors in the first and third Person as I have before largely hinted To the first of these I shall answer That the reason of Augustus and Tiberius declining the Title of Dominus was because in that Age it was understood as a Lord over Slaves Answer to the first Objector which in the first setling of the Empire would have caused Heart burnings and Rebellions against them in that State accustomed to Freedom But as the usage of the word came afterwards to be liquified and of a benign and softer signification so there was no reason to reject it especially since the Author himself if no Quaker would not think it unfit in Latin to be used to him as a Gentleman and as to the invidious Expression of the wooden Eagle he might have known that the Ancient Vexilla of the Emperors which had the Eagle upon them as he may see the Figure of them in Antonius and many other Coyns were not always of Wood and if so gilt with Silver or Gold but of Metal But it may be he calls it wooden out of a sleight to the Authority or the better to pursue his Allegory of a Chip blossoming However it discovers the mean and low opinion he hath of such Supreme Powers As to the Hyperbolical Epithetes of the Grecian Emperors something must be yielded to the luxurious exuberance of the Grecian Language and the usage of the Eastern Countries and that Sovereign is sunk so low in France as to be the Epithete of a Baylive it may be ascribed to the Acceptation of the word in signifying any Supreme Officer in his kind as we call Lord High Treasurer Lord High Steward to distinguish them from inferior Treasurers and Stewards As to the two following Authors it may be considered what the judicious Mr. Answer to the other Objectors Selden observes That the Title of Majesty may as well be afforded to them as of Wisdom Power Clemency or any other Quality because those are as all else which is great or good principally in God Therefore (c) Divi Christiani vocari possunt eo modo quo Dii quia Dei sunt vicarii Dei voce judicant Polit. lib. 7. c. 4. sect 4. Contzen in the last Age Professor of Divinity at Mentz saith That Christian Princes may be called Divi or Gods because they are Gods Vicars and do judge by Gods Voice Yet he thinks that Divus Imperator nostra Divinitas nostra Aeternitas and such like are not altogether so fit for Christian Princes for fear both of their arrogating more than they should when they are so magnified as also lest too much offence be taken by such as may miss in the Reason of the Application of those Titles to them We may further note from the learned Selden That when the Lacedaemonians admired a Man they used proverbially to say he is a Divine Man and the Philosopher (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ethic. 7. c. 1. saith That Men became to be reputed or called Gods from the excellence of their Heroic Vertues and these Vertues and themselves also were as he says called Divine by way of some similitude or by reason of Participation with the Deity being all goodness and excellency as the contrary quality that is Inhumanity or Barbarousness is named 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Feritas because it is most like to what is Bestial So that as he who affirms that a Barbarous or Inhuman Fellow is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Bestial makes but an high Expression of his ill nature not at all supposing him to be a Beast so on the other side Divinus or Divinitas or the like expresseth only an Admiration of Excellency which hath its highest and first Example in the Deity and is by some Similitude or Participation in the Person to whom it is attributed Therefore (e) Antiquitus Rectores Reipublicae Divini vocabantur quasi Divinae providentiae ministri 2a 2ae Quaest 99. Art 1. Aquinas saith That anciently Governours of Commonweals were called Divine because they were the Ministers of Divine Providence They being here upon Earth in their Dominions under God Supreme Governours undisputably in Civils as Philip le Beau of France to Pope Boniface the Eighth in his scornful Letter saith instead of sciat sanctitas tua sciat tua maxima fatuitas nos in temporalibus alicui non subesse That in Temporals he was not subject to any Instead of these lofty Titles the modern Sovereigns have contented themselves with the Addition of Dei Gratia Concerning the Style of Dei gratia which applied to Lay Princes doth always signifie a Supremacy in their own Dominions This Stile begun about Charles the (f) Vide Capitular Aquâ—â—â—ranens pâ— 30. Tom. â— Concil 〈◊〉 Great 's time as in several of his Patents appears neither did it continue in use by his Successors till about four Hundred years since Fâ—â— Otho the Third titled himself sometimes nothing but 〈◊〉 â—â—octolorum and Mr. Selden hath not observed it to be 〈◊〉 by the Greek Emperors but that instead of it they used (g) Tit. Hon. par 1. c. 7. Crowned of God the more ordinary and later Expression of them being trusting (h) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Vide Eginhard Annal Franciae Anno Anon. vita Car. M. in Christ that is God or in God Emperor of the Romans With us in England Ine King of the West Saxons that lived many years before Charles the Great useth it IC INE MIDGODES GIFT
by the Law said to be in the King (z) Sheppard ut supra a threefold greatness of Perfection First of being freed from Infamy and all kind of Imperfections common to Man Secondly of Power in having the command of all his People Thirdly of Majesty being the Fountain of Honour Justice and Mercy The King is Gods immediate Viceroy (a) Câ—k 2.44.5.29 within his Dominions Vicarius Dei As his Protection and Government reacheth to all his People as Subjects so the Allegiance and Obedience of them all is due to him as their Sovereign whether Ecclesiastical or Civil and so he is Persona mixta his Prerogatives are called Jura Regalia Insignia Coronae Ancient Prerogatives and Royal Flowers of the Crown so inseparably annexed to the Crown that none but the King may have them nor can they be communicated to or taken by any Subject (b) Bracton lib. 1. c. 8. Stat. 25 H. 8. c. 21. Nemo terram nisi Authoritate Râ—gia possiâ—et Plowden 136. Jenkins Cent. 7. Case 77. 2. Case 16.17 E. 2. c. 17. Nevil 101.174 All Lands are said to be held of him immediately or mediately he can hold of no Man or any be equal to him as to be joynt Tenant of Land with him and his Jurisdiction is over all places within his Dominions both on the dry Land and on the Sea The Judges are to observe it as a certain Rule That whatever may be for the benefit of the King and his profit shall be taken most largely for him and what against him and for his disprofit be taken strictly neither is it only the duty of Judges but of all other his Subjects in their Stations to help the King to his Right The Perogatives are many and great yet such as are his by the Ancient Law of the Land and what the Kings of England have time out of mind used and are such as are of absolute (c) Coâ—e 12.8.30.2 part Instit 262.496.5 part 11.2.8 necessity for the security of the Government and the Public weals As to call and dissolve Parliaments give his Royal Assent to Laws command the Militia coyn Moneys grant Honors make and dispose of the great Seal dispense with penal Laws pardon Felonies and Treasons make and appoint great Officers Justices of Eyre and Assize of the Peace Gaol-delivery and Sheriffs to grant Charters to Corporations and other Persons or Fraternities He hath the sole Power of appointing ratifying and consummating all Treaties with Foreign Princes making War and Peace granting Safe-Conduct and Protection and all these and many other are firmly ascertained (d) Quod Rex est 〈◊〉 Lex est Regi Rex est Amma 〈◊〉 Lex est Anima Regi by Laws and have ever been and still are in the King alone and at his own Discretion Although there is no need in describing the Sovereignty of our Kings to carry it up to that absoluteness of Monarchy where all things are appointed and reversed by the Sovereigns fiat yet (e) Jus Regium p. 42. we must on the other side consider That the Monarchy which is subject to the impetuous Caprices of the Multitude when giddy or to the incorrigible Factiousness of the Nobility when interested is in effect no Government at all it must be owned That in all Governments a Sovereignty must reside some where and a Monarch can 〈◊〉 no Participants For then it would cease to be a Monarchy and in things that relate immediately to Government the King hath as much right to regulate them as to instance to restrain the Licence of the Press or secure Peace as we have to regulate and dispose of our Property Government being the Kings Property for with the Monarchy the King must enjoy all things that are necessary for the Administration of it according to that just Maxim (f) Quando aliquid â—oneditur omnia concessa videntur sine quibus concessum explicari nequit of the Law When any thing is granted all things seem to be granted without which the thing granted cannot be explained Which warrants the Kings Advocate of Scotland to lay that down as a general (g) Jus Regium p. 77. Rule That their Kings can do every thing that relates to Government and is necessary for the Administration thereof though there be no special Law or Act of Parliament for it if the same be not contrary to the Law of God Nature or Nations The Power and Authority of the Kings of England have been much more unbounded than they are at present (h) Part 1. c. 16. sol 34. Bracton speaking of his time saith That neither the Justices or private Persons might dispute the Kings Charter but if there were a doubt of it the Resolution must come from the Kings own Interpretation If Justice be demanded of the King saith (i) Idem lib. 1. c. 8. p. 5. he seeing no Writ lies against him one must petition that he would correct and amend what he hath done By the Condescensions of gracious Princes such Restrictions have been made of their Sovereign Absoluteness By the Grants and Condescensions of our Kings their Absoluteness lessened that they have obliged themselves to govern their Kingdoms transmitted to them with such Limitations by their numerous Ancestors by Rules of Law Equity Justice and right Judgment in Imitation of their Supreme Head and Omnipotent Monarch That therefore it may demonstratively appear how happily the Government of England is constituted for the Benefit of the Subjects who under so benign a Monarchy enjoy more Advantages in the Security of their Persons and Proprieties than under the most free Commonwealth that ever we read of I shall lightly touch upon some of those Particulars which the Kings of England by reason of several Acts of Parliament they have given their Royal Assents to have precluded themselves from the single Disposal of as in Absolute Monarchies are used yet I hope to make it clear in several Branches of this Discourse That there is no such thing as Co-ordinacy of any other Power or such a mixture as vitiates the Monarchy by a debasing Alloy much less that the Government can be Arbitrary or Tyrannical which hath sheathed the Sword of Justice within the Velvet Scabbard of the Laws and lined the Scarlet Robes of Majesty with the softest Ermine of Indulgence to well deserving Subjects who by their Obedience and Considerateness make their Princes and their own Happiness most perfect For it is equally unhappy to Princes and Subjects where (k) Alii Principes Reges hominum ipse Rex Regum Maximilian's Jest is true That whereas other Princes were Kings of Men he was King of Kings because his Subjects would do but only what they list But to come to the Particulars of Royal Abatements and Indulgences The Kings of England may not rule their People by their Will or by Proclamation as the Roman Emperors by their (l) 〈◊〉 lib. 2. c. 8. The
Particulars of Royal Abatements Edicts or make new Laws or change any of the old standing Laws without the mutual Consent of the two Houses of Parliament He may not oppress the People or in any Arbitrary way take from them their Liberties or Estates under any pretence whatsoever without due course of Law Nor can he impose upon their (m) Stamford's Pleas of the Crown Persons what Charges or Burthens he pleaseth but according to and by the Laws of the Kingdom He cannot do any thing against the Law of the Nation or against common Right cannot change Ancient Customs for a Legal (n) Hâ—ghs 's Reports 254.263 Cousâ—uetudo lâ—galis plus habet quam concessio Regalis Custom is more available than a Royal Concession yet on the other side that Custom which advanceth against the Prerogative of the King is void He cannot impose Arbitrary (o) Petit. of Right 3 Car. 1.7 Car. 1. c. 17. payments erect new Offices of Charge to the Subject may not deny or delay Justice may not compel his People to make Gifts Loan Benevolence or Tax without consent of the two Houses The King (p) 2 Car. 1. c. 1. Coke 12.46.2 part Brown lib. 2. c. 2. Coke Instit 2 part 47 48. Petition of Right Dyer 176. may not imprison without just Cause nor keep any Mans Cause from Tryal may not send any man out of the Realm without his own Consent may not in time of Peace Billet or Quarter Soldiers or Mariners upon his People against their Wills may not grant Commission to try Men by Martial Law in time of Peace nor to determine any matters of difference betwixt Subjects other ways than by ordinary (q) 21 Jac. c. 31. Coke 11.87 Plowden 497. course of Law and ordinary Courts may not by Patent or Licence make a grant of a Monopoly or the benefit of a Penal Law or give a Power to dispense with Penal Laws in some Cases (r) Coke 11.87 He may not have or take that he hath right to which is in the Possession of another but by due course of Laws and may not make new or alter old Courts of Justice unless to be kept after the Course of the Law and not in Course of Equity Nor (s) Sheppard's Grand Abridgment part 3. fol. 49. alter the Courts of Westminster that have been time out of mind nor erect new Courts of Chancery Kings-Bench Common-pleas or Exchequer (t) Fleetwood lib. 1. c. 8. He may not by his last Will and Testament under the great Seal or otherwise dispose of the Government or of the Crown it self nor give and grant away the Crown-Lands or Jewels which he hath in his Politic Capacity nor give away any of the incommunicable Prerogatives By these Abatements of Power and gracious Condescentions of the Kings of England for the Benefit and Security of the Subject No Power co-ordinate with the King 's we are not to conclude that there either is or can be any Co-ordination or Coaequality of any State Order or Degree of the Subjects with the Sovereign nor any Competition of the Subjects Power in his Concurrence with the Vertual and Primary Influence of the Sovereign but a plain Subordination and subjected Ministration of the one under the Sovereignty of the other For although there is a Co-operation of the Members with the Head for the performing some Acts of State and they may seem Orders or States coaequally Authorized in the Power of Acting with the Sovereign in Petitioning for advising or consulting about or consenting upon the Kings Summons to Laws And although in judging and determining matters of Private Interest the King hath not an Arbitrary Judgment but is restrained to the Judgment to be administred by the proper sworn Judges in his Courts whom he appoints to judge according to his Laws and in the making of Laws his Power and Judgment is restrained to the Concurrence of the Nobles and Commons in Parliament yet in all other things wherein he is not expresly restricted by any Law of his own or Progenitors granting he retaineth the absolute Power as in the particulars before mentioned and in the Chapters of Parliaments I shall further discourse In the Rebellion under King Charles the First the (u) Observations on His Majesty's Messages c. The Rebels in 1641. would have lessened the King's Sovereignty and placed it in the People or their Representatives Pencombatants for the Party knowing they had the whole Current of the Laws against them made a great noise and bustle with Sophisms and plausible specious Pretences to captivate the Populace and nothing was more frequent than the Misapplication of that of the Philosopher That the King was Singulis major but Vniversis minor Inferring from thence That the Collective Body of the People and their Representatives were Greater in Authority than the King In answer to which it may be observed That the Aphorism how true soever in any other sense is most false in any sense of Sovereignty For if it be meant That the King is a better Man only than any of us single this doth not tell us he is better than Two and this is no more than possibly he might be before he was King For we must needs look upon Princes as Persons of Worth Honour and Eminency when taken from the People which the superaddition of Royalty did not destroy Besides any Lord of the Land may challenge such a Supremacy over all the Knights and any Knight over all the Esquires Furthermore if Princes be Sovereigns to single Persons of Subjects only and not to the universality of them then every single Subject by himself is a Body Politick whereof the King as King is Head and so the Publick Community is out of the King's Protection he being no King as to them in a complex Body Such impudent Falsities and many more destructive Consequences flow from such absurd Principles And if the Maxim were true the People have placed a King not over but under themselves But they enforce the Argument still further That the Fountain and efficient Cause of Power is the People and from hence they say the Inference is just That he is less than the Universe But the (w) Answer to Observations p. 10. Consequence is rather the contrary For suppose the People were the efficient Cause of Power it can be no otherwise than by translating or deriving their divided Power and uniting it in him Since then they cannot retain what they have parted with nor have what they gave away it follows That he who hath all their Power and his own particular besides must needs be greater and more powerful than they it being a very great Truth That he is the only Fountain of Power and Justice Another of their Maxims was That quicquid efficit tale illud est magis tale And they assume But the King was made by the People therefore less than the People In answer to which it is
apparent the Argument is Sophistical as being built on a Maxim in it self amphibolous which is not simply true but as it is restricted For it is true before the Effect produced not after So a Spark firing a City was once more Fire than the Houses but not so after the whole Town is become a Flame It is true also in those Agents in whom the Quality by which they operate is inherent not true in those who by ways of Donation divest themselves of Power or Wealth For a thing cannot retain its Fulness after it hath emptied it self If the Objector have an Estate which he would willingly improve let him bestow it on another and he shall make him rich and by his own Argument himself richer It is to be supposed rather than such an one will part with his Estate he will find an Answer to his Objection As to the minor Proposition I have before cleared I hope That the People are not the Original Cause of Government But the Observer saith They are the Final Cause and the End is far more valuable in Nature and Policy than that which is the Means therefore the Commons whose Good is the final End of all Government are more Honourable than the Sovereign But the Rule holds in such Means only as are valuable by that relation they bear to their Ends and have no proper Goodness of their own A King is not so to his People If we look back to his first Extraction when he was first taken from the People to be set over them we must needs behold him as a Man of some Worth Honour and Eminence which the superaddition of Royalty did not destroy but encrease and to be a means of his Peoples Preservation is very consistent with the Heighth of Honour Besides they that would captivate the unthinking Multitude by such Fallacies must consider that the Question is not Who is Preferable but Who is Superiour One good Christian is preferable to a thousand that are not so yet his Interest in the Commonwealth may not be preferable A Shepherd is ordained for his Flock yet a Flock of Brutes is not preferable to any Reasonable Creature Further the King's Interest and the Peoples are inseparable in the Construction of the Law which presumes what the King doth he does for the People Whether therefore the King's Power be derived from God or the People it is preferable If from God because his Ordinance If from the People because the People have elected him and consented it (x) Jus Regium p. 68. should be and have trusted him with the Publick Interest which is still preferable If this way of arguing were sound Angels being Ministring Spirits for the good of Men it would follow That Men should be more Honourable than Angels and the poor Client should be a better Man than his Learned Counsellor and the simple Patient than his Doctor As to Bracton's Authority Rex habet superiorem Deum legem item Curiam suam I must refer the scrupulous Reader to the Book called The Case of our Affairs p. 14. CHAP. XVIII That the Sovereign is unaccountable to any but God BEfore I come to treat of the several Branches of the Sovereignty of Kings in the Executive parts of them I shall from the general Idea of their Sovereignty deduce three Corollaries in this and the two following Chapters which seem to me to flow naturally from the Being of a Sovereign viz. That such are accountable to none but the Great Sovereign of the Universe And secondly may dispense in some Cases with the Laws And lastly must not be resisted or rebelled against The necessary Motive to treat of the Unaccountableness of Kings the Murther of King Charles the First If there were no other Motive to induce me to treat of this Head the barbarous Murther of the Blessed Martyr King Charles the First would have the same power as the sense that Croesus's dumb Son had to see his Father's Life in imminent danger which made such a violent emotion of the Spirits as unloosned the stiff Ligaments by which his Tongue was contracted or forced an Irruption of Powerful Spirits to invigorate the paralytick Muscles of it so that he cried out Spare my Father So certainly the Consideration of such an High Court of Justice that arraigned and sentenced their Sovereign should raise an Indignation in any one that hath sense of Allegiance Duty or Religion to defend that as a Fundamental Truth That Sovereigns are subject to no Tribunal but that of their Heavenly Sovereign In the handling this I shall pick out some of the Assertions of Learned and Judicious Authors Heathens and Christians and annex and intersperse such Reasons as may evince it and then show That this doth not leave Princes to a Tyrannical Liberty and lastly give some short Remarks upon the unparallell'd Sentence of the Regicides of King Charles the First of Immortal Memory (a) Vsher's Power of Princes part 4. pag. 196. Edit Cracovian Divine and Humane Authorities to prove it Rabba bar Nachman in his great Gloss upon Deuteronomy saith positively No Creature may judge the King but the Holy and Blessed God alone For the Original Hebrew of which and the place of Moses from whence he deduceth this Assertion I must refer the Reader to the Authors cited having chosen this not only for the fulness of the Expression but for the Antiquity though not of the Comment yet of the Text before any other All those Places also in Holy Scripture which style Princes and Judges of the Earth (b) Psal 8. 5. with Heb. 2.7 and Psal 97.7 with Heb. 1.6 Exod. 21.6 22.8 Gods and the Sons of God and Psal 82.6 I have said ye are Gods and all sons of the most High which in the Chaldee Paraphrase is thus rendred Behold ye are reputed as Angels and all of you as it were Angels of the most High (c) Job 1.6 2.1 38.7 are sufficient Proofs of this Truth As are likewise those Places that tell us It is the Will of God that we (d) 1 Pet. 2.13 15. submit our selves to these Higher Powers for his sake Therefore (e) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Orat. 3. de Regno St. Chrysostom calls Regality such a Government as is not subject to the control of any Sophocles calls it (f) In Antiq. v. 11 27. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Free and Independent Regiment and (g) Xiphilin 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Marcus Aurelius in Dio an Absolute Kingdom not subject to the Control of any To all which agrees that of Horace Lib. 3. Carm. Od. 1. Regum timendorum in proprios Greges Reges in ipsos Imperium est Jovis By which he fully expresseth That as Kings have Power over their Subjects so God hath the Power over Kings All the vast Collections that may be made of Emperours asserting or Subjects owning that their Authorities are from God that God gave them their Kingdoms
answer the Varieties and unthought on plottings of Mans Nature and in Tract of Time Laws at first just or in terrorem become unprofitable and harsh and this moderating of Laws which is called saith he 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Equity is so annexed to the Prince that by no decree of Man it can be pulled from it This Absoluteness I have hitherto mentioned out of such great Authors How far the Kings of England may dispense with their Laws is not practised by the English Sovereign for he challengeth no such Power to make or abrogate Laws without the Concurrence of the two Houes But he hath a sufficient Prerogative by dispensing conniving or putting some Laws more in Execution than at other times so to manage the Execution of the as the Government and consequently the Peoples safety be not prejudiced So though there be a Law for Triennial Parliaments yet when a Prince finds a Potent Faction that may influence the Electors so as the meeting of such a Parliament at such a time may be hazardous to the publick there being no Penalty can be inflicted on a King for the Omission and the Danger being visible that such a Factious Parliament was only wanting to bring to perfection the Design of Traiterous and Seditious Persons It is very agreeable to Reason that a Prince in such a juncture should prefer the publick Peace of his Kingdom and the security of his Crown by the omitting such Summons than to hazard all by convening them There are other Cases may intervene wherein the Reason of State the Salus publica may require the dispensing with or suspension of the Execution of some Laws As in time of open Rebellion the King 's arming of such as he may most surely confide in though they take not such Oaths or be so qualified as the Laws require and as in several other Particulars might be instanced in I shall only add two Authorities of our own Country who were well versed in the matter the one a great Divine and the other as great a Lawyer and Statesman First the learned (i) Vsher's Power of Princes p. 76. Primate saith Such positive Laws being as other works of Men are imperfect and not free from any Discommodities if the strict Observation thereof should be pursued in every particular It is fit the Supreme Governour should not himself only be exempted from Subjection thereunto but also be so far Lord over them that where he seeth cause he may abate or totally remit the penalty incurred by the breach of them dispense with others for not observing of them at all yea generally suspend the Execution of them when by experience he shall find the Inconveniences to be greater than the profit that was expected should redound thereby to the Common-wealth The Second Authority shall be that of the Earl of Clarendon (k) Survey p. 127. who affirms That by our Laws the King hath in many Cases the Power of dispensing with the Execution of the Law especially in granting pardon for the transgressing of them except in those Cases where the Offence is greater to others than the King as in murder of an Husband or Father therefore upon an Appeal by them the Offendor may suffer after the Kings pardon which shows how tender our Laws are of protecting the Lives of Subjects This Prerogative of Kings (l) 3. Rep. Bodin avouches among the Rights of Sovereignty to pardon the Persons the forfeiture of their Goods and to restore the attainted Honours of those condemned by righteous or unrightcous Judgment according to that of St. (m) Q. 115. ex Veteri Novo Testamento Hilary in St. Augustine Imperatori soli licet revocare sententiam reum mortis absolvere ei ignoscere That it belongeth only to the Emperor to revoke the Sentence or Judgment and to absolve and pardon the guilty For as Themistius saith One thing becoms a Judge and another thing a King the one is to observe the Law the other hath power to correct the Laws themselves and to qualifie the severity and harshness of them as being himself a living Law and not confined to the unchangeable and unalterable Letter For that end saith he it seemeth God did send from Heaven the Regal Power into the Earth that Men might have a refuge from that dead and immoveable Law to the living one as he instanceth in Capital Offenders For we have seen saith he Men returned to life from the Gates of Death whom the Law indeed sent thither but the Lord of the Law 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 brought back from thence again As to the Power of Equity claimed by the great Civilians the Administration of that is vested in the Chancellor or Lord-Keeper of the Kings appointment who is the Keeper of the Kings Conscience or Dispenser of that reserved Power in the King CHAP. XX. That the Sovereign is not to be resisted or rebelled against upon pretence of ill Government Irreligion or any such matter OUR Republicans of 1641. set themselves with all their skill and cunning The Necessity of this Discourse as well as force to overthrow the Doctrine of Non-resistance and to establish that of its being lawful not only to rise in Arms for the defence of their Liberty Property and Religion the gilded pretences of all Rebellions but to prosecute that blessed King and all his Loyal Subjects in the highest Degree of Cruelty and Revenge that they could devise or their success embolden them to commit Therefore it is a most necessary Duty of all that wish well to themselves as well as the Government to oppose such dangerous Positions and Practices The Authorities I have cited in the two Chapters of Sovereignty are but the gleanings of what may be found in learned Men on this Subject and since I shall have occasion hereafter when I treat of the Subjects duty to handle this matter more particularly I shall be the shorter in this and refer the curious Reader to the elaborate Treatise of Mr. Dudley Digs Of the unlawfulness of Subjects taking up Arms against their Sovereign and to the Glory of his Age for Learning Loyalty and Sanctity the Lord Primate Vsher's Power of the Prince and His Second Part of Obedience to the judicious and learned Sir George Mackenzie his Jus Regium and (a) Arnisaeus Zeiglar de Jure Majestatis c. 1. n. 12. Salmasii Defensio Regia Grotius lib. 1. c. 4. de Jure Belli Dr. More 's Divine Dialogues Dr. Mouliu 's Philanax Anglicus Sam. Petit 's Diatriba c. others that treat of this Subject ex instituto desiring all those who have imbibed or would avoid any of these dangerous Principles that they will seriously consult those Authors out of whom I shall only hint some few of their Reasons and Arguments that may be as Antidotes against the most destructive poison of resisting Sovereign Princes or allowing any Order of Subjects the Liberty upon any Pretence of
XXI Of the King's Authority in making Laws HAving treated of the King's Sovereignty I come now to treat of that Top-branch of it the Power and Authority of the King in giving Laws to his Subjects I must be shorter on this Head because the following Chapters concerning the Great Councils and those particularly concerning Parliaments will more fully illustrate and confirm this Particular In all Government the Legislative Power must be fixed somewhere and it is the concurrent Opinion of all (a) Ab eo i. Principe tanquam a fonte Leges omnes Jura â—manant Vinii Epist Dedicat. Id. Comment in Inst it lib. 1. tit 2. p. 13. a. Civilians That all Laws do flow from the Prince as from a Fountain The Word Lex and Jus by Cicero and the Romans were most-what used promiscuously though Lex or Law did frequently signifie what was writ and enjoyned to be observed Therefore the Plebiscita of the Romans at first were not called Laws because they obliged only part of the Citizens till the Hortensian Law gave them the same force as those which were accorded in Comitiis Centuriatis The Plebiscita were among the Romans The Plebiscita of the Romans after the expulsion of their Kings binding Laws and they were made thus The Magistrates who had the greater Auspices in the Commonwealth such were the Consuls Dictators or Pretors proposed the Laws to the Assemblies of the People and asked them by the Name of Quirites Whether they willed or commanded them And they writ in the Table either A. for Antiquo or V. R. for Vti Rogas As thou askest The Tribunes and Plebeian Aediles were the proper Magistrates of the Plebs but the Aediles were never known to demand the Peoples Suffrage to the Laws The Plebiscita at first were made in the Assemblies of the (b) Tributis Comitiis Centuriatis aut Curiatis Tribes and the Laws in the Hundredary or Curiate Assemblies But to be short L. Valerius and M. Horatius being Consuls it being a doubt whether the Fathers were obliged by the Plebiscita they passed a Law in the Centuriata (c) Anno v. C. 304 305. Howel In the Curiata Comitia saith Dionys Comitia That whatever the Plebs should enjoyn in the Convention of the Tribes should be binding to the People which was confirmed by (d) Anno v. C. 367. Vinnius Q. Hortensius the Dictator at the third Secession of the People to the Janiculum therefore (e) Inter Legem Plebiscitum spâ—â—ies interesset constituendi potestas autem eadâ—m esset Sect. de Origine Juris Id. p. 14. Senatus consultum and Power of the Roman Senate Pomponius saith That the manner of constituting a Law and Plebiscitum differed but the Power was the same That which the Senate commanded and constituted was called a Senatus consultum Vinnius proves That while the Roman Republic stood the Laws were made by the People alone and not by the Senate For they had permitted to them as the Publick Council to take cognisance and Decrees of things that related to the constituting the Republic but so that all Matters of great moment were not established unless the (f) Polyb. lib. 6. Dionys Halic lib. 4. 7. Senatus consulta nullam vim legis babehant nisi plebs ea probaret People confirmed them So that by no Decree of the Senate either any new Law was introduced or any old one abrogated So that neither in Julius Caesar or Augustus's time we find mention of their Decrees And (g) 1. de Repub. c. 10. Bodin affirms That from the time of the expulsion of the Kings to the Empire of Tiberius Caesar the Senate had no power to make Laws but certain Annual Decrees which yet did neither bind the People or Plebs During the Civil Wars there was scarce any Authority but in the Emperors till Augustus in some measure restored the Power of the Comitia as Suetonius tells us who saith That Julius Caesar (h) Jus Comitiorum non in totum populo ademerat sed cum eo partitus est Sueton. in Julio did not wholly abrogate the Power of the Comitia but divided the Power betwixt himself and them and Augustus brought back the ancient Jus of the Comitia And Tacitus tells us of these times Ad eam diem etsi potissima arbitrio Principis quaedam tamen studiis Tribuum fiebant That to that day although most things were done by the Will of the Prince yet some things were done by the Study of the Tribes Yet it is observed That from what time the Laws and the (i) Ex eo igitur tempore legibus plebiscitis quiescentibus Senatus jus facere coepit quanquam non tam propria Auctoritate quam conniventia quadam indulgentia Principum Vinnius p. 14. Plebiscita were weakned or less regarded the Senate began to make Laws but it was by the Connivence and Indulgence of the Princes as appears by the Orations the Princes had in the Senates Therefore (k) Solus arbiter rerum Jure n mine Regio 1. Annal. Tacitus makes his Prince sole Arbiter of Affairs by Kingly Right and Name and gives the Reason for it Because the nature of Commands consists not otherwise than that the last resort be to One Ea est imperandi ratio ut non aliter constet quam si uni reddatur So the Judicious (l) Reges domâ—ni rerum temporumque trahunt conciliis cuncta non sequuntur Lib. 8. Livy saith Kings are Lords of Things and Times attracting all things by their Counsel not following them So Mecaenas's Advice was to (m) Insurgere paulatim munia legum magistratuum ad se trahere Tacit. 1. Annal Augustus insensibly and gradually to draw to himself the Appointment of Laws and Magistrates However by Pliny it is recorded to the Honour of Trajan That he would make no Laws without the Senate as Alexander did nothing in Military Affairs without his Council of Officers or in other Matters of moment without his Council of Prudent Men. Thus the Senate had a shadow of Authority and were something like the Parliaments of France to ratifie the King's Edicts And it was some advantage to a Senate that the Prince concurred with (n) Senatus Potentiam augendo suae serviebant Suet. c. 29. them è contra So we read That Theoderick the Goth passed that obliging Complement upon them (o) Judicium vestrum Patres Conscripti noster comitatur assensus Our Assent Fathers of the Senate accompanies your Judgment So Bodin observes That whenever the Senate had any Authority it was when it was particula quaedam Majestatis and had it not vi Senatus sed quia simul sustinet partem Majestatis So he would ascribe to the Senate Jus decernendi Sententiam pronunciandi but to want the absolute Legislative Power For if the Senate had obtained that the Government must have been Aristocratical How the Equites by a Law
Council and the Optimates witnessing are Cynedrid the Queen three Bishops one Abbot and Brorda Wiega Cuthbert Eobing Esne Cydda Winbert Heardbert and Brorda Dukes besides Ethelbeard Archbishop Forthred Abbat and Sighore Son of Siger But I shall hereafter more copiously give an Account of the constituent Parts of the great Councils The King the Fountain of Laws The Legislative Power saith a learned (h) Sheringham's Supremacy p. 34. Leges vero Anglicanae consuetudines Regum Authoritate jubent quandoque quandoque vetant quandoque vindicant puniunt transgressores Bracton lib. 1. c. 2. Author belongs to the King alone by the Common Law for though the two Houses have Authority granted them by the King to assent or dissent yet the Power that makes it a Law the Authority that animates it and makes it differ from a dead Letter is in the King who is the Life and Soul of the Law by whose Authority alone the Laws command forbid vindicate and punish Transgressors This was resolved by divers Earls and Barons and by all the Justices in the Reign of King Edward the Third for one (i) Fuit dit que le Roy sist les Leis per assent des Peres de la Commune non pas les Peres le Commune qu'il ne avera nul Pere en sa terre demesne que le Roy per eux ne doit estre ajuge 22 E. 3. c. 1. Haedlow and his Wife having a Controversie with the King and desiring to have it decided in Parliament It was resolved That the King makes Laws by the Assent of the Lords and Commons and not the Lords and Commons and that he could have no Peer in his own Land and could not be judged by them This is further manifested that the Laws are primarily and properly made by the King and the two Houses have a Cooperation but no Co-ordination of Power for the breach of any Statute whether it be by Treason Murther Felony Perjury or by any other way is an offence against the (k) Encounter la Corone Dignitie le Roy. Stanford 's Pleas of the Crown lib. 1. c. 1. Kings Authority alone and Pleas made against such Offences are called The Pleas of the Crown because they are done against the Crown and Dignity of the King So that it is not the Dignity and Authority of the Lords and Commons which is violated but the Dignity and Authority of the King This appears also in the Power the (l) Sheringham p. 35. See Finch lib. 2. fol. 22. Coke 2 II. 7. lib. 7. fol. 14. Stanford lib. 2.101 King hath in dispensing with such Laws as forbid a thing which is not malum in se and in pardoning the Transgression of others as Treason Felony c. which in Reason he ought no more to do than to dispense with the Laws of Germany Spain or France or pardon the Transgressors thereof if they were not made by his Authority Furthermore it is a certain Maxim of the Law (m) Ejusdem est leges interpretari cujus est condere The Amendment was sealed by the Great Seal 2 May 9 E. 1. commanding the Justices to do and execute all and every thing contained in it though the same did not accord with the Statute of Gloucester in all things None can interpret the Laws but the same Power that makes them But the King may do this as appears by the Statute of Glocester 6â—â— where immediately after the Statute are these words After by the King and his Justices certain Expositions were made upon some of the Articles above mentioned So the Judges are appointed by the King and they have from him a Power to interpret the Law judicialiter otherwise they could not proceed to Judgment and being called by the King with him and under him they have a Power to interpret the Law Authoritativé But the two Houses besides that they can do nothing singly or joyntly without the Kings Concurrence in (n) Sheringham ut supra their make and composition are unfit to interpret Law For such Power as interprets Law must be always existent or in being to act according to emergent Occasions which the two Houses are not And if they were a permanent Body yet they having a Negative upon each other the Interpretation of the Law must be retarded and all Controversies depending thereupon undecided And this Disagreement might perhaps endure for ever and so a final Determination in such Suits would be impossible Now these are Inconveniences which ought not to be admitted in any Commonwealth for it derogates both from the Honour and Wisdom of a Nation to be so moulded and framed that Justice cannot have a free Passage in all Contingencies Not only the Legislative Power it self but the very (o) Hem p. 36. The King may provide for all things necessary for Government where the Law hath not provided or contradicts not Exercise of the Power also so far as it is essential to Government is in the King alone for he can by Edicts and Proclamations provide for all necessary occasions and special Emergencies not provided for by fixed Laws which is one of the most excellent and eminent Acts of the Legislative Power and a sufficient Remedy against all Mischiefs in case the two Houses should refuse to concurr with him in those things which concern the Benefit of the Kingdoms For as (p) Ea quae Jurisdictioâ—is sunt pacis ea qâ—ae sunt Justitiae paci annexa ad nullum pertinent nisi ad Coronam Dignitatem Regiâ—m Bracton lib. 2. c. 24. Bracton saith those things which belong to Jurisdiction and Peace and those which are annexed to Justice and Peace appertain to none but the Crown neither can they be separated from it because they make the Crown If the King should unwarily by Act of Parliament consent to any thing prejudicial and derogatory to His Royal Prerogative such Acts are void by the Common Law and the Judges are bound to declare them so as that of 23. H. 6. about Sheriffs not to continue longer than one Year was by the Judges declared void and all Kings since might with a Clause of non obstante against the manifest words of the Statute have granted that office for Life in Tail or in Fee But I need not enlarge upon this for all the Acts for the King's Supremacy all the Laws and Statutes that over were made put this beyond Dispute that the affirmative Voice is absolutely in the King that no Laws can be binding or be Laws at all without his special Consent and this being one of the great Rights of Sovereignty cannot be separated from the Person of the King although he (q) Suprema jurisdictio potestas Regia etsi Princeps volet separari non pessunt sunt enim ipsa sorma substantialis essentia Majestatis ergo manente ipso Rege ab eo abdicari non possunt
Cabedo Pract. Obs par 2. decis 40. would himself For it is essential to Majesty and Soveraignty and cannot be abdicated while he remaineth King nor separated without the diminution or destruction of Majesty How both King and People are obliged to defend the Rights of the Crown will appear in the Laws ascribed to King Edward the Confessor in the 17.35 and 56. As to the Particular How absolutely necessary the Royal Assent is to all Laws in the Act of Recognition to King James the First it is fully expressed thus Which if Your Majesty shall be pleased as an Argument of your Gracious acceptation to adorn with Your Majestie 's Royal Assent without which it can neither be Compleat and Perfect nor remain to all Posterity according to our Desire as a Memorial of your Princely and tender Affection towards us c. Against what I have laid down those who were for co-ordinate Powers in the two Houses object many things Answers to some Objections against the King's sole establishing of Laws some I have answered in the Chapter of the King's Sovereignty and I shall meet with others in the Chapters of Parliaments And shall here only take notice of some omitted or not fully answered there Against the assertion That the Liberties granted by King Henry the Third were by way of Charter they produce the Preamble (r) Coke 2 Instit fol. 525. to the Confirmation of King Edward the First of Magna Charta La Charte des Franchises la Charte de la Forest les queux fuerent faitz per Commen de tout Royalm en le temps le Roy Henry pier soient tenue c. and Charta de Foresta wherein he saith that the Charter of Liberties and the Charter of the Forest made by the Community of all the Realm in the time of King Henry our Father shall be kept c. To which with the Judicious Doctor (s) General Preface to Compleat History p. 41. The ancient Kings sealing of Charters of Liberties reputed Laws Brady may be answered that these were the Petitions and Requests of the Community of the Kingdom and may be said to be made that is digested by them into the form of a Charter So the Barons offered King John's Magna Charta to him ready drawn in a Schedule and forced him to grant it and cause his Seal to be put to it and the whole strength and validity of the Charter lay in his Grant and the Confirmation of it under his Seal This was the only Security they desired and demanded no other and the Tenour of all the Charters were accordingly We grant We confirm We give for us and our Heirs to them and their Heirs c. Which Grants and Concessious were always in these times accepted and acknowledged to be sufficient without the least doubting or scruple There was no other Power or Authority that gave them being but the King's so that it seemed the great Councils or Parliaments of those times owned the Kings Charters under Seal and the Grants made by them to the People to be of good force and effect and that their Petitions to which he gave his assent and caused to be put under his Seal were by them accepted and from time to time acknowledged as firm and valid Laws The same learned (t) Idem p. 67. The Laws planted by Kings Doctor Brady observes that Sir Edward Coke hath a formal way of speaking The Law doth this and The Law doth that This is Law That is by Common Law of England abstracting it from any dependance upon or Creation by the Government as if it had been here before there was any and had grown up with the first Trees Herbs and Grass that grew upon English Ground and had not been of our antient Kings and their Successors planting by assistance and advice of their great Councils in all Ages as it was found expedient either by them or upon Petition and Request of their People which is acknowledged by all the Bishops Earls Barons and People present at the (u) Claus 1 E. 2. m. 10. dorso Coronation of King Edward the Second in these words Sir Will you grant and keep and by your Oath confirm to the People of England the Laws and Customs granted to them by the antient Kings of England your Predecessors true and devout to God and namely the Laws and Customs and Liberties granted to the Clergy and People by the glorious King Edward your Predecessor Another Objection some make against the Absoluteness of the King's Power Second Objection when it is said in antient Statutes The King ordains The King wills that it hath been resolved by many of the Judges (w) Coke 8. Report s 20. b. that if these Statutes be entred in the Parliament Rolls and allowed as acts of Parliament it shall be intended they were by Authority of Parliament With the Judicious Dr. Brady I shall not enquire how such Entry and such Allowance without any Words in the Statutes to that purpose can make them to be by Authority of Parliament But we may he sure those Words The King ordains The King wills being pronounced in Parliament and recorded in the Rolls thereof do clearly prove the King's Authority and Power in making Laws to be far greater than many Men would allow him or have him to enjoy (x) Lib. 3. c. 9. Bracton and the Author of (y) Lib. 1. c. 17. â—leta applying the Passage of the Civil Law Quod Principi placet Legis habet vigorem to the King of England say That Clause ought not to be understood of every thing that is rashly presumed to be his Will but of that which is justly determined upon good Advice and Deliberation by the Counsel of his Magistrates (z) Râ—ge Authoritatem prastante the King giving it Authority and confirming it for a Law and from hence (a) Cum ipse sit Author Juris non debet inde Injuriarum nasci occasio unde Jura nascuntur infer That when he himself is the Author of the Law Injustice ought not to spring from the same Fountain from whence the Law doth spring It is no diminution of the Sovereignty of a Prince in the matter of making Laws or repealing them to have the Assent of the Nobles and such a select Body of Great and Wise Men as the House of Commons are But when as in the Parliament 1641. the Two Houses claim a Co-ordinate Power and would make their Advices be swallowed as Commands it is this that all Loyal Persons should oppose We generally understand that the Persian Monarchy was as Absolute as any yet in it we have a manifest Discovery of the Concurrence of the Nobles in preparing a Decree The Persian manner of making Laws yet they wanted the King's establishing the Decree by his signing it whereby it might not be changed and Grotius thinks they signed it also (b) Dan. cap. 6. v. 7 8
Reges â—â—que unum apud illos memoriae Annalium genus eral Tacitus notes of the German Priests that though they were ignorant of the secret of Letters yet in ancient Verses they celebrated their Gods and Kings and that alone was with them their Memorials and Annals It is true Caesar (s) Lib. 1. De Bello Galliâ—o saith that though the Gauls did not think meet to commit their Doctrine to Writing yet generally in all other things whether publick affairs or private accompts they made use of Greek Letters and he saith That there were Tablets found in the Camp of the Switzers made up of Greek Letters Yet it doth not appear that the Greek Language was used by the People for one and the same Character of Letters may serve to express different Languages so the Targum or Chaldee Paraphrase and the new Testament in Syriack are done in Hebrew Letters yet the Language very different That the Greek Language was not known among them appears by what (t) De Bello Gallico lib. 5. Caesar saith That being to write to Quintus Cicero who was then besieged in Flanders by great Rewards prevailed with an Horseman of Gaul belonging to the Nervians to carry a Letter to him which he writ in Greek lest it being intercepted the Enemy should discover the design Peter Ramus (u) De moribus veterum Gallorum p. 74. is so desirous to promote the Glory of his Country that he offers considerable Authority to prove that the Grecians learnt their Letters from the Gauls affirming that the Learning of Semnothei Saronidae Druids and Gauls flourished in Gaul many Ages before Cadmus came into Greece and the great (w) Janus Angiorum â—â—p 9. Selden seems to allow it when he saith That Learned Men do think the Greeks took the Gallick ones for their Copy after the Phoenician Letters which were not altogether unlike the Hebrew were grown out of use He further adds That the rude Gothic Characters which (x) In Appendice ad Jornandi Goth. Bonaventure Vulcanius of Burges published do very much resemble the Greek ones as also the present Russian Characters As to the Latin Letters they were first brought over into Italy from Arcadia with Nicostrata the Mother of Evander who was banished his Country As to the Druids we should have been at a great loss both concerning their Doctrines and of the Manners and Customs of the Gauls Britains and Germans if we had lost the Histories of Julius Caesar Pliny Strabo and some more after them since the Memorials and Epinicia of the Bards are so totally lost that we have nothing remains of the but fuimus Troes and that of (y) 1. Pharsal Lucan Laudibus in longum Vates demittitis Aevum Plurima securi fudistis Carmina Bardi The Welsh Bards glory that they still retain the Memorials of their great Men and especially their Kings but we may easily conceive that the great Mixture of Poetical fancy as even in Homer and Virgil is found must render the whole very Romantic Caesar saith That in Gaul there are only two sorts of Men who are in any Honour or Account viz. The Druids and the Equites of whom I shall treat and first of the Druids and having after occasion to mention several particulars upon emergent occasions I shall in a summary way here collect what dispersedly is recorded by him not only concerning the Druids Doctrine Religious and Civil but of the Government or Polity and lastly of the manner of Living Customs and Usages of the Gauls Germans and Britains towards the better understanding of which I think fit to note these things First as to their Name we may not rely upon the Authority of Berosus from their King Druis As to the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 an Oak which was sacred to them I shall speak hereafter only at present noting that Pliny saith They performed none of their Devotions without Oaken Leaves Goropius (z) In Gall. Becanus would have it from the Dutch True-wise or from Trutin a word which with the Ancient Germans signified God and sometimes Lord as * Cosmog par 2. l. 3. Merula notes out of the Gospel of Othfred Now as to their learning I shall say something Caesar saith They were Professors of all learning and (a) De moribus vet Gallorum p. 81. ad 95. Ramus divides it into their sacred learning their Philosophy Astronomy Cosmography Music c. who may be consulted by the curious Readers As to their Religious Doctrine and Concerns what follows is observable First They taught the Immortality of the Soul as (b) Hoc volunt persuadere non interire animas sed ab aliis post mortem ad alios transire De Bello Gallico lib. 6. Caesar tells us by which they excited greatly all Persons to Vertue and to neglect the fear of Death Since the learned Selden will not undertake to judge whether the Druids had their Metempsychosis or Transmigration of Souls from Pythagoras or he from the as (c) Stoic Physiologia lib. 3. dissert 12. Lipsius also queries I shall not enter into dispute for some make (d) Vide Laert. lib. 8. Plut. Orat. 2. de esu Carnium Reuchl lib. 2. de Arte Cabalistica Pythagoras only in Tarquin's time and those that speak of his greatest Antiquity place him with Numa whereas most make the Druids of the Ancientest standing among the Philosophers of the Gentiles Secondly (e) Multa praterea de sideribus atque corum motu de mundi terrarum magnitudine de rerum natura de Deorum Immortalium vi ac potestate disputant in virtute tradunt Lib. 7. de Bello Gallico Caesar further adds That the Druids dispute many things of the Stars and of their Motion and of the greatness of the World and the Earth of the Nature of things of the Power of the Immortal Gods and several things of Vertue And so Mela saith Druides motus Coeli Siderum profitentur They discoursed of the Motions of Heaven and Stars Thirdly They excommunicated those that stood not to their Sentence that is they (f) Sacrisiciis interdicunt hâ—â—â— pâ—â—â—â— apud 〈◊〉 est gravissima Id. lib. 6. forbid them to come to sacrifice which among them was the most grievous punishment and those who are thus excommunicated are accounted wicked and ungodly Wretches every Body goes out of their way and shuns their Company and Conversation for fear of getting harm by Contagion neither have they the benefit of the Law when they desire it nor is any respect shown to them Fourthly (g) Druidibus praeest unus qui summam inter eos habet Authoritatem Id. Caesar saith further That they have one over them who hath the chiefest Authority amongst them and when he dies if there be any one that is eminent above the rest he succeeds in place but if there be several of equal merit one is chosen by Majority of Votes
Suos liberos nisi cum adolever in t ut munus militiae sustinere possint palam ad se adire non patiuntur De Bello Gallico l. 6. Caesar saith They do not permit their Children to come to them in open Sight but when they are grown up to that Age that they may be able to undergo Military Duty and serve in War And of the Britans he (m) Vxores habent deni duodenique inter se communes maxime fratres cum fratribus parentes cum liberis sed si qui sunt ex his nati eorum habentur liberi a quthus primum virgines quaeque ductae sunt Idem saith particularly They have ten or twelve Wives in common amongst them and especially Brothers and Fathers with their Children but what Children were born of such Mothers were fathered on them by whom they were first lain with when they were Maids This strange Confusion had some thing of the Primaeval Practice of Polygamy and some think helped to the multiplying of People where it must be rare for any Woman to be unfruitful that had so many Gallants The Men of Gaul (n) Viri quantas pecunias ab uxoribus dotis nomine acceperunt tantas ex suis bonis aestimatione facta cum dotibus communicant c. Idem Caesar now speaks what Mony they receive with their Wives upon account of Portion they lay downv much out of their own Estate upon an Appraisement made to make a Joint-stock with the Portion There is an account jointly kept of the Product and the Profits reserved and the longer Liver enjoys all The Men have Power (o) Viri in uxores sicuti in liberos vitae necisque habent potestatem Idem of Life and Death over their Wives as well as over their Children saith the same Caesar Whereupon Bodin (p) Bodin de Repub. lib. 1. c. 2. chargeth Justinian with a falshood for affirming that other People had not the same Fatherly Power as the Romans had When a Master of a Family who is of higher Birth and Quality dies his Kindred meet together That if the manner of his Death were suspicious they may by Torture as Servants were used examine they Wife concerning the Business and if she be found Guilty they (q) Caesar de Bello Gallico lib. 6. Igni atque omnibus tormentis excruciatas intersiciunt torment her miserably and burn her alive To this Sir (r) Preface to the Sixth Book of Reports Edward Coke referrs the Antiquity of that Law which we at this day use of devoting to the Flames those wicked Baggages who stain their Hands with the nefarious Murther of their Husbands Those Servants (s) Servi Clientes quos ab iis dileâ—â—os esse constabat just is funeribus confectis una â—remabantur De Bello Gallico lib. 6. and Dependants who were known to have been beloved by their Masters in his Life-time were when the Funeral Rites were prepared burnt with him for Company This was used by many Nations Many when they are (t) Plerique cum aut aere alieno aut magnitudine Tributorum aut injuâ—ia potentiorum premuntur sese in serviâ—utem dicant Nobilibus In hos eadem sunt Jura quae dominis in servos Idem opprest with Debt or great Taxes or with the injurious Oppression of great Men put themselves out to Service to the Nobles over such they have the same Right or Authority as Masters have over their Servants or Slaves Thus I have extracted the principal Laws Usages Customs and Powers of Government Civil and Religions used by the Gauls and Britans as they are recorded by Julius Caesar and others in which we find the Druids were their Gownmen and were the Guardians and Interpreters of their Laws the same Caesar telling us positively That the Discipline of these Druids was first found in Britain I come now to the last Particular That the Romans setled Common-wealths where they conquered that where the Romans conquered they established a form of Commonwealth in such places as they thought most convenient for their Obedience to them and in other places they allowed Tributary Kings which will appear by what follows (d) Livius lib. 61. The Averni of the Gauls were a great People Bituitus was their King and fought two bloody Battles with the Romans the one against Domitius and the other against Fabius he being taken Prisoner and his Son Congentiatus were deprived of the Kingdom by the Senate and the City set free Afterwards Ciltilus Father of (e) Caes Comment l. 7. Vercingetorix although he had by Battle got the principality of all Gaul yet aspiring to be King was slain by the City who had obtained this freedom from the Roman Senate So that it was a free City till Caesar's time and is reckoned so in Pliny's time yet though there were some made so free by the Romans and others following the Example of the Romans had cast off their Princes and Kings yet I cannot with Ramus conclude so universally of the Gauls That every where the Government consisted of an elected or annual Prince and Senate and People that had free suffrages Having thus far given some short hints of the Government of the Britans by comparing them with the manner of the Government of the Gauls and Germans as supposing it might be made out from good Authority that there was a great Agreement in their Forms of Government I come now more directly to prove that where the Romans conquered they established their own Laws and that the unwritten Laws and Customs must be of little force during the Peoples Subjection to the Romans and so by some Hundred of years disuse were like to be so far forgotten as it cannot be said as Chancellor Fortescue doth that during the Britans Romans Saxons Danes and Normans the Realm hath been ruled with the self same Customs First therefore we may consider That the Druids who if they had not the Law-making Power yet were the sole Judges and decided all Controversies being so wholly abolished and we finding no account of the Laws they judged by we may well conclude That the Brittish Laws whatever they were lost their Esteem and Use Where the Romans conquered they â—stablished their Laws Especially when we consider that the Roman Conquest broke and destroyed all the Princely Families especially the lineage of their Kings So that now none had any setled Authority but as he could court the People if he intended to make a party against his Neighbour or oppose the Romans which might be the true reason why Xiphilin (f) Apud Britannâ—s populus magna ex parte Principatum tener Vita Severi saith That with the Britans the People had a great share in the Government which might very well be after the Subversion of their Monarchies and the Commixture of the Roman Colonies with them (g) De moribus vet Gallorum p. 77. The Romans introduced their Language where they
Kindred and drives her through the Streets lashing or beating her as she goes along This as Juvenal saith was Ipsis Marti Venerique timendum So Antinous in Homer threatens Irus with the chopping off his Nose Ears and Privities and Vlysses inflicts that very punishment upon his Goat-herd Melanthius for his Pimping So in Canutus his Law the Wife who took other Passengers aboard her than her Husband is doomed she should have her Nose and Ears cut off Jâ—â—us Anglorum The curious may see more in Selden Tacitus observes another Law Hâ—â—redes successoresque sui cuique liberi nullum testamentum Si liberi non sunt pâ—â—ximus gradus in possâ—ssâ—oâ—e sratres patrui avunculi Idem that every ones Children were their Heirs and Successors and there was no Will to be If there be no Children then the next of kin shall inherit Brethren or Unkles by the Fathers or Mothers This seems to point out Gavil-kind otherwise there had been need of a Testament to dispose of something for younger Children So Selden observes that till our Grandfathers time it was not lawful to dispose of Land-Estates by Will unless it were in some Burroughs that had such priviledges but this hindred not but they might dispose by Deeds Another Law he mentions Suscipere inimicitias seu patris seu propiâ—qui quam amicitias necesse est Idem Nec implacabiles durant luitur enim etiam homicidium certo Armâ—ntorum ac pecorum numero recipitque satisfactionem universa domâ—s Idem which shews the use of those are called Deadly Feuds in the North was that to undertake the enmities rather than the friendships whether of ones Father or Kinsman is more necessary Yet he saith those do not hold on never to be appeased for even Murther is expiated by a certain number of Cattle and the whole Family of the murdered Person receives satisfaction So we find in our English Saxon Laws Murthers were formerly bought off with Head-money which was called Wâ—â—gild though one had killed a Noble-man yea a King himself which as I remember was valued at 60000 Thrimsas or Groats and so a Prince 30000 and others Proportionable Another Law we find thus The Lord imposeth upon his Tenant a certain quantity of Corn or Cattle or Clothes Frumenti modum Deminus aut pecoris aut vestis colâ—no injungit Idem Here we certainly find the usage of Country Farmholders In â—â—imitivo Regni sâ—â—tu pâ—st conquis â—â—nem 〈…〉 〈…〉 argenti 〈◊〉 sed sola 〈◊〉 solvebantur Dialog Scaccar So yet in Scotland a Gentleman of Quality or Lords Estate is not computed by Annual Rent but by so many Bolls of Victual So we find in Gervase of Tilbury that the Kings had payments made them out of their Lands not in Summs of Gold or Silver but only in Victuals or Provisions out of which the King's House was supplied with necessaries for daily use which the King's Officers accounting with the Sheriffs reduced into many payments viz. a Measure of Wheat to make Bread for 100 Men 1 s. the body of a Pasture-fed Beef 1 s. a Ram or Sheep 4 d. for Food for 20 Horses 4 d. Thus far I have thought fit to pick out of Tacitus the manners of the Germans and compare some of them with the English Saxon or Norman Customs to discover their Conformity But since in this account from Tacitus we find no satisfactory testimony as to the power of making Laws but that in general they used to meet in Consultation about the New or Full of the Moon where 2 (r) Alter tertius dies consultatione coâ—â—ntium abâ—umitur Id. 636. or 3 Days were usally spent and the Turba or Common Body of those that met which elsewhere he saith was by hundreds being Armed the Priests commanded silence and had the power of keeping Matters in order and the Princes Authority was there as I have noted besore I say considering these things I must seek otherwhere for clearer discovery before which I will only note Judgments given in their Councils that at such Councils as (s) Liâ—â—â— apud concilium accusare quoque discrimen capitis intendere Tacitus describes Judgments were given upon offences for he saith here Accusations might be presented and Capital Matters tried the distinction of punishment * Distinctio paenarum ex 〈◊〉 proditores tranâ—fuâ—â—â— arâ—oribus suspendunt ignavâ—â— imâ—eâ—â—â— â—â—pore Lips torpâ—â—â— Infames 〈…〉 〈◊〉 insupâ—r crate 〈◊〉 â—acitus de moribus German In some Places of Germany Drowning is yet a Punishment as Platerus gives an Account of a Woman tied in a Sack and cast into the River near Basil who was found alive after being taken up at the usual place half a mile below where she was cast in Observat being according to the Crime Traytors and such as fled to the Enemy were hung upon Trees but the slothful unfit for War and such as are infamous for sluggishness as Lipsius will have it Torpore not Corpore infames were drowned in Morasses an Hurdle being laid upon them and the reason he gives of the divers punishments is that the first which he calls Scelera are to be shown while punished but the other which he calls Flagitia wicked and heinous crimes but particularizeth not what they were should be hid and punished by Drowning then follows Levioribus delictis pro modo poenarum equorum pecorumque numero convicti mulct antur pars mulctae Regi vel Civitati pars ipsi qui vindicatur vel propinquis ejus exolvitur and that for smaller faults the punishment was a Mulct of Horses or Cattle whereof a great part was pay'd to the King or City and part to him that was acquitted or his kindred By which we may note a Sovereignty in the Kings or Free Cities or People to whom these Mulcts were pay'd But I leave these obscurer times and proceed to greater light Therefore for the better clearing of the Authority of the Saxon Kings in giving Laws to their Subjects and the discovering who were the constituent parts of the great Councils I shall first note something of the several Laws made in Germany France Several Laws made in several King loms after the declining of the Reman Empire and the Northern Countries and so proceed to some general observations of our Saxon Laws and lastly to illustrate or expound by a short Glossary the Saxon Titles of Great Men found mentioned in the Councils First as the Ancientest I meet with I will begin with the Gothic Laws Gothick Laws These Goths overrun Europe and did not only cause great Wars and Destructions but made great alterations in the Laws and Kingdoms The Goths according to the custom of other Northern People used not written Laws but their Country Customs till (t) Sub Erudiâ—â— Rege Gothi Legum instituta scriptis bahere câ—â—perunt nam antea mâ—ribus consuetudine tenebantur Isidor Chron. Goth. Aera 504.
