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
they make the whole Scope and design of their Government the Prosperity of their People Among the chiefest of which Benefits that of Peace is to be most valued as being the end and mark that all good Governours direct their Actions to In another place he makes it a sure sign of good Princes when they wish themselves all the good qualifications and fittedness for Government and all the Vertues of the greatest Princes for their Subjects good this being a full Demonstration how precious and valuable the safety and quietness of their Subjects are to them The learned Lord Chancellor Bacon marshals the degrees of Sovereign Honours under five Heads Degrees of Sovereign Honour every one of which are as so many Characteristicks of great and good Kings First the (t) Essays of Honour and Reputation 1. Conditores Imperiorum Layers of the foundations of Empires as Romulus Cyrus Caesar â— (u) 2. Legislatores perpetui Principes Secondly the Founders of their Laws or Law-makers who by constituting good Laws are as second Founders perpetual Princes because they govern by their Ordinances after they are translated from this World Such were Solon Lycurgus Justinian and others (w) 3. Liberatores Salvatores Thirdly such as have freed their People and delivered their Country from Servitude or have put an end to and composed long civil Wars as Augustus Vespasian our King Henry the Seventh and the Fourth of France and most eminently our late Royal Sovereign (x) 4. Propagatores vel propugnatores Fourthly such as by honourable ways enlarge their Territories or make a noble Defence against Invaders Lastly such who reign justly and make the Age good wherein they live therefore stiled Fathers of their Country such both was and is our late and present Gracious Soveraigns So that such a Prince as others describe according to their Wish or as an Exemplar the English Nation Character of King Charlâ—s the Second and all his Majestie 's Subjects above all other Kingdoms in the World have been and are Blessed with under the Reigns of two such unparallell'd Royal Brothers We may justly give our late Sovevereign of immortal memory that Character which we find in Arnisaeas as the Idea of a good Prince That leaving entirely to his Subjects their Properties governed according to God's Nature's and his own Laws founded upon Equity and Justice or that of (y) Rem pepuli esse non suam privatam Dio. vita Hadriani Hadrian's that so managed his Government That all might know that he studied the Peoples not his own private Profit Surely we may hope for great happiness under our present Sovereign Character of King Jarâ— the Second who hath not only been a Copartner in his Royal Brother's sufferings but a Co-adjutor in the management of his great Empire and hath so signalized himself in the hazzard of his Life and glorious Atchievements for his Country and is endowed with all the Heroic Accomplishments that ennoble Princes in the Records of Fame so that we have the greatest Moral assurances if we disturb not his Reign by Sedition and Rebellion that he will out-go most of his Ancestors in the prosperous Government of his People as well for their Glory as their Peace and Tranquillity Religion in a Prince his Duty and Advantage CHAP. XI The Care of Religion a duty incumbent upon Kings IT is not enough to give a Character of a good King in general but we must descend to Particulars and first of his Care of Religion according to that of (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit lib. 7. c. 8. Aristotle That in all Government the first and principal Concern of a Prince is to take care of things Divine For according to the (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Diog. â—pud Stohaeâ—m Stoick It becomes him that is the Best to be worshipped by the Best and that the great Sovereign of the Universe be worshipped by his Earthly Vicegerents For of old it hath been noted That many advantages both accru'd to the Sovereign and People when the Prince was truly Religious Therefore the (c) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. l. 5. c. 11. Philosopher tells us That it is the duty of the supream Governour principally to take care of those things which appertain to the Deity for thereby the People are more obedient to their Princes as not fearing injustice from them For that it is to be supposed that he that is Pious and Just will not do an Unjust and Impious Action and by it he is more secure in the assurance of Protection from the Deity whereby he may hope for its Defence and Patrociny from the Seditions and Treacheries of his Subjects having the Deity to fight for him Consentaneous to which is what (d) Omnia prospere eveniunt sequentibus deos Adversa autem spernentibus Lib. 5. Livy observes That all things happen to them prosperously that follow the Gods and as unprosperously to them that despise them Upon the same Ground it is that the Orator saith The Romans had not conquered the Spaniards by their Numbers or the French by their Strength the Carthaginians by their Stratagems or Grecians by their Arts nor the Italians and Latines and their Nation and Land by their Native and Inbred Wisdom but by Piety and Religion and (e) Atque hac una sapientia quod Deorum Immortalium numine omnia regi gubernarique perspeximus gentes nationesque superavimus De Aruspic by that Wisdom alone that they understood all things to be governed by the Deity they had overcome People and Nations Agreeable to this Affirmation is what we find recorded of Numa That his care of Religion was the chief cause of the succeeding Felicity of Rome For as the (f) Machiavel's Disc lib. 1. c. 12. Florentine Secretary observes That Romulus exercising his People wholly in Military Affairs his Successor Numa finding he had to deal with a Fierce Usefulness of Religion to civilize Subjects Rude Cruel and Ungovernable people thought the way to attemper and soften their minds was to devise some Religious Institutions which being once given credit to might make them more pliable to Government Therefore (g) Omnium primum ut rem ad multitudinem imperitam illis seculis rudem essicacissimam deorum metum injiâ—iendum ratus est Lib. 1. Livy saith That of all things he thought the fear of the Gods to be the most efficacious means for the ordering the unskilful Multitude rude in that Age. And (h) Numa Religionibus divino jure populum devinxit 3. Annal. Tacitus tells us That with Religions and Divine Laws he yoaked them in obedience and so intent he was in the Observance of the Service to the Gods he had introduced that Plutarch tells us That he being one time Sacrificing was told that the Enemies were advancing against him but he would not desist but returned (i) At ego rem divinam
the Spaniards there were as many Obelisks or pointed Pillars set about their Graves as they had killed Enemies All which and infinite more Places in (c) The necessity of having a Standing Force is for preventing Rebellion and defending against Foreigners as appears in Aristotle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lib. 7. c. 8. him and other Authors produceable sufficiently clear the necessity of a Prince's both having and encouraging Military Force and all are as so many Arguments That it is very necessary and conducible to the Prince's Glory and Safety as well as his Peoples that he be not only valiant and couragious in his own Person but that he understand the Office of a great General There are none more famous in the World than such Princes as have themselves led and headed their own Armies as is most eminently proved in Alexander the Great and Julius Caesar So in our King Richard the First and Edward the First Hence it is that (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Diâ— l. 13. Caesar was wont to say There are two things which obtain keep and encrease the Princedom viz. Soldiers and Money For as the great (e) Non ignavia magna imperia continâ—ri sed virorum armorumque faciendum certamen Historian observes By Sloth no great Empires are held together but it must be done by Force of Men and Arms It being (f) Sua retinere privatae domus de alienis certare regiâ—m 〈…〉 15. Annal. the part of a Private Family to retain its own but to carry Arms abroad is a Kingly Praise Such a Prince who hath when a Subject hazzarded his Life for his King and Country shown his great skill in ordering and providing for his Army in disciplining it How a Military Prince prevents Rebellious of his Subjects hath been fortunate and successful hath a Genius to military Employment a brisk and vigorous Soul not only when he comes to be Sovereign himself puts a fresh Spirit into his People by raising their Hopes and Confidence that he will encrease the Glory of his Nation but it makes him secure at home from Seditions and Rebellions For he is very fool-hardy or desperately Revengeful that will challenge a single Man who is experimented to have Valour and Skill at his Weapon much more is he who knowing his Prince such an one and who hath the Power of his Kingdom to assist and defend him will offer to molest his peaceable Reign unless he find some advantagious opportunity strangely favourable to his Design or take some Season before such a Prince be well setled in his Throne as despairing ever after to effect any thing and be in that desperate Condition that if he then cannot push forward his Designs he must for ever live inglorious and miserable Such was the Case of the rash ingrateful and aspiring Duke of Monmouth who to the eternal discredit of the name of Protestant so unpolitickly as well as maliciously raised the late Rebellion against his Lawful Soveraign pretending a Legitimacy which his Father that the best of all Men living knew the falshood of disowned and more than once made publick Declaration of it How he prospered in this attempt the World knows and if He and his Advisers had not been besotted they might have easily foreseen Besides this great and happy advantage to a valorous and Military Prince How a couragious Prince secures his Subjects from Foreign Enemies in the securing his own Country in Peace within themselves the Benefit is likewise great in the preventing of any affronts injuries or Indignities to him or his People from any of his Neighbours for none dare (g) Nâ—mâ— provocare au let aut facere in juriam ei Regno aut populo quem intelligit expeditum atque promptum ad vindicandum Vita Alex. provoke or do Injury to a King his Kingdom or People saith Lampridius that knows the Prince prepared forward and ready to vindicate his People This military Genius in a Prince being supperadded to his other Royal Vertues and Qualifications furbisheth all their Arms sets a fresh Gloss and Lustre upon them and such a Prince being generally successful in his Attempts for that commonly gives the first notice of his Courage and Conduct will have every one readily flock to his Standard to (h) Objicient se mucronibus insidiantium se suaque jactabunt quocun que desideraverit Imperantis salus Sen. 1. de Clem. expose themselves betwixt him and the points of Traitors Swords will have them throw themselves and their Fortunes whereever the safety of their King requires it So Cicero notes that Fabius Maximus Marcellus Scipio Marius and other great Generals had the Emperors Office and Armies committed to them not only for their Vertues but also by reason of their fortunateness to whom (i) Cic. pro Manilio Quibus etiam venti tempeslatesque obsecundant the Winds and Tempests have been favourable It greatly (k) Vehementer enim pertinet ad bella administranda quid hosâ—es quid socii de Imperatoribus existiment Idem conducing to the management of War what opinion the Enemies and Allies have of such Generals as the same Orator notes and the like may be said of Warlike Kings What immortal Glory is it to England that it hath had King Richard the First Of King Richard the First who carried his victorious Ensigns to the Holy Land What a Memorial of his Name and of the Prowess of his People hath King Edward the First left to all Posterity by the advancing his conquering Armes into the very High-Lands of Scotland Of King Edward the Third and the Black Prince What renown did King Edward the Third and the Black Prince his Son win in France when they not only won so great Victories but brought the King Prisoner and what no Nation else can boast of had at the same time the King of Scotland also Prisoner It may be easily conceived that these two valiant Princes and the Sons of that great King spirited the whole English Nation and in that Age the Renown of it equalled what now the French ascribe to their great King The Annals swell with the Atchievements of Henry the Fifth who in so few Years Of Henry the Fifth upon the matter subdued all France So that his Infant Son was Crowned King at Paris It is not to be expected that many Ages can produce such Examples but every Reader of History may observe That in every Age some one or two Crowned Heads carry the Trophies from all the rest fill their Countries with Triumphal Arches and raise pyramids of Glory to their own and their Countries high Renown A strange Factiousness in the Reigns of our three last Kings and the dreadful Rebellion Why our three last Kings could not appear so Formidable abroad have deprived them of the opportunity of showing the English Prowess on the publick Theater as it had been before Yet when they were employed they
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-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
