(q) Power of the Prince p. 81. Primate is obvious because the inflicting of a punishment is an Act of a Superior to an Inferior and to make one upon Earth Superior to the Supreme Governour would imploy an absolute contradiction though a Father or Master were never so faulty none would be so absurd as to think that their Servants or Children might chastise them When I reflect on that dismal Day when the wicked High Court of Justice arraigned and sentenced the most Innocent Just and Religious King that possibly hath worn a Crown since our Saviours time I always stand amazed and read or meditate on that Tragical Act with a concern next to that of our Saviour's suffering All that black and bloody Scene was acted by Men of and upon the Principles successful Rebels made use of The Preamble to the Treasonable Charge against King Charles the First That Kings are admitted and trusted with a limited Power to govern by and according to the Laws of the Land and not otherwise and by their Trust Oath and Office are obliged to use the Power committed to them for the Good and Benefit of the People and for the Preservation of their Rights and Liberties which they charged that Blessed King to have designedly violated To which I shall give only some k short Heads of his Majesties Answer (r) His Majesty's Speeches and Tryal p. 429. which if they had been weighed were enough to confound all their arguing He demanded by what lawful Authority he was seated there he had a trust committed to him by God by old and lawful Descent that he would not betray Pag. 431. to answer to a new unlawful Authority That England was an Hereditary Kingdom He tells them how great a sin it is to withstand lawful Authority and submit to a Tyrannical or Unlawful That Kings can be no Delinquents That Obedience unto Kings is strictly commanded in the old and new Testament pag. 435. particularizing that one place Where the word of a King is there is Power and who may say unto him What dost thou Eccl. 8.4 That no Impeachment can lye against him all running in his Name That the King can do no wrong the House of Commons never being a Court of Judicature can erect none He owns an Obligation to God to defend and maintain the Liberties of his People against all such Illegal and Arbitrary Proceedings Pag. 439. But 't was to no purpose to show such Crown-Jewels before such Wolves and Bears that were gaping for his Blood and would not admit his only request to them to be heard for the Welfare of the Kingdom and Liberty of the Subject before they precipitated Sentence against him before the Lords and Commons and pressed it That it may be it was something he had to say they had not heard before Hand But nothing his sacred Majesty could say would move those who under a vile and notorious Lye in the Name of the People the Supreme Authority as they called it passed that barbarous Sentence against that sacred Head to the amazement of the whole World sufficient to raise the utmost Indignation of all good Men against such barbarous Principles and Proceedings CHAP. XIX That the Sovereign may dispense with the Execution of the Laws of his Country in several Cases HAving discoursed of the Kings being unaccountable to any but God Almighty when he governs not according to the Laws of God Nature or his Dominions The Connexion of this with the foregoing Chapter upon that Foundation That there cannot be two Supremes here upon Earth in one Kingdom I come now to discover what Power Kings in general and our Kings in particular have to dispense with the Execution of the Laws upon some cases for it is far from my thoughts ever to suggest any such dangerous assertion That Princes in general may dispense with the Execution of the Laws Plutarch (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Compar Flaminii Philopaemenis setteth this down as a chief point of that natural skill which Philopoemen had in Government That he did not only rule according to the Laws but over-ruled the Laws themselves when he found it conducing to the Weal publick For as the (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Justin Jun. Imp. praef Constit 3. Emperor saith whilst the Laws stand in force it is fit that sometimes the Kings Clemency should be mingled with the severity of them especially when by that means the Subject may be freed from much Detriment and Damage Princes according to the (c) Princeps est supra legem adeo quod secundum conscientiam suam judicare potest Cyrus in L. Rescript c. Judgment of great Lawyers have Power to judge according to their own Conscience and not according to the Letter of the Law and no doubt it was such written Laws as these that (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Justinian Novel 105. Justinian the Emperor meant when upon the enacting of a Constitution of this kind he added thereunto this Limitation From all these things which have been said by us let the Emperors State be excepted whereunto God hath subjected the very Laws themselves sending him as a living Law unto Men who therefore in another place assumeth to himself the Title of a Father of the Law Whereupon the (e) Nota Imperatorem vocari patrem Legis under c Leges sune ei subjecte Gloss in Novel 12. c. 4. Glossator maketh this Observation Note That the Emperor is the Father of the Law whereupon the Laws also are subject to him So the great (f) Princeps est supra legem in quantum si expediens est potest legem mutare in ea dispensare pro loco tempore Vid. Thom. in 1.2 q. 96. Artic 5. ad 3. Schoolman saith The Prince is above the Law so far that if it be expedient he may change the Law and dispense with Time and Place as when a Man is condemned to banishment the Prince if he see cause may revoke him from thence and therein saith (g) Gloss in lib. 4. de Poenis Accursius his own Will is accounted a great and just cause Magna justa Causa est ejus Voluntas The Reason of these Assertions is couched in what Aeneas (h) Convenit Imperatori Juris rigorem aequitatis fraeno temperare cui soli inter aequitatem jusque interpositam interpretationem licet incumbit inspicere De Ortu Authoribus Imperii Sylvius observes That there is a certain other thing to which the Emperor is more obnoxious than to the Law and that is Equity which is not always found written Now if the Law doth command one thing and Equity perswade another It is fit the Emperor should temper the Rigor of the Law with the Bridle of Equity as he who alone may and ought to look unto that Interpretation which lyeth interposed betwixt Law and Equity since no Law can sufficiently
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
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
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
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
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
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
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
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
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
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
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
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. 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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. 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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. 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not Republics Having thus far Illustrated the Government in the Golden Age of the World wherein we find no Footsteps or the least tract of any popular Suffrages but an entailing of Sovereign Authority We may farther consider God appointed Kings that the Government of the several Kingdoms in this World have been and are by the appointment of the Sovereign of the whole World not only by Gods appointment of Moses the several Judges and Kings of Israel and Judah but by the frequent expressions in Scripture that by God Kings Reign that Kings are the Ministers of God that God will give deliverance to his King to his anointed c. By which Expressions we may rationally (e) Jus Reg. p. 15. 21. conclude that God hath reserved to himself the immediate Dependance of the supream Power to shut out the restless and extravagant Multitudes from the frequent Revolutions they would make and the desolations they would occasion if they had any ground to think the supream Power depended on theirs or that they were not bound to obey for Conscience sake their Governours Whence also are they stiled Gods but to denote they were not made by Men And as it is most clear that inferior Magistrates derive their Power from the King and not from the People as supream so by that Analogy which runs in a dependance and chains through the whole Creation Kings should derive their Power from God alone who is their King and as the (f) Rom. 13. v. 13 14. Apostle saith are ordained of God and so no humane Ordinance for Supremacy is affixt to the King but Governors are sent by him and if the King were the Creature or Creation of the People it would have been express'd that they were commissioned or sent by them whereas it is expresly said They are of God That Kings or Sovereigns derive their Power from God alone The Testimony of Authors and consequently not from the People is attested by the joint consent of all unbiass'd Learned Men Fathers and Schoolmen in all Ages who have unanimously given their Suffrages for the same as grounded upon solid Reason (g) Contra Gentes So Tertullian saith Let Kings know that from God only they have their Empire in whose Power they only are So St. (h) De Civitate Dei lib. 5. cap. 21. Augustine Let us not attribute to any other the Power of giving Kingdoms and Empires but to the true God So in the Civil Law (i) Cod. de veteri Codice enucleand we find Deo anctore nostrum gubernante Imperium quod nobis à Coelesti Majestate traditum God being the Author governing our Empire which was delivered to us from the Heavenly Majesty (k) Novel 6. Instit Nov. 40 45 46 133. pr. Justinian acknowlegeth his Obligation to take care of his People because he received the charge of them from God And certainly the People are happier in such acknowledgments than if Kings think it only a charge conferred on them by the People and that they were therefore only answerable to them The Reader that would be further satisfied may consult Arniseus Cap. de essentia majestatis Marca Archbishop of Paris de Concordia Sacerdotum Imperii Lib. 2. Cap. 2. Num. 2. Graswinckelius de Jure Majestatis Cap. 8. Num. 2. The Learned and Loyal Kings Advocate of Scotland and the Authorities I have cited in the Chapter of Monarchy Besides what I have urged hitherto we may with a (l) Dr. Hammond's Address p. 10 11. Reverend Author consider that the Sovereign hath an higher Power than the People can give not as representing them but as representing God himself For every supream Magistrate hath a Power that never was in the People to give for never any Man was by God or Nature invested with Power of his own Life to take it away or kill himself lawfully For all Christians generally declare against this Self-murther as a Crime equally against the sixth Commandment as the killing of any other Man Now this Power of Life being so essential a part of the Supremacy and no part of the natural Liberty cannot be inherent naturally in a Community of Men which have no more Power so united than each single Person hath So that though it cannot be said with some Nemo est dominus Membrorum suorum for Man hath the power over his Members to cause one to be cut off for the preserving the whole and the Jew under Gods own Government had power to make himself a Slave yet this Jus Gladii the Right and Power of the Sword which is really the Sovereign Power is by the (m) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Rom. 13.2 Ordinance of God not the Donation of the People For it was not in the Power of the People to dispense with Gods Precept Thou shalt not kill nor to distinguish shedding of Blood with the Sword of Vengeance from Murther and consequently the Power is not deriv'd to Kings and Princes by private Men who cannot transfer that Power they never had according to that known Maxim Nemo plus juris transferre ad alium potest quam ipse habet but it 's bestowed on them by God Almighty who is the sole Arbiter of Life and Death who can only take it away because he gave it The supream Magistrate therefore as God's Deputy hath the Power communicated to him as an Endowment necessary to that Power which is design'd to protect and govern others So Agamemnon having received contumelious Language from his Officers in a Council of War to let them understand his Sovereign Power tells them (n) Homer Hiad 6. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That he had Power of Death When Kings are Elective though it be the act of the People and not of God immediately that designs or nominates the Person to that Office yet doth not this Nomination bestow this Power but God who alone hath this Power bestows it on him who is so Elected Which we may illustrate by the Example of chusing inferiour Officers For though a Corporation by the Grant of a Sovereign hath Power to chuse a Mayor or chief Officer yet they give him not the Power of Executing that Office so and so For that is appointed and limited by the King 's especial Grace and Favour The nominating of the person being granted to them by the Sovereign but the qualifications of his Office and Power are by the sole Prescript of the King's Charter and Laws Having hitherto founded my Reasoning upon the History of Moses and the Authority of Scripture I might bring in a long Discourse out of prophane Historians Greeks and Romans as well as more modern Writers who give an account of the Foundations of Kingdoms but since a late (o) French Monarchy p. 16. Author hath made such a flourish out of Polybius slily and maliciously endeavouring to represent Monarchy as a Tyrannical Government wh◠the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the three constituent parts viz.
Monarchy Aristocracy Democracy were not so evenly poiz'd and attemper'd ad pondus as Lycurgus endeavoured it in the Lacedaemonian State I shall content my self with an Epitome not a Paraphrase as the forementioned Author hath made of what Polybius (p) Lib. 6. Histor p. 197. Edit Basil hath left in his Excellent History wherein he deducing matters from such an Original as those who knew not or believed not the Creation could do delivers us his sence of the mutations and managery of Government to this purpose That when by reason of some great Inundation 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 great Plague or Death all Institutions and Arts having been lost In process of time by the propagation of those that escap'd these Devastations a multitude grew who herded according to their kind and for the weakness of their Party in respect of ravenous Creatures as well as their Savage Neighbors we may suppose they associated together it necessarily followed that he who in the Strength of his Body and confidence of Spirit excell'd the rest obtain'd the Princedom and Empire as we see in Bulls Goats Cocks c. and so the rest obey'd that Man who was properly the Monarch and in Process of time 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by familiar Conversation and living together under this one Head like a select Flock or Herd these Mortals began to think of Honest and Just and their contraries and by the noble or ignoble actions of some of the Society the Sence of Honour and Disgrace was impress'd in their Minds and consequently of Profitable and Incommodious (q) Idem pag. 198. He that was their Governour excelling in Power and in the opinion of all endowed with those qualifications were judged good and profitable and administring to his Subjects what was competent to every of them They now fearing no violence most willingly submitted themselves to him and he being venerable to them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 with unanimous consent they impugn and revenge themselves on those who oppose or conspire against his Government and so from a Monarch he becomes a King when reason had obtain'd the Principality which before Fierceness and Power possess'd So that in all this first settlement of Monarchy or a Kingdom in the purest state of Nature we can conceive describ'd we have no mention in this judicious Author of Compact with the People or Election but of submitting It is true upon the degeneracy of Kings Factions arising he speaks of Election not of those of strong Bodies only and daring Souls for such he presumes made themselves Masters but of such as by their Wills and Reason experimentally discover'd in their Actions were most agreeable to the Peoples liking But that this was done by the force of Faction appears from what he subjoins 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that those who were thus destined for the Kingdom selected special places and encompassed them with Rampiers or Walls fortifying them for the security of themselves and to supply their Subjects with necessaries from whence arose the great Cities which had large Sokes by which means they possess'd the whole Country of the Kingdom I do own that he makes offence and hatred of the People or envy against the succeeding Princes who were debauched and degenerated 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to be the causes why in process of time some of the Noblest became the leaders of the People to repress such Princes and root out the Monarchy and Kingdom But still it was because Factions encreased and so Aristocracy was changed into Oligarchy which set of Rulers oppressing the People whose discontents being observ'd by some popular Persons they animated them to join to subvert the Oligarchy Hitherto we find nothing of the imaginary delegation of the Peoples Power to one or more but prosperous events crown'd their Rebellions against their Superiors What follows is observable that the People having slain the Optimacy fearing the Injustice of Superiors they durst not set a King over themselves nor trust the Government in the hands of a few having so late Instances of their Tyranny and Sloth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 So the single and sincere Hope which was only left in themselves induced them to establish a Democracy and so to themselves receive the Trust and Providence of the Common-weal which the (r) French Monarchy or Absolute Power p. 20. Paraphrast calls their last untainted hope founded on themselves that is in their own Strength So that till the forms of Government by a King or Tyrant Aristocracy or Oligarchy were wholly subverted we hear not a Syllable of the Peoples challenging a power and then it is no wonder when they have slain the richest and divided the spoil and have entertained an opinion that they shall never be Servants more but live in an equal Freedom and Wealth if they be blown up with a popular Pride and call themselves the supream Power But what is this to the natural Freedom pleaded for when it is nothing but the headstrong unbridledness of the Multitude that have cast their Riders and got loose the Reins on their own Neck (s) Idem pag. 199. Polybius goes on to tell us how Democracy was soon overturned after though for a while those who had Experience of the Oppression of the Rich were delighted with the Equality and Liberty of the present State 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that seemed sweet to them above all Treasure yet afterwards some growing Rich little valued that Equality and Liberty which custom had made them sleight and nauseate and so began to contemn the Poor and excelling the rest in Riches began to covet Rule yet knowing they could not by their own Interest or eminence of Vertue obtain it they began to be lavish of their Wealth and variously bait the People and so corrupt them into Tumults and Sedition and the People being thereby raised to hopes of living upon the Goods of those of contrary Factions by following some magnanimous and daring Captain who yet for his Poverty could not Lawfully aspire to the Honours of the Common-wealth found no better or easier way to rise but by heightning Factions whereby Parties being imbodied Murthered Plundered and Destroyed one another till at last wearied or one Man getting a greater interest in the People than the rest and being fortunate to overtop the rest they submit to such and after all their miseries return again to Monarchy I cannot dismiss (t) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polybius without noting from him how preferrable Monarchy is to any of the popular sorts of Government For he observing that as Iron is wasted by rust Wood by worms so that although they might escape exterior defacings yet they will decay by those inbred devourers So he observes that all simple Governments are apt to some evil that is peculiar and consequential to their Nature as he instanceth in a Kingdom changed into Monarchy absolute by which he means that which we now
