scarce one particular Branch of the Constitution of the Monarchy the black Parliament did not alter I have been obliged under all those Heads to examine their Principles detect their Frauds sinister designs and the mischievous Consequences of those alterations or subversions they made and have treated so much the largelier of those Pests of all Governments Faction Sedition and Rebellion as I conceived the quiet repose and tranquillity of the Government required it Yet I flatter my self that all concerned therein will take my advice reasoning and collections in good part Since I have no other design but to prevent their Personal Rain and the Calamities that have been so wastingly brought upon these Kingdoms by them and may be brought again if ever the like should be attempted For the effectual prevention of which I am in hopes that the right understanding the Constitution of the Government will be an useful Antidote and would wish all Male-contents to consider what the consulting of History and their own Experience may teach them that however the English Monarchy for a time by Faction Sedition or Rebellion may be weakned or Eclipsed yet the just Monarohy like the Sun ever dissipates all the Mists hazy Weather and Clouds and will at last though sometimes not without Thunder and Lightning clear the Air and shine with more Powerfullness and Splendor than before The rude shocks of popular Disturbance do but more securely establish the Throne It being the Prudence of every Governour to make more defensible that part of the Fortress which by any Assault hath been found most weak and untenable As I have endeavoured on the one hand to keep the Subjects in their Duty and by all Dehortments reclaim them from Sedition and Rebellion and have laid open the ancient State of the Government and the absoluteness of our Princes for some Ages after the Conquest nevertheless I would not be understood to intend the reducing the Subject to their Pristine Bondage This is far from my Thoughts What I have done in this kind is not only because the subject matter required the describing the ancient Model of the Government and that of late the Power of our Monarchs hath been endeavoured to be too much restrained but principally upon three Accounts First to discover the gradual Relaxations of the absoluteness of our Princes for the greater case of the Subjects Secondly to let all know that our Liberties Priviledges and Immunities have proceeded from the Grants Benevolences and Gracious Condescensions of our Kings Thirdly to induce the Subjects with due thankfullness to acknowledg the bountiful Favour of our Soveraigns and the Wisdom of our Ancestors in solliciting for and obtaining such Liberties as we enjoy beyond the degree of any Subjects either to Crowned Heads or Republicks There being such Barriers set in England betwixt the Soveraign and his Subjects as neither can remove without fatal Inconvenience For as the Princes greatest Ease Prosperity and Glory is when he Reigns not so much over the bodies as in the hearts of his Subjects and rules by the Laws So the Peoples Profit Plenty and Tranquillity is the most certain and established when they are content with the Enfranchisements the Laws allow and endeavour not to invade the Prerogatives of the Crown as the Houses of Parliament 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 6. Hist p. 452. C. convened 1641. did by their dethroning Propositions and Bills which if they had been granted would not only have unsoveraigned the King but rendred the condition of the Subject more miserable and enslaved than it had been for many centuries of years by-past I have endeavoured in the whole work to discover how much the English Monarchy excells other ancient and modern Governments and even the Utopia and Fictitious Ideas of the Philosophers The judicious Polybius hath a memorable observation That every Monarchy is not to be called a Kingdom but that only which is yielded to by the willing that is which is freely submitted to to distinguish it from Tyranny and which is governed by Counsel rather than by fear or force Also that every Government of few is not to be called the Principality of the Optimacy but that wherein the just and Prudent by Election have the Power That he saith further is not to be called the Empire of the People where every multitude hath Power of doing what they will or purpose but where the Countries Customes flourish where the Gods are worshipped Parents honoured the Elder Persons reverenced and the Laws obeyed All which I hope I have made apparent are better provided for in our Hereditary Monarchy than in any other known Government especially as to the Peoples benefit in the rare Constitution of the Legislative and yet the Soveraign hath retained sufficient Power to secure the Peace of his Countries and be able to bear the Port of a great and just Monarch In this Treatise I meddle not with the Arcana Imperii they have too much of Majesty impressed upon them to be described by such Pencils as I can use and like the Kings Coin are incircled with a Decus Tutamen may neither be clipped nor adulterated Neither have I medled with the Religious part of the Government that not being my Province I write abstractedly of the Soveraign and the Constitution without regard to the Religion of the Prince as being well satisfied that whatever Qualifications the Subjects may wish for in their Prince yet Religion qua Religion