Euridicus Euric or Theodoric for by those Names he is called Anno Dom. 466. made them be digested into writing These Levigild Aera 608 amended and they had their fullest Vigor from the Kings Chindaswind and Recaswind and these are used in Spain and that part of France called Gallia Narbonensis anciently Braccata containing Savoy Dauphin Province and Languedoc The next Laws for Antiquity are the Burgundian Gundebald or Gundebaud The Burgundian Laws who was made tributary to Clouis King of France Anno Dom. 501. having setled Burgundy under his Jurisdiction did appoint saith (u) Lib. 2. c 33. Gregory Turonensis milder Laws for the Burgundians lest he might oppress the Romans and Lindenbrogius notes That his Laws agree with the Responses of Papinian though (w) De Impietate Duellici examinis Agobard in his Book to Lewis the Emperor complains of the unjustness of one branch of them in admitting Duel when Proof might otherwise be had However here it appears they were made by his Authority The next are the Laws of the Alemans Baiuvarians and Francks * all which took their beginning from Theoderic the First (x) Spehaan 's Gloss Lex Baioriorum Lex Baiuvariorum Baioriorum Boiorum containing Franconia now Bavaria and Bohemia according to some Son of Clouis the First who founded the French Kingdom Anno 511. having triumphed over the Almains and being converted to Christianity he took the Name of Lewis when he was in Catalonia he called to him wise Men skilled in the Ancient Laws of his Kingdom and he himself indicting he commanded the Laws of those Nations according to every ones Customs to be written adding rescinding and changing them according as Christian Religion required and those which for the ancient Pagan Rites he could not alter himself Childebert the Second begun and Clotharius the Second perfected and Dagobert the great made them better and to every Nation concerned in them Lex Aalmannorum he gave them in writing As to that part which is called the Lex Alamannorum they were amended by Clotharius the Second Son of Chilperic and his Princes viz. Thirty three Bishops Thirty four Dukes Seventy two Earls and the rest of the People as appears by the Title so that this by an Act of the King and great Council and the former by the Kings themselves are recorded to be appointed or made Lex Francorum As to the Law of the Francs not the Salic Law which is of later date we find no more mention of them after they were digested by Theodoric the first till the time of Charles the Great who and his Son published Laws by the Name of Capitularies which Ann. 840. were writ by Ansegisus Abbas Lobiensis and Benedictus Levita so that here is no mention but of the Kings and Emperors sole establishing these Laws Lex Longobardorum The Longobards now Lombards in Italy were a Colony of the Saxons who were removed into Pannonia or Hungary and by Narses General to Justinian about the year 550 were called into Italy to assist the Emperor against Totila King of the Goths whom Narses totally routed in Italy and these Longobards (y) Warnefridus Hist Longobard lib. 4. c. 44. seated themselves there and established a Kingdom and Rotharis their King reduced the Laws which they held only by Use and Memory being mostly such as the Saxons had used into writing and caused the Book of them toâ—be called an Edict which was about 70 years after their setling in Italy the succeeding Princes Grimoald Luitprandus Rachis and Aistulphus and after Charles the Great Latharius and Pipin added and amended them Sir Henry Spelman (z) Glosser tit LL. Longobard saith that betwixt our Laws and those of the Longobards there is a great Agreement in the Laws Rites Words and other Particulars but saith our Ancestors brought out of Germany their Customs not written but according to the custom of the Lacedaemonians and the Ancient Nations of the North retained them in their memories only In the Laws of Henry the First Lex Ripuariorum we find the Ripuarian Laws which were made for those of Luxenburg Gelderland and Cleves not only approved but some of them are word for word in his Laws as Sir Henry Spelman notes As to the Salic Law the Francs a People of Germany The Salick Law passing the Rhine subdued a great part of Gaul and in the third year of Pharamond four of the Nobles of the Nation reviewed all the Originals of Causes according to the Salic Law There are two Prologues to these Laws the first names the four Noblemen that digested them the second saith names the Anno Dom. 798. The Lord Charles the Noble (a) Anno Dom. 798. Dom. Carolus Rex Francorum incliâ—â—s hunc libellum tractatâ—s Legis Salicae seribere ordinavit King of the Francs ordained the writing of that Book of the Salic Law In the Laws of King Henry the First Sir Henry Spelman notes That many things are taken out of the Salic Laws as he instanceth in the 87 and 89 Chapters where the Words are used and Punishments are appointed secundum Legem Salicam according to the Salic Law I shall now set down something in general of our Country Law (b) Glâ—sser Lex Anglorum The English Saxon Laws from Germany Sir Henry Spelman observes That the Laws of the English in Britain seem to take their Original from the German Manners or Customs but he knows not who first introduced them It is known that there came into England upon the Invitation of Vortigern the Jutes or Goths Angela is a Town near Flemshurg a City of Sleswick perhaps our Flamburgh in Yorkâ—â—ire had its Name from some that inhabited that City the Angli or English and the Saxons tho all here obtained the Names of Saxons The Jutes setled in Kent and the Isle of Wight The Saxons in Essex Middlesex and Sussex and so on the Sea Coast to Cornwall and were called the West Saxons The Angli possessed the East and North parts which were called Mercia Those of Kent had their Laws The tripartite Division of the Saxon Laws but after being swallowed up in the West-Saxon Kingdom they were subject to their Laws The Angli used the Mercian Laws till the Danes over-running the Provinces of East-England and of the North Humbers brought in their Customs not differing very much from the Laws they had before from hence sprung the threefold Division of Laws viz. the (c) West-Seaxna Laga Myrcna Laga Dene Laga West-Saxon Laws the Mercian Laws and the Danish Laws The first Laws we have an account of were made by Ethelbert King of Kent Anno 561. and the next by Ina King of the West Saxons who began to Reign Anno 712. and the next by Offa King of the Mercians of which Laws I have spoke before The Danish Laws were such as were not only used in Denmark but in Normandy Danish Laws
properly as Somner renders it with the Advice Counsel Instruction or Exhortation as our modern word Lore imports of Cenred my Father and Heddes my Bishop and Ercenwold my Bishop and with all my Aldermen i. e. Princes Dukes Earls Viceroys Military Officers Senators or Ministers of State as the word then signified those old Wites i. e. principal or chief Noble Men Chieftains Governours or Wisemen of my Kingdom do command and likewise with mycelre somnug Godes Theowena The great Assembly Congregation or Synagogue of Gods Servants i.e. the Clergy (f) Waes 〈◊〉 thaere hae le 〈…〉 be thâ—m stâ—â—hâ—le ures rices meditating or studying the Health of our Souls and upon the Estate or establishing of our Kingdom That ryht AE (g) Not Aew Nuptiâ—e 〈…〉 observes and appears in the 〈…〉 Gefasâ—inedâ— and ryhte cynedomas thurh ure Folc Gefaestenode getrymmed waeron That right Laws and right or just Judgment or Dooms of the King or Office and Dignity of Magistrates and Somner be fastned or established and trimmed perfected or accomplished That no Alderman or under our Jurisdiction or as probably the Compound word may be rendred any Prince under us Theoden signifying a Lord Prince or Ruler or as in the Saxon Chronology a King after them shall turn from break corrupt or change Awendan these ure domas these our Decrees Sentences or Ordinances Then in the First Chapter it follows We beodaeth that ealles Folces AE domas thus synd gehealden We bid or command that all our People shall after hold fast or observe these Laws and Dooms From this Preface the candid Reader may observe First Observations on this Preface That Kings are the gift of God and that Godes Gyffe signifies the same with Dei Gratia they are not the Creature of the People Secondly That Princes for the better Government of their People in the setling of Laws in Church and State consult deliberate and advise with their Bishops Noblemen and eminently Wise men of their Kingdoms whom for their Wisdom they honour with public Imployments in their Dominions Thirdly That after such Consultation Deliberation and Advice the Sovereign establishethâ— and instituteth the Laws And Lastly That such Laws are not to be broken or infringed by the Judges or supremest Officers under the King much less by the Subjects The next (h) Spelman Câ—ncil vol. 1. p. 313. Other Great Councils in the Saxon times of Offa. Council I find is that of Colchyth in the Kingdom of Mercia Anno 793. wherein are said to be Nine Kings present viz. Offa and Egferd his Son and seven more numbred by Sir Henry Spelman Fifteen Bishops and Twenty Dukes and so in another at (i) Id. p. 314. Verulam it is said to be under Offa who called together his Bishops and Optimates but these are only about Religious matters So (k) Id. p. 3â—0 Ad Aâ—â—um 8â—â— Kenulph Kenulph King of Mercia writing to Pope Leo the III. begins Kenulphus Gratia Dei Rex Merciorum cum Episcopis Ducibus omni sub nostra ditione dignitatis gradu So at the Synod at (l) Idem fâ—â— 328. Colichyth 6 Kal. Aug. Ann. Dom. 8â—6 Wulfred the Archbishop being Praesident it is expressed that Caenulf the King of the Mercians was present cum suis Principibus Ducibus Optimatibus So we find a Synodal Council at Clovesho (m) Iâ—em fol. â—32 〈…〉 rum praesidente Beornâ—lpho Rege Merciorum and Wulfrid the Archbishop the other Bishops Abbats and the Nobility of all Dignities treating concerning the profit of Ecclesiastical and Secular Persons and the stability of the Kingdom That which I shall note from these is this That in these Synodal Councils sometimes it is said the King praesided other times the Archbishop but mostly all the Persons that constitute such Councils are the King the Archbishops Bishops Abbats Priors and the Optimates The next Council I find is called (n) Idem pag. 336. Anno 833. Withlasius Concilium Pananglicum held at London 26 May Anno 833. wherein Withlasius King of the Mercians gives several immunities to the Abby of Croyland and more than once he saith volo praecipio and this he saith he doth in the (o) In praesentia Dominorum meorum Egberti Regis West-Saxoniae Aethelwulphi filii ejus coram Pontificibus Proceribus presence of his Lords Egbert King of the West Saxons and Aethelwulph his Son and before the Bishops and the greater Noblemen of all England in the City of (p) Majoribus totius Angliae in Civitate Londonia ubi omnes congregati sumus pro consilio capiendo contra Danicos Piratas litora Angliae assidus infestaâ—tes London where they were all gathered to take Counsel against the Danish Pirates daily infesting the Coast of England Therefore Sir Henry Spelman judgeth this Council properly to be called for secular Affairs and to be such as we now call our Parliaments The Witnesses to it are the said Withlase the Archbishop of Canterbury Celnoth and Eadbald Archbishop of York and after nine more Bishops and three Abbats Egbert and his Son Adelwulph sign and after them Wulhard Athelm and Herenbrith Dukes Swithin the Kings Presbyter and Bosa his Secretary But I shall leave these and come to more direct secular great Councils The Laws of King Alfred Regnare coepit 871. desiit 900. as that of King Alfred who in the first part of his Laws recites the Commandments and Laws by Gods appointment delivered by Moses to the Children of Israel to be observed and some of the New Testament and from that of our Saviour quod vobis fieri non velitis id aliis non faciatis concludes that Jâ—Plgment of Right ought to be given to every one and that on (q) On thissum anum Dome mon maege gethencean that he aeghwelâ—re on riht gedemeth LL. Alured p. 21. this one Sentence That Man must bethink him much that judgeth Right to every one and he adds That after the propagating of the Gospel in England as well as in other places were gathered for making of Laws both for Church and State it is to be supposed he means Holy (r) Haligra Bisceopa eac othera gethungenra Witena Ibid. Bishops and other famous wise Men or Wites Then in the Conclusion of the Laws about Religion and Prefatory to the secular Laws he saith I Alfred King have gathered (s) Thaes togaeder gegaderod awritan het these Sanctions together and caused them to be written many of them being observed by his Ancestors Those that he liked (t) Tha the me ne licodon Ic awearp mid minra witena getheat on othre wifan behead to heoldanne Ib. p. 22. not with the Council of his Wites he rejected and those he liked he bid or commanded to be holden and concludes Ic tha Aelfred West-Seaxna Cyning eallum minum Witun thaes geeowde hi tha cwaethon that him that licode eallum to healdenne which thus I
render I Aelfred King of the West-Saxons showed these to all my Wites i.e. Nobility or wise Men and they said they liked them to be holden In this we may observe That the King speaks in the single Person Observations on these Laws that he collected chose and rejected and as in the same place he adds since it would be rashness to appoint all his own Laws it being uncertain what credit those might find with Posterity which he liked Therefore whatever in the Laws of Ines his Maeges i.e. Kinsman or of Offa King of the Mercians or of Aethelbyrhtes who was the (u) The aerest fulwilâ—â— underfeng on Angel cynne Ibid. first King of the English that was baptised Those that he (w) Tha the me rihtost thuhton Ic tha her on gegaderod thought righteous he those here gathered and the other he rejected passed by or pretermitted forlaete It may be also noted That he calls the Noblemen whose Advice and Assent he used his Wites minum Witum The next material Illustration of the Constituent Parts of the Legislative Power is found in the (x) Idem p. 36. League betwixt Alfrid and Guthrun King of the Danes which though not properly a great Council yet at least much resembled it since it saith This is the League of Peace which Aelfred and Guthrun Kings and all the English Wites and also those which inhabited East England have declared or (y) Geâ—weden habbath mid Athum gefaestnod p. 36. established and with Oath fastned or confirmed For hi sylfe for heora gingran for themselves and for their Off-spring ge for geborene ge for ungeborene born and unborn that care saith he for Gods Mercy or ours The Godes miltse recce oth-the ure In this it is to be noted Observations on this League That Alfred having so beat the Danes that they gave him Hostages either to go out of the Kingdom (z) Jo. Piâ—us qui vixit temp H. 1. or turn Christian This Guthrun otherwise Gurmund with Thirty of his Nobles and almost all of his People were baptized and Alfred received him at the Font as his Son and called him Ethelstan Also the Subjects of Guthrun are called the East-English Nation and the Nobility are called the Wites of the English King Angel cynnes witan And Lastly that the Oath or firm Contract was Obligatory to the present Age and to Posterity if they expected the Mercy or Compassion of God or the King by which we may judge what value they had then for an Oath so that this might be in the nature of a great Council of the King and the Wites convened for the surer Stability of this Peace to take the Oath In the Laws of King Edward the Elder The Laws of Edward the Elder Regn. coepit 900. desiit 924. after the Charge given to the Judges the first Law begins Ic wille I will and so in others in the fourth it is thus expressed That Eadweard the King with his Wites (a) Myd his witan tha hi Eaxanceastre waron Id. p. 39. that were at Exeter strictly enquiring by what means it might be better provided for Peace and Tranquillity which he perceived was less studiously preserved than it ought to be or it should which he had before commanded That no Man (b) That he aer beboden haefde That nan mon othrum rihtes ne wyrne as Lambard translates it ne quent injuria affiâ—iant deny stop or hinder others Rights In the Second and Third Chapter it is eac we cwaedon also we declare pronounce or sentence and in the Seventh Eac ic wille and I will In which Laws we have none mentioned with the King but his Wites and his commanding willing or pronouncing in the Imperative Mood is observeable The next Laws I find are those of King Athelstan The Laws of King Athelstan Regn. coepit 922. desiit 940. Ibid. p. 45. which begin thus Ic Aethelstane cyning mid getheahte Wulshelmes mines Hihbisceopes othra mina bisceopa bebeode eallum minum Gereafum thurh ealle mine rice I Athelstan King with the advice of Wulfelm my High-Bishop and other my Bishops command or bid all my Rieves i. e. Praefects of what degrees soever to pay Tithes c. And this he commands (c) Et that â—â—e gâ—do eaâ— tha Bisâ—eop is â—ecra gewhylera eac mine Ealdormanna Gereafa Ibid. p. 45. his Bishops his Aldermen and Praepositi who were the Judges in the County-Courts to do the same Although in this Preface there be no mention that he used any advice but of the Bishops yet the Conclusion of Twenty six Chapters of Laws is in these words Ealle this waer gesetted on tham miclan Synoth aet Greatanleage on tham waer se Aercebisceop Wulfhelme mid eallum thaem Aethelum mannum Wiotan de Ethelstan Cyning gegadrian Which I render thus into English All these were setled or done in the great Synod or Council at Greatanlea in which was the Archbishop Wulfhelm with all the Noblemen Somner Verb. Ethelum mannum must properly signify those of the highest Quality such as were Princes of the Blood and Dukes because it is distinct from VViotan or the Wites by which usually Earls and those of lower Nobility and great Officers were understood which Athelstan the King gathered In these Laws We cwaedon is used which I suppose is something more than Somner understands by his Cuide a Saying Speech or Sentence and properly is we will But the absoluteness of the King appears most in the Twenty sixth Chapter wherein it is expressed (d) Gif minra Gerefena gehwylce this don nylle c. Gylde min oferhyrnysse Ic finde otherne we wille se Bisceope amanige tha offer oferhyrnyss aet tham Gerefan the on his folgothe sy P. 53. That if any of his Graeves do not perform these Commands or be more remiss in the Execution of those he hath enjoined he shall be punished for his excess of Contumacy and the Bishop shall punish the Contumacy of the Graeve or Praepositus and his Sequel the Punishment for the first fault shall be five Pounds and the other fault his were that is the value of his Head and the third the loss of all his Goods and the King's Friendship ura ealra Freondscipes King Edmund was the next of our Kings King Edward's Laws p. 57. Regn. coepit 940. desiit 948. whose Laws are transmitted to us and they begin thus Eadmund cyning gesommnade mycelne synoth to Lundenbyrig on tha Halgan Easterlicon tid Edmund the King assembled a great Synod or Council to London on the Holy Eastertide and the persons summoned are stiled aegther ge Godcundra hada ge worulcundra both Gods-kind and World-kind i. e. Clergy and Laicks After Six Chapters of Laws the King signifies to all old and young That he had (e) That Ic â—meade mid minra Witena getheaht gegodra hada gelaewedra Id. p. 58. considered with his Wites Consultation being
its Mitigation So Matt. Paris saith Episcopatus Abbatias omnes quae Baronias tenebant eatenus ab omni servitute sâ—â—ulari libertatem habuerant sub servitute statuit militarâ— and according to the Rules of the Feudal Law which as it was the Law for the most part in Normandy as to Possession and Tenure so was it in England until by the Indulgence of Usurpers as well as of lawful Sovereigns to the great Men and of them to their Tenents and Followers their Tenures became more easie and were changed into Inheritances both Free and Bond. So by Compact or Agreement betwixt kind and favourable as well as indigent Lords and serviceable Tenents as also by the Introduction of the use of the Canon or Imperial Law the Rigor of the Feudal Law was abated and received several Alterations and Amendments by flux of Time and especially by Acts of great Councils or Parliaments and the Necessities or Indulgence of Princes So that instead of more rigid Tenures the soft ones of Fee-simple in all its kinds by Deed or Feofment or inheritable and qualified Copyholds were introduced As to the second Particular concerning William the Conqueror's setling Laws for the equal Government Of the Conqueror's Laws both of the Normans and English I shall first give an account out of (f) Parte posteriori fol. 346. Hoveden what these were and how they were procured He saith That the Danish Laws being understood by the Conqueror to be used in Norfolk Suffolk and Cambridg-shire others (g) Chron. Liâ—â—f See for the Conqueror's Charter and Laws Dr. Brady fol. 17 252 254 258 298 249. add the Deirans and the Isles concerning Forfeitures he preferred them before the other Laws of the Kingdom and commanded they should be observed and gives the reason for it that his and the Ancestors of most of the Barons of Normandy were come from Norway therefore the Laws of the Danes ought to be preferred before those of the Britains viz. of the English and Picts Which saith my (h) Quo audito mox universi compatriota qui legâ—s edixerant tristâ—s essecâ—i unanimiter deprecati sunt quatenus permitâ—eret lâ—ges sibi prâ—prias consueâ—udines â—â—iqua halere Id. num 10. Hoveden fol. 347 num 1. Author being heard by the great Men of the Country who had as hereafter I shall show been appointed to revize the Laws they all were very sorrowful and unanimously intreated him that he would permit them to have the Laws proper to themselves and their ancient Customs under which their Fathers lived and they were born and bred under for that it would be very hard for them to receive unknown Laws and to judge of those things they understood not See Brady's Answer to Argum. Aâ—tiâ—oâ—â— p. 298 299. But finding the King unwilling to be drawn to consent they follow on their suit praying for the Soul of King Edward who bequeathed him his Crown and Kingdom whose Laws they were that they might not have the Laws of strange Nations imposed on them but he would grant them the Continuance of their Countries Laws To which intreaty of his Barons after Counsel taken my Author saith I cannot conceive but here were many of the Saxon Nobility and Men of best Account otherwise they could not call them the Laws their Fathers had lived under and the Normans could not then know much of our Laws or Speech but this was before he had subdued all fully he acquiesced and from that day the Laws of King Edward were of great Authority and Esteem throughout England and were confirmed and observed before other Laws of the Country Our Author further notes That these were not the proper Laws of King Edward but of Edgar his Grandfather which had been little observed for 68 years as in one place and 48 years in another he saith by reason of the Danish Invasions c. and being revived repaired and confirmed by King Edward were called his Laws The Account the Chronicle (i) Anglos Nobiles Sapientes suaâ—â—ge eruditos Id. fol. 348. Spelm. Concil tom 1. fol. 619. of Lichfield gives is this That King William in the fourth year of his Reign at London by the Counsel of his Barons made to be summoned through all the Counties of England all the Noble Wisemen and such as were skilled in their Law that he might hear their Laws and Customs and then gives an account how he approved of the Danish Laws used in Norfolk c. Concerning the Kindness the Conqueror pretended in his first four Years and his Rigour after see at large Dr. Brady in his Answer to the Argumentum Antinormanicum especially p. 260. and 299. But afterwards at the Intreaty of the Community of the English he yielded to grant them King Edward's Laws Before I proceed any further I cannot but note that what Hoveden calls Compatriotae here is called Communitas Anglorum and in both of them afterwards it is called Concilio Baronum by which we may know who these Compatriotae and this Communitas were viz. the Barons or great Men. Our Author proceeds That by the King's Precept out of every County of England Twelve Wisemen were chosen who were enjoyned an Oath before the King that according to their utmost they should discover the establishments of their Laws and Customs (k) Vt quoad possent recto tramite incedentes nec ad dextram nec ad sinistram divertentes nihil addentes nihil praevarieando mutantes Omnia quae praedicti â—urati dixerunt going in a strait Path neither declining to the right or left Hand omitting adding or prevaricating nothing and Aldred Archbishop of York who crowned King William and Hugh Bishop of London by the King's command writ the Laws which the said sworn Persons did produce But it is to be noted that this Chronicle of Lichfield is of a later Date than other Writers and the Laws in it differ from those in Ingulphus The next Testimony is that of (l) Circa sinem Hist fol. 519. num 36. Leges aquiâ—â—mi Regis Edwardi quas Dom. meus inclitus Rex W. authenticas esse perpetuas c. proclamarat Ingulphus who tells us That he brought from London to his Monastery i.e. Croyland the Laws of the most just King Edward which his Lord the famous King VVilliam willed to be Authentic and Perpetual and had proclaimed under the severest Penalties to be inviolably kept through the whole Kingdom of England and commended them to his Justiciaries in the same Language they were set forth in c. of which I shall say something below The Author of Jus Anglorum ab Antiquo and the Argumentum Anti-Normanicum and Mr. Petyt in his Rights of the Commons asserted have writ largely to prove That the Conqueror made little Innovation in our Laws and on the contrary the profoundly learned (m) Answer to Petyt p. 14. Great Officers Normans Doctor Brady hath from undeniable Records
proved that he brought in the Feudal Law of Tenures and much of the Norman Laws and that in his time and for an Hundred years after the Justiciaries or Chief Justices the Chancellors Lawyers Ministerial Officers and under-Judges Earls Sheriffs Bailiffs Hundredaries c. were all Normans likewise the Military Men and Lords of Mannors mostly were such and in his Preface to the Norman History and his Answers to the forementioned Authors every where clears it and proves That though the Conqueror See for proof of the whole Eadmer Hist Novel fol. 6. num 10 20 30. Ingulph fol. 512. a. num 50. That these Great Barons as Tenents in Capite had power to make Laws and Constitutions to bind their Sub-Feudataries is apparent by what Malmsbury de 〈◊〉 Reg. lib. 3. saith That the Laws of W. Fitz-Ozborn Earl of Hereford remained still in force That no Soldier for any Offence should pay above 7 s. The Conqueror's Liberality to the Normans in the first beginning of his Reign promised fair Matters yet he observed no more of those Laws than served for his own interest Yet he also saith That where any Relaxation of the Rigor of the Feudal Laws was the benefit principally accrued to the Norman English who indeed were as active as could be expected to obtain ease to themselves and claim the Advantage of all the favourable Laws had been used in the Saxon times but they themselves were great Oppressors of those under them These Matters therefore being so copiously discoursed of by the learned Doctor I shall pass that whole matter by and come to the third Particular Sir Roger Twysden notes in the Conquerors Policy and so directly speak to the Constitutions of his Great Councils and his Sovereignty in making or confirming Laws As to the third Particular First it is clear that the Conqueror divided the Land among his great Men the Officers and Soldiers for proof of which we need no more but the Testimony of Gervase of (n) Black Book of the Exchequer Post regni conquisitionem post justam Rebellium subversionem facta est inquisitio diligens qui fuerint qui contra Regem in bello dimicantes per fugam se salvaverint hiis omnibus haeredibus eorum qui in bello occubuerunt spes omnis c. praeclusa Tilbury who saith That after the Conquest of the Kingdom and just subversion of the Rebels when the King himself and his great Men had viewed and surveyed their new Acquists there was a strict enquiry made who there were that fighting against the King had saved themselves by flight From these and the Heirs of such as were slain in Fight all hopes of possessing either Lands or Rents were cut off But such as were called and urged to fight against King William and did not if in Process of time they could obtain the favour of their Lords and Masters by an humble Obedience and Obsequiousness they might possess something in their own Persons without hopes of Succession their Children only enjoying it afterwards at the will of their Lords to whom when they became odious they were every where forced from their Possessions Because some are prejudiced against the judicious Doctor Brady for asserting the Conquerours changes that he made I hope they will give ear to what the learned Selden affirms thus * Ex quo cis Normannorum adventum praeter ipsum Regem non fuit in Anglia is qui Allodii ut lequantur Jure sundum possederit cum scilicet aliis ad unum omnes siduciarios proâ—e dixeris Dominos superiorem investiâ—urae Anctâ—rem interpesita side perpetuo agnâ—scâ—ntes Lib. 2. Jan. Ang. That some while since the coming in of the Normans there was not in England except the King himself any one who held Land in right of Freehold as they term it since in truth one may call all others to a Man only Lords in trust of what they had as those who by swearing Fealty and doing Homage did perpetually own and acknowledge a Superior Lord of whom they held and by whom they were invested in their Estates So he Now this Fealty and Homage is now held no kind of Slavery but then it was as I have elsewhere noted Let us hear what the same Mr. Selden a little below saith That the Conqueror did not totally change the Constitution of the Laws Probe tametsi dixeris eversum secundum quod disputant Jurisconsulti Anglicum Imperium Id. Gervas Tilâ— c. 23. Oblatis vomeribus in signum desicientis Agriculturae although we may truly say according to what Lawyers dispute That the English Empire and Government was overthrown by him Thus far that learned Man Let us now return to the Exchequer-book where we find That when a common miserable Complaint of the Natives came to the King that they thus exposed and spoiled of all things should be compelled to pass into other Countries At length after Consultation upon these things it was decreed That what they could by their deserts and lawful Bargain obtain from their Lords The English compound with their Lords they should hold by unviolable Right but should not claim any thing from the time the Nation was conquered under the Title of Succession or Descent Therefore he saith they were obliged by studied Compliance and Obedience to purchase their Lords Favour It is true that in the 55th Law of (o) LL. Gulielm primi Edit Twysden p. 170. William the Conqueror it is said That he wills and firmly commands and grants that all Freemen liberi Homines of the whole Monarchy of his Kingdom may have and hold their Lands and Possessions well and in (p) In pace libere ab omni exactione injusâ—a ab omni tallagio Peace free from all unjust Exactions and Tallage that is extraordinary Impositions and Taxes so as nothing be exacted or taken unless their free services which of Right they ought and are bound to perform to us and as it was appointed to them and given and granted to them by us as a perpetual Right of Inheritance by the Common Council of the whole Kingdom In which we may observe The English have little Benefit by his Relaxation of the Feudal Law that this was no Magna Charta made to English Men these liberi Homines were such as held in Military Service as appears by the 58th Law following and those then were Normans and the Relaxations to them were that these Fees were made Hereditary which was not frequent among Feudataries in those days and the Complaints that were made after and the amendments that Hen. 1. promised were mostly about the hard Taxes and Exactions Therefore I may conclude That the ordinary English tho' many of them might live upon the Lands they and their Ancestors had enjoyed yet their Tenure was changed and they were but Vassals to other Lords 'till by little and little by the ways I have mentioned under the first Heads they
a se primo essent ordinata Eadmer tells us That when the Archbishop of Canterbury presided in a general Council of the Bishops the King permitted him not to appoint or forbid any thing but such things as were agreeable to his will and by himself were first ordained Also he saith in all his Dominions he would allow no Bishop of Rome to be accounted Apostolic but whom he commanded to be received nor any to receive his Bulls or Breves unless they were first shown to him I have in the beginning of this Chapter spoken something of the Mutations that William the Conqueror made in the Constitution of the Government of England concerning which I shall only note That the Conqueror took all the care that a great Commander and Conqueror of a great Nation could do for securing his Conqests (p) Pictav fol. 197. C. Ingulph 512. a lin 7. What the Conqueror did to secure his Conquest by building Fortresses and Castles within the City of London and placing Norman Garrisons and French Governours or Castellanes in the Castles in the Country and giving them great Estates and carrying the chief of the English Nobility with him as Hostages into Normandy and imposed his Laws as Pictavensis relates (q) Id. fol. 2â—6 a. 207 c. 2â—8 a. b. and though he who was Chaplain to the Conqueror speak of the Conqueror's smooth behaviour to the English ordering things as he saith prudently justly and mildly some to the Profit and Dignity of the City some to the advantage of the whole Nation and other some to the benefit of the Churches of the Land and whatever Laws he dictated he established with excellent reason and adds That no French-man (r) Nulli tamen Gallo datum est quod Anglo â—uiquam injuste fuecit ablatum Idem fol. 208. c. had any thing given him which was unjustly taken from any Englishman which last Ordericus Vitalis omits though in other things he follows Pictavensis exactly yet Pictavensis writing but to the Fourth of his Reign Anno 1070. as is noted by Ordericus we must look upon them as incompetent Witnesses of the severity the Conqueror after used when he had secured his Conquest So that what is urged by some of the Conqueror's lenity and his little change of Laws and Government is to be understood of those times while he was unsafe in his Conquests and doth not so interfere as they would make the World believe How he comported himself after he had secured his Conquest with the assertion of those who from credible Authors speak of his treating the English as a Conquered People For Pictavensis (s) Jure Belli possedit fol. 206. a. saith that he possessed the Country by the rights of War Ordericus (t) Adjutoribus suis inclytas Angliae Regiones distribuit ex insimis Normannorum Clientibus Tribunos Centuriones ditissimos erexit Orderic Vit. 251. Vitalis saith That having circumvented the two great Earls of Mercia and slain Edwin and imprisoned Morcas then he began to shew himself and gave the best Counties of England to his Assistants and of the lowest of the Norman Clients or very mean People he made very rich Colonels and Captains as he particularizes there and in another (u) Fundos eorum cum omnibus divitiis obtinâ—imus Id. fol. 853. place That having overthrown by Force and Arms the English Saxons they obtained their Lands and all their Riches Malmsbury (w) Malmsb. fol. 52. a. num 40. Vix aliquis Princeps de progenie Anglorum esset in Anglia sed omnes ad servitutem moerorem redacti essent ita ut Anglieum vocari opprobrjum saith That there was no Englishman Duke or Bishop or Abbat but Strangers do gnaw the Riches and very Bowels of England So (x) Hen. Hunt fol. 210 b. num 10. About the continuing the English Saxons but changing their Tenures Services c. Hen. of Huntingdon saith there was scarce any Prince of the Progenie of the English but all are reduced to Servitude and Sorrow so that it is a disgrace to be called an Englishman and Gervase of Canterbury saith That he used both Ecclesiastick and Secular Rights or Laws as he pleased tam Ecclesiastica Jura quam secularia sibi usurpavit As to King William's displacing of the Saxons I find in the Transcript of Doomsday-Book that I have for Yorkshire that very many enjoyed the same Lands they did in Edward the Confessors time but I remember no where that I do not find them hold of some Norman Lords which is agreeable to what Dr. Brady writes but I refer the Discourse of those to my Antiquities of Yorkshire if God give me life and ability to publish them As to the Conqueror's changing the holding of Lands here to the (y) Spelman Gloss Feodam Feudal Tenure used in Normandy begun by the Germans Longobards Francks and others and of which something seems to be hinted in the English Saxon Laws all Authors do conclude that the Conqueror brought the exacter use at least of them into England and divided the whole Land into several Knights-fees whereof there are reckoned 700 Tenants in Capite besides Bishops Abbats Priors and great Church-men and the Laws of King Edward that the Conqueror permitted to be used were either most of them Penal Laws from which he got profit or such as are properly his own and were efficacious for the preservation of the Peace and establishment of Government as the 52 55 56 58 59 64. whereof the 55 58 and 59. are Feudal How William the Conqueror brought in his other Norman Laws Dr. Brady in his Preface to the Norman Story hath at large discoursed so that in Justice I must refer the Curious Reader to his elaborate work and to Mr. Selden in his Second Book of his Janus Anglorum Of the Great Councils in William the Second's time IN the Reign of William Rufus we find few Great Councils So that Anselm Archbishop of Canterbury complains (a) Eadmer Hist Nov. lib. 1. fol. 24. lin 8. to him when he was preparing to pass into Normandy that since he was King there had been no General Council of the Bishops nor of several years before so that Christianity was much decayed The first great Council I have met with is that of Winchester (b) Idem fol. 20. num 30. Anno D. 1093. 5 W. Rusi The Contest betwixt William the Second and Anselm This Council is only thus expressed Rex adunato Wintoniae conventu Nobilium without specifying either Ecclesiasticks or Laicks In this Council the King declared Anselm Archbishop and he did Homage to him (c) Idem p. 26. num 10.6 Gul. 2. This Anselm sought leave of the King that he might go to Rome to receive the Pall from Pope Vrban whom the King did not own for Pope but Clement This and some other Matters occasioned sharp words and unkindness from the King to Anselm the King absolutely denying
the King (e) Remisit libere concessit integre promisiâ— remitted freely granted and fully promised the Investiture by Ring and Staff and freely left the Election of the Prelates to their respective Churches By which we may not only note who made up this Great Council but that the enacting part was solely the King's Grant The Charter (f) Lib. rub Scaccar Twysden LL. Id. 1. p. 175. of Henry the First was made before the Eighteenth of his Reign in which he saith because his Kingdom was oppressed with unjust Exactions in (g) Ego respectu Dei amore quem ergâ— vos habeo Matt. Paris fol. 292. num 10. See the Explanation of this Charter Brady's Argum. fol. 265. and Selden's Epinomis respect of God and the Love which he hath to his Subjects he makes the Holy Church free and so proceeds in the rest of his Laws by way of single Grant and Prohibition Anno 1127. 28 H. 1. (h) Rex auditis Concilii gestis consensum praebuit Authoritate Regia potestate concessit consirmavit statuta Concilii Continuat Florent Wigorn p. 503. W. Archbishop of Canterbury gathered a General Council of all the Bishops Abbats and Religious Persons and at the close of the Acts it is said That the King being at London having heard the Acts of the Council gave his consent to them and by his Kingly Authority and Power granted and confirmed the Statutes of the Council By which we may see that even the Constitutions of Ecclesiastical Councils required the Sovereign's Confirmation Of the Great Councils in King Stephen's time THat he was an Usurper is notoriously known His first great Council is only said by Malmsbury to be gathered at London (a) Coacto magno Episcoporum Procerum Abbatum concilio Fol. 92. b. num 4. consisting of Bishops Nobles and Abbats in which many Ecclesiastical and Secular Matters were ordained Matthew Paris saith That he having gathered at London the Magnates Regni he promised the bettering of the Laws according to the will (b) Juxta voluntatem arbiâ—rium singulorum Fol. 62. num 40. and pleasure of all The reason of which compliance of this King was for that he was set up and Crowned by a Faction there being reckoned by Authors none of Eminence present at his Coronation but the Archbishop of Canterbury the Bishop of Winchester and Roger of Salisbury his Brother no Abbats and but few of the Nobility they having all sworn (c) Malmsb. Hist Novel fol. 101. b. num 16. Fealty to Maud the Empress in Henry the first 's life time though he in the following Charter saith That he was elected King Assensu Cleri Populi But to proceed King Stephen primo Regni at Oxford Anno 1136. grants the Liberties to his Subjects by way of Charter (d) Ego Stephanus Dei gratia assensu Cleri c. omnes exactiones meschenningas injustitias sive per Vicecomites vel per alios quoslibet male inductas funditus extirpo bonas leges antiquas justas consuetudines c. observabo observari praecipio constituo Malmsb. Hist Novel p. 101. b. num 20. that the Church be free and he confirms due Reverence to it and so proceeds to recite many particular Priviledges to it and as to his Lay-Subjects he doth utterly root out all exactions misdeeds and injustices evilly brought in by Sheriffs or any others That he will observe himself and appoints and constitutes to be observed the good Laws and antient and just Customs in Hundreds Pleas or other matters This was by Charter and my Author saith he disdains to set to the names of the Witnesses which were many because he so lightly or foolishly changed all But Richard Prior of Hexham closes the Charter thus (e) Ric. Prior Hâ—gustald col 314. num 6. Anno 1136. 1 Regni The King grants his Charter with a Salvo Haec omnia concedo confirmo salva Regia justa Dignitate mea By which Conclusion it is apparent the King reserved to himself a Latitude to use his Prerogative and some are of opinion Kings cannot by any Concessions divest themselves of that but I want Mittans to handle such noli me tangere's of the Crown What I have further to add concerning this Charter is That the Prior of Hexham makes it granted after the Popes Confirmation (f) Id. 313. num 30. Note That all Authors think strange thâ— Pope should â—â—â—firm and so countenance King Stephen an Usurper of him in which if ever that See consulted its private Interest it was then and in my poor Opinion nothing hath more discovered the Personal failures of Popes than such countenancing of Usurpers my Author I say makes it to be passed at his Parliament at Oxford where he saith he celebrated a general Council Episcopos Proceres sui Regni regali edicto in unum convenire praecepit The Witnesses this Author sets down makes it (g) Id. 315. num 10. appear there were none besides the Clergy and Barons present for after fourteen Bishops named the rest of the Witnesses are Roger the Chancellor Henry Nephew of the King Robert Earl of Gloucester William Earl Warren Ralph Earl of Chester Roger Earl of Warwick Rob. de Vere Miles de Gloucester Rob. de Olli Briano Filio Comitis Constab Robert de Martel Hugh Bigot Humfrid de Bohun Simon de Bellocampo Dapif Rob. de Ferrers William Petrus Simon de Silbanâ—et William de Albania Hugh de Sancto Claro Ilbert de Lecsio All which were very great Barons the last of them being Heir to 150 Knights Fees at least his Grandfather had so many So that we cannot judge the Commons by any Representation were present The other great Councils of this King are to be found in the Authors (h) Flor Wigorn. Anno 1138. fol. 668. cited in the Margent That at Northampton had Turstin Archbishop of York president and the rest enumerated are Episcopi Abbates Comites Barones Nobiles quique per Angliam That of the sixteenth (i) Hen. Hunt Anno 1151. fol. 226. mentions only the Archbishop of Canterbury Eustachius the King's Son Angliae Proceres in the (k) Chron. Norm Anno 1152. Agreement 17 Regni the Conventus was Episcoporum Comitum aliorum Optimatum and the last I find Anno 1154. ultimo Regni e is cum Episcopis Optimatibus (l) Jo. Brompton col 1000. num 50. never any Commons represented being to be met with Of the Great Council in King Henry the Second's Reign THE first considerable Act of State that I find Henry the Second did was Anno 1154. 1 Reg. That he gathered his General Council to London in Lent (a) Spelman Concil Tom. 2. fol. 54. Congregavit Concilium generale renovavit pacem leges consuetudines per Angliam ab antiquis temporibus constitutas he renewed Peace and the Laws and Customs of antient
great Council was adjourned to meet at Northampton where the King of Scots made his demands of the Counties of Northumberland Cumberland Westmorland and Lancashire Id. Hoved. and my Author saith That the King having taken advice with the Bishops Earls and Barons no orders of Men more are mentioned he gave answer to the King of Scots but it seems he had no mind to part with those Frontier Counties but by Charter in the presence of his Mother Alienor the Archbishop and other Bishops and many others as well Clerks as Laics of either Kingdom he granted the King and his Heirs certain Allowances Safe-Conduct c. when he should come to the King's Court upon Summons The most remarkable things in these Councils to be considered Remarks upon these Great Councils are the quick dispatch of Business in them the small Numbers they consisted of and that there appears no Footstep of any Commoners by Representation and by the Words Rex praecepit constituit c. it shows that the King had solely the Authoritative Power of passing the Consultations into binding Laws even where Mony was to be levied of the Subject and disseisure was to be made which was then practised but by an happy ease to the Subject is since by King Edward the First abrogated for which as we ought all to be thankful so to make use of this great Liberty that we may not abuse it to the damage of the Crown that bestowed the Largess and not so much boast our selves that we are freemen as to remember gratefully whence our Freedom came Of the Great Councils in King John's time THE first great Council that I have met with in King John's time is that held at Oxford (a) Matt. Paris fol. 176. num 30. ult edit Anno Dom. 1204. 6 Regni the Morrow after the Circumcision where as Matthew Paris saith convenerunt ad colloquium Rex Magnates and there were granted to the King two Marks and an half out of every Knights Fee Yet though all the Members are included under the name of Magnates yet my Author (b) Nec etiam Episcopi et Abbates sive Ecclesiasticae personae sine promissione recesserunt Idem saith that neither the Bishops Abbats or Ecclesiastic Persons passed away without a promise of supply I suppose So that I conceive the Clergy undertook for their Order to contribute something apart as it hath been since in use for the Convocation to give a distinct Tax imposed by themselves on the Clergy some evident Footsteps of which usage we find in that Council of (c) Hoveden fol. 282. b. num 10. Praecepit Rex Archiepiscopis Episcopis ut Siâ—illa sua apponeâ—enâ— cum cateri proni essent ad id saeciendum Archiepise Cant. juravit quod nunquam scripto illi apponeret nec leges consirmaret Clarendon wherein Thomas Becket Archbishop of Canterbury was required by the King that he and the Bishops should set to their Seals in Confirmation of the antient Laws the King enjoined to be observed which when the Bishops were willing to do the Archbishop swore he would never do The Members of the Great Council and the absoluteness of King John in imposing Taxes is fully discovered in what Matthew (d) Fol. 180. num 30. Paris writes that Anno 1207. 9 Regni the King kept his Christmass at Winchester the Magnates Regni being present and on the Purification of the Virgin Mary he took through England the Thirteenth of Moveables The King imposeth Taxes and other things both of the Laics and Ecclesiastics all murmuring (e) Cunctis murmurantibus sed contradicere non audentibus A Great Council held in the King's absence but none daring to contradict him Anno 1213. 15 Joh. the King intending an expedition into Normandy left Geofrey Fitz-Peter and the Bishop of Winchester Commissioners in his absence who at St. Albans held a Council with the Archbishop the Bishops and the Magnates Regni where on the part of the King it was firmly (f) Mat. Paris fol. 201. num 30. Ex parte Regis firmiter est praeceptum sicut vitam membra sua diligunt ne a quoquam aliquid violenter extorqueant vel aliâ—ui injuriam irrogare praesumant enjoyned that the Laws of King Henry his Grandfather should be kept by all in his Kingdom and all evil Laws should be totally disannulled and all Sheriffs Foresters and other Ministers of the King under the severest Penalties of Life and Limb should not violently extort any thing from any Person or presume to offer Injury to any In which we may observe the Conventions of great Councils in the Kings absence and that the Laws have force only by the King's Authority as appears by the expressions ex parte Regis firmiter est praeceptum In the same Year the Eighth of the Calends of September Stephen A Convention or Conspiracy against the King Archbishop of Canterbury with the Bishops Abbats Priors Deans and Barons of the Kingdom met at London at St. Pauls in a Conspiracy against King John and as (g) Fol. 201. num 50 60. Matthew Paris saith the Fame was that the Archbishop calling to himself a Club of the Nobles told them secretly that they had heard how he had absolved the King and compelled him to swear that he should destroy evil Laws and should recal the good Laws viz those of King Edward and make them to be observed in his Kingdom and that now there was found a Charter of King Henry the First by which if they would they might recal to the Pristine State their long-lost Liberties which Charter he produced and it was that made to Hugh de Bocland his Justiciary and so they made a Confederacy among themselves and broke up their Assembly We may note Observations on the foregoing Councils that this Convention at London was a Conspiracy yet it had the Face of a great Council as to the constituent Parts of it and no Representatives of the People and they grounded their Confederacy upon the regaining their lost Liberties and had recourse to King Edward's Laws and their Confirmation by King Henry the First So that even such Rebels owned Kings the Fountains Authors and Establishers of their Liberties as well knowing they were born Subjects and whatever was remitted of the absolute Power of Princes was by their own Grants though they might be induced to those Concessions from several causes but whenever threats force or other necessities for supplies or such like extorted these they were very ill kept Anno 1215. 17 Joh. the Barons pressing the King to confirm the Charter of Priviledges the Archbishop with his Associates read over each Chapter But the King understanding the Tenor of them with indignation and scorn said (h) Quare cum istis iniquis exactionibus Barones non postulant Regnum Nunquam tales illis concederet libertates unde ipse efficeretur servus Matt. Paris fol. 213. num
60. Why with these unjust exactions do not the Barons require the Kingdom and swore he would never grant such Liberties whereby he should be made a Servant However he was afterwards at Runing-mede compelled to sign the Charter there being with him but eight or nine Bishops four Earls and some twelve Barons as Matthew Paris numbers them but he saith as to those present on the behalf of the Barons the Company was innumerable as being tota Angliae Nobilitas in unum collecta Therefore the King grants them the Liberties by way of Charter (i) Idem fol. 215. num 13. per consilium venerabilium Patrum nostrorum c. and so recounts those that were present with him not mentioning any of those that were against him as I remember This was the Charter which Henry the third (k) Idem fol 216. num 30. confirmed and is called Magna Charta the principal matter in it which relates to my purpose was that he made some alteration in the manner of Summoning Members to the Great Council viz. The alteration of the Summoning the Members to the Great Council Note In this Charter the King grants he will raise no Money on the Subject without Consent but in three Cases to redeem his Body make his eldest Son Knight and marry his eldest Daughter And the like Power others â— had over their Liberi homines That the Archbishop Bishops Abbats Earls and greater Barons of the Kingdom should be summoned by special Writs and that he would cause to be summoned by the Sheriffs and his Bailiffs those which held in Capite of him to a certain day by general Summons So that it is apparent that the Great Councils heretofore had only consisted of such Earls and great Barons and Tenents in Capite as the King by special Writ pleased to Summon and this new way brought in a greater number of the Tenents in Capite but still here were no Representatives of the Commons In the Charta de Foresta the King saith Dei intuitu c. ad emendationem Regni nostri spontanea bona voluntate nostra dedimus concessimus pro nobis haeredibus nostris has libertates subscriptas The King was sore vexed He repents his granting the Charter that these Liberties had been extorted from him and sent to Pope (m) Idem 224. Innocent who also absolved him from the Obligation upon the ground that he had given (n) Id. 227. num 20. The Pope absolves him the Kingdom to St. Peter and the Church of Rome and so could make no such Charter without his leave and after he Excommunicated the Rebellious Barons In this Charter as in all the rest of the Charters of Liberties we (o) Animad on Jan. Augl fol. 167. The King 's Grant by Charter a good Law then may observe that the Petitions of the People were drawn into the form of a Charter and passed under the Kings Seal as his meer voluntary free Grants and Concessions without any Votes Suffrages or Authority of the People So Matt. Paris saith of this Charter that when King John saw the Barons too powerful for him (p) Fol. 255. num 30 50. gratanter eis concederet Leges Libertates quas petebant he willingly granted the Laws and Liberties which they asked or petitioned for So in the Charter it self (q) Ibid. fol. 256. lin 18. Concessimus etiam omnibus liberis hominibus nostri Regni Angliae pro nobis haeredibus nostris in perpetuum omnes libertates subscriptas habendas tenendas eis haeredibus suis de nobis haeredibus nostris that is And we have also granted to all our Free-men of the Kingdom of England for us and our Heirs for ever By Freemen here to be understood the Tenents in Capite all the under-written Liberties to have and to hold to them and their Heirs of us and our Heirs c. CHAP. XXVI Of the Great Councils and Parliaments during the Reign of King Henry the Third to the end of the Reign of King Edward the Third THE first great Council I find in this Kings Reign was on the Eighth of the Octaves of (a) Matt. Paris fol. 266. num 60. Epiphany Anno 1223. 7 H. 3. The King having kept his Christmas at Oxford came to London to have a Colloquium with his Barons and the Archbishop and other Magnates pressed the King to confirm the Liberties and Free customs for which Wars had been moved against his Father and which he had confirmed by Oath upon the recess of Lewis of France to which also he said the (b) Juravit tota Nobilitas cum eo quod libertates praescriptas omnes observarent omnibus traderent observandas Ibid. whole Nobility had sworn that they would observe them and deliver them to all others to observe To which William Briwere one of the Kings Council answering for the King said The Liberties they desired being violently extorted from the King they ought not of right to be observed From whence we may observe Liberties violently extorted from the King not binding that whatever claims were made for Liberties still they were grounded on the Monarchâ— Concessions and such as were by any violence wrested from the Kings were not reputed binding to the Crown In the Octaves of the Holy Trinity the Eighth of Henry the Third there met at a Colloquium at Northampton the King with (c) Rex cum Archiepiscopis Episcopis Comitibus Baronibus aliis multis de Regni negotiis tractaturus Idem fol. 269. num 60. 270. the Archbishops Bishops Earls and Barons and many other to treat of the Affairs of the Kingdom By these alii multi the Tenents in Capite are to be understood which more numerously appeared since King John's Charter This Great Council was intended for the relief of Poicton but Falcacius de Brent having seiz'd on Bedford Castle and taken Henry de Berybroke one of the Kings Itinerant Justices obliged the King to prosecute him At this (d) Idem fol. 271. num 20. Council the Prelates and Laics gave the King for his great Labours and Expences 2 s. upon every Plough The King grants the Tenents in Capite Scutage upon their Tenents and the King granted to the Magnates 2 m. out of every Knights Fee This was to be levied by the Magnates such as held of the King in Capite of their Tenents to reimburse them what they had expended in aiding the King And so the Council broke up But the King 9 Regni Anno 1225. (e) Idem fol. 272. num 20. keeping his Court at Christmas at Westminster praesentibus Clero Populo cum Magnatibus Regionis After the Solemnity was passed Hubert de Burgo the Kings Justiciary on the part of the King proposed to the Archbishops Et alâ—â—t universis Bishops Earls Barons and all the Vniverse that is the Tenent in Capite the damages and
suae â—re proprio specialiter sibi Regno suo salvavit excepit That the King in the Declaration of the said Sentence did by his own Mouth specially save and except to himself and his Kingdom all the Liberties ancient Customs of his Kingdom and Usages Dignities and Rights of his Crown By which it is apparent how cautious the King was in these liberal Concessions not to prejudice his Prerogative They are neither few in Number nor of mean repute for judgment and learning in our Laws who assert Such like Protestation King Richard the Second made 10 Reg. Rot. Parl. 10 R. 2. num 32. See in King Stephen that as Acts of Parliament made contrary to Magna Charta are void so likewise are all such as diminish the Prerogative in any part of it which is necessary for the support of the Government So upon the passing the Petition (q) His Majesty's Speeches fol. 368. of the Basilica of Right King Charles the First the King said The King willeth that Right be done according to the Laws and Customs of the Land and that the Statutes be put in due Execution that the Subjects may have no cause to complain of any Wrong or Oppression contrary to their Just Rights and Liberties to the Preservation whereof he holdeth himself obliged as well as of his Prerogative But this would not please and so he pronounced Le droit soit fait comme il est desire and adds that he is sure is full but no more than he granted in his first Answer his meaning in that being to confirm all their Liberties knowing according to their Protestations they neither meant nor can hurt his Prerogative The Peoples Liberty strengthens the Kings Prerogative and the Kings Prerogative is to defend the Peoples Liberties The rest of the Parliaments of this Kings Reign are said to be called (r) Id. 435. num 10.21 H. 3. Id. 693. num 20.26 H. 3. Id. fol. 579. num 40. Id. fol. 696. num 30. Id. fol. 698. num 40. Vide Brady's Appendix fol. 59 60. per scripta Regalia submonitione Regia or that scripsit Rex praecipiens or missis literis convocavit Anno 1246. 30 H. 3. or Edicto Regio convocat c. which denotes the Authority convening them and for the Members they are either stiled Magnates omnis Regni Nobilitas or Clerus Populus cum Magnatibus Magnates tam Laici quam Praelati Episcopi alii Ecclesiarum Praelati cum Proceribus Regni or else they are particularly numbred to be Archbishops Bishops Abbats Priors for the Clergy and the Comites Barones for the Laity In one I find Archiepiscopus cum Suffraganeis suis for the rest of the Bishops and (s) M. Paris fol. 397. num 10.10 H. 3. another runs thus Anno 1247. 31 H. 3. fecit Dominus Rex Magnates suos nec-non Angliae Archidiaconos per scripta sua Regia Londinum convocari Yet though Matt. Paris only mention the Magnates Archidiaconi yet he saith when the prefixed day was come the Bishops all willingly absented themselves and he gives the Reason ne viderentur propâ—iis factis eminus adversari sciebant enim corda omnium usque ad animae amaritudinem non immerito sauciari Then when he (u) Id. 629. Edit ult num 10. Archdeacons summoned to Parliament gives an Account of the business of this great Council he saith that the Archdeacons of England as also not the least part of the whole Clergy of the Kingdom with the Magnates complained of the Popes exaction and so Letters were writ to the Pope and Cardinals It may be noted also That in those Days the Kings summoned other dignified Clergy besides Bishops Abbats and Priors I shall insist no longer upon these Matters The new Constitution of Parliament by Representatives but pass to the great Mutation which was made in the Constitution of our English Parliaments It seems to be clear that before King John's time the Members of the Great Councils were summoned by special Writ and they were only the Archbishops Bishops Abbats and Priors for the Clergy and the Earls and Barons and such of the Tenents in Capite as were of greatest quality as the King pleased But in King John's Charter all the Tenents in Capite were convened by a General Summons which did much encrease the number of the Members of these great Councils and by so much as they were more numerous it is likely the Popular Barons hoped to make their Party the stronger against the King for we find it introduced when the Barons were propense to rebel So the Second great Alteration on the Constitution of Parliament was introduced Montfort's Rebellion when Simon Montfort Earl of Leicester and the Rebellious Barons had the King and the Prince Prisoners Simon Montford to strengthen his Interest first in the Kings Name summons the Earls and Barons which were in Arms against the King also at other times summoned more Abbats and Priors than had been used for that the Clergy at that time had a great Opinion of him and he was their Minion as is apparent in Matthew Paris and fully in the judicious (w) Answer to Petyt fol. 137 138 139. Doctor Brady to whom I must specially refer the curious Reader in this particular The 14th The Form of the Writ of Summons of Dec. 48 H. 3. the first Writ issued out thus Item mandatum est singulis Vicecomitibus per Angliam quod venire faciant duos Milites de legalioribus discretioribus Militibus singulorum Comitatuum It is commanded to all the Sheriffs of England that they make or cause to come two Knights of the more Legal and Discreet Knights of every County to be at London on the Octaves of St. Hilary next So in the like manner (x) Cl. 49 H. 3. m. 11. dorso schedulae Writs were directed to Cities and Burroughs to send two of the more Discreet Legal and Honest Citizens and Burgesses This is without Date that to the Barons of the Cinque Ports is Jan. 20. It doth not appear by the Writ to the Sheriffs whether they or the Counties were to elect and send those Knights or who were Electors It is the Opinion of most learned (y) Brady against Petyt fol. 143. Dugdale's Baronage fol. 759. col 3. Men that Simon Montfort apprehended from the Concourse of the Nobility and their great Retinues and the Example of his and the Barons Practices at Oxford some danger to himself and his Affairs and so altered the ancient Usage Upon the 5th of August 49 H. 3. Simon Montfort was slain at Evesham and all his Party routed and the 8th of September following the King convened his Parliament at Winchester which according to the old form The old Form again used consisted only of the Bishops Abbats Priors Earls Barons and Great Men nor did he continue Montfort's Method after as appears by that Parliament he
Barons Justices and others which are of the King's Council who may not depart without special leave of the King I shall not here enter into the enquiry how far the extent of the Power of the King's Council was in those days but it is very apparent that the King with advice of his Council proposed Laws and that others proposed by the Houses were considered by the King and Council as no doubt they are now considered before the King gives his Assent to Bills So in the Statute of the Definition of (x) Pulton An. 1304. fol. 72. Conspirators in the three and Thirtieth Year of King Edward the First it is said This Ordinance was accorded by the King and his Council in his Parliament Also in the Ordinance of (y) Idem Anno 1305. Enquests the Eighteenth of Sept. in the thirty third Year of Ed. the First It is said it is agreed and ordained by the King and all his Council that is his Parliament As to the special Prerogative of the King in giving the ultimate Character and fiat to the Laws every Act expresseth it so the Statute of (z) 18 Sept. 33 E. 1. Champerty the Statutes are called by the King Our Statutes and Our Lord the King hath commanded and in the Statute de Conjunctim feoffat it is said It is no new thing that among divers Establishments of Laws which we have ordained in our time so in the Ordinatio Forestae 34 Ed. 1. The King Ordains (a) Id. Anno 1306. fol. 73. We have ordained for our selves and our Heirs So in the Statute De asportatu Religiosorum 35 Ed. 1. it is said by the Council of his Earls Barons great Men and other Nobles of his Kingdom at his Parliament Our Lord the King hath Ordained and Enacted I shall only note first That in the Twenty eighth of this King those the (b) Cl. 28 E. 1. m. 3. dorso King had appointed being ready to give an account of the Perambulation of the Forests the King put a present stop to their report and his determination because the Prelates Earls Barons The Reason the King will determine nothing without advice in Parliament and the rest of the Magnates of the Kingdom in whose Presence his own and others Reasons should be propounded and heard and by whose Councils he intended to work especially seeing they were bound by Oath as well as himself to observe and maintain the Rights of the Kingdom and Crown were not then present and those were not summoned who should propound their Reasons so far as the matters concerned them and the King was not willing without their advice to put an end to the matters therefore he orders the Sheriffs to cause the two Knights that came to the last Parliament by his Precept now to come and the like for the Cities and Burroughs and if any were dead or infirm so that he could not come then to cause another to be chosen By which it appears that it was only from the King's Indulgence and that he might more deliberately resolve for the best advantage of his Subjects and for their satisfaction that he would have the advice of a fuller Assembly We may also further note from hence that it was in the King's Power to summon the same Knights Citizens and Burgesses without a new Choice except the Persons were dead or infirm Of the Parliaments in King Edward the Second's time IN this King's Reign these following Particulars are most observable In the Statute for (a) Pulton An. 1307. fol. 79. Knights 1 Regni it is said Our Lord the King hath granted In the Summons 5 Ed. 2. the Precept to the Sheriff The same Knights c. to come that were before is to cause to come to the Parliament to be held at Westminster those Knights Citizens and Burgesses in his Bailiwick which he caused to come lately to the present Parliament at London and which for certain causes went from the said Parliament (b) Cl. 5 E. 2. m. 26. dorso Vel alios ad hâ—â— idoneos loco ipsorum si ad hoc vacare non possunt or others fit for the Imployment if they cannot be at leisure Dated Octob. 11. In the sixth of Ed. 2. we have an example of the King 's (c) Cl. 6 E. 2. m. 27. dorso A Form of Prorogation proroguing the House of Commons in these Words Dominus Rex praecepit quod Milites Cives Burgenses qui ad Parliamentum Regis ibidem summonitum convenerunt pro Comitatibus Civitatibus Burgis Angliae ad propria remearent ita quod reverterentur ibidem in crastino S. Mich. prox futuro sub poena qua decet So that as they were commanded to return home so they were appointed a time to return under the Intimation of a Punishment The Preamble to the (d) Pulton An. 1315. fol. 80. The King with his Council revise Articles after the Parliament ended Articuli Cleri runs thus That by the Kings Progrenitors and himself at the Instance of the Prelates certain Articles were made and in the Parliament at Lincoln 9 Regni he caused them to be rehearsed before his Council and made certain answers to be corrected and to the residue of the Articles answers were made by him and his Council and so by way of Charter they are published at York 24 Nov. 10 Regni The Statute of (e) Id. 1316. fol. 83. Gavelet at London saith It is provided by our Lord the King and his Justices In the Statute de Terris (f) Id. Anno 1323. 17 E. 2. fol. 91. Templariorum it is said Great conference was had before the King himself in the presence of the Prelates Earls Barons Nobles and great Men of the Realm and others present whereupon the Greater part of the King's Council The King's Council and Justices affirm as well the Justices as other Lay-men being assembled the Justices affirmed precisely c. After the recital of Particulars the words are It is ordained and agreed in the same Parliament Anno 1326. the last of Ed. 2. There is a Prorogation of the (g) Claus 20 E. 2. m. 4. dorso A Prorogation before Meeting Parliament before meeting which runs thus That though the King had intended Colloquium Tractatum Conference and Treaty in the Quindene of St. Andrew by Isabel the Queen and Edward his eldest Son Custos of the Kingdom the King then being beyond Sea and the Prelats Proceres Magnates Regni and so had commanded two Knights of the Community of the County two Burgesses of every Burrough (h) Quia tamen quibusdam de causis necessariis utilibus praedict Parliamentum Tractatum usque in crast inum Epiphaniae prox jam futur c. duximus prorogandum yet for certain causes necessary and profitable he hath prorogued the said Parliament and Treaty unto the day after Epiphany c. Of the Parliaments in King Edward the Third's
time THE Preface to the Statutes at (a) Pulton An. 1327. fol. 93. Westminster 1 Ed. 3. is thus To the Honour of God c. King Ed. 3 at his Parliament held at Westminster c. Petition made by the Commonalty to the King and his Council at the request of the Commonalty of his Realm by the Petition made before him and his Council in the Parliament by assent of the Prelates Earls Barons and other great Men assembled at the said Parliament hath granted for him and his Heirs for ever these Articles The title of the Statute made at (b) Idem Anno 1329. fol. 97. Westminster 27 Nov. 4 Ed. 3. is thus At the request of the Commons these things be Established and Enacted by our Lord the King his Prelates Established and enacted by the King Prelates c. Earls and Barons and other of the same Parliament So that at Westminster (c) Idem Anno 1331. fol. 100. 5 Ed. 3. Our Lord the King by the Assent of the Prelates c. and other Great Men and at the request of his People hath granted and established The Preamble to the Statutes at York (d) Idem Anno 1335. fol. 103. Shewed by the Knightsâ— c. for the Commons assented to by the Lords with the Advice of the King's Council 9 E. 3. runs thus It was shewed to our Lord the King by the Knights of the Shires Citizens of the Cities and Burgesses of Burroughs which come for the Commons of the said Shires Cities and Burroughs Our Lord the King c. by the Assent of his Prelates c. and other Nobles of this Realm summoned at this Parliament and by the Advice of his Council being there Upon the said things disclosed to him Ordains c. So the Statute at (e) Idem Anno 1336. p. 105. Westminster 10 E. 3. is Our Lord the King by the Assent of the Prelates c. and at the Request of the Knights of Shires and his Commons by their Petition hath Ordained Established c. The Preamble to the Statute for the Clergy 16 Apr. 14 E. 3. runs thus At the Petition of John Archbishop of Canterbury and other Prelates upon deliberation had with the Peers of our Realm and other of our Council and of the Realm summoned to our said Parliament Thus far we find the King Establishing and Ordaining upon the Petition of the Commons as also of the Prelates with the Assent of the Prelates and Nobility and his Council Before I proceed to those Statutes which mention the assent or advice of the whole Parliament I think fit to insert at large the Repeal of an imperfect Statute made 15 E. 3. There having been (f) Idem Anno 1541. 15 E. 3. fol. 115. a Statute made That Ministers of the Church should not answer before the Kings Justices for things done touching the Jurisdiction of the Church For what reasons and in what manner this was repealed Repeal of Law unduely prâ—cured will best appear by the Kings Precept to the Sheriff of Lincoln which runs thus Whereas at our Parliament summoned at Westminster in the Quindene of Easter last past certain Articles expresly contrary to the Laws and Customs of our Realm of England and to our Prerogatives and Rights Royal were pretended to be granted by us in the manner of a Statute And considering how by the Bond of our Oath we be tied to the observance and defence of such Laws Customs Rights and Prerogatives and providently willing to revoke such things to their own State which be so improvidently done Upon Conference and Treatise thereupon with the Earls Barons and other Wise Men of our said Realm and because we never consented to the making of the said Statute but as it then behoved us we dissimuled in the Premisses by Protestations of Revocation of the said Statute if indeed it should proceed to eschew the danger which by denying the same we feared to come for as much as the said Parliament otherwise had been without dispatching any thing in discord dissolved and so our earnest business had likely been ruinated which God prohibit and the said pretended Statute we promised then to have sealed It seemed to the said Earls Barons and other Wise Men that sithence the Statute did not of our Free Will proceed the same be void and ought not to have the name or strength of a Statute and therefore by their counsel and assent we have decreed the said Statute to be void and the same as much as it proceeded of Dread we have agreed to be adnulled Nevertheless that the Articles contained in the said pretended Statute which by other of our Statutes or of our Progenitors Kings of England have been approved shall according to the form of the said Statute in every point as convenient is be observed and the same we do only for the Conservation and Redintegration of the Rights of our Crown as we be bound and not that we should in any wise grieve or oppress our Subjects whom we desire to rule in lenity and gentleness So the King commands all these things to be openly Proclaimed 1 Oct. 15. Regni From this Statute we may 1st Observations upon iâ—â—â— observe That without the Kings free and express consent there can be no Law pass'd 2ly The Bishops are not mentioned in this it being contrary to some Liberties Churchmen claimed by the Canons 3ly The Kings assent was not compleat but only a temporary one like a Salvo Jure lest his earnest business for which he called them should miscarry for want of a seeming compliance therefore he is said to promise the Sealing of it which was in that Age the Characteristick of Confirmation but never did it but rather made some kind of Protestation in the presence of some that what he did was unwillingly 4ly That seeing it did not proceed of his Free Will therefore by the advice and consent of the Earls Barons and other Wise Men it is declared void Lastly The principal reason why he gave not his free consent to it was because it was against his Coronation Oath whereby he was tied to the observance and defence of the Laws Customs Kings not bound to consent to what Bills the Houses propose Rights and Prerogatives So that upon the whole they that would advise their Princes to consent to whatever Bills the Houses should tender as in the Chapter of Factious Members of Parliament I shall have occasion to discourse may learn from hence That the King found himself obliged to consent to no Bills contrary to the Law Customs Rights and Prerogatives such were those the unhappy Parliament of 41 in the point of the Militia and their other dethroning Bills and of late another Parliament in the Bill of Seclusion endeavoured to impose upon their Soveraigns contrary to the fundamental Laws and Prerogatives of the Crown To proceed The Preface of the Statute at (g) Id. 1346. fol. 118. Westminster
7th May 20 E. 3. runs thus Because that by divers complaints made to us we have perceived that the Law of the Land which we by our Oath are bound to maintain is the less well kept c. we greatly moved of Conscience in this matter c. by the assent of the great Men and other Wise Men of our Council We have ordained c. The Preamble to the Statute of Labourers (h) Idem Anno 1349. fol. 120. repealed 23 E. 3. was thus Upon deliberation and treaty with the Prelates and the Nobles and learned Men assisting us of their mutual assent ordained and that Statute for Labourers which remains in force 25 E. 3. saith Whereas it was ordained by our Lord the King and by assent of the Prelates Earls Barons and others of his Council c. It is apparent by several Records So one Knight for a County when two Burgesses 27 E. 3. So the King names one Knight one Citizen and one Burgess to be sent 43 E. 3. m. 2. That the Kings of England have not been tied to the certain number of Knights Citizens and Burgesses though for a long while two only have been chosen of each but heretofore sometimes but one other times two or three as that 18 E. 1. and 4 Knights 22 E. 1. Besides which liberty there is a (i) Cl. 24 E. 3. p. 2. m. 3. memorable Record in this Kings Reign wherein the King appointed the qualifications of such as were to be chosen Members of the House of Commons The Writ is directed to all the Sheriffs of England Quod de Comitatu tuo duos Milites c. de discretioribus probioribus Militibus Civibus Burgensibus ad laborandum potentioribus qui non sint Placitatores querelarum manutentores aut ex hujusmodi quaestu viventes c. sed homines valentes bonae sidei publicum commodum diligentes eligi Qualification of Members to be elected Pleading Lawyers Maintainers of Plaints and such as lived of such like gain were forbid to be chosen upon some particular Reason of State then inducing it of which I shall write something in the Chapter of Parliaments The other Preambles most (k) Pulton An. 1350. fol. 121.25 E. 3. Idem Anno 1350. fol. 125. Assent of the Commonalty remarkable in this Kings Reign are mostly By the assent of the Prelates Earls Barons and other great men and all the Commons or of all the Commonalty of the Kings Realm The King hath Granted Ordained Established c. The Statute for the Clergy (l) Idem Anno 1350. fol. 122. 25 Regni saith Our Lord the King seeing and examining by good deliberation the Petitions and Articles delivered to him in his Parliament c. by Simon Archbishop of Canterbury and other Bishops of his Province upon certain Grievances c. By the Assent of his Parliament by the assent of his Parliament for him and his Heirs willeth and granteth the Points underwritten The Statute of Provisors 25 E. 3. is (m) Id. 1350. fol. 129.25 E. 3. The King bound by his Oath to remedy Mischiefs and Damageâ— to his Realm by accord of his People in Parliament singular in its Preamble That whereas in the Parliament 15 E. 1. at Carlisle the Petition heard put before the said King and his Council in his said Parliament by the Commonalty of the said Realm containing c. whereupon the said Commons have prayed our Lord the King that sith the right of the Crown of England and the Law of the said Realm is such That upon the Mischiefs and Damages which happen to his Realm he ought and is bound by his Oath with the accord of his People in his Parliament thereof to make Remedy and Law and remove the Mischiefs and Damages which thereof ensue so pray the King thereupon to ordain Remedy The Statute of Provisors (n) Id. 135â— fol. 131. 27 E. 3. runs Our Lord the King by the Assent and Prayers of the Great Men and Commons of this Realm c. hath ordained The Statute of (o) Idem Anno 1353. fol. 133. Staple 27 E. 3. hath a singular Preface whereas good deliberation had with the Prelates Dukes Earls Barons and Great Men of the Counties that is to say of every County one One Knight for a County and so for Cities and Burroughs for all the Counties and so of Cities and Burroughs c. by the Council and common consent of the said Prelates c. Knights and Commons the King hath ordained c. In the 28. Princes are named after Prelates The Preamble of the Statute at (p) Idem Anno 1362. fol. 152. The Request of the Commons Westminster 36 E. 3. runs thus The King at the request of the Commons by their Petition delivered to him in the said Parliament by the Assent of the Prelates Dukes Earls Barons and other Great Men in the Parliament assembled have granted for him and his Heirs for ever the Articles underwritten In the Second Chapter of which it is said The King of his own Will without motion of the Great Men or Commons hath granted in ease of his People The Statutes made (q) Idem Anno 1368. fol. 159. 42 E. 3. have only At the Parliament of our Lord the King it is assented and accorded So in (r) Idem Anno 1369. fol. 190. 43 E. 3. The Prelates Great Men and Commons seeing the Mischiefs pray the King in this present Parliament thereupon to ordain Remedy The Preamble to the Statutes (s) Idem Anno 1376. fol. 191. 50 E. 3. runs thus The Prelates Dukes Earls Barons and others assembled at the Parliament c. Our Lord the King desiring much that the Peace of his Land be well kept and his faithful Subjects in quietness and tranquillity maintained hath therefore made and ordained certain Ordinances and also granted certain Graces and Pardons to his Commons of England In all which it is evident the Two Houses had no more but an Advising or Petitioning and Assenting Power It is every where expressed that the King solely Ordaineth Establisheth Granteth However he owns an obligation by his Coronation Oath to make good Laws for his Subjects CHAP. XXVII Of the Parliaments of England during the Reigns of King Richard the Second to the First Year of King James the Second THE Preface to the Statutes at (a) Pulton An. 1377. fol. 163. Westminster 10 R. 2. is thus Richard by the Grace of God c. to the Sheriff of Nottingham Greeting Know you That to the Honour of God c. by the whole Assent of the Prelates Dukes Earls and Barons of this our Realm Special Instance and Request of the Commons at the instance and special Request of the Commons of our Realm assembled at our Parliament We have ordained and established certain Statutes in amendment and relief of this our said Realm That at (b) Idem Anno 1378.