call Tyranny Aristocracy into Oligarchy Idem pag. 200. and Democracy into Bestial Chirocracy 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 when the Seditious of the people prevail more by Fisticuffs than reason When he enumerates the causes of the Envy and Hatred of the People against the King that is turned Tyrant he never mentions that the People challenged any Original Right or that they conferred any trust upon him or made any compact with him to govern so and so But that some young Princes degenerating from their Just Prudent Wise and Valorous Ancestors giving themselves up to Debauchery and because of their plenty following their Pleasures committed excess in ther Habits eat more deliciously and luxuriously indulged themselves in prohibited Lusts by some necessities or wantonness galling the Necks of their Subjects or committed some contumelious or outragious Act against some powerful Person or committing the managery of affairs to some unfit or envied Person lost the affections of some popular persons and by their immersing themselves in Pleasure neglecting the Inspection into their affairs or by their sloth and lasiness neglecting the timely redress of Evils or suppressing of some growing Faction gave opportunity to some of the most popular and daring of their Subjects to conspire together to put an end to their Lives and Governments But in all this he mentioneth nothing of those miserable devastations which are brought upon whole Countries that in popular Governments are torn in pieces by them as too often I shall have occasion to mention For certainly one days misrule by the Rable may do more mischief to a Country than the whole age of a vitious Prince and the pretences of making Government more easie for the People and that the end of it is the Peoples safety hath ushered in all Tragical Revolutions and Rebellions and however Philosophers and other Writers of Greece and Rome declaim against Tyranny and absolute Monarchy yet they conceal not the perpetual intestine as well as Foreign Wars betwixt one Commonweal and another or what Butcheries Countries have undergone whereever the People got a participation of the executive parts of the Soveraignty It is not unfit to be observed what the great (u) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Arist de Repub. l. 5. c. 10. initio Philosopher notes that a Kingdom is the refuge and defence of the good against the injury of the People for saith he a King is constituted of the good and those that excel in vertue and vertuous actions but a Tyrant is taken out of the People and Multitude against the Noble and Illustrious as he instanceth in Phidon at Argos Phalaris in Ionia Panaetius among the Leontines Cypselus at Corinth Pisistratus at Athens and Dionysius at Syracuse by the cunning leading of the People So that according to his opinion and the experience of all ages the People may be truly said to be the Original of Tyrants and not of Kings For whereever an unlawful Government was introduced which properly might be called Tyranny it was brought upon the People by their own choice some ambitious cunning man having wound himself into their good opinion was by their strongth and assistance able to suppress the Nobility and establish himself their Executioner after he had long been their Creature Those who please themselves with the notion of Compact and Agreement mostly do it for some ill end to make a plausible Scheme to decoy the People into an opinion that Princes can claim no more Power as of right belonging to them than the People shall intrust them withal which they may from time to time as they shall see cause in order to the pretended publick weal and safety either enlarge or restrain at their pleasure These must suppose saith a most profound (w) Bishop of Lincoln Preface to the Power of Princes Scholar a multitude all free without any sort of dependences on Parents under no restraint but every one at full liberty to do what he listeth with an equality of Power in them none having authority over other which surely was never yet found in any People or Country since the Creation of the World if these men will own its Creation or the Scripture-History of it and if they could in Authentic History point out some Parallel story they would do well to produce it for though I have quoted Polybius his conjecture of a state nearest it yet he makes no such inference from it that I can find But the forementioned Reverend Bishop hath suggested so many quaeries to be answered before any thing can be yielded to in this way of contract that it will puzzle the ablest of the Patrons of this popular way of constituting Government to solve any of them whereby to satisfie any considerate man of the legality of such a way or the consentaneousness of it to Principles of nature and the state of Liberty these men are such pretenders to It would be resolved whether Women and Children Mad-men and Fools had the freedom of suffrage as well as Men of Age and Fortunes and understandings If any were excluded who did it and by what authority If all were admitted whether with equal right to every one or with some inequality Was the Wives interest towards making up the bargain equal with that of the Husband and the Child with that of the Parents and the Servant's if there were or could be any such thing as Master and Servant equal with that of his Master's If one had not an equal share and interest in the business whence did the inequality arise who made the difference among them and what right had any man and how came he to have that right to give more or less power to one than another If all were equal who could summon the rest to convene or appoint the day and place of meeting Or when met take upon him the Authority and Office of regulating their proceedings or presiding or moderating in their Assembly of determining such doubts and differences as might arise while matters were under debate of calculating the voices and drawing up the Articles of Agreement in case they should agree Supposing all these doubts were cleared and the Contract made as they would have it it may be demanded whether majority of Votes shall conclude all that are present Dissenters as well as others Whether by vertue of an Act of those upon the place an obligation shall lie upon such as are casually necessarily or willingly absent when it was free for them to do so no man having power to require their appearance And whether a contract made by such persons as were at liberty before can debar those that shall succeed them in the next Generation from the use of that liberty their Ancestors had and enjoyed If so by what Law and Right are the said respective persons so concluded and whence should the obligation spring None of these look like the Dictates of the Laws of Nature and other Laws besides that according to 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
most uncompounded the Mother of all Governments and that a King is to be a God amongst Men and a King is a living Image of God saith the (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Menander Poet. So the Grecian Orator saith God from Heaven 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 did send the Regal Power unto the Earth (e) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Apud Stob. Serâ— 46. Diotogenes yet raiseth the Character higher according to the Sovereignties of his Age That the King having a Power uncontrollable and being himself a Living Law is the Figure or Adumbration of God among Men And in (f) Idem 121. another place Of all things which are most honourable the Best indeed is God but on Earth and amongst Men the King (g) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 37. So Agapetus observes That although the King in the Nature of his Body be of the same Mold with every other Man yet in respect of the Eminence of his Dignity he is like unto God over all whose Image he beareth and by him holdeth that Power which he hath over all Men. Hence it was that the Roman Emperors not to make Researches further in their (h) Augustin 's Numismata per totum Coins used some Emblems and Impressions proper to their Gods or their Religion inferring That they derived their Character from them So in the Coins of Julius Caesar we find the Image of Venus from whom he deduced his Extraction So we find the Goddess Victory the Image of Mars and the Caduceus often and Ensigns of the High Priest and not onely in his but in many other Emperors Coins the Thunderbolt to denote they had the same Power upon Earth that their Jupiter had in Heaven according to that of the Poet Jupiter in coelis Caesar regit omnia terris After that Julius Caesar was in Divos relatus we find a Star over his Head or himself sitting in the Habit of a God holding in his Hand a Cornucopia ascribed to the Genii and Hero's and in his Left-hand holding the Goddess Victory So in one of Augustus's Coins we find Victory sitting upon a Celestial Globe holding a Scarf in a Circular Figure in its Hand denoting Eternity In Otho's Coin Jupiter is placed in a Chair with a Spear in his Hand with the Circumscription Jovis Custos Jupiter Custos For it appears out of the Verses of Ennius and out of Hyginus and Apuleius that in the Nominative Case Jovis was used for Jupiter So in a Coin of Titus the Sella Jovis and Thunderbolt are to be found And Trajan holds a Thunderbolt and Spear and is Crowned by the Goddess Victory and in another Jupiter with his Thunderbolt in his Hand is shrowding Trajan under his Pallium according to which (i) Panâ—gy Pliny saith of him Te dedit qui erga omne hominum genus vice tua fungeris So in the same Trajan and Hadrian's Coins the Head of the Sun is figured with a radiated Crown as representing them of which Custom the Tabulae Heliacae may be consulted and although Chrysologus reprehends it as a proud affectation in the Persian Kings that with radiated Heads they place themselves in the figure of the Sun or are effeminate into that of the Moon or assume the form of Stars yet we may suppose such Impresses were to testify to the People from whence they derived their Origination or whose Tutelarship they were under For after Christianity obtained Constantine wore in his great Ensign called the Labarum the Figure of the Cross and the Letters which appeared to him in the Air with the Circumscription sub hoc signo vinces So (k) Octavius Strada de Imp. Rom. p. 294 338. Theophylact and Manuel Comnenius in their Medals have Christ figured putting a Garland upon their Heads Hence a grave (l) Principis potestas publiâ—t est in terris 〈…〉 Majest 〈…〉 Carisburiensis l. 4. c. 1. Author saith The Prince's Publick Power in Earth is a kind of Image of the Divine Majesty in the same sense with that of (m) Com in 13. Rom. St. Ambrose Princes for the correcting of Vice and prohibiting of Evil are erected of God having his Image that the People may be under One. We Christians have the Authority of Holy Scripture That by God Kings reign and that they are his Anointed So Daniel saith to Nebuchadnezzar The God of heaven hath given thee a kingdom and to Cyrus God gave to Nebuchadnezzar thy father a kingdom So (n) Cujus jussu homines nascuntur hujus jussa Reges conslimuntur Lib. 5. c. 24. Irenaeus affirms That by whose Command they are born Men by his Command likewise they are ordained Kings Agreeable to which is that of (o) Apolog. cap. 31. Inde est Imperator unde homo antequam Imperator inde porestas illi und spiritus Tertullian Thence is the Emperour whence he became Man before he was Emperour thence he hath his Authority from whence he hath his Breath A late (p) Absolute Power p. 46. Author scornfully confronts the Sentiments of so many Learned and Judicious Persons with that of Aratus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That all men are the Off-spring of the Deity Which if we allow in his sense then Pierce Plowman is of as good Divine Authority as any Crowned Heads Whereas St. Paul's Application makes it to be meant quite another way viz. of the Creation of Man by God Almighty But I shall pass to other Remarks The Philosopher makes Four kinds of Kingly Government Aristotle's Division of Kingly Government First That of Sparta where there were two Kings of two Royal Families the one a Check upon another And this was he saith (q) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. lib. 3. c. 14. a Generalship onely of an Army for they had not the Power of Life and Death but in Expeditions of War as he instanceth in Agamemnon whom Homer makes patiently to endure the Reproaches of the Great Men in the Assemblies For he affirms That in Times of Peace the Power of Life and Death was in the Senate and the Ephori So in the Roman Common-weal the Generals having the Style of Praetores and Imperatores when the Republic was changed by Julius Caesar he retained the Military Name of Imperator which the Grecians rendred King And thence it is that Ammianus saith That Valentinian was the first that changed the Roman Empire from a Principality to a Kingdom But to return from this Digression This Laconic Commonwealth had Hereditary Kings with a Power in War and Divine things limited by Law Of which the Curious may read Plutarc de Lycurgo and Xenophon de Republica Lacedaemoniae and (r) Pag. 384. Giphanii Comment in Arist Polit. The second kind of Kingly Government he calls that which was amongst the Barbarous for such the Grecians styled all Nations that were none of their Country and this he saith had a Power equal to the Tyrannical yet was legitimate 〈◊〉
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
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
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
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
of Majestas Title of Majesty As Your Majesty His Majesty Imperial Majesty The word it self denoting all kind of special Dignity as if we should say in English Greatness as well in private Persons as supream Princes and Deities Ovid (k) Fastorum lib. 5. elegantly describes Majesty to be born of Honour and Reverence and he saith Majesty continued among the Gods until the Rebellion of the Giants against Jupiter when she so daunted them that afterwards she was honoured for it with a place next to Jupiter whose Kingdom she defends by the greatness only of her Presence and unarmed and that she came down also among Men since which both Supream and Subordinate Princes and some also of all Kinds have had their special Dignity from her Presence with them whence Majestas Pueri Matronae Virginis c. and as Valerius Maximus (l) Quasi privata 〈…〉 clarerum virorum sine Tribunalium fasiigio Lib. 3. c. 10. calls it a private kind of Magistracy a Majesty of eminent Men without the Honour of Tribunalship or any other Office But it is not of this kind of Majesty I now treat but as it is applicable to the Sovereign So in Cicero Majestas Populi Romani denotes the Supream Dignity of the State of Rome as (m) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 In legatione in Foed Aetolorum Polybius calls it the Empire and Power of the People of Rome Afterwards this Majesty of the People or of the whole Empire and State was cast upon the Emperors as a Characteristick of Soveraignty and then it was Majestas Imperatorum Whence it grew into frequent use to write (n) Gruteri Inscr p. 246. n. 3. NVMINI MAJESTATIQVE EJVS DEVOTISS or DIC ATISSIMVS as in that Inscription in Tarragona in St. Barbara's Church of Septimius Acindynus to the Emperor Trajan From the use of Majesty thus applied came the name of Crimen Majestatis to denote that offence which was committed against the Dignity of the State of Rome or against the Emperor So (o) Majestatis crimen illud est quod adversus Pop. Rom. vel adversus securitatem ejus committitur P. ad Lâ—g Jul. Majest lib. 5. Vlpian saith It is that which is committed against the People of Rome or their Security (p) Majestatem minuisti quod Tribunum Plebis de Templo deduxisti De Invent. lib. 2. And Cicero calls it a Diminution of Majesty to draw a Tribune of the People out of the Temple And Justinian saith That the (q) Lex Julia Majestatis in eos qui contra Imperatorem vel Rempublicam aliquid moliti sunt suum vigorem extendit Instit Tit. de Publico Judicio Julian Law of Majesty extends its Force against them who attempt any thing against the Emperor or the Commonwealth And for this offence the word Majestas is used singly by (r) Hujus in metum penitus sustulisti contentus magnitudine qua nulli magis caruere quam qui sibi majestatem vindicabant Panegyr Pliny to Trajan That he had wholly taken away the fear of too frequent questiou upon that crime being contented with the greatness of his Power or Office which none more wanted than those that challenged Majesty to themselves as if he had said that his mild Empire and Greatness was better to himself and his People than theirs who had a more absolute Sovereignty This Expression of the Emperors by the abstract Majestas wherewith Numen also was commonly joyned in Inscriptions became it seems the Example by which the ensuing times brought in the frequency of those other Abstracti which designed the Emperors as well in the first as the second and third Person as Perennitas Aeternitas Tranquillitas Serenitas c. which are most obvious in the Rescripts of the old Emperors that remain in the two Codes of Theodosius and