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
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
Gentry be bred up in Learning Young Nobility and Gentry to be so educated as they may be fitted for Magistracy Military Discipline and all other ways that might accomplish them for the service of their Prince and Country for where a Prince can be served by the Nobility and ancient Gentry it much facilitates the execution of their trusts but in some cases it may be requisite to imploy those of great Wisdom Judgment and Diligence the Endowments of noble Minds though not of so noble Extract So (q) 6. Annal. Mecaenas advised Augustus that he should chuse the praefectus praetorio out of the Horsemen lest if he were one of the Nobility he might attempt something against the Prince and so it is noted in (r) Quod pâ—r negotiis â—eque â—upra erat Tacitus That the Province was given to Sabinus not for any excellency but that he was fit and not above the imployment But this caution is unnecessary where Kingdoms are hereditary and depend not upon the approbation of Soldiery or Senate Princes not to give too great Powers to any Above all things Princes should take care that they commit not any of their Royal Prerogatives to the Magistrates or their Curators 'T is not safe for a Prince to intrust any of these in a Subjects hands for it is by many Histories apparent that when by reason of a Prince's Captivity Minority his prosecuting some War out of his Country whereby a Kingdom cannot be governed without a Viceroy or Protector with the whole Authority of a Prince the sweetness of this Power hath tempted them to usurp or do ill Offices to their Prince or People (s) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. lib. 5. c. 11. Hence the Philosopher adviseth not to make such great who in Wit and Manners are bold and daring Therefore it is not safe for Princes to keep Viceroys long in their imployments especially if there be any danger of their Ambitious aimes to get the Soveraignty into their own hands or that they will not be observant of the due Execution of the Laws or for private ends will suppress the Nobility Great Ministers not to be long continued in the same Station or oppress the People by their Interest pervert the course of Justice or introduce new Laws by surprizing the Soveraign in gaining his consent In all such cases the rule of the (t) Qui parvo tempore Magistratui praesunt non tam facile nocere possunt quam qui longo Philosopâ—er is most true They that for a short time obtain the Magistracy cannot so soon hurt as they which enjoy it long as he instanceth in Demagogues in Popular Government and the Dynastae in Oligarchies which by that means became Tyrants Julius Caesar (u) Clapmarius de Arcanis Imperil lib. 2. c. 18. and Augustus made all their Magistrates annually whereby they gratified all the eminent men of the Commonwealth by rotation but (w) Alii taedio novae curae semel placita pro aeternis servavisse quidam invidia ne plures fruerentur sunt qui existiment ut callidum ejus ingenium ita anxium judicium Tiberius did otherwise giving this reason for it That Horse-leeches having sucked much blood are at quiet and so the biting of fresh men are most sharp Some think saith Tacitus he did it only to seclude others from injoying of them and to prevent his yearly trouble in chusing which as it would oblige the Elected so would disoblige the Candidates but most ascribe it to the subtilty of his Nature quod nec (x) Tacitus 1. Annal. cap. ult eminentes virtutes sectabatur rursum vitia oderit ab optimis periculum sibi à pessimis dedecus publicum metuebat He did not make great search or take much care to find men of the most eminent Vertues and yet he hated the Vitious fearing from the best danger to himself and from the worst disgrace to the Commonweal In our constitution of Government The Sovereign's Power to change Magistrates a most excellent temper is observed where by the Princes Power is reserved to change the prime Ministers of State and Judicature at his pleasure which obligeth them to great care to act justly in their Places and prevents Sedition where any other had the Power of Electing for it is the Power of chusing in any other than the Soveraign that is the only cause of Faction not what the (y) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 2. Polit. c. 5. Philosopher notes against Socrates That the same continually being Magistrates is the cause of Sedition by reason of the Envy of the rejected Candidates and also among Spirited and Martial People that expect those imployment The Kings of England have undoubtedly the sole Power of creating and appointing Magistrates See more of this in the next Chapter and Officers of greatest Authority So (z) Smith de Repub. Angliae lib. 2. the grave Author of the Commonwealth of England affirms That in the appointing all the great Officers and Ministers of the Realm whether Spiritual or Temporal the highest are immediately in the Kings Power to nominate and the inferiour by Authority derived from him So the Kings of England appoint the High Commissioner and all other the great Ministers and Officers in Scotland the Lord Lieutenant Lord Justices and other great Ministers and Officers in Ireland and by Letters Patents appoint a Prorex locum tenens or Guardian of the Realm in their absence before whom even Parliaments have been held but it were endless to descend to the particular imployments of Magistrates under the Soveraign Therefore I shall only note what the (a) MS. Speech 1 Eliz. penes Rad. Thoresly de Leedes Gen. Chancellor in the Queens name said to Sir Thomas Gargrave chosen Speaker of the Commons House That to the head of every body Politick bâ—â—ngeth immediately or mediately the assignment and admitting of every Member of the Body to his Ministry and Duty the contrary whereof were monstrous in Nature and Reason It is both a great glory and happiness to a Prince when he is served by Magistrates of great probity for the skill and watchfulness The necessary Care of a Prince in chusing Magistrates as well as indulgent care of a Prince is thereby discovered and revered in such a choice and the evil Complexion of the People is chargeable mostly on the Magistrates Therefore what the Chancellor (b) MS. Speech Trim. Term. 1557. in a Speech in the Star-Chamber by the Queens direction told the Justices is applicable to all sorts of Magistrates That the not or remiss doing of Justice must by the Prince be charged upon their shoulders as the immediate Executors of the Law The qualifications of Magistrates may be the Subject of a Common place I shall only hint some more necessary referring the rest to the succeeding Chapter First they ought to be Persons undisturbed with Passions for as they are appointed to
they were Lords of Mannors where they had their Courts as likewise they were Hundredaries c. CHAP. XXXV Of the Kings Soveraignty in making War and Peace THE great (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 3. Polit. c. 7. Philosopher observes That in a Common-wealth that part is most powerful in which the strength of War consists and which is in possession of Arms for those he saith that have no Arms are the Servants of the Armed Plato (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 12. de LL. Power of making War and Peace the greatest Badge of Sovereignty affirms it as a standing Law That he who without Authority innovates a Peace or makes War shall be adjudged to punishment and gives this reason for it That he who hath in his Hand the Militia it is in his Power that the Commonwealth subsist or be dissolved Bodin makes this one of the greatest badges of Soveraignty because without the power of declaring War and making Peace no Prince can defend himself or his Subjects the Establishment or Destructon of the States depending upon it therefore it is Capital to do the least thing in that kind without the Kings Commission There being nothing more dangerous in War than to betray Counsels it is not fit the ordering of War and consequently of Peace should be in any but the Soveraign In the Greek and (c) Clapmarius de Jure Majâ—statis lib. 1. c. 10. Latin Histories it appears that all Wars were undertaken and performed by the Counsel Will and Pleasure of the Soveraign whether Senate or Emperor and by them solely was decreed unless in some extraordinary Cases that the Peoples consent was required in comitiis Populi centuriatis and when the Republick was changed by the Julian Law it was Treason to make War without the Command of the Prince the words of the Law being Nulli nobis insciis atque inconsultis quorumlibet armorum movendorum copia tribuetur The reasons why this Power should be in the Soveraign solely are many and just for without it no Prince can provide against intestine Seditions For if he wanted that Authority Reasons why this Power should be in the Sovereign alone to make War and Peace as often as Ambitious or Seditious Men perswade the People they were in danger of Oppression by the Government or they had a mind to remove great Officers that they might enjoy their places or that the Rule in Church or State did not please them They might resort to Arms to the ruining of their follow Subjects who would otherwise live peaceably and dutifully By this liberty greatest Convulsions would be in the Kingdom upon every predominancy of ill humours and we should never be without the Plague of War in one place or other and all the miseries of a torn dis-joynted and mangled confusion would be upon us neither should a Prince be able to defend his Subjects from Foreign Invasions or perform that great and necessary Work of assisting the Allies to his State and Te formidable to his Enemies Polybius (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polyb. O. notes That there are two things which preserve Government viz. Fortitude against Enemies and Concorâ—â—â— home but neither of these can be performed if the Prince have not the disposal of the Militia This is it which preserves the Kings Authority makes his Laws to be observed keeps the Factious and Seditious at quiet gives repute abroad and Peace at home All the Calamities of War are prevented when an Armed Prince that hath the sole disposal of his Military Power can extinguish the Flame at its first blaze therefore St. (e) Ordo naturalis mortalium paci accommodatus hoc poscit ut suscipiendi belli auctoritas atque consilium penes Principes sit Augustinus contra Faustum Austin saith That the natural order of Mortals accommodated to Peace requires this That the Authority and Counsel of making War be in the Prince That in the time of the Saxon Kings the Power of the Militia was in the Crown doth not obscurely appear in all the Laws for preserving the Peace and in that particularly I have instanced in of King Aethelstan besides which we find the Tenth Law of King Canutus ordained That Fenced Towns Burghote Brighote beonon forth scip forthunga aginne man georne frythunga eac swa a th one thearf sy for â—e men licre neode LL. Canute 10. or Burghs and Bridges be repaired and there be preparations for defence both of Land and Sea-Forces so often as the necessity of the Commonweal requires it The 69th Chapter of Hereots runs thus Every Earl to pay Eight Horses whereof four with Saddles and four without Saddles four Helmets and so many Coats of Mail eight Spears and eight Shields four Swords and twelve Mancusae of Gold and a principal Thane half the number and other Thanes a lesser proportion as may be there seen By which there seemeth some beginning of a Feudal Tenure which in William the Conqueror's time was so settled that as elsewhere I have noted all Persons held of him their Lands in Knights Service to be ready at his pleasure with Horse Men and Arms the which was practised in succeeding Ages The Statute 30. Octob. 7 E. 1. saith That it being accorded of late that in our next Parliament Provision should be made that in all Parliaments Treaties and other Assemblies which should be made in the Realm of England for ever that every man shall come without all Forces and Armors peaceably to the Honour of us and the Peace of us and our Realm Now all Prelates Earls c. have said that to us it belongeth and our part is through our Royal Signiory to * i.e. forbid defend force of Arms and all other force against our Peace at all times when it shall please us and to punish them which shall do contrary according to our Laws and usages of our Realm and hereunto they are bound to aid us their Soveraign Lord at all seasons In 3 Ed. 3. (f) Cap. 2. the Commons decline the having Cognizance of such matters as guarding the Seas and Marches of England but refer it wholly to the King and 25 E. 3. it is High Treason to levy War against the King or aid them that do it Also the Statute of (g) 11 H. 7. c. 18. H. 7. saith Every Subject by duty of his Allegiance is to serve and assist his Prince and Soveraign Lord at all seasons when need shall require There is nothing more indisputably owned by all that understand the Laws than that it was High Treason by the Common Law before the Statute of 25 E. 3. for any Subject to levy War within the Realm without Authority from the King it being one of the Rights of Majesty Badges of Supreme Power and incommunicable Prerogatives of the Crown saith my Lord * 3 Instit c. 9. Coke and with him consent all the long Robe In a Speech in the Star-Chamber to