should neither influence the Succession nor their Obedience In so great an undertaking I hope it will be considered that as in a great Building all the Rooms are not alike richly furnished There are some Vtensils fit for the Kitchin which are not for the Dining Room Some Pictures suit the Hall others the Stair-case Such as are for Chimney-pieces are not agreeable to the Great Chamber The choicest are fit for the withdrawing Room and the enriched Closets So in this work I am obliged to keep a decorum In some places I have reason to use a more close and contracted in others a more free and loose way of Arguing Sometimes I am forced to use the significant though obsolete Saxon or the crabbed Terms of Law and Arts and intermix the less refined Sentences of old Authors according as the subject matter required so that I could no waies use that politeness of phrase or roundness of Period◠the curious may expect I presume not that every one will be equally delighted with the researches I have made into the usages of remote Ages or with the Censures upon some mens later Actions But most I hope will find good use of either and when they consider I have endeavored to follow great Authors and have faithfully quoted them they will more readily acquit me Therefore I beg that the Ingenious Peruser will not pass his Censure upon parcels but after he hath perused the whole will be so charitable to believe that those Parts which are less acceptable to him
Hypothesis could be none when as yet there was no Government and the Contract it self as a bare contract without the help of some Law or other to give it force cannot operate upon any but the Contractors for it can have no cogency upon those that never gave consent thereto I know no other resolve can be given to most of these quaeries but that as it is fabled of Thebes that the Stones that composed the Walls came into their places by the Musick of Orpheus without any Artificer's hand So some cunning and fluent Orator learned above the rudeness of such an age who had signaliz'd himself by many feats of Arms Arts and Skill by which he had got an ascendent over the People and yet so circumspect as to have avoided envy and emulation such amongst them who was most hardy to encounter dangers had most bodily strength to overcome any single person and such as had by degrees worn of the rudeness of his Companions and taught them something of consideration and the use of reason to understand justice and honest dealing and to see the advantages that prudence and a wise head hath over-raw and uncultivated strength not only in deciding controversies and administring Justice but even in providing against and expelling danger Such an one as this might have made himself the head of a Colony but what is this to the Original power of the People Have we not much more reason to judge the rise of Government as I have hitherto inculcated was from primogeniture and by Gods appointment than from any such Chaos or existence of Prae-Adamites or a race of People sprung up none knows when or where To gratifie the insatiable Republican as much as may be let us suppose a Colony or swarm of younger Brothers men that lived poorly in their native Country Women Children and Servants not tied by any preceding Allegiance to a Prince or to have shaken off the yoke or to be banished or freely dismissed by those under whose Government they had been born and to be absolved from all Allegiance and declared manumitted and restored to that absolute freedom which they could claim as the birth-right of mankind that priviledge of nature equally common to every one as the air and light and to enjoy this freedom as an unlimited power to use their abilities as will did prompt and those to pass into an unpeopled Land which no Prince or People laid a claim to Would not every one conclude these were as free to live as they listed as any people under the Sun and to be any ways restrained of this would be very grievous and an Invasion of that right to freedom every one might challenge Yet can it be conceived that these could continue long without the consideration that it was not so delightful to do what every one liked as it would be miserable to suffer as much as it pleased others to inflict or that the powerful could take comfort in that hostile estate wherein he was in continual fears of others mischievous designs against him who had in this imagined state (x) D. Digs Unlawfulness of Resistance p. 3. as much right in any thing as the present Possessor The consideration of this surely would oblige every one to transfer his particular power into one or more hands tying themselves by obligation not to make use of that natural power of resisting the power set over them but to aid him or them when he or they summoned their strength or required their assistance In requital of which submission of private strength the whole Government becomes their Guard whereby they are secured from the dangers of private injuries But can it be thought that any such Governour or Governours would take upon him or them the burthen of spending his whole time in watchfulness anxiety and care for the preserving such a society in peace and the free enjoyments of what they should acquire without having a power to execute impartial Justice upon Offenders in raising forces to suppress any Tumults or Insurrections in rewarding and promoting the inferior Ministers or would yield himself to be