Justinian And in the Greek Empire this Attribute of Majesty was denoted by the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which the Emperor had with the Addition of Sacred and sometimes with (s) Vide Codin 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Mâ—ursium in Glossar Graâ—o-Barb 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 serenissima jestas There are great Numbers of other Epithetes that have been given to Soveraign Princes Other Attributes given to Princes as among the Romans Pius Foelix Clemens Tranquillus Sanctissimus Pater Patriae In the later times both in the Empire and Kingdoms Clementissimus Excellentissimus Invictissimus Illustrissimus Serenissimus Gloriosissimus Potentissimus Sacratissimus Celsissimus Religiosissimus and some have had peculiar Attributes The Emperor is stiled Semper Augustus the King of England Fidei Defensor the King of France Christianissimus of Spain Catholicus Most of these Attributes were given to denote the Eminence of their place or the peculiar Vertues such Princes excelled in and under the Greek Empire the Epithetes agreeable to their Language and the Attributes of the Eastern Monarchs are to this Day more luxuriant So we find Emanuel Comnenus in his Letter to Frederic Barbarossa writes thus (t) Albertus Stadensis in Chron. Anno 1179. Manuel in Christo Deo fidelis Imperator Porphyrogennetus Divinitus Coronatus Regnator potens excelsus semper Augustus Moderator Romanorum magnificus Nobilissimo Gloriosissimo Regi Almanorum Imperatori ac dilecto Fratri Imperii nostri salutem So (u) Canis Antiq. â—ect Tom. 5. p. 2. Isaacus Angelus useth this insolent Title as Mr. Selden calls it to the same Barbarossa Isachius a Deo constitutus Imperator Sacratissimus Excellentissimus Potentissimus Sublimis Moderator Romanorum Angelus totius Orbis Haeres Coronae magnae Constantini Dilecto Fratri Imperii sui Maximo Principi Alemaniae c. So the Sirnamed (w) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Camerar ad aure â—m Andâ—onic Bullam p. 9. Emanuel stiled himself Governed by God Heir of the Crown of Constantine the Great and observing of his Laws The Grand Seignior besides the Enumeration of all his vast Dominions particularly stiles himself By the infinite Grace of the just great and most puissant Creator and by the abundance of the Miracles of the chief of his Prophets Emperor of Victorious Emperors Distributer of the Crowns of the greatest Princes of the Earth c. Lord of Europe Asia and Africa conquered by his victorious Sword and powerful Lance c. and so after the recital of the several Kingdoms he saith of many other Countries Villages and Seigneuries Conquered by his Imperial Power and Justice c. By the Grace of God the resort of the great Princes of the World and the refuge of Honourable Emperors This was from Achmet Son of Mahomet to Hen. IV. of France A late Author (z) Treatise of Absolute Power p. 32 33. who takes all the Advantages to depress Monarchy out of a pretence of declaring against the too great absoluteness of Princes tells us That as the Majesty and real greatness of the Emperors declined and as
WEST SEAXNA CYNING I Ine by the Grace of God King of the West Saxons in his preamble to his Laws But until about our Henry the Third it was not of so constant use as that the Stile of the King necessarily required it This Stile of Dei Gratia is frequently given in old time Given to Spiritual Lords and yet in use to Spiritual Lords nothing being more common in the Instruments of Bishops and Abbats in the Chartularies of Monasteries and it is given from Kings to them in the Summons of Parliament and Writs to Assemble or Prorogue Convocations in this form Jacobus c. Reverendissimo in Christo â—â—tri praedilectoque fideli Consiliario nostro Georgio eadeâ—◠〈…〉 Archiepiscopo Cantuariensi c. But at this day though it 〈◊〉 â—â—ven to them they use it not in the first Person but Deâ— (i) Rosula Novella 〈◊〉 cap. 111. â—â—mentia or Providentia Divina and in older times when they writ to the Pope Emperor or King they were not to write Dei Gratia of themselves but only such or such licet indignus vel immerens Bononiae Episcopus c. By all these Titles we cannot but observe that the dignity of Kings and Sovereigns was looked upon in all Ages as deriving Authority from God Almighty and his Vicegerents here upon Earth having the Attributes of God that as he was Supreme over all things in Heaven and Earth so they within their Districts upon Earth I shall end this Chapter with this Observation That the Attribute of Dei Gratia applied to Sovereigns and Bishops might probably have Authority from the Constitution of Justinian (k) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Just Noâ— 6. init 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. which runs thus The greatest Gifts which Gods goodness from above hath conferred on Men are the Priesthood and Empire both of which proceed from one and the same Principle and are for the ordering and disposing of the Affairs of Mankind Concerning the peculiar Title of our Kings of England Defender of the Faith the learned Spelman having given us thâ— Copy of the Bull and discoursed so fully of it I shall 〈◊〉 the curious Reader to him for satisfaction CHAP. XVII Of the Soveraignty of the Kings of England according to our Histories and Laws THE Titles and Attributes which other Soveraign Princes have either assumed The Kings of England have used all the Titles proper to Sovereign Princes or have been given to them our Kings of England have used as might be made appear by innumerable Examples But I shall treat but of a few and shew wherein the Soveraignty is discovered and what ancient Prerogatives they have by their acts of Grace quitted and lastly how the long Parliament of 1641. would have cramped the King's Authority First as to the Title of King or Emperor promiscuously So our Edgar frequently in his Charters calls himself Albionis Anglorum Basileus As King Emperour Lord. and I have noted before that the Grecians esteemed the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to be of full as eminent Signification as Emperor So in a Charter (a) Cod. Wigorn. to Oswald Bishop of Worcester he is called Anglorum Basileus omniumque Regum Insularum Oceanique Britanniam circumjacentis cunctarumque Nationum quae infra eam includuntur Imperator Dominus In which we may note that one of our Kings of England writ himself not only Basileus according to the Grecian usage which signified King and Emperor but also Emperor and Lord three of the fullest Attributes either the Grecian or Roman Emperors ever used as also Lord of the British Sea as Canutus his Successor challenged So in a Charter to (b) Mon. Ang. par 1. p. 64. Peterburg Ego Edgar sub ipso sidereo Rege praesidens Regno Magnae Britanniae I have seen another (c) Lib. MS. Roberti de Swapham c. Fundationis Burgensis Coenobii p. 38. of his Charters prefaced thus Gratia Domini nostri Jesu Christi omnium seculorum omnia suo Intuitu distribuentis Regna terrarum moderantis habenas rerum Ego Edgar sub ipso eodem Rege praesidens Regno Britanniae c. So King (d) Id. p. 39. Edward in the same Book stiles himself Ego Edwardus Rex Anglorum Monarchiam Regiminis tenens hoc decretum Patris mei per deprecationem Abbatis Aidulfi perhenniter affirmavi In which we may note that Edgar owns himself subject to Jesus Christ God And King Edward saith he holds the single Command of Government So King Edward in a (e) Coke Praefat. 4. Reports Rex Anglorum totius Britanniae Telluris Gubernator Rector Angligenum Orcadarum necnon in Gyro jacentium Monarcha Anglorum Induperator Charter to Ramsey stiles himself Totius Albionis Dei moderante Dominatione Basileus King of all Albion and King Edwin in a Charter to Crowland calls himself King of England and Governour and Ruler of all the Land of Britain So Ethelred in his Charter to Canterbury stiles himself Of all the English born and the Oreades lying in Circuit about it Monarch and Emperor of the English So that by Orcades must be understood all the Isles about Britain So William Rufus dates his Charter to the Monastery of Shaftsbury secundo Anno Imperii mei By all which it appears that the Kings of England have justly assumed the Supream Imperial Command in their own Dominions and though the Title of Emperor hath been disused Kings of England as much Sovereigns as Emperours yet we shall find the substance of it sufficiently challenged in that of (f) Ipse omnes libertaâ—â—s 〈◊〉 Râ—gno habebat suo quas Imperator vendicabat in Imperio Matt. Paris in vita Willielmi 2. William Rufus to Arch-Bishop Anselm when he told him That he had all the Liberties in his Kingdom which the Emperor challenged in the Empire And in a Constitution (g) Râ—gâ—um Angliae ab omâ—i subjectione Imperiali liberrimum Claus 13 E. 2. m. 6. dorso of King Edward the Second it is declared That the Kingdom of England is most free from all Imperial Subjection which excluded all public Notaries who were made by the Emperor or Popes and by this Constitution were utterly rejected The Statutes for it This further appears in the (h) Stat. Anno 23 E. 3. c. 1. Vide Coke Instit 2. 111. 4 part 6. 8. 3. Instit 120 125. Statute of Praemunire made 23 Ed. 3. which runs thus That it being shown by the grievous and clamorous Complaints of the great Men and Commons how that divers of the People be and been drawn out of the Realm to answer of things whereof the Cognizance pertaineth to the King's Court and also that the Judgments given in the same Court be impeached in another Court in prejudice and dis-inherison of our Lord the King and of his Crown c. Therefore it was enacted That none of the King's Liege-People of
what condition soever shall draw any out of the Realm in Plea whereof the Cognizance appertaineth to the King's Court or of things whereof Judgments be given in the King's Court c. This Statute as well as that of Provisors 25 Ed. 3. was made to hinder the Subjects Appeals to Rome or to any other Court in such things whereby the King's Soveraignty might be diminished and this Statute relates to one made by King Edward the First Also in the Statute of Provisors 25 Ed. 3. reference is made to the (i) Anno 35 Regni Statute made at Carlisle by King Edward the First The Statute of (k) 16 R. 2. c. 5. Praemunire for purchasing Bulls from Rome gives an account of the preceding Statutes and further saith Whereas our Lord the King and all his Liege-People ought of right and of long time were wont to sue in the King's Court to receive their Presentments to Churches Prebends and other Benefices of Holy Church which they had right to present to the Conisance of Plea of which Presentment belongeth unto the King's Court of the old right of his Crown used and approved c. then particularly enumerates the Encroachments of the Bishop of Rome by Processes Excommunications of Bishops for executing Judgments given in the King's Courts and the translating of Prelates out of the Realm or from one spiritual Living to another against the King's Laws and Regality c. The Statute expresly declares That the Crown of England hath ever been so free that it is in no Earthly Subjection but immediately subject to God in all things touching the Regality of the Crown and to no other Under King Henry the Eighth (l) 24 H. 8. c. 12. the whole Parliament say that by sundry old and authentick Histories and Chronicles it is manifesty declared and expressed that this Realm of England is an Empire and so hath been accepted in the World governed by one Supream Head and King having the Dignity and Royal Estate of the Imperial Crown of the same unto whom a Body Politick compact of all sorts and degrees of People divided in Terms by names of Spirituality and Temporalty have bounden and owen to bear next to God a natural and humble Obedience The next (m) 25 H. 8. c. 21. Year in another Statute it is stiled the Imperial Crown and Royal Authority recognizing no Superior but only Your Grace and in the Chapter following the Kings of England are stiled Kings and Emperors of this Realm and in (n) 28 H. 8. c. 7. another of the same King it is called The most Royal Estate of the Imperial Crown of this Realm So in the same (o) Stat. Hilâ—â—◠〈…〉 8. c. 2. Year before the Title of Lord of Ireland was altered into King the Stile is Kings and Emperors of the Realm of England and of the Land of Ireland and in several other Statutes it is called the Imperial Crown I have inserted these to clear that by our Laws the Kings of England are under no Subjectjon to any foreign Prince or Potentate whatsoever And Mr. (p) Tit. Hâ—â— p. 21 22. Selden saith that the Supremacy is not only used by the English Sovereigns but hath been challenged by the Kings of Spain Denmark Poland the Czars of Muscovy and other free Princes over all within their own Dominions exclusive of all foreign Powers and upon the like ground of Supremacy was that Law made by King James the Third of Scotland in these words Our Sovereign Lord has full Jurisdiction and free Empire within this Realm c. A Confirmation of this Supremacy of our Kings appears in what is reported of our King Edward the Third That when Lewis (q) Quod Râ—x Anglix non se submisit ad osâ—ula pedum suorum of Bavier the Emperor had an Interview with him the Emperor stomached that the King of England submitted not himself to kiss his Feet But the King answered That he was (r) Rex inunctus habet vitam membrum in potesâ—ate sua ideirâ—â— non debet se submittere tantum sicut Rex alius an anointed King and had Life and Member in his Power therefore he ought not to submit himself to him as other Kings Whence it was that Alsonso the ninth King of Castile defining what Kings were after he had dispatched the Particulars that belonged to the Emperor says That they are every one in their Kingdoms the Vicars or Vicegerents of God placed over the People to govern them (s) Bien assi come el Emperador en su Imperio Partid 2. tit 1. Ley 5. 8. no otherwise than as the Emperor is in his Empire Whoever desires further Satisfaction in this Point may have recourse to the voluminous Collections of Mr. Pryn and other Authors that have treated of the Kings Supremacy Most of what I have hitherto discoursed relates to the King's Supremacy ab extra that he hath no foreign Superior that ought to impose any thing upon him or his Subjects contrary to his Pleasure and his Laws in his Dominions I shall now give a short Abridgement of what I find our learned Lawyers have writ concerning the King's Authority and Sovereignty in his Kingdom of England and how Wherein the King's Sovereignty consists according to our Laws in former Ages Kings have quitted some of their Royal Prerogatives In our Laws the King is stiled in Ecclesiastical matters the Supreme Ordinary (t) Cokâ— 11. 86. Calvin's Case 215. in Civil matters caput Reipublicae Pater Patriae totius Regni Pater-Familias Chief Justice c. being furnished with plenary Power to render Justice and Right to every Member and part of the whole Body (u) Coâ—â— 2 part 1 2. 24 H. 8. c. 1. 24 Eliz. c. 1. without the help of Foreign Jurisdiction Some Attributes of God in a similitudinary way say (w) 〈◊〉 8◠〈◊〉 177 2â—8 212 〈…〉 the great Lawyers are aseribed to him for the Excellency of his Person and the greatness of his Office as Sovereignty and Power Omnipresence Majesty Immortality c. In his Political (x) 〈…〉 Grand Abâ—iâ—gment part 3. p. 44. Capacity not subject to the Infirmities of others as Nonage Death Attainder c. So no Laches Negligences Defects or Stops of Blood can be imputed to or fastned upon him as is well known in the case of King Henry the Seventh (y) St. Albans vita â—en 7. p. 29. wherein it was unanimously resolved by the Judges That his Natural Capacity doth so far participate with the Politic which is superadded to the Body natural of the King that these become consolidate consubstantiate and indivisible in one and the same Royal Person and the Body Politic which is the more worthy and of a sublimer Nature is in no ways obnoxious to the Humane Imbecillity of Death Infamy Crime or the like but doth draw from the Natural Body all Imperfections and Incapacities whatsoever So that there 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
to Kingly Government and he every where commends it as most acceptable to the People and most safe for the Prince There is an excellent (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 De Creatione Princ. Soliloquy that Philo brings in his King to make and which may become the potentest Monarch to imitate That he writ the Laws himself into a Book that he might transcribe them into his Soul and imprint into his Mind those divine Characters never to be washed out again whereas other Kings therefore bear Staves for their Scepter the abridgment of the Law should be his Scepter his rejoycing and Glory uncontroulable the Ensign of that unreproveable Government which is fashioned according to the Pattern of Gods own Kingdom Although according to Harmenopulus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the King is not to be subject to the Laws because offending against them he is not punished and as St. (b) Neque ullis ad poenam legibus voâ—antur tuti Imperii potestate Apol. pro Davide Ambrose speaking of David saith He being a King was tyed to no Laws because Kings are freed from the Bonds or Punishments of Faults being called to Punishment by no Laws being protected by the Power of their Empire yet (c) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Greg. Naz. Orat. 27. as a grave Father saith God's Word and right Reason must give a Law to the Law-giver Therefore that weighty and elegant Expression of (d) Temperans Majestatem Caesaris infra Deum magis illum commendo Deo cui soli subjicio Ideo magnus quia coelo minor est Apol. c. 35. Tertullian deserves consideration by all Princes which is this While we temper the Majesty of Caesar under God we commend him the more to God unto whom alone we do subject him therefore great because he is less than Heaven To the voluntary submission of a Prince to his own or the Laws of his Progenitors may be referred the memorable saying of Valentinian (e) Revera majus Imperio est submittere legibus Principâ—tum Lib. 4. c. de Leg. c. Licet Lex Imperii solennibus Juris Imperatorem solverit nihil tamen tam proprium Imperii est quam legibus vivere Lib. 3. c. de Testam the Younger It is in truth a greater thing than Empire to submit the Princedom it self to the Laws and that other equally imitable by Princes Though the Laws of the Empire have freed the Emperor from the Solemnities of the Laws yet nothing is so proper for Empire as to live by the Laws or according to them So inthat commendation which Plutarch gives (f) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Orat. 2. de Fortuna Alex. Alexander the Great That he conceived he ought to be thought superior unto all Men yet subject to Justice Such a Prince we find Pliny fully describe in his (g) Nec minus hominem se quam hominibus praeesse meminit Panegyrick of Trajan That he thinks himself to be one of us and so much the more excellent and eminent he is that he so thinketh and no less remembreth that he is a Man than that he is a Ruler of Men. For he who hath nothing left to (h) Cui nihil ad