Act for that purpose yet that prevented not the Inundation of blood and we found those men that moved Heaven and Earth with their clamours against the King as governing arbitrarily when they got the Power made it their dayly practice to lay what unprecedented illegal Taxes they pleased on their fellow Subjects to the value as some compute of Forty Eight Millions Therefore all Judicious persons lovers of their King The Advantages to Prince and People when the Crown is liberally provided for Country and Posterity finding the sad effects those disputes brought to the Blessed King and the whole Kingdom will think it a necessary prudence in a Prince to have always such a provision of Money ready as will enable him in all difficulties that may occur in the Administration of the Government without being obliged to part with any of his Royal Prerogatives when any discontented or designing Factious Members shall be able to take advantage of his Wants whereby to drive their barter with the Crown for thereby he shall defeat their ends On the other side it will be the most prudent and dutiful course both for their own security and the Princes honour for Parliaments upon all just and honourable Wars or occasions of assisting Allies preparing Fleets in readiness upon necessary defence to assist the Prince liberally and repay out of the Publick what for publick Service he hath expended out of his own Revenue rather than he should be in disesteem with his Neighbours and Allies whereby the honour of the Prince and consequently of his Subjects should be Eclipsed or he be necessitated to take any unusual course for raising Money or be compelled to make any inglorious Peace for we can never forget how the want of supplies to King Charles the First brought not only Ship-money and Knight-hoodmony Monopolies and the long disuse of Parliaments but at last that most calamitous War upon the whole Nation We cannot forget how zealous an House of Commons was of late to prevent any Arbitrariness as it was insinuated Decemb. 17.1680 The Care of some Parliaments to keep the King poor in the late King so that they voted a Bill to be brought in against illegal Exaction of Money upon the People under the Penalty of Treason not foreseeing that the Charters of the City of London and many other Corporations were forfeitable upon that account which if it had been made Treason the King had got a good Revenue against the intentions of those who in all appearance voted for a contrary end which further appeared in their Vote Jan. the 7th following (h) Address part 3. That whosoever should lend or cause to be lent by way of advance any Money upon the branches of the Kings Revenue arising by Customs Excise or Hearth-money the three principal branches should be judged to hinder the sitting of Parliament and be responsible for the same in Parliament So that they would give nothing themselves but as much as in them lay terrified others from lending or advancing any Money to him which was not according to their Writ to advise but by duress and force to compel the King to submit to their Judgments and instead of giving him Assistance to support his Allies and enable him to preserve Tangier they tended to the disenabling him from contributing to either by his own Revenue and Credit not only exposing him to the dangers that might happen either at home or abroad but endeavouring to deprive him of the Possibility of supporting the Government it self and reduce him to a more helpless Condition than the meanest of his Subjects as the King sadly and justly complained and in that Vote the Subjects Liberty and Property was invaded in that he could not dispose of his Money to his own Profit and the Benefit of the Government if either Insurrection or Rebellion happened in the interval of Parliament or a foreign Force on a sudden should attacque us yet these Gentlemen would be counted Loyal and Dutiful Subjects It is not to be denyed but that if a Prince's standing Revenue were so great that by it he might not only support the ordinary expences of the Government but lay by a summ sufficient to defray all extraordinary incident Charges either occasioned by intestine Rebellions or foreign Invasions that a King should not have occasion to have so often recourse to Parliaments for Aids Yet when we confider that there would be many other occasions of frequent convening that great Council for making wholesom Laws which is one great Portion of their Business and that the Subjects never can be happy under a poor Prince who thereby should be brought into contempt and how much greater mischiefs accrue to the Subjects by rendring their Prince impotent and unable to preserve them from factious disturbers of their Peace and Repose and the preserving their Properties as well as the defending them from the designs of foreign Princes who would injure our Merchants lock us in our Island and force us to sell our own native Commodities and receive theirs at what Rates they pleased if our Soveraign were not able to keep a sufficient Fleet and infinite other Mischiefs which would accompany a starved Exchequer we should too late find that the Expence of many Millions would not again restore us to that condition of Prosperity and Renown that one timely bestowed on our Prince would preserve us in It is much less Charge to keep in good Repair a well-built Fort Castle or Man of War than to build a new one especially if upon the demolishing of the old we were to fight for the Ground and Materials whereupon and wherewith we should build the new It is a singular Security to the English Subject that no Money can be levied upon him but by Act of Parliament to which in his Representatives he gives his Consent and the House of Commons is generally careful that they understand a great necessity ere they pass any Money-bill yet we have known in our Age some that have stood upon such terms with their Sovereign that either he hath chosen rather to want Supplies than have them upon such hard Terms or their Principals have suffered a thousand times more by such denials than they had done if they had been granted So was Constantinople lost to the Turks for want of furnishing the Emperor with the hundredth part of that which the victorious Enemy plundered the Citizens of and so the Count Palatine elected King of Bohemia lost that Kingdom and all his Hereditary Seigniories by unfurnishing his Soldiers with present Pay when he had it by him And how many suffer by the want of a liberal and proportionable Supply to pay off the Debts of the Exchequer is too sadly felt by many and if the Parliament of 1639. had furnished King Charles the First with twelve Subsidies as it appears by the sequel the Expence of four times as many Millions besides the infinite quantity of Christian Blood shed in the
are to decline by little and little mildly and reverently without shewing of too much Detestation or bitter reprehension and opprobry leaving the things rather undone than rejecting them These wise Directions of so great and ancient an Author are worth Imitation by our sturdy Beggars of Liberty who do or have done it in so imperious a way as if they were in a condition to command it and yet when they had the Power most Tyrannically exacted both Civil and Spiritual Obedience from all others that were not of the same Mold and Cut with themselves The Excellent Seneca saith That Disobedience would be the Destruction of the Roman Commonwealth and so long the People would be out of Danger of it as they endured the Bridle which if once they broke or being by any chance broken they suffered not to be again sitted on (o) Haec unitas hic mâ—ximi Impâ—cii contextus in partes multas dissilier Senec. de Clem. lib. 1. c. 4. the unity and Contexture of the greatest Empire would fly in Splinters and the same end there would be of the Cities Dominion that there was in obtaining it For of old the Commonwealth was so constituted that the Ligament betwixt the Sovereign and Subject could not be dissolved without both their Destructions for as the Prince stands in need of the Peoples Strength so the People of the Headship of the Prince To the which (p) Olim enim it â— se induit Reipublicae Caesar ut diduci alterum non possit sine utriusque pernicie Caesar saith He so embosomed and inweaved himself into the Commonwealth that the one could not be disjointed from the other without the Destruction of them both But every Malecontent will be ready to say they are for Government and can chearfully obey good Princes but such as exercise Arbitrary Government or are Vicious and Irreligeous those they cannot obey To such I would recommend the Saying of (q) Bonos Principes voto excipere qualescunque tolerare Tacit 4. Histor Marcellus about Vespasian We ought to desire good Princes but to submit to whatever they be So (r) Quomodo sterilitatem aut nimios imbres caetera naturae mala ita luxum vel avaritiam dominantium tolerare Ibid. Cerealis told his Soldiers As we endure Barrenness and orecharging Rains and the rest of the Evils of Nature so ought we to undergo even the Luxury and Covetousness of Princes For Vices will be while there are Men but those are not continual but by the intervening of good Princes are recompenced Mr. (s) Civil Wars p. 51. Hobs truly Observes That the vertue of a Subject is comprehended wholly in Obedience to the Laws of the Common-wealth for to obey the Law is Justice and Equity which is the Law of Nature and to obey the Laws is Prudence in a Subject for without such Obedience the Commonwealth which is every Subjects Safety and Protection cannot subsist Indeed Mischief more often happens to any Kingdom from the waywardness or factious Disobedience of Subjects than from the ill Government of Princes Therefore (t) Plut. Canvio 7. Sapient Cleobulus rightly observed That the Republic is well composed where the Subjects fear Infamy more than the Laws for then it may be presumed they are Obedient out of a Principle of Vertue rather than Awe Plutarch (u) De Institutione Principis saith That City or Kingdom is famous where every one performeth his Office If the Prince do what becomes him the Magistrates exercise their Places and the Commonalty obey their Magistrates and the Laws This is the Blessed Harmony wherein this sublunary Government imitates the great Oeconomy the nearer to which every Government comes the more beautiful and stable it will be CHAP. XLII Of Faction and Sedition in the State the Causers and Causes of them IN every Body whether Natural Artificial or Political the Beauty Gracefulness and Use of it consists in its Symmetry Firmness and Union The Fragments of the most excellent Statue the Rubbish of the most magnificent Pallaces the crumbled Dust and Atoms of the Beautifullest Bodies are the Objects of our Pity and Condoling even so ought to be the Discords Factions and Seditions of a Commonweal or Kingdom for by these the whole Compages of the Fabrick is dissolved It was the Consideration of this that made the (a) Nec privaâ—os focos nâ—c publicas leges nec libertatis jura cara babere potest quem discordie quem cades civium quem belium civile delectat Ideo ex numero hominum ejiciendum ex sinibus humanae naturae extermin â—ndum puto Orator say That those who delight in Discords in the slaughter of their Fellow-Citizens and a Civil War neither think their private Hearths i. e. their Properties the publick Laws or the Rights of Liberty dear to them therefore ought they to be spewed out from the Society of rational Men and to be exterminated out of the Confines of humane Nature Faction and Sedition being a Composition of several mischievous Ingredients I shall single them out and give short Characters of them particularly that the Reader may with more ease know their Tendencies The Persons that are apt to be Seditious 1. The debauched Persons apt to be seditious are first the Debauched as Tacitus excellently observes Privatim degeneres in Publicum exitiosi nihil spei nisi per discordias Such as give themselves to Luxury degenerate from the Virtue of their Ancestors are unbridled in their Appetites live without Rule and Order have no regard to the Laws that should restrain them where nothing remains but the instrumenta vitiorum as the Curious (b) Cum raptciâ—â—mo cuique perditiâ—mo non Agri non Fanus sed sol I Insirumenta vitiorum manerent 1. Histor Historian elegantly observes of those that in Galba's time were to refund Nero's Donative Such having emancipated and withdrawn themselves from all subjection to the Laws of the Soveraign of the Universe no wonder they yield obedience to nothing but the Impetus of sensual Appetites and orderly Government curbing these makes it uneasy to them Secondly 2. Vain and light-headed Persons The vain and light Airy headed Persons are fitted to feather the Seditious Arrows that subtiler Heads do fashion these rush into Action without deliberation weary of things long used rather (c) Pro certis â—lim partis novâ— ambigua ancipitia maluâ— Tacit 11. Histor chusing for the sake of Novelty doubtful and uncertain matters than such as are the issues of stay'd Councils Lampoons Libels and Pamphlets are their chief Studies They traffique most at the Booksellers Stall they desire no acquaintance with the seriouser Books of his Shop the Play-house and Coffee-houses entertain them more than the Church or Westminster-Hall They are brittle Tools but sharply edged where they are to cut Feathers and Chaff They are not made to work upon Marble or write Laws in Tables of Stone They