fol. 165. Gloucester 2 R. 2. is thus Our Lord the King at his Parliament c. amongst other things there assented and accorded hath made certain Statutes and Ordinances The Preface to the Statutes at (c) Anno 1379. fol. 167. Westminster the same year runs thus Our Lord the King c. of the Assent of the Prelates Dukes Earls Barons and other great Men and of the Commons of this Realm summoned c. hath ordained In the first Chapter of the Statutes at (d) Idem Anno 1380. fol. 169. Northampton 4 R. 2. it is thus The Commons of our Parliament have prayed us by their Petition delivered to us at our present Parliament c. We considering the said Supplication will and grant by the Assent of the Prelates and Lords aforesaid In the Fourth Chapter of the Statutes at (e) Idem Anno 1382. fol. 175. Westminsterâ— 5 R. 2. The Members accustomed to be summoned to Parliament are particularly by their Degree distinguished viz. Archbishops Bishops Abbats Priors Dukes Earls Barons Bannerets Knights of the Shires Citizens and Burgesses which last are frequently comprehended by the words Others or Commonalty The Preamble to the Statutes 8 R. 2. at (f) Idem An. 1384. fol. 179. Westminster is to the Honour of God and at the Request of the Commonalty of the Assent of the Prelates Great Men and Commons aforesaid Assent of Commons Our Lord the King hath caused to be made The Statutes 9 R. 2. at (g) Idem Anno 1385. fol. 179. Westminster are thus prefaced Our Lord the King of the Assent of the Prelates Dukes Marquesses Earls Barons and Commons hath ordained and established The (h) Idem Anno 1386. fol. 180. Preface to the Statute 10 R. 2. is very full in the Expressions of the kindness of the King to his Subjects in this Form Know ye for the Reverence of God and to nourish Peace Unity and good Accord in all Parties within the Realm and especially for the common Profit and Ease of our People and good Government of the same which we chiefly desire of the Assent of the Lords and Commons assembled in Parliament Assent of the Lords and Commons we have caused to be made a Statute So in the 11th Regni (i) Idem Anno 1387. fol. 181. the King heartily desiring That the Peace of the Land be well holden and kept and his faithful Subjects nourished and governed in Quietness and Tranquillity and in that at Westminster (k) Idem Anno 1388. fol. 182. 13 Regni For the Honour of God and Holy Church and for the common profit of his Liege People In the First Chapter of the Statute at (l) Anno 1389. fol. 189. Westminster 13 R. 2. it is thus expressed That our Lord the King at his Parliament holden at Westminster c. Grievous Complaints of the Commons hearing the grievous Complaints of his said Commons c. the more because Charters of Pardons have been easily granted in such Cases the Commons requested that such Charters might not be granted To whom the King answered The King will save his Liberty and Regality That he will save his Liberty and Regality as his Progenitors have done heretofore But to nourish the more Quietness and Peace within this Realm by the Assent of the Great Men and Nobles he hath granted c. In the (m) Idem Anno 1396. fol. 199. Statute 20 R. 2. By the Assent of the Prelates Lords and Commons The Title of the Statutes at (n) Idem Anno 1397. fol. 200. Westminster 21 R. 2. is thus It is to be understood that our Lord the King c. of the Assent of the Prelates Dukes Earls Barons and Commons of his Realm there assembled hath made certain Statutes and Ordinances Repeal of Statutes made by Threats Amongst the rest is a Repeal of the Statutes made 10 R. 2. For that they were made by Threats given to the King and by constraint So it may be noted That Henry the Fourth repealed all the Statutes made in the last Parliament 21 R. 2. Of the Parliaments in King Henry the Fourth's time THE Preamble to the Statute at (a) Idem Anno 1399. fol. 200. Westminster 1 H. 4 runs thus Henry by the Grace of God c. to the Laud and Honour of God and Reverence of Holy Church for to nourish Unity Peace and Concord of all Parties within the Realm of England and for redress and recovery of the same Realm of England which now of late hath been dangerously put to great Ruin Mischief and Desolation of the Assent of the Prelates Instance and special Request of the Commons Dukes Earls Barons and at the Instance and special Request of the Commons of the same Realm assembled c. hath made ordained and established certain Ordinances and Statutes Throughout all this Kings Reign most of the Prefaces are much the same By the Assent or Advice and Assent of the Prelates c. At the Request or special Instance and Request of the Commons Only in the Preface to some Assent of the Lords Spiritual and Temporal it is By the Assent and Advice of the Lords Spiritual and Temporal this Distinction being mostly brought into use in his time as may be seen in the 4th 6th and 9th of his Reign Of the Parliaments in King Henry the Fifth 's time THE Preamble to the Statutes at (a) Idem Anno 1413. fol. 224. Westminster 1 H. 5. runs thus Our Lord the King at his Parliament c. by the Advice and Assent of the Lords Spiritual and Temporal and at the special Instance and Request of the Commons of this Realm hath ordained established c. and so much like all the rest except the Statutes 4 H. 5. (b) Idem Anno 1416. fol. 234. which hath Our Lord the King with the Assent of the Prelates Dukes Earls Barons and at the special Instance and Request of the Commons Of the Parliaments in King Henry the Sixth 's time THE Preamble to the First Statute of (a) Idem Anno 1422. fol. 239. Westminster 1 H. 6. is thus At the Parliament held at Westminster c. Our Sovereign Lord the King Sovereign Lord the King by the Advice and Assent of the Lords Spiritual and Temporal and at the special Instance and Request of the Commons of the Realm c. hath caused to be ordained and established c. The 2d 3d. 4th and 6th of H. 6. are the same As the first Statutes call him Our Sovereign Lord which was not used formerly so in that of the 8th of H. 6. he is stiled Our most Noble Christian Lord Henry c. 11 Regni (b) Idem Anno 1433. fol. 261. part of a new Phrase was used By Authority of Parliament which after some while is now familiarly used that Preface runs thus By the Assent of the Lords Spiritual and Temporal and at the special Request of the
in this present Parliament assembled and by the Authority of the same Of the Parliaments in Queen Elizabeth's time WE may observe something new in the Acts of this Queen we have noted once in Henry the Eighth's time the two Houses pray that it may be enacted and so in Edward the Sixth but in the first (a) Id. fol. 873. Chapter of the Acts of this Queen it is more full thus Most humbly beseech Your most Excellent Majesty Most humbly beseech your most excellent Majesty your faithful and obedient Subjects the Lords Spiritual and Temporal and the Commons of this your present Parliament assembled and in another (b) Id. fol. 874. Paragraph That it may please your Highness that it may be further enacted and in another place If some redress by Authority of this your High Court of Parliament High Court of Parliament with the assent of your Highness be not had and provided 5 Eliz. Cap. 1. it is thus expressed Be it therefore Enacted Ordained and Established by the Queen our Sovereign Lady and the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by Authority of the same And in the Eighth Be it now Declared and Enated by the Authority of this present Parliament Most of all the rest of the Acts of her Reign are expressed after some of these forms The 43 of her Reign in the First Chapter it is thus In most humble wise beseechen your most excellent Majesty the Lords Spiritual and Temporal and the Commons of your Highness's Parliament assembled Of the Parliaments in King James the First 's Reign THE Title of his first (a) Id. fol. 1085. Acts is at the Parliament begun c. To the pleasure of Almighty God the Weal publick of this Realm were Enacted c. In the First Chapter We therefore your most Humble and Loyal Subjects the Lords Spiritual and Temporal and the Commons in this present Parliament assembled In most humble and lowly manner do beseech in most humble and lowly manner do beseech your most excellent Majesty that it may be published and declared in this High Court of Parliament and Enacted by Authority of the same In the Second Chapter it is said Be it further (b) Id. fol. 1086. Enacted by the Kings most Excellent Majesty by and with the Assent and Consent of the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by Authority of the same In the Seventh of King James is only expressed Be it Enacted by the Authority of this present Parliament c. The rest agrees with some of these Of the Parliaments in King Charles the First 's Reign THE Preface of his First (a) Id. fol. 1226. Parliament is At the Parliament c. To the high pleasure of Almighty God and to the weal publick of this Realm were enacted c. In the First Chapter (b) Id. fol. 1227. Be it enacted by the King c. it is said Be it Enacted by the Kings most excellent Majesty the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by the Authority of the same In the beginning of the Petition (c) Id. fol. 1229. Petition of Right of Right it is thus worded Humbly shew unto our Soveraign Lord the King the Lords Spiritual and Temporal and Commons in Parliament assembled c. and the close of it is All which they most humbly pray your most excellent Majesty as their Rights and Liberties according to the Laws and Statutes of this Realm c and that your Majesty would be graciously pleased In the Seventeenth of the said King (d) Id. fol. 1237. Chap. 6. it is thus expressed Therefore the Kings most excellent Majesty out of his Princely care c. by the Assent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled and by the Authority of the same Ordaineth Enacteth and Establisheth Of the Parliaments in King Charles the Seconds Reign THE Preface to the Acts of the two Houses (a) Id. fol. 1249. begun 25 Apr. 1660. not summoned by the Kings Writ is much the same with that of King Charles the First and King James mutatis mutandis In the Third Chapter it is said Be it Enacted by the Kings most excellent Majesty and the Lords and Commons assembled in Parliament In the Fourth Chapter (b) Id. fol. 1251. The Commons do by and with the Advice and Consent of the Lords in this present Parliament and by Authority of the same give and grant unto you our Supreme Liege Lord and Soveraign one Subsidy c. Supreme Liege-lord and Sovereign In the First Chapter 13 Car. 2. the (c) Id. fol. 1300. enacting part is thus worded Do most humbly beseech your most Excellent Majesty Most humbly beseech Your most Excellent Majesty c. that it may be Enacted and be it Enacted by the Kings most Excellent Majesty by and with the Advice and Consent of the Lords and Commons in this present Parliament Assembled and by Authority of the same The rest of the Acts in King Charles the Second's Reign are continued in the same form The Titles of the Acts of Parliament 1 Jac. 2. our most Gracious Soveraign are At the Parliament begun at Westminster the 19th Day of May Anno Dom. 1685. in the First Year of the Reign of our most Gracious Soveraign Lord James c. The Enacting part of the granting an Imposition c. thus Most Gracious Soveraign We your Majesties most Dutiful and Loyal Subjects the Commons Assembled in Parliament towards a Supply c. and with an humble and thankful acknowledgment of your Majesties favourable and tender regard to us your Commons have chearfully and unanimously given and granted unto your Majesty an Aid and Assistance and we do humbly beseech your Majesty that it may be Enacted and be it Enacted by and with the Advice and Consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled and by the Authority of the same All the other Acts which are not Grants of Aid Assistance or Supply are conceived in the latter words By this full enumeration of the most considerable Expressions either of Records or Historians relating to the Great Councils or Parliaments from William the Conqueror's time to this present Age which in a continued series of time I have deduced it appears that till King John's time only the Prelates Earls and Barons and such of the great Tenents in Capite as were not Barons were summoned and at the Kings pleasure by special Writ and after King John's Charter the lesser Tenents in Capite by General Summons Also that the Charters of Kings wherein they granted Liberties to their Subjects were received as Laws and gave as ample Satisfaction as now The King willeth doth to pass a Bill tendred for his Royal Assent by both Houses and there was good
Assembly was that things there proposed may be orderly and diligently debated deeply considered and thereupon wisely concluded To examine whether any Law already made be too sharp and sore and so over-burthensome to the Subject or over-loose and soft and so over-dangerous to the State For that acriores sunt morsus intermisseae Libertatis quam retentae He further adds The use of them is to consider the want and superfluities of Laws whether Graft Malice or Covetousness hath devised any ways or means to defraud the Benefit and Force of Laws and in matter of Policy for the more perfect upholding and establishing the Soveraigns Royal State and the Preservation of the Common-weal committed to the Princes care Bodin (i) Lib. 3. de Repubâ— p. 350. commends the Constitution of the Government in England and Spain that they have Parliaments once in three Years whereby Princes upon any imminent danger may have recourse to their Council and Assistance to defend their Countries from Hostile Attempts to raise Money for public Necessity cure the Diseases of the Commonweal confirm the State appoint Laws hear the Complaints of the grieved amend Male-Administration by calling ill Mannagers to account understand what the Prince otherwise may be ignorant of and generally to have counsel in all things which in Prudence are necessary for the happy Government of the Commonweal Sir (k) Commonwealth part 1. c. 2. p. 37. Tho. Smith saith As in War where the King himself is in Person with the Nobility Gentry and Yeomanry the Power and Force of England is So in Peace and Consultation where the Prince is to give Life and the last and highest Commandment the Nobility for the higher the Knights Esquires and Gentlemen for the lower part of the Commonwealth and the Bishops for the Clergy be present to advertise and consult and shew what is necessary for the Commonwealth every thing being advised with mature Deliberation every Bill being thrice read and disputed upon in either House apart and after the Prince himself doth consent thereto that is the Prince's and whole Kingdoms Deed whereupon no Man can justly complain but must accommodate himself to find it just See Prynne part 1. Brief Register p. 447. good and obey it and concludes that whatever the People of Rome might do either in Centuriatis or Tribunitiis Comitiis the same may be done by the Parliament of England which representeth and hath the Power of the whole Kingdom Thus far of the general use now to the Constitution Concerning the word Parliament it is concluded by most Of the word Parliament to come from the French word parler to speak therefore before the word was used by our Historians as appliable to this great Convention the Latin word Colloquium was frequently used to signify a Conference betwixt the King and the great Men summoned to consult advise and take Counsel with the King and among themselves Yet before the word was used to signifie these great Assemblies we find it applied to other Meetings in William Rufus's time For Ingulphus Abbat of Croyland speaking of private Consultations in that Abby saith That Semannus de Lek (a) Veniens coram conventu in nostro publico Parliamento c. coming before the Convention in their publick Parliament took his Oath of Fidelity to them as Serjeant of their Church The First that is noted to use this word among all our Historians is (b) Convenit ad Parliamentum Generalissimum totius Regni Angliae c. p. 674. Matthew Paris Anno 1246. 30 H. 3. where he saith There came to the most general Parliament to London the whole Nobility of all the Kingdom of England The first Mention of it on Record is in the (c) Cl. 49 E. 3. d. 11. Writ of Summons to the Cinque Ports summoning them ad instans Parliamentum nostrum and the next is in the Writ of Prorogation of the (d) Cl. 3 E. 1.20 dorso Parliament 3 E. 1. where it is twice mentioned in the Writ generale Parliamentum nostrum eodem Parliamento Having premised thus much concerning the Name and first usage I shall now discourse of it in particular SECT 2. Of the Summons of the Prelates THAT the King is Caput Principium Finis Parliamenti as Sir Edward Coke notes is obvious to all The Summons have been constantly from the King The Summons only from the King or in his Name In the former Chapters I have discoursed out of our Historians that the Great Councils were always convened by the Kings Now I come to prove it by Records and shall note first the Summons to the Prelates then of the Nobles and thirdly of the Knights Citizens and Burgesses only noting some of the remarkablest of them from Mr. Prynn who hath so fully writ of them in his brief Register of Parliamentary Writs in four parts and his Brevia Parliamentaria Rediviva to whose indefatigable pains in transcribing such an infinite of Records all Antiquaries Lawyers and Statesmen will be always beholding though in the use he made of such before the late King's Restauration or at least while he sate in the long Parliament few Loyal Men can follow his Doctrines All the Writs before the Sixth of King John whereby any were summoned to great Councils are utterly lost that runs (e) Claus 6 Joh. m. 3. dorso The Summons in King John's time thus Mandamus vobis rogantes quatenus omni occasione dilatione postposita sicut nos honorem nostrum diligitis sitis ad nos apud London c. nobiscum tractaturi de magnis arduis negotiis nostris communi Regni Vtilitate vestrum habere consilium aliorum Magnatum Terraendstrae Abbates Priores conventuales toti Diuoecesis citari faâ—iatis The second Record is (f) Claus 26 H. 3. m. 13. dorso 26 H. 3. directed to Walter Archbishop of York differing from the former in these particulars Sicut nos honorem nostrum here is added Pariter vestrum diligitis in fide qua nobis tenemini Anno 38 H. 3. the Writ is directed to the Archbishop of Canterbury Paternitatem vestram omni qua possumus affectione rogamus quatenâ—s nos Jura nostra totaliter indeâ—ensa non deserentes cum omni celeritate convocetis coram vobis Capitulum vestrum Cathedrale Archidiaconos Viros Religiosos Clerum vobis subjectum inducentes eos omnibus modis quibus poteritis quod nobis in tanta necessitate liberaliter subveniant I do not bring in this as a Writ of Summons to a Parliament These Summons for Military Aid out only as a special Writ to excite the Clergy to a free voluntary and liberal Contribution for defence of Gascoign and so to show the Customs of Benevolences in that Age out of Parliament The next (g) Claus 49 H. 3. dorso 11. in schedula The first Summons to the Lords when the Commons also were summoned Writ of
Summons of the Prelates to a Parliament was that of 49 H. 3. directed to the Bishop of Duresm wherein the occasions of summoning are reckoned to be after the great Troubles being quieted by giving the Prince Hostage for establishing the Peace therefore to provide with wholesome Deliberation and to establish and totally to compleat with full Security a Peace c. Et super quibusdam aliis Regni nostri negotiis quae sine consilio vestro aliorum Praelatorum Magnatum nostrorum nolumus expediri cum eisdem tractatum habere nos oporteat vobis mandamus Rogantes in Fide Dilectione quibus nobis tenemini c. 14 Nov. The next (h) 23 E. 1. m. 9. dorso Writ is that of 23 E. 1. to the Archbishop of Canterbury thus Quia super quibusdam arduis negotiis nos Regnum nostrum ac vos caeterosque Praelatos de eodem Regno tangentibus quae sine vestra aceorum praesentia nolumus expediri Parliamentum nostrum tenere ac vobiscum super hiis colloquium habere volumus tractatum 24 July The same Year 23 E. 1. there was another (i) Cl. 24 E. 1. m. 4. dorso Parliament summoned by this memorable Writ directed to the Archbishop of Canterbury Sicut Lex justissima provida circumspectione sacrorum Principum stabilita hortatur ut quod omnes tangit ab omnibus approbetur sic innuit evidenter ut communibus periculis per remediae provisa communiter obvietur Then reciting the King of France his frauds concerning Gascoign and his Hostile preparations adds provisa jaculaminus laedunt so commands him in fide dilectione to be personally present c. Praemunientes Priorem Capitulum vestrae Ecclesiae Archidiaconos totumque Clerum vestrae Dioecesis facientes quod iidem Prior Archidiaconus in propriis personis dictum Capitulum per unum idemque Clerus per duos Procuratores idoneos plenam sufficientem potestatem ab ipsis Capitulo Clero habentes una vobiscum intersint modis omnibus tunc ibidem ad tractandum ordinandum faciendum nobiscum cum caeteris Praelatis Proceribus aliis Incolis Regni nostri c. 30 Sept. The Variations of the Writs are mostly these The commanding part of the Summons to appear That the cause of the Summons is diversly expressed according to the present emergence Sometimes the word is Mandamus rogantes otherwhile as 27 E. 1. m. 16. Effectâ—ose requirimus rogamus Rogamus specialius Nihilominus injungendo mandamus as the same years m. 9 dorso Injungentes the same year firmiter injungendo 30 E. 1. m. 9. dorso Iterato mandamus Cl. 33 E. 1. m. 8. dorso Firmiter injungendo mandamus Claus 11 E. 3. part 2. m. 10. dorso Rogantes mandamus Cl. 38 H. 6. m. 29. dorso Rogando mandamus Cl. 22 23 E. 4. m. 11 dorso and so 15 Caroli 1. fol. 20. These are the greatest variations in the Mandatory part which was mostly to be personally present themselves the Bishops Abbats Priors Deans and Archdeacons and one Proctor for the Chapter and two for the Clergy of the Diocess Sometimes the word is Sitis apud nos omnibus praetermissis as 27 E. 1. m. 16. dorso or Personaliter intersitis the same Year m. 9. dorso and 30 E. 1. m. 7 9. dorso and several other or Sitis in propria persona vestra vel per sufficientem procuratorem a vobis plenam potestatem habentem as Cl. 6 E. 2. m. 2. dorso or quatenus omni excusatione voluntaria cessante as 4 E. 3. m. 13. dorso or propter arduitatem magnitudinem negotiorum absentiam vestram nâ—quimus nec volumus aliqualiter excusare other times especially Sede vacante to send a Proctor or Proxy thus Sufficientem Procuratorem plenam a vobis potestatem habentem mittatis as 27 E. 1. m. 9. dorso But (k) Claus 6 E. 3. m. 36. dorso other times thus Scientes pro certo quod nisi evidens manifesta necessitas id exposcat non intendemus Procuratores seâ— excusatores pro vobis admittere and gives the reason why as they loved the King and his Honour and the tranquillity and the quiet of the Kingdom they would be present because of the (l) Propter arduiâ—atem negotiorum praedâ—ctorum arduity or difficultness of the business Another reason is given Claus 11 E. 3. part 1. m. 15. lest by their absence the expedition of the Kings Affairs should be retarded or deferred and in another because of the absence of them oftentimes (m) Fuerunt non absque nostri Regni nostri incommodo saepius retardata the great Affairs have been retarded to the disprofit of the King and his Kingdom In the 12th of E. 3. it is very strict thus (n) Claus 12 E. 3. part 2. m. 32. dorso 13 E. 3. part 2. m. 1. dorso Attentis praemissorum arduitate imminentibus periculis quacunque excusatione cessante personaliter intersitis And 14 E. 3. after the King had taken upon him the Title of King of France the charge for their appearance was very strict Nos sicut honorem nostrum salvationem ejusdem Regni nostri Angliae caeterarumque terrarum ac jurium nostrorum praedictorum ac negotiorum expeditionem diligitis nullatenus omittatis and so in many others There is a prevalent Argument used in the (o) Claus 16 E. 3. part 1. m. 39. dorso Scituri quod gratitudinem ingratitudinâ—m quas nobis in absentia nostra jam osâ—endi contigerit plus ponderabimus quam si â—â—crant dum praesentes essemus ea curabimus juxta merita seu demerita compensare 16 E. 3. when he summoned a Parliament in his absence to induce the Prelates and other Members to appear personally That the King lets them know that he will more weigh the Gratitude or Ingratitude which they shew him in his absence than if he were present and he will take care to reward them according to their merit Another the Cl. 2 R. 2. m. 3. dorso That the King would in no wise have them excused unless they were detained with such an Infirmity as they could not labour The words are nisi tanta infirmitate tunc detenti fueritis quod aliqualiter illuc laborare non poteritis nullo modo excusatos habere volumus The ends of these Summons were sometimes general and sometimes special The general Causes were expressed by the common (p) Communi Regni uâ—iliâ—atâ— Cl. 6 Jo. m. 33. dorso The Causes of Summoning Profit of the Kingdom the Ardua negotia nos statum Regni tangentia Other times as 25 E. 1. M. 6. dorso Arduis urgentibus negotiis nos vos totum Regnum nostrum tangentibus Other times (q) Cl. 27 E. 1. m. 9. dorso ad salvationem Coronae nostrae Regiae communem utilitatem populi Regni nostri The
together with Judges and King's Council Citizens Burgesses of Parliament and Barons of the Cinque-Ports being usually summoned to the one but to the other some few Spiritual and Temporal Lords only without (x) Brief Register part 1. pag. 187. to 192. any Judges Assistants Knights Citizens Burgesses or Barons of the Cinque-Ports or some few of them only and divers who were no usual Lords or Barons of Parliament as Mr. Prynn hath made evident and the Rolls themselves in the Margin notes them by de Concilio summonito or deveniendo ad Concilium which some Antiquaries having not noted have confounded them SECT 4. Of the Judicature of the House of Lords IT is evident that the Lords in Parliament have ever been the usual Judges not only in all criminal and civil causes 6. The Lords Judicature proper for Parliaments to judg or punish and Writs of Errors but likewise in all cases of Precedencies and Controversies concerning Peers and Peerage which Power was in them as the King 's Supreme Court before there were any Knights Citizens or Burgesses summoned to our Parliaments So Hoveden (y) Annal. pars poster p. 561. ad 566. is express in the case of Sanctius King of Navar and Alphonsus King of Castile Comites Barones Regalis Curiae Angliae adjudicaverunt Anno 1177. 23 H. 2. So Fleta in Ed. the First 's time writes (z) Habet enim Rex Curiam suam in Concilio suo in Parliamentis suis praesentibus Pralatis Comitibus Baronibus Proceribus aliis viris peritis ubi terminatae sunt dubitationes judiciorum Lib. 2. c. 2. p. 66. thus The King hath his Court in his Council in his Parliaments there being present the Prelates Earls Barons Nobles and other skillful Men viz. the Judges Assistants where are ended the doubts of Judgments This Particular of the Jurisdiction of the House of Lords is so fully in every Branch of it proved by Mr. Prynn in his Plea for the Lords House that it were an Injury to the inquisitive Reader not to referr him to that Treatise for full Satisfaction therefore I shall only pick out a very few out of a Manuscript I have of the Priviledges belonging to the Baronage of England and Mr. Prynn In the fourth of King (a) Roâ— Parl. 4 E. 3. m. 7. num 3. Judgment of Lords on John Mautravers Edward the Third the Peers Earls and Barons assembled at Westminster saith the Record have strictly examined and thereupon assented and agreed that John Mautravers is guilty of the death of Esmon Earl of Kent Uncle of our Lord the King that now is wherefore the said Peers of the Land and Judges of Parliament judged and awarded that he the said John should be drawn hanged and beheaded In the first of R. 2. John Lord of (b) Rot. Par. 1 R. 2. m. 6. num 38 39. Gomenys and William de Weston were brought before the Lords sitting in the white Chamber On John Lord of Gâ—menys and William Weston for delivering up Forts to the Enemy and were severally charged at the Commandment of the Lords by Sir Richard Scroop Knight Steward of the Kings House William Weston being accused for rendring the Castle of Outhrewike and John Lord of Gomenys for rendring the Castle of Ards. They both made plausible defences and Sir Rich. Scroop Steward tells William that the Lords sitting in full Parliament do adjudge him to death But because our Lord the King is not yet informed of the manner of this Judgment the execution thereof shall be respited till the King be informed thereof and the like Sentence he passed upon John Lord of Gomenies only adding that he being a Gentleman and Banneret should be beheaded There are many more Examples of Judgments given in Capital matters upon Bergo de Bayons 4 E. 3. m. 7. num 4. Thomas de Gurny eadem membrana num 5. and others and for Offences not Capital of Richard Lions 59 E. 3. m. 7. William le Latymer 42 E. 3. m. 2. William Ellis ibid num 31 John Chichester and Botesha 1 R. 2. num 32. Alice Piers Ibid. num 41. Mr. Antiquity of Judgment by Peeâ—s Prynn (c) Plea for Lords p. 203. Hist lib. 4. shews this Jurisdiction out of Historians even from Cassibellan out of Geoffrey of Monmouth Also Anno 924. of Elfred a Nobleman who opposed King Aethelstan's Title and had his Lands adjudged by the Peers forfeit to him the Words of the King are Et eas accepi (d) Malmsb. de Gest is Reg. lib. 2. c. 6. p. 62. Spelman Conc. Tom. 1. p. 407 408. Anno 1043. quemadmodum judicaverunt omnes â—ptimates Regni Anglorum So Earl Godwin having murdred Prince Alfred Brother to King Edward the Confessor being fled into Denmark and hearing of King Edward's Piety and Mercy returned and came to London to the King who then held a Great Council and denied the Fact and put himself upon the (e) vnde super hoc pono me in consideratione Curiae vestrae Chron. Brompton col 937 938. consideration of the Kings Court and the King speaks to the Earls and Barons thus Volo quod inter nos in illa appellatione rectum judicium decernatis debitam justiciam faciatis and after it is said Quicquid judicaverint per omnia ratificavit So in the Constitutions of (f) An. 1164. M. Paris 94. Sicut Barones caeteri debent interesse judiciis Curiae Regis cum Baronibus quousque perveniatur in judicio ad diminutionem membrorum vel ad mortem The House of Lords the King's Court of Barons Clarendon it is appointed That the Archbishop Bishops and those Clergy that held in Capite as by Barony should be Parties in the Judgments of the Kings Court as other Barons ought with the other Barons till it come in Judgment to the loss of Member or to Death So in the Case of Tho. Becket Archbishop of Canterbury Anno 1165. 11 H. 2. we find in Hoveden parte post p. 494 495. that Barones Curiae Regis judicaverunt eum esse in misericordia Regis and afterwards when he would not yield to the Kings Will he (g) Dixit Baronibus suâ—s Cito facite mihi judicium de illo qui homo meus Ligeus est stare Juri in Curia mea recusat saith to his Barons Quickly make to me Judgment of him who is my Liege Man and refuseth to stand to the Law in my Court The Barons going out judg'd him fit to be seiz'd on and sent to Prison and the Historian saith tunc misit Rex Reginaldum Comitem Cornubiae Robertum Comitem Leicestriae ad indicandum ei judicium de illo factum Anno 1208. King (h) Anno 10 Johan Mat. Paris p. 218. John exacted Pledges of his Subjects and amongst others of William de Breause who said If he had offended the King he would be ready to answer his Lord and that without Hostages secundum judicium
Curiae suae Baronum Parium suorum So Anno 1240. 24 H. 3. (i) Graviter accusatus coram Rege Curia tota Lond. Mat. Westm 153. Matthew Paris saith That Hubert de Burgo Earl of Kent was grievously accused before the King and his whole Court and it was adjudged he should resign to the King four of his Castles I cannot omit one memorable passage that (k) Mat. Westm Anno 1260. p. 295 296. Anno 1260. 44 H. 3. there falling out a difference betwixt King Hen. 3. Prince Edward his Son Simon Montfort and other Nobles the King called his Baronage to St. Pauls and there it being urged that Prince Edward had done some injuries to the King he offered to prove himself innocent before the King and his Uncle who was King of the Romans saying Who are Peers of Prince Edward That none of (l) Omnes alios Barones Comites sibi de â—ure non esse Pares nec sâ—â—s in eum excercerâ— disâ—ussiones the rest of the Barons and Earls were by right his Peers nor ought to exercise upon him their Discussions of the matter By which it appears that he judged himself to be something more than a Peer of the Realm being the Heir apparent of the Crown I might fill a large Volum with the Histories and Records to prove this but since Levellers and the House of Commons that voted the House of Lords dangerous and useless have received such deadly wounds by Mr. Prynne in his Plea for the Lords who was once one of their own Champions I think it needless to whet those Weapons again since they always will be in readiness for any one to make use of if need require and shall only obviate one objection that may be urged That whatever the usage was before the Representatives of the Commons An Objection That after the House of Commons were admitted the Jurisdiction of the Lords House was lessened Answered yet the Commons after were often admitted to a share of Judicature in some cases But I shall give a few Instances how after this change of the Constitution of Parliament still this power of Judicature remained in the King and House of Lords Roger de (m) 4 E. 3. num 11.28 E. 3. num 9 10. Mortimer being accused of High Treason 4 E. 3. for the Murther of King Edward 2. after his resignation and unlawful deposition Knighton (n) De Event Angliae lib. 3. c. 16. col 1556 1557. giving an account of the proceedings agreeable to the Parliament Roll saith Rex praecepit Comitibus Baronibus caeteris Magnatibus Regni justum judicium ferre super praedicto Rogero de Mortimer So at the Parliament held at Salisbury 7 R. 2. W. de Zouch is said to be called to the Parliament to stand to the Judgment (o) Ad standum judicio Regis Domincrum Walâ—ingham p. 334. Hist Ang. Hypodig Neust p. 141. of the King and the Lords So Michael de la Pole Earl of Suffolk and Chancellor of England 10 R. 2. (p) Rot. Parl. 10 R. 2. num 6. ad 18. was accused by the Commons in full Parliament before the King Bishops and Lords and at last it is said The Lords in full Parliament gave judgment against him In the Parliament 11 R. 2. Thomas Duke of Gloucester offered to put himself upon his Tryal as the Lords of the Parliament would award c. After which the Lords as well Spiritual as Temporal claimed their Liberties and Franchises namely That all weighty matters in the same Parliament which should be after moved touching the Peers of the Land should be judged and determined by them by the course of Parliament and not by the Civil Law nor yet by the Common Law of the Land used in other Courts of the Realm Yet this seems a very high Demand for they have not Juris dandi but dati Jurisdictionem as they are a Court of Ministerial Jurisdiction being the Court of the King's Barons in Parliament And though when upon Writ of Error (q) Egerton sect 4.22 23. any Judgment in the King's Bench is examined in the House of Lords and there affirmed or reversed the Judgment is said to be affirmed or reversed in Parliament yet we cannot conclude they have the Power of the High Court of Parliament that their Decrees if against the Law should be as binding as Acts of Parliament How the Lords judge ministerially And though the same House in the same Session may not have Power to review again their own Judgment nor to restore again any Judgment they have reversed because they judge ministerially and not sovereignly and so bind their own Hands as well as their Inferiors whereas an Absolute Supreme Court is never at the last Period of Jurisdiction yet we see Attainders in one Parliament reversed in another and so may their Judgments be But this obiter I shall but add one proof more being full and express to the purpose to prove the House of Lords sole Jurisdiction with the King who must always be understood to give Judgment by them The Record is 1 H. 4. (r) Rot. Par. 1 H. 4. num 79. Exact Abridgment p. 392. where it is said That 3 Nov. the Commons in this Parliament shewed to the King Come les joggements du Parlement apperteignent soulement au Roy Seignieurs nient aus Communes c. That the Judgments of Parliament appertained only to the King and to the Lords and not unto the Commons Thereupon they prayed the King out of his special Grace to shew unto them the said Judgments and the cause of them that so no Record might be made in Parliament against the said Commons which are or shall be parties to any Judgment given or hereafter to be given in Parliament without their Privity Whereunto the Archbishop of Canterbury gave them this Answer by the Kings Commandment That the Commons themselves are Petitioners and Demanders and that the King (s) Et que le Roy les Seigniours de tout temps ont eues averont de droit les Juggement in Parliament en manere come mesmes les Communes soâ—t monstres and Lords from all times have had and shall have of right the Judgments in Parliaments in manner as the Commons have shewed How far the King and House of Lords have been Judges of the Priviledges of the House of Commons I shall declare in that part of this Chapter wherein I treat of that House SECT 5. Of the Assistants to the House of Lords HAving thus far treated of the Constituent Parts of the House of Lords I come now to the Assistants to this most Honourable House which were mostly the (t) Prynne's Brief Register part 1. sect 3. p. 240. The Judges and other Assistants of the House of Lords King 's Great Officers as well Clergy-men as Secular Persons who were no Lords or Barons of the Realm as namely his Treasurer
Chancellor of the Exchequer Judges of his Courts at Westminster Justices in Eyre Justices Assignes Barons of his Exchequer Clerks Secretaries of his Council and sometimes his Serjeants at Law with such other Officers and Persons whom our Kings thought meet to summon The first Writ that Mr. Prynne finds extant in our Records and which Sir William Dugdale mentions is entred in the Clause-Roll 23 E. 1. dorso 9. directed to Gilbert de Thornton and thirty eight more whose Names are in Sir William Dugdale whereof there are eleven by the name of Magistri three Deans and two Archdeacons only I find them differently ranked in Mr. Prynne to what they are in Sir William Dugdale The Writ runs thus Rex dilecto fideâ—i suo Gilberto de Thornton salutem Quia super quibusdam arduis negotiis nos Regnum nostrum ac vos caeterosque de Concilio nostro tangentibus quae sine vestra eorum praesentia nolumus expediri c. Vobis mandamus in fide dilectione c. as in the usual Summons to the Bishops Sometimes as 25 E. 1. there (u) Cl. 25 E. 1. m. 25. dorso was no Writ directed to them but we find under the Name of Milites with a Lines space betwixt them and the Barons thirteen named which by other Records are known to be the King's Justices The differences in their Writs are mostly these Sometimes The difference in their Writs as in 27 E. 1. it is Cum caeteris de Concilio nostro habere volumus colloquium tractatum or as in 28 E. 1. (w) Cl. 28 E. 1. m. 3. dorso showing the special Cause Quia super Jure Dominio quae nobis in Regno Scotiae competit c. cum Juris peritis cum caeteris de Concilio nostro speciale colloquium habere volumus tractatum vobis mandamus c. cum caeteris de Concilio nostro super praemissis tractaturis vestrumque consilium impensuris At the same time there are Writs to the Chancellor of the University of Oxford to send four or five Persons skilful in the Law summoned from the Universities de discretioribus in Jure scripto magis expertis and to the Chancellor of the University of Cambridge to send two or three in the like manner qualified and then follow Writs to several Abbats Priors Deans and Chapters and all these Writs mentioned the Business of the King's Claim to the Jurisdiction of Scotland and in the Writs of Summons to the Archbishops Bishops Abbats Priors Temporal Lords Justices and Sheriffs of Counties that Particular is not mentioned which shows that the King summoned these particular Persons as most fit to search and â— send their Chronicles to the Parliament The Occasion and Result whereof and of sending these Lawyers from the Universities you may read at large in (x) An. 13â—2 p. 419. to p. 438. Matth. Westminster and (y) Hist Ang. p. 32. to 58. Walsingham In some Writs as that of 9 E. 2. (z) Cl. 9 E. 2. m. 20. dorso the Justices are appointed to expedite their Assizes that they may not fail to be present at the Parliament or to leave two to attend the Business of the King's Bench And the 7 of E. 2. (a) Cl. 7 E. 2. m. 25â— dorso Justices to leave the Assâ—zes to attend the Parliament That whereas they had appointed the Assizes at Duresm and other Parts in the Northern Circuit at certain days after the time the Parliament was to convene at which he wondred he orders them to put off the Assizes and attend By which two Writs it appears their Summons by Writ to attend and counsel the King in Parliament was a Supersedeas to them to take Assizes during the Parliament and that the Assizes and Suits of private Persons ought to give place to the publick Affairs of the King and Kingdom in Parliament Whoever desires to know who were summoned in this manner and the further variety of Summons may consult Mr. Prynne and Sir William Dugdale's Summons From these Writs we may observe Observations from these Writs first That sometimes the Persons summoned were many in number sometimes very few and always (b) Brief Register part 1. a p. 366. ad p. 394. more or less at the King's Pleasure Secondly in latter times the Clergy-men were wholly omitted Thirdly That they were never licensed to appear by Proxies Mr. Prynne hath collected a great many Precedents to prove that these Persons thus summoned together with the King 's ordinary Council had a very great Hand Power and Authority not only in making Ordinances Proclamations deciding all weighty Controversies regulating most publick Abuses and punishing all exorbitant Offences out of Parliament in the Star-Chamber and elsewhere The Employment of these Assistants but likewise in receiving and answering all sorts of Petitions determining and adjudging all weighty doubtful Cases and Pleas yea in making or compiling Acts Ordinances Statutes and transacting all weighty Affairs concerning the King or Kingdom even in Parliaments themselves when summoned to them Yet these have no Vote but only are to speak to such Matters as their Opinions are required in and sit uncovered unless the Chancellor or Lord Keeper give leave to the Judges to be covered SECT 6. Concerning the House of Commons I Now come to consider the Honourable House of Commons and the Use The Summons of the Knights Citizens and Burgesses Constitution and Priviledges of it and shall first consider the Summons by which they have their Power to act as an House and third Estate in Parliament Mr. (c) Second Part of Brief Register a p. 1. ad 29. Prynn hath cleared that all the Writs of Summons directed to Sheriffs in King John and Henry the Third's time before 49 H. 3. to send Knights to the King at set times were either for Information of the Council what voluntary aid each particular County would grant the King in his great necessity or to assist with Men and Arms and were not elected as Representatives of the Commons till 49 H. 3. To whom I shall refer the curious for Satisfaction as also to Dr. Brady who hath by his own Inspection as well as the considerate application of what Mr. Prynn hath amassed in his Books since his late Majesties Restauration and after 1648 composed many most useful Observations for the understanding of the ancient customs usages and practices relating to Parliaments Therefore I shall endeavour to be as short as possibly I can and without obscurity contract what they and most others that treat of the House of Commons have at large filled Volumes with The form of the Writ 49 H. 3. to the Sheriffs is not (d) Cl. 49 H. 3. m. 11â— dorso expressed but after the recital of the Writ to the Bishop of Duresm and Norwich and the eodem modo to the Bishops Abbats Priors Deans Earls Lords and Barons there follows this entry
in the Record Item mandatum est singâ—lis Vicecomitibus per Angliam quod venire faciant duos Milites delegalioribus probioribus discretioribus Militibus singulorum Comitatuum ad Regem London in forma praedicta Item in forma praedicta scribitur Civibus Ebor. Lincoln caeteris Burgis Angliae quod mittant in forma praedicta duos de discretioribus legalioribus probioribus tam Civibus quam Burgensibus suis and so to the Barons of the Cinque-Ports which runs thus Rex Baronibus Ballivis Portus sui de Sandwico Cum Praelati Nobiles Regni nostri tam pro negotio Liberationis Edwardi Primogeniti nostri quam pro aliis Communitatem Regni nostri tangentibus ad instans Parliamentum c. Vobis mandamus in fide dilectione quibus nobis tenemini firmiter injungentes omnibus aliis praetermissis mittatis ad nos ibidem 4 de legalioribus discertioribus Portus vestri c. Nobiscum cum praefatis Magnatibus Regni nostri tractatum super praemissis consilium impensuri From all which it is observable first Observations on the first Writ to the Barons of the Cinque-Ports that in all probability the Writs then issued to the Knights Citizens and Burgesses were the same in form and substance with those to the Spiritual and Temporal Lords and in those to the Sheriffs c. Secondly the Qualifications of those to be elected are limited Thirdly It doth not appear whether the Counties themselves or the Sheriffs alone were to elect Fourthly The Writs for electing Citizens and Burgesses were directed immediately to the Citizens and Burgesses themselves not to the Sheriffs of the Counties Lastly that no Writ issued to the Citizens of London their Liberties then being seized into the King's Hand and that York and Lincoln are the only Cities mentioned particularly in the Roll. The first Writs entred at large in the Rolls are those (e) Cl. 22 E. 1. m. 6. dorso 22 E. 1. wherein is expressed that the King intending a Colloquium Tractatum with his Barons and great Men he commands that the Sheriffs cause to be elected two Knights De diâ—â—retioribus ad laborandum potentioribus cum plena potestate pro se tota communitate Com. praedicti ad consulendum consâ—ntiendum pro se communitate illa Hiis quae Comites Barones Proceres praeâ—icti concorditer ordinaverint in praemissis c. of the more discreet and more able to take Pains c. to come to Westminster c. with full Power for themselves and the whole Community of the said County to consult and consent each for himself and the said Community to those things which the Earls Barons and Nobles aforesaid unanimously ordain in the Premisses so that for want of such like Power the Business remain not undone I shall now insert what Variations I find in the Writs of Summons promiscuosly whether to Knights Citizens or Burgesses unless there be some remarkable difference to be observed First The Qualifications in the Writs As to their Qualifications generally both Knights Citizens and Burgesses are to be de legalioribus discretioribus ad laborandum potentioribus In the Writ 25 E. 1. (f) Cl. 25 E. 1. m. 6. dorso it is probioribus legalioribus and some two or all of these Epithetes are generally used till (g) Cl. 22 E. 3. m. 7. dorso 22 E. 3. m. 7. dorso where it is expressed that the Knights be gladio cinctos ordinem militarem habentes non alios de qualibet Civitate de quolibet Burgo duos Burgos de aptioribus discretioribus probioribus fide dignis Militibus Civibus Burgensibus Cl. 24 E. 3. par 2. m. 3. dorso and in the Twenty fourth of E. 3. there is an addition and limitation No Maintainers of Sâ—its c. to be choâ—â—n Qui non sunt Placitorum aut querelarum manutentores aut ex hujusmodi quaestu viventes sed homines valentes bonae fidei publicum commodum diligentes eligi and the self-same Limitations are in the 25 28 and 29 E. 3. So that it was used so long as the King thought fit In (h) Cl. 26 E. 3. m. 14. dorso 26 Ed. 3. it is unum Militem de provectioribus discretioribus magis expertis Militibus and so for Citizens and Burgesses by which it appears the King desired not any under Age as now is allowed to be chosen In 31 Ed. 3. besides (i) Cl. 31 E. 3. m. 2. dorso the usual words de discretioribus probioribus there is added de elegantioribus personis eligi Which in no Writ else before or after is to be found In the 36 E. 3. (k) Cl. 36 E. 3. m. 16. dorso it is de melioribus validioribus Militibus c. That of the Forty fourth of (l) Cl. 44 E. 3. m. 12. dorso E. 3. runs Duos Milites gladiis cinctos in Armis Actibus Armorum magis probatos circumspectos discretos It appears by the Parliament Roll 46 (m) Nul home de Ley pursuont busoignes en la Courte de Roy ne Viscount pur le Temps que il est Viscount soient retournez ne acceptez Chevalers des Countees neque ves qui sont Gentz de Ley Visâ—ounts ore retournez au Parlement eient Gages Rot. Parl. 46 E. 3. cum 13. E. 3. That it was accorded and assented to in that Parliament and an Ordinance made That no Lawyer pursuing Business in the Court of the King nor any Sheriff while he was Sheriff should be returned or accepted Knights of the Counties and if any were so returned they should have no wages Therefore in the fourteenth Number of the said Roll it is thus expressed Mes voyet le Roy que Chevalers Serjaunts i. e. Esquires not Serjeants at Law des meulieur valeurs du paiis soiz retornez desore Chevalers en Parlement quils sount esluz en plein Counts That Knights and Esquires of greatest value in their Country should be chosen in the full County The very next Writ 47 E. 3. (n) Cl. 47 E. 3 m. 13 dorso To be Knights giâ—t with Swords and skilful in Arms. runs thus Duos Milites gladiis cinctos seâ— Armigeros which explains the word Serjaunts before as in that Age being reputed Servants to Knights as holding Lands in such a Tenure of them de dicto Com. digniores probiores in Actibus Armorum magis expertos discretos non alterius conditionis duos Cives Burgenses qui in navigo exercitio mercandisarum notitiam habeant meliorem eligi and then in the Close follows Nolumus autem quod tu seu aliquis alius Vicecomes Regni praedicti aut aliquis alteriâ—s conditionis quam superius specificatur aliqualiter sit electus and the last Clause
till the 11 Rich. 2. was used and from the 12th to the last of Rich. 2. the words alterius conditionis are omitted and so in Ed. Fourth's time but the Clause that the Sheriff be not chosen is retained To these we may add That Bannerets were not to be chosen Members of the House of Commons (o) Cl. 7 R. 2. m. 32. dorso No Banneret to be chosen 7 R. 2. in the case of Thomas Camoys thus Nos advertentes quod hujusmodi Banneretti ante haec tempora Milites Comitatuum ratione alicujus Parliamenti eligi minime consueverunt ipsum de Officio Militis ad dictum Parliamentum pro Communitate Com. praedicti venturi exonerari volumus and so commands the Sheriff to chuse another In the 11 R. 2. we find a (p) Cl. 11 R. 2. m. 24. dorso new qualification in the Writ That the Knights c. should be Gladio cinctos idoneos discretos in Debatis modernis magis indifferentes A new Clause recalled but the King being informed that this new Clause indifferent in the modern Debates which only was to the Knights not to the Citizens or Burgesses was contrary to the forms of Elections anciently used and against the Liberty of the Commons he superseded and revoked that Clause by another Writ In the 5 H. 4. an unusual new (q) Cl. 5 H. 4. par 2. m. 4. dorso No Lawyers to be chosen Clause was added to the prohibition of Sheriffs Nolumus c. nec Apprenticius aâ—t aliquis alius homo ad Legem aliqualiter sit electus Concerning this and that in the 46 Ed. 3. the curious Reader may peruse Sir Ed. (r) 4 Instit. p. 10. Coke whose opinion Mr. Prynne (s) Second Part of Brief Register 124. Hist Ang. p. 414. from the Roll and from Walsingham clearly confutes however that Parliament is since called indoctum After this upon making the Statutes 7 H. 4. c. 15.11 H. 4. c. 1. upon the Commons Petition the ancient form for the Writs was somewhat altered and enlarged though little as to the qualifications but as to the manner of Elections c. of which I shall discourse by it self 23 H. 6. c. 15. (t) Cl. 25 H. 6. m. 24. dorso Only Knights Esquires or Gentlemen to be Knights of Shires a Statute was made concerning Elections of Knights therefore in the Writs of Summons 25 H. 6. it runs thus Milites notabiles seu saltem notabiles Armigeri hominesve generosi de natu eorundem Com. qui habiles sunt Milites fieri nullus homo de gradu valettae gradu inseriori de essendo Milites hujusmodi existant Having thus treated of the Ancient Qualifications The Modern Qualifications I shall subjoin the modern which are comprised in short To cause (u) Duâ—s militâ—s gladiis cinctos mâ—gis idoneos discretos Cives Burgenâ—esâ—de discretiorthus magis sufficientibus The Electors two Knights girt with Swords the most fit and discreet of the County aforesaid and of every City of that Country two Citizens of every Burrough two Burgesses of the discreeter and most sufficient to be freely and indifferently chosen c. Having thus discoursed of the Qualifications of the Persons elected before I make any remarks upon the whole it is fit to note the Electors and manner of Election Some are of opinion that as the greater and lesser Tenents in Capite after King John's Charter were the only Lay constituent Members of Parliament so the still smaller Tenents to those that held in Capite and the smaller Tenents in Capite if not they only did elect the Knights of Shires But I shall as fair as Records will give me light by particulars clear this and the power that was given them by the Community of the County to the Knights The first (w) Cl. 22 E. 1. m. 6. dorso Writ hitherto found is only That the Sheriff shall cause to be chosen two Knights and that they have power c. as I have before related in the Writ to the Sheriff of Northumberland See below the Choice in Yorkshire it is to cause two Knights to come chosen by the consent of the County and to have full power for themselves singly and the Community of the County and so likewise two Citizens and two Burgesses with the Assent of the Community of the City or Burrough The Knights were elected by the Community of the County that is as Dr. Brady makes it clear in his (x) P. 33â—34 Glossary the greater and less Tenents in Capite and as for Cities and Burroughs such were the chusers as held Lands in Free Burgage of the King or some great Lords who held in Capite Ann. 26 E. 1. (y) Bundel num 1. expresseth no more but the Election in general and the power to be given the Elected Ita quod dicti Milites plenam sufficientem potestatem pro se Communitate Com. praedict dicti Cives Burgenses pro se Comunitate Civitatum Burgorum praedictorum divisim ab ipsis tunc ibidem habeant c. Before I proceed any further Manucaptors or Pledges that Knights elected should meet in Parliament we must note that in the Returns made by the Sheriffs to these Writs there are found 26 E. 1. four Manucaptors for every person elected and in others two these did engage themselves that the Knights Citizens or Burgesses so elected should appear at the Parliament according to the time appointed In the County of Bedford I find Rich. de Rous Knight elected and no Manucaptors returned but that the Sheriff distrained eight Oxen and four Horses of him that he should come at the Day c. This was done by vertue of that Clause in the Writ eos ad nos ad praedictos diem locum venire facias and this way of having Manucaptors continued till the 12 E. 4. (z) Brief Register part 2. p. 50. though many had none in latter times Mr. Prynne observes That the Knights in every Shire were elected in the full County by and for the whole County and that the Citizens and Burgesses were then also elected per totam Communitatem In all the Writs of Richard the Second there is this Clause more fully inserted than in any before That the Election be in pleno Comitatu tuo de communi assensu ejusdem Comitatus Upon the making the Statutes 7 H. 4. c. 15. and 11 H. 4. c. 1. The Statutes for ordering Elections for regulating abuses in Elections the Writs of Summons 8 H. 4. and all his time and so (a) Cl. 1 H. 5. m. 9. 37. 1 H. 5. were accordingly altered that Proclamation should be made by the Sheriff in the next County day after the receipt of the Writ and the Knights to be chosen libere indifferenter Free Choice free and indifferently by those that were present at the