accountable to any party of that people who should fancy themselves aggrieved But on the other side to make the Government useful it must be established that every one yield his life to Soveraign Justice to be capitally punished if he transgress such Laws as they had agreed upon to be so inflicted or in lesser offences to yield to proportionable punishments Now if it were to be understood as a tacit Covenant that when ever the Subjects found themselves aggrieved they might re-assume their Power and depose or change their Soveraign every Offender that could engage his Relations or Dependents to back him would be remonstrating and to avoid the punishment especially if Capital would adventure his life in Arms and so defeat the great end and design of Government But further supposing that this People oblige themselves and Posterities by Oaths and other Authentic Bonds to assist the Government against all Disturbers Domestick and Foreign and to be subject and pay all due obedience to the Government and Laws By what justice or reason or pretence of natural Right could they or their Posterity claim a power of re-assumption of that Original Power they had devested themselves of It is manifest that a People may consent to subject themselves to a Soveraign without limitation as appears by the famous (y) Institut de Jure naturali Gent. Civ 56. Vlpian lib. 1. sect De Constitutione Principis Lex Regia among the Romans wherein it is expressed thus Populus Imperatori in Imperatorem omne Imperium suum potestatem transtulit That they transfer to and upon their Governour all the Power they singly or in combination had After which the right of Nature which remains for them innocently to make use of is that freedom not which any Law gives but which no Law takes away Therefore if we consider Men once to have been in such an imaginary State of freedom and after to have yielded up themselves to be subject and thereto tyed themselves and their Posterities in the strongest obligations that can be invented What power can such People now have of substracting their obedience since their Ancestors many Centuries of Ages since and in all successive Generations have either transferred what Power they ever could claim to their Governours or by his Laws and their own consents have bound themselves in fidelity to the Soveraign his Heirs and lawful Successors So that in what Vtopia soever this Doctrine of the Original of Power being in the People and their Power of re-assuming it may be asserted it can have no place in our happy Islands For the Government of England is a successive Hereditary Monarchy declared so by all our Laws so that with us allegations of natural Right have no sort of place our Kings having their Power established by Birth-right by Consent by Prescription and Law
which are all the ways whereby any right can be legally established Therefore we must look upon all such as cast in such Baits for the People to nibble at that they intend to make a prey of them and having fastned the gilded Hook in their Jaws may draw them out of their own Element to a free air indeed but such as will stifle them For when any Subjects by the instigation of such pretended Patriots are excited to put in their claim of Original Power and shake the Government though their Rebellion be prosperous it is not without vast effusion of Blood that the Government can be changed After which how will it be possible that the Community of the People can be put into that pristin state of freedom those State-Mountebanks promise but rather into an Anarchy which is contrary to the end of all Society and to quiet and peace and is the Parent of all confusion which is much worse than the hardest subjection This truth by a most chargeable tryal we experimented in the late War when the Pretended Saviours of the Nation and great Promoters of Spiritual and Temporal Liberty having wheedled the People into a belief of their honest Intentions and by their prosperous Arms overthrown the most temperate Monarchy by the effusion of infinite Blood and Treasure by pretended agreements of the People they assumed the Government to themselves enslaving both the Nobility Gentry and Commonalty more than any Foreign Conqueror would do or ever their Ancestors had been in any Age and the Golden Scepter and that of King Edward with the Dove was turned into a Rod of Iron and a Flaming Sword Basilisks and Fiery Serpents CHAP. IV. The Benefit of Government from the Establishing and Instituting of Laws THe (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Rhetor. ad Alex. c. 1. Philosopher describes Law to be the Promulgation of what by the common consent of the City is defined which commands upon Terms how every thing is to be done Which is to be understood after Government is established where the Lawgivers are agreed upon and the Subjects known that are to obey them In another place the same (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ethic. Nicom c. 5. Philosopher saith Laws are to be declared concerning all things that may respect the common Benefit of all or of the Optimacy viz. the Nobility or Prime Gentry or the Sovereign or be agreeable to Vertue or to any other Necessity of the People and these he calls Common Laws The same (c) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 De Repab l. 2. c. 6. Learned and Wise Composer of Politicks tells us That the Law hath no force to compel Obedience but as it receives it