Representatives using all their industry to make the Subjects believe they were the only Patriots and Liberators They pass Votes conformable to the Petitioners desire animate them to search for more and especially to fix them upon Persons they were mindful to remove out of places of trust Then they begun to impeach several Ministers of State and the Judges that they might weaken the King in his Councils and terrifie others into compliance always taking care to charge the misdeeds upon the Kings evil Counsellors magnifying the Kings Natural Goodness and declaring That if he would consent to redress those Grievances and to punish the Authors they would make him a richer and more glorious King than any of his Predecessors Seditious (t) Address Pamphlets daily came out and the Printing-Press laboured Night and Day to abuse the King and his Ministers and bring the Government Ecclesiastical and Civil into obloquy Their Preachers in the mean time like so many Demagogues plied their business so effectually blowing the Trumpet as they phrased it for the Lord and Gideon that by them the Houses Interest prevailed every where especially in the Populous City which was in a manner wholly at the Houses devotion Having removed the Great and Noble Earl of Strafford by great Industry and Art and the Midwifery of Tumults and got themselves by as strange an Art as oversight perpetuated they set themselves to Remonstrate in which they odiously recount all the miscarriages as they called them in the Blessed Kings Reign charging him though covertly with them and all the very Misfortunes of his Reign They revive the Bill against the Bishops sitting in the House of Lords which had been rejected and in a Parliamentary way ought not again to be set on foot that Session the better to effect which they cause the Rabble and their Confederates to menace and assault them and other Loyal Members of the House they Post up several names of Lords and Commons who opposed their proceedings and having driven the King and his whole Family away by most outragious Tumults they declare their Ordinances to be binding during their sitting and assume the Power of interpreting and declaring what was Law and by all these Arts they brought the People not (u) Culpae vel gloriae socii Tacit. 3. Hist so much to joyn with as to conspire with them Then they pretend a necessity of putting the Kingdom into a posture of defence to secure it against Popery and Arbitrary Government and the Invasion of Foreigners which they pretend were to be brought in to assist these They single out the most confiding and daring in every County to be their Commissioners of the Militia so (w) Quanto quis audacia promptior tanto magis sidus rebusque motis potior babetur Idem 1. Histor much as every one was forwarder in boldness and more hardy by so much the more he was to be confided in and sitter to help forward the turbulent work they were about Having first got the Peoples affections to revere them as their Deliverers they the more easily obtained their Bodies Armour and Moneys and so prosecuted a Rebellious War openly yet with that shameful pretence that they were fighting for the King against his Evil-Counsellors and amongst hands court him with most Dethroning Propositions and success Crowning their arms they wholly destroyed that Monarchy they had all along pretended to establish upon surer foundations for the Honour of the Crown and benefit of the People than former Ages had known Instead of which they made themselves Masters of all their Fellow-Subjects seizing their Estates Imprisoning and Murthering their Persons altering the established Ecclesiastical Government and all the fundamental Laws enriching themselves and over-awing the Kingdom by a standing Army Thus I have drawn that in Miniture which was the Tragedy of many Years and the Subject of numerous Volumes and I shall tack to it something parallel in later Years to let all Posterity see what a Characteristick Mark it is of Turbulent and Factious Inclinations when Petitions against the Will of the Government are violently promoted The great mischief of tumultuous Petitions being considered by the Loyal Parliament The Act against Tumultuous Petitions upon the late Glorious King 's happy Restauration Provision was made that the number of deliverers of Petitions should not exceed ten that three of the Justices of Peace in the County or the major part of a Grand Jury at an Assize or General Sessions or in London the Lord Mayor Aldermen and Common-Council have the ordering and consent to such Petitions which shall be for alteration of things established by Law in Church or State by way of Petition Complaint Remonstrances Declaration or other Address to the King or either Houses of Parliament It cannot be forgot in the interval of a later Parliament how zealous and busy multitudes were to get Petitions with Hundreds and Thousands of Hands to the late King for the sitting of a Parliament before the King in his Wisdom thought sit This occasioned the King to issue forth a Proclamation against tumultuous Petitions and other Loyal Persons to express an abhorrence of such Petitions that would press the King to precipitate their Sitting Those that petitioned the King for convening of a Parliament could not but foresee the ungratefulness of such Petitions to the King yet the Designers gave it not over for they had other Ends. As first to engage Men by their Subscriptions to be more fast to them Secondly to try whether the People might be brought to Tumults Thirdly to incense the People more against the Government if their Petitions were denied Fourthly to shew in terroreon the number of their Adherents Fifthly That through every County the confiding and zealous might be known each to other and Lastly that whenever that Parliament should sit they might have their Thanks and by their Numbers the Parliament might be encouraged to proceed in such things as they desired knowing hereby the Strength of the Party When the House of Commons met nothing was so much clamoured against as the Proceedings upon the late Proclamation as if all the Liberties of the Subjects of England had consisted in this Therefore they vote that it ever hath been the undoubted Right of the Subjects of England See the Votes to Petition the King for the Calling and Sitting of Parliaments for redressing of Grievances and to traduce such Petitioning was a violation of Duty and to represent it to his Majesty as tumultuous and Seditious was to betray the Liberty of the Subject and contribute to the design of subverting the Legal ancient Constitution of the Kingdom and introducing Arbitrary Power and so a Committee called of Abhorrence was appointed to enquire of all such Persons as had offended against the Rights of the Subjects This was it that explained their Vote for all the Controversy was Whether a sew private Men might agree upon a Petition then send Emissaries abroad to
his Uncles Death was declared Tutor and Governour without any remission or being restored and if his Cousin King James had died without Issue he had been declared the true Successour of the Crown We have a memorable Instance of this in H. 7. who when he came to the Crown called his Parliament and the Judges having determined that those Members of the House that had been outlawed by the Parliament in Richard the Third's time and been declared Rebels should absent themselves till a Bill were brought in for their restoring It was moved among the Judges what should be done about the King who had been condemned and declared Traytor c. and it was by the unanimous consent of all the Judges saith the learned (q) St. Alban's Hist H. 7. p. 29. Chancellor declared That the Crown removed all the obstructions in the Blood which might in any manner impede its descent and from that time the King took the Crown Coronam ipsam omnes sanguinis oppilationes quae descensum Coronae ullatenus impediunt deobstruere Vt Regi opera Parliamentaria non fuisset opus the fountain of his Blood was purged and all the Corruptions and Impurities taken away so that he had no need of any Parliamentary help to supply him Thirdly The Consideration of the Oaths which the Subjects are bound to take and observe gives some further Proof of the Obligation of all the Subjects to maintain this lineal Succession The Oaths of Allegiance and Supremacy bind the Subjects to bear Faith and true Allegiance to the King's Highness The Oaths of Allegiance and Supremacy against altering Succession his Heirs and lawful Successors and that to their Power they shall assist and defend all Jurisdictions Priviledges Preheminences and Authorities granted to the King's Highness his Heirs and lawful Successors or united and annexed to the Imperial Crown of this Realm and of those Priviledges c. I think none will deny but that Hereditary Succession is one of the principal Prerogatives intended by those Oaths We are not in these only sworn to His Majesty but his Lawful Successors which word Lawful is inserted to cut off the Pretences of such as should not succeed by Law and the insolent Arbitrariness of such as being but Subjects themselves think they may chuse their King These being promissory Oaths as well to the Successors when their Right shall fall as to the present King they have every of them in their respective degrees and orders and indispensible Right confirmed to them by this Oath So that the Predecessor hath no legal right to deprive his Successor as hereafter I shall clear nor to remit the Peoples Obligation to him as lawful Heir and Successor (r) Address part 3. p. 64. much less can the two Houses do it for they are all within the Obligation of this Oath and it is unreasonable that Men should dispence with their own promissory Oaths to others for this would destroy all Faith and Confidence amongst Men and pull up the very roots of Society and Government Whereas some object out of my Lord (s) Coke on Littleton p. 8. Coke Objection That none is Heir before the death of his Ancestor but Heir apparent It is to be considered Answered that it must be the Heir presumptive or apparent that is here understood otherwise the inserting the word Heir were superfluous if by the Oaths were not intended he that is next Heir upon the Death of the King and if any Person think to evade it by affirming that if the Parliament declare any Person to be no next Heir he ceaseth to be so as also not to be lawful Successor because by such an Act he is outlawed Let such Persons consider that this is neither better nor worse than palpable Aequivocation For we swear in the common Sence of the words and so by Heir we understand such as by proximity of Blood have greatest right to succeed in the Inheritance It may be farther considered that the Lord Chancellor Treasurer and Judges (t) See 18 E. 3. all the great Officers of State the Privy-Council c. are all sworn to defend the Rights of the Crown and that they shall not concurr or assent to any thing which may turn to the King in Damage or Dis-herison How then can any of these much less the Judges who are to expound and interpret the Law consent without palpable violation of their Oaths to the changing of the Essence of the Monarchy I shall now endeavour to prove Acts of Parliament cannot alter Lineal Succession that no Parliament by a compleat Act can legally alter the Succession in an Hereditary Monarchy For first all (u) Jus Reg. p. 153. Kings and Parliaments are subordinate to the Laws of God the Laws of Nature and Nations So that unless we give the Inferior Power and Jurisdiction over the Superior no Act of Parliament can be binding to overturn what those three Laws have have established and I hope I have proved under all these Heads in the preceding part of this discourse that the right of Succession is founded on them As to the Law of God it is clear not only from the general dictates of Religion but 28 H. 8. c. 7. the Parliament uses these words For no Man can dispence with God's Laws which we also affirm and think As to the Laws of Nature they are acknowledged to be immutable from the Principles of Reason So the (w) Sect. sed naturale Institut de Jure naturali Law it self confesseth Naturalia quaedam Jura quae apud omnes gentes observantur divina quadam providentia constituta semper firma atque immutabilia permanent Certain natural Laws which are observed by all Nations and such is that of Primogeniture by Divine Providence being constituted remain always firm and immutable So when the Law declares that a supreme Prince is free from the obligation of Laws solutus Legibus yet Lawyers (x) Voet. de Statutis sect 5. c. 1 Accursius in L. Princeps F. de Leg. Clementina pasturalis de re Judicata still acknowledge that this does not exclude these Supream Powers from being liable to the Laws of God Nature and Nations as is evident by all that treat of that Point Nor can the Law of Nations be overturned by private municipal Laws so all Statutes to the prejudice of Ambassadors who are secured by the Law of Nations are confessed by all to be null and the highest Power whatsoever cannot take off the denouncing of a War before a War can be lawful Besides secondly a Parliament cannot do more than (y) Jus Reg. p. 154. any absolute Monarch in his own Kingdom for they when joyned are but in place of the supreme Power sitting in Judgment We must not think our Parliaments have an unlimited Power de jure so as they may make a forfeiture or take away Life without a cause or pass Sentence against the Subjects
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
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.