Proclamation and shall return the names of the Knights Citizens and Burgesses Return of Indentures in certain Indentures betwixt the Sheriff and those that were present at the Election whether the persons elected were present or not c. The Returns to the Writs 1 H. 5. Who were Chusers of Burgesses shew the Election to be by common assent and consent of those present as that for Lestwythiel where 32 Electors are named and that for Surry hath only four but adds omnium aliorum fidelium ibidem existentium The Indenture for Sussex is in French and saith Les Gentilles homes Communes the Gentlemen and Commons had chosen Richard Sayvile c. The Sheriff of Bristol saith Coadunatis discretioribus magis sufficientibus Burgensibus ex assensu Johannis Clive Majoris Villae praedictae aliorum plurimorum existentium eligimus c. The elected were two Burgesses of Bristol Thomas Norton and John Leycester both for Knights for the County of Bristol and Burgesses for the Villa of Bristol and in another these are called Burgenses and Mercatores The next alteration that I find is after the Statute of the (b) Cl. 23 H. 6. m. 21. dorso The Knights to be resident in the County and the Electors to have at least 40 s. a year Lands 8 H. 6. c. 7. which agrees with that of 23 H. 6. that every Knight to be chosen within the Kingdom of England to come to the Parliament shall be chosen by such as live in the County whereof every one have a free Tenement to the value of Forty Shillings per annum beyond all Reprizes and that those who are elected be abiding and resident in the said County and the Sheriff have power upon Oath to examine the Electors what yearly Estate they have and that the Sheriff incur the penalty of 100 Marks for his false return and the Knights so returned lose their Wages There are several Precepts that command that at such Elections (c) Proclamari inhiberi facias ne aliqua persona tunc ibidem armata seu modo guerrino arraiata ad electionem illam accedat Rot. Parl. 8 H. 6. m. 13. num 18. None to come in an Hostile manner to elect no person come there Armed or arrayed in Warlike manner or do nor attempt any thing that may be in disturbance of the Kings Peace or the Election as particularly is expressed in the Writs 2 E. 3. m. 31. dorso and several others to be perused in the first part of Prynne's Brief Register a p. 27. ad 28 177 214. Cl. 5 E. 2. m. 22. dorso 18 H. 6. and several other places which were prohibited that Elections thereby might be made free That it may appear that the Elections in ancient times were not made by such as we now call Freeholders of forty Shillings a Year which now is established by Statute Law I think it not amiss to insert what I find of a particular usage in Yorkshire (d) Prynne's Brevia Parliamentaria Rediviva p. 152 153 154. Atturneys of Noblemen and Ladies in Yorkshire Electors whereâ—â— it appears by the first Indentures of the Elections and Returns of Knights for the County of York that the Atturnies of the Archbishop of York and of sundry Earls Lords Nobles and some Ladies who were annual Suitors to the County Court of Yorkshire were sole Electors of the Knights as appears by the Return 13 H. 4. upon the Writ of 12 H. 4. betwixt Edm. Sandford Sheriff on the one part and Will. Holgate Attorney of Ralph Earl of Westmorland Willâ— de Kyllington Atturney of Lucy Countess of Kent Will. Hesham Atturney of Pet. Lord de Mâ—lolacu William de Burton Atturney of William Lord de Roos Rob. Evedal Atturney of Ralph Baron of Graystock William do Heston Atturney of Alex. de Metham Knight Henry de Preston Atturney of Henry de Percy Knight chuse John de Ever Knight and Robert de Plompton Knight Also 2 H. 5. The Indenture is betwixt William de Harrington Knight Sheriff of Yorkshire and Robert Maulevereâ— Atturney of Henry Archbishop of York William Fencotes Atturney of Ralph Earl of Westmorland William Archer Atturney of John Earl Marshal and so the Atturnies of Hen. le Scrop Knight Lord of Masham of Peter de Mulolacu Alexander de Metham Robert Roos of Margaret which was Wife of Henry Vavasor Knight and of Henry Percy The like are found in the Eighth and Ninth of H. 5. and the 1 2 3 5 7 H 6. in all which the Atturnies only of Nobles Barons Lords Ladies and Knights who were Suitors made the Elections of the Knights of Yorkshire in the County Court and sealed the Indenture I have a French Letter of Atturney from the Lady Ross to that purpose concerning which if God give me Life I shall give an account in my Antiquities of Yorkshire This Method ceased before 25 H. 6. at which time the Return made by Robert Vghtred Sheriff of Yorkshire hath the Names of Forty two Gentlemen most of which are of very ancient Families and such as had great Estates then and so continue to have though I doubt not but as it is the Custom now the much lesser part of those present were only inserted as Parties to the Indentures However by the Community we may understand who elected were not like the Freeholders now The next thing we are to consider in the Writs of Summons to Parliament What the Knights Citizens and Burgesses were summoned for is what the Knights Citizens and Burgesses so elected were by the Writ authorized to do The first Writ (e) Ad consulendum consentiendum pro se communitate illa hiis quae Comites Barones Proceres praedicti concorditer ordinaverint in praemissis Cl. 22. E. 1. m. 6. dorso that we find for Election of Knights of Shires expresseth their convening to be To consult and consent for themselves and the Community to those things which the Earls Barons and foresaid Nobles unanimously should ordain in the premisses and the Writ to the Sheriff of Northumberland is ad aâ—diendum faciendum quod tunc ibidem plenius injungemus to hear and do what we shall then and there fullier enjoin In the Writ 25 (f) Cl. 25 e. 1. m. 6. dorso E. 1. the King intending to confirm the great Charter and Charter of the Forrest that he might levy the eighth part of all the Goods of his Lieges for his most urgent necessity against the French convenes the Parliament before Prince Edward his Son and the Knights are to meet to receive the said Charters facturi ulterius quod per dictum Filium nostrum ibidem fuerit ordinatum to do further what should be ordained by the Prince The Writ 25 E. 1. (g) Bundel num 1. Ad faciâ—ndum quod tunc de Communi Conciliâ— ordinabitur in praemissis expresseth that the Knights Citizens and Burgesses are to do what then shall be
ordained in the Premisses by the Common Council and so the Returns are ad faciendum quod tunc ibidem ordinabitur In 17 E. 2. (h) Cl. 17 E. 2. m. 27. dorso it is enjoyned that the Knights c. be there ad faciendum consentiendum hiis quae in dicto Parliamento ordinari contigerit super negotiis antedictis Anno 21 E. 3. (i) Cl. 21 E. 3. m. 12. dorso there is some more Power granted to the Knights c. ad tractandum consulendum consentiendum hiis quae tunc favente divina Clementia contigerit ordinari Whereas before it was only to hear and do what was ordained by the King the Prince or the great Council here it is to treat consult and consent to what then should be ordained But the Writ Anno 36. (k) Cl. 36 E. 3. m. 16. dorso explains who had the ordaining Power for it runs ad consentiendum hiis quae per nos ac dictos Praelatos Magnates Proceres ordinari contigerit So here the King the Bishops and the Nobles ordain and the House of Commons are to assent Anno 47 E. 3. (l) Cl. 47 E. 3. m. 13. dorso the words are ad faciendum consentiendum eis quae tunc de Communi Concilio Regni nostri favente Domino contingant ordinari which Form is continued to this day so that according to the import of the Writ the Commons are to do and assent to what shall be ordained in Parliament by which two words I suppose they have the full Power to frame Bills and to assent which also implies a Power of Dissent to the Bills sent to them by the House of Lords Having thus drawn into one Scheme the most material Alterations and variety of Expressions from all the Writs of Summons of Mr. Prynne and others that fill so great Volumes and truly as I hope quoted all the Records which illustrate these Particulars and in a very clear Landscape represented the most material Parts of the two so noble and wisely constituted Houses from whose great Wisdom with the Sovereigns Authority and Fiat all those wholesome and necessary Laws are derived that establish this great Monarchy I shall now pass to some general Remarques and from thence to the ancient and modern Priviledges of the House of Commons First it is very obvious Kings not confined to two Knights c. that the Kings of England formerly were not confined to summon only two Knights Citizens and Burgesses as now for Anno 22 (m) Cl. 22 E. 1. m. 6. dorso E. 1. the King issued out his Writs of Summons for two Knights of every County after which follows a second Writ entred immediately after in the same Dorse for other two Knights in these words Praeter illos duos Milites eligi facias alios duos Milites legales c. So 28 E. 1. three Knights or other three de probioribus legalioribus discretioribus Liberis Hominibus c. eligi These probi legales homines were such as held in Capite So in the (n) Cl. 26 E. 3. m 14. dorso Vâ— hâ—mines ab ista occupaâ—â—one autumpâ—alibus quo minus possumus retrahamus 26 of E. 3. the King considering that it was Harvest time that he might not withdraw Men from that Employment unum tantum Militem de quolibet Comitatu ad dictum Concilium mittendum habere volumus ista vice So (o) Cl. 45 E. 3. m. 21. dorso Ordinavimus ut laboribus parâ—atur expensis 45 E. 3. the King in his Writ saith That he might spare the Labours and Expences he will have treaty with some only of the Magnates by which the Knights of Shires here are to be understood Citizens and Burgesses One Citizen and one Burgess therefore appoints one Knight for the County of Kent one Citizen for Canterbury and one for Rochester whom he names if they be alive otherwise the Companion of him that was before In 18 E. 3. the Writs issued only for two (p) Brevia Parl. rediviva p. 144. ad 147. Knights in every County and no Writ for Electing Citizens or Burgesses and 26 E. 3. the Writs are for one Knight in every County and no Citizens or Burgesses yet in (q) These things are now reduced to a certainty by the Statutes 5 R. 2. c. 4. and others Prynne's Brief Regisâ— par 2 p. 32. this the King issued out particular Writs to Mayors and Bailiffs oâ— Cities and Burroughs to elect and return one Citizen for every City and one Burgess for every Burrough Secondly That the Kings of England had a Power to supersede particular Persons being chosen to resummon those that returned without leave or appoint others in their places and omit sending Writs to some Cities and Burroughs that had formerly sent and to create new Burroughs So the Lord Camoys (r) See Brief Regist p. 118. ad 123. as I have instanced before being elected by the King 's first Writ the King by new Writ declared it null and ordered to proceed to a new Election and the King appears in that Age to be the sole Judge of void and double Elections So in the (s) Cl. 28 E. 1. m. 7. dorso 28 Ed. 1. Phillip de Geyton being chosen one of the Knights for the County of Northampton and could not attend the King orders another to be chosen So 5 (t) Cl. 5 E. 2. m. 26. dorso E. 2. because the Knights Citizens and Burgesses of Yorkshire went away for certain causes not there expressed it is probable without the Kings Leave therefore he sends his Precept to the Sheriff to cause them to return vel alios ad hoc idoneos loco eorum si ad hoc vacare non possint But this more especially is to be taken notice of when I come to discouse of Priviledges of Parliament As to the last particular of the King 's appointing new Burroughs The King makes new Burroughs impowering them by special Charters to send Citizens and Burgesses to all Parliaments to be afterwards held by the King his Heirs and Successors Judge (u) Reports p. 14 15. Hobarts hath cleared it and (w) Brief Register par 2. p. 170. Mr. Prynne hath reduce them all into Chronological Tables and he makes it a certain Note that where the Sheriff makes his Return nulli sunt Cives nec Burgenses in Com. praedict or non est alia Civitas vel Burgus or non sunt alii Burgi we may certainly conclude that every City or Burrough omitted then out of those ancient Returns and since returned for Cities or Burroughs were made Cities and Burroughs since that time as the curious may see at large in his (x) P. 223. ad 297. Brevia Parliamenta Rediviva But on the other side Old Burroughs discontinued for what reason we find many Burroughs who elected Burgesses in 26 E. 1. as particularly Pontefract and
by Sir Edward Coke (m) 4. Instit p. 12.1 Inst p. 69.2 Inst 7 8. Preface to ninth Report beyond all bounds of Truth and Modesty as also the great mistake of our learned judicious Antiquary (n) Archaion p. 257. Mr. Lambard and (o) Doderidge of the Antiquity of Parliaments others of great note who affirm that the true original Title and Right of all our ancient Cities and Burroughs electing and sending Burgesses and Citizens to our Parliaments is Prescription time out of mind long before the Conquest it being a Privilege they actually and of right enjoyed in Edward the Confessor's time or before and exercised ever since Indeed the whole series of the great Councils in the Saxon Danish and Norman Kings Reigns to the Forty Ninth of Henry the Third evince the contrary As to the Wages of the Knights Citizens and Burgesses The Wages of Knights Citizens and Burgesses it being a thing now obsolete though not out of force by those that would claim them I shall only note that the first Writ for them is coeval with our Kings first Writs of Summons and the reason given in the Writ is That whereas the King had summoned two Knights c. and they had stayed (p) Ac iidem Milites moram diuturniorem quam credebant traxerint ibidem propter quod non modicas fecerint expensas Cl. 49 H. 3. m. 10. dorso longer than they believed they should do by reason of which they had been at no small Expence therefore the King appoints the Sheriff by the counsel of Four lawful Knights to provide for the Two Knights of the Shire their reasonable Expences The Writ of the 28 Ed. 1. (q) Rot. Claus 28 E. 1. m. 12. dorso commands that they have rationabiles expensas suas in veniendo ad nos ibidem morando inde ad propria redeundo their reasonable Expences in coming to the King staying there and returning to their homes The like we find for the Citizens and Burgesses in the 1 Ed. 2. there was Four Shillings a day allowed for every Knight and Two Shillings for every Citizen and Burgess Mr. Prynne (r) Brief Parliamentary Writs part 4. p. 4. gives many good reasons why these Wages were allowed some of which I shall recite As first that all Laws allow Sallaries for Services and those being public Servants and Representatives or Atturneys for the Counties Cities Burroughs to consult about the great and arduous Affairs necessary Defence Preservation and Wellfare of the King and Kingdom and theirs for and by whom they were intrusted it is reason as they receive the benefit of their good Service in giving their good Advice towards the redressing of Grievances and making wholsom Laws that they should have allowed their necessary Expences Secondly It appears in ancient times there was no such ambition to be Parliament-men as of late but the Persons elected thought it a burthen therefore lest being elected they should neglect to repair to the Convention they had Sureties called Manucaptors for their Appearance Thirdly This obliged the Counties Cities and Burroughs to be carefuller in electing the discreetest ablest fittest and most laborious persons who would speediest and best dispatch all Public business which occasioned the shortness of Sessions Fourthly It begat a greater confidence correspondence and dependance betwixt the Electors and Elected Fifthly It kept poor petty Burroughs unable to defray the Expences of their Burgesses from electing or sending Members to our Parliaments and oblig'd some to Petition to be eased of the Charge whereby the number of Burgesses was scarce half so many and Parliaments were more expeditious in Councils Aids Motions and their Acts and Debates and so the Sessions were much shortned the Elections were then fairer and for the most part unquestionable the Commons House less unwieldy Privileges of Parliament less enlarged beyond the ancient Standard abuses in Elections Returns and Contests about them by reason of the Mercenary and Precarious Voices less troublesom whereas now in every new Parliament a great part of the time is spent in the regulating Elections But Mr. Prynne hints little upon one great cause of that usage which was that in Burroughs as well as Cities most what the persons elected were the Inhabitants in the Cities and Burroughs Merchants Tradesmen or the most popular Burghers as will appear to whoever peruseth the Chronological Catalogue Mr. Prynne (s) P. 900. to 1072. with no small pains hath collected into his Fourth Part of his Brief Register where I believe one can pitch upon no City of Burrough from the time of Ed. 1. to the 12 Ed. 4. but he will find by the very names that they were such as I have mentioned I am well assured of it for Yorkshire and particularly for the City of York they being generally such as we find in the List of their Mayors Beverly hath Four of the Sirnames of good Families and Kingstone upon Hull hath (t) 8 E. 3. William a S. Pole from whom the great Family of Suffolk sprung but it is well known he was a Merchant there Now since every part of the Country abounds with Gentlemen of Plentiful Fortunes Why wages not now paid to Knights Citizens and Burgesses Generous Education such as are versed in Affairs of their Country as Justices of the Peace Deputy Lieutenants and have been Sheriffs Members of Parliament and born Publick Offices there can be no expectation or Fear that those that are Candidates for Parliament Men for Burroughs will expect any Sallary or Reward so long as they chuse them There being generally Competitors who instead of expecting Wages are generally obliged now to vast expences to purchase the Votesâ— of the Electors so that now the Honourable House of Commons is quite another thing than what it was wont to be in elder Ages when they were summoned principally to give Assent to what the King and the Lords did to assent to Aids and Taxes and apportion their own Taxes bring up their Petitions concerning Grievances to be redressed by the King and his Council or the King and Lords and draw up Impeachments against great Offenders and such like Having thus considered the Writs of Summons to the Members of the House of Commons before Henry the Seventh's time in all its branches Copy of VVrits of Summons now used to the Sheriffs I shall give a Transcript of the Writ of Summons used at this day whereby may be seen how much of the old form is continued which I shall insert in Latin and English that the Emphasis of the Original may not be lost REX Vicecomiti Salutem c. Quia de advisamento assensu Concilii nostri pro quibusdam arduis urgentibus negotiis nos statum defensionem Regni nostri Angliae Ecclesiae Anglicanae concernentibus quoddam Parliamentum nostrum apud c. die c. proxime futuro teneri ordinavimus ibidem cum Praelatis
Magnatibus Proceribus dicti Regni nostri colloquium habere tractatum Tibi praecipimus firmiter injungentes quod facta Proclamatione in proximo Comitatu tuo post receptionem hujus Brevis nostri tenendo die loco praedicto duos Milites gladiis cinctos magis idoneos discretos Comitatus praedicti de qualibet Civitate Comitatus illius duos Cives de quolibet Burgo duos Burgenses de discretioribus magis sufficientibus libere indifferenter per illos qui Proclamationi hujusmodi interfuerint juxta formam Statutorum inde editorum provisorum eligi nomina eorundem Militum Civium Burgensium sic electorum in quibusdam Indenturis inter te illos qui hujusmodi Electioni interfuerint inde conficiendis sive hujusmodi electi praesentes fuerint vel absentes inseri eosque ad dictum diem locum venire facias ita quod iidem Milites plenam sufficientem potestatem pro se Communitate Comitatus praedicti Cives Burgenses pro se Communitate Civitatum Burgorum praedictorum divisim ab ipsis habeant ad faciendum consentiendum his quae tunc ibidem de communi Concilio dicti Regni nostri favente Deo contigerint ordinari super negotiis ante dictis Ita quod pro defectu potestatis hujusmodi seu propter improvidam Electionem Militum Civium aut Burgensium praedictorum dicta negotia infecta non remaneant quovis modo Nolumus autem quod tu nec aliquis alius Vicecomes dicti Regni nostri aliqualiter sit electus Et Electionem illam in pleno Comitatu factam distincte aperte sub Sigillo tuo Sigillis eorum qui Electioni illae interfuerint nobis in Cancellariam nostram ad dictum dâ—em locum certifices indilate remittens nobis alteram partem Indenturarum praedictarum praesentibus consutam una cum hoc Brevi Teste meipso apud Westmonast THE King to the Sheriff Greeting Whereas by the Advice and Consent of our Council Advice of Privy Council for certain difficult and urgent business concerning us and the State and defence of our Kingdom of England and the English Church we have ordained a certain Parliament of ours to be held at our City of c. the day c. next ensuing and there to have conference Conference with Prelates c. and to treat with the Prelates Great Men and Peers of our said Kingdom We command and straitly enjoyn you Proclamation at County-Court that making Proclamation at the next County Court after receipt of this our Writ to be holden the day and place aforesaid Two Knights girt with Swords c. you cause two Knights girt with Swords the most fit and discreet of the County aforesaid and of every City of that County two Citizens Two Citizens and of every Burrough Two Burgesses two Burgesses of the discreeter and most sufficient Indifferently chosen by those present at the Proclamation according to Statutes to be freely and indifferently chosen by them who shall be present at such Proclamation according to the tenure of the Statutes in that case made and provided Their Names inserted in Indentures betwixt the Sheriff and the Electors and the names of the said Knights Citizens and Burgesses so chosen to be inserted in certain Indentures to be then made between you and those that shall be present at such Election whether the parties so elected be present or absent and shall make them to come at the said day and place To cause them to come at the Day and Place The Knights from the County the Citizens and Burgesses from their Cities Burroughs to have full power to do and consent so that the said Knights for themselves and for the County aforesaid and the said Citizens and Burgesses for themselves and the Commonalty of the aforesaid Cities and Burroughs may have severally for them full and sufficient power to perform and to consent to those things which by the favour of God shall there happen to be ordained by the Common Council of our said Kingdom concerning the businesses aforesaid Lest for want of that Power or improvident Election the Business be undonâ— so that the business may not by any means remain undone for want of such power No Sheriff to be chosen or by reason of the improvident Election of the aforesaid Knights Citizens and Burgesses Election to be in full County But we will not in any case you or any other Sheriff of our said Kingdom shall be elected The Indentures to be sealed by the Sheriff and Electors And at the day and the place aforesaid the said Election made in the full County Court A Counterpart tacked to the VVrit returned into the Chancery you shall certify without delay to us in our Chancery under your Seal and the Seals of them which shall be present at that Election sending back unto us the other part of the Indenture aforesaid affiled to these Presents together with this Writ Witness our self at Westminster SECT 7. Concerning the Speaker and the Privileges of the House of Commons IT is not my design to treat of all things relating to the Constitution My Design not to controvert the Privileges of the House of Commons but to shâ—w the gradual Alterations Laws and Customs of the House of Commons there are several useful Books extant which are fit for the Honourable Members of the House to consult What I most aim at is to shew what the Ancient Usage hath been and how from time to time things have been refined to the Mode and State they are now in and I hope those great Spirits that honour their Countries with their Service will pardon one that designs nothing more than to give them a Profile of the whole Model both in the days of our remotest Ancestors and what it was in more Modern times under just and undoubted Soveraigns as also how much it was transformed when the pretended House of Commons being confederated with a successful Army murthered their Soveraign voted away the House of Lords and assumed the Title of the Supream Authority of the Nation of which last I shall treat in the next Chapter The Members being according to the Kings Command come to the place appointed sometimes the Soveraign with the Lords in their Robes have rid in State to the Parliament which is generally yet observed in Scotland and Ireland The Solemnity at the Opening of the Parliament However at the opening of the Parliament the King is seated on his Throne under the Canopy with his Royal Crown on his Head the Chancellor standing something backward on his Right-hand and the great Officers as Lord Treasurer Lord President of the Kings Council Lord Privy Seal Great Chamberlain the Lord Constable Marshal Lord Admiral Lord Steward and Kings Chamberlain attend on either side the State or in their Seats
de Sabaudia J. Filius Galfridi Jacobus de Audel Petrus de Monteforti vice totius Communitatis praesentibus Literis sigilla nostra apposuimus in Testimonium praedictorum So that it is plain it was not Peter de Montefort that signed vice Communitatis but they all did it and he was a great Baron himself the Head of whose Barony was Beldesent Castle in Warwickshire I think it not amiss here to offer my Opinion concerning this Question and the great Controversie betwixt Dr. Concerning the Commons first summoning to Parliament Brady and Mr. Petyt and those that are so earnest to find the Commons summoned to Parliament before the 49 H. 3. before King John granted his Charter wherein he grants that he will cause to be summoned the Archbishops Bishops Abbats Earls and greater Barons of his Kingdom singly by his Letters and besides (i) Et Praeterea faciemus submoneri in generali per Viâ—ecomites Ballivos nostros omnes alios qui in Capite tenent de nobis Matt. Paris fol. 216. Edit ult num 20. will cause to be summoned in general by his Sheriffs The Tenents in Capite in stead of the Representative Commons as now and Bayliffs all others which hold of him in Capite at a certain day there is no doubt but the Tenents in Capite such of them at least as were eminent for Parts or as the King pleased were summoned to the great Councils and it being in that Charter said that the cause of the Meeting should be expressed in the Summons and that Forty days warning should be given and in the same Charter that the City of London should have all its ancient Liberties and free Customs and that all other Cities Burghs and Villa's which was of the same import as a Free Burrough as we find in Pontefract which is always stiled Villa Some summoned from Cities and Burroughs before King John's time but not as our Citizens and Burgesses now by Representation and the Inhabitants Burgenses who held a certain Land called Burgage Land and the Barons of the Cinque Ports and all the Ports should have all their Liberties and their Free Customs ad habendum commune concilium Regni de Auxiliis c. that is as I suppose to have some of their Members at the great Councils where Aids were to be granted to the King other ways than in three cases before excepted that is to redeem the Kings body to make his Eldest Son a Knight and to marry once his Eldest Daughter excepting which three Particulars reserved before in his Charter he had granted that no Scutage nor Aid should be laid on his Kingdom unless by the Common Council of his Kingdom From whence I think may be inferred that such Cities Burroughs and Villa's which held in Capite or the Lord that was principal owner of them by his Praepositus Ballivus or some that held immediately under him and so some for the Dominicae Civitates Burgi Regis might be summoned with the lesser Barons or the other Tenents inc Capite But this doth not prove them to come by way of Representatives nor that they had any more Power than the Knights Citizens and Burgesses had in after-times which as I have made it apparent by the several expressions in the Summons was only to hear and assent to what the King and Magnates ordained Since there are now extant no Summons in King John's time or before the 49 H. 3. except some few that are about the Tenents in Capite aiding the King in his Wars the subsequent Practices are the best Expounders of ancient Usages Upon the whole I do judge that before King John's Charter there were many of the Tenents in Capite summoned to the great Councils but so as the King had his liberty to summon whom he pleased and that some from Cities Burghs Villa's and other Ports did come to the great Council but still at the Kings pleasure and that in King John's time the body of the Kingdom siding with the Lords that so often rebelled against him the Lords thinking to make their Party stronger got the Clause for other Tenents in Capite to be summoned by general Summons After King John's Charter the Tenents in Capite so numerous as might be reputed an House of Commons Now whatever number were convened before King John's Charter this general Summons must greatly encrease the House of Commons as I may call it and there needs no such strife about the want of Freemen in these Councils for after this Charter all who were properly Freemen were capable the other were generally Tenents to them and Homagers which was a Tenure that though it might free their Persons yet their Lands were obnoxious to forfeiture upon every breach of Homage and their Lords had the power of taxing them so that in some sense they were their Tenents Representatives and as long as they were Freeholders themselves and were a more numerous body if they all appeared as for any thing I see they might do if not hindred by Impotence Nonage or the Kings service they far exceeded the number of Representatives in the Reigns of King H. 3. E. 1. and E. 2. So that it amounts to the same thing as to the general Freedom of the Nation when all these were Members of the Great Councils Who properly Freeholders in Kâ— John's time whether the common Freeholder were represented or not as now which Dr. Brady hath so nervously confuted every where in his Introduction that they were not that I think the Freedom Mr. Petyt Mr. Pen and others make so great a coyl about no ways impaired by Dr. Brady who like a judicious Person would have us use propriety of Speech and rather be thankful for the Freedom we now enjoy and our Ancestors have from time to time obtained by the grant of Kings than to make such Claims to native Freedoms and Liberties as Mr. Pen would have it that our Ancestors contended for as if their Ancestors had enjoyed them before we had any Kings and stipulated with their Kings for them before they admitted them to Soveraignty which no considering person that will impartially read ancient History either of our Country or others can find any certain footsteps of To return now to the business which the foregoing observation gives some light to I conceive as the Thegns the Kings Prepositi and Reeves As the Thegns in the Saxon-times so the Praepositi Reeves c. of Burroughs after by reason of their Imployments about the Kings Demesn Lands governing of Burroughs Stewards of Hundreds Wapentakes and men employed in other civil Affairs of the Kingdom did meet in the Saxon Councils so from Cities and Burroughs where great Lords had Fees as most if not all of them may be easily proved to have been held immediately of the King or of some of the very great Barons there might come before King John's time some Members to the great
Council being in the Charter to my judgment reckoned as one of their Franchises or rather something exceeding their municipal Liberties and Free Customs being coupled to them with an and to have a Priviledge to have some of them Members of the great Council of the Kingdom What the Tenents in Capite were summoned for for so I think the words ad habendum commune Concilium Regni de Auxiliis must be understood But then when it is restricted there with de Auxiliis only it may very well give a ground to their opinion that think the principal use was to proportion the Aid or Tax and assent to what the King the Bishops Abbats Priors Earls Barons and Peers did ordain However this was That such great Numbers sate not with the Lords it seems clear to me that this numerous body of so different an Order from the Barons majores must have a distinct Place for consulting apart and must select Committees to transact with the King and Lords and must for order sake appoint some to speak for them what they petitioned for or assented to and could not constantly sit with the Prelates and Lords and do rather believe that the Prelates had one place where they sate and the Barons another and these Tenents in Capite a third at least for their usual Consultations among their own Order and met in the public place when there was occasion or might have access by Committees which certainly was the practice in after-times as appears in that Parliament of 6 E. 3. (k) Rot. Parl. 6 E. 3. num 2. Cest assavoir les Prelâ—â—z par eux meâ—mes les ditz Countes Barouns autres Grantz par eux mesmes auxint les Chivalers des Countes par eux mesmes No mention of Citizens or Burgesses the morrow after the Nativity of our Lady the King requiring the advice of his Parliament touching his French Affairs and Voyage thither It is said they thereupon treated and deliberated that is to say the Prelates by themselves and the said Earls Barons and other great men by themselves and also the Knights of the Counties by themselves and then gave their advice From whence by the way we may observe the true ground of calling our Parliament Houses without the King the three Estates Having dispatched this I come now to consider the Speakers of the House of Commons Hackwel (l) Modâ—â— tenendi p. 200. Method of Parl. 124. The first Speaker upon Record and Elsyng name the first that is found upon Record to be Sir William Trussel 13 E. 3. Num. 9. where it is said Les Chivalers des Countes les Commons responderent per Monsieur William Trussel but the Record names him not Speaker however he performed that Office then Hackwel names Scroope before him 6 E. 3. and Sir Peter de la Mare after him but the first that Mr. Elsyng or Mr. Prynne (m) Prynne's Abridgment p. 151. finds upon Record and by the name of Speaker is Sir Thomas Hungerford 51 E. 3. for it is said that the last day of the Parliament he declared that during the Parliament he had generally moved the King to pardon all such as were in the last Parliament unjustly convicted which imports that this was a Petition of the Commons presented by him their Speaker Anno 1 R. 2. Sir Peter de la Mare being Speaker made his Protestation that what he had to say was from the whole House therefore required if he should speak any thing haply without their consents that the same ought to be amended before his departure from the said place The first Petition we meet with that a Speaker (n) Abridgment of Records p. 174. Petition for Freedom of Speech made to the King from the Commons was 2 R. 2. by Sir James Pickering their Speaker that if he should speak any thing that haply might be ill taken it might be as nothing so as the Commons might at any time amend the same and the like he petitioned for himself which is the first Petition as to Liberty of Speech we meet with The first Speaker presented to the King in full (o) Id. p. 360. Parliament by the Commons 20 Ric. 2. was Sir John Bushey the King 's great Favourite In this Parliament the Houses sate together in a long (p) Hackwel Moâ—us p. 202. House built of Timber in the Palace-Yard at the Impeachment of the Duke of Gloucester the Earls of Arundel and Warwick Sir Arnold Savage was Speaker 2 H. 4. who is the first upon Record that the Commons were required by the King to chuse as Speaker and he was again in 5 H. 4. who desired the King in the name of the Commons that they might freely make complaint of any thing amiss in Government which was yielded to by the King Anno 7 H. 4. Sir John Tiptost was chosen Speaker who desired to be discharged because of his Youth but he was allowed he forgot to make the usual Protestation but came up the next day and made it with this Addition (q) Rot. Parl. 7 H. 4. num 6. That if any Writing were delivered by the Commons in this Parliament and they should desire to have it again to amend any thing therein it might be restored to them which was granted While he was Speaker he Signed and Sealed the Deeds of the entailing of the Crown on H. 4. (r) 7 H. 4. with these words Nomine totius Communitatis He was a Person of extraordinary Parts Son of John Lord Tiptost and for all the Apology for his young Age he was within three Years after made Lord Treasurer of Enggland and by H. 6. made Marquess of Worcester Anno 1 H. 5. William Sturton Esquire was chosen Speaker who without the assent of his Companions did agree before the King to deliver in Parliament certain Articles but three days after the Commons sent Sir John Doreword (r) 7 H. 4. with several of their Members to the House of Lords to declare to the King that their Speaker had no Authority from them to yield thereto and the King was pleased to accept of it There are three Petitions the approved Speaker makes to the King First That the Commons may have freedom of Speech as of (s) 25 H. 1. num 10. The Speakers of latter Times express the particular Privilege of Freedom from Arrest right and custom they have had and all their ancient and just Privileges and Liberties allowed them In Sir Thomas Moor's Speech 14 H. 8. it was thus worded That if in communication and reasoning any man in the Commons House should speak more largely than of duty they ought to do that all such offences should be pardoned and to be entred upon Record which was granted only I find that H. 4. (t) Rot. Parl. H. 4. num 10. said that the hoped or doubted not that the Members of Parliament would not speak any unfitting thing or abuse
Thomas Moile their Speaker before Sir Thomas Audley Lord Chancellor and all the Lords and Judges there assembled judging the contempt to be very great referred the punishment thereof to the Order of the Commons House The Lord Chancellor offered to grant them a Writ to the Sheriffs of London to require delivery which the House refused being clear in opinion that all Commandments and other Acts proceeding from the nether House were to be done and executed by their Serjeant without Writ only by shew of his Mace which was his Warrant The House applying it self to the Lords who were saith Mr. Prynne (i) Brief Register part 4. p. 860. the ancient proper Judges of the Violations and Violators of the Commons Privileges was the right Parliamentary way for their Members Release and if they had applied themselves to them at first they had prevented all Affronts to (k) Id. p. 862 863. themselves and Officers and met with no opposition And Mr. Prynne humbly apprehends that this Precedent will not warrant an absolute Jurisdiction in the House of Commons without any antecedent Complaint or (l) See Freeholders Grand Inquest from p. 50. to 64. Petition to the King or Lords in Parliament to punish any breach of their Members Privileges not first complained of to Application to be made to the King and Lords for punishment of Violators of this Privilege and adjudged by the King or Lords to be an actual breach or referred to themselves by the Lords or King to punish or without their subsequent Ratification or that it will justifie the Enlargement of any of their Members or menial Servants out of Execution by their Mace alone without an Habeas Corpus Writ of Privilege or special Act of Parliament or matter of Record for the Sheriff or Officers Indemnity against Actions of Escape or for the Plaintiffs relief to recover his Debt by a second Execution for the proof of all this I must refer the inquisitive Reader to Mr. Prynne's (m) Sect. 10. a p. 622. ad 870. Fourth Part of his Brief Register wherein he hath largely examined most of the then claimed Privileges of the House of Commons and disallows of them when not judged by the King and Lords In which Controversie I shall not presume to write any thing because it will be more pleasant and satisfactory to have recourse to himself SECT 10. Concerning Regulating Elections THE first thing I find concerning new Elections in the place of Absents and Defaulters is in the 5 E. 2. Cl. 5 E. 2. m. 26. dorso as I have touched before divers Knights Citizens and Burgesses departing from the Parliament the King thereupon issued out Writs to several Sheriffs to summon them to return to the Parliament Vel alios ad hoc idoneos loco ipsorum sâ— ad hoc vâ—care non possunt eligere or to chuse other fit persons in their places if they cannot be at leisure to come up The Commons in this Age medled not with the re-summoning or causing new ones to be Elected in the rooms of those that could not come I have before instanced in several Summons The King anciently only ordered new Elections wherein the Kings ordain the Sheriffs to re-summon the Members of former Parliaments or others for those who were dead or unable and sometimes but one of those By which it appears that in those days the King solely Authorized new Elections where any were dead or disabled The first Petition against an undue Election First Petition against undue Elections Prynne 's Brevia Parl. râ—â—iviva p. 286. A nosâ—re tres excellâ—nt tres gracious Seignior nostre Seignior le Roy les â—res nobles Seigniors Sâ—ges Comuns c. pleignont les Major c. that I have met with is Anno 7 R. 2. from the Mayor Bailiffs and Commons of Shaftsbury To our thrice Excellent and thrice Gracious Lord our Lord the King and the thrice noble Lords and sage Commons of this present Parliament That whereas they had chosen Walter Henly and Thomas Steward the Sheriff of Dorsetshire for the last had returned Thomas Camel to the great dammage of our Lord the King and contrary to the Will of the Mayor c. So that here the Complaint is to the King the Lords and Commons jointly and the name of this Camel is not endorsed returned in the Writ but the other two In all the Statutes made for regulating Elections they run See Freeholders Grand Inquest p. 15 16. The King willeth and commandeth 5 Ric. 2. c. 4. Our Lord the King at the grievous complaint of the Commons hath ordained 7 H. 4. c. 15. and so Our Lord the King ordained 11 H. 4. c. 1.5 H. 5. and such like in all the Statutes to 8 H. 6. So in the Statute 5 R. 2. Par. 2. c. 4. All Persons which shall from henceforth receive the Summons of Parliament Prynne's Plea for Lords p. 393. and come not at the said Summons except he may reasonably and honestly excuse himself to our Soveraign Lord the King shall be amerced and otherwise punished as of old time c. So that here the Excuse is to be made to the King so that it was not then in use for the Commons to fine and tax their Members In the Parliament holden at Westminster 5 H. 4. Id. 391. Rot. Parl. 5 H. 4. num 38. because the Writ of Summons of Parliament returned by the Sheriff of Rutland was not sufficiently or duly returned as the Commons conceived the said Commons prayed our Lord the King The Commons petition the King and Lords to examine and order undue Returns and the Lords in Parliament that this matter may be duly examined in Parliament c. Whereupon our Lord the King in full Parliament commanded the Lords in Parliament to examine the said matter and to do thereupon as to them should seem best in their Discretions So the Lords called before them the Sheriffs and Parties and it was agreed by the said Lords that the Sheriff should amend his Return and the Sheriff for his default should be discharged of his Office and committed Prisoner to the Fleet and make Fine and Ransom at the King's pleasure Upon this and other Precedents Mr. Id. p. 364 365. Mr. Prynne's Opinion Prynne saith That no Statute doth give the Commons House the least Power or Authority to judg or determine the Legality or Illegality of any Elections but leaves this to the King and Lords to redress as at first before their making and gives the Knights duly chosen but not returned a hundred Pound Damages against the Sheriffs and Citizens and Burgesses forty Pound against Mayors and Bailiffs who make false Returns by way of Action of Debt in the Kings Courts at Westminster or in the Star-Chamber when in being or before the King Lords and Council as in Bronker's case Dyer fol. 113 168. Plowden fol. 118. to 131. Old Book of
Entries fol. 446 447. Trin. 1 Eliz. not in the Commons House as the Statutes and Precedents in the Law-Books resolve So that he saith how the Commons are now become sole Judges of all false Returns and Elections and that perlegem consuetudinem Parliamenti against all these Acts and Precedents let Sir Edward Coke and others resolve him and the Intelligent when they are able for late and arbitrary Priviledges are of no value but ancient usage and Law of our Parliaments and solid Reason which cannot be produced to justify these late Innovations and Extravagances The Statute of 8 H. 6. Rot. Parl. 8 H. 6. num 391. Petitions from the Commons to the King and Lords about Elections to prevent Tumults Uproars and Disorders in the Elections is grounded upon a Petition from the Commons that the King by advice and assent of the Lords Spiritual and Temporal would seclude all but Freeholders of forty Shillings a Year Lands above all Reprizals which was more than forty Pound a Year now being the twentieth part of a Knights Fee In 18 H. 6. Rot. Parl. 18 H. 6. m. 13. num 18. it was shewed to the King and the Lords Spiritual and Temporal That Gilbert Hore Sheriff of the County of Cambridge made no Return of Knights upon the King 's Writ Whereupon the King by Advice and Assent of the Lord Spiritual and Temporal ordered a new Writ So that then there were no other but the King that had the Power to cause new Elections with Advice and Consent of the Lords and so the King issued out new Writs Anno 29 H. 6. Nicholas Stynecle Knight Richard Bevel c. and other notable Esquires Gentlemen and other Men holding Fees who may expend 40 s. per Annum beyond Reprizes chose Robert Stonham and John Stynecle notable Esquires To this is annexed a Petition to the King our Gracious and Sovereign Lord Petition of Subjects to the King about Elections signed by 140 Gentlemen and Freeholders in behalf of those against one Henry Gimber who was not of Gentile Birth chosen by the number of 70. and the Under-Sheriff countenanced him and his Party and would not suffer these 140 to be examined about their Estates and give Voice thoue he might clearly yarely expend 20 Mark without that we should have offended the Peace of Yow our most doutye Soveraign Lord and so we departed for dread of the said Inconveniences that was likely to be done of Manslaughter and what the Sheriff will return in this behalf we can have no notice For which Causes we your true humble Suggets and Liegemen in our most lowly Wise beseeching you our most douty Sovereign Lord and King these Premisses may be considered for Your most Aid and our Freedom that the said Sheriff may be by Your great Highness streightly charged to return the said Robert Stoneham c. Thus far the Petition From this memorable Petition Mr. Prynne makes many observations the principal of which are that the King himself was to redress and rectify all false and undue Returns Secondly That this is the only clear Declaration and Record he hath met with complaining against a Sheriff giving of an Oath A Sheriffs denying the Poll petitioned against and Poll to some Freeholders and denying it to others Thirdly That when legal Electors cannot be sworn or polled without breach of the Peace or Manslaughter they may justly depart and ought to make such a complaint and declaration under their hands and Seals Fourthly That Ignoble persons who are not of Gentile birth ought not to be elected Knights of Shires Whoever desires to peruse more concerning the ancient usage in Elections may peruse Mr. Prynne's Plea for the Lords from page 371. to 416. his Second Part of Brief Register p. 118 119 139 140. and several other places I shall only add what Queen Eliz. Freeholders Grand Inquest p. 60. D' Ewes's Journal fol. 393. 18 Regni said in this case That she was sorry the Commons medled with chusing and returning Knights of the Shire for Norfolk it is to be presumed the like she might have said of any other County if there had been occasion a thing impertinent for the House to deal with and only belonging to the Office and Charge of the Lord Chancellor from whom the Writs issue and are returned Having thus given a brief account of the ancient Usage I come to the modern way which according to Mr. Hackwell Memorials c. 6. p. 20. The modern Use of Regulating Elections is that a general order hath usually been made in the beginning of the Session to Authorize the Speaker to give Warrant for new Writs in case of Death of any Member or of double Returns where the Party makes his choice openly in the House during that Session as it was ordered in the beginning of the Parliament 18 and 21 Jacobi primi and where such general Order is not made Writs have issued by Warrant of the Speaker by Vertue of special Order upon motion in the House and this Warrant is to be directed to the Clerk of the Crown in Chancery by order of Parliament 13 Nov. 1601. The Committee of Privileges 24 March 21 Jacobi making their Report a question was put Whether Sir Thomas Holland and Sir John Corbet were well elected Knights for Norfolk the House were divided and it was over-ruled by the House that the No's should go forth So that now the House of Commons are the sole Judges of the validity or invalidity of Elections and I suppose the King and Lords judging the House the competentest Persons to make enquiry and being willing to be eased of the trouble of such Matters as relate only to the Members of the House of Commons have rather by connivence than by any positive Ordinance in the House of Lords dismissed this to the House of Commons against which Mr. Prynne sadly complains Plea for the Lords p. 413. saying That since the Committees of Privileges have interposed in them their Proceedings have been very irregular and illegal in respect all the Witnesses they examine touching them are unsworn and give their Testimonies without Oath upon which they ground their Vote and for the most part very partially for which cause it is usually stiled the Committee of Affection In 35 Eliz. Sir Simon D' Ewes's Journal p. 494. In Queen Elizabeth's time Application made to the Chancellor or L. Keeper Sir Edward Coke being then Speaker he was ordered to attend the Lord Keeper to move his Lordship to direct a new Writ for chusing a Burgess for Southwark instead of Richard Hutton supposed to be unduly elected and another for allowing Sir George Carew who was duly elected but not returned to be Burgess of Gamelsford in Cornwal and a third for changing the name of John Dudley returned Burgess for New Town in the County of Southampton into the name of Thomas Dudley the Christened Name being mistaken But the L. Keeper would
allow no alteration but in that of Dudley Which makes some observe Lawyer out-lawed p. 12. That if the House of Commons had then known they had any Power to mend the said Returns or punish the Offenders or Sir Edward Coke had known it had been Law he had never been sent on that Message So that what Authority the House hath it hath accrued since SECT 11. Concerning the House of Commons Censuring Imprisoning and Expelling their own Members AS to the Commons Imprisoning and Punishing their own Members The Reasons for this Privilege for words by them spoken or Misdemeanors committed in the House there may be some reason for it First Stat. 4. H. 8. c. 8. Coke 4. Instit p. 25. 31 H. 6. c. 26 27. because by Law they are not Punishable elsewhere for any rash indeliberate and inordinate Speeches in Parliament which do not amount to Treason Felony or Breach of the Peace which it is supposed none in that rightly constituted House will protect though done in the House of Commons begun in 1641. Secondly It is to be supposed that the Members upon their entring into that House unanimously agree for order sake that the lesser number should always submit to the greater So by such Consent and original Compact every single Member submitting himself to the rest he hath no such reason to complain although they had no such Authority for scienti volenti non fit Injuria provided that they exceed not the common Rules of Justice nor the Bounds of Established Laws for then no private Act can bind a Subject though made with his own free Consent as appears in Clark's Case against the Mayor and Burgesses of St. Albans Coke lib. 5. p. 64. The first Precedent I find that any Member of the House of Commons was complained and Petitioned against for Misdemeanors and put to answer before the King and Lords in Parliament Rot. Parl. 16. R. 2. num 6. and there judged and fined was 16 R. 2. the Wednesday after the Parliament began when Sir Philip Courtney Members of the House of Commons punished for Misdemeanour by the King and Lords returned one of the Knights for Devonshire came before the King in full Parliament and said that he understood how certain people had accused and slandered him to the King and Lords therefore prayed to be discharged of the said Imployment until the accusations c. were tryed and because his said Prayer seemed honest to the King and the Lords the King granted him his Request and discharged him in full Parliament Exact Abridgment p. 417. and the Monday following at the Instance and Prayer of the Commons the King granted that he should be restored and remitted to his Place In the Parliament 4 H. 4. the accusations against him being re-inforced the King and Lords adjudged that he should be bound to his good Behaviour and committed to the Tower for his Contempt By which saith Mr. Prynne it appears Plea for the Lords p. 386 387. That only the King and Lords in full Parliament can suspend or discharge any Knights or Commoners sitting in Parliament and have Power of restoring and re-admitting a suspended Member of the Commons House and he answers the Precedents that Sir Edward Coke brings 4 Instit p. 23 and 3 Inst p. 22. Vide pag. 296 297 299 344 371 372 373. and many others which would be tedious here to insert The first Precedent he finds The first Precedent of the House of Commons secluding their Members that the Commons began to seclude one another upon Pretence of undue Elections and Returns was in Queen Elizabeth's time when Thomas Lucy 8 Eliz. was removed out of the House for giving four Pound to the Mayor of Westbury to be chosen a Burgess and the Mayor fined and imprisoned and 23 Eliz. Mr. A. Hâ—ll for publishing the Conferences of the House and writing a Book to the dishonour of the House was committed to the Tower for six Months and fined five hundred Mark and expelled the House and in King Charles the First 's time this Power over their Fellow-Members was greatly improved in which how far Mr. Prynne then concurred I know not but after he was secluded he every where writes with great earnestness against this usage but whether with Judgment Law and Reason I shall leave others to judge only I think fit to insert some of his Invectives against the Proceedings of that unparallell'd house of Commons First he saith There can be no legal Trial or Judgment given in Parliament in Criminal Causes or others Id. p. 309. Mr. Prynne's Reasons against this Usage without Examination of Witnesses upon Oath as in all other Courts of Justice which the House of Commons cannot do Littleton sect 212. Coke ibid. Secondly That it is a Rule both of Law and Justice That no Man can be an Informer Prosecutor and Judge too of the persons prosecuted and informed against the Commons being in the nature of the Grand Inquest Coke 4. Inst p. 24. being summoned from all parts of the Kingdom to present Publick Grievances and Delinquents to the King and Peers for their Redress Plea for the Lords p. 373. Thirdly That all the objected Precedents are of very puny date within time of memory therefore unable to create a Law or Custom of Parliament or any right of sole Judicature in the House of Commons Fourthly Id. p. 387. That all these Precedents were made by the Commons themselves unfit Judges in their own Cases much less over one another being all of equal Authority so that in his opinion they could no more expel or eject any of their Members by their own Authority without the King and Lords concurrent consent See Legal Vindication p. 10. than one Justice of Peace Committeeman or Militia-man can unjustice or remove another since par in parem non habet potestatem neither in Ecclesiastical Civil Id. p. 373. Military or Domestick Affairs Fifthly That they are all against Law because coram non Judice he having throughout the whole Discourse endeavoured to prove That the Commons have no right or power of Judicature much less of sole Judicature in our Parliaments but only the King and Lords Sixthly That these Precedents are but few never judicially argued and rather connived at than approved by the King and Lords taken up with other more publick business therefore passing sub silentio they can make no Law or Right as is resolved in Long 5 E. 4. fol. 110. Cook 's four Rep. fol. 93 94. Slade's Case and six Rep. fol. 75. Drurie's Case Seventhly In the long Parliament of King Charles the First they began to seclude Projectors Exact Collections of Ordinances p. 541. to 558. Monopolists c. though duly elected then suspended and ejected such who were Royalists and adhered to the King then they proceeded to imprison and eject those Members Plea for the Lords p.