from Usage and Custom and this springs not from any thing so much as from length of Time and multitude of Years Of these kind of Laws few Nations make such use as we do in England under the Title of Common Laws and Customs and it is no small Credit to them that so Judicious and Ancient a Writer hath given such a Character of these kind of Laws by which we have something more than a shadow of ours The same (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. Philosopher likewise with great Judgment tells us That to forego Laws received and long used and over-easily to substitute new ones is to make weak and infirm the Laws themselves Yet he is not for tying Posterity to the Laws of their Progenitors too strictly for that it is likely saith he the first Ancestors of them being such as he calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Sons of the Earth or such as escaped from some great Calamities and Destructions were rude and illiterate such as he calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 so that it would be (e) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. absurd to persist in their Decrees therefore he saith All seek not their (f) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. Countrys Laws but those onely that are good as generally such are which have had the Approbation of Ages By what hath been noted from so Ancient and Judicious an Author I may easily infer That Laws resulted from Government and were the necessary Products of such Counsels as the first Leaders or Monarchs entertained to order their People by and since he (g) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. makes the Laws of such like validity and force in the Commonwealth as the Rules and Orders of Parents in private Families we may well conclude That as those had their Origination from the Will of the Father of the Family so the other from the Prince who is his Peoples Common Parent Therefore in Homer Kings are called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Givers of Laws or Judges of the People as well as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Pastors or Feeders Conductors Defenders or Shepherds of the People So in Sacred Writ the first Hebrew Captains or Kings were called Judges Therefore Pomponius Laetus saith In the ancientest Times before Laws were agreed upon the King's Will was a Law And (i) Regis nutus Arbitrium pro Legibus lib. 10. Dionysius is express That the intimation of their Mind by Signs and their absolute Wills were in stead of Laws (k) Romulus ad libitum imperitaverat dein Numa Religionibus Divino Jure Populum devinxit Sed praecipuus Servius Tullius sanctor Legum fuit quis etiam Râ—g â—s obtemperarent 3 Annal Tacitus giving an account of the Roman Laws saith of Romulus That he commanded at his own pleasure and after him Numa bound the People with Religion and Divine Laws Some were found under Tullus and Ancus but the principal Institutor of Laws was Servius Tullius to which even Kings should obey that is they thought themselves obliged to observe and keep the Laws they had appointed He then notes That after Tarquin was expell'd the People prepared many Laws for the defence of their Liberty and to strengthen their Concord against the Factions of the Fathers A late Judicious (l) Nalson Common Interest p. 14 15. Author saith That God and Nature investing Primogeniture with the Right of Kings and Magistrates they made Laws and this not being observed or wilfully disowned by some Popular Patrons who would possess the People that the Laws made Kings and Governours hath created the greatest Mischiefs by giving an Inlet to the Changes of Governors and Government For granting this most enormous Doctrine and dangerous Principle Laws being alterable for the Convenience of Prince or People by consequence the Right of the Sovereign if it be onely from the Laws must be precarious also The Opinion is in it self most absurd and unreasonable for there never could be Laws till there was some Form of Government to establish and enact such Laws and give them their energy and vigour For nothing can have the force or power of a Law or oblige men to Obedience unless it proceed from such Person or Persons as have a Right to command and Authority to punish the
Succession is as a Golden Chain that holds fast together and close every part of the Royal Contexture in it self and leaves no Chasms Chinks or Ruptures whereby any dissolving cause can be admitted entrance to subvert or disjoint the Frame I have before spoke of this Head and shall only add that as Kingly Government was the first so when Commonwealths were introduced with much strugling they kept Life a while in Greece and Rome but have been reduced to Monarchy again about one Thousand seven Hundred Years since Tacitus after his short way tells us Vrbem Romam a principio Reges habuere Libertatem consulatum L. Brutus instituit Dictaturae ad tempus sumebantur neque Decemviralis Potestas ultra biennium neque Tribunorum militum Consulare jus diu valuit Non Cinnae non Syllae longa dominatio Pompeii Crassique potentia cito in Caesarem Lepidi atque Antonii arma in Augustum cessere qui cuncta discordiis civilibus fessa nomine Principis sub Imperium accepit Tacit. l. 1. Annal. Monarchy hath no Private Ends. that Rome had Kings first that L. Brutus appointed Liberty and Consulship Dictatorship was sometimes assumed the Decemvirate lasted not alive two Years nor did