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
by the Law said to be in the King (z) Sheppard ut supra a threefold greatness of Perfection First of being freed from Infamy and all kind of Imperfections common to Man Secondly of Power in having the command of all his People Thirdly of Majesty being the Fountain of Honour Justice and Mercy The King is Gods immediate Viceroy (a) Câ—k 2.44.5.29 within his Dominions Vicarius Dei As his Protection and Government reacheth to all his People as Subjects so the Allegiance and Obedience of them all is due to him as their Sovereign whether Ecclesiastical or Civil and so he is Persona mixta his Prerogatives are called Jura Regalia Insignia Coronae Ancient Prerogatives and Royal Flowers of the Crown so inseparably annexed to the Crown that none but the King may have them nor can they be communicated to or taken by any Subject (b) Bracton lib. 1. c. 8. Stat. 25 H. 8. c. 21. Nemo terram nisi Authoritate Râ—gia possiâ—et Plowden 136. Jenkins Cent. 7. Case 77. 2. Case 16.17 E. 2. c. 17. Nevil 101.174 All Lands are said to be held of him immediately or mediately he can hold of no Man or any be equal to him as to be joynt Tenant of Land with him and his Jurisdiction is over all places within his Dominions both on the dry Land and on the Sea The Judges are to observe it as a certain Rule That whatever may be for the benefit of the King and his profit shall be taken most largely for him and what against him and for his disprofit be taken strictly neither is it only the duty of Judges but of all other his Subjects in their Stations to help the King to his Right The Perogatives are many and great yet such as are his by the Ancient Law of the Land and what the Kings of England have time out of mind used and are such as are of absolute (c) Coâ—e 12.8.30.2 part Instit 262.496.5 part 11.2.8 necessity for the security of the Government and the Public weals As to call and dissolve Parliaments give his Royal Assent to Laws command the Militia coyn Moneys grant Honors make and dispose of the great Seal dispense with penal Laws pardon Felonies and Treasons make and appoint great Officers Justices of Eyre and Assize of the Peace Gaol-delivery and Sheriffs to grant Charters to Corporations and other Persons or Fraternities He hath the sole Power of appointing ratifying and consummating all Treaties with Foreign Princes making War and Peace granting Safe-Conduct and Protection and all these and many other are firmly ascertained (d) Quod Rex est 〈◊〉 Lex est Regi Rex est Amma 〈◊〉 Lex est Anima Regi by Laws and have ever been and still are in the King alone and at his own Discretion Although there is no need in describing the Sovereignty of our Kings to carry it up to that absoluteness of Monarchy where all things are appointed and reversed by the Sovereigns fiat yet (e) Jus Regium p. 42. we must on the other side consider That the Monarchy which is subject to the impetuous Caprices of the Multitude when giddy or to the incorrigible Factiousness of the Nobility when interested is in effect no Government at all it must be owned That in all Governments a Sovereignty must reside some where and a Monarch can 〈◊〉 no Participants For then it would cease to be a Monarchy and in things that relate immediately to Government the King hath as much right to regulate them as to instance to restrain the Licence of the Press or secure Peace as we have to regulate and dispose of our Property Government being the Kings Property for with the Monarchy the King must enjoy all things that are necessary for the Administration of it according to that just Maxim (f) Quando aliquid â—oneditur omnia concessa videntur sine quibus concessum explicari nequit of the Law When any thing is granted all things seem to be granted without which the thing granted cannot be explained Which warrants the Kings Advocate of Scotland to lay that down as a general (g) Jus Regium p. 77. Rule That their Kings can do every thing that relates to Government and is necessary for the Administration thereof though there be no special Law or Act of Parliament for it if the same be not contrary to the Law of God Nature or Nations The Power and Authority of the Kings of England have been much more unbounded than they are at present (h) Part 1. c. 16. sol 34. Bracton speaking of his time saith That neither the Justices or private Persons might dispute the Kings Charter but if there were a doubt of it the Resolution must come from the Kings own Interpretation If Justice be demanded of the King saith (i) Idem lib. 1. c. 8. p. 5. he seeing no Writ lies against him one must petition that he would correct and amend what he hath done By the Condescensions of gracious Princes such Restrictions have been made of their Sovereign Absoluteness By the Grants and Condescensions of our Kings their Absoluteness lessened that they have obliged themselves to govern their Kingdoms transmitted to them with such Limitations by their numerous Ancestors by Rules of Law Equity Justice and right Judgment in Imitation of their Supreme Head and Omnipotent Monarch That therefore it may demonstratively appear how happily the Government of England is constituted for the Benefit of the Subjects who under so benign a Monarchy enjoy more Advantages in the Security of their Persons and Proprieties than under the most free Commonwealth that ever we read of I shall lightly touch upon some of those Particulars which the Kings of England by reason of several Acts of Parliament they have given their Royal Assents to have precluded themselves from the single Disposal of as in Absolute Monarchies are used yet I hope to make it clear in several Branches of this Discourse That there is no such thing as Co-ordinacy of any other Power or such a mixture as vitiates the Monarchy by a debasing Alloy much less that the Government can be Arbitrary or Tyrannical which hath sheathed the Sword of Justice within the Velvet Scabbard of the Laws and lined the Scarlet Robes of Majesty with the softest Ermine of Indulgence to well deserving Subjects who by their Obedience and Considerateness make their Princes and their own Happiness most perfect For it is equally unhappy to Princes and Subjects where (k) Alii Principes Reges hominum ipse Rex Regum Maximilian's Jest is true That whereas other Princes were Kings of Men he was King of Kings because his Subjects would do but only what they list But to come to the Particulars of Royal Abatements and Indulgences The Kings of England may not rule their People by their Will or by Proclamation as the Roman Emperors by their (l) 〈◊〉 lib. 2. c. 8. The
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
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
render I Aelfred King of the West-Saxons showed these to all my Wites i.e. Nobility or wise Men and they said they liked them to be holden In this we may observe That the King speaks in the single Person Observations on these Laws that he collected chose and rejected and as in the same place he adds since it would be rashness to appoint all his own Laws it being uncertain what credit those might find with Posterity which he liked Therefore whatever in the Laws of Ines his Maeges i.e. Kinsman or of Offa King of the Mercians or of Aethelbyrhtes who was the (u) The aerest fulwilâ—â— underfeng on Angel cynne Ibid. first King of the English that was baptised Those that he (w) Tha the me rihtost thuhton Ic tha her on gegaderod thought righteous he those here gathered and the other he rejected passed by or pretermitted forlaete It may be also noted That he calls the Noblemen whose Advice and Assent he used his Wites minum Witum The next material Illustration of the Constituent Parts of the Legislative Power is found in the (x) Idem p. 36. League betwixt Alfrid and Guthrun King of the Danes which though not properly a great Council yet at least much resembled it since it saith This is the League of Peace which Aelfred and Guthrun Kings and all the English Wites and also those which inhabited East England have declared or (y) Geâ—weden habbath mid Athum gefaestnod p. 36. established and with Oath fastned or confirmed For hi sylfe for heora gingran for themselves and for their Off-spring ge for geborene ge for ungeborene born and unborn that care saith he for Gods Mercy or ours The Godes miltse recce oth-the ure In this it is to be noted Observations on this League That Alfred having so beat the Danes that they gave him Hostages either to go out of the Kingdom (z) Jo. Piâ—us qui vixit temp H. 1. or turn Christian This Guthrun otherwise Gurmund with Thirty of his Nobles and almost all of his People were baptized and Alfred received him at the Font as his Son and called him Ethelstan Also the Subjects of Guthrun are called the East-English Nation and the Nobility are called the Wites of the English King Angel cynnes witan And Lastly that the Oath or firm Contract was Obligatory to the present Age and to Posterity if they expected the Mercy or Compassion of God or the King by which we may judge what value they had then for an Oath so that this might be in the nature of a great Council of the King and the Wites convened for the surer Stability of this Peace to take the Oath In the Laws of King Edward the Elder The Laws of Edward the Elder Regn. coepit 900. desiit 924. after the Charge given to the Judges the first Law begins Ic wille I will and so in others in the fourth it is thus expressed That Eadweard the King with his Wites (a) Myd his witan tha hi Eaxanceastre waron Id. p. 39. that were at Exeter strictly enquiring by what means it might be better provided for Peace and Tranquillity which he perceived was less studiously preserved than it ought to be or it should which he had before commanded That no Man (b) That he aer beboden haefde That nan mon othrum rihtes ne wyrne as Lambard translates it ne quent injuria affiâ—iant deny stop or hinder others Rights In the Second and Third Chapter it is eac we cwaedon also we declare pronounce or sentence and in the Seventh Eac ic wille and I will In which Laws we have none mentioned with the King but his Wites and his commanding willing or pronouncing in the Imperative Mood is observeable The next Laws I find are those of King Athelstan The Laws of King Athelstan Regn. coepit 922. desiit 940. Ibid. p. 45. which begin thus Ic Aethelstane cyning mid getheahte Wulshelmes mines Hihbisceopes othra mina bisceopa bebeode eallum minum Gereafum thurh ealle mine rice I Athelstan King with the advice of Wulfelm my High-Bishop and other my Bishops command or bid all my Rieves i. e. Praefects of what degrees soever to pay Tithes c. And this he commands (c) Et that â—â—e gâ—do eaâ— tha Bisâ—eop is â—ecra gewhylera eac mine Ealdormanna Gereafa Ibid. p. 45. his Bishops his Aldermen and Praepositi who were the Judges in the County-Courts to do the same Although in this Preface there be no mention that he used any advice but of the Bishops yet the Conclusion of Twenty six Chapters of Laws is in these words Ealle this waer gesetted on tham miclan Synoth aet Greatanleage on tham waer se Aercebisceop Wulfhelme mid eallum thaem Aethelum mannum Wiotan de Ethelstan Cyning gegadrian Which I render thus into English All these were setled or done in the great Synod or Council at Greatanlea in which was the Archbishop Wulfhelm with all the Noblemen Somner Verb. Ethelum mannum must properly signify those of the highest Quality such as were Princes of the Blood and Dukes because it is distinct from VViotan or the Wites by which usually Earls and those of lower Nobility and great Officers were understood which Athelstan the King gathered In these Laws We cwaedon is used which I suppose is something more than Somner understands by his Cuide a Saying Speech or Sentence and properly is we will But the absoluteness of the King appears most in the Twenty sixth Chapter wherein it is expressed (d) Gif minra Gerefena gehwylce this don nylle c. Gylde min oferhyrnysse Ic finde otherne we wille se Bisceope amanige tha offer oferhyrnyss aet tham Gerefan the on his folgothe sy P. 53. That if any of his Graeves do not perform these Commands or be more remiss in the Execution of those he hath enjoined he shall be punished for his excess of Contumacy and the Bishop shall punish the Contumacy of the Graeve or Praepositus and his Sequel the Punishment for the first fault shall be five Pounds and the other fault his were that is the value of his Head and the third the loss of all his Goods and the King's Friendship ura ealra Freondscipes King Edmund was the next of our Kings King Edward's Laws p. 57. Regn. coepit 940. desiit 948. whose Laws are transmitted to us and they begin thus Eadmund cyning gesommnade mycelne synoth to Lundenbyrig on tha Halgan Easterlicon tid Edmund the King assembled a great Synod or Council to London on the Holy Eastertide and the persons summoned are stiled aegther ge Godcundra hada ge worulcundra both Gods-kind and World-kind i. e. Clergy and Laicks After Six Chapters of Laws the King signifies to all old and young That he had (e) That Ic â—meade mid minra Witena getheaht gegodra hada gelaewedra Id. p. 58. considered with his Wites Consultation being