puts an end to the Sessions so that what ever Bills are ready and pass not the Royal Assent must be again read three times in either House for the more security it is usual to insert a Proviso That the Session is not thereby concluded The Royal Assent is given two ways First Royal Assent by Patent by Commission since the Statute of the 33 H. 8. c. 21. wherein it is expressed That the Kings Royal Assent by his Letters Patents under the Great Seal Signed by his hand and declared and notified in his absence to the Lords Spiritual and Temporal and to the Commons Assembled in the higher House is and ever was of as good strengh and force as if the King had been there personally present and assented openly and publickly to the same The manner of the King 's giving his Publick Assent is in this manner The King cometh in Person in his Parliament-Robes Royal Assent when the King present and sitteth in his State and the Upper House sit in their Robes The Speaker with all the Commons House cometh to the Bar of the Lords House and in Sir Thomas Smith's time Sir Th. Smith's Commonwealth p. 45. Speeches used to be made there the Chancellor for the Lords and the Speaker for the Commons in set Speeches returned the Prince Thanks for that he hath so great Care of the good Government of his People and for calling them together to advise of such things as should be for the Reformation Establishing and Ornament of the Commonweal After which the Chancellor in the Prince's Name giveth Thanks to the Lords and Commons for their Pains and Travel taken which he saith the Prince will remember and recompense when Time and Occasion shall serve and that the Prince is ready to declare his Pleasure concerning their Proceedings whereby the same may have perfect Life and Accomplishment by his Princely Authority I think now mostly Hackwell of Passing of Bills p. 181 182. the Speaker of the House of Commons makes a Speech acquainting the King with the purport of the Bills Then the Clerk of the Crown readeth the Title of the Bills in such Order as they are in Consequence After the Title of every Bill is read singly The Clerk of the Crown pronounceth the Royal Assent or Dissent the Clerk of the Parliament pronounceth the Royal Assent according to certain Instructions given from his Majesty in that behalf If it be a Publick Bill to which the King assenteth the Answer is Le Roy le veult The King willeth If a Private Bill allowed by the King the Answer is Soit fait comme il est desire Let it be done as it is desired And upon a Petitionary Bill the like is used If it be a Publick Bill which the King forbeareth to allow he saith Le Roy se avisera The King will advise To a Subsidy Bill the Clerk pronounceth Le Roy remercie ses loyaux Subjects accepte leur Benevolence aussi le veult The King thanks his Loyal Subjects accepts their Benevolence and also willeth To a general Pardon is pronounced Les Prelates Seigneurs Communs en cest Parlement assembles au nom de touts vous autres Subjects remercient tres humblement vostre Majesty prient Dieu vous donner en sante bone vie longe The Prelates Lords and Commons in this Parliament assembled in the name of all your other Subjects thrice humbly give thanks to your Majesty and pray God to give you in health a good Life and long These P. 46. saith Sir Thomas Smith be taken now as perfect Laws and Ordinances of the Realm of England and none other and as shortly as may be are printed except it be some Private Acts made for the Benefit or Prejudice of some Private Man these be only exemplified under the Seal of the Parliament CHAP. XXIX Of Factious Combinations in Parliaments I Hope in the foregoing Chapters I have so explained the Constitution of Parliaments and the Legislative Power that unbiassed and unprejudiced Persons will no more be misled by the Sophisms and plausible pretences which to aggrandize the Power of the two Houses at first and after of the Commons House only the Penmen of the long Parliament made use of yet because many of late were furbishing the rusty Armour of their Demagogues and trimming their Helmets with fresh Plumes I conceive it necessary to take notice of some of their chiefest Arguments and examine those which had greatest Influence upon the People The great and venerable name of Parliament and its Authority was constantly used as Shield and Buckler to ward off all the Force of the Loyal Assaults and Mr. Prynne writ a large Volume which he stiled The Soveraign Power of Parliaments and when the very Lees and Dregs of the Commons House was put in Ferment that very Kilderkin would admit no lower Stile than the supreme Authority of the Nation to be pearched on its Bunghole Therefore to disabuse the less considerate The various Acceptation of the word Parliament and to detect the Frauds of those which under that great Name applyed whatever they met with in the Laws or History to the House of Commons I think it necessary in the first place to clear the acceptation of the Word Appropriated to the Lords House Sometimes the word Parliament is used for the House of (a) Egerton sect 4. 22 23. Lords only as when upon Writ of Error any Judgment in the King's-Bench is examined in the House of Lords the Judgment is said to be affirmed or reversed by Parliament The Appellation of Parliament is likewise used for the two Houses To both the Houses in regard they are the gross Body whereof the Parliament consists there only wanting the Sovereign Head to compleat it But they are so far from being the High Court of Parliament that they cannot co-unite to be an entire Court either of Sovereign or Ministerial Justice but only in concurring in Votes in their several Houses for preparing of matters in order to an act of all the Body which when they have done their Votes are so far from having any legal Authority in the State as in Law there is no Stile or Form of their joynt Acts further than Bills nor doth the Law so much as take notice of them till they have Royal Assent without which the Votes of the two Houses dye in the Womb like an Embryo So that the proper use of the word Parliament How properly the High Court of Parliament as Authority of Law-making is annexed to the name is only when the King and the two Houses concurr in one Act and in that sence only is the Parliament the Supream Court the highest Judicatory and the most Sovereign Power Not for any Soveraignty in the two Houses and from them transferred to the King by their joining and consenting with him but because every compleat and perfect Act of it is the Act of
the personal Will and Power of the Sovereign himself standing in his highest Estate Royal. Therefore whoever reads the Authors that writ in defence of the Parliament must consider this Fallacy they frequently used that he do not apply the Authoritative Act of the King with the Consent of the two Houses to the Houses without the King From the Co-operation of the two Houses in preparing Laws (b) Freeholder's Grand Inquest p. 34. the late 〈◊〉 since King Charles the First 's time of the words The King is not one of the Three Estates Be it endâ—ed by the King the Lords Spiritual and Temporal and Commons as if they were all Fellow-Commissioners and the unwariness of some of the Penners of the King's Answers to some of the Papers of the two Houses wherein they stiled the King the third Estate the Commonwealths-Men have taken the advantage to reckon the King but as a third Legislator Therefore I think it necessary to remove this Rub e're I proceed further Although the Author of the Imposture The Modus makes the Parliament to consist of six Parts called the modus tenendi Parliamentum makes six degrees of constituent Members of the Parliament viz. The King first then Secondly the Archbishops Bishops Abbats Priors and other Clerks who held Baronies Thirdly the Proctors of the Clergy Fourthly the Earls Barons and other great Men who held to the value of a County or Barony Fifthly the Knights of Shires Sixthly the Citizens and Burgesses to which he might have added the Barons of the Cinque-Ports yet he saith the King is the Head Beginning and End of the Parliament and so hath no (c) Ita non habet Parem in suo gradu Peer in his degree Yet it plainly appears that these we now call the two Houses were by reason of their distinct Orders most frequently divided into three For in (d) As queux Prelats ou la Clargie par eux mesmes les Countes Barons par eux mesmes Chevalers Gentz de Countez Gentz de la Commune par eux mesmes entreteront Prynne Animadv p. 10. 6 E. 3. at his Parliament at York the Record saith That on the Friday before the Feast of St. Michael the Prelates or the Clergy by themselves the Earls and Barons by themselves the Knights of the Counties and the Commons by themselves treated c. Othertimes we find the Prelates Earls Barons and great Men and the Knights Citizens and Burgesses to have separate Consultations by themselves and to give their several answers to Articles and business propounded to them in Parliament as Mr. Prynne out of the Abridgment of the Records of the Tower hath given us above twenty instances At the making of the Statute of Praemunire 16 R. 2. the Commons pray The Lords Spiritual Lords Temporal and Commons make the Three Estates That the Lords as well Spiritual as Temporal severally and all the Estates of Parliament might be examined how they thought of that matter and the Lords Spiritual answered by themselves and the Lords Temporal by themselves and the King was Petitioned to make this Examination So in 40 E. 3. the King asking the Houses Whether King John could have subjected the Realm as he did the Prelates by themselves and the Dukes Earls and Barons by themselves gave their Answer Besides we find as at large I have before instanced in the last Chapter the Writs of Summons of the Bishops and Clergy were only in side dilectione and the Barons generally (e) Stat. 18. â— 6. c. 1. in fide homagio or Ligeancia and the Clergy granted their Subsidies apart and distinct from the Nobles Besides that the Bishops are to be esteemed the Third Estate is clear by Act of Parliament for it being questioned (f) 8 Eliz. c. 1. whether the making Bishops had been duly and orderly done according to Law the Statute saith That the questioning of it is much tending to the slander of all the Clergy being 〈◊〉 of the greatest States of the Realm So Sir (g) P. 36. Thomas Smith as in the last Chapter I have noted distinguisheth the two Houses into three Estates and Sir Edward (h) 4. Instr p. 1. Coke saith expresly That the High Court of Parliament consisteth of the Kings Majesty sitting in his Royal Politick Capacity and the three States of the Realm viz. the Lords Spiritual Lords Temporal and Commons the like the learned (i) Interpreter tit Parliament Cowel affirms Sir Henry Spelman (k) Solenne collequium omnium Ordinum Regni Authoritate solius Regis ad consulendum statuendumque de negotiis Regni indictum Gloss p. 449. calls it a Colloquy of all the Orders of the Kingdom convened by the sole Authority of the King to consult and appoint in the Affairs of the Kingdom This was also known to Foreigners uninteressed Persons for the Lord Argenton speaking how Subsidies were granted in England saith * Lib. 5. p. 253. Convocatis primis Ordinibus Clericis Laicis assentiente Populo And Bodin ‖ De Repul lib. 6. whenever he speaks of the Constitution of our Parliament calls it the King and the three Estates of the Realm But to put all out of doubt in King Charles the Second's Reign it is determined in the Act for the Form of Prayers for the Fifth of November For the Preservation of the King and the Three Estates Now the reason why in King Charles the First 's answer Why in some of King Charles the First 's Writings the King was called the Third Estate we meet with the expressions of making the King the third Estate was because at that time the Bishops being voted out of the House of Lords and the two Houses setting themselves in all the points of Controversie in opposition to the King the notion of a Triumvirate was more intelligible as it may be thought to the People and those who were so bitter Enemies to the King and had such a Rebellious force would have still increased the Peoples aversion if the King had asserted his Royal Prerogative otherwise Whether this were the true reason or the oversight of the Penners of his Majesties Answers I will not undertake to determine but I am induced to believe the first because I find the King and those that writ in defence of his Cause using frequently this way of Argument In every State there are three Parts saith (l) Review of Observations one the King ordered to write for him capable of just or unjust Soveraignty viz. the Prince Nobles and People Now through the Piety of our Lawgiving Princes a just and regular course of Government being obtained the stability of which being found to be more concerned in the Power of making Laws than in any other Power belonging to the Soveraign for preventing of Innovations that might subvert that setled regularity the frame and state of Government was in such a sort established as that the
Land and the other the demean of the Fee So it is in an Estate of Power and Authority If the King granteth an Estate of Power Authority and Jurisdiction in Fee-simple or in Fee-tail for term longer or shorter the King hath the demean of Power and the other the demean of Use the King hath Dominium directum the other Dominium utile which he applies to the two Houses but it must be likewise considered that this distinct Authority they have is wholly derivative and so much the more depending on the Sovereign as he can at his Pleasure totally deprive them of the Exercise of it by Prorogation or totally annihilate it by Dissolution Another Objection they made Objection The Three Estates to restrain the Excess of each other was from the Answer the King authorized a Gentleman to make to the Observer That the three Estates are constituted to the End that the Power of the one should moderate and restrain the excess of the Power in the other From which he infers That this is an Allay and mixture in the Root and essence of the Constitution To this it may be answered Answer to it That there is no such Power in the two Houses they are called to consult and to consent All they can do is that they have the opportunity of having grievances redressed because they may otherwise deny the King the assistance he desires But they have no Authority of themselves to redress them or to restrain and moderate his Excesses by Force nor can they moderate the Excesses of one another by any Act of their own singly further than the exorbitant Estate shall be willing to be moderated It is a most absurd thing to imagine that when the Law hath placed the Sovereign Power in the King it should again for a space of time during the Session of Parliament unsovereign Him and place in the two Houses the same Sovereign Trust and with a second absurdity leave in the King's Hands the summoning and dissolving the Power by which himself should be constrained and to make up all should by Authority of that Power constrain all the Heads of the People and even the Representative Body of that Power by Solemn Oath to declare that the King is not only supreme Governour but that he is only supreme Governour Besides the Arguments they sued upon this Head of a debased Monarch that was not only to admit some of his Subjects into the Participation of his Burthen but of his Soveraignty whereby they pleaded for both the Houses being joynt-Sovereigns for the time they used other Arguments singly for the House of Commons which they endeavoured to aggrandize and raise to a strange over-towring heighth above both King and Lords and they grounded all their Arguments upon the immense Power of their being the Peoples Representatives The Observer saith Objection concerning the Power of Representatives That the vertue of Representation is the great Privilege of Privileges that unalterable Basis of all Honour and Power whereby the House of Commons claims the entire Right of all the Gentry and People and that there can be nothing under Heaven next to renouncing of God which can be more perfidious and more pernicious to the People than the withdrawing from them and doth acknowledge that the Arbitrary Rule was once most safe for the World But now since most Countries have found out an Art and peaceable Order for publick Assemblies he means by Representatives whereby the People may assume its own Power and do it self Right without the disturbance of it self or injury to Princes he is very unjust that will oppose this Art and Order In answer to which it ought to be considered That the Representative Body deserves the highest Honour and Observance that can be given to the Body Represented Answer What Honour is due to Representatives of the Subjects but this Honour will depend upon two things First the quality and condition of the Body represented and Secondly on the quality of the Representative it self If therefore the Body at large were an absolute Sovereign as in Republicks the true Representative of that Body were to be observed with all Sovereign Honour and due Subjection But when the Body at large it self is but a Subject as it is in Monarchy the Honour and Authority of the Representative cannot exceed the Honour and Authority of a Subject for none can make the Image more than the Original or without Adulterating Arts appear so Therefore however abhorrent a Crime he makes it in such as concurr not in their Judgment with their Representatives that exceed their Authority and Commission yet all sober and just Persons ought to consider that the Subjects by giving Authority to some of their own Order to represent them and advise and consent for them gave them no such Power above that of Subjects yea so much above the condition of their Sovereigns that neither breach of Faith nor the Oaths of Allegiance and Supremacy which they never took to them or any other Duty to their King was comparable to the withdrawing from the Vote or Act of their Representators as if the Rights of the Crown and Kingdom and the Laws made by the King with the assent of the three Estates in Parliament did not so much concern the Commons of the Land but that against all these they stood solely bound to the Representatives as the only Sovereign of their Obedience I shall now offer some Reasons against this dangerous Opinion First It is to be considered Reasons against the Power of Representatives That in our Kingdom the Representors are not equally chosen as in the united Provinces and other Commonwealths but it lies in the Power of the Sovereign here to make a Town equal in number of Burgesses to a County which doth vehemently demonstrate That the first Institution and end of such Representatives was rather to minister Information of the State and Condition of that particular place and advise and assist the Sovereign and to consent with him and not to determine Sovereignly Secondly The cockering the People in that Opinion that the Soveraignty lies in Materia prima in them and by their Representatives that they may exert it is the certain way to ruin not only Monarchy but all government as was evident in the case of the Rebellious House of Commons in King Charles the First 's time who prided themselves so much with the Title of Representatives and by pretext of that and the Assistance of their Army having unyoked themselves from all Subjection to their Lawful King and disengaged themselves from their dangerous and useless Collegues the Lords as they then voted them after some while they lost their Honour and Reverence with their own Army who then would be the People and pulled them out of their House justly charging them with a design to perpetuate themselves And so the Tyrannical Supremacy was exercised by Cromwell and his Council of Officers a while
expelled the House but if a favourer of the Cause he was never recriminated with that or any other by-past or present ill disposition In such Assemblies there often happen one sort of People who are always representing grievances complaining of Male-administration troubling the Church and State shaking up the Lees and Dregs in the richest Vessel of Wine these have learned to catch Eels Tacitus notes the corruptions of the Roman Senate The Corruptness of the Roman Senate which necessitated the change of that State into a Monarchy under Augustus fully significantly and concisely after his manner Suspecto Senatus Populique imperio ob certamen Potentium avaritiam Magistratuum invalido legum auxilio qua vi ambitu postremo pecuniaturbabantur The Provinces observing in this Supremacy of the Senate and People the contests of the most Powerful the Covetousness of the Magistrates the feeble help the Laws afforded by the Arbitrariness of the Senate we may presume by what force and moyen and lastly how all things were distracted by Bribery they were the more easily induced to admit of one Soveraign These particulars were most obvious in the fatal House of Commons Besides these things I have hinted at Of cunning and designing Men. in such a body as we are speaking of where there cannot want men designing some dangerous Revolutions for the establishing their own greatness though some few wise men may be apprehensive of their designs yet we know maxima est pars artis celare artem Such contrivers will be sure by all imaginable Arts to conceal their intentions and obtain an Ascendent over the Judgment of the gross Body who either are not so quick-sighted or aiming at no such things themselves judge others candor by their own and so by their helps the designers may carry the Vote against even such as penetrate further into the aims of the Contrivers than the Majority do so that those that have good ends may be hood winked by others whose ends are worse Fallit enim vitium specie virturis umbra and private ends will steal upon well affected for all grand Conspiracies are veiled under the Mask of Reformation of removing Grievances and evil Counsellors Gallant and vertuous actions do not more often ingratiate men with such a mixed body than a rolling Tongue a precipitate Head vain-glorious profusion oyly insinuations feigned devotions sufferings though deserved from Superiours and above all opposition to the present State So the memorable long Parliament of 1641. by the specious pretences of redressing Grievances The specious Pretences of the Long Parliament taking care of the Public and particularly of the Liberty of the Subject and their Privileges together with vehement Expressions of their Resolutions of Establishing the Kings Throne upon more firm foundations of the peoples Hearts and Affections by insensible Screws wound themselves into the credit of Patriots and being thereby able to carry a numerous party with them in all their Votes by little and little made such encroachments upon the Soveraignty that having undermined it past support they took the advantage of its fall and ruine out of the same specious pretence that the Commonwealth might suffer no detriment to propose their long designed Model of Government not as by them forethought on but as a necessary expedient to accomplish the end as they pretended they had all this while been aiming at viz. the Peoples prosperity which 〈◊〉 they endeavoured to make the World believe they were most Zealous for when God knows the upshot of all was the total dissolution of the best constituted Government and the Establishing themselves a fattened Commonwealth out of the rich spoils of Monarchy Yet these very men were they who some years before possessed as many as they could delude with an opinion Their Hypocritical Promises that none knew better nor affected more the sweetness of so well ballanced a Monarchy than they and that the Kings just Authority was Sacred to them that they would make him more rich and glorious than any of his Predecessors The Observer told the World That it had been often in the Power of former Parliaments to load the Government with greater Fetters and Clogs but they would not and that change of Government could not be in their desires because the advantage of the Lords and Commons in the State was so great that no change of Government could better them except each one could obtain an hereditary Crown But these were but vain flourishes and empty aiery offers success altered their Principles and they were ill troubled to find out excuses and evasions after the Murther of the Blessed King and change of Government for these their so hypocritical Declarations From all which I shall only desire that Posterity may be cautious how they credit the truth of those who in such Conventions are the most active for any Innovation if they see that they zealousliest pretend some greater happiness to the People by lessening the Authority of the Crown It is reported of Frederick the Emperour (c) Aeneas Sylvius de diaetis Fred. Imp. that in the Speech to the Senators he desired them before they entred into the House of their Assembly they would leave two things behind them and then they would give right Judgment and being asked what those were he told them Simulatio dissimulatio Counterfeiting and Dissembling Another of their Arguments How many Counsellors may mislead for the preference of the Houses Counsel before all other Councils was that many Eyes of so many choice Gentlemen from all parts see more than fewer which Sophism easily midwived in the conclusion that then the two Houses judgment of Affairs was to be preferred before the King and his Privy Councils and the Commons before the Peers and by a parity of Reason though they desired not it should be urged so far home that the body of the People was to be preferred before the Commons House which might be urged upon as common a Proverb That By-standers see more than Gamesters But who are so blind as those that will not see Those very Seers if they would have made use of their Eyes to have perused the Histories of former Ages on what specious pretensions Rebellions had begun and how the Laws had settled the Government in an unparallel'd security of the Peoples Rights as well as the Prerogative of the Crown or by serious consideration foreseen the certain and inevitable miseries that would follow the weakning of the Crown and the necessitating the King for his defence to take up Arms these quick-sighted Commoners might have prevented all those Calamities that ensued The Elected like the Electors Whoever considers how easie it is to possess a People with prejudices against the Government of which elsewhere I must enlarge will soon find that it is no difficult matter to have such Elections of Members as were like to be of the same perswasion with the Electors So that
in such cases it is not to be wondred at that a majority of Votes might be opposite to more judicious and foreseeing Members judgments neither is the Maxim universally true for it must be caeteris paribus if all things be alike For it is not sufficient for an Adviser to see unless he can let another see by the light of Reason A man ought not implicitely to ground his Actions upon the Authority of other mens Eyes whether many or few but of his own One Physician may see more into the state of a mans body than many Empiricks One experienced Commander may know more in Military Affairs than ten fresh-water Souldiers One old States-man in his own Element is worth many new Practitioners One man upon a Hill may see more than an Hundred in a Valley And who will deny but among an Hundred one of them may have a stronger Eye and see clearer and further than all the Ninety Nine So one Paphnutius in the Council of Nice saw more than many greater Clerks And it is no new thing to find one or two men in the Parliament change the Votes of the House Therefore nothing is got by this way of arguing though it be one of the plausiblest and most improveable of any of the Topicks they choose And if we could be sure that all the Members of such Assemblies were free from all the imperfections such are liable to much might be yielded to it All these Arguments were used for that sole end that they might possess their Party with the reasonableness of their desires to the King that he would implicitly yield up his reason to the guidance of their Councils They were not so frontless at first Concerning the Negative Voice as positively to deny the Kings negative Vote in Parliament that had never been doubted and there is good reason it should be a most sure Fundamental of the Government since nothing can be Statute-law but that to which the King assents Le Roy le veult For who can be said to will that hath not the Power to deny Si vult is scire an velim efficite us possim nolle Seneca But they affirmed that in Cases extraordinary when the Kingdom was to be saved from ruine the King seduced and preferring dangerous men it was necessary for them to take care of the Publick And then the Kings denying to pass their Bills was a deserting of them Objection That in Cases of Extraordinary necessity the Houses to have Power to secure the People from Tyranny Otherwise they alledged Parliaments had not sufficient Power to restrain Tyranny and so they boldly affirmed they had an absolute indisputable Power in declaring Law and as their Observer words it they are not bound to Precedents since Statutes cannot bind them there being no obligation stronger than the Justice and Honour of Parliaments And to summ up all he tells us if the Parliament meaning the two Houses be not vertually the whole Kingdom it self if it be not the supreme Judicature as well in matters of State as matters of Law if it be not the great Council of the Kingdom as well as of the King to whom it belongeth by the consent of all Nations to provide in all extraordinary cases ne quid detrimenti capiat Respublica let the brand of Treason saith he stick upon it Indeed because by all these most false and impious assertions and those horrid Acts built upon them they brought so great a ruine to the Kingdom they are and ever will be uâ—less a Platonick year return again branded with Rebellion in the highest degree To answer this Accumulation of Treasonable Positions for such I hope I may call in some sence Answer what is against the Kings Crown and Dignity is no ways difficult from the discourse of right constituted Parliaments For those of them that carry any shew of Reason are such only as may be understood of Acts of Parliament compleated by the Royal Assent but being spoken of either or both Houses in opposition to the King they are most false as I shall shew in particular For First If the two Houses are not bound to keep any Law no man can accuse them of breach of any What obligation can Justice lay on them who by a strange vertue of Representation are not capable of doing wrong But it is well known that Statutes stand in full force to the two Houses as being not void till repealed by a joynt consent of the King and the two Houses It would be much for the credit of the Observers desperate Cause if he were able to shew one such Precedent of an Ordinance made by Parliament without the Kings assent that was binding to the Kingdom in nature of a Law Our Kings can repeal no Laws by their own Prerogative though they may suspend the Execution It seems the Houses would have Power to do both and our Author in another place thinks it strange that the King should assume or challenge such a share in the Legislative Power to himself as without his concurrence the Lords and Commons should have no right to make Temporary Orders for putting the Kingdom into a Posture of Defence These were strange Phrases never heard before by English Ears Our Laws give this Honour to the King That he can joyn or be sharer with no man The King like Solomon's true Mother challengeth the whole Child not a divisible share but the very life of the Legislative Power The Commons present and pray the Lords advise and consent the King Enacts Secondly The Houses have no Power to declare Law As to their claiming an absolute Power in declaring Law it is as bold and false an Assertion as the other when spoken of the two Houses They may vote in order to a new Bill the explaining or repeal of any Law formerly made or prepare a Bill for any New Law and that is all they can do but authoritatively to declare any Law is most contrary to the Constitution of the Houses and never was adjudged one of their Privileges Thirdly As to the Justice and Honour of a Parliament when the State is in quiet and the Conventions only for making wholsome Laws for the Publick weal there are no Factions in Court or Country no private Intriegues to be managed the People neither uneasie nor discontented then it is to be expected That none but the wisest and wealthiest of the Gentry will be chosen Members of that August Assembly and their Justice and Honour will be conspicuous in all their Actions But have we not known Houses of Commons composed of other kinds of Persons who have voted their own Justice and Honour to be to imprison their fellow Members and fellow Subjects in an Arbitrary way How (d) Address part 3. p. 121. could a generous Soul conscious to himself he had transgressed no Law kneel at the Bar of such a House with the same submission as if he believed the Speaker
infallible and every Member an Angel But the Observer Objection That if the King have a Negative Voice there will be no need of Parliaments and his Pewfellows urge That if the Houses can do no Act for publick good without the King's consent and if the King may reject their Counsels and Advice it were needless to put the Country to the charge of choosing Members of Parliament And if the King may prefer other opinions before Parliamentary Motives then Parliaments are vain and useless helps Princes are unlimited and the People miserable These Objections are of such an odious nature Answer That no good Subject can take delight in them whose duty is to pray for the like consent among the several Orders of the Kingdom as is supposed to be among the several Orbs of Heaven The King undoubtedly the Primum movens the Great and Privy Council the lower Spheres The usual but not the only form of the Kings Answers to such Bills as they were not willing to pass Le Roy s'avisera proves (e) Answer to Observations p. 56. That after the advice of this his Great Council he is yet at liberty to advise further with persons or occasions as his own Wisdom shall think meet But these Authors will by no means take notice That the use of Council is to perswade not to compel as if a Man in business of great concernment might not very prudently consult with many Friends and yet at last follow the advice perhaps of one if it appear more proportionable to the end he aims at If it were because they are a more numerous body therefore their Counsel is upon that account to be yielded to then the liberty of dissenting may be denied to the House of Peers in comparison of the House of Commons and to that House too in comparison of the People and so both King Lords and Commons are voted out of Parliament Besides Natural Wisdom and Fidelity there is a thing called Experience of high concernment in the managery of Publick Affairs He that will steer one Kingdom aright must know the right Constitution of all others their Strength their Affections their Counsels and Resolutions that upon each different Face of the Skie he may alter his Rudder The best Governments have more Councils than one One for the Publick Interest of the Kingdom another for the Affairs of State a Council for War and a Council for Peace Let them be as wise and faithful Counsellors as the Observer pleaseth only let them be but Counsellors Necesse est us Lancea in libra ponderibus impositis deprimi sic animum perspicuis cedere Let their conlusions have as much credit as the premisses deserve and if they can necessitate the Prince by weight of Reason and convincing Evidence of experience let them do it on Gods name But it is not to be done upon the Authority of a bare Vote as I think all uninterested persons are satisfied in the Votes of the Houses in 1641. about the Militia Church-Government and the voted Nineteen Propositions or the late Votes about the Bill of Seclusion the Repealing of the branch of the Statute of Queen Elizabeth against Protestant Dissenters and the Loans upon the Kings Revenue There are other ends besides Counsel for which Parliaments are called as consenting to new Laws furnishing the Public with Moneys and maintaining the Interest of the Government and liberty of the Subject from the removing one social end to inferr that an Action is superfluous deserves no answer but silence and contempt This should teach the Electors Wisdom not to chuse such as have Factious Bents or are not truly qualified in their Allegiance to their Prince or Malecontents who render such Conventions useless to the Publick Ends of Government and the Peace Tranquillity and Prosperity of both Prince and People Because the Long Parliament Writers would have no Stone unturned nor any specious Argument uninforced Concerning the Coronation-Oaths of the King of England that might bring the King to their Lure to consent to what they proposed they endeavoured to make the World believe that the King was bound by his Coronation Oath to pass all such Bills as they presented or tendered to him grounding as Mr. Prynne and others alledged on a promise of the Kings at his Coronation to grant and keep the Laws and Customs which the Commonalty shall chuse Before I come to give the particular Answer I think it not unfit to take this opportunity to give a full account of the Coronation Oaths of our Kings and how the same from Age to Age were varied by which the Ingenious Reader will find what the respective Kings by their Oaths did promise That I may deduce as high as I have yet found the Original of Soveraign Princes taking Oaths at their Coronations it may be noted that the first Emperor that was Crowned and had any Coronation Oath prescribed was (f) Evagrius Hisâ— Eccles lib. 3. c. 32. Who first took a Coronation-Oath Anastasius the Greek Emperor who being elected by the Senate and Soldiers about Ann. 486. Euphemius Patriarch of Constantinople suspecting him to be addicted to the Heresy of Eutychius and the Manichees would not consent to his Coronation till he should deliver him a Writing under his Hand ratified with his Oath wherein he should plainly declare That if he were Crowned Emperour he would maintain the true Faith and Synod of Chalcedon during his Reign and bring in no Novelty to the Church of God This Writing ratified with his Oath Macedonius the Treasurer was to keep and after he was made Patriarch the Emperor demanded it and said It was a great discredit unto his Subjects that his Hand-writing should be kept to testifie against him or that he should be tied to Pen and Paper There is no mention of any Coronation Oath used from thence to the Year 804. that (g) Eutrop. lib. 24. p. 145 146. Zonar Annal. tom 3. fol. 142 143. Imperatorio Diademate est ornatus postulato prius scripto quo promitteret se nulla Ecclesiae statuta violaturum Stauratius Son to Nicephorus slain in his Wars against the Bulgarians being declared Emperor by some Michael Curopolata was adorned by the Patriarch with the Diadem a Writing before being desired in which he promised to violate none of the Statutes of the Church c. Which is the first Precedent of a Promise not an Oath demanded from or given by any Roman King for confirming the Laws of the Church c. The first Emperor Crowned at Rome by any Pope (h) Onuphr was Charles the Great Anno 800. but without an Oath and Henry the Fifth (i) Dicens Imperatorem nemini jurari debere cum juramentorum sacramenta ab omnibus sint sibi adhibenda Hermold Chron. Scl. l. 1. c. 40. Sim. Dunelm 232 237. refused to take any Corporal Oath saying That an Emperor ought to Swear to none for that Oath i. e. of Fealty
ought to be made to him from all I shall not with Mr. Prynne in his Epistle Dedicatory to his third Tome of Chronological Vindication meddle with the dispute how the Canonists argue from the Popes Crowning of Emperors and Kings that they acquire a Spiritual and Temporal Monarchy over them as their Sovereign Lords For that however some may hold the Doctrine yet it is exploded by most As to the Crowning and Anointing of some British and Saxon Kings I must refer the Reader to Mr. Selden (k) Tit. Hon. part 1. c. 8. fol. 149. and Mr. Prynne in the forecited Epistle The first of our Kings that is recorded in History to have taken an Oath at his Coronation was Canâ—tus of whom Sim. (l) De Gestis Regum Agg. col 173. Wigorn. Chro. 384. Dunelmensis and others give this account That after the death of Aethelred the Bishops Abbats Dukes and the Nobles of England and the most part of the men of the Kingdom as well of the Clergy as Laity met together with one consent at Southampton and chose Canutus for their King and swore Fealty to him to whom he also swore Quibus ille juravit quod secundum Deum secundum seculum fidelis esse vellet eis Dominus King Canutus his Oath that according to God and the World that is the Laws of God and the Kingdom he would be a faithful Lord unto them Mr. Prynne here noâ—es that Usurpers more frequently used to take such Oaths than lawful hereditary Kings So when the Citizens of London and some few Noblemen with unanimous consent chose (m) Clitonem Eadmundum unanimo consensu in Regâ—m levavere Matt. Westm p. 410. 411. Edmond called Ironside the eldest Son of Aethelred who was right Heir there is no mention of an Oath So when Harold reputed Son of Cnute was Crowned there is no Oath recorded nor of any taken by Hardicnute right Heir of Cnute So Anno 1041. (n) Flor. Wigorn. Chro. p. 404. Edward the Confessor 's Oath Edward the Confessor annuente Cleno Populo Londoniis in Regem eligitur and was Crowned Anointed and Consecrated yet not any of our Historians besides William of Malmsbury de gestis Regum Lib. 2. c. 13. p. 80. speaks of an Oath who saith that he being sent for by the Nobles upon terms proposed to him by Earl Godwyn there was (o) Nihil erat quod Edwardus pro necessilate temporis non polliceretur Ita utrinque fide datae quicquid petebatur sacramento sirmavit nothing that King Edward did not promise by reason of the necessity of the time so that Faith was given by either Party and what was desired he confirmed by Oath but this was in their private Consultation Yet Archbishop (p) In Regem Angliae sublimatus prius juravit se Leges Canuti inviolabiliter servaturum Spelm. Conc. tom 2. p. 342. Stratford in his Epistle to King Edward the First saith that St. Edward being raised to be King of England first Swore inviolably to keep the Laws of Canutus We find no Coronation Oath of Harold mentioned Matt. Westm Flor. Hist p. 433 saith that extorta fide a Majoribus Capiti proprio imposuit Diadema that having exacted Fealty of the great Men he put the Crown on his own Head and after when Crowned by Archbishop Alfred William the Conqueror 's Oath he took no Coronation Oath but as my Author saith Leges aequas coepit condere (r) Elo. Wigorn. Chro. p. 412. Hoveden part Annal. prior p. 450. Stubs Acta Pontif. col 1702. Coram Clero Populo jurando promittere se velle sanctas Ecclesias Rectores earum defendere necnon cunctum populum sibi subjectum justa Regali providentia regere rectam Legem statuere tenere Rapinas injustaque judicia penitus amovere interdicere Sim. Dunelm col 195. num 43. As to King q William the Conqueror Aldred Archbishop of York Crowned him and imposed on him an Oath The words of the Authors are Ipsa nativitatis die ab Aldredo Ebor. Archiepiscopo apud Westmon in Regem totius Angliae sublimiter Coronâ—um inunxit consecravit honorifice Having before as 〈◊〉 Archbishop required from him before the Altar of St. Peter the Apostle before the Clergy and People by Oath promised That he would defend Holy Church and the Governours of it which Clause occurs not before and likewise govern all the People subjected to him with a Just and Regal Providence and appoint and hold right Law and wholly remove and interdict all Rapines and unjust Judgments The Oath which he took to observe St. Edward's Laws was afterwards Anno 1072. when he entring into a Parly with the English Nobility who intended to have set up Edgar Atheling because King William had violated their ancient Laws and introduced new ones he by the Advice of Archbishop (r) Man Paris vita Fritherici Abbatis 13. St. Albani p. 30. Lanfrank Swore that bonas antiquas Leges Regni sc Leges quas Sancti pii Angliae Reges maxime Rex Edwardus statuit inviolabiliter observare Only William of Malmsbury (s) Modeste erga subjectos ageret aequo jurâ— Anglos quo Francos tractaret De Gestis Pontif. lib. 3. fol. 154. saith that Aldred the Archbishop would not consecrate him before he had exacted from him before all the People this Oath That he would modestly deport himself towards all his Subjects and with an equal Law treat the English as he did the French William Rufus promised to Lanfranck (t) Justitiam aequitatem misericordiam se per totum Regnum si Rex foret in omni negotio servaturum pace libertatem securitatem Ecclesiae contra omnes defensurum Eadmerus Hist Novel lib. 1. p. 13 14. If he were King King William Rufus's Oath in all his Affairs through all his Kingdom to preserve Justice Equity and Mercy and to defend the Liberty and Security of the Church in Peace against all H. Huntingdon Lib. 7. fol. 213. b. and Hoveden Anno 1088. fol. 264. b. say That when he needed the help of the English he promised them such desirable Laws or better than they would chuse But Malmsbury and others say he kept them not for Usurpers such as he was rarely observe the Laws or their Promises further than they serve their own Interest Therefore Mr. Prynne notes that the Promise Eadmerus and (u) Col. 214. Simeom Dunelm mention was before he was King and the other Promise was when most of the Norman Nobility except the Archbishop Lanfranck designed to make Robert his Brother King and then he called them together and then told them If they would be Faithful to him (w) R. Hoveden part 1. Annal. p. 264. b. num 20. Meliorem Legem quam vellent eligere eis concederet omne injustum Scottum interdixit (x) Lib. 7. fol. 213. b. Huntingdon saith the promised
them exoptabiles leges and that they should have their Woods and Hunting free It is recorded of Henry the First King Henry the First 's Oath that having gathered to London the Clergy of England and all the People he promised them an amendment of the Laws with which they were oppressed in the time of his Father and his Brother lately deceased that he might obtain their (y) Vt animos corum in sui promotionem accenderet good Wills to his Promotion and that they might receive him for their King and Father to which the Clergy and all the Nobility answered * Si animo volenti ipsis vellet concedere charta sua communire illas libertates antiquas consuetudines quae floruerunt in Regno tempore Sancti Regis Edwardi Mat. Paris 250. n. 53. Hist Novel lob 3. p. 55. That if with a willing Mind he would grant them and with his Charter confirm all the Liberties and ancient Customs which flâ—rished in the Kingdom in the time of the Holy King Edward they would consent to him and unanimously consecrate him King and he freely yielding to his and affirming by his Oath that he would do it he was consecrated King the Clergy and People favouring it Eadmerus saith That in ipso consecrationis die bonas Sanctas omni Populo Leges se servaturum omnes oppressiones iniquitates quae sub fratre suo emerserunt in omni sua dominatione tam Dei Lege quam in secularibus negotiis prohibiturum subversurum sposponderat haec omnia Jurisjurandi Interjectione formula per totum Regnum divulgata ire praeceperat and when he was Crowned he granted the Laws recited by (z) Diademate insiâ—nitas has libertates subscriptas in Regno ad exaltationem Sanctae Ecclesiae pacem Populo tenendam concelsit Mat. Paris Hist p. 46. num 40. ult Edit Matthew Paris to be held in his Kingdom for the exalting of the Holy Church and Peace of his People which Laws being at large recited by Matt. Paris may be perused by the Inquisitive wherein he will find how far the old Laws were confirmed and what a Foundation there was laid for Magna Charta Concerning King Stephen (a) Histor. Novel p. 101. b. num 40. Vide Mat. Paris p. 62. num 35. Malmsbury saith King Stephen's Oath That Henry his Brother Bishop of Winchester was a great help to his obtaining the Crown having great hopes that he would follow his Grandfather King William's Steps in the Government of his Kingdom especially in matters of Ecclesiastical Discipline therefore he saith William Archbishop of Canterbury 〈◊〉 exacted a solemn Oath from him of granting and preserving the Liberty of the Church the Oath it self is long and the Immunities to the Church many those to the Laity are conceived in these words Omnes Exactiones Mescheningas Injustitias sive per Vicecomites vel per alios quoslibet male inductas funditus extirpo Bonas Leges Antiquas justas Consuetudines in Murdris Placitis aliis Causis observabo observari praecipio constituo Malmsbury saith That the King swore according to the tenor of the Writing he there produceth Dated at Oxford Anno Dom. 1136. 1 Regni I find no mention of an Oath taken by K. H. 2. at his Coronation but (b) Chron. col 1043. num 67. Brompton saith that he confirmed the Charter of his Grandfather King Henry the First King Henry the Second's Oath and that he was sollicitous ut Lex quae extincta videbatur paulatim exsurgeret and Matt. Paris (c) Hist 1080 1081. saith That Anno 1172. he swore before the Cardinals that he would abrogate all the evil Customs introduced in his time against the Church We find that Pope Alexander (d) Gul. Newbrigensis lib. 4. c. 25. Gerv. Dorob Chron. col 1413. Matt. Paris p. 117. the Third Excommunicated several Bishops and suspended the Archbishop of York for his rash Presumption in the Coronation of a new King in contempt of the Archbishop of Canterbury to whose Office of ancient Right it was known to belong and for that in the Coronation according to Custom there was no sworn Caution offered or exacted by them for the keeping of the Liberties of the Church but afterwards (e) Vt Regni consuetudines antiquas sub quibus dignitas pericliâ—bitur Ecclesiae illibatae debeant omni tempore observari Hoveden Annal. pars poster p. 518 519. it is said to be confirmed by Oath that the ancient Customs of the Kingdom from which the dignity of the Church was in danger should inviolably be kept in all time to come The Solemnities of King Richard the First 's Coronation are fully described by the Abbat of Jorval (f) Rectam Justitiam exercebit in populo sibi commisso leges malas consuetudines perversas si aliqua sint in Regno suo delebit bonas custodies Brompton col 1158. num 60. and as to his Oath King Richard the First 's Oath he saith that he swore and vowed the Holy Evangelists and the Reliques of many Saints being set before him that he would bear Peace Honour and Reverence all his Life to God and the Holy Church and its Ministers and then he swore that he would exercise right Justice to the People committed to him and after he swore that he would blot out or abolish evil Laws and perverse Customs if any were in his Kingdom and he would keep good Laws I find that King John took an Oath as Duke of Normandy King John's Oaths that he would defend Holy Church and its Dignities in good Faith without evil Intention and would honour all the Ordained and that he would destroy all evil Laws if any were and substitute good ones the words (g) Matt. Paris fol. 165. ult Edit num 27. are quod ipse Sanctam Ecclesiam ejus dignitates bona fide sine malo Ingenio defenderet ordinatos honoraret quod Leges iniquas si quae essent destrueret bonas surrogaret At his Coronation (h) Quod sanctam Ecclesiam ejus ordinatos diligeret eam ab incursione malignantium indemnem conservaret quod perversis legibus destructis bonas substitueret rectam Justitiam in Regno Augliae exerceret Idem p. 166. num 4. Promisit se per anxilium Dei bona side ea quae juraverat servaturum he took another Oath that he would love Holy Church and the ordained of it and would preserve it indempnified from the Incursions of the Malignant and that the perverse Laws being destroyed he would substiâ— good ones and would exercise right Justice in England Besides these Matth. Paris p. 189. of the Old Edition saith That he was sworn by the said Archbishop ex parte Dei districte prohibitus ne honorem hunc accipere praesumeret nisi in mente habeat opere quod juraverat
Earls Barons Great Men and the whole body of the Tenents in Capite expressed by those words in the former Questions Clergy and People for by them these demands were made and no doubt they would first ask for themselves for the Vulgar or Rabble could not come near to make their Demands at such a Solemnity as this was so (y) Walsingham fol. 95. num 20. great and splendid there being at it Charles and Lewis Earls of Clermont two of the King of France's Brothers the D. of Brabant the Earl of Fens and the other great Men both of France and England with the Countess of Artois Whoever desires further satisfaction may consult the same learned (z) Elossary p. 24. Author who makes it clear That the word Plebs Vulgus Populus in the Writers of that Age was used for the Laity in way of contradistinction from the Clergy I shall at present leave this and note that for any thing appears to the contrary the same Interrogations Oath c. presented to Edward the Second and Third without the additions of King Richard's continued without any alteration to Henry the Eighth's (a) Book of Oaths fol. 1. time and in that we find the King promiseth he shall keep and maintain the Liberties of the Holy Church of old time granted by their Righteous Kings of England The Oath of King Henry the Eighth I find in the Heralds Office the words thus Do ye grant the rightful Laws and Cusioms to be holden and permit ye after your Strength and Power such Laws as to the Honour of God shall be chosen to the People by you to be strengthned and desensed Vid in Coll. Arm. p. 60. and that he shall keep all the Lands Honours and Dignities righteous and free of the Church of England in all manner Holy without any manner of minishments and the rights of the Crown hurt decay or loss to his Power shall call again into the ancient estate and that he shall keep the Peace of Holy Church and of the Clergy and of the People with good accord and that he shall do in his Judgment Equity and right Justice with Discretion and Mercy and that he shall grant to hold the Laws and Customs of the Realm and to his Power keep them and affirm them which the People and Flock have chosen and the evil Laws and Customs wholly to put out and stedfast and stable Peace to the People of this Realm keep and cause to be kept to his Power In this Oath King Henry the Eighth interlined for the right explication of it instead of People and Flock these Words which the Nobles and People have chosen with my Consent The Oath of King Edward the Sixth Oath of Edward the Sixth so far as relates to my purpose was this Do you grant to make no new Laws but such as shall be to the honour and glory of God and to the good of the Commonwealth and that the same shall be made by the consent of the People as hath been accustomed Oaths of Queen Mary and Queen Elizabeth not seen by the Author The Oaths of King James the First and King Charles the First The Oath of King Charles the Second Hist Coronationis Caroli 2. in Colleg. Arm. I have not seen any Transcripts of the Oaths of Queen Mary or Queen Elizabeth those which King James and King Charles the First took run thus Will you grant to hold and keep the Laws and Rightful Customs which the Commonalty of this Kingdom have and will you defend and uphold them to the Honour of God so much as in you lyeth That Branch of the Oath which relates to my purpose taken by King Charles the Second runs thus Sir Will you grant to keep the rightful Customs which the Commonalty of your Kingdom have c. The Oath that our present King James the Second took at his Coronation The Oath of King James the Second was in the same Words as that of his Royal Brother wherein the Word Customs is to be taken in the largest extent to include Laws also Now upon the whole we must consider First Considerations upon this Discourse of the Coronation Oaths That in the Eye of the Law the King never dyes so that he is King before any Solemnity of Coronation Secondly The variety of Forms and Precedents seem to prove that one precise form is not simply necessary so the interlining of Henry the Eighth upon Record also shews And if it had been of consequence to have retained the old form we should have heard of it either then or in some succeeding Parliaments Lastly it cannot be denied that if the King be bound by a lawful Oath to pass all Bills it is not the form of denying it but the not doing of it which makes the Perjury And so when the King is tender of a flat denial and attributing so much to the judgment of his great Council that he only useth the words avisera it would be a strange Doctrine that all the Kings of England who have given this Answer have been forsworn and neither Parliament nor Convocation taken notice of it in so many Ages But when by dint of Argument the Parliament Champions were driven from these Holds they fled to their last Burrow So one of them confesses that in Acts of Grace the King is not bound to assent nor in Acts wherein he is to depart from the particular right and interest of his Crown and lastly that if he do not consent however bound by Oath yet they are not binding Laws to the Subject How the Long Parliament Writers would have the King part with his Prerogative in Cases of necessity only But then comes the handful of Gourds which spoils the Pottage Except in cases of necessity If the safety of the People be concerned If it may prove dangerous or inconvenient to them then an extraordinary course may be taken This was the plausible Plea of 1641. to get the Militia into their hands for they urged that in case of apparent and imminent danger the Peoples safety was not to be neglected They might not be exposed as a prey to their Enemies therefore must be put into a posture of defence This was grateful to the People out of that real love they bare to themselves they must favour that side which pretends to take care of their safety Give to any Person or Society a Legislative Power without the King in case of necessity (b) Answer to Observ b. 76. permit them withal to be sole Judges of necessity when it is and how long it lasts and then it is more than probable the necessity will not determine till they have their utmost desires which is the same in effect as if they had the Legislative Power Further it must be considered that necessity upon that supposition must be very evident there needs no such great stir who shall be Judge of it when it comes indeed it
will shew it self when extream necessity is disputable it is a sign it is not real Secondly The Agent must be proper otherwise it cuts in sunder the very Sinews of Government to make two supremes in a Society and to subject the People to contrary commands But to claim such a Power over the King in extraordinary cases alone That the Houses should be Judges of this Necessity doth not much vary the case for at the same time they voted themselves the proper Judges of such necessities and the erecting of any superintending Power in the circumstances of those times and in all parallel cases would not only unsoveraign the King by making this Power the Soveraign but the exercise of it would be subject to more dangerous extravagances than Regal Power is and yet less capable of Regulation than it For the Law knowing there is none but God qui custodiat ipsos custodes concludes from the weakness and imperfection of every other form of Government that the Soveraignty of Law-making was better placed in the hands of a sole Prince than in a Popular or Aristocratical hand and that a positive known Law without any coercive Superintendent was a sufficient and the best boundary of Regal Power For the Law and the Transgression of it being both at once made manifest and notorious it will be so sufficient (c) Review of Observations security of the future observance of the Law that Princes will not offer to violate it Now if such a Supreme Power as these would have in the two Houses in what case soever be once enacted that must either be boundless or circumscribed by a Laws and if that be circumscribed with a Law then must that Law also have a Superiour Power to enforce it and so there must be a Superiour Power over Superiour Power in infinitum and yet at last leave the most Superiour Power in that liberty which the Observer calleth boundless Arbitrary and Tyrannical If this Principle were true By the Arguments of the Parliamentary Writers the Sovereignty is not in the King but in the People all is but misleading formality of Law the Soveraignty is not in the King but in the People the King is the only Subject and but a common Voucher whose concurrence is unavoidably implied his Will his Understanding and his Power are all subject to the Body of the very Subject that in Parliament doth swear subjection to him and these pretended Rights being hid ever since the beginning of the Kingdom the whole generation of the Subject ever since hath by the injury of our Laws been most impiously mis-sworn in their Allegiance And whereas the trust is irrevocably committed to the King and his Heirs for ever how can it be conceived it should sleep during the sitting of a Parliament unless that jocular saying of King James were to be understood really That during the Sessions of a House of Commons there were five hundred Kings And if any such Power were in the Houses it was a strange oversight to leave it to the Kings disposal when to call the Body together and when to dissolve it as before I have touched whereby the King might solely determin where and how long he would be over-ruled and when King again whereas by the false suggestion of the Observer that it was fit the Houses should have a Superintendent Power in case of extraordinary danger and they only to be Judges of that danger he cunningly turns the Tables and makes the Houses to be Soveraigns as long as they pleased and when they were weary of reigning the Kingdom should be out of danger and then it should be the Kings turn to command again But to draw to a conclusion on this subject which cost so much Blood and Treasure There (d) Answ to Observ p. 72 73. neither is nor can be the same necessity of observing an old Law to which a King is obliged by his Charter and his Oath and of a new Law to which he hath not given his Royal Assent If Magna Charta extended to this it were Charta Maxima the greatest Charter that ever was granted To be be denied nothing is a Privilege indeed as good as Fortunatus his Purse or as that old Law which one found out for the Kings of Persia That he might do what he would The King 's Negative Voice Necessary The taking away the Kings Negative Voice may indeed secure us against Tyranny which never can come in upon us as long as the two Houses (e) Idem p. 136. Negatives ballance it but it leaves us open and stark naked to all those Popular evils and Epidemical diseases which flow from Popular Government as Tumults Seditions Civil Wars and the Ilias of Evils which attends them the Negative Voice being the Soveraignest remedy against such great Mischiefs One Wheedle I find more they used since the King was so tender of violating his Coronation Oath in giving Assent to their new Bills which were diametrically opposite to the old fundamental Laws made in defence of Episcopacy and the Kings Prerogative in the Militia c. they quit their Title of Parliament men That the King is not bound to consent where what is desired is more inconvenient to the People than himself and would be Casuists to resolve his Conscience telling him that where the People by Publick Authority will seek inconvenience to themselves and the King is not so much interested as themselves it was more inconvenience and injustice in the King to deny than to grant it Thus the Houses would have granted the King a Dispensation to have acted against the dictates of his Reason Conscience and the fundamental Laws And because he would not own their Commission for it they persecuted him to the Scaffold This was an unheard of Villany to be offered to so Pious and Religious a Prince that as Father of his People would not give them a Stone instead of Bread or a Scorpion instead of a Fish The Heathen was much honester who prayed Jupiter to give him good things though he never opened his Mouth for them and to withhold bad and prejudicial things though he petitioned never so earnestly for them This was a strange Principle that the King should be bound by Law to destroy his People or not preserve their Right unless he not only violate his own Conscience but their very Liberties Can a man imagine those People of whom Juvenal speaks evertere domos totas optantibus ipsis Dii faciles if they had understood their own Prayers would have accused the Gods for denying them As they thus sought to hush the Kings Conscience so that endeavoured to find a quaint salvo for their own more brawny ones For when it was urged that to deny the Kings Negative Voice was to dissolve the excellent constitution of Parliaments and was directly against the settlement of it upon the true basis of the Ballance and the mutual stipulation of the King
the Nation but are drawn to promote private Animosities under (h) King's Speech 6 March 1678. pretence of the Publick and are so far from proceeding calmly and peaceably to curb the motions of unruly Spirits that endeavour to disturb them that they expose the King to the Calumny and danger of those worst of men who endeavour to render him and his Government odious to the People I shall now touch upon some of the Artifices used to bring in such Members in the Parliament of 1678. and some succeeding ones whereby their Conventions were rendred useless for the King and People and inglorious to themselves though they pretended to as much Loyalty and Publick good as those in 1641. did at their first sitting The King having dissolved the long Parliament and summoned this to sit the 6th of March 1678. The Artifices used by designing People to get such as they desired to be elect ed. the industry of the Dissenters Male-contents and we may suppose Common-wealths men was extraordinary great as now hoping they should be able to chuse such Members as would be more favourable to them They had been long instilling into the Peoples Heads The Characters they gave Men of the Court-party that in the former House there had been a Court and Country Party the former were for Arbitrary Government fleecing the People Persecution and such as gave no great credit to the Tragical representation of the Popish Plot The latter were moderate men and not so much for Ceremonies as the purity of Religion would stand for the Peoples Liberties and Properties by riding night and day about the Villages and trudging about Corporations and the weekly Conventicles they spread this Character abroad and with all the Arts imaginable endeavoured to proselyte (i) Address part 2. p. 2 3. all that were not sharp-sighted enough to pierce into their designs If any seemed not to believe those Characters or declared himself for the Government Civil or Ecclesiastical established by Law and neither for Popery or Arbitrary Government nor yet for a Commonwealth or Dissenters they run them down with noise traduced them behind their backs as Papists in Masquerade and men of Arbitrary Principles Papists in Masquerade And if any were so bold as to scruple the coherence of the Narratives of the Popish Plot he was vilified as a Defamer of the Kings Evidence as stifler of the Plot and from hence they concluded to insinuate into the Populace that those Loyal Gentlemen who had been Members of the late long Parliament had joyned with the Court to hinder the Discovery of the Plot and if any gainsaid them they used such questions What Are you for Popery Will you give your Voice for a Papist Are you willing to have your Throat cut Are you for Arbitrary Government By which means they won over too many to joyn with them Excluding Loyal and Orthodox Gentlemen to exclude many Loyal and Orthodox Gentlemen from being chosen Members of Parliament Their design was advantaged because some were their friends of old others had come the half way over to gain the reputation of moderate men others had been disgusted by the Government The Conventicle Teachers rallied up their Flocks and they all joyned to slander the Clergy as if they had a kindness for Popery in their hearts though they durst not discover it for the present And generally blasted all the Loyal Gentry as Popishly affected the Court-Party Pensioners c. So that if any one bore any Publick Office Military or Civil he was eo nomine to be rejected The Persons they recommended to the People to be chosen were first all those Gentlemen who called themselves the Country (k) Idem p. 5. Party who had appeared most zealous against his present Majesty the Queen Dowager and Ministers of State To these they added as many as they could of the reliques of the old Rebellion or their Children and made up the number out of the moderate and discontented Gentlemen Burgesses and Tradesmen It was sufficient recommendation if the Government had displaced any for these were looked upon as not to be corrupted or bought off and here and there they took in an honest Gentleman in hopes to win him to their side by this kindness After the dissolution of this Parliament when his late Majesty issued out his Writs for another to convene 17 Oct. 1679. they added to their former Arts the loud clamours against French Pensioners French Pensioners Popery Arbitrariness and all those who voted against the Bill of Exclusion as Popishly affected or downright Papists traducing his Majesty the Court the Ministers of State and almost all the Loyal Gentry and Clergy for endeavouring to have those men chosen The second advantage they made was the pretended discovery of (l) Address part 3. p. 5. Sir Stephen Fox of the Pensioners of the late long Parliament which discovery being hastily made and no Record of it being entred Pensioners to the King they took the confidence to add to it whomsoever they pleased to have so thought They made the People believe they knew who would be Pensioners likewise and led the diffidence to that height as to exclude as far as they could possibly not only all the Courtiers and other Persons who had any places of profit and advantage under his Majesty but their Relations too and wanted not much that they had excluded all those who bore any Honorary Imployment So that nothing recommended a man so effectually for a Parliament man as that he had not been thought fit to be trusted in the least by his then Majesty or their Neighbour Gentry these they cried up as true Friends to the Protestant Religion and the Country and he was an hard-hearted Man in their Dialect who called the Sincerity of their Loyal Intentions in question However by their Actings many of them have been discovered to be but cold Friends to the Government But Intending to discourse more fully of the several Arts us'd by designing Men in the Chapter of Factions I shall at present quit this Subject and only desire Kings to consider that they can condescend no lower to gratifie Importunities of Parliament or People in yielding up any of their Privileges The Philosopher of old hath noted how Kingly Authority was lessened among the Grecians which was no ways profitable to them He speaking of Kings in the Heroick times (m) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. l. 3. c. 14. That then they had the Government and Administration of Matters in the Cities and the adjoyning Territories within their Dominions and what extended without the Limits of the Empire viz. to preserve and protect their Subjects against their Enemies make War and Peace c. But after partly by the spontaneous Concessions of the Princes and partly by the Encroachment of the People they came to be lessened in Power and in some Cities had only the Power of Sacrificing left in others
the Command of their Armies This as well as other Reasons must needs demonstrate That if ever any two Houses of Parliament should by Arts of Insinuation as that of 1641. did That unless the King would grant they might not be dissolved without their Consents Kings never to yield what the Long Parliament were so earnest for they could not have time to settle his Throne and redress Grievances or by denying necessary Supplies force a King to grant them a Power of prolonging their own Sitting or meeting at stated times without his Writ or yielding to their Bills implicitly as the Black Parliament of 41. endeavoured and then to have the Power of nominating the Great Ministers of State and the Officers of the Militia an end would be soon put to Monarchy Therefore every one that loves their Country The Care to be had in Elections the continuance of that most excellent Frame of Government for the Subjects security as no other Country enjoys those who would avoid the sad Ravages of Civil War who would make their Prince Glorious their Country Renowned themselves and their Posterities Happy let them be careful to elect Loyal and Judicious Members neither tainted with Faction Ambition or Self-ends and if any such be elected let the Wise and Loyal when they meet in that Great Assembly watch over the Designs of such ill Members discover their Intriegues be careful not to be circumvented by their Artifices stick close to the Fundamentals of Government and then all things will be prosperous and they will have the honour of being stiled True Patriots of their Country Sir (n) 4. Instit p. 35. Edward Coke hath noted That Parliaments succeed not well in five Cases Several Cases where Parliaments succeed not well when the King is displeased with the Two Houses First when the King hath been in displeasure with his Lords or Commons therefore it was one of the Petitions of the Commons to Edw. 3. That he would require the Archbishop and all other of the Clergy to pray for his Estate for the Peace and good Government of the Land and for the continuance of the King 's Good-will towards the Commons to which the (o) Rot. Parl. 25 E. 3. num 15. 43 E. 3. num 1. 50 E. 3. num 2. King replied The same prayeth the King The like Petition he saith many times the Lords have made and further adds That the King in all his weighty affairs had used the advice of his Lords and Commons always provided that both Lords and Commons keep within the Circle of the Law and Custom of Parliament The second is when any of the great Lords are at variance among themselves as he instanceth in the third (p) Rot. Parl. 3 H. 6. num 18. When Variance among the Lords of H. 6. in the Controversy betwixt John Earl Marshal and Richard Earl of Warwick and 4 H. 6. betwixt the Duke of Gloucester and Bishop of Winchester whereby little was done in any Parliamentary Court and that little of no moment The third When no good Correspondence betwixt the Lords and Commons when there is no good Correspondence betwixt the Lords and Commons which happens when some People out of design to render the meeting of the two Houses ineffectual do project some matters whereby the Houses may clash about Privileges as was lately in Shirley's Case about the Mony-Bill from the House of Lords and many other Particulars might be instanced in therefore Sir Edward Coke saith That when it was demanded by the Lords and Commons what might be a principal Motive for them to have good success in Parliaments Sitis insuperabiles si fuertis inseparabiles it was answered They should be insuperable if inseparable Cum radix vertex Imperii in Obedientium consensu rata sunt The very root and top of Government consists in the consent of the Obedient and the Subjects Happiness is in that Harmony when it is betwixt the two Houses and among themselves but much more happy when it is likewise betwixt the Sovereign and the two Houses It is that which compleats their own and the Peoples Felicity But when the two Houses or one of them are for wresting the Sovereigns Prerogative from him as in Forty one then it is the most fatal and ill-boding sign of any other The fourth is When Disagreement in the House of Commons when there wants Unity in the House of Commons as we had not long since Experience when within those Walls from whence wholesome Counsels are expected and all things tending to the preservation of the King's Peace Crown and Dignity such Heats were amongst the Members that if one Sword that was half drawn had been wholly unsheathed it was thought a very bloody Battel had been fought The last he makes When no Preparation for the Parliament is when there is no preparation for the Parliament before it begin for which purpose the Summons of Parliament is forty Days or more before the Sitting to the end that Preparations might be had for the considering the arduous and urgent affairs of the Realm And Sir Edward saith it was an ancient custom in Parliament in the beginning thereof to appoint a select Committee to consider of the Bills in the two preceding last Parliaments that passed both Houses or either of them and such as had been preferred read or committed and to take out of them such as were most profitable for the Commonwealth To these may be added a most material one When Redress of Grievances are preferred to the Supply of the King that makes unfortunate Congresses of Parliaments viz. When the Members come up with strong Resolutions to provide Remedies for some Grievances either real or surmised and at the same time the Sovereign is in great Straights for supplies for the safety repute or necessary occasions of the Government for then as in most of the Parliaments of King Charles the First the Houses are for redress of Grievances before supply how pressing and urgent soever and do not credit the King that he will give them time to redress them after he is supplied and they from design rather than this diffidence will not suffer supply and grievances to go pari passu Hand in Hand as we may remember in those Parliaments wherein the popular Men made such Harangues that they would know whether they were Freemen or Slaves or had any thing to give before they entred upon the giving part The like we saw in King Charles the Second's Reign in some of his last Parliaments whereby all their Consultations were abortive and both the Kings had no other Expedient but Prorogation or Dissolution and disuse of Parliaments for some Years followed How much happier have we been in the last Session of the Parliament under our most Wise The happy Harmony in the last Session of Parliament June 1685. Magnanimous and Gracious King wherein no strife or contention was but who
calling those who were learned in the Laws for Assistants therein as Mich. 53 and 54 H. 3. rot 37. in the Case of Assise of Mort d'auncester brought by Alexander King of Scots against John de Burgo But as hereafter I shall shew much of the Power of the Kings Council is now taken away The Fourth Council of the King The King's Council at Law are the Kings Judges at Law who are his Council at Law in all Cases wherein he hath occasion to consult them as appears in the Law Books and particularly may be found in (q) 1. Instit lib. 2. cap. 10. sect 164. Sir Edward Coke of which I may have occasion to speak in the Chapter of Judges I thought to premise these things for the better understanding of the differences of the Kings several Councils and shall now proceed to discourse of the most Honourable Privy Council in general as Counsel is necessary for Princes to have and as they ought to be qualified what their Office and Imployment is and ought to be both in Relation to all Princes Secret Councils and particularly according to the constitution of England according to my poor Abilities The most Honourable Privy-Council consists of Noble and Wise Persons chosen by the Prince to assist him with their sage and faithful Advice in the weighty Affairs of Government Kings cannot by their own personal knowledge comprehend (r) Nec unilts me â—â—em tantâ—e molis esse capacem Tacit. 1. Annal. all things therefore it is needful for them to assume others in participationem curarum especially great and weighty Affairs need great Coadjutors as Paterculus (s) magna negotia magnis egere adminiculis Velleius l. 2. well notes and the * Principis labores queis orbem terrae capessit egere adminicu lis ut domestica cura vacuus in commune consular Tacitus 12. Annal. grave Historian tells us That Labours of Princes by which they manage their vast Countries need helps that being free from Domestick Cares they may consult for the Publick Whoever looks only upon the Port and Grandeur of Princes their soft Raiment and feeding delicately may think it a pleasing and desirable State but they never reflect on the anxious Cares the difficulties of managing Matters upon which great and momentous events and ordering of vast bodies of different Interests depend Therefore the (t) Rhetor. ad Alex. Philosopher well noted That to give give good Counsel is one of the Divinest things among Men. Whereas on the other Hand when Counsel is supine Government must be tottering but a Mind (u) Animus qui verum seit scit tuto aggredi Thucyd l. 1. setled in Resolves safely attempts any thing That Reason being the soundest which useth Cunctation and Deliberation and forefears as well as foresees what will happen because in acting it will produce Confidence For they must be a great Defect where Counsel is not taken before Action It being for Sword-Players not those that bear the Sword of Magistracy In arena Consilium capere As to the use of Counsellors (w) Quod fieri debet tractato cum multis quod facturus es cum paucissimis fidelissimis Lib. 3. de Re militari Vegetius tells us it becomes a Prince to treat of those things which ought to be considered with many but those which are to be executed with few or rather by himself agreeable to which is what the learned Lord (x) St. Alban's Essays p. 88. Chancellor notes That some Affairs require extream Secrecy which will hardly allow to go beyond one or two Persons besides the King neither are those Councils unprosperous for besides the Secrecy they commonly go on constantly in one Spirit of Direction without Distraction but such are only to be used by a prudent King who can grind with an Handmill A great part part of the (y) Idem p. 87. Skill of a Prince is discovered in the choice of wise Counsellors and the managing of their Counsels require the greatest Address Ability and Dexterity of Sovereigns Therefore the Antients feigned Jupiter to marry (z) Idem Wisdom of the Ancients Princes to have the Honour of Councils Metis viz. Counsel and she being with Child by him he eat her up and was delivered of Pallas out of his own Head The Moral of which is That Princes refer matters to Council and when the Council grows ripe they are not to suffer their Council to go through with the resolution and direction as if it depended on them but to take matters back again into their own Hands and so make them appear to issue from themselves with Prudence and Power as from their own Head and Advice as Pallas came forth armed fitted for present Action It is in vain for Princes to take Counsel concerning matters Choice of Persons if they take not Counsel likewise concerning Persons for the greatest Errors are committed and the most Judgment shown in Individuals There was never King bereaved of the Benefit of Counsel except when there hath been an over greatness in one Counsellor or an over-strict Combination in divers which are things soon found out and helped therefore Principis maxima est virtus nosse suos In Council the King presiding Princes not to open their Inclinations too much should not open his own Inclination too much in that which he propoundeth if he desire sincere delivery of the Counsellors Judgments lest his Authority sway too much Therefore Princes should take the Opinion of their Council both separate and together private Opinion being more free and Opinion before others more reverend It is therefore a Prince's greatest Interest to be unprejudicate and to keep an open Ear to all wholesome Counsel for as Capitolinus (a) In Gordiano Juniore saith Miser est Imperator apud quem vera reticentur That prince is in a very bad Condition from whom the true Estate of his Affairs is concealed Several wise Princes have with an even Hand distributed their regards to Counsellors that have mortally hated one another Making use of Counsellors of different Perswasions or Interests as some observed in Louvoy and Colbert and it is a certain sign of a good Workman that can work with any Tool The advantage a Prince hath is that they are Spies one upon another and will be both aemulous who can do their Masters Services best but if they grow to be the Heads of different Factions they will prove most dangerous Having thus far proceeded as to the Interest of a Prince in his Counsellors and their advice I shall speak to the Qualifications of Counsellors In (b) Leo Imp. de Belli apparatu secret affairs faithful temperate and close Persons are most fit Counsellors and who have no private Interest The Qualifications of Counsellors for Secrecy is that invisible Clasp that buckles great Affairs the hidden hinge upon which they are moved according to (c) Taciturnitas optimum ac