augendum fastigium superest hic uno modo crescere potest si se ipse submittat securus magnitudinis suae increase his heighth hath but this one way to grow by if he submit himself that is to the governing by Laws it may be presumed he means being secure of greatness and in another place he calls him equal to all in this only greater than the rest That he was better and more nearly to our present purpose Thou hast made (i) Ipse te legibus subjecisti Legibus Caesar quas 〈◊〉 Principi scrip 〈◊〉 thy self subject to the Laws O Caesar which were not written to restrain the Prince by So we find both Severus (k) Licet legibus soluti simus attamen legibus 〈…〉 Instit quibus modis Testam infirment 8. Vet. and Antonius often set down in their Rescripts Although we be loosed from the Laws yet we live by the Laws These Laws are the Laws of God of Nature or those of the Kingdom concerning the first and last I shall not now discourse concerning that of Nature the (l) Non scripta sed nata lex quam non didicimus accepimus legimus verum ex natura ipsa arripuimus hausimus expressimus ad quam non docti sed facti non instituti sed imbuti sumus Pro Milone Orator saith It is not writ but born with us which we have not learnt received or read but from Nature it self have powerfully attracted drunk in and extracted to which we are not taught but made obedient not instructed but imbued Concerning the original of which Law he saith (m) Vnus erit communis quasi Magister Imperator omnium Deus ille legis hujus inventor disceptator lator â—ui qui non pâ—rebit ipâ—e se fugiet aâ— naturam hominis spernabitur atque hoc ipsâ— luet maximas poenas etiamsi caetera supplicia quae putantur â—ffugerit Lib. 3. de Repub. That God our common Master and Ruler of all is the Inventer Judg and Law-giver which he who will not obey must fly from himself i. e. abandon the Dictates of his own Reason and Conscience and despise the Nature of Man and in himself i. e. in his Conscience undergo the greatest Pains although he should escape all those other which commonly are accounted Punishments It is concerning this Law he saith That from it neither the Senate noâ— the People can exempt us nor is it lawful to abrogate it in the whole nor derogate from it (n) Ibid. Neque derogari ex hac aliquid licet neque tota abrogari potest nec vero aut per Senatum aut per populum solvi hac lege possumus The fore-mentioned Archbishop (o) Vsâ—er's Power of Princes p. 70. from hence concludes That to this moral Law of God whether by Nature thus written in the Hearts of Men or more fully delivered by Gods own written word or by just consequence deduced from the grounds of either of them the greatest Monarch upon Earth owes as much obedience as the lowest and meanest of all his Subjects And however the Prince is obliged to the directive force of the Law and so ought to be governed by it as his Director and though it be most true that (p) Reges Jolo Dei timore metuque Gehennae coercentur Isiodorus 3. Sent. c. 31. Kings are restrained only by the fear of God and Hell yet we may conclude that these together with the consideration of their Interests will be sufficient Incitements to them to govern according to such Laws Yet still it is to be owned That when a King doth not act according to such Laws he is not thereby capable of any Punishment for the transgressing of them and the reason saith the learned
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
9. The Words are The Presidents and Princes assembled together to the King and told him That all the Presidents of the Kingdom the Governours and the Princes the Counsellors and the Captains have consulted together to establish a Royal Statute and to make a firm Decree c. Now O King establish the Decree and sign the Writing that it be not changed according to the Law of the Medes and Persians which altereth not Here the Presidents c. assembled consult about the Decree they propose it as they had framed it yet they own it was of no force without the King 's establishing and signing it Which is exactly parallel with the Constitution of the Legislative in England if we joyn the Commoners to the Presidents Princes c. No radical mixture of Power in the two Houses with the King But the Writers for the Long Parliament were so desirous to make the Two Houses to have a Radical Mixture of the Legislative Power equal with the King 's that they sought all the specious and plausible Arguments they could to enforce it having little regard to what was Law it self or ancient Usage Therefore one of them in his (c) Pag. 39. Answer to Dr. Fern saith A Legislative Power is not to be satisfied by a bare powerless Consent Third Objection and therefore deman◠Whether that Consent be causal and authoritative or meerly consiliary and unauthoritative That the Two Houses have an Enacting Authority he would prove from that Clause set in the beginning of Acts Be it Enacted by the King 's most Excellent Majesty This will appear a Form of Words lately made use of in the Twenty fourth Chapter and the Authority of the Lords and Commons assembled in Parliament For he saith this implies distinct Authorities for the Addition of the Authority of the Lords and Commons were superfluous if Laws be enacted by the King's Authority alone To which it may replied according to (d) King's Supremacy p. 89. Mr. Sheringham That though it be granted that they have an Enacting Authority in this particular of Law-making which how step by step it hath been brought to the state it is now in will be cleared in the following Chapters yet the Question is first Whether that be only a Power of assenting that such or such a Law shall be established or a Power that commandeth and giveth life and vigour to the Laws Secondly Whether the Power be radically in themselves or derived from the King As to the first It is agreed by the Judges (e) 2 H. 7.14.11 H. 7.25 Lambard Archeion fol. 271. That the Words Assenteth and Enacteth are equivalent in this Case For their Power of preparing Materials for a Law by framing Bills sufficiently denotes their Assent because they are Bills of their own framing and the Wisdom they show in these and the Care of the Government and People will always make that August Body of great use to the Government and valuable by their Fellow-subjects But secondly In this Particular the Writ of Summons is that which gives them all the Power of which in the Chapter of Parliaments I shall enlarge It must be considered from whom they have this Authority They have the Use and Exercise of the Legislative Power so far as is necessary for that Act although it be not radically in them for although the King's Authority cannot be separated from him privativè so as to deprive him of it yet cumulativè it may be inherent in his own Person and yet be in others too as the Light of the Sun is inherent in its own Body and yet diffused through the whole World And so we call it Moon-shine and Star-light when all their Lights are from the Sun And this Delegate Authority may be called theirs because for the time of their Sitting they are by the Sovereign and Constitution of Government so capacitated to act But since they are called by the King 's Writ and dissolved at his Pleasure they cannot be said to have the Power radically in themselves If this radical Power in the Two Houses were true How could the (f) 24 H. 8. 1 E. 6. c. 2. Statutes declare the King to have entire whole and plenary Power and to be so Supreme that all Authority is derived from him and all Obedience and Allegiance due to him and him alone An utmost Chiefty and Primity of Share as they used to speak in 1641. will not make out the Force of the Statutes Because the Kings of England desiring to rule their People by Lenity have out of Princely Clemency condescended so far as not to impose upon them as hereafter it will appear they anciently did any new Law or alter and repeal the old without their own Consents by their Representatives The Black Parliament of 1641. would have the People believe The Encroachments of the Black Parliament that their Authority was equal with the Kings But when Success had hardned them they were not content with a share they at first challenged but laid claim to all wholly excluding the King and denying him his Negative Voice usurping and taking upon them the whole Power of making Laws So that this Serpent of Co-ordinate Power is not to be suffered to wrigle in its Head lest the whole Body glide easily after But I leave the further discourse of this to its proper Place Preface to the following Chapters and shall now proceed to give some Light to the Government the Britans had among them by the Comparison is found betwixt them the Gauls and Germans Being desirous as much as I can to show the Ancientest usages and under the several Conquests of England how the Government hath received Growth and Alteration sometimes the People being under the Slavery of absolute Conquerors and other times factious Nobles bearding their Kings how the even Thred of Regular Government hath been carried on or interrupted how from an absolute Power of giving Law and ruling in a Military way by the Feudal Law and many other particulars the Government is brought to that Temperament whereby the Subjects may if they will be dutiful live happilier than any other do To illustrate all these it will be necessary to represent the State of the Britans under the Romans and to discourse of the Germans from whence our Saxon Ancestors came and of both of their Manners and Laws and from thence to proceed to illustrate the Legislative Power In all which if I carry my Reader out of his Country to view the State of our Ancient Neighbours I hope he will think it no ill spent time to make that pleasing as well as profitable towr And though I represent him his Ancestors rude and barbarous in Comparison of the Roman civilizedness yet he will find they had some Religion some Arts great and generous Souls as well as strong Bodies and their greatest mis-hap seems to be that those in Britan Gaul or Germany were not under one Monarchy
Manners or Government of the Britans before the Romans Arrival we can find very little of them but what is related of the Druids Peter Ramus in his Book de moribus Veterum Gallorum hath Collected out of the antientest Authors a parallel betwixt the Customs of the Gauls the Germans and Britans there being found in Caesar and Strabo's description of their manner of Living strength of Body Temperance Marriages Habitations and many other Particulars a great affinity of which I shall touch some Particulars hereafter At present I shall speak of the original of the Gauls and of the Druids Discipline and Government of the Gauls and Britans The fabulous Berosus published by John Annius of Viterbium a City in Tuscany saith that Dis or Pluto was the Founder of the Celtick Colonies Celto Gallatia comprehended what was within the River Rhine the Alpes the Mediterranean Sea the Pyrenean Hills Gascoign and the Brittish Ocean and Ptolomy (h) 2. Geog. 2. Quâ—drip Pausan l. 1. comprized all Europe under the name of Celtica This Berosus calls this Dis Samothes and makes him Son of Japhet Caesar countenanceth that of Dis from whence he saith they reckon by Nights The best Authority we have for the Samnothei is that of Laertius (i) In vitis Philos who saith that amongst the Celtae and Gauls the Semnothei as saith Aristotle in his Book of Magick and Sotion in his Twenty third Book of Succession were But there is no mention of their being skilled in Laws Divine and Humane as the fabulous Berosus saith Here Stephen in his notes upon Laertius thinks them to be called Semnothei for having the worshipful Gods 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in their Mouths or that they themselves were accounted amongst Men as a kind of worshipful Gods (k) In Achaicis So in Pausanias we meet with the Chappels of the Goddesses whom the Athenians stiled 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is Worshipful Ramus (l) De moribus veterum Gallorum p. 71 72. De Gall. Imp. lib. 1. out of Berosus saith Philosophy proceeded in the beginning from the Semnothei of the Gaules and that Magus succeded him then Sarson their third King who saith Stephanus Forcatulus reduced the Laws of his Grandfather and Father into one Volume and with severe Threats gave order for the keeping of them and Ramus saith he was the first that appointed the Study of Learning Their fourth King he makes Druis or Druidus from whence the Druids of whom I shall hereafter discourse and their fifth Bardus whose Glory is celebrated by the Bards their Poets and Orators (m) Lib. 15. De Oirgine Gallorum Marcellinus out of Timagenes makes the Aborigines of Gaul to be the Celtae and some part of them to be Peopled by the Dorienses who followed the elder Hercules and possessed the Ocean Shore So Marseilles a City of France was a Greek Colony of the Phocians The Drasidae were another part of the Indigenae or home-bred People and others saith he Q. Whether he mean Britain and Ireland have flowed hither from the remote Isles and from the tract of Land beyond the Rhine and some few after the Destruction of Troy flying from the Grecians being every where dispersed seated themselves in the empty Countries Where we may note by the by that then the Opinion of the Trojans setling in several Countries was believed But Marcellinus saith Quod etiam nos legimus in monumentis incisum the Inhabitants do affirm which he had also seen cut in their Monuments that Hercules the Son of Amphitrio having overcome Geryon the cruel Tyrant of Spain and Turiscus of the Gauls begot upon their noble Women several Sons and called them by the names of the Countries they commanded Also that some came from Phocaea in Asia flying the cruelty of Harpalus the President of Cyrus I am larger upon this Matter because the Britains had the Doctrine and Discipline of the Druids in Perfection as hereafter I shall shew and we find in Caesar a great part of Britany once under the Government of Divitiacus King of the Soissons a People of France and often the customs of the Gauls Britains and Germans are compared or their Manners are near a-kin as appears by Caesar Tacitus Strabo and others Concerning the Laws of Samothes we find nothing in ancient Authors for that of Basingstoke (n) Seldeni Janus Ang. c. 3. Count Palâ—â—â—n is but a very modern Authority that Samothes defined the Spaces or Intervals of all time not by the number of Days but of Nights and he observed Birth-days and the Commencements of Months and Years in that order that the Day should come after the Night Only I cannot but observe that both Caesar saith the same thing of the Gauls and Tacitus of the Germans and the Britains do yet observe it So we call the seventh Night for the seventh Day in our usual Speech such or such a day Senight which is agreeable to Nature and Scripture where we find the Evening and the Morning were the first Day and so Aristotle reckons Privation as the first of the three Principles I pass by the rest of the Story of Phranicus who about nine hundred years after Samothes if we will believe Jeofrey of Monmouth being to reside in Pannonia intrusts the Druids with the Government of Britain and how Brutus the Grand-Child of Aeneas got the Kingdom and about six Hundred Years after Dunwallo Molmatius being King made Laws according to our Jeofery and Ralph Monk of Chester that their Ploughs Temples and Roads that led to Cities should have Priviledge to be places of Refuge and many other things which Gildas mentions and Polydore Virgil hath gathered and how he was buried in Troynovant near the Temple of Concord which (o) Britanniae Speculum Norden will have to be the Temple of London All these wanting the Confirmation of sound Authority as also doth the whole Series of Brittish Kings and the Title of the Trojan Laws that Brutus brought in for there is but one specially mentioned that the Eldest Son should inherit the whole Right and Estate of their deceased Father This indeed might be taken from Herodotus (p) In Euterpe that writes it of Hector Son and Heir of Priamus and this if we believe the Brittish Story was sometimes broken as when the three Brothers Locrinus Camber and Albanactus divided the Land betwixt them as also the Shares that Fenix and Porrix Brennus and Belinus had It is no wonder that we have no better account of those Ages since we find in (q) Neque sas esse exisâ—â—mant ea literis mandare cum in reliquis sere rebus public is privatisque rationibus Graecis literis utantur Caesar That the Druids committed not their Learning to Writing but taught a certain number of Verses and some spent twenty Years in the Discipline and (r) Quamvâ—â— literarum secreta ignoraverint attamen celebrabant carminibus Antiquos suns Deos
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
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