William the Conquerour as a token of his Victory laid aside the greatest part of the English Laws and brought in the customs of Normandy and commanded Pleadings to be in French Jo. Brompton Abbat of Jorval gives us an account of the proper Laws of William the Conquerour Brompton's Account of the proper Laws of the Conqueror which he recites under four Heads and they are only concerning Pleas de examine Forensi and Mr. Selden gives this Character of him that he was Diligentissimus rerum nostrarum maxime autem Legum vetustiorum Indagator These are by way of Mandate thus W. Dei gratia Rex Anglorum omnibus ad quos scriptum hoc perveniat salutem Mando Praecipio per totam Anglicam Nationem custodiri As to the constituent Parts of the Great Councils in the Conquerour's time in many of them we have many Bishops names The Members of the Great Councils in the Conqueror's time and no others not so much as the Principes Primates or Magnates in general Anno 1071. 5 W. 1. the Plaint of (d) Rad. de Diceto col 483. num 30. Concil tom 2. fol. 4. Wulstan Bishop of VVorcester is said to be ended in Concilio celebrato in loco qui vocatur Pedreda coram Rege Doroberniae Archiepiscopo Primatibus totius Regni before the King the Archbishop of Canterbury and the Nobility or Prime Persons of the whole Kingdom The Election of (e) Gervas Dorobern col 1653. lin 5. Lanfranc Archbishop of Canterbury about this time or the year before is said to be thus the Seniors of the said Church electing him cum Episcopis ac Principibus Clero Populo Angliae in Curia Regis in Assumptione Sanctae Mariae Here the Episcopi Principes Bishops and Princes the Cleri Populus the Clergy and People or Laity were the same persons and only expressive of one another In the Charter (f) MS. in Bibl. Cotton sub essigie Vespas A. 19. e Chron. Rad. de Diceto Spelm. Concil Tom. 2. fol. 14. of William the Conqueror Anno 1077. 11 Regni after the Names of several Archbishops Bishops Earls and other Seniors Robert de Oyley Hamo dapifer signed it many illustrious Persons and Princes of divers Orders saith the Author being omitted Then is added His etiam illo tempore a Regia potestate è diversis Provinciis Vrbibus to this Universal Synod at Westminster were called In this the (g) Fol. 651. lin 22. Principes diversi Ordinis were the great dignified Clergy and the Temporal Nobility which is explained by Florence of Worcester speaking of such a like Convention 3 H. 1. Rex fuit apud Westmonasterium eo omnes Principes Regni Ecclesiastici secularis Ordinis and (h) Fol. 67. B. 20. Anno 1102. 3 H. 1. Eadmer of this very great Council 3 H. 1. says Primates Regni utriusque Ordinis huic conventui affuerunt that is The Princes or great Men of the Clergy and Laity which were no other but the Archbishops Bishops Abbats and Priors of the one Order and the Dukes Earls Barons and greater Tenents in Capite of the other and for the expression è diversis Provinciis Vrbibus (i) Fol. 302. Doctor Brady hath sufficiently explained it in his Answer to the Argumentum Anti-Normanicum In a Charter of this King for changing the (k) Monast vol. 1. fol. 44. Anno 1084. 18 W. Conqu Canons of Duresm into Monks it is said Haec Charta confirmata est apud Westmonasterium in Concilio meo Anno Regni 18. praesentibus omnibus Episcopis Baronibus meis In the Charter of the same (l) Spelm. Concil tom 2. fol. 14. e MS. penes Dec. Capit. B. Pauli Lond. A. fol. 1 2. King about separating of Ecclesiastic Pleas from Civil it is thus expressed William by the Grace of God King of England to R. Bainard G. de Magnavilla and P. de Valoines and all his Fideles of Essex Hereford-shire and Middlesex Know they and all other his Fideles which remain in England that he hath (m) Leges quae non bene c. Communt Concilio Concilio Arâ—â—iepisct porum Epi coporum Abbatum omnium Principum Râ—gni mei emendand is judiâ—avi propterea mando Regia Auâ—loritate â—racipio c. thought fit with his Common Council and the Council of Archbishops Bishops and Abbats and of all the Princes of his Kingdom to amend the Episcopal Laws which were neither well nor according to the command of the Holy Canons before his time observed in his Kingdom Therefore he saith he commands and by his Royal Authority enjoyns that no Bishop or Arch-deacon hold their Pleas any longer in the Hundred From all which we may observe Remarks upon what before is laid down First That the Conqueror introduced the Feudal Laws of the Normans and according to them disposed of the Lands of the conquered Saxons to be held of his Norman Followers and that he brought in several others of the Laws and Customs of his Country Secondly That he difficultly granted to his People the Laws of King Edward and those he amended at his pleasure and all that he either confirmed or established he did by his Royal Prerogative using the single Person in the Sanction of them and the Imperative in the commanding or forbiding and those Laws which properly may be called his own were by way of Charter or Mandate and in the Councils purely Ecclesiastical the King summoned them as is apparent in (n) Annal. Binaiae tom 3. part 2. fol. 249. Hoveden where he saith eodem Anno i. e. 10703 Regni Concilium magnum in Octavis Paschae Wintoniae celebratum est jubente praesente Rege W. c. of which more below The great Selden notes as the Members of the Great Council in the time of the Norman Kings for the Barons such as had 13 Knights Fees and a third part His words are Interfuere Parliamentis sub Normannorum tempora quotquot 13 Feudis Militaribus 3 unius parte investiti Barones ab amplis praediis ita dicti Jan. Ang. p. 139. Thirdly There are no Members of these great Councils mentioned but the Archbishops Bishops and Abbats for the Clergy and the Optimates and Principes for the Laity Fourthly That though the sole Power of enacting Laws was in himself yet he used the Advice of his Common Council of his Kingdom as is expressed in the 55th Law thus Prout statutum est eis illis a nobis datum concessum jure haereditario in perpetuum per Commune Concilium totius Regni nostri praedicti which Commune Concilium consisted of the Bishops Abbats Earls Barons and principal Tenents in Capite as is every where clear no Commons having Vote or otherwise represented Lastly (o) Hist Novel p. 6. num 30. Non sinebat quicquam statuere ant prohibere nisi quae suae voluntati accommoda
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
Assembly was that things there proposed may be orderly and diligently debated deeply considered and thereupon wisely concluded To examine whether any Law already made be too sharp and sore and so over-burthensome to the Subject or over-loose and soft and so over-dangerous to the State For that acriores sunt morsus intermisseae Libertatis quam retentae He further adds The use of them is to consider the want and superfluities of Laws whether Graft Malice or Covetousness hath devised any ways or means to defraud the Benefit and Force of Laws and in matter of Policy for the more perfect upholding and establishing the Soveraigns Royal State and the Preservation of the Common-weal committed to the Princes care Bodin (i) Lib. 3. de Repubâ— p. 350. commends the Constitution of the Government in England and Spain that they have Parliaments once in three Years whereby Princes upon any imminent danger may have recourse to their Council and Assistance to defend their Countries from Hostile Attempts to raise Money for public Necessity cure the Diseases of the Commonweal confirm the State appoint Laws hear the Complaints of the grieved amend Male-Administration by calling ill Mannagers to account understand what the Prince otherwise may be ignorant of and generally to have counsel in all things which in Prudence are necessary for the happy Government of the Commonweal Sir (k) Commonwealth part 1. c. 2. p. 37. Tho. Smith saith As in War where the King himself is in Person with the Nobility Gentry and Yeomanry the Power and Force of England is So in Peace and Consultation where the Prince is to give Life and the last and highest Commandment the Nobility for the higher the Knights Esquires and Gentlemen for the lower part of the Commonwealth and the Bishops for the Clergy be present to advertise and consult and shew what is necessary for the Commonwealth every thing being advised with mature Deliberation every Bill being thrice read and disputed upon in either House apart and after the Prince himself doth consent thereto that is the Prince's and whole Kingdoms Deed whereupon no Man can justly complain but must accommodate himself to find it just See Prynne part 1. Brief Register p. 447. good and obey it and concludes that whatever the People of Rome might do either in Centuriatis or Tribunitiis Comitiis the same may be done by the Parliament of England which representeth and hath the Power of the whole Kingdom Thus far of the general use now to the Constitution Concerning the word Parliament it is concluded by most Of the word Parliament to come from the French word parler to speak therefore before the word was used by our Historians as appliable to this great Convention the Latin word Colloquium was frequently used to signify a Conference betwixt the King and the great Men summoned to consult advise and take Counsel with the King and among themselves Yet before the word was used to signifie these great Assemblies we find it applied to other Meetings in William Rufus's time For Ingulphus Abbat of Croyland speaking of private Consultations in that Abby saith That Semannus de Lek (a) Veniens coram conventu in nostro publico Parliamento c. coming before the Convention in their publick Parliament took his Oath of Fidelity to them as Serjeant of their Church The First that is noted to use this word among all our Historians is (b) Convenit ad Parliamentum Generalissimum totius Regni Angliae c. p. 674. Matthew Paris Anno 1246. 30 H. 3. where he saith There came to the most general Parliament to London the whole Nobility of all the Kingdom of England The first Mention of it on Record is in the (c) Cl. 49 E. 3. d. 11. Writ of Summons to the Cinque Ports summoning them ad instans Parliamentum nostrum and the next is in the Writ of Prorogation of the (d) Cl. 3 E. 1.20 dorso Parliament 3 E. 1. where it is twice mentioned in the Writ generale Parliamentum nostrum eodem Parliamento Having premised thus much concerning the Name and first usage I shall now discourse of it in particular SECT 2. Of the Summons of the Prelates THAT the King is Caput Principium Finis Parliamenti as Sir Edward Coke notes is obvious to all The Summons have been constantly from the King The Summons only from the King or in his Name In the former Chapters I have discoursed out of our Historians that the Great Councils were always convened by the Kings Now I come to prove it by Records and shall note first the Summons to the Prelates then of the Nobles and thirdly of the Knights Citizens and Burgesses only noting some of the remarkablest of them from Mr. Prynn who hath so fully writ of them in his brief Register of Parliamentary Writs in four parts and his Brevia Parliamentaria Rediviva to whose indefatigable pains in transcribing such an infinite of Records all Antiquaries Lawyers and Statesmen will be always beholding though in the use he made of such before the late King's Restauration or at least while he sate in the long Parliament few Loyal Men can follow his Doctrines All the Writs before the Sixth of King John whereby any were summoned to great Councils are utterly lost that runs (e) Claus 6 Joh. m. 3. dorso The Summons in King John's time thus Mandamus vobis rogantes quatenus omni occasione dilatione postposita sicut nos honorem nostrum diligitis sitis ad nos apud London c. nobiscum tractaturi de magnis arduis negotiis nostris communi Regni Vtilitate vestrum habere consilium aliorum Magnatum Terraendstrae Abbates Priores conventuales toti Diuoecesis citari faâ—iatis The second Record is (f) Claus 26 H. 3. m. 13. dorso 26 H. 3. directed to Walter Archbishop of York differing from the former in these particulars Sicut nos honorem nostrum here is added Pariter vestrum diligitis in fide qua nobis tenemini Anno 38 H. 3. the Writ is directed to the Archbishop of Canterbury Paternitatem vestram omni qua possumus affectione rogamus quatenâ—s nos Jura nostra totaliter indeâ—ensa non deserentes cum omni celeritate convocetis coram vobis Capitulum vestrum Cathedrale Archidiaconos Viros Religiosos Clerum vobis subjectum inducentes eos omnibus modis quibus poteritis quod nobis in tanta necessitate liberaliter subveniant I do not bring in this as a Writ of Summons to a Parliament These Summons for Military Aid out only as a special Writ to excite the Clergy to a free voluntary and liberal Contribution for defence of Gascoign and so to show the Customs of Benevolences in that Age out of Parliament The next (g) Claus 49 H. 3. dorso 11. in schedula The first Summons to the Lords when the Commons also were summoned Writ of
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
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