the Consular right of the Tribunes of the People long continue nor was the command of Cinna or Sylla durable and the power of Pompey and Crassus devolved upon Caesar as the Arms of Anthony did upon Augustus who received all being weakned wearied tired out or spent with civil Discords under the Empire of a Prince From whose very Name the title of semper Augustus and Caesar is continued to this day which duration in no Commonwealth can be found Therefore every one that desires to live under an uniform unchangeable and durable Government must prize and value Monarchy most It is furthermore the peculiar Excellency of Monarchy that it hath no separate or distinct Interests or Designs from the Good of the Publick the End of all just Empire being the Safety and Profit of the Subjects saith a (f) Finis justi Imperii utilitas obedientium salus Ammianus lib. 30. Judicious Historian For a King neither in time of Peace or War can ever have any Good or Evil befal him wherein his Subjects have not their share It is onely in Monarchy where Paternal and Conjugal Love are in the highest degree and relation betwixt the Prince and his People the (g) Nalson's Common Interest p. 111. Blessings of Happiness or the Miseries of Infelicity are stowed in the same Bottom So that a Monarch consulting the Safety Honour Welfare Peace and Prosperity of his People doth at the same time consult his own Interest in every one of them and this must of necessity oblige him to act strenuously and constantly in all his Endeavours for the attainment of those Ends. This will induce him to exert all his Royal Vertues of Justice Fortitude c. will cause him to be watchful to suppress the Turbulent and Factious who would discompose the happy Harmony at home and be vigilant against the Attempts of Foreign Powers For the State can neither sink by Intestine Discords or fall by Foreign force but he must be ruined with it and so out of the natural Tenderness care and concern for the Safety Peace and Happiness of himself and People he must be truly a Father of his Country whereas the Members or Representatives of a Republic are at best but Guardians and greedy ones as we of late experienced who generally commit great Wastes Objection That Monarchy is apt to turn to Tyranny The common objection perpetually in the Mouths of Democratick Factious People is that Monarchy is apt to degenerate into Tyranny according to that of the (h) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lib. 5. Polit. c. 10. Philosopher who having recounted the external and intrinsick causes of the decay of other forms of Governments saith that the dissolution of Kingdoms happens rarely from external Causes and so they are more durable but it may happen from two intrinsick ones viz. the Dissention of those of the Royal Family or Princes or when Kings govern something Tyrannically But this is only true where Monarchy is Absolute Arbitrary and Unbounded which in the English Monarchy is much otherwise For though the Kings of England where they have not precluded themselves by their gracious Condescentions and Grants to their People are not limited by any other Power than their own Royal Pleasure Yet their Concessions have been so many and formed into Laws as Measures and Standards of Government that they are Mounds and Boundaries which the Monarchy hath no less Prudently than Indulgently been pleased to give it self thereby to ease the Subject of any just occasion of Fears or Jealousies which receive their Birth from the formidable redundancy of their absolute Power and by this means the Government is secured from the falling intoan Arbitrary and Tyrannical way of Rulers and the Minds of the Subjects freed from the dreadful apprehension of Slavery And as by this Incomparable method of goodness and generosity in our Princes the Subjects of all conditions are the more powerfully obliged to all dutiful Allegiance to their temperate Government so the Government it self is thereby rendred more capable of effectually answering all the Ends and Intentions of Society When it is debated whether Monarchy or Tyranny be the most convenient Government the true Sence of it is this Comparison betwixt a King and Tyrant Whether the People shall live more happily when the supream Power is in one and the Person by the Laws of the Country is known whereby no Room is left for Division and Faction concerning that single Sovereign Or When one Man being more active and crafty than his Fellows who ought to have an equal share in the Authority raises a Faction upon some plausible pretences and under the colour of serving his Confederated Party perswades them to be commanded by him and so exercises the supream Power in an Illegal way which as is compassed by engaging the People in misery under colour of making them more happy so it must be kept up by as bad Arts and an Army must be maintained to make good by force what Law cannot justify In this manner as the question is to be stated betwixt a Lawful King and Tyrant So if it be enquired whether Monarchy or Aristocracy be better it is not whether a bad King be better than a good Commonwealth consisting of the Optimacy but the Comparison ought to be betwixt a good King and a good Aristocracy or betwixt them when both bad First Comparison betwixt a King and a Commonwealth Therefore it is to be considered That a People may easilier have a good King than a good Nobility taking Good in a Political Sence as providing for the Peoples Happiness because the King's Interest is the same with that of the Peoples which is a strong State-security whereas the Commonwealth of Greece