as well as Norway which was the reason why William the Conquerour understanding that the Danish Law was used in that part where the Danes had settled themselves he preferred them before other Laws because his Country of Normandy was sprung from the Danes and Norwegians and it was with much difficulty that he was perswaded against imposing them upon the whole Kingdom saying the Danes and Norwegians were as sworn Brothers with the Normans These Danes entred about the year 790. and were at last overcome by King Alfred and by agreement betwixt him and Guthrun King of the Danes who governed the Kingdom of the East Angles and Northumbrians Guthruns People enjoyed the Danish Laws which differed from the other in nothing so much as the proportion of the Mulcts King Edward the Elder Aethelstan Edmund and Edgar made Laws but from the time of Edgar to Edward the Confessour the Danes having the principal Command the Danish Laws mostly prevailed But Edward the Confessour of these three Laws composed one which saith the Monk of (d) Lib. 1. c. 50. Edward the Confessor 's Laws composed of all Chester are called the Common Laws and to his Days were called the Laws of King Edward By all I have hitherto noted concerning the Laws either made in Germany France Lombardy Burgundy Bavaria or other Countries after they came to have any established Government of their own or in England during the Heptarchy It is apparent whoever was Soveraign imposed the Laws which as to the Saxons in the next Chapter I shall make particularly appear When the Roman Imperial Law began to be disused That the Roman Laws begun to be disused as soon as their Empire declined and was broken is as manifest for these several Nations by the appointment of their Soveraigns had their unwritten Customs and Laws revised and according to the suitableness of them to the Government of their People had them writ into Books and enjoyned them to be observed by their Subjects To make it evident that the Imperial Roman Law was much disused after Justinian's time upon the account of other Soveraignties being established which acknowledged not that dependence upon the Empire as formerly I shall offer something from Mr. (e) Notes upon Fortescue p. 20. Selden who if any other is to be credited in this kind of reading after I have said something of Justinian The Emperour Justinian (f) Proaem de Consirmatione Institutionum Of Justinian 's Laws in the year of our Lord 565 by the help of Tribonian Master and Exquaestor of the Sacred Palace and Exconsul and of Theophilus and Dorotheus Illustrious Men of whose Skill and Knowledge in the Laws and their Fidelity in observing his Commands the Emperour had manifold experience of Although he had commanded them by his Authority and Perswasions to compose those Institutions that the Subjects might not learn the Law from (g) Non ab Antiquis Fabulis discere sed ab Imperiali splendore appetere Breviter expositum quod antea obtinebat quod postea desuetudine inumbratum Imperiali remedio illuminatum est Legimus recognovimus plenissimum nostrarum constitutionum robur eis accommodavimus Ancient Fables but from the Imperial Splendor as he calls it desire them and after fifty Books of Digests or Pandects and four Books of Institutions were made in which were expounded whatever before-time was used and what by disuse was obscured by the Imperial Remedy was Illuminated and he had accomodated to them his fullest Authority and had appointed them to be read and taught at Rome Berytus and Constantinople and no where else Yet the body of the Civil Law was so neglected that till Lothar the Second about the year 1125. took Amalsi and there found an old Copy of the Pandects or Digests it was in a manner wholly disused Under that Lothar the Civil Law began to be profest at Bologna and one Irner or Werner made the first Glosses upon it about the beginning of Frederick Barbarossas's time in Anno 1150. and Bologna was by Lothar constituted to be Legum Juris Schola una sola (h) Sigon de Regno Italiae lib. 11. 7. This Book Lothar gave to the Pisans by reason whereof saith Mr. Selden it is called Litera Pisana and from thence it is now removed to Florence where in the Dukes Palace it is never brought forth but with Torch-light and other Reverence By this account we may note That even before Justinian's time some Laws had been rather by old Traditions which he calls old Fables than by certain Authority received others were by long disuse forgot and after they were thus established by Imperial Authority yet the succeeding Barbarity of the Ages and the new Kingdoms erected caused other Laws to obtain Force the first of which we find very rude All the first Laws we read of in any Nation seem either so comparatively to the refinedness of the Laws in these Ages or else the Digesters and Authorizers of them complain how obscure rude or indigested those were out of which they extracted theirs The great Subversion the Saxons made by their Conquest The Saxons made so great and universal a Subversion in the State that scarce any City Dwelling River Hill or Mountain retained its former Roman or British name so that we have less reason to expect any satisfactory account either of British History Polity or Laws when we only know where they had Camps Stations or Cities Palaces or Fortifications or Temples by the Coyns Brick tessellated Pavements Glass Earthen or Jett Fragments of Cups and other Houshold-stuff or Urns and Sacrificing Dishes which by chance have been found in the Rubbish of many Towns that have been certainly fired and totally demolished which sufficiently disâ—â—ver the noble Structures and rich Furniture the Romens and Britans had before the Saxon Invasions Besides which we may consider not only the continual Wars and Depredations the Saxons made one upon another but that the Daves like a fatal Hurricane or Whirlwind tore up Root and Branch every where overturning ransacking burning and destroying all that they could not peaceably possess Having thus far treated of the State of the Britans and something of the Laws in general A short Glossary of the Names or Titles of the Constituent Parts of Great Councils as a Praeliminary to the better understanding who are meant by the Persons who we find do constitute the great Councils I shall out of Sir Henry Spelman Somner and Doctor Brady give a very short Glossary referring the curious Reader to the Books themselves The most common Words in the Saxon Laws that are used besides the Bishops The Witan or Wites Einhard divides the Germans into four sorts of Degrees the Noble Free-men those made free and Servants his words are Quatuor differentiis gens illa consistiâ— Nobilium sâ—iliâ—et Liberorum Libertorum atque Servorum Adam Brem Hâ—â—t Eccles c. 5. to express the Persons
that order from the Inferior Tenents in Capite The Fideles Liberi homines Fideles Liberi homines are to be understood to signify those which were the King's Tenents in Capite So we find it in a Precept of H. 3. Rex omnibus (t) Cl. 42 H. 3. m. 10. in dorso So Nithard lib. 4. speaking of his own time divides the Germans into Ethelings i. e. Nobles Frilings Free-men and Lazzos Servants or Slaves Thence our Lazie Fellow which we now understand Idle Comitibus Baronibus Militibus aliis Fidelibus suis And when we meet in any Charter or History with Fideles or Liberi homines the meaning will be best known from the subject Matter where they are used and the words with which they are joyned in Construction as Doctor Brady observes We meet with Liberi homines frequently in the Laws of the Conqueror as Liberi homines totius Monarchiae Regni nostri ut nihil ab iis capiatur nisi servitium suum Liberum and in another Vt omnes Liberi homines totius Regni sint fratres conjurati ad Monarchiam nostram defendendam that all the Freemen of the Kingdom be sworn Brethren to defend our Monarchy and these were to be ready with Horse and Arms to do the King Service according to what they ought by their Fees And this was called free Service in respect of other base Services for they were the Tenents in Capite who were the freest of any other Subjects though that Tenure was at last most cryed out against By the Communitas Regni Communitas Regni Vniversitas Regni or totae Terrae or Regni totius Communitas Communitas Regni anciently were only understood the Barons and Tenents in Capite or Military Men though now it is taken for the ordinary People and Freeholders or at best for Knights and Gentlemen under the degree of Barons So besides other pregnant proofs brought by Doctor Brady that one Record of the 30 of E. 1. is sufficient to clear it where the King saith That the Prelates Earls Barons and the other Magnates for (u) Pro se tota Communitate ejusdem Regni themselves and the whole Community of the same Kingdom gave Forty Shillings of every Knights Fee so that it is clear that the tota Communitas Regni were such as pay'd Scutage that is Forty Shillings for a Knights Fee and no others Of these the Tenents in Capite granted and payed it first for themselves and Tenents and then their Tenents in Military Service by Vertue of the Kings Precept payed it to them for so many Fees as they held of them As to the probi legales Milites probi legales Homines Probi legales homines the words did not signifie an honest though inconsiderable Countryman but the probi Homines were famous stout noted Men of Renown of great Report and Integrity They were the best chief most knowing and of the greatest Integrity of those Orders and Degrees of Men the word was applied to In a Precept 7 H 3. Scire facient 12 tam (w) Cl. 7 H. 3. m. 14. dorso Milites quam alios liberos legales Homines So that these were Tenents in Military Service otherwise what needed the words to run Twelve as well Knights as other Free and Legal Men. Therefore in the Writs for Elections of Knights for Counties the Persons to be chosen are two de discretioribus legalioribus Militibus that is the most discreet just knowing and resolute Men in the Country who as the Law by constant usage then required served on Inquests and Juries And the Writ for Citizens and Burgesses was de discretioribus legalioribus probioribus Whoever desires further Satisfaction may find it in Doctor Brady's Introduction to the English History and his Glossary I now come to give an account seriatim from all the Great Councils before the Conqueror and after to the 49 of H. 3. who were the Members of them and what Concurrence in Law-making those Members had with the Sovereign and after the Representatives of the People were brought in what alteration it produced CHAP. XXIV Of the Saxon Great Councils of whom they consisted and how during their Government the Laws were established by the respective Kings AeThelbert King of Kent who died 24 Feb. (a) Ann. Christi 613. Of King Aethelbert's Laws Twenty one years after Augustine the English Apostle was sent to preach the Gospel to the English is said by venerable (b) Eccl. Hist lib. 2. c. 5. Tha othre god the He his Leodum thurh getheaht gefremede eaâ— sivylcere rightra doma gesetnesse mid snotera getheabte gesetâ—e after Romana bysena tha het on Englisâ— awritan tha nu oth this gehaldene synd Bede among other good things which he did for this Nation or People throughout of his counsel or purpose to have framed setled or established Right Judgment or Decrees with the Council of his Wise Men after the Roman Example and writ them in the English Tongue which were holden of his Nation since which in the Original of Bede is thus expressed Qui inter caetera bona quae genti suae consulendo conferebat etiam decreta illa Judiciorum juxta exempla Romanorum cum consilio sapientum constituit quae conscripta Anglorum sermone habentur observantur in eâ and by K. Alfred are turned into the Saxon Language as in the Margent In which we may observe That it was the King that gefremede framed or established gesette with the Council of his wise Men which word Council discovers where the Sovereignty lodged and the words By the Example of the Romans do not so much imply that they were according to the Caesarean Law but that they might be according or consentaneous to the Ecclesiastical Laws of Rome or at least may comprehend both The (d) Dugdale Orig. Jurid c. 4. Textus Roffensis mentions Laws made by Hlothere Eadric and Withred all Kings of Kent which were recorded by Ernulph the Bishop of that place about Anno 760. but I have not seen the Manuscript and so can give no account how the Legislative is declared The next Laws we find are those of Ina King of the West Saxons King Inâ—'s Laws Lambard's 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Editionis Wheeloch p. 1. who according to the Saxon Chronology lived Anno 681. and according to Lambard begun his Reign Anno 712. and ended 727. In the Preface to his Laws we find it expressed as in the Margent which I render thus in English (e) Iâ— Ine mid Godes gyfe West Seaxna Cyning mid getheaht mid Laere Cenredes mines Faeder Heddes mines Bisceopes Ercenwoldes mines Bisceopes mid eallum minum Ealâ—ormanum tham Yldesâ—an Witan minre theode eac mycelre I Ine by or with Gods gift King of the West Saxons with the persuasion suasu as Lambard renders the word Laere but more
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
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
acquired a Soccage Tenure and Fee-simple Estate Therefore the foresaid (q) Praefat. Reger Twysden fol. 155. The English possess their Lands by â—avour not otherwise Hereditarily So Mut. Paris saith Commilitonibus terras Anglorum possessiones affluentiori manu contulit illud parvum quod remansâ—rat sub jugo posuit perpetuae servitutis Gervase of Tilbury concludes this Observation thus Sic igitur quisquis de gente subacta fundos vel aliquid hujusmodi possidet non quod ratione successionis debere sibi videatur adeptus est sed quod solummodo meritis suis exigentibus vel aliqua pactione interveniente obtinuit viz. So every one of the conquered Nation possest their Lands or any thing else not that he should seem to get it by way of Succession but by his deserts or by some Compact or Covenant made with his Lord as it must be understood The most industrious Doctor Brady having on purpose writ so much of this Argument in his Answer to the Argumentum Anti-Normanicum and out of so many Historians confirmed it in the Answer to the Appendix Brady p. 313.314 I must refer the Reader that desires satisfaction to his Book being loth to crowd those matters which are not directly to my purpose Only I cannot but note that the reason why we so often find the same Lands that have been granted by a Father for him and his Heirs required and had a Confirmation by the Son was because the Tenure was so fickle for want of Homage or Omission of Service whereby they might be forfeited I now proceed to the great Councils that I have found in the Reign of William the Conquerour and shall begin with that wherein the Laws I have spoken before of out of Hoveden were made which are agreed by all to be in the Fourth year of his Reign In general we find Gervase of Tilbury telling us The Conqueror makes written Laws That when the famous Subduer of England King William had subjected to his Empire the utmost parts of the Island and by terrible examples had brought to perfect obedience the Minds of Rebels that they might not have liberty to fall into the same errors for the future he (r) Decrevit subjectum sibi populum Juri scripto legibusque sabjicere Quasdam reprobavit quasdam autem approbans Transmariâ—â—s Neustriae leges quae ad Regni pâ—â—â—m tuendam efficâ—teissionae videbantur adjecit Gerv. Tilb. lib. 1. c. 29. resolved to govern the People subjected to him by written Right and Law therefore the English Law being propounded according to their threefold distinction that is the Mercian Law Dane Law and West-Saxon Law he rejected some and approved others and added such Transmarine Norman Laws as seemed most efficacious to defend the Peace of the Kingdom In this account we may observe That the King solely is said to reject and approve and to add such of the Norman Laws as he thought fit for securing the Peace of the Kingdom and the Ingenious Dr. Brady thinks the 52 55 56 58 59 62 63 64. are those Norman Laws intimated Concerning the Oath which Frederick Abbat of St. Albans administred to the King on the Holy Gospel and the Reliques of the Church of St. Albans whereby he swore That for the good of Peace he would observe the good and approved ancient Laws of the Kingdom which the pious Kings of England and especially King Edward had inviolably observed I must refer the Reader to (s) Fol. 48. num 20 30 40. Matthew Paris to understand the occasion of it and Dr. (t) Argum. Antinorm p. 261. Brady's Exposition or Commentary upon it and how little he observed it What the Laws were that King William the First confirmed Authors agree not about as may be seen by comparing (u) Fol. 343. Hoveden (w) Fol. 138 149 Knighton Collect. 2354. N. 61. Lambard of Wheelocks Edition and Spelman in the First Tome of his Councils Fol. 624. Selden (x) In Eadmerum fol. 172. num 20. in his Notes upon Eadmerus writes very suspiciously of all the Laws that are attributed to King Edward except the Crowland Copy judging neither Hoveden Knighton or the Author of the Lichfield Chronicle well versed in Law matters and who writ long after Ingulphus of whom he gives this Character Qui in hac re testium non tam facile Princeps merito dicendus est quam solus forsan cui ut par fit credamus The Title of the Laws properly ascribed to William the Conquerour The Title of the Conqueror's Laws are in the Latin thus (y) Ces sont le Leis les Custumes que le Reis William grantut tut le peuple de Engleterre â—pres le Conquest de la Terre Ice les meismes que le Reis Edward sun Câ—sin tent devant luy LL. W. fol. 159. Hae sunt leges consuetudines quas Will. Rex concessit universo Populo Angliae post subactam terram Eaedem sunt quas Edwardus Rex cognatus ejus observavit ante eum In English thus These are the Laws and Customs (z) LL. W. 1. p. 170. which William the King granted to all his People of England after the subduing of the Land They are the same which Edward the King his Kinsman before him observed In this Preface we have only to note that the Laws are expresly said to be the Kings Grant and the Supplemental Laws after the 50th which were found in the Croyland Copy being writ in the Red Book of (z) LL. W. 1. p. 170. the Exchequer are by way of Charter or Grant thus Will. Rex Anglorum c. omnibus hominibus suis Francis Anglis salutem and all along the Authoritative parts expressed by statuimus volumus interdicimus prohibemus praecipimus decretum est The Terms used by the Conqueror in Law-giving The expressions Authors use concerning his Laws whereby the absolute Soveraignty of the Conquerour in the point of Law-giving is manifested are to be found in all those who have writ of his Life I shall content my self with a few Ordericus (a) Fol. 853. Vitalis saith eamque i. e. England Gulielmus Rex suis Legibus commode subegit that he subdued or rather subjected England profitably to his Laws Eadmer (b) Hist Nov. fol. 6. num 10 20 30. Vsus atque leges quas patres sui ipse in Normannia solehant in Anglia scribâ—re volens Cuncta divina simul humana ejus nutum expectabant Edit Gal. de Moulins saith That King William designing to establish in England those Usages and Laws which his Ancestors and he observed in Normandy c. all Divine and Humane Things he ordered at his pleasure The Chronology of Rouen saith Leges quas in hunc diem Angli observant idiomate Normanico promulgavit The Laws which at this day the English observe he published in the Norman Language Mr. Camden saith (c) Britan. fol. 109. That
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
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