and after by himself and his mock-Representatives by Councils of State and Safety and such new Names and Powers as our Laws never heard of and all this under pretence that they Acted by the Peoples Authority and suffrage and all the sad Devastations of that Age resulted from the confiding so much in the pretended Representatives of the People Which (a) England's Universal Distraction p. 4. one some Years before the sad Catastrophe plainly foretold tho' like belief was given to him as of old to Cassandra His Words are That the so much exalting the Power of the Representatives was first to destroy the King by the Parliament and next the Parliament and Kingdom by the People Thus ignorant Politicians that build upon such Quick-sands soon live to see their Insanae Structurae ruinously fall about their Ears Thirdly Whereas the Advocates for the Representatives would gladly have possessed the People that they could rely upon none so securely and safely as upon those they had themselves chosen they being less subject to private ends and affections than any particular man such a Body being not likely to counsel or consent to any thing but what is publickly advantageous It is to be considered that it is a false Postulatum Such a Body being but an Aggregate of particulars may have as many private ends as any other number of Subjects it being well known that Communities themselves are subject to dangerous Inclinations from private Incitements and I the Representatives subject to misleading Factions and Ambitions of private Men and by coalition of Parties when they fall into designs they are most dangerous and fatally violent and tho' it may at first View seem to be repugnant that an Universality should have private ends yet seeing it is not the number of Agents but the capacity in which they act and the quality of the Actors and the coherence or incoherence of what they pursue with the publick end and weal which makes the Actions of men public or private It must needs follow That if without Authority or out of the way of Public Ordinances men pursue any thing though the whole Community concur in the pursuit yet it is all of the nature of a private Action and done to a corrupt and private end Because the Author of some Observations upon some of K. Charles the 1st Messages was reputed the great Champion of the two Houses I shall content my self with culling out some of the daringest assertions Why Reason and Law were not hearkned to by the Advocates of the Long Parliament he and some other of their Triarii used and apply such of those Answers and Reasonings as the Learned and Loyal offered then against them though they could not be heard while the Torrent bore all down the stream The hideous noise of Tumults and after of Drums Trumpets Cannons and Fire-Arms hushed and silenced all the still voice of Law and Reason But now it is to be hoped when Mens Eyes are unsealed the Mask and Vizard dropped or pulled off the fatal Consequences of such pernicious Principles throughly manifested and the loud Thunder of the Two Houses Ordinance allayed mens Spirits will be better fitted to hear them refuted Besides what I have endeavoured to answer before concerning the Authority of the Representative which they would make an Assembly in which the People in underived Majesty are by these Proxies convened to affirm an Imaginary Power supposed to be theirs originally and in such a convention to be put in execution I say besides this which in several places I have refuted That filled all their Declarations Messages and Treatises when they were contriving the setting up the Commons House Topmost to prove That they were a Body that was not easily corrupted byassed tempted or prevailed upon to Act any thing but what was the best for the Peoples advantage Therefore I think fit in many particulars to shew how such Bodies may be warped to sinister ends and especially how that House not only deceived but tyrannized over the whole Nation Private (b) Answer to Observer p. 130 131. How Passions Affections Interests and Factions may sway Representatives Quarrels and the memory of former Sufferings may work upon some discontent and envy at other mens preferment may transport others the fear of the lash and desire to secure themselves have forced some to personate a part great Offices and Honours have been a Pearl in some Mens Eyes to hinder their Fight others have been like Organ Pipes to whom the wind of popular Applause hath only given a sound others who have premeditated their Parts before their design was discovered have upon some pretences or other suppose of an unlawful Election being Monopolists Abhorrers or such like got those excluded by Vote whom they conceived to be likely to oppose their designs The bewitching Power of Oratory prevails upon many In others there is a Speechless Humour of following the Drove The Ambition and Covetousness of Representatives Can we not easily conceive several of this Body may be ambitious which would prompt them to alter the old way of bestowing Offices and collating of Honours so by disservice as well as service in Parliaments some Men have obtained Honours Offices and Estates finding it a good way to get preferment by putting the King upon necessity of granting Good Woodmen say That some have used Deer-stealing as an Introduction to a Keepers place So we have seen a Non-conformist's mouth stopped I might instance in other Professions with a good Benefice whereas before he was satisfied he could gape as wide as his Neighbours Others by more only ways slip into Preferment for Covetousness and Ambition will sail with any Wind. The Covetousness of the Members of the long Parliament by woful experience was found insatiable witness their Voting for one anothers Offices Governments satisfaction for their losses out of Delinquents Estates sharing the Kings Lands and Revenue the Bishops Deans and Chapters Lands and the Estates of the Royal Party hence together with the itch of Arbitrary rule they drew the determination of Causes out of the ordinary Courts of Justice before their Houses and Committees of them and in every County had their Sub-committees to Tyrannize over the People and fleece them Their cruelty appeared in their erecting High Courts of Justice Major Generals and other Arbitrary Courts The Cruelty of the Long Parliament where many a Loyal and brave man for serving his King against such Rebels either lost his Life or his Liberty and Estate and when they were the gentlest yet they could show hatred enough by Imprisoning upon I know not what suspicion and at leasure prosecuting such as they had a pique against The partiality of Members in such Conventions are very frequent The Partiality in shielding their friends from being questioned though their Corruptions were notorious to all the World So in the fatal Parliament of 1641. A Monopolist if a Loyal man was sure to be
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
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
and Laity met it seemed most profitable that love and mutual benevolence through his whole Dominion should be cherished for it was (q) Et us eallum tha unribtlican menigfealdan gefrohâ—e the betwux us svlsum syndon irksom to them all that there should be unjust fighting among Christians and begins the Seventh Law thus It is the part (r) Witan seylon faeb the settan of the prudent to extinguish Capital Enmities For the better preservation of Peace King Aethelred appointed that every (s) That aele sreoman getreowne borb bebbe Freeman have sureties that if he be called in question for any Crime these Sureties may do justice to each one that is satisfie for the offender the Title of which is Be Borgum In the Law the duty of these Sureties is described at large and it appears by other Laws in after times that Nine Men were bound for every Tenth Man Whoever desires further satisfaction in this particular may consult the 19th Law of Canutus wherein he appoints (t) Et we willath that aele freoman beo on hundrede on Teothung gebrobt viz. the Tything security that every Free-man enter himself into an Hundred or into the Collegueship of the Ten. In other matters of preserving Peace they may consult the Second the Eighth and Twelfth Laws of the same Canutus the which Eighth Law is thus expressed Peace is so to be considered as that nothing can be more desirable that it to the Inhabitants and nothing more contrarily is offensive as Thieves which in the Saxon is thus Swa ymbe frythesbote Swathan bundan si selost tham Theoffon sy lathost swa ymb Heosbote Having met with a passage in the Laws of King (u) LL. Aethelstani fol. 53. Ethelstan which both illustrates the Care of the King to have the Peace preserved and likewise shews the readiness according to their duty of the Subjects to assist the King with their Persons and Estates I thought it not amiss to insert it as a Close to this Chapter and an Introduction to the next The words as to be rendred from the Saxon and the Latin Version of Mr. Lambard run thus I Aethelstan King do to all clearly signifie Cyth that I have diligently enquired the Cause wherefore our (w) Vre sryth is wyrs gehealden thonâ—e we lyst Peace was not kept as I desired and at Grantelee it was appointed and I received this Answer from (a) Et mine witan seigâ—h my Wise Men that it happened by my (b) That le hit to long forboren baebbe forbearance i.e. too much lenity in not punishing now of late when I staid at Exceter in the (c) Middum wintre Feast of the Nativity of our Lord attended by my Wise Men I found (d) â—t tha ealle syn 〈◊〉 mid bire sylfum midyfre which I signifying Heritage and though mis-placed in Lambard is by him translated Children mid wife mideallum thingum by Lâ—mbard translated properly all their Fortunes to faerenne thider thider le thonne will them â— most ready themselves with their Heirs with their Wives and all their Estates to go thither whither I will and will purge out or expel those Outlaws i. e. breakers of the Peace that are against this in such order or with such wisdom and consideration that they never after come on the Earth again i.e. that they be banished The Saxon of the latter part is thus Bretan hi offer this geswican willan on tha gerade the heo naefre aest on sorda ne cumen which Mr. Lambard translates thus Vt isti tandem pacis violatores Regno hand unquam redituri pellerentur Then it further is added And if these Men (e) And gif hi mon afre afâ— on thaem eorda gemit that hi syn swa seildig swa se the at hebbendra banda gefougen syn hereafter in these Lands be met with or found that they shall be so guilty as they are that are found hand having that is Stealing which Mr. Lambard renders Ac si eorum aliquis postea in Regno deprehenderetur pariter ac qui est in furto manifeste deprehensus plecteretur From all which we may observe That the Counsel of the Witan Nobles and Wise Men was at one of the times the King kept them in course viz. at Christmas called here Mid-winter Secondly That the King asks the Members of the Council their advice Thirdly They tell him that it happened that his Peace was not kept because of his forbearance in not putting the Laws in Execution that were established at Grantelee From whence we may observe that the King was to put these in Execution and that his Remisness Clemency or Indulgence increased the numbers of the breakers of the Peace Fourthly That for the suppressing of these breakers of the Peace the Nobles who met in Council at Exceter promiâ—e they will be in readiness provided themselves and their whoâ—e Families and all things they have to faerenne that is from faer to go forth in Expedition Armed as the King will appoint the signification of which word I have found in several Letters about the Wars betwixt England and Scotland in Henry the Eighth's and Edward the Sixth's time where when any considerable party of the Scots made an inrode into England to seize upon Men burn Towns or Houses or carry away Cattel it was called running a Forray Fifthly We may note that this shews that the Militia of the Subjects was at the Kings disposal to go whither then the King will which saves me a labour in the following Chapter to deduce the Kings Power over the Militia higher though I doubt not but a little looking into the Saxon Laws would afford me more Precedents as the Fifty ninth Law of William the (f) Statuimus etiam sirmiter praecipimus ut omnes liberi homines totius Regni noslri praedicli sint fratres conjurati ad Monarchiam nostram ad Regnum nostrum pro viribus suis facultatibus contra inimicos pro posse suo defendendum viriliter servandum Facem Dignitatem Coronae noslrae integram observandam ad Judicium rectum Justiciam constanter omnibus modis pro posse suo sine dolo sine dilatiene faciendam LL. Gul. 1. 59. fol. 171. Edit Wheeloch Conqueror doth expresly as before I have touched on another occasion but here think fit to recite it at length viz. The King appoints and firmly commands all the Free-men of his Kingdom that they be sworn Brothers to their Power to defend and manfully to keep his Monarchy and his Kingdom according to their might and Estates against Enemies and to observe or maintain the Peace and Dignity of his Crown entire and without delay without deceit to do right Judgment and Justice constantly all manner of ways according to their Power So that here we find these liberi Homines Conservators of the Peace also which I suppose was incumbent on them as well as
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