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
answer the Varieties and unthought on plottings of Mans Nature and in Tract of Time Laws at first just or in terrorem become unprofitable and harsh and this moderating of Laws which is called saith he 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Equity is so annexed to the Prince that by no decree of Man it can be pulled from it This Absoluteness I have hitherto mentioned out of such great Authors How far the Kings of England may dispense with their Laws is not practised by the English Sovereign for he challengeth no such Power to make or abrogate Laws without the Concurrence of the two Houes But he hath a sufficient Prerogative by dispensing conniving or putting some Laws more in Execution than at other times so to manage the Execution of the as the Government and consequently the Peoples safety be not prejudiced So though there be a Law for Triennial Parliaments yet when a Prince finds a Potent Faction that may influence the Electors so as the meeting of such a Parliament at such a time may be hazardous to the publick there being no Penalty can be inflicted on a King for the Omission and the Danger being visible that such a Factious Parliament was only wanting to bring to perfection the Design of Traiterous and Seditious Persons It is very agreeable to Reason that a Prince in such a juncture should prefer the publick Peace of his Kingdom and the security of his Crown by the omitting such Summons than to hazard all by convening them There are other Cases may intervene wherein the Reason of State the Salus publica may require the dispensing with or suspension of the Execution of some Laws As in time of open Rebellion the King 's arming of such as he may most surely confide in though they take not such Oaths or be so qualified as the Laws require and as in several other Particulars might be instanced in I shall only add two Authorities of our own Country who were well versed in the matter the one a great Divine and the other as great a Lawyer and Statesman First the learned (i) Vsher's Power of Princes p. 76. Primate saith Such positive Laws being as other works of Men are imperfect and not free from any Discommodities if the strict Observation thereof should be pursued in every particular It is fit the Supreme Governour should not himself only be exempted from Subjection thereunto but also be so far Lord over them that where he seeth cause he may abate or totally remit the penalty incurred by the breach of them dispense with others for not observing of them at all yea generally suspend the Execution of them when by experience he shall find the Inconveniences to be greater than the profit that was expected should redound thereby to the Common-wealth The Second Authority shall be that of the Earl of Clarendon (k) Survey p. 127. who affirms That by our Laws the King hath in many Cases the Power of dispensing with the Execution of the Law especially in granting pardon for the transgressing of them except in those Cases where the Offence is greater to others than the King as in murder of an Husband or Father therefore upon an Appeal by them the Offendor may suffer after the Kings pardon which shows how tender our Laws are of protecting the Lives of Subjects This Prerogative of Kings (l) 3. Rep. Bodin avouches among the Rights of Sovereignty to pardon the Persons the forfeiture of their Goods and to restore the attainted Honours of those condemned by righteous or unrightcous Judgment according to that of St. (m) Q. 115. ex Veteri Novo Testamento Hilary in St. Augustine Imperatori soli licet revocare sententiam reum mortis absolvere ei ignoscere That it belongeth only to the Emperor to revoke the Sentence or Judgment and to absolve and pardon the guilty For as Themistius saith One thing becoms a Judge and another thing a King the one is to observe the Law the other hath power to correct the Laws themselves and to qualifie the severity and harshness of them as being himself a living Law and not confined to the unchangeable and unalterable Letter For that end saith he it seemeth God did send from Heaven the Regal Power into the Earth that Men might have a refuge from that dead and immoveable Law to the living one as he instanceth in Capital Offenders For we have seen saith he Men returned to life from the Gates of Death whom the Law indeed sent thither but the Lord of the Law 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 brought back from thence again As to the Power of Equity claimed by the great Civilians the Administration of that is vested in the Chancellor or Lord-Keeper of the Kings appointment who is the Keeper of the Kings Conscience or Dispenser of that reserved Power in the King CHAP. XX. That the Sovereign is not to be resisted or rebelled against upon pretence of ill Government Irreligion or any such matter OUR Republicans of 1641. set themselves with all their skill and cunning The Necessity of this Discourse as well as force to overthrow the Doctrine of Non-resistance and to establish that of its being lawful not only to rise in Arms for the defence of their Liberty Property and Religion the gilded pretences of all Rebellions but to prosecute that blessed King and all his Loyal Subjects in the highest Degree of