Regni nostri de Concilio nostro existentium providimus statuimus ordinavimus which (i) Pulton fol. 35. Anno 1279. 14. Nov. 7 E. 1. Pulton renders by the Advice of our Prelates Earls Barons and Subjects of our Kingdom being of our Council the King hath provided made and ordained whereas by Fideles is to be understood the Tenents in Capite The Statute of Acton Burnel or Statute Merchant 11 E. 1. according to Tottel was made by the (k) Ce Roy per luy per tout son Counsel ad ordain establâ—e Tottel fol. 49. 82. King himself and his whole Council That this was done in Parliament appears by the Statute of Merchants made in the 13th of the same King wherein it is said Our Lord the King by himself and by his Council at his (l) A son Parliament quâ—il â—â—â—â—t a Acton-Burnel c. Parliament which he held at Acton Burnel 11 Regni made and ordained these Establishments or as (m) Pulton fol. 36. Pulton hath it The King caused the Statute made by the King and his Council at Acton Burnel to be rehearsed and hath ordained and established Since the 49 of H. 3. to the 18 of Ed. 1. we find (n) Râ—t Pat. 20 E. 1. m. 15. no Writs for summoning of Knights Citizens and Burgesses but the 14 of June 18 Ed. 1. The King issued out the following Summons Rex c. The Form of Summons of Knights Citizens and Burgesses renewed at the Petition of the Nobles Two or three Knights to be chosen cum per Comites Barones quosdam alios de Proceribus Regni nostri nuper fuissemus super quibusdam specialiter requisiti tam cum ipsis quam cum aliis de communitatibus Regni illius colloquium habere volumus tractatum c. Tibi praecipimus quod duos vel tres de discretioribus ad laborandum potentioribus Militibus de Comitatu praedicto sine dilatione eligi eos ad nos c. venire facias c. cum plena potestate pro se communitate Comitatus praedicti ad consulendum consentiendum pro se communitate illa hiis quae Comites Barones Proceres praedicti tum duxerint concordanda vel concorditer ordinaverint in praemissis The English of which is Whereas we have been especially petitioned and requested by the Earls Barons and others of the great Men of our Kingdom concerning certain matters upon which we will have Conference and treat as well with themselves as with others of the Counties of that Kingdom We command thee that without delay thou makest to be chosen two or three of the most discreet and ablest Knights for dispatch of business of the Counties aforesaid and cause them to come to us c. with full Power for themselves and the whole Community of the County aforesaid to consult and consent for themselves and that Community to such things which the Earls Barons and great Men aforesaid shall think fit to agree upon From this we may observe That by Vertue of this Writ No Citizens and Burgesses but only Knights for Counties no Citizens or Burgesses could be chosen or sent to Parliament But only Knights for Counties Secondly The Scutage was granted in this Parliament as Doctor Brady hath noted fourteen days before the Writ for Election of Knights issued out and it is (o) Tottel's Stat. p. 85. apparent That the Statute of Westminster the Third was made the Eighth of July which was a week before they were to appear and consequently was made without them for the Preamble runs Dominus Rex in Parliamento suo apud Westmonasterium post Pascham Anno Regni sui 18. viz. in quindena S. Johannis Baptistae i.e. 8 July ad instantium Magnatum Regni sui concessit providit statuit From this Writ and the Variation of the following Writs and other Records the judicious Doctor Brady (p) Answer to Petyt fol. 151. notes That it was from the Kings Authority and at this time that the House of Commons came to be fixed and established in the present constant form it now is and hath been for many Kings Reigns and it doth appear that King Edward the First was not altogether confined to any certain number of Knights Citizens or Burgesses nor were several strict forms and usages now practised ever then thought of or some legal Niceties or Punctilioes now in use then judged of absolute Necessity The Statute of Quo (q) Pulton An. 1290. fol. 58. Warranto in the Eighteenth Year of Edward the First saith that the King of his special Grace and for the affection he beareth to his Prelates Earls and Barons and others of his Realm hath granted c. The Statute de (r) Idem Anno 1293. fol. 61. Malefactoribus in Parcis in the Twenty first Year of Edward the First saith Our Lord the King at his Parliament c. at the instance of the Nobles of the Realm hath granted c. Anno 1294. the King issues out his (s) Cl. 22 E. 1. m. 6. dorso Four Knights for a County Writs to cause two Knights out of every County to be chosen c. Dated the Eighteenth of October and the next day issues out Writs for other two to be chosen to meet at the same time and place Out of Mr. Ryley's (t) Fol. 241. Placita Parliamentorum it is clear that the Parliament which met on the Octaves of St. * Claus 28 E. 1. m. 3. dorso Hilary or the Twentieth of January in the Twenty eighth Year of Edward the First sate but eight days the Writ for the Commons Expences bearing date January the Thirtieth of the same Year and the Letter to the Pope signed by the Temporal Lords for themselves and the whole Community of the Kingdom of England is dated February the twelfth next following after the Commons had been dismissed fourteen days so that the Barons still continued to stile themselves the Community of England The Barons stay after the Commons dismissed and both Spiritual and Temporal Barons and others of the King's Council did stay and dispatch much Business after all others were dismissed as further appears in a (u) See Brady's Answer to Petyt fol. 152. Proclamation 21 March 33 Ed. 1. Wherein the King gives the Archbishops Bishops and other Prelates Earls and Barons Knights of Counties Citizens and Burgesses and other Persons of the Commons which by our Lord the King's Command came to this Parliament many Thanks for their coming and willeth that at present they return into their Counties so as they readily and without delay do come again at the time when they shall be remanded except the Bishops (w) Sauve les Evesques Countes Barons Justices autres qui sont du Conseil nostre Seigneur le Roy que ceux ne sen allient saunz especial conge du Roy. The King's Council prepare Laws Earls and
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
Preamble to the Writ of Summons 4 E. 3. is very (r) Cl. 4 E. 3. m. 13. dorso General Causes of Summons remarkable Rex c. Qualiter negotia nos statum Regni nostri contingentia postquam suscepimus gubernacula Regni nostri hucusque in nostri dampnum dedecus ac depauperationem populi nostri deducta erant vestram credimus prudentiam non latere propter quod non volentes hoc urgente conscientia ulterius sustinere ac desiderantes toto corde statum Regimen Regni nostri secundum juris ac rationis exigentiam ad honorem Dei tranquillitatem pacem Sanctae Ecclesiae ac totius populi ejusdem Regni reformari Ordinavimus c. Parliamentum c. The 22 of E. 3. hath a peculiar (s) Cl. 22 E. 3. part 2. m. 9. dorso Clause Quod dictum Parliamentum non ad Auxilia seu Tallagia a populo dicti Regni nostri petenda vel alia onera eidem populo imponenda sed duntaxat pro justitia ipsi populo nostro super dampnis gravaminibus sibi illatis facienda Another considerable (t) Cl. 31 E. 3. m. 21. dorso Clause is to be found 31 E. 3. Et quum praedicta negotia perquam ardua sine maxima deliberatione tam Praelatorum Cleri quam Magnatum Communitatis ejusdem Regni nullo modo expediri poterunt ad quorum expeditionem Auxilium Consilium tam a vobis c. habere necessario oportet The (u) Cl. 3 H. 6. m. 9. dorso Preamble 3 H. 6. is to enquire how Justice hath been done c. Quia nos jam dum in Annis degimus teneris an pax justitia ubilibet inter Ligeos nostros Regni nostri Angliae sine quarum observatione Regnum aliquod prospicere non potest debite conserventur exhibeantur necne c. Therefore he summons a Parliament The cause (w) Cl. 22 23 E. 4. m. 11. dorso of the Summons 22 E. 4. is thus expressed Quibusdam arduis urgentibus negotiis nos securitatem defensâ—onem Ecclesiae Anglicanae ac pacem tranquillitatem bonum publicum defensionem Regni nostri Subditorum nostrorum ejusdem concernentibus Therefore he summons them The special causes are mostwhat to have supply against the Kings Enemies Special Causes of Summons the French or Scotch Kings and it is to be noted that in the Summons of King E. 2. mostly the (x) Sâ—otis Inimiâ—is Rebellibus nosâ—ris Claus 2. E. 2. m. 20. dorso Scots are not only called the Kings Enemies but his Rebels which implies them Subjects by vertue of the Homage done to his Father and so 8 E. 2. M. 24. dorso it is called Terra nostra Scotiae though he was the most unfortunate of all our Kings in his Expeditions against that Kingdom The first (y) Cl. 14 E. 3. part 2. m. 28. dorso With the Advice of the King's Council Writ I have found wherein it is said the King called his Parliament with the Advice of his Council was 14 E. 3. quia de avisamento Concilii nostri ordinavimus and so in 46 E. 3. and afterwards sometimes used and often omitted but in later times generally used The last considerable thing in their Writs is what the Prelates c. summoned were to do at these Parliaments which most-what is comprehended in these Words That it is (z) Vestrum expedit habere consilium Cl. 6 Jo. m. 3. dorso What the Summoned were to do expedient to have their Counsel or nobiscum super dictis negotiis tractaturi vestrumque consilium impensuri 23 E. 1. m. 9. dorso or ad tractandum ordinandum faciendum nobiscum Cl. 24 E. 1. m. 4. dorso Ad ordinandum de quantitate modo subsidii Ibid. m. 7. dorso habere colloquium tractatum Claus 2 E. 2. m. 20. dorso ad tractandum consentiendum Cl. 6 E. 2. m. 2. dorso So in (a) Cl. 14 E. 3 par 1. m. 33. dorso another Ordinabimus quod juxta consilium vestrum aliorum Praelatorum Magnatum caeterorumque ibidem convocatorum viderimus opportunum In the (b) Cl. 20 E. 3. par 2. m. 22. dorso 20 of E. 3. it is thus expressed Ad consentiendum hiis quae tunc praedictos Praelatos Comites alios Proceres ordinari contigerit super negotiis antedictis and the like 46 E. 3. m. 11. dorso In the Writ 38 H. 6. m. 29. dorso it is Ad tractandum consentiendum praecludendum super praemissis aliis and 23 E. 4. Et concludendum and so in the 15th of K. Ch. the First Ad tractandum consentiendum concludendum SECT 3. Of the Summons of the Temporal Lords I Have been the longer upon these Writs of Summons to the Clergy Summons to the Lords Temporal like those to the Prelates excepting in some few Particulars because those to the Nobles differ'd not much and the material differences will be all I need note in their Writs and in these we may find the gradual alteration from giving Counsel and Advice only it came to Treaty Ordaining Consenting Doing and Concluding I shall refer the curious Reader for the remarks that may be made from all these Writs to Mr. Prynn's (c) Part 1. Briâ—f Register p. 1â—2 c. Collection of them and only note some few most to my purpose of the Earls Barons and the greater Tenents in Capite's Writs and then proceed to the Writs of the Knights Citizens and Burgesses The first Writ of Summons to a Parliament now left upon Record as (d) Ibid. p. 160. Mr. Prynn notes is that of 49. H. 3. those of the (e) Cl. 45 H. 3. m. 3. dorso 45th being only Summons to assist the King cum Equis Armis cum Posse vestro as that to W. de Bello Campo de Aumel and others shew being only to afford him aid against his Enemies and Rebels In most of the Writs to the Princes Dukes Earls Barons and Peers In Fide Homagio vel Ligeanâ—ia proper to Temporal Lords we find the Mandamus is Vobis in fide homagio quibus nobis tenemini But sometimes as to Edmund Earl of (f) Cl. 25 E. 1. m. 25. dorso Cornwal it is Mandamus in homagio fide dilectione and that to Thomas de (g) Cl. 36 E. 3. m. 42. dorso Furnival 36 E. 3. is fide ligeancia quibus nobis tenemini That to Edward Prince of Wales 49 E. 3. 6 m. dorso is directed Carissimo primogenito suo Ed. Principi Walliae and the Mandamus neither hath adjoined to it fide homagio or any other Word See Prynne's Brief Register part 1. p. 207. but only commands him to be present in propria persona though others have fide homagio or ligeancea It is to be noted that the clause in
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
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
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.
Statutes of this Kingdom do give assign and appoint the correction and punishment of all Offenders against the Regality and Dignity of the Crown and the Laws of this Realm unto the King which manifests P. 23 that all such things are to be tried in his Courts So that surely the Commons Privileges must be included for to trouble any saith the Author of The Lawyer outlawed that doth not offend against the Crown or Laws of the Land is very Illegal and Arbitrary Id. p. 16. and an high breach of the Liberty of the Subject It would therefore be considered how improbable it is that after our Ancestors have struggled for many Ages Infoeliciter aegrotat cui plus mali venit a Medico quam a Morbo to preserve themselves and posterity from the unbounded Rule of Arbitrary Pleasure and having obtained that from their Soveraigns in so much that they can neither be fined or imprisoned by their Soveraign unless for transgressing some known Penal Law of the Land should leave any Arbitrariness in the House of Commons who are but the Peoples honourable Deputies Trustees and Atturneys Thirdly The Law hath provided where the Breach of the greatest Privileges are to be tried It is to be considered that the Law hath expresly provided where and how Breaches of Privilege ought to be punished 5 H. 4. c. 6. and 11 H. 6. c. 11. about any Assault upon a Parliament man or his menial Servant to be in the Kings Bench. Since therefore such Assaults are far more Criminal than Arrests of them or words spoken against them or inferiour misdemeanours to argue a majori ad minus it should seem rational that in the Courts of Justice being open to redress all sorts of Illegalities matters should be rather tryed than that persons should be punished by Imprisonments of the House of Commons alone For if this Arbitrariness were allowed it would argue a great defect in our Laws that they are not the entire Rule of the Subjects Civil Obedience and if the ordinary Courts of Justice can try the greater they may certainly try the lesser Crime as they have done in the Case of Done against Welsh River against Cosyn Shewish against Trewynnard Mich. 12. E. 4. Rot. 20. Excheq Hil. 14. E. 4. Rot. 7. Dyer fol. 59. But I have sufficiently shewed before that in old time the determination and knowledge of the Privileges did belong to the Lords How agreeable these ways of Proceedings were to the Usage of the House of Commons in 1640. and 1680. The Proceeding of the Houses in Anno 1640. and 1680. are fresh in every ones memory when not only they ejected and imprisoned their own Members but by Messengers sent for several Gentlemen and others no Members for acting according to the known Laws and King's Proclamations and often for Persons having spoke angrily or slightingly of some Member as in the Case of Abhorrers It is to be hoped those very Gentlemen now wish it might be forgot as I hope it will never be put in practice again when after a chargeable sending for up by the terrible Messengers after being detained in Custody during the Pleasure of the House and brought to receive their Sentence on their Knees at the House of Commons Bar they were dismissed So that I knew one who principally to avoid the Charge his Crime being for speaking Words against a Member in his Cups was forced upon notice of the Messenger 's coming for him to fly into Ireland Fourthly That the Law and Custom of Parliament may be declared It is worthy great Consideration by all the Members of the Honourable House of Commons that it is an undoubted Maxim both in Law and Reason and is necessary to the Obligation of all positive Constitutions That they should be published in express Words The immediate Laws even of God Almighty in the Opinion of Learned Men being not obligatory where they were never promulged Now since it hath not been hitherto published to the People what this Lex Consuetudo Parliamenti is 4. Inst it p. 15. Illa lex ab omnibus quarenda a multis ignorata a paucis cognita Fleta l. 2. c. 2. which Sir Edward Coke saith out of Fleta is to be enquired into of all is understood by many and known to few it would not only be obliging but most necessary that the Honourable House would give a true and full Description of this Law and Custom of Parliament and an exact Account of their Privileges that People might in some measure for the future shun those dangerous Rocks and not be surprized or shipwrack'd on such hidden Shelfs I shall close this long Chapter wherein according to my Talent I have endeavoured to comprise what hath been voluminously treated of by all the Authors I am furnished withal and digested things into an easie Method with some Assertions of Mr. Prynne whose Writings in this Particular are better esteemed than many others He saith Brief Register part 4. p. 685. Mr. Prynne's Opinion concerning the great Privilege the Commons The Parliament being the Supremest Court of Law and Justice ought to proceed legally according to the Course of Law and not to enlarge or extend the Privileges of Parliament beyond their Ancient Just and Legal Bounds nor alter the Law therein by their absolute Power Much more ought the House of Commons themselves to follow their Precedent and not to extend their old or vote up new Privilege to the delay Ibid. p. 1210. retarding or deluding of Common Right and Justice Therefore he condemns the writing of Letters by the Speaker 18 Jacobi 1. 14 Feb. 18 Jac. fol. 24. b. to stay a Tryal betwixt Sir William Coxe and Mr. Humphrey Aylworth as likewise in other Cases the same Year Ibid. fol. 51. b. fol. 137. 3 March and 20 April which he saith is diametrically opposite to the Judges Oath and against the Great Charter which saith See Stat. 2 E. 3. c. 6. 14 E. 3. c. 14.20 E. 3. c. 1 2. Nulli negabimus nulli differemus Justitiam Rectum To which I may add the Hardship used to Mr. Sherridon Lawyer outlawed p. 28. who being in the Custody of the Serjeant at Arms the Warrant of Commitment being during the Pleasure of the House of Commons Mr. Sherridon's Case who was denied the Benefit of the Habeas Corpus Act. without any Cause shown now the Habeas Corpus Act is express That all Persons are Bailable by what Person soever committed not excepting the King and Council much less the House of Commons unless for Treason or Felony One of the Judges made application to the House of Commons to know whether he might grant the Writ of Habeas Corpus to him The Debate lasted three days by reason of the Difficulty of the Cause For if they openly declared against the Habeas Corpus the Nation would be much alarm'd and suspect these Gentlemen instead of securing
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
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