vertuous but less innocent for there is rarely any rising without a Commixture of good and bad Acts but it is reasonable that the Memory of their Vertues remain to Posterity and their Faults dye with themselves (c) miserum est aliorum incumbere famae Ne collapsa ruant subduct is tecta columnis Juv. Sat. 8. v. 77 78. It is glorious in the Progeny of the old Nobility and useful to themselves their King and Country to study to imitate the Perfections and eschew the Imperfections of their noble Progenitors who were Founders of their Families and Honours They no doubt were Learned Judicious and able Ministers of State such as eased their Prince of their otherwise unsupportable Burthen of Government such as were sensible of the true Fountain of Honour true Patriots of their Country because zealous for the established Government and coveted not to make themselves popular in opposition to their Prince Honour is one of the prime Badges of Nobility The Use of Nobility the winning of that saith (d) St. Alban's Essays Of Honour and Reputation the learned Chancellor is the revealing of a mans Virtue without disadvantage If a man perform that which hath not been attempted before or attempted and given over or hath been atchieved but not with so good Circumstances he hath purchased more Honour than by effecting a matter of greater difficulty or Virtue when he is but a follower Honour that is gained broken upon another hath the quickest reflection like Diamonds cut with Fucets therefore it s commendable for any to exceed his Competitors in Honour by outshooting them in their own Bows (e) Idem Essays c. 14. A Monarchy where there is no Nobility at all as among the Turks is ever a pure and absolute Tyranny For Nobility attempers Soveraignty a great and potent Nobility addeth Majesty to a Monarch but diminisheth Power putteth Life and Spirit into the People but presseth their Fortunes It is well when Nobles are not too great for Soveraignty or Justice and yet maintained in that heighth as the Insolence of Inferiors may be broken upon them before it come on over fast upon the Majesty of Kings A numerous Nobility causeth Poverty and Inconvenience in a State Concerning numerous Nobility brings a surcharge of Expence and some falling to be weak in Estate it makes a kind of Dis-proportion betwixt Honour and Means To keep Nobles at some distance is not amiss but to despise them Kings to countenance their Nobility may make a King less safe and less able to perform any thing he desires This Henry the Seventh did and though they continued Loyal to him yet they did not co-operate with him in his Business The reason of State that we may presume swayed with so wise a King was for that the Wars betwixt the Houses of York and Lancaster had been carried on by the sidings of the Nobility who had in those Days numerous Retinues the younger Sons of the Gentry and sometimes the elder making a great part of the vast Families of Noblemen and their Tenents holding their Lands by small Rents and due Service enabled them to make great alterations in the State accordingly as the chief of the Nobility were combined So that he made Laws against the number of Retainers to lessen such dependences and likewise bringing in use the making of Leases made the Tenents less obliged to their Lords paying their Rents and by such Tenures for Years Honours not to be too common they grew Rich so that thereby Freeholders exceedingly encreased and all this helped to subduct from the Power of the Nobility Honours are not rashly to be made common or prodigally given otherwise they grow dis-esteemed and unregarded rare and few Honours are more glorious saith (f) Honores non essâ— remere pervulgandos aut essuse dandos alioquin eos obsoleseere raros enim honores tenues esse gloriosos effusos pervulgatos esse obsoletos contemptos Giphanii Com. in cap. 3. lib. 5. olit Arist the judicious Comentator diffused and common bring Contempt and Sleight Consentaneous to which is what the forementioned Chancellor saith That States which aim at greatness St. Alban's Essays Of Greatness of Kingdoms must take heed how the Nobility and Gentry multiply too fast for that maketh the common Subject to grow to a Peasant driven out of Heart and in effect but a Gentleman's Labourer As in Copice Wood if you leave the Stadle too thick you shall never have clean Underwood but Shrubs and Bushes and so you bring that the Hundredth Poll is not fit for the Helmet especially as to the Infantry which is the State of France not of England But in this Particular the Custom of other Nations a Princes Service and incident conveniences are to be considered For some will be won as much by Honours as Offices of Profit and it is less Expence to a Prince in the gratifying his well-deserving Subjects Besides something must be allowed to Aemulations and a rich Soil will bring a greater Crop than a barren In all Ages likewise some of the ancient Nobility are extinguished and it is fit to plant new Standards in the room of the decayed So that what these Learned Men assert concerning spare Distribution of Honours is to be considered with just Limitations The Splendor Magnificence and great Retinues of Noblemen conduce much to Martial greatness Great Retinues of the Nobility useful except in Poland the State of Free-Servants and Attendants upon Noblemen and the richer Gentlemen hath been observed to be no where so peculiar in former times as in England Those Retainers and humble Friends are fitted for all gentile Employments and are a Seminary of the more polite Yeomanry whereas a close and reserved living of Noblemen and Gentlemen causeth a Penury of Military Forces and well-bred Yeomanry The Nobility may be Eclipsed by sinking beneath their Orbs in affecting Popularity in opposition to their Prince The Nobility not to Desert the Crown or rearing their Heads among the Clouds in Ambition Whenever by Malevolent Aspects of other Planets their Influence on the State is less benign or that the putrid Breath of some Male-contents taint their Allegiance the Contagion is of a large Spread their Blood being mingled with so many others of Power takes Fire at once and can neither be shed or rectified alone Sometimes their Blood may be chilled when they conceive others interpose betwixt them and the warmer Gleams of the Throne and they will not want Factious Torpedoes that will benum their brisker Souls The old Nobility not to envy the new ones if they be not wary to avoid their touch But when their Lordships consider that as they and their happy Ancestors have had a plentiful Portion of their Princes Regards and Bounty so they should be content that others share with them in their Princes Munificence and should not expect that their Families should be every Ages Darlings they
Presence and Bounty puts an end to them Therefore as a grave (f) Nalson's Common Interest p. 118. Author observes He that hath not deposed Reason the King of his Soul and elected in its place Prejudice and Passion to govern there or dare credit the universal Experience of the World must be convinced of the great necessary and desperate Inconveniences of a long Interregnum and elective Monarchy and that a lineal Succession is the best Barrier against assaults from abroad and is that sacred perpetual vital Energy which preserves Government from internal Putrifaction and secures us from one most dangerous Inconvenience of having another Family to provide for Therefore the (g) 10. Annal. Excellent Historian most wisely observes That Minoris est discriminis Principem nasci quam sumi That Subjects more naturally submit to an undoubted unquestionable Title when the Government descends in the same manner as other Inheritances with due respect to the singleness of Sovereignty than to new Princes the worth of whom and their Families are untried This leads me to consider that this right of Succession flows from the Law of (h) Right of Succession p. 149. Nature is founded on the Law of God and Nations First That is accounted to flow from the Law of Nature Hereditary Succession agreeable to the Law of Nature which every Man finds grafted in his own Heart and which is obeyed without any other Law and for which Men neither seek nor can give any other distinct reason all which holds in this case For who doubts when he hears of an hereditary Monarchy but that the next in Blood must succeed and for which we need no positive Law nor does any Man enquire for a further Reason being satisfied therein by the Principles of his own Heart From this ground it is that though a remoter Kinsman did possess as Heir he could by no length of time prescribe a valid right because no man as Lawyers conclude can prescribe a right against the Law of Nature therefore the Law (i) Cum ratio naturalis ff de bonis damnati saith Cum ratio naturalis quasi lex quaedam tacita liberis parentum haereditatem adjecerit veluti ad debitam successionem eos vocando propter quod suorum haeredum nomen eis indultum est adeo ut ne a parentibus quidem ab ea Successione amoveri possint So in the (k) Matth. 21. Parable the Husbandman who is presumed to understand nothing but the Law of Nature is brought in saying This is the Heir let us kill him and seize on his Inheritance So the (l) Et Sect. emancipati Institut de Haered quae ab Intestato Law further saith Praetor naturalem aequitatem sequutus iis etiam bonorum possessionem contra 12 Tabularum leges contra jus civile permittit By which it is apparent that this right of Nature was stronger than the Laws of the twelve Tables though these were the most ancient and chief Statutes of Rome This holds also in the Collateral Succession of Brothers and others according to that (m) L. hac parte ff unde cognati Hac parte Proconsul naturali aequitate motus omnibus cognatis permittit bonorum possessionem quos sanguinis ratio vocat ad haereditatem For those who are now Brothers to a present Prince have been Sons to the former therefore as St. Paul says If a Son then an Heir except he be secluded by the Existence and Succession of an elder Brother Secondly Agreeable to the law of God That the Law of God gives right of Succession to proximity of Blood is manifest in that if a Man hath no (n) Numb 27. v. 9 10. Son or Daughter his Inheritance shall descend upon his Brother and so God determines in the case of (o) Numb 36. Zelophead's Daughters and so (p) 2 Chron. 22.1 Ahaziah was made King though the youngest in his Fathers stead because says the Text The Arabians had slain all the eldest which clearly shews That by Gods Law he could not have succeeded if the eldest had been alive So we see the birth-right was owned in Esau but that he sold it the priviledge of which is there fully discovered not only in discovering the right of Primogeniture but likewise in the Donation of Parents to their Children that Blessing being like the last Will and Testament Thirdly Agreeable to the Law of Nations As to the Law of Nations it might be made clear by the recital of all the Laws of Kingdoms that are Hereditary and not Elective That degrees of Succession were exactly observed according to that of (q) De Repub. lib. 6. c. 5. Bodin Ordo non tantum naturae divinae legis sed omnium ubique gentium hoc postulat So Pope (r) In c. grand de supplenda neglig Pralat Innocent In regnis haereditariis caveri non potest ne filius aut frater succedat and so in all Histories of Hereditary Monarchies we find it where Potent Usurpation hath not obstructed the free current or by some violent means derived it into another Channel If Successions of so great importance had not been fixed by immutable Laws of God and Nature the various and inconstant inclinations of present Governors saith a very (s) Jus Regium p. 158. Judicious Author had made the Nations whom they governed very unhappy If they yielding to the importunities of Mothers or Stepmothers or clouded by the Jealousie of Flatterers or Favourites or upon some unaccountable aversion should place the Crown upon what Head they pleased Therefore God did very justly and wisely settle this Succession that both King and People might know That it is by him that Kings Reign and Kingdoms are secured in Peace against Factions To come more particularly to our own Country The Monarchy of great Britain and Ireland The British Monarchy Hereditary is undoubtedly as firmly established hereditarily in his Majesties Blood and Family as it is in any Monarch's in Europe A late French (t) Of the States and their Powers p. 68. Author speaking of the Succession of the Crown of France saith That the Election of the Kingdom is not of one Person only but of the blood and operates so far as there is life in that blood The blood being chosen with the Prerogative of Primogeniture So that when one Person of the blood is dead the Power by the same Prerogative being transferred to the blood remains and rests in the blood still living and in him of the blood who succeeds by that Prerogative and in none else The Majesty Royal saith a (u) Majestas Intemerata profound Lawyer and Antiquary upon the murther of King Charles the First expired not nor was left adhering to the bloody Axe or Block It wandred not like Adrian's Ghost nor hovered in an Airy abstraction For the King or rather the Kings line saith another (w) Finch p. 83. great Lawyer is