Cruelty and Revenge that they could devise or their success embolden them to commit Therefore it is a most necessary Duty of all that wish well to themselves as well as the Government to oppose such dangerous Positions and Practices The Authorities I have cited in the two Chapters of Sovereignty are but the gleanings of what may be found in learned Men on this Subject and since I shall have occasion hereafter when I treat of the Subjects duty to handle this matter more particularly I shall be the shorter in this and refer the curious Reader to the elaborate Treatise of Mr. Dudley Digs Of the unlawfulness of Subjects taking up Arms against their Sovereign and to the Glory of his Age for Learning Loyalty and Sanctity the Lord Primate Vsher's Power of the Prince and His Second Part of Obedience to the judicious and learned Sir George Mackenzie his Jus Regium and (a) Arnisaeus Zeiglar de Jure Majestatis c. 1. n. 12. Salmasii Defensio Regia Grotius lib. 1. c. 4. de Jure Belli Dr. More 's Divine Dialogues Dr. Mouliu 's Philanax Anglicus Sam. Petit 's Diatriba c. others that treat of this Subject ex instituto desiring all those who have imbibed or would avoid any of these dangerous Principles that they will seriously consult those Authors out of whom I shall only hint some few of their Reasons and Arguments that may be as Antidotes against the most destructive poison of resisting Sovereign Princes or allowing any Order of Subjects the Liberty upon any Pretence of
Cabedo Pract. Obs par 2. decis 40. would himself For it is essential to Majesty and Soveraignty and cannot be abdicated while he remaineth King nor separated without the diminution or destruction of Majesty How both King and People are obliged to defend the Rights of the Crown will appear in the Laws ascribed to King Edward the Confessor in the 17.35 and 56. As to the Particular How absolutely necessary the Royal Assent is to all Laws in the Act of Recognition to King James the First it is fully expressed thus Which if Your Majesty shall be pleased as an Argument of your Gracious acceptation to adorn with Your Majestie 's Royal Assent without which it can neither be Compleat and Perfect nor remain to all Posterity according to our Desire as a Memorial of your Princely and tender Affection towards us c. Against what I have laid down those who were for co-ordinate Powers in the two Houses object many things Answers to some Objections against the King's sole establishing of Laws some I have answered in the Chapter of the King's Sovereignty and I shall meet with others in the Chapters of Parliaments And shall here only take notice of some omitted or not fully answered there Against the assertion That the Liberties granted by King Henry the Third were by way of Charter they produce the Preamble (r) Coke 2 Instit fol. 525. to the Confirmation of King Edward the First of Magna Charta La Charte des Franchises la Charte de la Forest les queux fuerent faitz per Commen de tout Royalm en le temps le Roy Henry pier soient tenue c. and Charta de Foresta wherein he saith that the Charter of Liberties and the Charter of the Forest made by the Community of all the Realm in the time of King Henry our Father shall be kept c. To which with the Judicious Doctor (s) General Preface to Compleat History p. 41. The ancient Kings sealing of Charters of Liberties reputed Laws Brady may be answered that these were the Petitions and Requests of the Community of the Kingdom and may be said to be made that is digested by them into the form of a Charter So the Barons offered King John's Magna Charta to him ready drawn in a Schedule and forced him to grant it and cause his Seal to be put to it and the whole strength and validity of the Charter lay in his Grant and the Confirmation of it under his Seal This was the only Security they desired and demanded no other and the Tenour of all the Charters were accordingly We grant We confirm We give for us and our Heirs to them and their Heirs c. Which Grants and Concessious were always in these times accepted and acknowledged to be sufficient without the least doubting or scruple There was no other Power or Authority that gave them being but the King's so that it seemed the great Councils or Parliaments of those times owned the Kings Charters under Seal and the Grants made by them to the People to be of good force and effect and that their Petitions to which he gave his assent and caused to be put under his Seal were by them accepted and from time to time acknowledged as firm and valid Laws The same learned (t) Idem p. 67. The Laws planted by Kings Doctor Brady observes that Sir Edward Coke hath a formal way of speaking The Law doth this and The Law doth that This is Law That is by Common Law of England abstracting it from any dependance upon or Creation by the Government as if it had been here before there was any and had grown up with the first Trees Herbs and Grass that grew upon English Ground and had not been of our antient Kings and their Successors planting by assistance and advice of their great Councils in all Ages as it was found expedient either by them or upon Petition and Request of their People which is acknowledged by all the Bishops Earls Barons and People present at the (u) Claus 1 E. 2. m. 10. dorso Coronation of King Edward the Second in these words Sir Will you grant and keep and by your Oath confirm to the People of England the Laws and Customs granted to them by the