and his People as they loved to phrase it they answer by their Prolocutor that those who contract to their own ruin or esteem such Contracts before their own preservation are felonious to themselves and rebellious to Nature Inferring from thence That if the legal Constitution of Government The Writers for the Parliament affirm That where the Houses think the Constitution of the Government is not agreeable to the Liberty of the People they may alter it be not agreeable to the Liberties the House conceives needful for them they are obliged to contend to alter them which is no more nor less than if a Criminal being condemned to be hanged should be guilty of another Felony and Treason against Nature to yield to the Sentence but that he ought in his own defence to kill as many as he could that he might thereby save his life by escape Thus I hope I have made apparent the falshood of the Positions ranged in defence of that dismal Parliament How the Long Parliament voted all the Power into their own Hands who made use of them as Platforms upon which to plant the Artillery of their Acts and Ordinances For under the pretext of their obligation to preserve the Kingdom they voted to put it in a posture of defence and they voted from the King his Navies Officers Privy Counsellors and Revenues pretending the Navies were still reserved for the King in better hands than he would put them and for the other they would furnish him with better principled Ministers Whereas by the same Precedent the Subjects were bound to give up their Estates to their ordering as often as they pretended they could dispose of them more wisely For they might alledge the State which they reputed themselves had an interest paramount in them in case of publick extremity so that as they pretended the Head without the Body was the State before so now it was fit the Body should be without the Head whereas the Law hath provided against either exorbitances and if there was necessity we must fall into one we ought in reason to chuse the former because being better acquainted with that we could better digest it and it would be less burthensom to our Estates to satisfie one than five hundred nay ten thousand as it appeared when the greedy Commonwealths men with their Committees Armies c. was that flat Vermine in the Bowels which how true soever it is of the lumbricus latus was certainly true of this Monster That it was every where Head and Mouth It is to be well weighed When Parliaments beneficial when not that as Parliaments are in the highest degree beneficial when they keep within the bounds of duty and sobriety so when they will have their Ordinances to have the force of Laws and not govern themselves by known Laws they are the cause of many Distempers in a Kingdom and the Subjects condition is most unhappy in the Multitude of Physicians for extraordinary Remedies such as they always pretend to use are saith Sir Henry Wotton like hot Waters which may help at a pang but being too often used spoil the Stomach A Compleat Parliament is that (f) Answer to Observ p. 150. Panchreston or Soveraign Salve for all Sores but some would make the name of Parliament a Medusa's Head to transform reasonable men into Stones and subordinate Monarchy to the two Houses who must be denied nothing but with their good will would claim for them a paramount interest with the Soveraign whom they would advance only to the height and mighty Dignity of a Doge of Venice or a Roman Consul whilest they must be the Tribunes of the People their Supervisors So that we cannot be content to gather the blessed fruits right constituted Parliaments would afford us but we must rend away the top Branch yea stub up the Tree that we may scramble for the Fruit. Tacitus (g) 10 Annal. gives a Caution how a Prince may support his Authority that he do not vim Principatus resolvere cuncta ad Senatum revocando Kings not to grant away their Prerogatives at the Importunity of Parliaments It is fit a Prince should have the Glory of performing those things himself which are his Prerogatives and not to refer such things to Conventions of Parliament which properly belong not to their Cognizance Since therefore by the condescensions of our Wise and Gracious Princes there are several things in England the King cannot by Law do alone it is a most requisite Wisdom in Princes that as they observe the Laws in securing the Peoples Liberties and Privileges so by no Arbitrary Assumption of either or both Houses to let their Prerogatives be invaded for those are now no more than are rationally and politically necessary for orderly and established Government The Encroachments of the never to be forgotten long Parliament several of which I have in this and the foregoing Chapter hinted may be sufficient documents to Princes not to yield such a body too much Power for if the ballance once decline a little weight will sink it Therefore though Princes are not to enlarge their Prerogatives nova siti ad alia aliaque properare yet they ought to preserve those that remain For any Raveling once yielded will make the Royal Cittadel defenceless Testudo ubi collecta est in suum tegmen tuta est ad omnes ictus ubi exerit partes aliquas quodcunque nudavit obnoxium infirmum est The Tortoise as long as it keeps within its shell and coverture is safe but if it unbare any part it is obnoxious to danger Above all things a Prince should he careful never to part with the Prerogative of Summoning and Dissolving Parliaments For we cannot forget that the Houses of 1641. not content with a Bill for Triennial Parliaments got an Act for perpetuating themselves and that would not satisfie but they prepared a Bill for the certainty of future Parliaments whether the King had occasion for them or not so that if the King omitted the sending out of Writs and Summons the Chancellor might and for failure the Sheriff and I know not what inferiour Officers of which the Blessed King complains I cannot dismiss this Subject without taking notice of the Fundamental cause of Factious Members of Parliament The fundamental Cause of Factious Members in Parliament In England there is no such powerful Engine to make Faction and Sedition formidable and dangerous to Government as when the Majority of the Freeholders are wrought upon by the Arts I have in some measure hinted before and shall more largely in the Chapter of Faction to chuse Members of the House of Commons of their own Temper for such a Number being imbodied in that House give and receive mutual strength from one another For when such are met they do not take care to unite the minds of the Subjects to their Prince or one to another or imploy their time upon the great concerns of
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
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
correct the Vitious so they should begin the Reformation at home Chilon's (c) Laertius in vita Chilonis Brother desiring to know why he was not chosen at Sparta as well as Chilon he answered that he knew how to bear an Injury which his Brother did not for in Publick imployments those who are the Censores morum and chastise the Infringers of the Laws must expect Calumnies and evil Entreaties from the incorrigible and debauched and such must be resolved to perform their duty without any other by-end of Revenge Tyranny and Imperiousness on the one hand or hasty rast Cholerickness Partiality or Corruptness on the other Plato (d) Lib. 4. de LL. adviseth that the wealthiest be chosen for the better support of the Dignity but withall that they be such as are exemplary in obeying the Laws For none are more fit to serve their Prince and profit the Subjects than such as are obedient to the Laws which when they make a rule of their own Actions they will be sure to exact it of others It is great disparagement to a Prince to chuse men of vitious or uncommendable lives or such as have not worth and honour to commend them So the Princes of Europe think the Grand Seignior not so well served by Slaves nor was it so commendable in the Roman Emperors to make their Freemen of greater Power with them in the managery of greater affairs than Consuls or Senators which made (e) Praecipuum indicium non magni Principis magni Liberti Panaegyr Pliny say It was the principal sign of a Prince not great where the Freemen were great The Prince cannot be presumed to chuse his Magistrates by his own knowledge of their abilities and fitness for their several Imployments but must trust such as are about him therefore it becomes them well to know the qualifications of such as are to bear Office for the Rule of Tacitus (f) Melius officiis administrationibus non peccaturos praeficere quam damnare cum peâ—â—arint Vita Agricolae is to be observed That it is better not to prefer to Offices and Administrations such as will transgress than to condemn them who have transgressed CHAP. XXXIII Of the Soveraigns appointing Judges Courts of Justice and other Officers HAving treated in the last Chapters of such as have a general inspection into and by the Soveraigns Election and placing them a power of advising at least how the whole frame of Government is to be disposed as both Prince and People may be happy I come now more particularly to the Ministerial Officers of Justice such as are the Lord Chancellor or Keeper Lord Treasurer the two Lord Chief Justices and the rest of the Judges whether they be the Judges at Westminster or those of Assises Oyer and Terminer to try Causes in their respective Circuits I undertake this Task Lugduni tanquam Rhetor dicturns ad Aram The Author's Apology or one that procul profanus adorat The Subject being only fit to be handled by such as have read and digested the whole Body of the Laws and are eminent in the Profession of them whereas I must own my self to have tasted only so much of that Ornamental and most useful Study as may quicken a dull and languid Appetite to praise or rather admire it than that I can hope to benefit the judicious Reader by an imperfect Description of their Calling and Office who by the Sovereign are appointed to be the Oracles of the Law and the Ministers of his Justice whose great Wisdom and Knowledge all ought to reverence But as they make so great a Figure in the Government I could not omit them though it be but to salute the Skirts and hold up the Train of their Scarlet Robes SECT 1. IN Edward the Elders Days those that gave Judgment under the King King Edward the Elder 's Law about Judges Gerefa had the name Gerefa under which name Aldermen Earls Presidents Prefects Governours c. were comprehended From whence with the Germans the word Grave is used for an Earl President Judge c. and our Sheriff is from Scyre gerev Raeve or Graeve of the Shire The Charge in that Kings Laws runs thus (a) Eadweard Cyning vyt thaem Gerefum eallum that gede man swa ribte domas swa gerihtoste cunnon hit on thaere dombec stande ne wandigeth for nanum thingum folcrihte to gerecanne c. Eadward the King wills that all his Graeves give so right Judgment as they can most Righteously as it stands in their Judgment Book that is as we may suppose in the written Laws fearing for no thing or cause to declare or pronounce Right or Justice to the People The which publishing of Justice they shall appoint at certain times or Terms when they will perform it and declare the same So that in this seems to be comprehended what is more at large in the Oath of a Judge in After-Ages We must principally consider that the King is the Fountain and original of all Justice in his Kingdom The King is the Fountain of Justice therefore Bracton (b) Lib. 3. cap. 9 10. Rex non alius debet judicare si solas ad id sufficere possit cum ad hoc per veritatem Sacramenti teneatur astrictus sicut Dei Vicartus Minister in terra saith That the King and not another ought to judge if he alone were sufficient to do it being bound by his Oath to it therefore the King ought to exercise the Power of the Law as Gods Vicar But if our Lord the King be not sufficient to determine all Causes that the Burthen may be lighter divided among several Persons he ought to chuse Men wise and fearing God See Britton fol. 1. Coke 4. Inst c. 7. and appoint them Justiciaries Yet this surrogating of Judges in the Kings respective Courts doth not divest the King of his Power for as the same (c) Rex habet ordinariam Jurisdictionem omnia Jura manu sua quae nec ita delegari possunt quin ordinaria remaneant cum ipso Rege Bracton saith The King hath ordinary Jurisdiction and all Laws are in his Hands which cannot be so delegated but that they remain with the King From which and other Authorities Mr. Lambard saith (d) Archaion That the Courts derive their Powers from the Crown their original and drawing by one and one as it were so many Roses from the Garland of the Prince leave nevertheless the Garland it self undespoiled of the Sovereigns Vertue in the Administration of Justice Therefore saith Sir Edward (e) Tit. Discontinue de Proces part 7. 30. Coke By the Common Law all Pleas were discontinued by the Death of the King and Process awarded and not returned before his Death was lost For by the Death of the King not only the Justices of both the Benches and the Barons of the Exchequer but Sheriffs also and Escheators and all Commissions of
(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
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
well as Interests Some and those the wisest favouring (n) Alii Principum partibus alii Patriciorum Factionibus student Tacitus their Prince others the Patriots as they call them and study Factions Yea the very heads of several Companies and Societies often bandy one against another by emulations first and after by siding into Parties so that it is observable that by their natural proneness to Factions where nothing but Rivers low and high grounds have divided the Inhabitants those local distinctions have been sufficient to discriminate them into Parties So it happened betwixt the Inhabitants of the Pyroeus and Athens also at Syracuse betwixt the City and Cittadel At Rome betwixt the Cis and Trans-Tyberini So at (o) Monstrelate lib. 1 Paris the Inhabitants on one side the Seyne were for the Faction of Orleance and the other for Burgundy The like we have known between London and Southwark and Westminster and London A judicious (p) Humane Prudence Author saith A great City is the fittest Engine to turn an old Monarchy into a new Commonwealth and the reason is obvious for Corporations and Cities are so many Republicks within a Monarchy which when by their Combinations in numerous swarms they attcque they much endanger though being composed of the Loyal as well as Factious after they have found the tyranny of their fellow Citizens and the difference betwixt the mild Rule of their Princes and the Arbitrary one of their fellows they mostly return to their Senses and Allegiance again CHAP. XLIII Of the Symptoms and Diagnostick signs of Sedition and Faction THE learned (a) Apud Japonios Campana est quae quoties Regno magnae instant Seditiones Tumultusque suapte sponte pulsatur Phonarg lib. 2. sect 3. c. 14. Athanasius Kircher in his curious Book or Sounds tells us That in Japan there is a Bell which toleth of its own accord so often as great Seditions and Tumults are forming or beginning in the Kingdom And in Spain in a Town called Vibilla in the Diocess of Caesar Augusta (b) Lib. 2. de Fascinatione cap. 14. Varius tells us there is a Bell which they call Miraculous for that some Months before any mischief or calamity befalls Christendom it sounds by it self without any one that is known to ring it as in several calamitous periods he mentions As to matter of fact though attested by grave Authors I shall not make any enquiry whether the Relations be true or not But if God Almighty had vouchsafed such a vertue to every Parish Bell it might supersede all enquiries into the signs of approaching Sedition and Faction Yet I question whether it would enable Governours to prevent them for the most would be apt to conclude That as they were by a supernatural Power or from the Deity appointed to be the presages of Factions and Seditions so they would conclude that God Almighty had destined such Commotions and would be the more ready to promote and push them forward Shepherds of People saith the ingenious (c) Essays Descriptions of the Signs particularly Chancellor had need know the Kalenders of Tempests in the State There are certain hollow blasts of winds and secret swellings of Seas that forerun them and so there are in States First Hatred Hatred to the Government is a certain sign of intended Sedition It is not easie to be conceived saith Seneca (d) Neseis quâ—ta rabâ—es oriatur â—hi supra modum olia crevâ—runt De Clementia how great a Rage may arise when the hatred is over-grown it is then ready to teem and the Poison will break forth Therefore Cicero saith No Government can be lasting which is much feared be it grounded or ungrounded for (e) Quem quisque odit pâ—riisse expetit Cic. de Officiis 2. men naturally hate whom they fear and whomsoever one hates on such an occasion he wisheth his destruction Secondly Contempt This secret hatred acquires an efficaciousness by Contempt for Fear is slow and undaring but Contempt puts on the Armor Fear is an extinguisher of an Attempt and a Prince is in Sanctuary while his Enemies fear but when a Factious man is emboldened to contemn his Prince he shaketh off fear and consequently reverence This happens most to mild Princes and criminally merciful by which they do themselves and the (f) Plebâ— Reverentiam omnem excutiunt licentiâ—â— prâ—bent peccandi Arist Polit lib. 6. c. 4. publick great harm liberty is thereby taken of trangressing and the Reverence of the People is thereby laid aside (g) Augetur crescit quicquid in honore est desiâ—it minuit quiequid in contemptu Dio in Nerva While Honour to the Prince lodgeth in the Subjects breasts the veneration to him daily encreaseth but when he is once contemned his Authority and Power sinks in the Socket For Reverence is that wherewith Princes are girt of God and when Discords Quarrels and Factions are carried openly and audaciously it is a sign that reverence to Government is lost In Tiberius's time Greedy after News when Julius Flâ—rus headed the Gallick Rebellion (h) Cuncta in mâ—jus credita mulâ—i prasentium odio cupidine muationis suis quoque periculis â—atabantur 3. Annal. Tacitus gives us an account how the Male-contents at Rome received the news of it whereby we may learn some Symptoms of Seditions For all things saith he done by Florus were believed to be worse many for the hatred they bore to the present management and out of the desire of changes even rejoyced in their own dangers Thirdly Libels Other great signs of Troubles and Factions are sholes of Libels and licentious discourses against the State spreading false News to the disadvantage of it the often running up and down of such and the greedy embracing them for Seditious Tumults and Seditious Fame are but Brothers and Sisters The Presses are pestered with Seditious Pamphlets deluding abusing flatterring enticing terrifying or (l) Address Part. 3. affrighting according as they may be serviceable to the Faction they wish for The Illustrious Saint and Martyr felt the heat and suffered the scorchings of those Tongues set on fire by Hell and after of those Pamphlets sparks and flakes which raised that fatal fire in his three Kingdoms and when the Kings Ministers his Judges Officers Civil and Military were represented in the most odious manner that malice could invent with a thousand false and ridiculous Lies of fear of Popery and Arbitrary Government which was and ever will be the burden of those Syrens Songs it was easie to discover the approaching Storm and an evident Symptom of a distempered People on the Tiptoes of Frenzy The grave (m) Occultis primum sâ—rmonibus ut vetita solent mox vago rumore apud imperitiâ—imi cujusque promptas aâ—es aut rursum apâ—d turâ—idos eoquâ— nova cvpientes Tacâ— 2. Annaâ— Historian describes secret murmurers and spreaders of false News thus That they begin with