tutissimum rerum administrandarum vinculum Lib. 2. c. 21. 1. Secresie 2. Ability Valerius For he can never atchieve great matters to whom it is irksome to retain Secrets So Aemilius Probus amongst the praises of Epaminondas relates that he was Commissi celans and Albertus King of Poland said he would change his Shirt if he thought it were privy to his Counsels He is a leading eminent Man saith (d) Eum primum esse virum qui ipse consulit quod in rem sit secundum eum qui bene monenti obediat qui nec ipse consulere nec alteri parere scit eum extremi esse ingenii Lib. 2. Livy who is able to give Counsel and Second unto him is he that yields to good Counsel but he is in the lowest form of Wit who neither can give good Counsel nor obey it The true Composition of a Counsellor 3. Skill in a Prince's Affairs saith my Lord St. Albans is rather to be skilled in his Masters Business than his Nature for then he is like to advise him and not to flatter him and find his Humour For knowledg and Prudence in affairs are principally requisite in Counsellors who should be well acquainted with the (e) Ad concilium in Republica dandum caput est nosse Rempublicam Cic. de Orat. Constitution of the Government the Laws Rules and Policy of it both to be able to advise in all things relating to his Princes managment of matters at home and abroad (f) Tacitus vita Agricolae Mores animosque Provinciae quaerere To be curious to dive into the Spirits manners and Dispositions of all those his Prince hath to deal with whereby he may the better suit his Masters occasions by humouring and timing every thing with a quiet Industry and making every matter be adapted to his end without tumultuation and rude Shocks but rather by insensible Screws The noblest design and endeavour any Privy-Counsellor can have 4. Not to aim at Private Profit is to serve his King and Country upon Principles of publick advantage for it is the worst of Poysons to the Judgment and regards to Truth in all Consultations to aim at private Profit according to that Excellent remarque of (g) Pessimum veri affectus judicii venenum sua cuique utilitas 1. Hist Tacitus That private design of Profit is the worst Poyson of Judgment and attaining Truth For when private Prosit holds the Ballance the Princes Standard is little regarded there being no weight so deadly heavy as when a Man's self and his private Interest are cast into one Scale Uprightness and Faithfulness are two Master Ingredients in all Counsellors 5. Uprightness and Faithfulness requisite So Pliny (h) Optimum eum quemque sidelissâ—mum Panaegyr tells Trajan That he is the best Man that is most faithful to his Trust for by the Eyes of Counsellors Princes see by their Ears they hear and if those Organs be depraved the Princes Apprehensions of things must be adulterated and the King passing his Judgment according to their Representation may proceed upon very uncertain or false Grounds Counsellors indeed are the Speculators of Princes they have therefore need of the clearest Sight not to be tainted with false Colours they are to be quick-sighted to pry into the Consequences of Things while in the obscure Shop of the First Causes they are the Pilots that are appointed to steer the Ship of the Commonwealth and so must be skilled in the Chart to know to veer and change with Emergencies to know the rolling Sands and under Sea-Rocks to know the Coast and Creeks the Measure of all things relating to the Government both preceding by-past and to come The (i) Sapiens Non semper in uno gradu sed in una via nec se in aliquibus mutat sed potius aptat 3. Histor most politick Historian notes 6. To pursue the Design of the Prince by several ways That a wise Counsellor though he may pass in several Tracts yet must never be out of that Path which will lead him to the accomplishment of his Designs and in the necessary Traverses he must make not to be found so much to change as to suit himself to the Work he is about It is a great piece of self-denying Wisdom in a Counsellor that desires to keep his Station 7. To leave the Prince the Honour of Counsels to leave to his Master the Honour of the contrivance of those advantagious things he suggests Aliis (k) Guntherus magni reputantibus ipse Negligit modico factum metitur honore So Agrippa admonisheth those that would be safe in Courts to eschew the difficulties of things and leave the glory of the accomplishment of them to those that have the Supremacy It is too hazardous a curiosity in some Princes Counsellors to enquire into the hidden sence of their Masters 8. Not to be too curious in prying into their Master's Secrets or what they reserve in their own dark thoughts It being difficult to attain the meaning of what they leave doubtful according to that of the curious Author (l) Abditos Principis sensus si quid excultius parat exquirere inlicitum anceps Tacit. lib. 6. Annal. c. 2. It is doubtful and unlawful to enquire into the hidden Sence of a Prince or what he more curiously designs But this falls out only under a Tiberius or some Mysterious Prince though it may happen under a Good and Wise Prince who to leave the greater liberty of Debate discovers not his own inclinations and under such an one Counsellors are safe especially when by conjectual Inferences they promote the end though they may differ in the Medium Pliny saith (m) In Consiliario Principis tria maxime requiruntur libertas fides veritas libertas consilii est ejus vita essentia qua erepta consilium evanescit Panaegyr three things are required in a Counsellor 9. Liberty Faith and Truth requisite in a Privy-Counsellor Liberty Faith and Truth Liberty is the Life and Essence of Council which being taken away all Counsel vanisheth for as good Counsel is the Soul of the State so he that hath not a Liberty being bound by private Interest is but a Palsied Member and if Counsellors want Faith and Verity they hide and disguise the Truth which is full of danger both to the King and (n) Malum consilium consultori pessimum themselves Such fear as doth not fall in constantem virum is a great enemy to good Counsel for fear is a betraying of such succours as Reason and Counsel should afford King (o) Coke 4. Instit c. 2. Four Properties of Counsellors Edward the Third would have his Counsellor to have four Properties 1. To be Parcus sui knowing he would never be provident for Him that would not be a good Husband for himself 2ly That he should not be Cupidus rei alienae no covetous or greedy man for
as they foresaw would thwart their designs as Seducers of the King and men of Arbitrary Principles thereby to have them wholly removed from him as we have had Addresses of a later date from an House of Commons against some great wise and Loyal Lords by which severing from him such a body of his faithful Advisers Their Design to remove some Privy-Counsellors that some of their Party might be introduced and dangerously depriving him of the constant means which the Law hath specially ordained him for his support some of them endeavoured to get into their places as was notoriously known to have been proposed that if several of the leading men might have had chief places and honours they would have let the Earl of Strafford live as in another Treatise I hope to make clear and by that meanâ— not only have enriched themselves but have had the guidance of Affairs of State and so by little and little brought about the Promotion of their friends without regard to the Publick If we impartially consider the unreasonableness of this proposal we shall find The Mischiefs that would follow upon the Parliaments nominating Privy-Counsellors that by granting it we must expect to suffer all the evils which Faction can produce This were the ready way to kindle a fire in our bowels which would first break out in our Country Elections and divide the Families by irreconcileable hatred For it cannot be imagined but that Power would bandy against Power and Relations against Relations See Answer to Observations to put a Son or Kinsman into the road to preferment nor could the flames be quenched but burn more vehemently even in the house to which the insolence of some obtaining Offices to which they are not fit the shame and discontent of others repulsed and the ambition of all would be continual fuel and the greatest misery of all would be that were the corruption never so great we could have but slender hopes of redress since the prevailing Party jealous of their honour would constantly maintain their choice and perhaps it would be necessary for them one to wink at another as it was manifestly seen in the long Parliament when the most known Offenders and active Instruments of the Peoples miseries by striking in with the prevailing Party were more safe than innocency could make them It is enacted by King (i) 17 Car. 1. c. 10. The Limitations of the Power of the Privy-Council Charles the First that neither his Majesty nor his Privy-Council have or ought to have any Jurisdiction by English Bill Petition Articles Libel or any other Arbitrary way whatsoever to examine or draw into question determine or dispose of the Lands Tenements Hereditaments Goods or Chattels of any of the Subjects of this Kingdom but that the same ought to be tried and determined in the ordinary Courts of Justice and by the ordinary course of the Law In the Oath of a (k) Rot. Pat. 5. H. 4. num 14. Fleta lib. 1. c. 17. Privy-Counsellor his duty is best manifested First That he shall as far forth as cunning and discretion suffereth First Particular of a Privy-Counsellor's Oath truely justly and evenly counsel and advise the King in all matters to be commoned treated and demanded in the Kings Council or by him as the Kings Counsellor Therefore Henry the Eighth wisht that his Counsellors would commit simulation dissimulation and partiality to the Porters Lodg when they came to sit in Council Secondly Second Branch uprightness That in all things generally which may be to the Kings honour and behoof and to the good of his Realm Lordships and Subjects without particularity or exception of persons not fearing or eschewing so to do for affection love meed doubt or dread of any person or persons that he shall with all his might and power help and strenghthen the Kings said Council in all that shall be thought good to the same Council for the â—niversal good of the King and his Land and for the peace rest and tranquillity of the same Therefore my Lord Cook (l) Instit par 4. fol. 53. saith these Counsellors like good Sentinels and Watchmen consult of and for the publick good and the honour defence safety and profit of the Realm they are his true Treasurers and profitable Instruments of the State Thirdly That he shall keep secret the Kings Counsel Third Branch Secresie and all that shall be commoned by way of Counsel in the same without that he shall not common it publish it or discover it by word writing or in any otherwise to any person out of the same Council or to any of the same Council if it touch him or if he be party thereof So Valerius M. (m) Nihil magis optâ—ndum quam ut rerum ger â—darum consdia qu 〈◊〉 ejus fieri poterit quam maxime 〈…〉 Lib. 4. saith Nothing is more to be desired than that the Counsels of things to be done as much as possible be secreet So Vegetius (n) Nulla sunt meliora consilia quam quae ignoraverit â—dversarius antequam facias Consilia nisi sunt abscondita exitum raro prospiciunt Lib. 3. de Re militari hath of old pronounced That no Counsels are better than those which the Adversary is ignorant of before they be executed for unless Counsel be hidden and secret they rarely attain their end Fourthly That (o) Rot. Pat. 11 H 4. num 28. he shall not for gift meed nor good nor promise of good by him nor by means of any other person receive or admit for any promotion favouring nor fordeclaring letting or hindring of any matter or thing to be treated or done in the Council Therefore the part of a Counsellor is Tu civem patremque geris tu consule cunctis Non tibi nec tua te moveant sed publica vota Fifthly That he shall withstand any person or persons of what condition estate or degree they be of that would by way of feat attempt or intend the contrary to the good of the King peace of the Land c. and generally that he shall observe keep and do all that a good and true Counsellor ought to do to his Soveraign Lord. CHAP. XXXI Of Ministers of State I Joyn to the Privy Council Ministers of State being they differ from them very little some in name others in degrees For there (a) St. Alban's Essays tit Honour and Reputation are several qualifications of Subjects that serve a Prince As first those that are participes curarum upon whom Princes discharge the greatest weight of their Affairs The several Qualifications of Ministers of Princes as Ministers of State and Privy-Counsellors Secondly Duces Belli such as Princes imploy in their Armies and Militia Thirdly Gratiosi Favourites such as are a solace to the Prince and harmless to the People Fourthly Negotii pares such as not only have great places under the Prince and execute them sufficiently but
from the cruel Flatteries of others and yet needed no attemperament for that he continued in equal Authority and Favour with his Prince and of Cornelianus Piso * 4. Annal. he saith Nullins servilis Sententiae sponte Auctor quoties necessitas ingrneret prudenter moderans He never was willingly Author of any servile Opinion and as often as there was need he prudently moderated I shall only annex to this what may in general serve as a Character of an able and useful Minister of State faintly drawn from a great Original Whoever designs to serve his Prince and Country in the Administration of Affairs The Method of attaining to be a Minister of State must have had a liberal Education spent a great portion of his time in diligently perusing Ancient and Modern Histories Memoires of great men the Laws and Government of his own and Foreign Countries and the best Treatises of Politicks and then consider the most judicious and accomplished Persons and amongst them such principally as in their several Stations have the Practical Part of Affairs committed to them both in Courts of Judicature the Exchequer and Admiralty and in these especially note their dexterity for their Imployments wherein their Eminencies appear how their Interests are interwoven or independent what their dispositions and inclinations are especially in their obedience to the Government usefulness to it their Treatableness Avarice Pride Ambitious or Factious Propensities as well prying into the Vices they conceal as the laudable Qualities they make themselves conspicuous by distinguishing betwixt the natural and constrained tempers of every one If such an one be not Consiliarius natus he ought to get himself early chosen a Member of the House of Commons and then diligently read all such Books as treat of that Honourable House peruse the Journals note well and weigh not only what he finds there but also all the Speeches of the leading men the force of their Arguments and the tendencies of them Mark well who are forwardest to supply the Government whose Talent lies in contriving wholesom Laws for the benefit of the Subject who are the best Orators who the subtilest or solidest who affect Popularity who are suggesting suspicions of the increase of the Kings Power who the greatest informers of Grievances who cut the Thred evenest betwixt the Royal Prerogative and the Subjects Liberties in all these well pondering the grounds upon which every one bottom their Arguments contenting himself to be an Auditor and Register for some while in his Votes following the wisest and least byassed by private Interest During the time he is under the Discipline of this Noble School he must fill up the intervals of his vacant hours either in perusing such learned Authors as treat of the Subjects have been debated in the House or in conversation with the eminentest experienced Members or with such of the Court as he may be best informed from During all which time he must intermingle the Study of the Laws of those Foreign Countries his Prince hath Correspondence with and obtain true Characters of their Ministers of State their regulation of Trade their Taxes and Gabels their Military Force the disposedness of any Parties to Faction and consider wherein his own Prince or a Foreigner hath better Laws for the good Government of the Subjects and for the preserving the Crown in Splendor and Power A Person thus qualified and fitted for his Masters Service and the publick good of his Country cannot long want an opportunity of being noted and in peacable times some Ministers of State will be desirous to obtain his assistance and will be ready to befriend him for their own advantages to alleviate their own burthens and his Prince will be desirous to be served by a Person of such a Fund If the times be turbulent and factious it is not amiss for such a Person during his Noviceship to mingle himself with the popular and Male-content Nobility whereby he may know the bottom of their designs and the plausibleness of their Pretences the strength of their Reasons as well as of their party and the tendencies of the distinct Interests that may be united in rendring the Government ingrateful to the People though not in the methods of modelling or subverting it This I must confess is a dangerous point and requires one that hath an Heart and Brain all Amulet against the infection of Disloyalty and is dexterous enough to cajole such a Party which he may the easilier do by appearing only as a rasa Tabula and desirous of following others conduct and a well wisher to his Countrey and then he shall be sure not to miss a serious courtship from that party How then to extricate himself from those Thickets Brambles Coverts or Earths wherein he hath entred to unkennel the Foxes will be a great Master-piece and requires no common agility and deliberate forethought One of the Houses of Parliament is the fittest Theatre for him to unmask himself in where he may at one great step pass over to the Loyal side which will be done with more advantage if he take some Critical time when the signalizing his Loyalty will be more useful as well as endearing to his Soveraign and when Courage and Resolution will best bestead his Affairs Then he is to discover his Talent by demonstratively manifesting his true Zeal for and justifying the Government in concurring with the faithfulest and ablest Ministers of State or putting himself in the Van and without Affectation or Passion with weighty Reasons bold and natural utterance smartness of Judgment and Learning fully determine the point in debate and as often as there is occasion re-inforce his Argument with fresh matter Here he is to set up his rest being resolved for his whole life never to desert the Interest after he hath upon so good deliberation resolved upon it This Action will soon he discovered to his Prince of whose Privy-Council if he were not before we may suppose he will soon be admitted Hither he must carry a resolution fixed and unalterable to intend solely his Masters Service and the benefit of his People that nothing of the Rights of the Crown be diminished or of the Liberties of the People be invaded Here no double or sinister dealing must enter his thoughts he must be the same in his Prince's Cabinet as at the Council-Board he must use a true and dutiful diligence above his fellows in attending his Prince's Person and his Councils must be free from unlawful Ambition Bribery and By-Ends all over Oyled that none may fasten a gripe upon him be free debonaire and affable to all he converseth with but withal wholly reserved as to the discovery of his Masters Designs Ready to prefer none but such as may be truely serviceable to their King and Country culling out and recommending to his Imployment only Sober Discreet and Useful Persons in their several Capacities and never supporting or countenancing any that once falsify expectation
Gentry be bred up in Learning Young Nobility and Gentry to be so educated as they may be fitted for Magistracy Military Discipline and all other ways that might accomplish them for the service of their Prince and Country for where a Prince can be served by the Nobility and ancient Gentry it much facilitates the execution of their trusts but in some cases it may be requisite to imploy those of great Wisdom Judgment and Diligence the Endowments of noble Minds though not of so noble Extract So (q) 6. Annal. Mecaenas advised Augustus that he should chuse the praefectus praetorio out of the Horsemen lest if he were one of the Nobility he might attempt something against the Prince and so it is noted in (r) Quod pâ—r negotiis â—eque â—upra erat Tacitus That the Province was given to Sabinus not for any excellency but that he was fit and not above the imployment But this caution is unnecessary where Kingdoms are hereditary and depend not upon the approbation of Soldiery or Senate Princes not to give too great Powers to any Above all things Princes should take care that they commit not any of their Royal Prerogatives to the Magistrates or their Curators 'T is not safe for a Prince to intrust any of these in a Subjects hands for it is by many Histories apparent that when by reason of a Prince's Captivity Minority his prosecuting some War out of his Country whereby a Kingdom cannot be governed without a Viceroy or Protector with the whole Authority of a Prince the sweetness of this Power hath tempted them to usurp or do ill Offices to their Prince or People (s) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. lib. 5. c. 11. Hence the Philosopher adviseth not to make such great who in Wit and Manners are bold and daring Therefore it is not safe for Princes to keep Viceroys long in their imployments especially if there be any danger of their Ambitious aimes to get the Soveraignty into their own hands or that they will not be observant of the due Execution of the Laws or for private ends will suppress the Nobility Great Ministers not to be long continued in the same Station or oppress the People by their Interest pervert the course of Justice or introduce new Laws by surprizing the Soveraign in gaining his consent In all such cases the rule of the (t) Qui parvo tempore Magistratui praesunt non tam facile nocere possunt quam qui longo Philosopâ—er is most true They that for a short time obtain the Magistracy cannot so soon hurt as they which enjoy it long as he instanceth in Demagogues in Popular Government and the Dynastae in Oligarchies which by that means became Tyrants Julius Caesar (u) Clapmarius de Arcanis Imperil lib. 2. c. 18. and Augustus made all their Magistrates annually whereby they gratified all the eminent men of the Commonwealth by rotation but (w) Alii taedio novae curae semel placita pro aeternis servavisse quidam invidia ne plures fruerentur sunt qui existiment ut callidum ejus ingenium ita anxium judicium Tiberius did otherwise giving this reason for it That Horse-leeches having sucked much blood are at quiet and so the biting of fresh men are most sharp Some think saith Tacitus he did it only to seclude others from injoying of them and to prevent his yearly trouble in chusing which as it would oblige the Elected so would disoblige the Candidates but most ascribe it to the subtilty of his Nature quod nec (x) Tacitus 1. Annal. cap. ult eminentes virtutes sectabatur rursum vitia oderit ab optimis periculum sibi à pessimis dedecus publicum metuebat He did not make great search or take much care to find men of the most eminent Vertues and yet he hated the Vitious fearing from the best danger to himself and from the worst disgrace to the Commonweal In our constitution of Government The Sovereign's Power to change Magistrates a most excellent temper is observed where by the Princes Power is reserved to change the prime Ministers of State and Judicature at his pleasure which obligeth them to great care to act justly in their Places and prevents Sedition where any other had the Power of Electing for it is the Power of chusing in any other than the Soveraign that is the only cause of Faction not what the (y) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 2. Polit. c. 5. Philosopher notes against Socrates That the same continually being Magistrates is the cause of Sedition by reason of the Envy of the rejected Candidates and also among Spirited and Martial People that expect those imployment The Kings of England have undoubtedly the sole Power of creating and appointing Magistrates See more of this in the next Chapter and Officers of greatest Authority So (z) Smith de Repub. Angliae lib. 2. the grave Author of the Commonwealth of England affirms That in the appointing all the great Officers and Ministers of the Realm whether Spiritual or Temporal the highest are immediately in the Kings Power to nominate and the inferiour by Authority derived from him So the Kings of England appoint the High Commissioner and all other the great Ministers and Officers in Scotland the Lord Lieutenant Lord Justices and other great Ministers and Officers in Ireland and by Letters Patents appoint a Prorex locum tenens or Guardian of the Realm in their absence before whom even Parliaments have been held but it were endless to descend to the particular imployments of Magistrates under the Soveraign Therefore I shall only note what the (a) MS. Speech 1 Eliz. penes Rad. Thoresly de Leedes Gen. Chancellor in the Queens name said to Sir Thomas Gargrave chosen Speaker of the Commons House That to the head of every body Politick bâ—â—ngeth immediately or mediately the assignment and admitting of every Member of the Body to his Ministry and Duty the contrary whereof were monstrous in Nature and Reason It is both a great glory and happiness to a Prince when he is served by Magistrates of great probity for the skill and watchfulness The necessary Care of a Prince in chusing Magistrates as well as indulgent care of a Prince is thereby discovered and revered in such a choice and the evil Complexion of the People is chargeable mostly on the Magistrates Therefore what the Chancellor (b) MS. Speech Trim. Term. 1557. in a Speech in the Star-Chamber by the Queens direction told the Justices is applicable to all sorts of Magistrates That the not or remiss doing of Justice must by the Prince be charged upon their shoulders as the immediate Executors of the Law The qualifications of Magistrates may be the Subject of a Common place I shall only hint some more necessary referring the rest to the succeeding Chapter First they ought to be Persons undisturbed with Passions for as they are appointed to
Oyer and Terminer Gaol-Delivery and Justices of Peace are determined by the Death of the Predecessor that made them Therefore the Statute of 25 Ed. 3. declares it to be Treason if any man kill the Chancellor The Judges represent the King's Person Treasurer or the Kings Justices of the one Bench or the other Justices in Eyre or Assise or any other Justices assigned to hear and determine being in their places doing their Offices The (f) Id. 3. Instit p. 18 140. reason whereof is assigned because all these represent the King 's Royal Person in his own Courts by his own Commission under the Great Seal in the very Execution of the Kings Royal Office viz. Administration of publick Justice to his People As therefore the King at his Coronation (g) Facies fieri in omnibus Justiciis tuis aequam rectam Justitiam discretionem in misericordia veritate secundum vires tuas taketh an Oath to make to be done in all his Judgments equal and right Justice and Discretion in Mercy and Truth according to his Power So he lays the Burthen thereof upon the Judges according to that of E. 3. for the Pleasure of God and quietness of our Subjects as to save our Conscience and keep our Oath by the assent of our great Men and other of our Council we have commanded our Justices that they shall from henceforth do even Law and Execution of right to all our Subjects Rich and Poor without having regard to any Person c. Therefore before this in (h) Nulli vendemus nulli negabimus aut differemus Justitiam vel Rectum c. 29. Magna Charta we find that the King will sell deny or defer Justice to none Yet from hence it doth not follow that if in the opinion of some the King doth not do Justice that therefore any Subject should conclude as the Master of the Hospitallers of Jerusalem in England at Clerkenwell Anno 1252. 37 H. 3. did The Story is thus told by (i) Hist p. 826 827. Edit prioris Matthew Paris The Master waiting a time when he might discourse with the King he complained of some Injuries done him The King loseth not his Authority tho' he do not Justice and shewed the King some Charters of Protection of himself and his Ancestors The King answered with an Oath and in Wrath You Prelates and Religious especially Templars and Hospitallers have so many Liberties and Charters that they make you proud c. Therefore they ought prudently to be revoked which imprudently have been granted to you for even the Pope oftentimes revokes his Grants with a non obstante and the King told him so he would do To all which the (k) Cui Magister Hospitalis respondit alacâ—iter vultu elevato Quid est quod diciâ— Domine Rex Absit ut in ore tuo recitetur hoc verbum illepidum absurdum Quamdia Justitiam observas Rex esse poteris quam cito bane infregeris Rex esse desines Master saith Matt. Paris answered chearfully and with a lifted up Countenance What is this you say my Lord the King far be it from you to speak so absurd a thing As long as you observe Justice you may be a King and as soon as ever you break this you cease to be a King Thus he would make Dominion founded in Justice as others in Grace But I need not add many Authorities upon this Head for by the universal Suffrage of the profound Lawyers the Kings of England solely nominate create and (l) Dyer fol. 56. appoint all the Judges of the great Courts at Westminister and may remove them at their Pleasure and alone make (m) Davis 45. and appoint Justices of Oyer and Terminer of Gaol-delivery Justices of the Peace Sheriffs and the like Officers and (n) Coke 4. Inst n. 4. 14. 114. 117. remove them when they see Cause and the (o) Bulstrod 3. 296. 1 H. 7. c. 25. Prerogative of making Judges cannot be given or claimed by a Subject The King hath also Power to name create make (p) Sheppard's Grand Abridgment part 3. p. 53. and remove the great Officers Ecclesiastical and Civil by Sea and Land as Archbishops Bishops by way I suppose of Conge deslier The King 's placing and displacing all Great Officers and Translation Lord Chancellor or Keeper Lord Treasurer Lord President Lord Privy-Seal Lord High Steward Lord Admiral Lord High Constable Earl Marshal Lord Chamberlain Privy Counsellors the Marshal or Steward of the Kings House and the rest of the Officers of his Houshold Master of the Horse Officers of the Mint of the Castles Port-Towns and Shipping Lord Lieutenants and many more too tedious to be named So that either mediately or immediately all Officers are by the Kings appointment which is not only a manifest badge but a necessary appurtenance of the Soveraignty SECT 2 The Court of High-Steward THE Kings Courts have been various The Court of the High-Steward as that of the Privy-Council called the Council-Board of which I have spoke before The Court of the High-Steward of England intituled Placita Coronae coram Seneschallo Angliae disused since the Reign of Henry the Fourth and now a Lord High-Steward is only appointed pro hac vice with limitations for the Tryals of some Peers of the Kingdom upon Inditement His Power anciently was (q) Coke 4 Inst c. 4. Supervidere regulare sub Rege immediate post Regem totum Regnum Angliae omnes Ministros Legum infra idem Regnum temporibus Pacis Guerrarum The next Court which is now totally suppressed was the Honourable Court of Star-Chamber The Star-chamber Court of ancient time stiled Coram Rege Concilio suo coram Rege Concilio suo in Camera stellata of which I shall have occasion to write something in the Chapter below SECT 3 The Court of King's-Bench AS to the great and standing Courts The King's-Bench the first of them that is mentioned in Ancient Writers is that of the Kings Bench coram Rege This (r) Rex illarum Curiarum habet unam propriam sicut Aulam Regiam Justiciarios Capitales qui proprias Causas Regias terminant Bracton saith was the Kings proper Court called the Kings Hall and had for Judges in it Chief-Justices which determined the Kings proper Causes c. The same (s) Justiciariorum quidam sunt Capitales generales perpâ—tui majores a latere Regis residâ—ates qui emnium aliorum corrigere tenentur injurias errores Lib. 3. c. 7. fol. 108 b. Author speaking of the Justices of this Court saith That some of them were Capital General perpetual and the greater sitting by the Kings side which were to correct the injuries and errors of all others Fleta in describing this Court saith My Lord Coke gives this account That the King in this Court hath his Justiciaries as well Knights as Clergy-men as
the Kings Lieutenants in England as the Lords Justices were sometimes I suppose in Ireland before (t) Coram quibus non alibi nisi coram semetipso Concilio suo vel Aâ—ditoribus specialibus falsa Judicia Errores Justiciariorum reâ—ertuntur corriguntur whom and no where else unless before the King himself and his Council or special Commissioners false Judgments and Errors of Justices are reversed and corrected and there are determined Breeves of Appeals and other Breeves upon Criminal Actions and Injuries against the Peace of the King And Bracton saith That in Criminal Matters if they touched the King's Person as Treason they were tried coram Rege if concerning private matters then before the Justices only By many Records it appears The Kings of England used to fit in this Court that the King sometimes sate in this Court and that sometimes the King ordered it to follow his Court as particularly in 28 E. 1. (u) Cap. 5. it was established in the Statute of Articuli super Chartas Robert de Bruis was the first Capitalis Justiciarius ad placita coram Rege 8 March (w) Pat. 52. H. 3. m. 24. 52 H. 3. the Title of Justiciarius Angliae of whose great Power the learned (x) Glossary Spelman and (y) Sacred Laws Sir Henry Spelman about the Office of the Chief-Justice of England Mr. White have given an account having an end in Phillip Basset who was advanced to that place 45 H. 3. Who desires further satisfaction may consult Mr. Crompton's Jurisdiction des Courts c. 4. Sir Ed. Coke Sir William Dugdale Mr. Prynne and the Authors they cite who are many and learned and do at large treat of its Jurisdiction and the Practice in it which are foreign to my Design SECT 4. The Court of Common-Pleas The Common-Pleas THis Court of Common-Pleas appears to be as antient as Henry the First 's time for in his Charter to the (z) Coke's Reports part 8. Abbat of B. he grants Connusance of all Pleas so that neither the Justices of the one Bench or of the other or Justices of Assize should meddle Bracton (a) Cognoscunt de omnibus Placitis de quibus Authoritatem habent cognoscendi sine Warranto Jurisdictionem non habent nec Coercionem Lib. 3. c. 10. fol. 105 b. saith This Court had Cognizance of all Pleas of which Authority is given them without warrant they neither having Jurisdiction or Coercion Therefore Sir Edward Coke saith That regularly this Court cannot hold any Common-Plea in any Action real personal or mixt but by Writ out of Chancery returnable in this Court This Court proper for Pleas betwixt Party and Party Those that treat of this Court agree That it was for hearing and determining all Controversies in matters Civil betwixt Party and Party called the Common-Pleas as contradistinct from Pleas of the Crown and was anciently kept in the Kings own Palace Not to follow the King 's Court. In Magna Charta it is granted That the Common-Pleas shall not follow the Kings Court but shall be held in a certain place The Exchequer having been the place where these Causes were heard till (b) Articuli super Chartas cap. 4. 28 E. 1. that by Statute it was provided that no Common-Plea shall from henceforth be held in the Exchequer contrary to the form of the Great Charter The first who had the Appellation of Capitalis Justiciarius in this Court according to Sir William Dugdale was Gilbert de Preston who by that Title had his Livery of Robes (c) Liberat. 1 E. 1. m. 4. 1 E. 1. The number of the Justices (d) See Sir William Dugdale's Origines Juridiciales p. 39 b. The number of the Justices varied 3 E. 2. were Six 14 E. 3. they were Nine the latter end of Henry the Fourth and all the Reign of Henry the Seventh they were but Four Those that would be satisfied about the Jurisdiction of this Court may have recourse to Mr. Richard Crompton's Jurisdiction of Courts c. 7. fol. 91. the Year-Book quoted in Ash his Promptuary Sir Henry Spelman's Glossary tit Bancus Capitalis Justiciar de Banco Communi p. 417. Sir W. Dugdale's Origines Juridiciales Prynne's Animadversion p. 52. and many other good Authors cited by them SECT 5. Court of Chancery THE Court of Chancery in some Writers is placed the first Coâ—rt of Chancery in others as I have placed it Although it is true what Sir Edward (e) Sir Edw. Coke's Arguments for the Antiquity of the Chancery Coke saith That Kings had their Chancellors in the Saxon times indeed he adds the Brittish also of which little can be known yet I dare not avouch with him that the Court of Chancery was then as now the only Court out of which Original Writs do issue it is true that to the Charter of King (f) Spehran Tom. 1. Concil p. 631. Edward the Confessor maâ—e to the Abbat of Westminster amongst the Witnesses it is said Ego Swardus (g) Swyerg trius in Spelman Notarius ad vicem Reynbaldi Regiae dignitatis Cancellarii hanc cartam scripsi subscripsi So (h) Glossary fol. 106. Adulph is accounted Chancellor to King Edgar and Tâ—rketil to King Edred and King Edmund and Wolsine to King Athelstan and that the Chancellor had a Court may be presumed from what is found in the Book of Ely writ as it is supposed about King Stephen's time that King Aethelred who Reigned about Anno 978. appointed and granted Answer Canceliarius qui vel Regum praecepta aut Acta Judicum scribit Spelm. Gloss fol. 104. that the Ch. of Ely then and ever after in the Kings Court should have the dignity of the Chancery which albeit as Sir Edward Coke saith it was void in Law to grant the Chancellourship of England in Succession yet it proveth that then there was a Court of Chancery As to the first it is apparent that the Chancellor then had the power of composing the Charters and before Seals were in use might also subscribe with the Sign of the Cross as other of the Kings Officers did but this doth not prove what kind of Court he was made Judge of for there the Notary in the Chancellors room signs last and in the (i) Tom. 1. p. 486. Councils of Sir Henry Spelman's Edition I find Adulph stiled Herefordensis (k) Id. p. 489. Ecclesiae Catascapus signing last of the Abbats See Spelman Glossar p. 106. As to the Book of Ely I know not how to understand that the Church should have any dignity of Chancellorship in the Kings Court and if it be meant of the Bishop of that See only it might possibly be meant to be the principal Chirographer or drawer of the Kings Charters As to what is found in the Mirror it is of no great validity being writ according to the then custom of the Age wherein the Author
saith That Enrollments (l) Pur le Enrolments de Pardon de Roy in le Chancery en temps le Roy Alfred of Pardons of the King were in the Chancery in the time of King Alfred Altho' Mauricius Regis Cancellarius by that title subscribes as witness to the Charter of King William the Conquerer to the Abby of Westminster yet none of these prove that such a Court was in those Ages constituted as we now call the Chancery For Sir Henry Spelman (m) Gless p. 107 ◠proves the Chancery was no Court but only the Ship as he calls it of the Kings Writs and Charters in old time now consisting of three Parts sc è Collegio Scribarum Regiorum è Foro Juris communis è Praetorio boni aqui Mr. Lambard (n) Archaion p. 62 63. hath proved that till the Reign of King Edward the First we find nothing of the Chancellors hearing and determining of Civil causes for till then the Justiciarius Angliae had the great Power Sir William Dugdale 's Origines Jurid fol. 36. b. which being then restrained ad placita coram Rege tenenda the King together with the trust and charge of the Great Seals appointed him to represent his own Royal and extraordinary Preheminence of Jurisdiction in Civil Causes and he gives this particular reason for his opinion That Britton a Learned Lawyer in Edward the First 's time writing of all other Courts from the highest Tribunal to a Court Baron maketh no mention of this Chancery Yet towards (o) 28 E. 1. c. 5. the latter end of his Reign we find it enacted The Chancellor and Justices of the King's-Bench to follow the King That the Chancellor and Justices of the Bench should follow the King that is remove with the Kings Court so that he might have at all times near him some Sages of the Law which were able to order all such matters as should come unto the Court at all times when need should require Yet this Act did not give an absolute Power to the Chancellor alone of determining in such Civil Causes as may seem by that Law which was made 20 Ed. 3. (p) Cap. 6. where it appears the Treasurer was joyned with him to hear complaints against Sheriffs Escheators c. something like this about Purveyors and Escheators that they might not oppress was enacted (q) Cap. 3. 36 Ed. 3. Nevertheless Mr. Lambard observes When Causes in Equity determined in Chancery that it doth not appear in the Reports of the Common Law that there is any frequent mention of Causes usually drawn before the Chancellor for help in Equity till from the time of King Henry the fourth nor are there found any Bills and Decrees in Chancery before the 20 of H. 6. such Causes as since that time were heard in that Court having formerly been determined in the Lords House of Parliament So Sir Edward Coke saith In the Chancery are two Courts First the ordinary coram Domino Rege in Cancellaria where in the Lord Chancellor or Lord Keeper of the Great Seal proceeds according to the right line (r) Secundum Legen Consuetudinem Angliae of the Laws and Statutes of the Realm Secondly extraordinary according to the Rule of Equity Secundum aequum bonum But it is not my business to enter into particulars The curious may consult Sir Edward (s) 4. Instit c. 8. Coke Mr. Richard Cromptom cap. 3. Sir Henry Spelman 1. glossar 1. de Cancellario à pag. 105. ad pag 113. Ryley's Appendix Ash's Repertory tit Courts Sect. 2. Roll's Abridgment p. 374. to 587. Prynne's Animadversions p. 48. Anno 5 Eliz. (t) Cap. 18. it was Enacted that the Lord Keeper for the time being hath always had used and executed and so may for the future The Lord Keeper equal to Lord Chancellor the like place Authority Preheminence Jurisdiction Execution of Law c. as the Lord Chancellor of England for the time being lawfully used The Oath of the Chancellor or Lord Keeper is to be found (u) Rot. Parl. 10 R. 2. col 8. 10 R. 2. consisting of six Parts First That well and truly he shall serve our Soveraign Lord the King and his People in the Office of Chancellor The Oath of the Lord Chancellor or Lord Keeper Secondly That he shall do right to all manner of people Poor and Rich after the Laws and usages of the Realm Thirdly That he shall truly counsel the King and his Counsel he shall layen i. e. hide or keep secret Fourthly That he shall not know nor suffer the hurt or disheriting of the King or that the Rights of the Crown be decreased by any means as far as he may lett it Fifthly That if he may not lett it he shall make it clearly and expresly to be known to the King with his true Advice and Counsel Sixthly That he shall do and purchase the Kings profit in all that he reasonably may as God help him and by the Contents of this Book SECT 6. Of the Court of the Exchequer SIR Edward Coke saith the Authority of this Court is of original Jurisdiction without any Commission Bracton mentioneth nothing of this Court and Fleta giveth a very short account that the King hath his Court and his Justiciaries residing at his Exchequer but descends to no particulars of the Jurisdiction (w) Fol. 2 b. But x Britton who lived in Edward the First 's Reign and all along writes in the name of the King as if his whole work had been the Kings gives us an account of the Nature of this Court in several particulars To hear and determine all Causes which touch the Kings Debts his Fees and the incident Causes without which these cannot be tried So of Purprestures Rents Farms Customs and generally of whatever appertained to the Revenue of the Crown the Tenants and Receivers of it so that the Court is divided into two Parts viz. Judicial Accounts called Scaccarium Computorum and into the Receipt of the Exchequer The principal Officer is the Lord Treasurer of England who formerly had this great Office The Lord Treasurer principal Officer of the Exchequer by delivery of the Golden Keys of the Treasury and hath the Office this day by delivery of a white Staff at the Kings Will and Pleasure his Oath is much-what the same as the Chancellors differing principally in that clause That the Kings Treasure he shall truly keep and dispend The other great Officers are the Treasurer of the Exchequer the Chancellor and Chief Baron and other Barons of the Exchequer The rest of the Officers are particularly reckoned in Sir (x) 4. Instit fol. 106 107 108. Edward Coke The Oath of the Barons of the Exchequer is to be found in the Statutes (y) The Oath of 〈◊〉 Barons of the 〈◊〉 chequer 20 Ed. 3. cap. 2. whereof the principal parts are That he shall truly charge and discharge
all manner of People as well Poor as Rich that for Highness nor for Riches nor for Hatred nor Estate of no manner of person or persons nor for any Deed Gift nor Promise of any person the which is made to him nor by Craft nor by Ingen he shall let the Kings Right nor none other Persons right he shall disturb let or respite contrary to the Laws of the Land nor the Kings Debts he shall put in respite where that they may goodly be levied that the Kings need he shall speed above all others that neither for gift wages nor good deed he shall layne disturb nor let the profit or reasonable advantage of the King in the advantage of any other person or of himself that he shall take of no person for to do wrong or right to delay or to deliver or to delay the People that have to do before him c. where he may know any wrong or prejudice to be done to the King he shall put and do all his power and diligence that to redress and if he may not do it that he tell it to the King or to them of the Council that may make relation to the King if he may not come to him Sir Edward Coke (z) 4. Instit p. 103. 110 111. hath commented on the Mirror to explain all the Power and particular business of the Court and further observeth that the Patent of the King to the Chief Baron the rest of the Barons Atturney General and Sollicitor are not so long as the King pleaseth but quam diu se bene gesserint which is interpreted a place for life and there is good reason being too many changes would give too many an insight into the Kings Revenue There is a Manuscript (a) Codex niger c. 1. Nulli licet statutum Scaccarii infringere vele is quavis temeritate resistere Habet enim hoc commune cum ipsa Dom. Regis Curia in qua ipse in propria persona Jura decernit quod nec Recordationi nec Sententia in eo latae liceat alicui contradicere of Gervasius Tilburiensis writ in the time of Henry the second which gives an account how it came to be called the Exchequer from a checked Covering of the Table at which the Officers of the Court sate and saith That it is lawful for none to infringe the Statutes of the Exchequer or by any rashness to resist them it having that common with the Court of the Lord the King in which he in his proper person gives Judgment that it is not lawful for any to contradict either the Record or Sentence By which it appears that this Court was distinct from the Kings Bench where the King sate in person and that by the Institution of William the Conqueror not only the great Barons of this Realm as well Ecclesiastical as Secular but also the Justice of England as President thereof by his Office were Members of this Court and so continued to do long after as the Judicious (b) Origines Jurisâ—ic fol. 50. Sir William Dugdale hath by Precedent shown Mr. Prynne hath given us two Records out of the Exchequer (c) Commun Term. Mich. 35 H. 3. Rot. 2. 34 H. 3. and Rishanger 40 H. 3. that that King in his proper person sate and gave judgments in the Court of Exchequer and gave not only Rules to be observed about the Revenue Sheriffs and Bailiffs but also concerning punishing Blasphemy defending Pupils Orphans and Widows and how the Magnates deported themselves to their Tenents and if (d) Inquirant qualiter Magnates se gerunt erga homines suoâ— si forte non possunt plenarie corrigere tunc ostendant easdem transgressiones Dom. Regi they found them transgressing that they correct them as they can and if they cannot fully correct them they show the same transgressions to the King He hath also given an account how 54 H. 3. (e) Pat. 54 H. 3. m. 22. dorso Incep 55. Rot. 3. dorso the accounts of the Sheriffs into the Exchequer were to be digested and in Michaelmass-Term the same Year how the Barons of the Exchequer were to administer the new Oath to the Mayor Elect of the City of London likewise in the same (f) Animadv fol. 55 56. Author there is a large refutation of Sir Edward Coke's Opinion that the Statute of Rutland as he calls it was a Statute made by the King Lords and Commons where it is proved against Sir Edward that it was made for the ordering of the Exchequer at Rothelan in Wales by the King and his Council and not at Rutland but I shall not enter into such Particulars There are several other Courts which have peculiar Jurisdictions by the King's Grants and Prescription as the Court of Requests abolished 17 Car. 1. The Court of Chivalry Court of Marshalsea of the Admiralty and that for redress of delays of Justice which Sir Edward Coke and others have treated of at large and fall not so necessarily for me to discourse of So I shall proceed to the Itinerant Justices and of Assizes and Gaol-delivery SECT 7. Of Itinerant Justices and Justices of Assize and Nisi Prius SOme Shadow of this we find in the time of the Conqueror when Geofrey Itinerant Justices Earl of Constance and some other Barones Regis did sit at (g) Regist Ecclesiae Eliensis fol. 24 b. Kenteford to hear and determine the Claim touching the Rights and Liberties of the Church of Ely at that time disputed before them But the settlement of the Constitution of them was not till 22 H. 2. Anno 1176. as Roger Hoveden (h) Annal. pars post p. 148 149 150. hath related when the King held his Great Council at Nottingham communi omnium Consilio divisit Regnum suum in 6 partes per quarum singulas Justiciarios Itinerantes constituit and the Twenty fifth of his Reign at his great Council at Windsor (i) Idem p. 590 591. Et unicuique partium praefecit viros sapientes ad faciendam Justitiam ad audiendum clamorem populi he divided England into four Parts and over every Part he appointed Wisemen to do Justice and hear the Complaints of the People The Form of the special Writ from the King to impower them to act and of the Writ directed to the Sheriffs to summon all such Persons as were concerned in this Service to appear before the Justices may be seen in Sir William Dugdale's Origines Juridiciales fol. 52. a.b. In which latter Writ (k) Cl. 3 H. 3. m. 13. dorso the Persons summoned to appear were Archbishops Bishops Abbats Earls Barons Knights libere tenentes and in every Village four Legales Homines Praepositum de quolibet Burgo 12 Legales Burgenses Sir Ed. Coke (l) 4. Instit p. 184. calls these Justices in Eyre and saith they had Jurisdiction in all Pleas of the Crown and of all Actions real personal and
mixt and they rode from seven Years to seven Years These Justices in Eyre continued no longer than till Edward the Third's time for then as Mr. (m) Notes on Hengham p. 143. Justices of Assize Selden notes Justices of Assizes came in their Places though it is manifest that Justices of Assize were sooner begun For (n) Lib. 3. c. 10. Bracton mentions these Justices of Assizes in his time in these words Sunt etiam Justitiarii constituti ad quasdam Assisas duo vel tres vel plures qui quidem perpetui non sunt quia expleto negotio Jurisdictionem amittunt The form of the Writ in (o) Cl. 9 H. 3. m. 11. dorso 9 H. 3. is set down by Sir William Dugdale in which the King constitutes his Justitiarii to take the Assizes of new disseising and Delivery of the Gaol and the Command to the Sheriff is to cause (p) De qualibet Villa quatuor legales homines Praepositum de quolibet Burgo vel Villa mercanda duodecim legâ—les homines omnes Milites libere Tenentes c. four legal Men and the Provost out of every Village and twelve lawful Men out of every Market-Town and Borough and all the Knights and Free-Tenents that is all that held in Capite to do what the Justices should on the King's part appoint In 21 E. 1. (q) Placit Parliam 21 E. 1. num 12. another settlement was made that either discreet Justices should be assigned to take Assizes Jurats and Certificates throughout the whole Realm viz. for the Counties of York Northumberland Westmoreland Cumberland Lancaster Nottingham and Derby two In the Counties of Lincoln Leicester Warwick Stafford Salop Northampton Rutland Gloucester Hereford and Worcester other two In the Counties of Cornwall Devon Somerset Dorset Wiltshire Southamptom Oxford Berks Sussex and Surrey two For the Counties of Kent Essex Hertford Norfolk Suffolk Cambridge Huntingdon Bedford and Bucks two and that the Assizes c. of Middlesex should be taken before the Justices of the Bench. (r) Mâ—ltis vigiliis excegitata inventa fuit recuperandâ—e possessionis gratia ut per summariam cognitionem absque magna Juris solennitate quasi per compendium negotium terminetur Lib. 4. sol 164 b. Bracton speaking of the Writ called Assiza novae disseisinae saith it was found out and contrived by much Vigilance for the recovering of Possessions by a summary or speedy Conusance without great Solemnity of the Law that the business might be compendiously determined For before at Common-Law Assizes were not taken but either in the Bank or before Justices in Eyre which was a great delay to the Plaintiff and a great molestation and vexation of the Recognitors of the Assize therefore in Magna Charta the Assizes are appointed to be taken in the respective Counties and the Patents to Justices of Assize run thus (s) See the Patent Clause and Fine-Rolls from King John to Edw. 4. Sciatis quod constituimus vos Justiciarios nostros una cum hiis quos vobis associaverimus ad omnes Assisas c. in Com. c. arainandas capiendas c. facturi inde quod ad Justitiam pertinet secundum legem Consuetudinem Regni vostri Angliae Salvis nobis amerciamentis inde provenientibus The Justices of Nisi Prius (t) Ad exonerationem Juratorum ad ceâ— lerem justitiam in ea parte exhibendum Stat. de Finibus 27 E. 1. c. 4. were first instituted by the Statute of Westm Justices of Nisi Prius 2. and their Authority is annexed to the Justices of Assize These Justices were instituted for two principal Causes for the ease of Jurors and for the speedy exhibiting of Justice SECT 8. Justices of Oyer and Terminer AS to the Justices of Oyer and Terminer they are appointed either by (u) Coke 4. Inst fol. 162. general or special Commission By general Commission they are to enquire of Treasons Misprisions of Treason Insurrections Rebellions Murders Felonies Manslaughter (w) Interfectionibus Killing Burglaries Rapes of Women unlawful Assemblies Conventicles (x) Verborum prolationibus false News Combinations Misprision Confederacies false Allegations Riots Routs Retainings Escapes Contempts Falsities Negligences Concealments Maintenances Oppressions Combinations (y) Cambipartiis of Parties Deceits and other ill Deeds Offences and Injuries whatever and to do thereupon what appertains to Justice according to the Law and Custom of the Kingdom Special Commissions were not granted unless for enormous (z) Nisi pro â—nermi transgressione ubi necesse apponere festinum remedium Cl. 14 E. 3. part 1. m. 41. dorso Hil. 2 H. 4. Rot. 4. Mich. 1 H. 8. Transgressions where there was a necessity of speedy Remedy In some cases we find the Justices of Oyer and Terminer have upon an Indictment found proceeded the same day against the Party indicted So Thomas Marks Bishop of Carlisle before Commissioners of Oyer and Terminer was Indicted tryed and adjudged all in one day for High-Treason Likewise Sir Richard Empson was indicted of High-Treason and tried all in one day So Robert Bell 10 Dec. 3 E. 6. and 10 Eliz. 4 Aug. John Felton was before Commissioners of Oyer and Terminer in London indicted of High-Treason and tried the same day by the advice of all the Judges of England SECT 9. Of the Kings Erection of Courts IN some Cases the King may erect new Courts of Justice What new Courts the King may erect and grant Conusance of Pleas to a Corporation to be kept after the Rules of the Law not in a way of a Court of Equity but may not alter the great Courts at Westminster that have been time out of mind nor erect a new Court of Chancery Kings-Bench Common Pleas Exchequer c. Although in a proper Court such as our Chancery a Judge of Equity be allowed yet if it were permitted in all other Courts to expound the Law against the letter and perhaps the meaning of the Makers according to Conscience as we speak there would soon be introduced absoluteness and Arbitrary Power Therefore great Care is taken by those that understand the Law that matters be not left to the discretion of any Persons Commissionated by the King to adjudge of any Causes So the plausible Statute (b) 11 H. 7. c. 3. of H. 7. to put in Execution the Penal Laws impowering Justices of Assize and of Peace upon Information for the King by their Discretion to hear and determine all Offences and Contempts against any Statute unrepealed was found to have Authorised Empson and Dudly to commit upon the Subject unsufferable pressures and oppressions So that (c) 1 H. 8. c. 6. soon after that Kings death it was repealed and those two brought to Tryal and executed for their oppressions So the Statute (d) C. 2. 8 E. 4. of Liveries c. by the discretion of the Judges to stand as an Original is deservedly repealed In
the Commission of Sewers by Law (e) Discretio est discernere per Legem quid sit justum Coke Inst 4. fol. 41. 3 H. 8. allowing the Commissioners to make Orders c. according to their Judgments and Discretions the word Discretion is interpreted by Lawyers to discern by Law what is Just as appears when a Jury do doubt of the Law and desire to do what is Just they find the special matter and the entry is Et super tota materia petunt advisamentum discretionem Justiciariorum that is they desire that the Judges would discern by Law what is Just and give Judgment accordingly It was resolved in the Court of Common-Pleas when a new Court was (f) Whyte's Sacred Laws p. 33. erected 31 H. 8. to hear and determine according to Law and Custom or otherwise to their sound discretion That the last Clause was against Law For when Laws are writ and published Magistrates know what to command and the People to obey otherwise the Law must necessarily be errant wandring uncertain and unknown which is a (g) Miser servitus ubi jus vagum miserable yea the most miserable Slavery This was the ground of the taking away the most August and very Ancient Court of the Star-Chamber The Court of Star-chamber dissolved though appointed by Act of Parliament (h) 3 H. 7. c. 1. 21 H. 8. and consisting of very great Personages as the Lord Chancellor Lord President of the Council Lord Privy-Seal Bishops Lords and Justices For tho' there were other Reasons that moved the Houses to be so pressing to get that Act pass the grounds of its Repeal alledged in the (i) 17 Car. 1. c. 10. Preamble of the Act are That the Judges have not kept themselves to the points limited by the Statutes and have undertaken to punish where no Law doth warrant and to make Decrees for things having no such Authority and have inflicted heavier punishments than by Law warranted and that all matters Examinable and Determinable before them had their proper Remedy Redress and Punishment by Common Law and in the ordinary Courts of Justice elsewhere In the like manner and on the same reason were the Court of Request (k) Ibid. cap. 9. before the (l) Cap. 48. President of the Marches of Wales of the President and Council in (m) Cap. 49. the North and of the County-Palatine (o) Cap. 37. of Chester either totally abolished or much eclipsed Having thus far discoursed of the several standing Courts I think it necessary to give an account of the Oath the Judges of either Bench are enjoyned to take having before spoke of the Lord Chancellor Lord Treasurer and Barons of the Exchequers Oath SECT 10. Of the Judges Oath COncerning this Oath there is a Controversie betwixt Mr. (p) Animadv on Coke's 4. Inst fol. 38. Prynne and Sir Edward Coke the latter affirming it to be in our Printed Statutes but not upon Record which Mr. Prynne disproves thus That the Oath of the Judges Barons of the Exchequer and Justices Itinerant and the Ordinances annexed to the Oath were made by the King because of divers complaints to him by the assent of the great men and other wise men of his Council and commanded to be openly published by the Sheriffs of every County by (q) 7 May 20 E. 3. special Writs issued to them for the Reasons specified in the beginning and close of the Writs at least three Months before the Parliament was held that Year and they are all entred upon Record as they are Printed in the Statute Books at large (r) Cl. 20 E. 3. part 1. m. 12 13. 20 E. 3. in the Clause-Rolls but not in the Parliament or Statute-Rolls of that Year because not made in but before the Parliament From whence I note a good Argument of the Kings Prerogative in appointing Judges and Commissionating them himself without any Parliamentary concurrence since he appoints the very Oath which was to direct them in their Office out of Parliament We find the Commons so well pleased with this Oath that in the (s) Rot. Parl. 20 E. 3. num 25. Parliament 20 E. 3. they petitioned the King that the Justices of Assise and Enquiry might be sworn by the same Oath as the Justice of the Bench Abridgment of Records p. 48. and that the chief of them might have power to swear the rest which the King assented to with some Qualifications but when in the Twenty first of his Reign they petitioned that his other Ministers might take the Oath and might be sworn to take nothing from any other the King answered that he would advise what other Ministers shall be fit to take the Oath Mr. Prynne refers us to the Cl. 18 H. 3. m. 19. Cl. 35 E. 1. m. 7. Cl. 1 E. 2. m. 19. and Cl. 5 E. 3. m. 27. for some Clauses of the Oaths of Justices agreeing with those prescribed to the Kings Council But the Oath as it hath been after used is to this purpose That they shall swear well and lawfully to serve our Lord the King and his People in the Office of Justice and lawfully counsel the King in his Business not counsel or assent to any thing which may turn him in damage or disherison by any manner way or colour and shall not know of any such thing but cause the King to be warned thereof by themselves or others shall do equal Justice and Execution of Right to all the Subjects and take neither by themselves nor others privily or apertly Gift or Reward of Gold or Silver nor of any thing which may turn to their profit unless it be Meat or Drink and that of a small value of any man that shall have any Plea or Process hanging before them c. shall take no Fee as long as they are Justices nor Robes of any man great or small but of the King give no Advice to any man great or small where the King is Party If any of what condition soever come before them in their Sessions with force and Arms or otherwise against the Peace or against the Statute thereof made to disturb the execution of the Common Law or to menace the People that they may not pursue the Law That they cause their Bodies to be Arrested and put in Prison and if they cannot be Arrested that the King be certified That they themselves nor others maintain no Plea or Quarrel hanging in the Kings Court or elsewhere in the Country That they deny to no man Common Right by the Kings Letter nor none other mans nor for none other Cause and in case any other Letters come to them contrary to the Law they do nothing by such Letters but certifie the King thereof and proceed to execute the Law notwithstanding any such Letters That they shall procure the profit of the King and of his Crown and if in default shall be at the Kings Will of Body Lands and
Goods thereof to be done as shall please him There is in this Oath as great Security taken Observations on this Oath as morally can be that the Judges perform their Office uprightly and judge according to the Law and if this will not make them wary how they give Judgment contrary to Law there are other Constraints upon them As first That the King may displace them when he pleases they holding their Places only durante beneplacito Secondly The House of Commons may question them for any false Judgment and Miscarriage in their Office which must be a great Check and deterring of them from giving any unjust Judgment either for Lucre-sake by Bribes or Partiality of Affection There are besides others two illustrious Examples of punishment of Corrupt Judges the one of Sir William Thorp (t) Rot. Parl. 25 E. 3. Rot. 10. condemned for breach of his Oath in taking Bribes Judges punished for breaking their Oath He was Indicted before the Earls of Arundel Warwick and Huntingdon the Lord Gray and Lord Burghers 24 E. 3. and the Record saith Ideo consideratum per dictos Justiciarios assignatos ad judicandum secundum voluntatem Regis secundum Regale posse suum because he broke the Oath which he took to the King and so was adjudged to be hanged The (u) Exact Abridgment p. 74. Record of this Judgment was brought into the Parliament 25 E. 3. the King having by a Writ under the Privy-Seal stayed his Execution and it was read opeâ— before the Lords and all the Lords affirmed the Judgment to be good provided this Judgment should not be drawn into example against any other Officers who should break their Oaths but (z) Qui praedictum Sacramentum fecerunt fregerunt habent Leges Regales Augliae ad custodiendas only those that took the said Oath of Justices and broke it such to whom the Royal Laws of England are committed The other is the Famous Sir Francis Bacon Lord St. Albans who being Lord Chancellor was found guilty of taking Bribes by his Servants whom though many for his great Learning would acquit as leaving too much to his Servants yet he fell an illustrious example of Justice against the highest Judges and in the forecited Record against Sir William Thorp it is apparent that the Lords who in those days were the sole Judges in Parliament thought no persons breach of Oath was capitally to be punished but only the Justices Before I come to speak to some of the long Parliaments writing Champions misapplication of the Kings Power in his Courts I think it expedient to give some Characters I have met withall of the qualifications of Judges In a Speech made to Justice (a) MS. Speech penes Rad. Thoresby de Leedes Gen. Manwood when he was chosen Lord Chief Baron the Chancellor tells him There are four things requisite in a Judge First His knowledge of the Law which is presumed every one hath that the King appoints to be his Justiciary Secondly Discretion that though in his Judgment he may vary from the letter of the Law yet he may never judge contrary to the intention of it which is Animus Legis Thirdly Integrity for it were better to have a Judge of convenient learning and discretion that would command and rule his Affection and Judgment than one of excellent knowledge and discretion that will submit the same to his corrupt Affections Fourthly Care and diligence For if a judge be furnished with all the preceeding qualifications yet if he be slothful and do not expedite his Judgment all the former serve to little purpose for qui diâ— distulit diâ— noluit My Lord St. Albans (b) Essays though he fell as before I have noted under great censure yet in his Essays tells us that a Judge's Office is Jus dicere non Jus dare that they ought to be more wise than witty more reverend than plausible more advised than confident and above all things that Integrity was their Portion and proper Vertue The unjust Judge being a Capital remover of Land-marks Injustice making Judgment bitter and delay sowre Another famous (c) E. of Clarendon's Survey p. 125. Chancellor whose unexpected exile after he was raised to the happiest Estate of a Subject may teach all to judge no State of Felicity assured upon Earth tells us that Judges are presumed by Education to be fitted for the understanding of the Laws and by their Oaths bound to judge according to Right and so must be the most competent to explain the difficulties of the Law which no Soveraign as Soveraign can be presumed to understand and comprehend and that the judgments and decisions those Judges make are the Judgment of the Soveraign who hath not qualified them but Authoritatively appointed them to judge in his stead and are to pronounce their Sentence according to the reason of the Law not the reason or will rather he means of the Soveraign But now I proceed to other matters The Long Parliament impeached all the Judges that had voted the legality of Ship-mony The Long Parliaments Impeachment of Judges as also brought to their Bar the Lord Chancellor that thereby they might strike a greater terror on the Kings Loyal Subjects especially in the House to make them comply with them and though they would have had the Power of nominating and removing the Judges and have rent that branch of his Royal Prerogative from him yet they not trusting if they effected this that it would do them any service when they had put in such Judges as they liked if the King might still Commissionate them according to old form pro beneplacito Therefore they pressed hard They would alter pro beneplacito that every Judge should continue quamdiu se bene gesserit which I only note to show they were desirous to new model the whole Government As the long Parliament of 1641. by their dissolving of Church-Government gave birth to varieties of Opinions The Long Parliament endeavours to weaken the King's Prerogative Schisms and Heresies in Religion so by their design of unloosening mens Obligation to the Monarchy they were forced to make use of many false Inferences and Judgments of the known Laws Amongst which one was when they were beaten off from the several pretences of having some Paramount Power over the King whereby he stood obliged to resign his reason to their Votes they alledged that since the King could not reverse a Judgment given in an inferior Court a fortiori he could not frustrate their Votes being the Supreme Court as well as Council In Answer to which it is to be considered How Judges in their Judgments sustain the Person of the King that in other Courts the Judges sustain the Person of the King the Law is deposited in the hands of the King and all Justice is administred by him and in his name so that his consent is by Law involved in what by Law they
do Authoritas rei indicatae vim legis habet So that can be no Appeal from the King to himself the King delegates his Power to them quod Rex facit per Officiarios per se facere videtur they give Judgment for the King not for themselves to that the Laws Authorize them and none but them so that the Kings assent or dissent cannot frustrate their Judgment which they render in invitos against the will of one of the Parties at least because expedit Reipublicae ut finis sit datus Therefore as to the Power of declaring Law the King is restrained ordinarily to the Mediation of the Judges who are to give the genuine sence and Interpretation of the Law according to Art and rules of science and so by their Interpretation and Judgment therein they bind both King and Subject Yet in some (d) Case of our Affairs p. 4. cases the Judge do not only consult among themselves Judges to apply themselves to the King to determine a doubtful case but must have recourse to the King as the Fountain of Justice so (e) Postnati si disputatio oriatur Justiciarii non possunt interpretari sed in dubiis obscuris Domini Regis expectanda est Interpretatio voluntas cum ejus est Interpretari cujus est condere It is saith Sir Thomas Smith (f) Commonwealth part 2. c. 10. to be taken for a Principle that the Life and Member of an English man is in the Power only of the Prince and his Laws so that when any of his Subjects is spoiled either of life or limb the Prince is endammaged thereby and hath good cause to ask account how his Subjects should come to that mischief and forasmuch as the Prince who governeth the Scepter and holdeth the Crown of England hath this in his care and charge to see the Realm well governed the Life Member and Possessions of his Subjects kept in peace and assurance he that by violence shall attempt to break that Peace and assurance hath forfeited against the Scepter and Crown of England So that from hence it appears how equal and just it is that the King should have the appointment of Judges Justices of Peace Why the King only to appoint Judges c. that neither his Peace should be broken his Subjects injured in their Persons or Estates nor his Laws be violated What Judges are to observe There being sufficient Provision in the Law against the violating of Justice by the Judges who are to observe these following statutes 1. Magna Charta That no Freeman shall be taken or Imprisoned or disseised of his freehold or liberty or Customs or be Out-lawed or exiled or otherwise destroyed That the King (g) Cap. 9. will not pass upon him or condemn him but by lawful Judgment of his Peers or by the Law of the Land and by another 5 E. 3. That no man shall be Attached by any Accusation nor fore-judged of Life or Limb nor his Lands Tenements Goods nor Chattles seized into the Kings hands against the form of the Great Charter and the Law of the Land and 25 Ed. 3 (h) Cap. 4. Stat. 5. That none shall be taken by Petition or Suggestion made to the King or to his Council unless by Indictment or Presentment of good and lawful People of the same Neighbourhood where such deed be done in due manner or by Process made by writ original at the Common Law and so by (i) 24 E. 3. c. 3. another That no man of what State and Condition soever he be shall be put out of his Lands or Tenements nor taken nor Imprisoned nor disinherited without being brought to answer by due Process of Law and in another (k) 41 E. 5. c. 1. That no man be put to answer without Presentment before Justices or matter of Record or by due Process or Writ original according to the old Law of the Land But I must leave this to the Learned in our Municipal Laws and shall note some few things from old Authors that may discover how much just Judgment hath ever been valued The impartiality and yet the tenderness and compassion in inflicting Punishment is notorious in Zeleucus Impartiality requisite in a Judge who while he governed the Locrians made a Law That whoever committed Adultery should have both his Eyes put out and his Son being found guilty he commanded the Law to be put in Execution and the body of the Citizens interceding he ordered one of his Sons Eyes to be put out and likewise one of his own that the Law might not be broken and yet that he might not be over rigid to his Son The (l) Neque inflecti gratia neque perfringi potentia neque adulterari pecunia possit Pro Cecinna Orator tells us That Justice should neither be warped by Favour nor broken by Power nor adulterated by Money and in another place (m) Exuit personam Judicis quisquis Amici personam induit saith That he puts off the person of a Judge who assumes that of a friend He indeed is an upright Judge in whose hand the Ballance of Justice neither totters nor falls by the Authority of any Person Talis debet esse Juris minister ut in ejus manu nullius authoritate personae titubet aut vacillet librae Justitiae Besides the avoiding of Partiality Pâ—ecipitancy to be avoided it is necessary in every Judge that he fully examine what is brought before him and not with too great Precipitancy determine matters upon (n) Qui statuiâ— aliquid parâ—e inâ—udita altera 〈…〉 siatuit 〈◊〉 tamen aequus est Senec. Medaea the hearing only of one side for though he may chance to do Justice in such a Case yet he doth not do justly that fully hears not both Parties Allegations It is a very mischievous things when Judges delay the Executing of Justice (o) Holy Court Tom. 1. lib. 3. p. 90. Delays in doing Justice mischievous Causinus out of the Chronicles of Alexandria tells us That Juvenalis a Widow complaining to Theodorick King of the Goths and Romans that a Suit of hers in Court was drawn out for the space of three Years Theodorick called the Judges before him and acquainted them with the Complaint and commanded them to do her speedy Justice which within two days they did and being again called by the King he asked them how it came to pass that they had dispatched that in two days which had not been done in three Years They answered that His Majestie 's Recommendation had made them finish it so soon To whom the King replied That when he put them into Office he consigned all Pleas to them and other Proceedings and since they had spun out the Business for three Years that required but two days dispatch they should die and at that Instant commanded their Heads to be smitten off Court to redress Delays We find in Sir Edward Coke