The Advantage of Hereditary Succession in Private Families Aristotle's Opinion Philosopher dividing Kingly Government into four kinds as I have before instanced allows all to be Haereditary except the Aesymnaetian which was Elective and since in many places he affirms Kingdoms to be more durable than Commonwealths we may conclude that the fundamental cause of that duration is the Lineal Succession We experience in private Families where a long Series of Ancestors have transmitted Inheritances to Posterity how by the settledness and encrease of their Estates their alliances and the Employments they have had in their respective Ages they have acquired Honour Renown Interest and Stability that not only a greater Respect is payed to them than to others of a later Rise but they are thereby enabled upon many accounts to manage publick or private affairs with more sure success and repute than those than have not acquired such a nodosam Aeternitatem (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 De Repub. l. 3. c. 11. Aristotle makes that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or natural Love of Parents to their Children to be one reason of the Succession of Sons to Fathers in their Kingdoms thence he makes it improbable that they who have obtained the Soveraignty should not deliver it to their Children because it would discover a Vertue beyond the ordinary Elevation of humane Nature to prefer the Benefit and good of the People by leaving them the Liberty of chusing upon every avoidance the most worthy if such a Prince's Son appeared not so rather than to establish the Principality in their own Family (c) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 pâ—ly 〈◊〉 lib. 6. p. 455. D. Edit Wickl 1509. Several Reasons why Succession is to be preferr'd before Election Polybius speaking of Kings being most eminent for Wisdom Polybius his Opinion Justice and Valour whereby they drew the People to reverence them and consequently to submit themselves to their Conduct and Command saith That the Son having his education under such a vertuous wise Father whereby he had been present with him when affairs of the greatest Importance had been debated in common presumption was judged to be better capacitated to govern than any of a strange Family and so none would envy him his dignity but all readilier judged him the fittest to succeed And there is good reason to consider the cause of it for Government is an Art not easily attained to and by the unskilfullness in the proper Rules and Maxims the wrong Applications the Ignorance in pursuing the right Methods and chusing fit Instruments the Factious and Populace get advantages to make unfortunate times Therefore those Monarchs who from their Infancies are trained up and accustomed to Instructions in the Rudiments of Government as they grow up must more readily comprehend them must attain the better understanding of the great affairs and secret reasons of Stâ—â—â— be more quick apprehensive and sagacious in perceiving what is conducive to the common good and what not and so more ready in all publick Dispatches than such who have not been educated with all these Advantages Besides Governours at first must be to seek in understanding the nature of great Affairs so that one may as well expect (c) Dr. Nalson's Common Interest p. 113. a Man taken from the Plough should be able to Conn a Ship and carry her an East-India Voyage as that a Person though of the greatest natural and acquired Parts should at first be fit to Pilot the Government or skilful and dexterous in the steerage of the important affairs of a publick State and as in Republicks it falls out by that time he hath arrived at a competent Skill he must resign his Place and Power to others as raw and unexperienced as he was Whereas Succession in Monarchy doth effectually prevent this Inconvenience and which is of great moment it gives them an Interest and desire of designing well for the publick good safety and security of the People and the opportunity of finishing whatever is well begun For though it have happened by the Succession of a weak or vitious Prince that damage and infelicity have befallen the People yet it is very rare in History that two such succeed one another So we find in this Kingdom that Ed. 1. and Ed. 3. brought as great Honour and Renown to their Countries as their Fathers had Misfortunes and even in such Princes Reigns the Calamities that have befallen their Kingdoms have rather sprung from the Potency of Factions that took the advantage by the weakness of the Prince to bring him to Contempt that they might obtain the managery of affairs than from other Causes For even under such unfortunate Princes if it were not for factious Disturbances the Laws and good Order might during their Reigns conserve their Kingdoms in Peace Whereas in Kingdoms that are Elective The Inconveniences that happen where Right Succession is not observed Competitors and Candidates cause not only great Disturbances and Mischiefs at the Instant as we have infinite Examples when the Roman Emperors were chosen by the Factions of the Senate or Army as also in Germany before the expedient of chusing a King of the Romans and in the Miseries that have befallen Poland but Aemulations and Animosities have been continued for Ages among the prime Nobility and thence it is that the (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lib. 5. Polit. c. 10. Giphanii Comment Philosopher so long since hath ascribed it one of the Principal Causes of the Destruction of a Kingdom when there is Discord in the Royal Family or as his Interpreter saith among the participes Regni as Brethren and Kindred of the Royal Family as (e) In vita Cleomenis Aegidis Plutarch tells us in the Kingdom of Sparta and as Justin gives us an account of the slaughter of Brethren and Kinsmen in the Kingdom of Syria and as it occasioned the Destruction of the flourishing Kingdom of Egypt by the Competition betwixt Ptolomy and Cleopatra and as our Ancestors sadly experienced in the Civil Wars betwixt the Houses of York and Lancaâ—â—â— and France in the Faction of Orleance and Burgundy and of later Date in the Kingdom of Hungary betwixt King John and the Emperor Ferdinand If therefore such Calamities befal Countries where Factions ruine their Peace how much more shall we judge the miserable Confusions will be when any shall challenge a Power to make a Breach in the Royal Chain of Succession especially when we find even at Rome upon the Election of the Pope by custom the People plunder the Pallace of the Cardinal who is elected Pope and since that outrage is committed where such an one is chosen as is owned by so great a part of Europe to be Christ's Vicar we are not to wonder that at the Death of the Ottoman Heir the Janizaries and Soldiery rifle and plunder Jews and Christians and cease not to commit all manner of Outrages till the new Grand Signior by his
Issue according to the present interests of his Affairs and Passions that such contradictory Acts could not be all true and though the Responses from Delphos or any Oracles of the Gentile ages might miss the truth as much yet by their dubious answers they forfeited not their reputations so much We may also note (l) Jus Regium p. 178 179. that by God Almighty's Providence and the care of his own Laws the Duke of Richmond was removed by death to prevent the unjust Competitors and Prince Edward was born and by the same Providence and the sence the Subjects had of the great Fundamental of Hereditary Succession contrary to some of these Acts and what Edward the Sixth did in setling the Crown upon the Lady Jane Grey proved of no force for Queen Mary succeeded though she was a Papist and Queen Elizabeth succeeded her though she was declared Bastard The rights of Blood prevailing over the Formalities of Divorce and the Dispensations of the Popes and the Laws made to gratify Henry the Eighth's pleasure as the strength of nature doth often prevail over Poisons and to evince the greater certainty of their being void so little notice was taken of those and the subsequent Acts Anno 1535. that the Heirs of the Blood succeeded without repealing that Act as an Act in it self invalid from the beginning For such Acts are past by without being repealed as we find in the Act of Recognition of Queen Elizabeth no notice was taken of the Act of Parliament against her and Blackwood (m) P. 45. observes very well that so conscious were the makers of these Acts Jus Regium p. 179. of the illegality of them and of their being contrary to the immutable Laws of God Nature and Nations that none durst produce that Kings Testament wherein he did nominate a Successor conformable to the power granted by those Acts but that as soon as they were freed by his Death from the violent oppressions that had forced them to alter a Successor three several times and at last to swear implicitly to whomsoever he should nominate they proclaimed first Queen Mary and after her decease Queen Elizabeth Therefore all these Acts both of Henry the Eighth and Edward the Sixth are to be looked upon as Politick interims to serve for some present ends And as we observe the trepidations vibrations and as we may say uneasiness of things in all that have been displaced till reseated again whereby we have a certain Indicium of any thing Natural so may we note the naturalness of Hereditary Succession by the Tragical Convulsions and unsetledness of things in any State where great force and policy have usurped the Crown till it hath returned to the right owner So we see after the force was removed by the expiration of Henry the Eighth and Edward the Sixth things returned again into their pristin State according to the Laws of the Crown I shall now pass to consider other Reasons and First it may be observed Fundamentals in Government not to be altered That the Venerable Age of such Fundamental Laws should have another kind of respect pay'd to them than to be made obsolete because they will not sort with some new-fashioned Intrigue For it is a most true Maxime Non magis aliunde floret respublica quam si legum vigeat Authoritas So in the first Parliament (n) Cap. 2. of King James the First it is fully expressed That to alter and innovate the Fundamental ad Ancient Laws See Commission for Union 16â—4 Priviledges and good Customs of the Kingdom whereby not only the Kings Regal Authority but the Peoples securities of Lands Livings and Priviledges both in general and particular are preserved and maintained and by the abolishing or alteration of the which it is impossible but that present confusion will fall upon the whole State and frame of Government is of most dangerous consequence whence we may well infer That to endeavour to alter the right of Succession of the Crown in the direct line is one of the most dangerous Innovations of all others as drawing innumerable mischiefs after it Now there can be no greater fundamental right than the Succession of our Monarch The Hereditary Succession is a Fundamental That our Monarchy is Hereditary is the great Basis upon which most of all the positions of the Laws are established which every where we meet with in the Writings of Lawyers viz. That the King never dies the next Successour in Blood is legally King from the very moment in which the last King dies that there needs neither Coronation or Recognition of the People to intitle him to the exercise of his Regal Authority that his Commissions are valid all Men are liable to do him Homage and hold their rights of him and his Heirs he may call Parliaments dispose of the Lands belonging to the Crown and all that oppose him are Rebells Generally this Principle runs through all the Veins of our Laws it is that which gives Life and Authority to our Statutes but receives none from them which are undeniable marks and Characters of a Fundamental Right in all Nations Secondly Such further provision hath the Law made to secure the Succession in the direct line that if the right Heir of the Blood or the Father or Mother of the right Heir be attainted of High Treason by Parliament the Attainder is no obstruction to the descent If he who were to succeed had committed Murther or were declared Traytor formerly to the Crown for open Rebellion against the King and Kingdom yet upon his coming to the Crown he need not to be restored by Act of Parliament but his very right of Blood would purge all these Imperfections For tanta est Regii sanguinis praerogativa dignitas ut vitium non admittat nec se contaminare patiatur saith a (o) Craig learned Lawyer and the Reasons given are For that no Man can be a Rebel against himself nor can the King have a Superior and consequently there can be none whom he can (p) Jus Reg. p. 169. offend and it would be absurd that he who can restore all other Men should need to be restored himself Also the Punishments of Crimes such as Confiscations c. are to be inflicted by the Kings Authority or to fall to the Kings Treasury and it would be most absurd that a Man should exact from himself a Punishment So Richard Plantaginet Duke of York and Edward the Fourth his Son were both attainted yet Edward the Fourth was rightful King and no impediment in the Succession accrued by it So Charles the Seventh of France though banished by Sentence of Parliament did afterwards succeed to the Crown and though Lewis the Twelfth forfeited for taking up Arms against Charles the Eighth yet he succeeded and Alexander Duke of Albany and his Descendants being declared Traytors by his Brother King James the Fourth yet his Son John being called home upon
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
414 415. How the House of Commons of the Parliament 1641. seduded their Members till there were not above 70 left whom the Army-Officers impeached or disliked as a corrupt Party or corrupt Majority and so fifty or sixty by the power of the Army secured secluded and expelled near 400 Members and made themselves the Commons House without them and so proceeded to vote down and seclude both King and House of Lords and voted themselves to be the Parliament of England and sole Legislators and Supream Authority of the Nation The consequences of all which are too well known to the whole Kingdom whose Calamity of Civil War and all the unspeakable Tragedies of it flowed from the packing of Members in the Commons House and the Assistance the People relying upon their Sageness and Authority afforded them How this revived against Abhorrers We had of later Years a fresh revival of the same method in the House of Commons expelling those they called Abhorrers which is so well known that I need say nothing of it yet I would recommend to all interessed Persons the perusal of two Treatises which though they pass for Pamphlets yet have been writ by Judicious Authors and those are The Lawyer outlawed and the Three parts of the Addresses which are Books very fit for Gentlemen to peruse How full and unquestioned a power the Commons have to represent Grievances to the King and petition for Redress The unquestioned Rights of the Commons to impeach any Person of the highest Quality that is a Subject for Treason or high Misdemeanors to have the sole Power in having all Bills for Subsidies Aids and Supplies to begin and I think be perfected in their House and the Privileges they petition for by their Speaker are so well known that they need no Discourse upon But I find several Judicious Persons will not allow the House of Commons to be a Court which Sir Edward Coke affirms 4. Instit p. 28. Whether the House of Commons be properly a Court. and uses this only one Argument for it Because it is not Prorogued or Adjourned by the Prorogation or Adjournment of the Lords House but the Speaker upon signification of the Kings Pleasure by the Assent of the House of Commons doth say This Court doth Prorogue or Adjourn it self But to this it is answered Lawyer outlawed p. 18. That if this were sufficient to denominate a Court every Committee of Lords and Commons though never so few in number must upon this account be a distinct Court because they may thus adjourn and prorogue themselves without their respective Houses In another place 4. Instit p. 23. the same Chief Justice offers to prove the House of Commons not only a Court but a Court of Judicature and Record for that the Clerks Book of the House of Commons is a Record and so declared by Act of Parliament 6 H. 8. c. 16. But this House had no such Book as a Journal much less any Authentick Record When the House of Commons had a Journal first before the first Year of Ed. the Sixth all their material proceedings till then being drawn in Minutes by a Clerk appointed to attend them for that purpose and by him entred of Record in the House of Lords Therefore the Words of the Statute are That the Speakers Licence for Members going into the Country be entred of Record in the Book of the Clerk of the Parliament appointed for the Commons House and this Journal is rather a Register of what passeth than such a Record as denotes a Court of Judicature as the Author of The Lawyer outlawed endeavours to prove P. 17 18 19. Plowd Com. fol. 319. Coke 1. Inst fol. 260. because there is no Court but what is established by the Kings Patent by Act of Parliament or by the Common Law i. e. the constant immemorial Custom of former Ages for by that the House of Lords is the sole supream Court of Judicature it having never been heard of before Sir Edward Coke's fancy That there were two distinct Courts in the same Parliament Also there is no Court without a power of tryal but the House of Commons have no power to try any Crime or Offence because they cannot examine upon Oath and there can be no legal Tryal without Witnesses nor are any Witnesses of any force in Law unless examined upon Oath But I shall not enter into these Controversies Some Observations on the Privileges of the House of Commons in general but shall now lay down some general Observations and Rules which Judicious Persons have noted as worthy the consideration of the Honourable House in point of their claims of Privileges and Judicature First King James the First in his Declaration touching his proceedings in Parliament 1621. resolves That most Privileges of Parliament grew from Precedents which rather shew a Toleration than an Inheritance therefore he could not allow of the Stile calling it their Ancient and undoubted Right and inheritance but could rather have wished that they had said All Privileges from the Crown Their Privileges were derived from the Grace and permission of his Ancestors and him and thereupon concludes That he cannot with patience endure his Subjects to use such Antimonarchical Words concerning their Liberties except they had subjoyned That they were granted unto them by the Grace and Favour of his Predecessors yet he promiseth to be carefull of whatsoever Privileges they enjoy by long Custom and uncontrolled and lawful Precedents Secondly C. 29. None to be punished but by Legal Trial. It is to be considered That by the Great Charter it is declared That no Freeman shall be taken or imprisoned or diseised of his Freehold or Liberties or his Free Customs or be Outlawed or Exiled or in any manner destroyed but by the lawful Judgment of his Peers or by the Law of the Land Stat. 28 E. 3. c. 3. So 28 E. 3. it is Enacted That no Man of what estate or condition he be shall be put out of his Land or Tenements nor taken nor imprisoned nor dis-inherited nor put to death without being brought to answer by due Process of Law So 42 E. 3. c. 3. it is assented and accorded for the good Government of the Commons that no Man be put to answer without presentment before Justices or matter of Record or by due course of Law or Writ Original according to the Old Laws of the Land Nulla Curia quae Recordum non habet potest imponere finem neque aliquem mandare carceri quia isla tantummodo spectant ad Curias de Recordo Mar. Sess 3. So Sir Edward Coke saith Courts which are not of Record cannot impose a Fine or commit any to Prison because these only belong to Courts of Record for which see Beecher's Case fol. 60. 120. Bonham's Case and lib. 11 fol. 43. Godfrey's Case So in the First Parliament of Q. Mary it is declared That the most Ancient