Capitularia Caroli (e) See Fred. Lindebrogus Codex Legum Antiq. magnis the Burgundian Alman Bavarian Saxon Longobard Ripuarian and Frisons Laws mention such Officers for preserving the publick Peace and (f) See Prynne 's Irenarch Redivivus p. 1. ad 5. punishing all Malefactors and infringers of the publick Peace as we have At the Common-Law before Justices of Peace were made there were sundry Persons to whose Charge the maintenance of the Peace was recommended and who with their other (g) Dalton's Justice of Peace c. 1. Conservators of the Peace Offices had and yet still have the Conservation of the Peace annexed to their Charge as incident to and inseparable from their said Offices yet they were only stiled and so now are by their Offices the Conservation of the Peace being included therein First the King is the principal (h) Idem Conservator of the Peace within his Dominions The King the principal Conservator of Peace and is properly Capitalis Justiciarius Angliae in whose Hands at the beginning the Administration of all Justice and all Judicature in all Causes first was and afterwards by and from him only was the Authority derived and given to all yet the Power nevertheless remains still in himself insomuch that he may himself sit in Judgment as in ancient times the Kings here have done and may take Knowledg of all cases and causes Before I leave this Head I cannot pass by the Act of (i) 20 H. 7. c. 11. H. 7. wherein is so fully declared the King's Care to have due Administration of Justice as in the close of the last Chapter I have only hinted The Reasons why Justices of Peace made The King's Care for right and easie Administration of Justice The Preamble saith The King considereth that a great part of the Wealth and Prosperity of the Land standeth in that that his Subjects may live in Surety under his Peace in their Bodies and Goods and that the Husbandry of this Land may encrease and be upholden which must be had by due Execution of Laws and Ordinances and so commandeth the Justices to execute the tenor of their Commission as they will stand in Love and Favour of his Grace and in avoiding the pains that he ordained if they do the contrary If they be lett or hindred they must show it to the King which if they do not and it come to the Kings knowledg they shall be out of his Favour as Men out of Credence and put out of Commission for ever Moreover he chargeth and commandeth all manner of Men as well Poor as Rich which be to him all one in due Administration of Justice that is hurt or grieved in any thing that the said Justice of Peace may hear determine or execute in any wise that he so grieved make his complaint to the next Justice of Peace and if he afford no remedy then to the Justices of the Assise and if he find no remedy there then to the King or Chancellor c. and as a further security it is added And over that his Highness shall not lett for any favour affection costs charge nor none other cause but that he shall see his Laws to have plain and true execution and his Subjects to live in security of their Lands Bodies and Goods according to his said Laws Thus we see who is the Principal Other Conservator of the Peace and Royal Conservator of the Peace others are the Lord Chancellor or Lord Keeper Lord Treasurer Lord High Steward of England Earl Marshal Lord High Constable of England every Justice of the Kings Bench and Master of the Rolls who have the power included in their Office and over all the Realm when they are present may award Precepts take Recognisances for the Peace of which and others Lambard in his Eirenarche may be consulted and how far Justices of Assise Stewards of the Sheriffs Turn and Court of Pye-powders the Sheriffs Chief Constable Coroners and Petty Constables may commit to Ward breakers of the Peace in their view though they cannot take surety at the request of any man that being peculiar to the Justices of Peace's Office Sir Edward Coke (k) Term. Pasch fol. 176. 4. Inst Coram Rege prima fuit Institutio Justiciariorum pro Pace conservanda Ad Pacem nostram conservandam saith that the first institution of Justices for the preserving the Peace was 6 Ed. 1. but Mr. Prynne will have it of older date because he finds that King Henry the Third by several Patents or Writs from the 17th to the end of his Reign did constitute and appoint several persons in most Counties of the Realm to be Guardians and Preservers of the Peace of the Realm and in the Patent 51 H. 3. m. 10.13 dorso it is dilectis fidelibus suis custodibus pacis Com. Linc. North. Ebor. Vicecom eorundem Comitat. and the like 54 H. 3. m. 21. d. But the first regular settlement of them seems to be Anno 1327. 1 Ed. 3. c. 16. The Authorities afterwards were further explained 4 Ed. 3. c. 2. 18 Ed. 3. c. 2. 34 Ed. 3. c. 1. Sir Edward Coke (l) Ibid. 171. tells us that the Commission of Peace stood over-burthened and incumbered with divers Statutes some whereof were before and some since repealed and stuffed with many vain and unnecessary repetitions and many other corruptions crept into it by mistaking of Clerks c. for amendment and correction whereof (m) Mich. 32 33 Eliz. Sir Christopher Wray Chief Justice of England assembled all the Judges of England and upon perusal had of the former Commission of Peace and due consideration had thereupon and often conferences betwixt themselves they resolved upon a reformation of the form with divers additions and alterations both in matter and method as it stood in Sir Edward's time and he saith It needed another Reformation by reason of Statutes since repealed and others expired of which he gives several instances Therefore he saith It is a good rule for all Judges and Justices whatsoever that have Jurisdiction by any Statute which at the first was Temporary or for a time to consider well before they give Judgment Whether that Statute hath been continued or made perpetual and if at first it was made perpetual Whether it be not repealed or altered by any later Statute What Commissions Patents and Writs were issued out by King Edward the First for preserving the Peace of the Realm suppressing seising and punishing of those who disturbed it may be found Cl. 9 Ed. 1. m. 10. d. in Rylies (n) P. 443 451 to 457 433 480. Prynne's Animadv fol. 149. Appendix so there is a Patent 14 Ed. 1. m. 15. 15 Ed. 1. m. 13. de militibus constitutis ad Articulos in Statuto de conservatione pacis edito contentoâ— observandos constituting persons of note in every County to observe them named in the Record and so for other Kings Reigns
the rest and leave all in unsecurity How can saith he Justice banish (t) MS. Speech at the end of the Parliament Anno 1559. Justices of Peace to be active Enormities when her Ministers are slothful making no account of any of the Common Causes of their Country and under the notion of being accounted quiet men they seek only ease profit and pleasure to themselves and to be sustained by other mens care and labour whereas the Horse-Master provideth for the good Government of his Horse Bits or Brakes according to the hardness or tenderness of his Mouth If continues he in the richest soil the usefullest and delightfullest Flowers The necessity of punishing evil Men. Shrubs and Fruits be planted and no care be taken to weed out what would choak and over-grow them what pleasure or benefit could be had of all ones cost and labour a crop of weeds would soon such out all the nourishment from their roots over-shadow them from the cherishing Sun and smother the curious Plants so that they would soon dye and wither Therefore is there a great need of chusing able careful and active Gardiners to howe and root out all such rank Weeds In another (u) MS. Speech second Parl. 1562. Speech after advising great care in chusing Officers as Justices of Peace c. that have the Execution of the Laws he tells the noble Assembly That sharp Laws should be made for banishing sloth and corruption A Visitation of the Justices of Peace proposed and adviseth there should be through the Kingdom Biennial or Triennial Visitations of all the Temporal Officers and Ministers that ought to see to the Execution of the Law by Commission to try the Offences of those that have not seen to the due Execution of the Laws according to the Office and charge committed to them as in Church-Visitations and that a Roll should be kept See something of this nature 2 H. 5. 8. wherein all the Justices names should be set down to every Offence he hath caused to be punished that it might appear who is diligent and that those that are negligent might be removed to their perpetual Ignominy and such pains set upon them as by Law may be Another time (w) MS. Speech Star-chamber 1568. he urgeth that it ought to be considered whether it be a greater Cruelty to execute the Penal Laws so as thereby a few shall be unwhipped and many hanged or some shall be whipped and thereby few hanged In another (x) MS. Speech second Session of Parliament 1571. I find this swasive It would be strange to make Laws to reform manners and prune away the ill branches and Members of the Commonweal and then to â—ye them in boxes and books it were better to have no Laws than them not Executed for besides other inconveniences it breeds contempt of Laws and Law-makers (y) Idem A Prince continueth he that is careful of the discharge of his great Office leaveth nothing undone meet for him to do for the Execution of the Laws making choice of Persons of most Credit and best understanding through the Kingdom to whom for the great trust he reposeth in them he giveth Authority by Commission to Execute a great part of the Law Therefore the Burthen of all Enormities Absurdities and Mischiefs that grow in the Commonwealth for the not executing of Laws must needs light upon those Persons that have Authority to execute them and if remisness be if the Prince should be driven to commit the Execution of the Laws to those who in respect of Practice and gain would see them executed with all severity what a burthen would that bring to the Realm In this manner Queen Elizabeth caused the Execution of her Laws to be recommended both to the Justice of Assize and to the Members of Parliament that at their recess they might take care to see them put in Execution As a close to this Chapter and an Introduction to the next I shall give a short account of the Laws in the Saxons time that were made by several Kings for the preservation of the Peace and of how great value the due keeping of the Peace was The Sixth Law of King Ina appoints that he that fights in the Kings (z) Cuninges hus Palace shall lose all his Goods and it shall be at the Kings pleasure whether he shall be Capitally punished or not it also ordains several Mulcts of Money for fighting in the (a) Mynster Church in an Aldermans House or the House of a (b) Gefolgylden hus Country-man And the next Law is against Theft and in the 13th against Thieves and Robbers from the number of Seven if they be 35 they are counted a (c) Klothum Troop if more an (d) Herge Army and so in the 26th Law appoints a Reward for apprehending (e) Theoffes onfeng a Thief So in the 46th Law of the Peace violated in (f) Burghbryce a Town of the Kings or a Bishops 120 s. and so proportionable in the Town of an Alderman of the Kings (g) Cyninges Thegnes Minister or any Land-holders (h) Land hebbendes Town So in the 15th Law of King Alfred 150 s. punishment is laid upon his that (i) De gefeohtum fights in the presence of an Archbishop and 100 if in the presence of a Bishop or alderman and in the next against the stealing a Mare or Cow the price and 40 s. Mulct and in the 26th against (k) Mansliht mid blothe Man-slaying in Companies to pay the price of his Head and all present 30 s. a piece and in the 35th against breaking the Peace in a Town as before fore The 38th Chapter is long That no Man assault his Enemy in his House till he hath (l) Aeâ—hon be him ribtes bidde demanded right of him which if he deny he may besiege him seven Days but not (m) Be gefeobte assault the House and if he yield he must keep him Thirty Days and then restore him to his Friends This care was taken to pre\vent Bloodshed There are many particulars besides worth observing in this as well ad the 40th Chapter (n) Be wundum against wounding I shall speak of that of King Edward hereafter The first Law of King Aethelstan is against Theft that is manifest where the (o) The of thâ—at thâ—ebbendse thing stolen is found in the Thieves Hand hand gefangen sy and so of other particulars worth reading The Third Law of King Edmund prohibits any Man-killer to come into the Prince's presence altho' his Servant till he have made satisfaction (p) Aef he on daedâ—ote ga swa Bisceop him Tace his serift him wisâ—ge for the Crime as it is appointed him by the Bishop and he makes Seven particular Laws together against Man-killing those that assault other in Towns holy places c. and the several punishments prefacing these Laws thus That to him and the Clergy
they were Lords of Mannors where they had their Courts as likewise they were Hundredaries c. CHAP. XXXV Of the Kings Soveraignty in making War and Peace THE great (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 3. Polit. c. 7. Philosopher observes That in a Common-wealth that part is most powerful in which the strength of War consists and which is in possession of Arms for those he saith that have no Arms are the Servants of the Armed Plato (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 12. de LL. Power of making War and Peace the greatest Badge of Sovereignty affirms it as a standing Law That he who without Authority innovates a Peace or makes War shall be adjudged to punishment and gives this reason for it That he who hath in his Hand the Militia it is in his Power that the Commonwealth subsist or be dissolved Bodin makes this one of the greatest badges of Soveraignty because without the power of declaring War and making Peace no Prince can defend himself or his Subjects the Establishment or Destructon of the States depending upon it therefore it is Capital to do the least thing in that kind without the Kings Commission There being nothing more dangerous in War than to betray Counsels it is not fit the ordering of War and consequently of Peace should be in any but the Soveraign In the Greek and (c) Clapmarius de Jure Majâ—statis lib. 1. c. 10. Latin Histories it appears that all Wars were undertaken and performed by the Counsel Will and Pleasure of the Soveraign whether Senate or Emperor and by them solely was decreed unless in some extraordinary Cases that the Peoples consent was required in comitiis Populi centuriatis and when the Republick was changed by the Julian Law it was Treason to make War without the Command of the Prince the words of the Law being Nulli nobis insciis atque inconsultis quorumlibet armorum movendorum copia tribuetur The reasons why this Power should be in the Soveraign solely are many and just for without it no Prince can provide against intestine Seditions For if he wanted that Authority Reasons why this Power should be in the Sovereign alone to make War and Peace as often as Ambitious or Seditious Men perswade the People they were in danger of Oppression by the Government or they had a mind to remove great Officers that they might enjoy their places or that the Rule in Church or State did not please them They might resort to Arms to the ruining of their follow Subjects who would otherwise live peaceably and dutifully By this liberty greatest Convulsions would be in the Kingdom upon every predominancy of ill humours and we should never be without the Plague of War in one place or other and all the miseries of a torn dis-joynted and mangled confusion would be upon us neither should a Prince be able to defend his Subjects from Foreign Invasions or perform that great and necessary Work of assisting the Allies to his State and Te formidable to his Enemies Polybius (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polyb. O. notes That there are two things which preserve Government viz. Fortitude against Enemies and Concorâ—â—â— home but neither of these can be performed if the Prince have not the disposal of the Militia This is it which preserves the Kings Authority makes his Laws to be observed keeps the Factious and Seditious at quiet gives repute abroad and Peace at home All the Calamities of War are prevented when an Armed Prince that hath the sole disposal of his Military Power can extinguish the Flame at its first blaze therefore St. (e) Ordo naturalis mortalium paci accommodatus hoc poscit ut suscipiendi belli auctoritas atque consilium penes Principes sit Augustinus contra Faustum Austin saith That the natural order of Mortals accommodated to Peace requires this That the Authority and Counsel of making War be in the Prince That in the time of the Saxon Kings the Power of the Militia was in the Crown doth not obscurely appear in all the Laws for preserving the Peace and in that particularly I have instanced in of King Aethelstan besides which we find the Tenth Law of King Canutus ordained That Fenced Towns Burghote Brighote beonon forth scip forthunga aginne man georne frythunga eac swa a th one thearf sy for â—e men licre neode LL. Canute 10. or Burghs and Bridges be repaired and there be preparations for defence both of Land and Sea-Forces so often as the necessity of the Commonweal requires it The 69th Chapter of Hereots runs thus Every Earl to pay Eight Horses whereof four with Saddles and four without Saddles four Helmets and so many Coats of Mail eight Spears and eight Shields four Swords and twelve Mancusae of Gold and a principal Thane half the number and other Thanes a lesser proportion as may be there seen By which there seemeth some beginning of a Feudal Tenure which in William the Conqueror's time was so settled that as elsewhere I have noted all Persons held of him their Lands in Knights Service to be ready at his pleasure with Horse Men and Arms the which was practised in succeeding Ages The Statute 30. Octob. 7 E. 1. saith That it being accorded of late that in our next Parliament Provision should be made that in all Parliaments Treaties and other Assemblies which should be made in the Realm of England for ever that every man shall come without all Forces and Armors peaceably to the Honour of us and the Peace of us and our Realm Now all Prelates Earls c. have said that to us it belongeth and our part is through our Royal Signiory to * i.e. forbid defend force of Arms and all other force against our Peace at all times when it shall please us and to punish them which shall do contrary according to our Laws and usages of our Realm and hereunto they are bound to aid us their Soveraign Lord at all seasons In 3 Ed. 3. (f) Cap. 2. the Commons decline the having Cognizance of such matters as guarding the Seas and Marches of England but refer it wholly to the King and 25 E. 3. it is High Treason to levy War against the King or aid them that do it Also the Statute of (g) 11 H. 7. c. 18. H. 7. saith Every Subject by duty of his Allegiance is to serve and assist his Prince and Soveraign Lord at all seasons when need shall require There is nothing more indisputably owned by all that understand the Laws than that it was High Treason by the Common Law before the Statute of 25 E. 3. for any Subject to levy War within the Realm without Authority from the King it being one of the Rights of Majesty Badges of Supreme Power and incommunicable Prerogatives of the Crown saith my Lord * 3 Instit c. 9. Coke and with him consent all the long Robe In a Speech in the Star-Chamber to
the Justices in Queen Elizabeth's time the Chancellor tells them that the Queen had levied Forces and Reason willeth and the obedience of good Subjects requireth that all things that the Prince commandeth for defence of the State should by the Subjects diligently and obediently be performed for dutys sake either not examining the cause or presuming the best cause but at that time she was pleased to signifie the cause of her doings As to the King of England's making War and Peace abroad it hath always been owned as the King 's sole Prerogative and when some Parliaments have addressed to our Kings to make War or Peace contrary to what the Soveraign judged convenient they have been advertised of their Duties yet when War is to be made in remote Countries which cannot be performed without great Expence much time and the exhausting of the Kingdoms Forces That the People may more chearfully serve their Prince and Country and that the Exchequer may not be too much diminished whereby the usual Charges of the Government may not be substracted Kings have upon good Reason proposed the Matter to their Parliaments whereby necessary Aids might be sufficiently supplied The Laws now in force concerning the Militia are That the (k) 13 Car. 2. c. 6. 14 Car. 2. c. 3. King hath the Prerogative alone to dispose of the Militia of the Nation to make War and Peace Leagues and Truces to grant Safe-Conduct without the Parliament and he may issue out Commissions of Lieutenancy impowering them to form into Regiments to lead them and employ them as well within their own as other Countries as the King shall direct to suppress Insurrections Rebellions and Invasions He hath the Command of all the Forts and places of Strength and alone to have the keeping and Command of the Magazins of Arms he alone to give Letters of Mark and Reprizal in times of War to give Safe-Conduct for Merchants to make a stop of Trades as he sees cause In the time of danger and for defence of the (l) Coke 7. 25. Realm may command all his Subjects to Arm and they are to assist him and for this the Commission of Array may be made use of and all the Courts of Officers of War in a time of War are his Prerogative and the Subjects are to serve the King within the Kingdom against Rebels and Traytors (m) Jenkins Cent. 6. Case 14.26.89 without Pay or Wages and this as it seems in any part of the Nation especially if the King go himself The Subject except in an extraordinary (n) Coke 7.8 Case is not to be forced out of the Realm unless it be to go with the Kings Person nor in any case unless upon the sudden Invasion or Assault of an Enemy to serve the King without wages and the King in time of War may take any mans (o) I e. 3. Stat. 1. 2 Eliz. c. 2. House to build a Fort or make a Bulwark upon any mans Land But the King may not rate the Nation to pay any money towards any War of his It is true in time of Peace the King cannot quarter his Military Forces without the consent of the respective Subjects nor raise money without Act of Parliament for the maintenance of any Army so that the Subject while they keep dutiful are in no danger of oppression by such a Power yet without a competent Standing Force and Guard Some Standing Forces necessary at the Kings absolute pleasure what Livy saith of the Senate (p) Timor inde Patres incessit ac si dimissus exercitus foret rursus câ—tus occultaeque conjurationes fierent Lib. 6. The Long Parliaments Claim of the Militia would be most true of all Soveraigns That if the Forces were dismissed unlawful Assemblies and covert Conspiracies would be again set on foot The longest lived mischievous Parliament that any English History can record knowing that they could not effect their designs of weakning the King without the Power of the Militia though they had a numerous Party prepared to espouse their Interest and as ready for Rebellion as they could desire yet that they might have some colour for justifying their proceedings pretended necessity of putting the Kingdom into a posture of defence against foreign Invasions which by subtile Plots they possessed the people they had Intelligence of and for fear of any violence to be offered to themselves or that the King seduced by evil Counsellors should set up Arbitrary Power so having obtained that Fatal Act of not being to be dissolved without their own consent issued out their Commissions for Levying Trayning and Exercising Forces in all Counties where they had power by no Law or colour of Law but that of pretended imminent danger wherein the King refused to grant Commissions to such as they could confide in for their aforesaid purposes All which was but colour and shew to wrest the Power out of the Kings hands To obviate such like mischievous practices for the future upon his Majestys happy Restauration it was enacted and declared The Claims of any Right of the Two Houses to the Militia totally vacated That the sole supreme Government Command and disposition of the Militia and all Forces by Sea and Land and of all places of strength c. is and by the Law of England ever was the undoubted right of his Majesty and his Royal Predecessors Kings and Queens of England and that both or either of the Houses of Parliament cannot nor ought to pretend to the same nor can or lawfully may raise or levy War offensive or defensive against his Majesty his Heirs and lawful Successors So that now that great Controversy which wasso violently disputed to the loss of so much English Blood and Treasure is I hope eternally determined never again to be revived without an horrid prosperous Rebellion and this Prerogative of the Crown being thus guarded by Law will never more be attacked while the Royal line continues which is to be hoped and wished will without interruption be prolonged while the British Soil exists CHAP. XXXVI Concerning raising of Money upon the Subject and the obligation of Subjects to supply the Soveraign AS to the raising of Money for the support of Government I have discoursed something in the Title of Property and shall here only treat of the necessity in all Government That the Soveraign be plentifully supplyed with a Revenue suitable to the charge Although Darius the Persian be reckoned by Herodotus one of the first that exacted Tribute The necessity of Tributes and Aids yet it cannot be conceived but that ever since there was a Prince who commanded large Countrys and had potent Neighbours Tribute Aid and such like provision was exacted of the people for the defraying the necessary charges of it So Tacitus (a) Nec enim quies gentium sine armis nec arma sine stipendiis nec stipendia sine tributis 4. Hist tells us That we may be
preserved in Peace Arms are necessary and they cannot be provided for without Taxes The Subjects receive the benefit of protection and by the care of the Government peaceable possession of their Houses Fields and Cattle Liberty of Trade dispensation of Justice and other great Emoluments by its guard and vigilance which require a numerous retinue of Officers of State Justice and War and Multitude of subordinate Ministers Something also must be allowed for the grandeur and port is necessary for the regulating it at home and abroad the maintaining Correspondence by Ambassadors the providing for defence against foreign Invasions and preserving Tranquillity at home in all which the Publick is concerned therefore the reason is very just and equitable that besides a standing Revenue for defraying these constant charges there should be subsidiary supplys upon emergencies adequate to the occasions As Cicero justly admonisheth Da operam ut omnes intelligant si salvi esse volunt necessitati esse parendum That the Subjects be made to understand that if they will be safe As the Subject is protected so he ought to support the Government they must yield to necessity this absolute necessity of parting with a portion of their Estates for securing the rest For though it be prudence in a private man justly and moderately to enrich himself yet craftily to withhold from the Publick and to defraud it of such parts of the Wealth as is by Law required is no sign of prudence saith Mr. Hobs as judiciously as any position he lyes down but want of knowledge of what is necessary Civil War for their own defence and covetousness to part with nothing they can hold makes this restive humour in many That the Kings of England have quitted that Soveraign badge of raising money upon the Subject by their own Impositions without consent of Parliament is manifest since Edward the First 's time (b) 27 E. 1. c. 5. Anno 1299. The Act for which runs thus For so much as divers People of our Realm are in fear that the Aids and Tasks which they have given us before time towards our Wars and other business of their own grant and good will howsoever they were made might turn to a Bondage to them and their Heirs because they might be at another time found in the Rolls and likewise for the prices taken throughout the Realm by our Ministers We have granted for us and our Heirs that we shall not draw such Aids Task nor Prices into a Custom for any thing that hath been done heretofore be it by Roll or any other Precedent that may be found (c) Cap. 6. The next is thus Moreover we have granted for us and our Heirs as well to Archbishops Bishops Abbats Priors and other folk of Holy Church as also to Earls Barons and to all the Commonalty of the Land that for no business from henceforth we shall take such manner of Aids Tasks nor Prices but by the common assent of the Realm and for the common profit thereof See for this the Charter of King John saving the ancient Aids and Prices due and accustomed These being not fully enough expressed the Statute of 34. E. 1. though as short in words as any to be found yet is of the largest extent and as liberal a Boon of Royal bounty as any People can boast of from their Prince It is thus No Tallage or Aid shall be taken or levied by Us or our Heirs in our Realm without the good will and assent of Archbishops Bishops Earls Barons Knights Burgesses and other Free-men of the Land Therefore all those who would enjoy the benefit of this Law must take care they preserve the Succession and the two Houses of Parliament (d) MS. Speech second Parl. Elâ—z an 1562. Inducements to supply the Sovereign The Lord Chancellor in Queen Elizabeth's time thus by the Queens command discourseth to the Houses If when any part of the natural Body hap to be in danger the Head and every part hasteth to the relief so how inconvenient and unnatural is it when danger is offered to the whole that the Head should take the whole care and bear the whole burthen and the Members remain uncareful and uncharged It is certain (e) Coke Instit 1.90 the Prince can make no War of any great concernment without the assistance of his Subjects Purses as well as Bodies unless all would voluntarily serve upon their own charges for that neither sudden dangers can be evaded nor Forces raised and all things necessary for them provided nor peace be long preserved when the Prince hath an empty Exchequer for Treasure is Firmamentum Belli Ornamentum Pacis A late (f) States of France Objection French Author concerning his own Country makes this objection That Princes having assigned for their usual charges of the Government Tribute and other Incomes they ought to be therewith contented and not without occasion raise new Taxes to the detriment of the Liege people and contrary to the intention of the Trust Yet he owns this ought to be soberly understood for a wise Physician applies those Remedies necessary without the Patient's leave and will force him though by cutting off a Limb to save his life So when there may happen a necessity urgent and unforeseen that either will suffer no delay or which ought not for some time to be divulged in such cases saith he the King without the States and whether they will or no may lay new Impositions and make all other necessary provisions by the absolute Power he hath to rule and preserve his State and Subjects he not being able to defend them without necessary Forces Therefore in such occasions it is to be supposed that with the Power of Government there is transferred to the Prince the Power to do that without which good Government cannot be executed but when there is not that kind of necessity the States are called Thus far my Author Since therefore (g) Coke 1. Insiit p. 161. qui diruit medium destruit finem he that takes away the necessary means for a King to preserve his people in uncommon events hazards the ruine of the People some have inferred that when dangers should be so sudden that there could not be time to convene a Parliament or that such a Parliament met should for some design deny the Prince Money then the Kings Prerogative might extend to the raising of Money and they instance in the Loans by Privy Seals exacted upon the Subjects even in Queen Elizabeth's time This indeed was the Plea for Ship-money and as the case was stated by King Charles the First Concerning Ship-Money all the Judges once subscribed their affirmative opinions though Mr. Justice Hutton and Crooke retracted after and with great learning the case was argued and Judgment given in favour of the King Yet he hoping by the yielding to the abolishing of it to have stopped the misery of a War consented to an
Act for that purpose yet that prevented not the Inundation of blood and we found those men that moved Heaven and Earth with their clamours against the King as governing arbitrarily when they got the Power made it their dayly practice to lay what unprecedented illegal Taxes they pleased on their fellow Subjects to the value as some compute of Forty Eight Millions Therefore all Judicious persons lovers of their King The Advantages to Prince and People when the Crown is liberally provided for Country and Posterity finding the sad effects those disputes brought to the Blessed King and the whole Kingdom will think it a necessary prudence in a Prince to have always such a provision of Money ready as will enable him in all difficulties that may occur in the Administration of the Government without being obliged to part with any of his Royal Prerogatives when any discontented or designing Factious Members shall be able to take advantage of his Wants whereby to drive their barter with the Crown for thereby he shall defeat their ends On the other side it will be the most prudent and dutiful course both for their own security and the Princes honour for Parliaments upon all just and honourable Wars or occasions of assisting Allies preparing Fleets in readiness upon necessary defence to assist the Prince liberally and repay out of the Publick what for publick Service he hath expended out of his own Revenue rather than he should be in disesteem with his Neighbours and Allies whereby the honour of the Prince and consequently of his Subjects should be Eclipsed or he be necessitated to take any unusual course for raising Money or be compelled to make any inglorious Peace for we can never forget how the want of supplies to King Charles the First brought not only Ship-money and Knight-hoodmony Monopolies and the long disuse of Parliaments but at last that most calamitous War upon the whole Nation We cannot forget how zealous an House of Commons was of late to prevent any Arbitrariness as it was insinuated Decemb. 17.1680 The Care of some Parliaments to keep the King poor in the late King so that they voted a Bill to be brought in against illegal Exaction of Money upon the People under the Penalty of Treason not foreseeing that the Charters of the City of London and many other Corporations were forfeitable upon that account which if it had been made Treason the King had got a good Revenue against the intentions of those who in all appearance voted for a contrary end which further appeared in their Vote Jan. the 7th following (h) Address part 3. That whosoever should lend or cause to be lent by way of advance any Money upon the branches of the Kings Revenue arising by Customs Excise or Hearth-money the three principal branches should be judged to hinder the sitting of Parliament and be responsible for the same in Parliament So that they would give nothing themselves but as much as in them lay terrified others from lending or advancing any Money to him which was not according to their Writ to advise but by duress and force to compel the King to submit to their Judgments and instead of giving him Assistance to support his Allies and enable him to preserve Tangier they tended to the disenabling him from contributing to either by his own Revenue and Credit not only exposing him to the dangers that might happen either at home or abroad but endeavouring to deprive him of the Possibility of supporting the Government it self and reduce him to a more helpless Condition than the meanest of his Subjects as the King sadly and justly complained and in that Vote the Subjects Liberty and Property was invaded in that he could not dispose of his Money to his own Profit and the Benefit of the Government if either Insurrection or Rebellion happened in the interval of Parliament or a foreign Force on a sudden should attacque us yet these Gentlemen would be counted Loyal and Dutiful Subjects It is not to be denyed but that if a Prince's standing Revenue were so great that by it he might not only support the ordinary expences of the Government but lay by a summ sufficient to defray all extraordinary incident Charges either occasioned by intestine Rebellions or foreign Invasions that a King should not have occasion to have so often recourse to Parliaments for Aids Yet when we confider that there would be many other occasions of frequent convening that great Council for making wholesom Laws which is one great Portion of their Business and that the Subjects never can be happy under a poor Prince who thereby should be brought into contempt and how much greater mischiefs accrue to the Subjects by rendring their Prince impotent and unable to preserve them from factious disturbers of their Peace and Repose and the preserving their Properties as well as the defending them from the designs of foreign Princes who would injure our Merchants lock us in our Island and force us to sell our own native Commodities and receive theirs at what Rates they pleased if our Soveraign were not able to keep a sufficient Fleet and infinite other Mischiefs which would accompany a starved Exchequer we should too late find that the Expence of many Millions would not again restore us to that condition of Prosperity and Renown that one timely bestowed on our Prince would preserve us in It is much less Charge to keep in good Repair a well-built Fort Castle or Man of War than to build a new one especially if upon the demolishing of the old we were to fight for the Ground and Materials whereupon and wherewith we should build the new It is a singular Security to the English Subject that no Money can be levied upon him but by Act of Parliament to which in his Representatives he gives his Consent and the House of Commons is generally careful that they understand a great necessity ere they pass any Money-bill yet we have known in our Age some that have stood upon such terms with their Sovereign that either he hath chosen rather to want Supplies than have them upon such hard Terms or their Principals have suffered a thousand times more by such denials than they had done if they had been granted So was Constantinople lost to the Turks for want of furnishing the Emperor with the hundredth part of that which the victorious Enemy plundered the Citizens of and so the Count Palatine elected King of Bohemia lost that Kingdom and all his Hereditary Seigniories by unfurnishing his Soldiers with present Pay when he had it by him And how many suffer by the want of a liberal and proportionable Supply to pay off the Debts of the Exchequer is too sadly felt by many and if the Parliament of 1639. had furnished King Charles the First with twelve Subsidies as it appears by the sequel the Expence of four times as many Millions besides the infinite quantity of Christian Blood shed in the
ensuing War had been prevented in all humane probability Therefore it is to be hoped that both Parliaments will be careful to supply the wants of the Crown and Princes will for the future be as careful so to imploy the Monies given that they may encourage their Subjects as often as the urgency of Affairs may require it to give freely what may be useful and sufficient for their Kings urgent occasions (i) Nec juvâ—ntam armis civilibus aut domesticis discordiis imbutam nulla odia nullas injuri is nec cupidinis ultionem afferre 13. Annal. c. 1. It is noted by Tacitus that Nero coming to the Empire told the Senate that he being not brought up in Civil Wars or domestical discords would bring with him neither hatred nor grudge nor desire of Revenge and promised them many good things which were very acceptable (k) An cuncta vectigalia omitti juberet Idque pulcherrimum donum generl mortalium daret Sed impetum ejus multum prius laudata animi magnitudine attenuere Senatores dissolutionem Imperii docendo si fructus quibus Respublica sustineretur diminuerentur Lib. 13. c. 12. to the Senate and People but doubting with himself whether it were best to command that no more Subsidies or Tributes should be levied but he should bestow so fair a Donative on the World though this commended the Bounteousness of his Mind yet the Lords of the Senate stayed him from such a Resolution telling him It would be the Dissolution of the Empire if the Revenues by which it was sustained should be diminished These and such Considerations that ever to be Renowned House of Commons convened 23 May 1685. have had and with an unaccustomed speed supplied the King plentifully which was a most effectual means to stifle the Rebellion of the late Duke of Monmouth and the Earl of Argile and such chearful Aids will render his Majesty able to pursue his most Princely Design not only of making the English Name more considered and respected abroad The King's Speech 30 May 1685. but of carrying the Reputation of it yet higher in the World than it has been in the time of many of his Royal Ancestors Which induced the most wise King to tell them That the readiness and chearfulness that attended the dispatch of it was as acceptable to him as the Bill it self and that he would not call upon them for Supplies but when they should be of publick use and advantage and that he would manage what they gave with good Husbandry and take care to employ them to the uses for which he asked them So long as such a considerately liberal Mind continueth in the two Houses and the Money is lodged in the Exchequer of such a Prince we may presage a most happy time and neither fear intestine Rebellions nor foreign Enemies and besides the unspeakable Benefits to our selves the advantage must redound to his Majesties Allies and the general Repose of Christendom may depend much upon it there being little doubt to be made but if our late Soverereign of Blessed Memory had been seasonably and effectually supplied the Lilies of France had not been so rankly planted and secured in Flanders nor been watered with so much Christian Blood nor probably had we at home been in so imminent a danger of a Civil War as we were by the subtile Devices of those who knew that the Royal Eagle could make no extraordinary flight when his Golden Pinions were shortned CHAP. XXXVII Of the Nobility HAving hitherto treated of the Excellency of Government and particularly of that of England and the just and beneficial Soveraignty of the Prince under several Heads Method requires that I speak something of the Subjects who they are and their Duties and lastly of the causes of Disturbance or Dissolution of Government by Faction Sedition Conspiracy and Rebellion of which in order and first of the Nobility as those who justly make the greatest Figure in the Government next to the Royal Lineage The (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. l 4. c. 4. Philosopher makes four kinds of Nobility First such as have the Possession of great Riches Several kinds of Nobility and are abbe to bear a great Port. Secondly such as have been so from great Antiquity Thirdly those that by Vertue and great Atchievements have acquired Honour and Renown Lastly such as in Learning are Eminent Under these Heads the Nobility may yet be ranked if we take it in a large Sence as the fit Subject upon which the Sovereign may impress that Character But my design is to speak of the second and third Order only How the Word Nobiles hath been used in the Latin and Greek Empire when it was the addition to Caesar in the Branches of the Emperors Families and how in later times I shall not trouble the Reader with but refer the curious to the most Learned Selden and to what I shall note in the Chapter of the Gentry Great Vertues have sublimed their Bloods A Character of the Nobility and separated them from the dregs of the Crowds Others are Vessels of Common Clay they are all China and Porcellane others of Lead Iron Brass or Silver they of pure Gold or Diamonds of the old Rock They are Stars of the first Magnitude in the Firmament of Government yea the Firmament it self betwixt the upper and the nether Waters betwixt the pure Aether of Celestial Intelligences the Sovereign and Princes of the Blood and the terrestrial Waters of the Commons The Blessed Medium the double Trench to defend the Crown and the People That there should be such illustrious Persons is absolutely necessary for that in a Multitude there must be some Necssity of a Nobility who designing to live vertuously and having Souls of a richer Composition by their own proper uncommon Atchievements and the transcendency of their Vertues shall lay the Foundation of that Nobility which afterwards enriched and augmented by the noble Actions of their Successors will make their Families splendid and Illustrious So that Soveraigns the Fountains and Disposers of all Honours justly reward them with the Ensigns of Nobility The present Nobility or their noble Ancestors by fidelity and their great Capacities to serve the Crown and Commonweal have been gilded with those Rayes and have Characters impressed upon them undefaceable by any thing but Treason which taints their Blood or Degeneracy which smuts their Esteem They are the Buttresses of the Throne the Gold and Silver work of the Regalia (b) St. Alban's Essays c. 14. It is a Reverend thing saith the ingenious Chancellor to see an ancient Castle or Building not in Decay Of Ancient Nobility or a fair Timber Tree firm and sound how much more to behold a noble ancient Family which hath stood against the waves and weather of Time New Nobility is but the Act of Power the ancient the Act of Time Those who are first raised to Nobility are commonly more
better Condition though Gentiles than the Christians under the Romans or that it is derived from Gens I am more inclined to be of the latter Opinion finding it more agreeable to the common Use For Cicero (b) In Topicis calls those Gentiles qui ex eadem Gente Ingenui qui nunquam Capite sunt diminuti Gens consisting of a multitude which have sprung from one Generation and of many of these Gentes consists a Nation to which agrees that of (c) Gentilis dicitur ex eodem genere ortus is qui simili nomine appellatur Festus ad Verbum Festus that Gentilis is one born of the same Gens or Kindred and who is called by the like Name So we find the Horatii the Corvine Julian Flavian Family c. So the Greeks use the words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for one nobly descended from great Parentage So 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 was Nobility which (d) Polit. lib. 4. c. 8. lib. 5. c. 1. Aristotle calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Antient Wealth and Vertue or the (e) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Rhetor. ad Theod lib 2. c. 5. Dignity of the Ancestor The first Authors of it being stiled famous Men and Honourable 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 In the largest acceptation of the Word as it is now used saith the judicious (f) Tiles of Honour p. 852. Selden it denotes one that either from the Blood of his Ancestors or the Favour of his Sovereign or of them that have Power from the Sovereign or from his own Vertue Employment or otherwise according to the Laws and Customs of Honour in the Country he lives in is ennobled made Gentile or so raised to an eminency above the Multitude perpetually inherent in his Person These are stiled the Nobiles minores for distinction sake The use of the word Nobilis the word Nobiles being now appropriated to those of the higher Rank The ancient use of Nobilis especially before the Roman Monarchy was such that it was justly given to none but him that had Jus imaginum or some Ancestor at least that had born some of the great Offices or their Magistratus Curules as (g) 〈…〉 1. cap. 19. Censorship Consulship c. From whose Image kept he had the Jus Imaginum Therefore the preceding Ancestor was called novus Homo or Ignobilis Some Ages after the Romans were under a Monarchy the Title of Nobilis was given to such as by the Emperors Patents of Offices or their Codicilli Honorarii were first raised out of the lowest Rank After that Arms of Ensigns of Distinction born upon Shields grew to be in may Families Hereditary which was about four hundred Years since as Sir Edward Bish in his Aspilogia avoucheth it came into frequent use that he who was either formerly ennobled by Blood or newly by acquisition either assumed or had by Grant from his Sovereign or those deputed by him some special note of Distinction by Arms also to be transmitted with his Gentry to his Posterity Yet (h) 〈◊〉 Mr. Selden notes that in the Proceedings in the Court of Chevalry betwixt Reginald Lord Grey of Ruthin Plaintiff and Sir Edward Hastings Defendant concerning the bearing of a Manch Gules in a◠Field Or in the depositions taken in the Moote Hall at Bedford it is recorded that John Botiler of the County of Bedford and Roger Tenstal Mayor of Bedford having been the Plaintiffs Servants severally deposed Il est Gentilhom d' Auncestrie mas nad point d' Armes Gentlemen without coats of Arms. That he was a Gentlemen of antient time but had no Arms. But I shall pass from this That which I desire the Gentry to observe is Advice to the Gentry That they are the Seminary of our greater Nobility and that from Loyal Wise Learned Valiant and Fortunate Persons of their Order in all Princes Reigns the Nobility have sprung Therefore as some of them are derived from as numerous Ancestors as any in other Kingdoms and have by Hereditary Succession greater Estates than many foreign Counts and as they desire either to conserve the Repute their Ancestors have honourably entailed on them or to transmit them to their Posterities so it will be their Interest and Glory to accomplish themselves in all sorts of useful Learning whereby they may be Serviceable to their King and Country There are Bodily Exercises they should be well skilled in as Fencing Riding the great Horse and all Military Exercises to enable them to serve in the Militia of the Nation and their diligent perusing all sorts of History and the Laws of the Land will fit them for the managing of Civil affairs and dispensing the Kings Laws as Justices of Peace Sheriffs Commissioners Representatives in Parliament as also for the greater Offices of State Since they are born to large Patrimonies and thereby have a more generous Education and derive a more refined Spirit from their Ancestors they can with infinite more Ease enter into publick Employment having none of those sinking (i) Hand facile emergunt quorum virtutibus obstat Res angust a domi weights of Poverty and mean Education which enforce others to use extream Diligence e're they can mount the first half Pace the Gentleman is seated on by that time he leaves his tutors It is true the Priviledges of the Gentry of England properly so called are not so great as in some Countries where they have power of Life and Death over their Servants or are exempted from Taxes and enjoy other Immunities which are denied to the Commons yet they have others as beneficial in that they make up a great share of the Ministerial parts of the Government It is required by God and their Prince that they should so deport themselves as they may be singular (k) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dio lib. 2. Examples to their Tenants and Neighbours of Wisdom Temperance Justice Loyalty and all the System of Vertues and by a generous Hospitality without Debauchery preserve their Interest in the affection of their Neighbors and that the Poor may daily and zealously pray for them being made the Voiders and receiving the Sportula of their plentiful Tables By this way of living they will sow among their Neighbours the Seeds of all useful Vertues and enrich their Countries and be able in time of need to serve their Prince with their numerous Dependants It is for the use of the blooming Gentlemen I write this The more sage and ancient need only such Intimations to refresh their Memories I have made Observations how fatal it hath been to themselves and the whole Kingdom when the Gentry have been seduced to sleight at first and after as they have been wrought upon by Designers to over-awe or overturn the Government and either by Piques among themselves or Aemulations Envies and Discontents have been brought into the Combinations and Conspiracies with those who under the specious Pretences
secret Speeches as is usual in matters forbidden then with wandring Rumours fitted for the open ears of the most unskilful and then adapted for the turbulent and those that are desirous of change Thus they raise their Trumpets till they sound to Arms and Onset Fifthly These are open contagious Airs Clubs and Consults Shafts flying by Night and Day but they arise from the hollow Caverns where Clubs and Associations sit brewing of them and feathering those Bolts So Tacitus (n) Per conciliabula caetus seditiosa disserebant Lib. 3. Annal observes of the Gaâ—ls In little Consults they debated Seditious Matters Where obiter we may note how congenial the Actions of Seditious Persons are in all Ages which he further describes in the method of (o) Nocturnis colloquiis aut flexo ad vespâ—um die delapsis melioribus deterrimum quemque congregantes Idem 1. Annal. Porcennius when he excited the Souldiers of Pannonia to Rebellion That by Nightly Conferences and Evening Clubs when the better sort were retired he gathered the worst and such as he could confide in to work them to his purpose and confederate them to carry on his Designs Sixthly The Method (p) Studiâ— militum affectaverat contubernales appellando alios agnoscere quosdam requirere pecunia aut gratia juvare inserendo querelâ—s ambiguos de Galba sermones quaeque alia turbamenta vulgi Lib. 1. Histor Otho took to supplant Galba Calumnies the same Judicious Historian describes thus That he had practised before to get the Favour and good will of the Souldiers calling them Mates and Companions relieving and being bountiful to them inserting now and then complaints and glancings at Galba with Speeches of doubtful Construction or what other way he could bethink him to stir up and alter the Vulgar sort by disquieting and affrighting them Thus the Designers of changes in any State fit their Discourses to the present emergencies of Affairs and finding any sorts of grievances to complain of with innuendo's aggravate them and excite the People to believe that they only are forward to redress them Seventhly It is a sign of a Seditious Spirit Calculating a Princes Nativity when he is busie in Calculating the Nativity of a Prince Therefore Firmicus gives it in charge to his Astrologer not to answer such Questions Tertullian (q) Cui opus est perscrutari super Caesaris salute nisi a quo aliquid adversus eum cogitatur vel optatur aut Apologia 35. Sueton in Domitiano tells us That there is no need that any curiously enquire after the health of Caesar unless it be one that meditateth or wisheth something against him or hopes for some advantage after him So Tribonius was sent into Exile because he enquired of the Chaldaeans the end of the Prince So Domitian slew Pomposian because he had the Emperors Nativity and carried about him the Speeches of Kings and Captains out of Livy and called his Servants by the names of Mago and Hannibal Although Prophecies Prodigies and Prognostications are like Mercenary Souldiers that may be listed to fight on any side yet every Mans Superstition interprets them to his own advantage or according to his wishes hopes or fears So that when the Designers have a mind to make impressions of fear on the People they bring in some ill-boding Signs as Apparitions raining of Blood Oxen speaking Battels in the Air and such like to keep the People either in fear of Calamities or in hopes of more prosperous times by changes both which would be equal disturbances to Government Tacitus (r) Genus hominum pâ—tentibus insidum spâ—rantibus fallax quod in Civitate nostra vetabitur semper retinebitur 1. Hist speaking of Otho's confiding in the predictions of the Astrologers tells us They are a sort of men unfaithful to the Great deceitful to the Hopers which always will be forbid and always retained That the Romans judged such as gave credit to the Chaldaean Promises the Ceremonies of the Magicians and Interpreters of Dreams to be practicers against the State and guilty of Treason we have a memorable example of Libo (s) 2. Annal. ad Chaldaeorum promissa Magorum sacra somniorum etiam Interpreres impulit c. plenam imaginibus domum ostentat hortaturque ad luxum as alienum c. Infernas umbrâ—s carminibus eliceret Drusus of the Scribonian family whom the Astrologers put in mind that Pompey was his Great-Grandfather Scribonia wife of Augustus his Great Aunt the Caesars his Cousin Germans that his House was full of Images and Monuments of his Predecessors then they brought him to Licentious Riot and Debaucheries and to raise Infernal Spirits by Inchantments And though my Author judge there were some of Tiberius's Arts in his Accusation before the Senate yet we find he killed himself to avoid the infamy of a Sentence of the Senate and upon it a Decree was made to expell Astrologers and Magicians out of Italy Facts de Mathematicis Magisque Italia pellendis Senatus consulta Before I come to treat of the Prognosticks of the Mischiefs of Factions I must take notice of two of the certainest most demonstrative and dangerous signs of Faction running up to Seed that can be and those are Tumultuous Petitioning and Tumults These will the better be illustrated both separately and in conjunction The Method the Long Parliament used by laying open the Methods the Long Parliament took to effect their designs against their Gracious King First With great shew of Compassion and Commiseration for their fellow Subjects sufferings they eagerly debate the Grievances which by a correspondence betwixt the Members of the House of Commons and their Friends in the Country by Petitions many thousands strong were daily represented to them every one striving to be foremost in representing and outstrip his Neighbour in exaggerating the Grievances as they called them that they lay under In these Petitions to the Houses but mostly to the House of Commons were Bead-rolls of Complaints against the oppression of the Subject both by the Kings Council President and Ecclesiastical Courts the Star-Chamber High Commission Court the Judges countenancing exorbitant Power that the Property and Liberty of the Subject was invaded by Monopolies Ship-money Knight-hood-money c. illegal Sentences in the Star-Chamber the Innovations of the Bishops their severity against pious Nonconformists and People of peaceable and tender Consciences as they called them and the baser sort of the People were permitted or rather invited to come to the Parliament-House to back these strong Petitions By this Artifice they exposed the Government to obloquy and contempt among the People and raised in them a confident Opinion that their only Redress was to be hoped from the Parliament and so brought themselves into a popular esteem by so much more loosening the Peoples Affections and Allegiance to the King by so much as they faster knit the Peoples Hearts and Hands to their
When Princes not to make themselves Parties but only private-Animosities betwixt some of the Nobility wherein the Government is not much concerned there may be some allowance for my Lord Verulam's Opinion That Princes being Common Parents should not lean to one Party because a Boat that is overset by the unequal Weight on one side may carry such Passengers in it as the Prince would not lose Therefore to study ways to piece them and solder up the flaws is better than to side with one to the Ruin of the other and sometimes of themselves also As we may observe in Henry the third of France who entred into the League and it was shortly after turned against himself which may be a document saith that wise Lord to Kings how they make themselves a Party for by that a Prince makes himself unus ex nobis which makes an Obligation Paramount to that of Soveraignty So that a Prince must be very cautelous when he must side with one Party which he espouseth (d) In caducam pariâ—tem ne inclinet lest he lean upon a ruinous Wall But if there be a Party by whose fall the Prince (e) Cujus râ—ina se quoque tradura est Tacitus de Moribus Germ. likewise shall be sure to be ruined as in case of Factions against Government as I mean in this whole Discourse it is necessary for him strenuously to support it When Princes to support one Party Upon this Consideration it seems to me that it ever will be the great Interest of the Kings of England to defend and support the Episcopal Government for that by fatal Experience it was found that the overthrow of it was the Praeludium to the Destruction of the Blessed King and Monarchy For although he was a very great Champion of the Church of England as established by Law yet he too fatally yielded to take away the Bishops Votes in Parliament whereby he lost a considerable Party in the House that would never have deserted his Interest So that in this case I may apply that of Galba (f) Manifestum est neque perire nos neque salvos esse nisi una posse Tacit. 10. Hist P. 195. Edit Lips 5. to his Soldiers It is manifest that undivided or alone they can neither be Saved or Perish in times when they are attacqued But to return to the Prognosticks of dangerous Seditions I shall mention some that Tacitus hath noted and described Speaking of the Revolt of the Legions in Germany under Germanicus at the Beginning of Tiberius's Reign Unanimity a dangerous Sign he saith Those that looked deeply into the Disposition of the Soldiers judged it a strong Argument of an unappeasable Revolt (g) Id militares animos altius conjâ—â—â—antibus praecipuum indicium magni atque implacabilis motus quod neque disjecti nil paucorum instinctu sed pariter ardescerent pariter silerent tanta aequalitate constantia ut regi crederes 1. Annal. that they were not scattered or divided nor any attempt given by a few but grew insolent together were quiet at once with such moderation and constancy that one would have thought they had been governed by one Head For when any Sedition is carried on with such Unanimity it is a certain Sign that the Poyson hath a large spread and there are few sound Parts left The Progress (h) Ad tuendam plebem Tribunitio Juâ—e â—tentum militem doâ—is populum Annena cunâ—los dulcedine oâ—ii pellexit Insurgere paâ—tatim munia Senaâ—us Magistratuum Legum in se trahere nullo adversante lbid Augustus made to establish the Sovereignty in himself The Methods of Designers is the usual Method by which such as intend subverting of Government may proceed which according to the same Author was That to ingratiate himself with the People he contented himself with Tribunitian Authority to defend the Common People that he wound himself into the Favour of the Soldiers by Gifts of the People by Provision of Sustenance and of all in general with the sweetness of Ease and Repose by little and little taking upon him the affairs of the Senate the Duty of the Magistrates and Laws and so without the Contradiction of any he obtained the Empire This in Augustus was commendable and Politically done being to alter a Commonweal into a Monarchy and Wisemen by his method might have foretold his Design So in Seditious enterprises against Monarchy the way is to court the People and insensibly cajole them with the sweetness of Liberty under a Commonwealth and the heaviness of the Yoak of Monarchy and having possessed them with this they have no more to do but to await some critical time or revolution that may suit their Design as some new Imposition laid some publick Calamity the displacing some great Officer or Death of some great Man or their Prince such (i) Opportunos magnis conatibus transitus rerum 1. Histor Revolutions being the sittest times for great Attempts as Tacitus speaks of Otho's Conspiracy by Galba's Covetousness to the Soldiery c. Concerning Sejanus the same Judicious (k) Primas dominandi spes in arduo ubi sis ingressus adesse studia ministros Lib. 4. Annal. Author gives us the Saying of Drusus That the first hopes of attaining Command or working themselves into Power by Sedition is difficult but after the Entrance there will not want aids of Council and assisting Hands Therefore it is most necessary Speedy Suppression most necessary that Princes diligently watch the motions of all kind of Seditious aspiring Persons to prevent their first Entrance upon their Designs lest they prove afterwards too Powerful In such a State of affairs the Council of (l) Nibil in civilibus discordiis festinatione tutius ubi facto magis quam consilio opus 1. Hist Tacitus is to be followed That nothing is safer in Seditions and Civil Discords than quickness of dispatch when there is more need of Action than Consultation The misfortune is great which happens to the Subjects by Faction and Sedition The Mischiefs of Faction for such things once begun are not in a short time hushed but the Animosities are durable and when one (m) Inter victores victosque nunquam solida sides coalescit Idem 2. Hist Party overcomes yet the Conquered retains his old grudge and is always catching at opportunities to promote his Interest and there is rarely in that Generation at least a sincere amnesty and union of Affections Therefore as Princes by Acts of Pardon endeavour to put all into a State of Unpunishableness though they cannot into a State of Innocence so those that have assisted the Seditious Party ought with a generous Repentance and Fidelity to their Prince endeavour all their Lives to be rubbing out those Stains by their Loyalty For he that (n) Quem paenitet peccasse pene est innocens repents he hath offended is in the next degree to the Innocent It
setting on work and relieving the Poor by the labour of their own hands and forcing sturdy Beggars and idle Vagabonds to work or be confined to their own Parishes were strictly put in Execution we should have less reason to complain of them It is true it is not from the poor and lazy that the Government is so much in danger for those are not fitted for Souldiers It is the spirited poor that have spirits above their fortunes or by living above their income have wasted their Estates that are Instruments fit to be made use of by the Factious yet their numbers are not so great but vigilant Magistrates may have an eye upon them and the Government may imploy the ablest of them in collecting the Revenue Others may be made inferior Officers in the Militia and the rest must be left to better hushand what they have remaining and kept in hopes that if they pay due respect to the Government at one time or other they may be provided for and the Loyal Gentry may find ways to oblige them in their Services so that every one that is fit to be made good use of may by one way or other be set to gain a better livelyhood than they are like to get by santring and flandring the Government which if they do some severe Animadversion may amend them or deter others It is not possible that the Government can provide for all the Indigent without strict execution of the Laws But the care of the Justices of Peace injoyned by the Soveraign may do much good however they may keep such from molesting the Government Since therefore that of Tacitus is so true Lâ—vissimus quisque fauri improvidus spâ— vana tumet That the least provident to prevent future want build Castles in the air and are big with vain hopes and expectations their hopes and desires are to be so directed that they may hope for more advantage from their Prince than from Factious Oppressors Fourthly 4. The Ambitious Ambition is so near a kin to Nobleness that it seems a Nobility and unvulgarness it self being an Inmate only of Souls elevated above the level of the common sort of mankind Ambitious men are the Field-Officers and Brigadeers of Faction and by so much as they are commonly persons of Birth and Parts they the more require a Prince's regard above all other Factious persons If they find saith my Lord St. Albans the way open to their rising they are rather busy than dangerous but if they be checked and stopped like ill humours they grow Malignant These faith (f) St. Alban's Eâ— says c. 36. the Chancellor become first secretly discontented looking upon men and matters with an evil eye and are best pleased when things go backward and so are the worst Servants of Princes or States Therefore it is good for Princes if they use ambitious men so to handle the matter as they be still progressive which because it cannot be without inconvenience it is good not to use such natures at all for if they rise not with their Masters service they will take care to make their service fall with them There is less danger caeteris paribus of ambitious men if they be of mean Birth than if Noble and if they be new raised rather than grown cunning and fortified in their greatness It is less danger saith the same great Chancellor (g) Idem whose wise observations on this head I cannot omit to have an ambitious man stirring in business than great in dependance He that seeks to be eminent amongst able men hath a great task but such as is ever good for the Publick but he that plots to be the only figure amongst Cyphers is the decay of a whole Age. Princes may make use of Ambitious men in pulling down the greatness of any Subject that over-tops as Tiberius used Macro in pulling down Sejanus Also they make use of them as Screens in matters of danger and envy But no man will take that office unless he be a seeled Dove that mounts and mounts because he cannot see about him Commanders in Wars though Ambitious are useful for their Service dispenseth with the rest and to take a Souldier without it is to pull off his Plumes and his spurs Favourites are remedies against ambitious great ones and they are well corrected also by ballancing them by others as proud as themselves but then there must be some middle Counsellors to keep them steddy for without that Ballast the Ship will roll too much These and such like may be the cures of Ambitious Men while they are of the Council of Princes on Ministers of State But when they want Imployment and are tainted in their Principles or entertain designs of altering the State or by the unboundedness of their aspirings aim at the sole direction of Affairs and care not what mischiefs befall their Prince or Country in the pursuit of their Designs a Prince should look upon them as in the next degree of most dangerous Traitors In this case a Prince hath but two ways either to set wise men to work who cambring them to their Service and make them sensible that their advantage will be greater by studying the Service of their Prince in consort with other experienced Statesmen than by heading of any Faction against the Government and letting them see by the many examples in History how unprosperous it hath been to all that have striven to wrest Honours and Employments from their Prince without proportionable Service That they are not to presume to be wiser than the Government That Kings have long Hands can reach Malefactors at a great distance and unprovided how unable they are to vie with Majesty and make them sensible that never any durable Renown or Wealth was got by courting the People in opposition to the Prince and demonstrate the Justness of the Government in such Particulars as they most quarrel at And if this will not bring them to their right Senses then either send them abroad or give them some ticklish Employment at home wherein if their Ambition tempt them to outdo their Commission they may be run into a Praemunire whereby they may be crushed at once Still a Prince hath a difficult task how to comport himself to cast off Ministers of State who having been accustomed to be very leading and much credited in Councils have been imployed in great and weighty Affairs got themselves great Estates and Dependences If such upon some Reasons the Prince best knows to himself be softly to be laid aside whereby his Partisans may be induced to believe it was for no Guilt but to make room for others advancement a Prince is in danger to have his Affairs much obstructed by them For these upon every ill succeeding Affair of State after their removal will suggest to the People the evil tendency of it and they shall be sure to have their repute for Judgment and forecast much valued by the People because
it was so once by the Prince and so the vulgar instantly credit his Sentiments as Oracles so that he having already acquired an easy belief with the greatest facility in the World puts a false gloss upon the Princes best designed Actions and retaining his old dependences they will whisperingly disperse his sence of things Let him then make himself heads of the Country Party and the true Protestants as of late some affected to be called and he is presently without further labour and industry adored as the Peoples prime Patriot Having got Tools enough to work with still pretending his concern for the Publick weal of the People and at the same time tacitly insinuating some reflections upon his Quondam-fellow Counfellors depreciating their Wisdom and Honesty and leaves the application to his Admirers They will be sure to aggravate all appearances of Male-Administration since his laying aside and insinuate that Affairs have a tendency to oppression of the People altering Religion or such like plausible Subjects and so by little and little the Peoples affections will be estranged from their Prince and shall be set upon this new Idol the fallen Lucifer If the Soveraign upon some emergences by necessitated to call a Parliament he shall obtain a great if not a major part of the Members chosen according to the Common Peoples by as he shall put upon them most opposite to the Kings Interest In such an Assembly he shall be sure to have great Interest and under some pretences of Grievances of the Subject render useless to the Affairs of the Soveraign and upon its necessary dissolution improve still his Interest that the succeeding Parliament shall be as wayward and by promoting Bills he knows his Soveraign can neither in Honour or Conscience assent to still more alienate the Peoples affections from him till at last he get to be sole Director of such Assemblies having all this while the Wisdom and cunning to keep himself within the compass and reserve that for Words or Actions he be not obnoxious to the Laws Having obtained this height he is able to influence the Elected of City Magistrates secure himself by them and at last to form Conspiracies against his Prince till which time he being the Idol of the People is only feared and suspected but nothing of Traiterous Designs being yet pregnantly discovered he runs on his risk till some fortunate discovery of his designs force him to abscond and then his whole machinations come to light and if he escape the hand of Justice he is forced to leave his Countrey and ends his life ingloriously abroad This is the common exit of such who had much better have offered violence to these headstrong Passions and been content with a quiet retreat and dieted and physicked their virulent distempers with the applications of sage Counsel and the Precepts of Judicious Men finding out the cure for their Diseases in Books and Solitude than thus to live in the Pangs and Throes of Ambition to the disquiet of their Prince and the emptying of their Country Of such we may not only say with (h) Percandam posthac modestiam ut contentius esset Tacit. 4. Annal. Drusus That Modesty must be prayed to that they be content with their Greatness but Justice must be invoked to prune such luxuriant Branches as not only overtop and Shade all the rest but suck away from them all their Sap and Nourishment In (i) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lib. 2. Dio Cassius I find it advised That such Criminals as these that are above the stroke of Justice and whom a Prince cannot with security to himself bring to a Publick Trial should not be arraigned but as open Enemies instantly punished So some Princes finding such subtle ambitious Men beyond the reach of their Justice by way of publick Arrest and Trial by the Law being satisfied in their Consciences that they were hatching great mischiefs to their State and the subversion of their Government have commanded by their Soveraign Power execution of them by private hands So fell Frier (k) History of Hungary George newly made Cardinal for tampering with Solyman the magnificent to bring him into Transilvania and exclude King Ferdinand by direction from the King to Castald his General there So fell the Duke of Guise and the Cardinal of Burbon but this sort of Justiec brought as great mischiefs afterwards to their Crowns as they could in probability have sustained by their lives at least if the Prince had with watchful oversight so timed the Execution that they had let them live till they had made their Treasons more manifest So Tacitus (l) Inauditi atque indefensi tanquam inno centes â—erierunt 1. Histor speaking of Galba's putting to death Cingonius Varro and Petronius Turpillianus saith That they being not suffered to be heard and defend their Causes judicially perished in the repute of Innocents Therefore there are other ways more just and safe for Princes to take with so great and subtile Criminals As to toyle them into some great errours give them opportunities to shew their ill Conduct and Council or to do something ungrateful to the People that they may go out of their places with such a scar as will stick by them in their retirement and study to enjoy a quiet recess lest they be called to an account for what they connived at when they fell so if they can be rendred unuseful and of little credit with the People they will have none to back them in their attempts but Persons of small Reaches and Interest and then for smaller Transgressions they may be called to an account and if they be conscious to themselves of any guilt they will quit their undertakings for fear of a suddener Catastrophe than Ostracism If such Ambitious Persons have gained so great Interest that neither by setting Spies upon them or by other Arts their secret drift can be sifted out * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 5. Polit. c. 11. then Aristotle's Rule is to be observed by compassings and windings to remove them and not to tak all their Power away at once or to remove them to some higher place where they may have a new Administration to begin in which they are not so well versed on wherein they can do nothing without the Prince and his Councils daily inspection and where no dependences are to be gained Above all a Prince is to take care to follow the (m) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. Philosophers Rule to make no man too great for as he saith It is the safeguard of the Principality to make no one Man great For Tacitus (n) Semper periculosum privati hominis nomen supra nomen Principis attolli Vita Agricolae well observed It is most inconvenient and dangerous to have any one more in vogue than the Prince for if such have not powerful Principles of Loyalty lodged in their breasts they have great temptations and opportunities to do Mischiefs especially
if after the obtaining great Authority and Power they are sensible of parties-making against them For then self-preservation is mixed with their Ambition and that prompts them to dangerous undertakings as it did the Earl of Essex in Queen Elizabeth's time For as Dio (o) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lib. 2. Cassius notes Long and lasting Command lifts up mens Spirits and induceth them to alter Affairs So the long continued Favours of the Queen and the great Imployments under her made that unfortunate Earl impatient to see himself eclipsed and whether out of pure envy to the present Ministers of State or upon greater Designs I enquire not seek to remove at least those with a violent Hand that he thought were his Enemies in which attempt he fell worthily under the Severity of the Law which will allow no Man to expound the goodness of his Intentions when he offers force to his Prince When therefore there is any Necessity of State to make any great (p) Magna libertatis ac Principatus custodia si magna imperia diuturna esse non sinas Lib. 4. Livy's Rule is to be observed That his Authority be short for that is Safety to the Liberty of the People as well as to the Sovereignty of the Prince So the Lord Lieutenants of Ireland and elsewhere are not only removable at the King's Pleasure but they have not been used to be continued long for more durable Commands too much elevate ambitious Mens Genius's and gain them great Dependences who will be apt to own their Honour and places of Profit rather to such great Ministers than to the King himself whereby if they have a mind to make Innovations they have Opportunities and Coadjutors Sejanus is a great Example of Ambitious aspiring and most deserved violent and praecipitate Ruin Tacitus (q) Corpus illi laborem tolerans animus audax sui obtegens in alios criminator juxta aâ—â—lâ—tor superbus palam compesitus pudor intus summa apiscendi libido ejusque causa modo largitus luxus saepâ—us industria ac vigilantia haud minus noxiae quotiens parando Regno finguntur 1. Annal. gives us his Character thus That he was of Body able to endure Labour of Mind bold in his own Actions secret an Informer against others as proud as flattering in shew Modest but inwardly greedy of Aspiring for which Cause he used sometimes largesses and lavishing but more often Industry and Diligence means saith he dangerous alike when they are dissemblingly used to win a Kingdom This Sejanus poisoned Drusus by corrupting Livia his Wife and practised to destroy Agrippina and Germanicus's Children from whom he endeavoured to alienate Tiberius's Mind He requested Tiberius that he might Marry Livia widow of Drusus by which means he thought to get himself incorporated into the Royal Family and having destroyed the whole Race of Germanicus and Drusus the next Heirs of Augustus he might the easier have usurped the Empire in Tiberius's old Age whom he had got to retire to Capraea and commit the management of affairs to himself But for all these gradual and high Steps when he was almost at the top of his Ambition snatching the very Diadem having already got his Image with Tiberius's decreed by the Senate to be set about the Altars of Clemency and Friendship he was at last by Tiberius's Authority and Macro's Diligence utterly destroyed (r) Tiberium variis artibus devinxit adeo ut obscurum adversum alios sibi uni incautum intectumque assiceret Id. Though he had so overcome Tiberius by his Arts that though he was reserved to all others yet to him alone he was cautionless and uncovered For as by his cunning by which he was also circumvented saith Tacitus so by the Anger of the Gods to the affairs of Rome with equal mischiefs to it he flourished and fell So Juvenal (s) Satyra 10. tells us Sejanus ducitur unco Spectandus gaudent omnes nam qui nimios optabat honores Et nimias poscebat opes numerosa parabat Excelsae Turris tabulata unde altior esset Casus impulsae praeceps immane Ruinae Fifthly 5. The Envious The Envious are very carefully to be watched over they secretly sow the Tares that choak the Fruitful Crop of peaceable Government There are some Envies that are less prejudicial to a State as being against some Ministers of State only and not against the Government and these are so natural that in the calmest times they are practised and to prevent this it is only needful for Princes to take care of the choice of such as they commit matters of publick Administration to and that Persons envied so deport themselves as they may not deserve it Publick Envy saith the Learned (t) St. Alban 's Essays c. 1. p. 33. Chancellor is an Ostracism that Eclipseth Men when they grow too great and is a Bridle to great ones to keep them within Bounds Those above others are most subject to be envied Id. who carry the greatness of their Fortunes in an insolent proud and imperious manner whereas wise Men will rather sacrifice to Envy in suffering themselves to be crossed and overborn in things that do not much concern them So the carrying greatness in a plain and open manner without Arrogance and Vain-glory doth demolish Envy Therefore the wise sort of great Persons ever bring upon the Stage somebody upon whom to derive the Envy which otherwise would fall upon themselves Persons of eminent Vertues Id. when they are advanced are less envied for their Fortune seemeth but due to them especially if they be of noble Blood being that much is not added to their Fortune so those advanced by degrees are less envied than those per saltum Those that have joined with their Honours Id. great Cares and Perils are rarely envied son Men think they earn their Honour dearly and pity them sometimes and Pity healeth Envy There fore the more sober sort of Politick Persons in their Greatness are ever bemoaning themselves quanta patintur not that they feel it so though certainly to discharge great places honourably is a vast Fatiegue but to abate the Edge of Envy as my Lord St. Albans wisely observes Unworthy Persons are most envied at first Id. whereas Persons of Worth and Merit are most envied when their Fortunes continue long for by that time though their vertue be the same yet it hath not the same Lustre for fresh Men grow up to shade it These are not the Envies that are so perilous to States for that they are terminated on particular Persons only but that Envy which is dangerous to a State is when it is great upon the Ministers of State when the (u) Dolendi modus ti mendi non item Causes of it especially are small and the Fear greater than the Feeling for that shews the Envy raised upon Design and to be general upon all or most of the Ministers and then however it
may be disguised it is upon the State it self It is this kind of Envy that principally forebodes Mischief and requires greater Skill and Dexterity in the Prince and his Ministers to avoid the Malignity of the Blast of these black Souls and the Sting of such Asps Vipers and Scorpions Therefore it is no small Skill to chuse out such for publick Negotiations as will be less subject to be envied which in Part may be understood by electing those that have Worth Ability and Vertue to commend them and not private Affection or Interest only Sixthly 6. The Discontented The discontented are File-leaders of Faction The best foresight and prevention of Mischief from them is that there be no fit Head that hath Reputation with the discontented Party upon whom they may turn their Eyes Such are either to be won off or affronted with some other of the same Party that may oppose them and so divide the Reputation and make distinct Interests among them for Factions generally subdivide as that of the Optimates and Lucullus did against Pompey and Caesar and when the Senates Authority was pulled down Caesar and Pompey after broke upon one another So Antonius and Lepidus against Brutus and Cassius and after they were overthrown Antonius and Augustus divided So in the late War the Presbyterians and Independents clashed till at last the Contest betwixt them two so weakned both that it much facilitated the Restauration of the King To give moderate Liberty for Grief and Discontent to evaporate so it be without too great Insolence saith a Wise Man (w) St. Albans tit Sedition is safe especially if a Prince noting the Causes of Discontent be removing of them insensibly during his Connivence so as he seem aliud agere to let them see it was not for want of Foresight or Good-will that he set not on the Work sooner but that he waited the critical time The neglect of this some think was one of the great misfortunes of King Charles the First 's Reign That his Ministers who could not but be sensible how universal the discontent of the People was from the beginning of his Reign yet suffered them fifteen years to be fermenting and the causes not to be insensibly removed till when it was done at last all at once Anno 1640 1641. the King got no thanks for it as seeming to be favours rather extorted than freely granted For by the long lodging of discontent in the bosom of the People the humour turned back made the wound bleed inwardly and ingendered dangerous Ulcers and malignant Imposthumes However it is too apparent though that was a great oversight yet the backwardness of the Parliaments to afford Supplies and the designers of the Civil Wars who had been at work all along were the true Cause of those Miseries together with the blessed Kings Clemency Carrying men from hopes to hopes of redress so as it be not too tiresome is one of the best Antidotes against the poyson of discontentment and when it ariseth not so much from malice as mistake (x) Da malorum poenitentiae honorum consensui spacium Tacit. 1. Histor a Prince may respite a while the Prosecution to give space to the evil to repent and to the good to consent or be convinced perhaps a little time will mellow and meliorate humours diem forsitan tempusque ipsum leniturum iras sanctitatemque animis allaturam as Livy judiciously observes Yet this is to be admitted with some restriction For as Tacitus notes (y) Ipse inutili contatione agendi tempus consultando consumpsit mox utrumque concilium aspernatus quod inter ancipitia deterrimum est dum media sequitur nec ausus est satis nec praevidit Id. 3. Hist in another case of Valens Lieutenant to Vitellius That using delay in prosecuting the Enemy to the great danger of his cause he spent the time of Action in Consultation and then rejecting the extreams of Counsel he took the middle course which saith he in cases of danger and doubt of all other is the worst So in punishing Authors of Faction it is better use severity at first for a terror than to suffer smaller Symptoms of discontent to pass so long unrectified that at last they sprout out with Hydra's heads and grow too numerous to suppress for in such cases all delays are dangerous and soft quiet dealing brings more evil than hazarding rashly as in another case about (a) Nec contatione opus ubi perniciosior fit quies quam temeritas Idem 1. Hist Otho's Conspiracy and the quickness of the execution of it he relates which might have been prevented if Galba or Piso had well observed Otho's popularity and his ingratiating himself with the Souldiery whom Galba had discontented about the Donative Seventhly 7. The Emulous The Emulous being such as think themselves equally capable of their Prince's Trust and Regard make great ruptures in a State Therefore Tacitus condemns the Politicks of Caius Caesar (b) Aequatus inter duos beneficiorum numerus mixtis utriusque mandatis discordia quaesita auctaque pravo certamine legatorum jus adolevit diuturnitate officii vel quia minoribus major mulandi cura 4. Hist that divided the Proconsulship of Africk betwixt the Proconsul and the Legate giving the latter the Legion for by parting the Office thus betwixt two without subordination their charge and points of Commission lying intermingled and running joyntly together bred and nourished discord and quarrel and through sinister emulation the Legat Valerius Festus who had command of the Legion murthered Piso the Proconsul of Africk So by the reason of that emulous hatred betwixt Vinius and Lucro c Galba knew not what Council to follow and was ruined Eighthly 8. Popularity Popular men are to be noted of what Principles they are and to which of the qualifications of the Factious Persons they are inclined or how many of Factious Ingredients are in their composition It is worth the Prince's care saith a great (d) Operae pretium est 〈◊〉 nere litium animos eâ—sque tanquam suspectos notare qui nimium populariter student â—i enim facile plebis animos quaquaversum torquent adrapiunt quodlib ertatis avidi praesentem Rempublicam contemnuaâ— Lipsius Polit. Praefat. Author to discover the inclinations of his Subjects especially those who over much affect popularity for their wheedles easily twine and hurry the common peoples minds whither they please despising the Government out of a greedy desire of liberty If these being covetous cannot be set upon some Collections of Taxes and Duties on the Subject which may be heavy upon them though laid on by Authority whereby they may be rendered ingrateful to the people who often bestow their ill will upon such or if they cannot be trapped in some escapes of their words or actions whereby fear of punishment may make them slacken their Sails lest they be over-set and cannot ride the storm Or if they
sought after as the Trumpets and Kettle-drums that call together the whole Array against the Government And if they cannot be dispossessed of that Evil Spirit by gentler means they are to undergo the severity of the Laws which are made against Incendiaries of a Kingdom which is of more dangerous consequence than the firing of a Private Man's Habitation The danger from these Libels are the greater because (g) In civitate discordi ob crebras Principum mutationes inter libertatem licentiam incerta parvae quoque res magnis motibus agebantur Tacit. 2. Hist in times of Faction and the often Changes of Government the People being unfixed fluctuating betwixt Liberty and Licentiousness small Matters are transacted with great Emotions As to Corporations they have all of them been endowed with their Privileges by the Grace and Bounty of the Sovereign from whence all Immunities and Honours do flow The first Institution of them was no doubt Concerning Corporations that Justice might be executed in them for the better governing their numerous Inhabitants that they might be the Places of Traffick where the adjacent Country might be supplied and their Neighbours might vend their Growth and Manufacture And thus being enriched by Commerce separated from their Country-Neighbours by Honours Offices and Liberties something a Gentiler Education might be expected there whereby they might be Patterns to their adjoyning Neighbours of good and vertuous Deportment being exempted from the Jurisdiction of the Justices of Peace and attendance upon Assizes whereby Legal Matters in order to the necessary Administration of Justice are executed in their Precincts by their own Members and many of them besides the Privileges to be found at large in the Statutes and Law-Books have power to chuse as many to represent them in Parliament as the whole County hath It would fill a large Volume to recount the particular Powers and Freedoms have been granted to them by the Royal Favour of the successive Kings of England whereby they are erected into little Commonwealths Therefore there is good reason as they may do much good or harm and they have all the enriching Streams and Conduits from the Sovereign Spring and Fountain so they should have a strict dependence upon the Sovereign that they may not employ those great Privileges against the Laws and Government nor the rich pragmatical Magistrates Citizens and Freemen animate Factions and Seditions against it or presume to obtrude their impertinent Advices upon their Sovereign or by their clamorous Petitions for Redress of pretended Grievances and Male-administration or by their Election of Factious Representatives dispose of the Fate of the Empire as they did in 1641. by their general Combinations with the then Parliament which they so effectually assisted in their Rebellion It is too manifest how little Justice the two last Kings could have in the great Metropolis the King 's Imperial Chamber or in other Corporations although they had all less or more received great Instances of their Royal Favours and Graces And tho' the great City by the late King of Immortal Memory 's Royal Munificence and Princely Care as much as in him lay by Act of Parliament and his own particular Bounty after it was so fatally reduced to Ashes was raised into one entire Palace so beautiful and splendid as all People must acknowledge it the Eighth Wonder yet the grateful Returns were unproportionable This great City enjoyed as ample and beneficial Privileges as any could wish for and though it be deprived of some of them yet by the Munificence of our late and present Sovereign it enjoys what is needful for its well governing in subordination to the Publick Since therefore the Corporations mostly were found to have made ill Returns to their Sovereigns for all their special Graces by a most wise Council it hath been judged fit to enquire by what Warrant they enjoyed those Privileges and to recall those Charters that new ones might be granted mostly with Additions of Privileges only that the Magistrates if they should abuse their Authority might be displaced at the King's Pleasure A most necessary Resumption of Power whereby they might not be in a capacity for the future to give any Disturbance to the Government Elsewhere I have given short Hints of the Practice of former Kings in vacating the Charters of the great City and shall only add what I find in the most Judicious Historian was done in a like Case by the Senate of Rome in Tiberius his Reign The Licence (h) Crebrescebat enim Graecas per urbes licentia atque impunitas asyla statuendi complebantur â—â—mpla pessimis servitiaâ—um eodem subsidio obaeraâ—i adversus creditores suspectique capitalium criminum receptabantur nec ullum satis validum Imperium erat coercendis seditionibus populi flagitia hominum ut Caeremonias Deum protâ—entes Igitur placitum ut mitterent civitates Jura atque Legauos c. Magnaque ejus diei species fuit quo Senatus majorum beneficia sociorum pâ—cta Regum etiam qui ante vim Romanam valuerant decreta Ipsorum numinum Religiones introspexit libero ut quondam quod firmaret mutareâ—ve Tacit. 3. Annal. and Impunities of ordaining Sanctuaries and Privileged Places encreased saith my Author throughout the Cities of Greece the Temples were filled with most lewd Bondslaves in the same were received Debtors against their Creditors and Men guilty of Capital Crimes were protected neither was there any powerful Authority able to bridle the Sedition of the People Villanies were protected no less than the Ceremonies of the Gods Therefore it was appointed That the Cities should send their Agents with their Laws Some by way of Resignation of their Charters freely remitted those things they had falsely usurped many did confide in the Antiquity of their Superstitions and their Deserts to the People of Rome The Pomp of that Day saith the Historian was great in shew In which the Senate for Tiberius had left the Senate a Shadow of their ancient Estate by sending the Requests of the Provinces to be examined by them considered of the Privileges granted by their Predecessors the Agreements with their Confederates the Decrees of the Kings before the Countries became subject to the Romans and the Religion of the Gods themselves to confirm or alter all By which it may appear to be no new thing for Sovereigns to enquire into the Privileges of Cities tho' claimed by Divine Original as many of those were from their Gods or by the Bounties of Princes As to Conventicles the Nurseries of Seditions since the Laws are obvious by which they may be suppressed and that in another Chapter I have treated of them I shall take no further notice of them here being as unwilling that truly consciencious mis led People that endanger not the Government should be severely punished as I heartily wish they would give no Disturbance to it CHAP. XLVI The Preservatives against Faction and Sedition THE general Amulets
Cowards as soon as Julius Civilis's Army could advance they were soon defeated and he ascribes the cause of it to the hasty choice of Men to supply the Legions Such new (f) Ignavissimus quisque in periculo minimum ausurus nimii verbis linguae feroces Id. 1. Histor Men make a glittering show at a Muster and will brag more than any of their Courage but they will sooner unsheath their Tongues than their Swords the Slothfullest and those that dare do least with their Hands being forwardest to boast of their Exploits (g) Pro Muraena Cicero comparing the Soldiery and the Gownmen gives Preference to the Military Sagum For he saith All the Lawyers Study Industry and Commendation of Pleading is owing to the safe-guard of Warlike Vertue the one consults for and defends his Client the other is exercised in the defence of the City and propagating the Limits of the Empire and the arts of the long Robe are silenced upon the very suspicion of Tumults Vegetius (h) Nihil neque sirmius neque felicius neque laudabilius est Republica in qua abundant milites Plurimum enim terroris armorum splendor importat 2. de Re Milit tells us That nothing is more firm more happy or more commendable than that Commonwealth which abounds with Soldiers the brightness of their Arms striking Terror into their Enemies whereas their rustiness tempts them to be assaulted as being unprepared and unprovided A standing Force proportionable to the occasion and no greater is as a Nursery to educate the growing Youth in Feats of Arms to inure them to Labour Watchfullness Discipline and Courage for few Princes live their whole time without some occasion of War either at home or abroad In this Kingdom the standing Force is not so great as to be oppressive or formidable to the People and the Militia being a Portion of the People themselves armed by the King's Authority can never be repined at by such as are Lovers of their King and Countries Safety To have them kept in good Discipline by training twice a Year more earefully and industriously would be for the safety and ornament of the Government Only it is requisite that great Care be taken that the Soldiery be not only skillfully trained but be exquisitely (i) St. Alban 's Essays obedient to their Prince and the Officers be well assur'd and of good repute not in the least inclinable to Faction and Sedition holding also good Correspondence with other great Men in the State for the most excellent Historian saith The (k) Fluxa militum sides periculum a singulis Faith of Soldiers is unstable and there wants not danger from them single much more if they should make any formidable Conjunction There are infinite Examples how the standing Armies have altered the Government as in the Roman Empire was most usual the Armies setting up one or other mostly after Nero's death so that we find scarce a Succession of three in many Ages As to a Prince's fortunateness A Prince's Fortunateness it is an happy thing and much for his Security that his Subjects have an Opinion of it or as we ought to speak that he is the care of Heaven and that Divine Providence is his Tutelar Therefore the great Orator (l) Ad amplitudinem gloriam ad res magnas gerendas divinitus adjuncta fortuna dormientibus dii omnia consiciunt in sinum iis de coelo victoria devolat Pro Leg. Manl. Sed â—e Nos facimus fortuna deam coeloque locamus saith That to greatness and Glory and the atchieving great things Fortune divinely sent is to be joined that even to them sleeping and waking the Deity is Beneficial and Victory from Heaven descends into their Lap. (m) Plut. de Fortuna Rom. Ancus Martius first built a Temple to Fortune in a mans habit and Tullus the King ascribed all his actions to the guidance of Fortune So Pliny (n) Lib. 36. c. 5. tells us The Image of good Fortune made by Praxitiles was kept in the Capitol By all which we may note how advantagious they thought good luck or fortune to be for the preservation of the Government and lest it should forsake them according to the opinion of that Age that the Deities lodged in the Statues as the Souls in the Bodies they chained the Image that it might not remove from them That is only reputed good Fortune among the common sort when Princes (o) Prosperis tuis rebus certaturi ad obsequium Fortunam adversâ—m omnes ex aequo detrect abunt Tacit. 2. Histor Lib. 1. Od. 35. affairs succeed well and according to their wishes and when they are so all strive to show obedience and when adverse fortune or evil things happen all do semblably withdraw their Service from their Prince It is of this Horace so elegantly writes under the name of Fortune Te Dacus asper â—e profugi Scythae Urbesque gentes Latium ferox Regumque matres Barbarorum Purpurei metuunt Tyranni To this fortunateness as near akin Of a Prince's Fame I subjoyn the fame and good reputation of a Prince It fans away the Pestilential air of Factions and Seditions keeps young even the old age of Princes So Tacitus (p) Magis sama quam vi stare res suas 6. Annal. saith of Tiberius when he grew old and was retired to Capraea to indulge himself and had contracted much hatred His affairs rather subsisted by fame than other force which if it were true of such a Prince how much more may it be advantagious to one that hath acquired a good fame upon the constant practices of laudable and Princely Actions Therefore the same great (q) Caeteris mortalium in eo stare consilia quid sibi conducere arbitrentur Principum diversam esse sortem quibus praecipuâ— rerum ad famam dirigenda 4. Annal. Historian saith That the Counsels of other Mortals consists in doing what they may judge conducible to their private Affairs but the lot of Princes is different for they must direct their principal actions to attain fame which must necessarily be that which is commendable and of value Yet there lies some difficulty in the make of the speaking Trumpet of a Prince's fame for sometimes it must be fitted to vulgar conception for they mostly misinterpret it as (r) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lib. 3. Thucydides well notes That modesty with them carries a shew of Idleness or Cowardise the circumspect and provident is reputed slothful and whatever is suddainly undertaken and hasty is counted vigorous and manly Therefore a Prince that expects a good fame and report must sometimes anticipate expectation in his proceedings and by surprise gain a repute of great sagacity and in some seasons and actions accommodate himself to the inclinations of his People and gratifie them in their desires So Queen Elizabeth got more money by remitting one Subsidy thereby gaining the
with the direst imprecations to the Scaffold It is the custom of the vulgar changeable on sudden occasions to be as prone to pity as they were immeasurable in Cruelty as the excellent (n) Est mos vulgo mutabili subita tam prono in misericordiam quam immodicum saevitia fueritâ— 1. Hist Historian observes in Cossus's appeasing the Souldiers who were enraged against the Helvetians It were indeed much better if the safety of the Government would suffer it to heal the vitious (o) Melius sanare vitiosas partes quam exsecare 2. ad Attic. Ep. 5. parts rather than cut them off but it 's a most certain Rule of the same (p) Omnis animadversio non ad ejus qui punit aliquem sed ad Reipublicae utilitatem referenda 2. de Offic. Orator That the sentencing of Criminals should not relate to him that punisheth but to the profit of the Commonweal that is not to be so ordered as the Prince should be judged to consult only his own Revenge or safety but the Peace Tranquillity and Prosperity of his People Therefore the excellent (q) Non tam ut ipsi percant quam ut alios a pereundo deterreant 1. de Ira. Seneca saith It becomes not Princes to chastise only that the guilty may perish but that others may be affrighted from perishing For it is a ferina rabies saith he to rejoice in Blood and Wounds Hence all good Princes unwillingly and with great torment to themselves inflict Capital Punishments nor is execution in most cases performed while the Prince's Wrath and Rage how just soever is upon him because that Mediocrity then cannot be observed which ought to be betwixt much and little therefore all Punishments are most kindly that are more patrio lest that Sarcasm of (r) Qui puniendi causam habent modum non habent 2. de Clem. Seneca be verified Though the cause of punishment be great yet a Mean or Measure is not observed So Tacitus instructs us That though it be against the guilty and such as deserve to be extream examples yet a Prince should have mercy not so much for the profit of the Republick but that multitudes should not be consumed for the cruelty of one as the People in an overglutting revenge will be apt to censure Therefore caution should be used that the punishment be not overspreading as to Heads of many Families lest if they be illustrious and of great Interest the Prince attract more Enemies and as the Latin Philosopher (s) Parentes liberique eorum qui interfecti sunt prepinqui amiâ—i in locum singulorum succedunt 2. de Clementia saith The Parents Children Kinsmen and Friends of the slain succeed in their places to meditate revenge if there be any hopes of success by it Such an Hydra especially is despairing Rebellion Yea though in China Japan and other of the Eastern Countries whole Families are commonly extirpated for the crime of one yet no Civilised Nations imitate it no not when Rebellion proves most formidable If an illustrious Person be in Conspiracy to whom a Prince and his Subjects have been oblig'd if it may safely be done the punishment may be (t) Poenam si tuto poteris donabis sin mâ—nus temp rabis 〈…〉 Clem. attempered if the Crime cannot be pardoned So Livia told Augustus That the Criminal being secured cannot hurt but in his Pardon the Prince might augment his Fame as King James the First did to the Lord Colhaâ— and his Companions when he concealed the discovery of their Pardon till the Prisoners were upon the Scaffold and expected nothing but the last stroke of the terrible Axe As Physicians in Blood-letting and purging if in so great a Theme so low an example may be used with the bad humours must necessarily evacuate some of the good So in Conspiracies and Rebellions some may not be so maliciously inclined in their own natures but by their popular (u) Facile studia vulgi ad se trabunt vel inviti temper or easiness to be seduced be caressed to be partakers in some pretended reformations the black Arts and Designs being hid from them and so be made properties If therefore the Prince can be secured that either in their own natures they are not prone to Rebellion or while they are alive they can never expect to head parties again Banishment may be sufficient punishment for them So when in Nero's (w) Vt consuleret sibi turbis seque prave defamâ—tibus subtraberet Esse illi per Asiam agros in quibus tuta inturbida juventa frueretur Tacit. 14. Annal. time upon the appearing of a Comet it was bruited that it portended the change of a King and Râ—belliâ—us Plautus was celebrated as the Person Nero writ Letters to Plautus That he should consult his own good and withdraw himself from the Rabbles defaming of him to his prejudice and having Possessions in Asia he might enjoy his blooming Years undisturbed and in safety Which was most humanly done for by that he spared Plautus and yet provided for the quiet of the Commonwealth But as the merciful temper of a Prince in some cases is most Christian and Prudent so in others too much Clemency may encourage Sedition and consequently Treason For as the Orator (x) Maxima illecebra peccandi impunitatis spes Pro Milone saith The hopes of escaping punishment is the greatest allurement to do evil a wicked Subject fearing that Prince (y) Apud quem conditum imo constrictum est ferrum Seneca little who wears a Padlock on his Sword There are few that eschew evil for the Turpitude of it but for the fear of punishment therefore in such dangerous matters as Conspiracies and Rebellion the edge of the Prince's Sword is always to be sharp and the Council of Tiberius (z) Corruptus simul corruptor aeger flagrans animus haud lenioribus remediis restinguendus est quam libidinibus ardescit 3. Annal. in his Epistle to the Senate is to be followed That the corrupt and the corruptor the sick and burning Soul is scarce to be quenched with milder remedies than such as bear proportion to the lusts it burns with of what kind soever it be The punishment of a few wicked Persons restrains the malevolent effects of many as Cicero (a) Vnius improbi supplicio muliorum improbitates coercere 3. in Verrem notes Nor saith (b) Neque aliud gliscentis discordiae remedium quam si unus alterve maxime prompti subverterentur Tacit. 4. Annal. Tacitus is there any other remedy of glowing Discord than that one or other of the most forward be orewhelmed and examplary Justice be executed upon them Though the Gangreen begin but in in a Toe or Finger yet it may require Amputation lest a Leg or an Arm be in danger so the skillful Gardiner prunes his cankered Branches more speedily than the luxuriant By punishing the Advisers Fomenters
and Actors of horrid things as purging Sacrifice (c) Rerum atroâ—ium ministros veluti placulares publici odii of publick Hatred atonement is made to publick Justice and the less crimmal have the greater Obligations to dutiful Repentance for the Punishment of such Ring-leaders and Coryphaei is not so much the revenge of the Prince as of the Commonwealth Otherwise the Prince by (d) Ne sanguinem nostram largeas dum Pâ—aucis sceleratis parcis bonos omnes proditum eas Sallust in Catilinam sparing a few Wretches will be Prodigal of his better Subjects Blood which those Criminals would as soon as they had obtained Power more profusely shed Therefore it becomes all good Subjects to bestir themselves for the safety of the Prince to hasten saith (e) Tanquam ad clarum beneficum sidus certatim advolare objicere pro illo mucronibus insidiatorum pâ—ratissâ—mi De Clem. lib. 1. c. 3. Seneca to his Standard esteeming him as a luminous and beneficial Constellation and most ready for his safety to expose themselves betwixt the Traytors unsheathed Swords and his Royal Person I cannot more emphatically express the clemency of our Princes and their Laws against Treason or better discover the Limits and Bounds of Punishments and the desire that our Princes have had That none should fall under the guilt of Treason than by reciting the Preambles to the Statutes made in King Edward the Sixth's and Queen Marys time concerning Treasons The words of the Statute of King Edward (f) 10 Ed. 6. c. 12. the Sixth are Nothing being more Godly more sure move to be wished and desired betwixt a Prince the Supream Head and Ruler and the Subjects whose Governour and Head he is than on the Prince's Part great Clemency and Indulgence and rather too much forgiveness and remissness of his Royal Power and just Punishment than exact Severity and Justice to be showed and on the Subjects part That they should obey rather for love than for fear of his strait and severe Laws yet such Events sometimes happen in the Commonwealth that it is necessary and expedient for the repressing of the Insolence and unruliness of Men and foreseeing and providing Remedies against Rebellion Insurrection or such mischiefs that sharper Laws and an harder Bridle should be made to stay those Men that might else be occasion cause and Authors of farther Inconvenience That as in Tempest or Winter a coarse Garment is convenient in calm or warm Weather a more liberal race or lighter Garment both may and ought to be followed and used So that sometimes there have been occasion at divers Parliaments to make and enact certain Laws and Statutes which might seem and appear to Men of exteriour Realms and the Subject very strait sore extream and terrible although they were then when they were made not without great Consideration and Policy moved and established and for the times to the avoidance of further inconvenience very expedient and necessary and when Princes are more indulgent it is to provoke the Subject with Clemency shewed on the Prince's behalf to more love and kindness to him and upon Trust they will not abuse the same but rather be encouraged thereby more faithfully and with more diligence to serve him c. In the Statute of Queen Mary (g) 1 Mar. c. 8. of the repeal of certain Treasons Felonies and Praemuniâ—e's wherein she reduceth all to 25 Ed. 3. the words are Forasmuch as the State of every King Ruler and Governour of every Realm Dominion or Commonweal standeth and consisteth more assured by the love and favour of the Subject towards their Sovereign Ruler and Governour than in Dread and Fear of Laws made with rigorous Pains and extream Punishment for not obeying of their Sovereign Ruler and Governour and Laws also justly made for the Preservation of the Commonweal without extream Penalty or Punishment are more often for the most part obeyed and kept than Laws and Statutes made with great and extreme Punishment c. Therefore some are repealed By these the Clemency of the Princes is discovered and the reason of enacting severe Laws in such Cases in Terrorem is cleared I must refer all other Discourses of the Laws against Treason to the Learned Books writ on that Subject and only note what a (h) Transcendent and multiplied Rebellion p. 25. See Sir Tho. Wyat's Speech at his Execution in Hollingshead well worth perusing by all concerned grave Author saith That if we peruse all our Books Records and Histories we shall find it a Principle in Law a Rule in Reason and truth in Experience That Treason doth ever produce fatal and final Destruction to the offenders and never attains the desired End although infinite mischiefs are effected by it For Conspirators and Traytors one way or other have generally come to condign Punishment If what I have hitherto laid down work any good Effect upon the Subjects in general to keep them in their Duty to their Sovereign and his Laws or have afforded them such Rules for Obedience or dehortments from Faction Sedition Conspiracies and Rebellion as I wish I have attained the end for which I write which is only to satisfie all sorts of Subjects how excellently composed the Government is that our Kings cannot or have any Interest to rule Arbitrarily Therefore it will be the duty advantage and true Interest of all Subjects so to comport themselves to the Government as to consider the excellent Foundations upon which it is built that neither by the Cunning of unquiet Spirits the pretenders of Reformation of abuses the ambition of the aspirers nor especially by the plausible Charms of the Republicans they be ever induced to disquiet the Government or rebel against it lest in conclusion they bring upon themselves and Posterity such a Slavery as we had too bloody an Example of in the late Calamitous times and that above all things they consider that excellent Saying of the best of (i) Quippe in turbâ— discordias pessimo cuique plurima vis pax quies bonis Artibus indigent 4. Hist initio Historians That to stir up Dissentions and troubles the worst Men commonly have the greatest Influence but Peace and quietness are not established but by Men of rare gifts and excellent Vertue FINIS THE Author being at great distance from the Press and sending up his Coppy by Parcels which by reason of his Imployment in his Profession he was constrained sometimes to commit to the Care of others The following Chapter was not sent up till most of the Treatise was Printed Therefore he chuseth rather to place it at the end than to disturb the order of the Pages and desires the Candid Reader will peruse it next immediately after the 15th Chapter it being designed to have preceded the 16th Chapter of The King's Soveraignty CHAP. XVI Of the Benefit and Excellency of Hereditary Monarchy THE (a) Arist Pol. l. 3. c. 10. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉
Presence and Bounty puts an end to them Therefore as a grave (f) Nalson's Common Interest p. 118. Author observes He that hath not deposed Reason the King of his Soul and elected in its place Prejudice and Passion to govern there or dare credit the universal Experience of the World must be convinced of the great necessary and desperate Inconveniences of a long Interregnum and elective Monarchy and that a lineal Succession is the best Barrier against assaults from abroad and is that sacred perpetual vital Energy which preserves Government from internal Putrifaction and secures us from one most dangerous Inconvenience of having another Family to provide for Therefore the (g) 10. Annal. Excellent Historian most wisely observes That Minoris est discriminis Principem nasci quam sumi That Subjects more naturally submit to an undoubted unquestionable Title when the Government descends in the same manner as other Inheritances with due respect to the singleness of Sovereignty than to new Princes the worth of whom and their Families are untried This leads me to consider that this right of Succession flows from the Law of (h) Right of Succession p. 149. Nature is founded on the Law of God and Nations First That is accounted to flow from the Law of Nature Hereditary Succession agreeable to the Law of Nature which every Man finds grafted in his own Heart and which is obeyed without any other Law and for which Men neither seek nor can give any other distinct reason all which holds in this case For who doubts when he hears of an hereditary Monarchy but that the next in Blood must succeed and for which we need no positive Law nor does any Man enquire for a further Reason being satisfied therein by the Principles of his own Heart From this ground it is that though a remoter Kinsman did possess as Heir he could by no length of time prescribe a valid right because no man as Lawyers conclude can prescribe a right against the Law of Nature therefore the Law (i) Cum ratio naturalis ff de bonis damnati saith Cum ratio naturalis quasi lex quaedam tacita liberis parentum haereditatem adjecerit veluti ad debitam successionem eos vocando propter quod suorum haeredum nomen eis indultum est adeo ut ne a parentibus quidem ab ea Successione amoveri possint So in the (k) Matth. 21. Parable the Husbandman who is presumed to understand nothing but the Law of Nature is brought in saying This is the Heir let us kill him and seize on his Inheritance So the (l) Et Sect. emancipati Institut de Haered quae ab Intestato Law further saith Praetor naturalem aequitatem sequutus iis etiam bonorum possessionem contra 12 Tabularum leges contra jus civile permittit By which it is apparent that this right of Nature was stronger than the Laws of the twelve Tables though these were the most ancient and chief Statutes of Rome This holds also in the Collateral Succession of Brothers and others according to that (m) L. hac parte ff unde cognati Hac parte Proconsul naturali aequitate motus omnibus cognatis permittit bonorum possessionem quos sanguinis ratio vocat ad haereditatem For those who are now Brothers to a present Prince have been Sons to the former therefore as St. Paul says If a Son then an Heir except he be secluded by the Existence and Succession of an elder Brother Secondly Agreeable to the law of God That the Law of God gives right of Succession to proximity of Blood is manifest in that if a Man hath no (n) Numb 27. v. 9 10. Son or Daughter his Inheritance shall descend upon his Brother and so God determines in the case of (o) Numb 36. Zelophead's Daughters and so (p) 2 Chron. 22.1 Ahaziah was made King though the youngest in his Fathers stead because says the Text The Arabians had slain all the eldest which clearly shews That by Gods Law he could not have succeeded if the eldest had been alive So we see the birth-right was owned in Esau but that he sold it the priviledge of which is there fully discovered not only in discovering the right of Primogeniture but likewise in the Donation of Parents to their Children that Blessing being like the last Will and Testament Thirdly Agreeable to the Law of Nations As to the Law of Nations it might be made clear by the recital of all the Laws of Kingdoms that are Hereditary and not Elective That degrees of Succession were exactly observed according to that of (q) De Repub. lib. 6. c. 5. Bodin Ordo non tantum naturae divinae legis sed omnium ubique gentium hoc postulat So Pope (r) In c. grand de supplenda neglig Pralat Innocent In regnis haereditariis caveri non potest ne filius aut frater succedat and so in all Histories of Hereditary Monarchies we find it where Potent Usurpation hath not obstructed the free current or by some violent means derived it into another Channel If Successions of so great importance had not been fixed by immutable Laws of God and Nature the various and inconstant inclinations of present Governors saith a very (s) Jus Regium p. 158. Judicious Author had made the Nations whom they governed very unhappy If they yielding to the importunities of Mothers or Stepmothers or clouded by the Jealousie of Flatterers or Favourites or upon some unaccountable aversion should place the Crown upon what Head they pleased Therefore God did very justly and wisely settle this Succession that both King and People might know That it is by him that Kings Reign and Kingdoms are secured in Peace against Factions To come more particularly to our own Country The Monarchy of great Britain and Ireland The British Monarchy Hereditary is undoubtedly as firmly established hereditarily in his Majesties Blood and Family as it is in any Monarch's in Europe A late French (t) Of the States and their Powers p. 68. Author speaking of the Succession of the Crown of France saith That the Election of the Kingdom is not of one Person only but of the blood and operates so far as there is life in that blood The blood being chosen with the Prerogative of Primogeniture So that when one Person of the blood is dead the Power by the same Prerogative being transferred to the blood remains and rests in the blood still living and in him of the blood who succeeds by that Prerogative and in none else The Majesty Royal saith a (u) Majestas Intemerata profound Lawyer and Antiquary upon the murther of King Charles the First expired not nor was left adhering to the bloody Axe or Block It wandred not like Adrian's Ghost nor hovered in an Airy abstraction For the King or rather the Kings line saith another (w) Finch p. 83. great Lawyer is
Parliament of England knew they had no Power to make such an Act and we may conclude That such Politick and Temporary provisions find no approbation either by the Laws or succeeding ages who in all such cases judge more impartially therefore it is much more honourable for the Legislative Power to found their Laws upon Justice and Right rather than upon the humours and Interests of those who desire but the shadow of a Law to countenance their designs It must be owned that King Edward the Second was deposed The Injustice in deposing Kings for making use of Gaveston and the Spencers But how illegally all succeeding ages have acknowledged and it rather shews how extravagant the People and their Representatives are in their humors than how just their Powers are For by the same parity of Reason the horrid Murther of the blessed Martyr or the Murther of Edward the Second may be justified as his deposing may be and the like may be said of King Richard the Second against whom the Fourteenth Article was that he refused to allow the Laws made in Parliament which had been in effect to consent that the two Houses should have been the Soveraign and that he had transferred the Royal Power on them Whoever desires further satisfaction may consult Arnisaeus in that Treatise Quod nulla ex causa subditis fas sit contra legitimum Principem arma sumere Whereas Richard Duke of York in Henry the Sixth's time after he had been declared Heir Apparent was by another Act of Parliament declared uncapable of Succession all that can be inferred from it is When Acts of Parliament to be less esteemed That Acts of Parliament when they are bottomed upon private affections to Parties in times of Faction and civil War are not to be looked upon with that veneration as when they regularly pass in times that are calm when no potent Persons oppress Justice or usurping Powers hinder faithful Judges from expounding the Laws soundly Therefore we find in the claim of the said Duke of York that it is more consentaneously to Law expressed That no Act taketh place or is of force against him that is right inheritor of the Crown as accordeth saith the Record with Gods Laws and all natural Laws and we may observe that though there was a Succession of three Kings of the House of Lancaster who had usurped the Crown for Sixty Years yet all our Historians and the Laws call those Kings de facto and not de jure Such a true sence of just and right the uninterested Ages have had of that Usurpation ever since although there were Acts of Parliament carefully penned to corroborate â—he Title of the house of Lancaster during that time and all ways and means used to have established that Line yet by vertue of the Right of Lineal Succession Edward the Fourth Son to the said Duke of York came to be owned lawful King of England though the Right of his Family had been interrupted ever since Henry the Fourth usurped the Crown which might have been a sufficient document to all Ages not to have attempted any sort of praeterition of the Right Heir Yet we find that unsuccessful attempts were made by H. 8. contrary to the fundamentals of Succession which when rightly considered I hope will convince all of how little validity even such Acts are to be reputed Therefore because these have been made use of for Precedents I shall speak a little more fully to them In the 25 of H. 8. (f) Cap. 22. the Marriage with Queen Katherine is made void Concerning the several Entailings of the Crown by King Henry the Eighth and that with Queen Anne's declared good and an Entail made on the Issue Male or Female and the Penalty for hurting the Kings Person disturbing his Title to the Crown or slandering the present Marriage is judged High Treason and Anno 26. (g) Cap. 2. a strict Oath is injoyned to observe the Succession there appointed But 28 H. 8. (h) Cap. 7. it is declared that the former Act was made upon a pure perfect and clear foundation thinking the Marriage then had between his Majesty and the Lady Anne they are the words of the Act in their Consciences to have been pure sincere and perfect and good c. till now of late that it appeareth that the said Marriage was never good or consonant to the Laws but utterly void and of none effect and so both the Marriage with the Princess Katherine and the Lady Anne are declared void and their Issue made illegitimate and the perils are enumerated that might ensue to the Realm for want of a declared lawful Successor to the Crown and the Act impowers the King if he dye without Issue of his body that he may limit the Crown to any by his Letters Patents or his last Will in Writing and it is declared Treason to declare either of the Marriages to be good or to call the Lady Mary or Lady Elizabeth Legitimate and the former Oath is made void and this may be judged to be procured when he resolved to settle the Crown on Henry Fitz Roy Duke of Richmond his natural Son But after the Birth of Prince Edward 38 H. 8. (i) Cap. 1. another alteration is made whereby the Crown is entailed on Prince Edward and for want of his Issue on the Lady Mary and for want of her Issue on the Lady Elizabeth and for want of Issue of the King or them then the King is impowered by his Letters Patents or last Will to dispose of the Crown at his free will It is therefore to be considered that in such a juncture of affairs when the legality of the Kings Marriages were so disputable by reason that two of the legal Successors upon niceties not of nature but of the Popes 〈◊〉 for Divorcing were declared Bastards there was some â—eason (k) 25 H. 8. c. 22. that the Act should express that the Ambiguity of several Titles pretended to the Crown then not perfectly declared but that men might expound them to every ones sinister affection and sence contrary to the right legality of Succession and Posterity of the lawful Kings and Emperours of the Realm hath been the cause of that great effusion and destruction of mens blood and the like cause will produce the like effect as the words are Upon such grounds it was very plausible to declare by Act of Parliament the Succession But this does not prove that where the Right of nature is clear that the Parliament may invert the same and they teach us how dangerous it is to leave Parliaments to the Impression of Kings when it is too obvious the first of these Laws was made to gratifie the Kings affection to Queen Anne in the case of naming a Successor as it is also to expose Kings to the Arbitrariness of Parliaments And we may well infer H. 8. taking such care by his Parliaments to legitimate and illegitimate his
without citing or hearing them For if they had such Power we should be the greatest Slaves and live under the most arbitrary Government imaginable Therefore an absolute Prince cannot in an Hereditary Kingdom where the Successor is to succeed Jure Regni (z) Nulla clausula Successori Jus auferri potest modo succedat ille Jure Regni Aristaeus c. 7. num 5. prejudge the Successors right of Succession for the same right the present King hath to the Possession the next of Blood hath to the Succession Therefore Hottoman Lib. 2. de Regno Galliae affirms That ea quae Jure Regni primogenito competunt ne Testamento quidem Patris adimi possunt That in the absolute Monarchy of France The Father cannot by his last Will deprive the First-born of those things which belong to him by Royal right So when the King of France designed to break the Salique Law of Succession as in the Reign of Charles the Fifth it was found impracticable by the three States So when Pyrrhus would have preferred his younger Son to the Crown (a) Pausanias lib. 1. the Epirots following the Law of Nations and then own refused him So Anno 1649. when Amurat the Grand Signior left the Empire to Han the Tartarian passing his Brother Ibrahim the whole Officers of State did unanimously cancel the Testament and restored Ibrahim the true Heir though no other than a Fool. So if Kings could have inverted their Succession Saint Lewis had preferred his own Third Son to Lewis his Eldest and Alphonsus King of Leon in Spain had preferred his Daughter to Ferdinand his Eldest Son and Edward the Sixth of England had preferred and did actually prefer the Lady Jane Grey to his Sisters Mary and Elizabeth Thirdly It is undeniable in the opinion of all Lawyers That a King cannot in Law alienate his Crown but that the Deed is void nor can he in Law consent to an Act of Parliament declaring that he should be the last King For if such consents and Acts (b) Jus Regium p. 163. had been sufficient to bind Successors then weak Kings by their own simplicity and gentle Kings by the Rebellion of their Subjects or being wrought upon by the importunity of their Wives or Concubines or the mis-representation of Favourites might do great mischiefs to their People in raising up continual Factions of the miseries of which I shall speak hereafter This is owned in Subjects That the Honour and Nobility that is bestowed upon a man and his Heirs doth so necessarily descend upon those Heirs that the Father or Predecessor cannot exclude the Successor or derogate from his Right by renouncing resigning following base or mean Trades or such like For Fab. Cod. 9. tiâ— 28. say the Lawyers since he derives his Right from his old Progenitors and owes it not to his Father his Fathers Deed should not prejudge him so much more in Kings the ill consequences of such violations of Justice and Right being infinitely more destructive the Predecessor should not do any Act to prejudice his Successor For that right of blood which makes the Eldest First makes the other Second and all the Statutes that acknowledge the present Kings Prerogative acknowledge that they belong to him and his Heirs For as a Prince cannot even ex plenitudine potestatis legitimate a Bastard in prejudice of former Children though they have only but an hope of Succession much less can he bastardize or disinherit the Right Heir who is so made by God and honoured from him with the Character If therefore Kings how absolute soever cannot de jure invert the natural order of Succession there is no reason that the States of Parliament should have such a Power For by the known Laws they have no Legislative Power otherwise than by assenting to what the King does and all that their assent could do would be no more than that they and their Successors should not oppose his nomination because of their consent but that can never amount to a Power of transferring For if the States of Parliament had this Power originally in themselves to bestow why might they not reserve it for themselves and so perpetuate the Government in their own hands So Judge Jenkin asserts according to Law That no King can be named or in any time made in this Kingdom (d) Liberty of Subject p. 25. by the People Kings being before there were Parliaments and there is good reason for then the Monarchy should not be Hereditary but Elective the very Essence of Hereditary Monarchy consisting in the Right of Succession whereas if the Parliament can prefer the next save one they may prefer the last of all the Line and the same reason by which they can chuse a Successor which can only be that they have Power above him should likewise in the opinion of a very (e) Jus Regium p. 167. learned Person justify their deposing of Kings as we saw in the last Age that such reasons as of late have been urged to incapacitate the Children of King Charles the First from the hope of Succession viz. Popery and Arbitrary Government did embolden men to dethrone and murther the Father who was actual King For if it were once yielded that the Houses had a Right in themselves to take care for the Salus populi that none but such Princes should succeed who were approved of by the prevailing Faction in their body nothing but confusion would follow one Party having their Votes seconded by force one time and a quite contrary another yet all pretending the Publick Weal and so a large breach should be made by pretending to stop one dangerous Successor to the inflowing of successive Usurpers and thereby the Crown should not only by ambulatory but unstable upon every head that wore it and alwaies in danger of a bloody surprise till at last the Regalia being secured from the expectant Heir the Factious would find a way to pillage them from the present Soveraign and convert them into a Mace for an House of Commons I writ this Part with greater Enlargements in answer to the plausiblest Arguments for the Bill of Seclusion while that matter was in the hottest agitation But since there will be no need of dilating upon that Subject now that God Almighty hath so signally determined the Controversie by the peaceable settlement of his Majesty upon his Throne I shall close this Chapter with some few remarks of the miseries have been brought upon Kingdoms and especially upon this by the disjoynting the Succession So we read what dreadful (f) Jus Regium p. 166. mischiefs arose from Pelops preferring his younger Son to the Kingdom of Mycene The Miseries which Kingdoms have sustained where the Succession hath been interrupted from Oedipus commanding that Polynices his Youngest Son should reign interchangeably with the Eldest From Parisatis the Queen of Persia's preferring her Youngest Son Cyrus to her Eldest Artaxerxes From Aristodomus admitting
his two Sons Proclus and Euristhenes to an equal share in the Lacedemonian Throne The like observations are to be made in the Succession of Ptolomaeus Lagus and Ptolomaeus Phisco In the Sons of Severus in the Succession of Sinesandus who killed his brother Suintill rightful Heir of Spain and that of Sforza and Francis Duke of Milain and thousands more in all which either the Usurpers or the Kingdoms that obeyed them perished utterly or were brought to great ruine In Britain the whole nation of the Picts were extirpated by the endeavour of that People to hinder Keneth Son of Alpinus from possessing the Kingdom as right Heir of Fergusiana Sister of Mordred their King In England the Usurpation of Harold upon the Right of Edgar opened the passage to William the Conqueror The Usurpations of William Rufus and Henry the First upon their Brother Robert and of King Stephen upon the Empress Maud were accompanied with great effusion of Blood So that a great part of the ancient Norman Nobility both such as resided there or were transplanted hither were slain or grievously harassed The Usurpation of King John upon his Nephew Arthur caused great disquiets during his Reign and the effects lasted a great while after The removal of King Richard the Second by Henry the Fourth occasioned those lasting Wars and most miserable devastations betwixt the Houses of York and Lancaster during which Usurpation before the Crown was setled upon Edward the Fourth Historians reckon no less than seventeen pitched Battels and eight Kings and Princes of the Blood slain and put to death and that forty six Dukes and Earls besides innumerable Barons and Gentlemen and above 200000. common People were slain and destroyed in the space of Sixty Years To which we may add the cruel death of Edward the Fifth and his Brother by their bloody Unckle and his own miserable end and the calamitous fall of the Lady Jane Grey and her Noble Relations All which Princes although for the supporting their unjust Claims Invasions and Usurpations of the Crown they procured Parliamentary concurrence and popular Establishments yet after so great effusion of blood could not in reality transfer the Right from the next Heir of the blood but at last all centred again in the Right Heir ERRATA PAge 7. line 31. for Babarous read Barbarous for und r. and l. 24 for wins r. wires p. 13. l. 6. for Resumption r. Presumption p. 17. l. 5. for who r. where p. 44. l. 45. for removeable r. removal p. 47. l. 27. for purity r. parity p. 63. l. 26. for Herds r. Hords p. 81. l. 18. for third r. fifth p. 83. l. 46. for than r. not p. 92. marg l. 5. for mediocrita r. mediocriter and below for ad Clement r. ad Cluentem p. 133. l. 48. after before r. l. p. 141. l. 36. dele That p. 150. l. 28. for Peace r. Grace p. 152. l. 27. for 68. r. 6. E. 1. p. 160. l. 43. for Sarson r. Sarron p. 162. l. 12. for Fenix r. Ferrix l. 48. after rewards add he p. 167. l. 18. after find add 4 p. 176. l. 5. for implied r. imployed l. 32. for Frameae r. Framiae p. 180. l. 46. for Wargild r. Weregild p. 181. l. 10. for many r. money p. 194. marg l. 17. for King Edward's r. King Edmund's p. 197. l. 41. for Northrigena r. Northwigena p. 199. l. 19. for Markesus r. Markerus p. 216. l. 11. for Silvanset r. Silvanect p. 222. l. 36. for Aubert r. Hubert p. 245. l. 18. for Bochan r. Boetian p. 266. l. 3. for whereas r. where l. 18. for Mauleveren r. Mauleverer p. 291. l. 36. for Hull r. Hall p. 321. l. 13. dele having p. 335. l. 12. for Privileges r. Prerogatives p. 341. l. 8. for Salteyn r. Salveyn p. 376. l. 33. for dies twice r. diu p. 380. l. 24. for ele r. aelc and in marg for vpp r. App. p. 387. l. 6. for lye r. tye p. 389. l. 5. after finishing add a Period l. 7. for almost r. all most l. 13. for Bretan r. â—â—â—â—an l. 14. for sorda r eorda p. 400. l. 28. for albe r. able p. 419. l. 2. for Hisparians r. Hipparians l. 3. for Cleotimac r. Cleotimas l. 17. for Peleponensian r. Peleponesian and for Ob r. Obe p. 427. for Fifthly Sixthly and Seventhly r. Fourthly Fifthly Sixthly p. 430. l. 13. for keep r. help p. 437. l. 24. for hopes r. hops p. 446. l. 37. for end r. and. p. 452. l. 31. for Fung r. Fangs p. 459. l. 1. for Brats r. Brutâ— p. 461. l. 7. for Colbar r. Cobbam l. 25. for Rebellious r. Rubellius p. 462. l. 43. for rare r. race p. 467. l. 28. for Praeter r. Praetor p. 468. l. 1. for discovered r. described p. 469. l. 11. for milder r. middle A Catalogue of Books Printed for and Sold by Robert Clavel at the Peacock in St. Paul's Church-yard Books in Folio A Companion to the Temple or a Help to Devotion in the Use of the Common Prayer divided into Four Parts 1. Of Morning and Evening Prayer 2. Of the Litany with the Occasional Prayers and Thanksgivings 3. Of the Communion-Office with the Offices of Baptism Catechism and Confirmation 4. Of the Occasional Offices viz. Matrimony Visitation of the Sick c. The whole being carefully corrected and now put into one Volume By Thomas Comber D. D. Praecentor of York A Practical and Polemical Commentary or Exposition upon the Third and Fourth Chapters of the latter Epistle of St. Paul to Timothy By Thomas Hall B. D. A Course of Divinity or An Introduction to the Knowledge of the True Catholick Religion especially as professed by the Church of England In Two Parts The one containing the Doctrine of Faith the other the Form of Worship By Matthew Scrivener Etymologicon Linguae Anglicanae seu Explicatio Vocum Anglicarum Etymologica ex propriis Fontibus scil ex Linguis duodecim Anglo-Saxonica seu Anglica prisca notata A. S. Runica Gothica Cimbrica seu Danica antiqua notata Run Dan. Franco-Theotisca seu Teutonica vetere notata Fr. Th. Danica recentiori notata Dan. rec Belgica notata Belg. Teutonica recentiori notata Teut. Cambro-Britannica notata C. Br. Franco-Gallica notata Fr. Italica notata It. Hispanica notata Hisp Latina notata Lat. Graeca notata Gr. Authore Stephano Skinner M.D. The Voyages and Travels of the Ambassadors sent by Frederick Duke of Holstein to the Great Duke of Muscovy and the King of Persia begun in the Year 1633. and finished in 1639. Containing a compleat History of Muscovy Tartary Persia and other adjacent Countries with several Publick Transactions reaching near the present Times In Seven Books Whereto are added the Travels of John Albert de Manstelslo a Gentleman belonging to the Ambassie from Persia into the East-Indies containing a particular Description of Indosthan the Mogull's Empire the Oriental Islands Japan China and the Revolutions which hapned in those Countries within these
few Years In Three Books The Whole illustrated with divers accurate Maps and Figures Written originally in Italian by Adam Oliarias Secretary to the Embassie Rendred into English by John Davies of Kidwelly The Second Impression The History of the Execrable Irish Rebellion trac'd from many preceding Acts to the Grand Eruption October 23. 1641. and thence pursued to the Act to Settlement in 1662. The Journals of all the Parliaments during the Reign of Queen Elizabeth both of the House of Lords and House of Commons Collected by Sir Simon D' Ewes of Stow-Hall in the County of Suffolk Knight and Baronet Revised and published by Paul Bowes Esq of the Middle Temple I Ragguagli di Parnasso or Advertisements from Parnassus in Two Centuries With the Politick Touchstone Written originally in Italian by that Famous Roman Traâ—ano Bocalini And now put into English by the Right Honourable Henry Earl of Monmouth Cosmography and Geography In Two Parts The First containing the general and absolute Part of Cosmography being a Translation from that eminent and much-esteemed Geographer Varenius wherein are at large handled all such Arts as are necessary to be understood for the true knowledge thereof To which is added the much wanted Schemes omitted by the Author The Second Part being a Geographical Description of the World taken from the Notes and Works of the Famous Monsieur Sanson late Geographer to the French King To which is added about One hundred Cosmographical Geographical and Hydrographical Tables of several Kingdoms and Isles in the World with their Chief Cities Sea-Ports Bays c. Drawn from the Maps of the said Sanson Illustrated with Maps The Annals of King James and King Charles the First of ever Happy Memory containing a faithful History and impartial Account of the Great Affairs of State and Transactions of Parliaments in England from the Tenth Year of King James 1612. to the Eighteenth of King Charles 1642. Wherein several material Passages relating to the late Civil Wars omitted in former Histories are made known A perfect Copy of all the Summons of the Nobility to the Great Councils and Parliaments of this Realm from the Forty ninth of King Henry the Third until these present Times With Catalogues of such Noblemen as have been summoned to Parliament in Right of their Wives and of such other Noblemen as derive their Titles of Honour from the Heirs Female from whom they are descended and of such Noblemens Eldest Sons as have been summoned to Parliament by some of their Fathers Titles Extracted from Publick Records by Sir William Dugdale Knight Garter Principal King at Arms. The History of the Affairs of Europe in this present Age but more particularly of the Republick of Venice Written in Italian by Baptista Nani Cavalier and Procurator of St. Mark Englished by Sir Robert Honywood Knight The History of Barbadoes St. Christophers Mevis St. Vincents Antego Martinico Monserrat and the rest of the Caribby-Islands in all Twenty eight In Two Books The First containing the Natural the Second the Moral History of those Islands Illustrated with several Pieces of Sculpture representing the most considerable Rarities therein described The Works of the Famous Nicolas Machiavell Citizen and Secretary of Florence Written originally in Italian and now faithfully translated into English A Compleat Treatise of Preternatural Tumors both General and Particular as they appear in Humane Bodies from Head to Foot To which also are added many excellent and Modern Historical Observations concluding most Chapters in the whole 〈…〉 Discourse The Present State of the Ottoman Empire from the Year 1623. to the Year 1677. Containing the Reigns of the Three last Emperors viz. Sultan Morat or Amurat the Fourth Sultan Ibrahim and Sultan Mahomet the Fourth his Son the Thirteenth Emperor By Sir Paul Ricaut late Consul at Smyrna The History of the Cardinals of the Roman Church from the time of their first Creation to the Election of Pope Clement the Ninth With a full Account of his Conclaves In three Parts Written in Italian by the Author of the Nepotismo di Roma The World Surveyed or The Famous Voyages and Travels of Vincent le Blanc of Marcelles into the East and West Indies Persia Pegu Fez Morocco Guinny and through all Africa and the Principal Provinces of Europe A General Collection of Discourses of the Virtuosi of France upon Questions of all sorts of Philosophy and other Natural Knowledge Made in the Assembly of the Beaux Esprits at Paris by the most Ingenious Persons of that Nation Englished by G. Havers In two Volumes A Treatise of the Sibyls giving an Account of the Names and Numbers of them of their Qualities the Form and Matter of their Verses and of their Books Written in French by David Blondell Englished by Jo. Davis of Kidwelly Tracts written by John Selden Esq of the Inner Temple The first entituled Jaâ—â— Anglorum Facies altera Rendred into English with large Notes thereupon by Redman Westcoat Gent. The second England's Epinomis The third Of the Original of Ecclesiastical Jurisdictions of Testaments The fourth Of the Disposition or Administration of Intestate Estates Printed for Tho. Basset and R. Chiswell and sold by R. Clavell Basilica Chymica Praxis Chymiatrica or Royal and Practical Chymistry augmented and enlarged By John Hartman To which is added His Treatise of Signatures of Internal Things or a true and lively Anatomy of the Greater and Lesser World as also the Practice of Chymistry of John Harâ—man M. D. augmented and enlarged by his Son with considerable Additions All faithfully Englished by a Lover of Chymistry The Compleat Chymical Dispensatory in Five Books treating of all sorts of Metals Precious Stones and Minerals of all Vegetables and Animals and Things that are taken from them as Musk Civet c. How rightly to know them and how they are to be used in Physick with their several Doses The like Work never extant before Being very proper for all Merchants Druggists Chirurgeons and Apothecaries and such Ingenious Persons as study Physick or Philosophy Written in Latin by Dr. John Scroder that most Famous and Faithful Chymist and Englished by William Rowland Doctor of Physick The Royal Pharmacopaea Galenical and Chymical according to the Practice of the most Eminent and Learned Physicians of France and published with their several Approbations By Moses Charâ—as the King 's Chief Operator in his Royal Garden of Plants Faithfully Englished and illustrated with several Copper Plates An Abridgment of divers Cases and Resolutions of the Common Law Alphabetically digested under several Titles By Henry Rolls Serjeant at Law Published by the Lord Chief Baron Hales and approved by all the Judges The Reports of Sir George Croke Knight In three Volumes in English Allowed of by all the Judges The second Edition carefully corrected by the Original Les Reports de Henry Rolle Serjeant del ' Ley de divers Cases en le Court del ' Banke le Roy en le Temps del ' Reign de Roy Jaques Colligees
the Instruments 2. Of Cures performed And 3. Of things Remarkable Written by Johannes Scultetus a famous Physician and Chirurgeon of Vlme in Suevia Faithfully translated into English by E. B. The Compleat Chymist or A new Treatise of Chymistry teaching by a short and easie Method all its most necessary Preparations Written in French by Nicholas Glasier Apothecary in Ordinary to the French King and the Duke of Orleans and from the Fourth Edition revised and augmented by the Author and now faithfully Englished by a Fellow of the Royal Society Il Nepotismo di Roma or The History of the Pope's Nephews from the time of Sixtus the Fourth Anno 1471. to the Death of the late Pope Alexander the Seventh Anno 1667. In two Parts Written Originally in Italian and Englished by W. A. fellow of the Royal Society The Present State of Egypt or A new Relation of a late Voyage into that Kingdom performed in the Years 1672. and 1673. by Fr. Vansleb R. D. Wherein you have an Exact and true Account of many rare and wonderful Particulars of that Ancient Kingdom Englished by M. D. R. D. The History of the Government of Venice wherein the Policies Counsels Magistrates and Laws of that State are fully related and the Use of the Ballotting Box exactly described Written in the Year 1675. by the Sieur Amelott de la Houssaâ—e Secretary to the French Ambassador at Venice The Present State of the Ottoman Empire In three Books Containing the Maxims of the Turkish Policy their Religion and Military Discipline Illustrated with divers Figures Written by Sir Paul Ricaut then Secretary to the English Ambassador there and since Consul at Smyrna The Memoires of Philip de Comines Lord of Argenton Containing the History of Lewis the Eleventh and Charles the Eighth Kings of France with the most Remarkable Occurrences in their particular Reigns from the Year 1404. to 1498. Revised and corrected from divers Manuscripts and Ancient Impressions by Dennis Godfrey Counsellor and Historiographer to the French King and from his Addition lately printed at Paris newly translated into English A Relation of three Embassies from His Majesty Charles the Second to the Great Duke of Muscovy the King of Sweden and the King of Denmark Performed by the Right Honourable the Earl of Carlisle in the Year 1663. and 1664. By an Attendant on the Embassies The Secret History of the Court of the Emperor Justinian Written by Procopius of Caesarea Faithfully rendred into English The History of the late Revolutions of the Empire of the Great Mogul together with the most considerable Passages for many Years in that Empire with a new Map of it To which is added An Account of the Extent of Industan the Circulation of the Gold and Silver of the World to discharge it self there as also the Riches Forces and Justice of the same and the Principal Cause of the Decay of the States of Asia By Monsieur F. Bernier Physician of the Faculty of Montpelier Englished out of French by H. O. Secretary to the Royal Society The Voyage of Italy or A Compleat Journey through Italy In two Parts With the Character of the People and the Description of the Chief Towns Churches Monasteries Tombs Libraries Pallaces Villas Gardens Pictures Statues and Antiquities As also of the Interest Government Riches Force c. of all the Princes with Instructions concerning Travel By Richard Lassels Gent. who travelled through Italy five times as Tutor to several of the English Nobility and Gentry The History of France under the Ministry of Cardinal Mazarine viz. from the Death of King Lewis the Thirteenth to the Year 1664. Wherein all the Affairs of State to that time are exactly related by Benjamin Priolo and faithfully Englished by Chr. Wase Gent. The History of the Twelve Caesars Emperors of Rome Written in C. Suetonius Tranquillus Newly translated into English and illustrated with all the Caesars Heads in Copper Plates The Compleat Gentleman or Direction for the Education of Youth as to their Breeding at home and Travelling abroad By J. Gailliard Gent. who hath been Tutor abroad to several of the Nobility and Gentry The Annals of Love containing Select Histories of the Amours of divers Princes Courts pleasantly related Deceptio Pisus or Seeing and Believing are two things A pleasant Spanish History faithfully translated In two Books The Loves of sundry Philosophers and other Great Men. Translated out of French The Novels of Dom Francisco de Quevedo Villegas Knight of the Order of St. James faithfully Englished Whereunto is added The Marriage of Belphegor an Italian Novel Translated from Machiavel A Relation of the Siege of Candia from the first Expedition of the French Forces under the Command of M. de la Fuillada Duke of Koannez to its Surrender Sept. 27. 1669. Written in French by a Gentleman who was a Voluntier in that Service and faithfully Englished The Present State of the Greek and Aâ—menian Churches Anno Christi 1678. By Sir Paul Ricault late Consul at Smyrna and Fellow of the Royal Society The Rights of the Bishops to judge in Capital Cases in Parliament cleared Being a full Answer to two Books lately published the first entituled A Letter from a Gentleman to his Friend c. the other A Discourse of the Peerage and Jurisdiction of the Lords Spiritual in Parliament endeavouring to shew the contrary A Resolution of Conscience touching Impositions Suffragium Protestantium Wherein our Governours are justified in their Impositions and Proceedings against Dissenters Meisner also and the Verdict rescued from the Cavils and Seditious Sophistry of the Protestant Reconciler By the Right Reverend Father in God the Lord Bishop of St. Davids The Living Temple or A design'd Improvement of that Notion That a Good Man is the Temple of God By John Howe M. A. sometimes Fellow of M. Coll. Oxford A Friendly Conference between a Minister and a Parishioner of his inclining unto Quakerism c. With the Vindication of it from the Exceptions of Thomas Ellwood in the pretended Answer to the said Conference Thirteen Sermons preached before King Charles the Second in His Exile by the late Reverend Henry Byam D. D. Rector of Luckham Canon of Exeter and one of His Majesty's Chaplains in Ordinary With the Testimony given of him at his Funeral by Hamnet Ward D. D. Counsel and Directions Divine and Moral in plain and familiar Letters of Advice from a Divine of the Church of England to a young Gentleman his Nephew soon after his Admission into a College in Oxford The Christian's Defence against the Fears of Death with seasonable Directions how to prepare our selves to die well Written originally in French by the late Reverend Divine of the Protestant Church of Paris Char. Drelincourt And translated into English by M. D' Assigny B. D. A Discourse of Natural and Moral Impotency By Joseph Truman B. D. Aminta the famous Italian Pastoral translated into English Paradise Regained a Poem in four Books To which is added Samson
Succession is as a Golden Chain that holds fast together and close every part of the Royal Contexture in it self and leaves no Chasms Chinks or Ruptures whereby any dissolving cause can be admitted entrance to subvert or disjoint the Frame I have before spoke of this Head and shall only add that as Kingly Government was the first so when Commonwealths were introduced with much strugling they kept Life a while in Greece and Rome but have been reduced to Monarchy again about one Thousand seven Hundred Years since Tacitus after his short way tells us Vrbem Romam a principio Reges habuere Libertatem consulatum L. Brutus instituit Dictaturae ad tempus sumebantur neque Decemviralis Potestas ultra biennium neque Tribunorum militum Consulare jus diu valuit Non Cinnae non Syllae longa dominatio Pompeii Crassique potentia cito in Caesarem Lepidi atque Antonii arma in Augustum cessere qui cuncta discordiis civilibus fessa nomine Principis sub Imperium accepit Tacit. l. 1. Annal. Monarchy hath no Private Ends. that Rome had Kings first that L. Brutus appointed Liberty and Consulship Dictatorship was sometimes assumed the Decemvirate lasted not alive two Years nor did the Consular right of the Tribunes of the People long continue nor was the command of Cinna or Sylla durable and the power of Pompey and Crassus devolved upon Caesar as the Arms of Anthony did upon Augustus who received all being weakned wearied tired out or spent with civil Discords under the Empire of a Prince From whose very Name the title of semper Augustus and Caesar is continued to this day which duration in no Commonwealth can be found Therefore every one that desires to live under an uniform unchangeable and durable Government must prize and value Monarchy most It is furthermore the peculiar Excellency of Monarchy that it hath no separate or distinct Interests or Designs from the Good of the Publick the End of all just Empire being the Safety and Profit of the Subjects saith a (f) Finis justi Imperii utilitas obedientium salus Ammianus lib. 30. Judicious Historian For a King neither in time of Peace or War can ever have any Good or Evil befal him wherein his Subjects have not their share It is onely in Monarchy where Paternal and Conjugal Love are in the highest degree and relation betwixt the Prince and his People the (g) Nalson's Common Interest p. 111. Blessings of Happiness or the Miseries of Infelicity are stowed in the same Bottom So that a Monarch consulting the Safety Honour Welfare Peace and Prosperity of his People doth at the same time consult his own Interest in every one of them and this must of necessity oblige him to act strenuously and constantly in all his Endeavours for the attainment of those Ends. This will induce him to exert all his Royal Vertues of Justice Fortitude c. will cause him to be watchful to suppress the Turbulent and Factious who would discompose the happy Harmony at home and be vigilant against the Attempts of Foreign Powers For the State can neither sink by Intestine Discords or fall by Foreign force but he must be ruined with it and so out of the natural Tenderness care and concern for the Safety Peace and Happiness of himself and People he must be truly a Father of his Country whereas the Members or Representatives of a Republic are at best but Guardians and greedy ones as we of late experienced who generally commit great Wastes Objection That Monarchy is apt to turn to Tyranny The common objection perpetually in the Mouths of Democratick Factious People is that Monarchy is apt to degenerate into Tyranny according to that of the (h) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lib. 5. Polit. c. 10. Philosopher who having recounted the external and intrinsick causes of the decay of other forms of Governments saith that the dissolution of Kingdoms happens rarely from external Causes and so they are more durable but it may happen from two intrinsick ones viz. the Dissention of those of the Royal Family or Princes or when Kings govern something Tyrannically But this is only true where Monarchy is Absolute Arbitrary and Unbounded which in the English Monarchy is much otherwise For though the Kings of England where they have not precluded themselves by their gracious Condescentions and Grants to their People are not limited by any other Power than their own Royal Pleasure Yet their Concessions have been so many and formed into Laws as Measures and Standards of Government that they are Mounds and Boundaries which the Monarchy hath no less Prudently than Indulgently been pleased to give it self thereby to ease the Subject of any just occasion of Fears or Jealousies which receive their Birth from the formidable redundancy of their absolute Power and by this means the Government is secured from the falling intoan Arbitrary and Tyrannical way of Rulers and the Minds of the Subjects freed from the dreadful apprehension of Slavery And as by this Incomparable method of goodness and generosity in our Princes the Subjects of all conditions are the more powerfully obliged to all dutiful Allegiance to their temperate Government so the Government it self is thereby rendred more capable of effectually answering all the Ends and Intentions of Society When it is debated whether Monarchy or Tyranny be the most convenient Government the true Sence of it is this Comparison betwixt a King and Tyrant Whether the People shall live more happily when the supream Power is in one and the Person by the Laws of the Country is known whereby no Room is left for Division and Faction concerning that single Sovereign Or When one Man being more active and crafty than his Fellows who ought to have an equal share in the Authority raises a Faction upon some plausible pretences and under the colour of serving his Confederated Party perswades them to be commanded by him and so exercises the supream Power in an Illegal way which as is compassed by engaging the People in misery under colour of making them more happy so it must be kept up by as bad Arts and an Army must be maintained to make good by force what Law cannot justify In this manner as the question is to be stated betwixt a Lawful King and Tyrant So if it be enquired whether Monarchy or Aristocracy be better it is not whether a bad King be better than a good Commonwealth consisting of the Optimacy but the Comparison ought to be betwixt a good King and a good Aristocracy or betwixt them when both bad First Comparison betwixt a King and a Commonwealth Therefore it is to be considered That a People may easilier have a good King than a good Nobility taking Good in a Political Sence as providing for the Peoples Happiness because the King's Interest is the same with that of the Peoples which is a strong State-security whereas the Commonwealth of Greece