antient Kings of England your Predecessors true and devout to God and namely the Laws and Customs and Liberties granted to the Clergy and People by the glorious King Edward your Predecessor Another Objection some make against the Absoluteness of the King's Power Second Objection when it is said in antient Statutes The King ordains The King wills that it hath been resolved by many of the Judges (w) Coke 8. Report s 20. b. that if these Statutes be entred in the Parliament Rolls and allowed as acts of Parliament it shall be intended they were by Authority of Parliament With the Judicious Dr. Brady I shall not enquire how such Entry and such Allowance without any Words in the Statutes to that purpose can make them to be by Authority of Parliament But we may he sure those Words The King ordains The King wills being pronounced in Parliament and recorded in the Rolls thereof do clearly prove the King's Authority and Power in making Laws to be far greater than many Men would allow him or have him to enjoy (x) Lib. 3. c. 9. Bracton and the Author of (y) Lib. 1. c. 17. â—leta applying the Passage of the Civil Law Quod Principi placet Legis habet vigorem to the King of England say That Clause ought not to be understood of every thing that is rashly presumed to be his Will but of that which is justly determined upon good Advice and Deliberation by the Counsel of his Magistrates (z) Râ—ge Authoritatem prastante the King giving it Authority and confirming it for a Law and from hence (a) Cum ipse sit Author Juris non debet inde Injuriarum nasci occasio unde Jura nascuntur infer That when he himself is the Author of the Law Injustice ought not to spring from the same Fountain from whence the Law doth spring It is no diminution of the Sovereignty of a Prince in the matter of making Laws or repealing them to have the Assent of the Nobles and such a select Body of Great and Wise Men as the House of Commons are But when as in the Parliament 1641. the Two Houses claim a Co-ordinate Power and would make their Advices be swallowed as Commands it is this that all Loyal Persons should oppose We generally understand that the Persian Monarchy was as Absolute as any yet in it we have a manifest Discovery of the Concurrence of the Nobles in preparing a Decree The Persian manner of making Laws yet they wanted the King's establishing the Decree by his signing it whereby it might not be changed and Grotius thinks they signed it also (b) Dan. cap. 6. v. 7 8
9. The Words are The Presidents and Princes assembled together to the King and told him That all the Presidents of the Kingdom the Governours and the Princes the Counsellors and the Captains have consulted together to establish a Royal Statute and to make a firm Decree c. Now O King establish the Decree and sign the Writing that it be not changed according to the Law of the Medes and Persians which altereth not Here the Presidents c. assembled consult about the Decree they propose it as they had framed it yet they own it was of no force without the King 's establishing and signing it Which is exactly parallel with the Constitution of the Legislative in England if we joyn the Commoners to the Presidents Princes c. No radical mixture of Power in the two Houses with the King But the Writers for the Long Parliament were so desirous to make the Two Houses to have a Radical Mixture of the Legislative Power equal with the King 's that they sought all the specious and plausible Arguments they could to enforce it having little regard to what was Law it self or ancient Usage Therefore one of them in his (c) Pag. 39. Answer to Dr. Fern saith A Legislative Power is not to be satisfied by a bare powerless Consent Third Objection and therefore deman◠Whether that Consent be causal and authoritative or meerly consiliary and unauthoritative That the Two Houses have an Enacting Authority he would prove from that Clause set in the beginning of Acts Be it Enacted by the King 's most Excellent Majesty This will appear a Form of Words lately made use of in the Twenty fourth Chapter and the Authority of the Lords and Commons assembled in Parliament For he saith this implies distinct Authorities for the Addition of the Authority of the Lords and Commons were superfluous if Laws be enacted by the King's Authority alone To which it may replied according to (d) King's Supremacy p. 89. Mr. Sheringham That though it be granted that they have an Enacting Authority in this particular of Law-making which how step by step it hath been brought to the state it is now in will be cleared in the following Chapters yet the Question is first Whether that be only a Power of assenting that such or such a Law shall be established or a Power that commandeth and giveth life and vigour to the Laws Secondly Whether the Power be radically in themselves or derived from the King As to the first It is agreed by the Judges (e) 2 H. 7.14.11 H. 7.25 Lambard Archeion fol. 271. That the Words Assenteth and Enacteth are equivalent in this Case For their Power of preparing Materials for a Law by framing Bills sufficiently denotes their Assent because they are Bills of their own framing and the Wisdom they show in these and the Care of the Government and People will always make that August Body of great use to the Government and valuable by their Fellow-subjects But secondly In this Particular the Writ of Summons is that which gives them all the Power of which in the Chapter of Parliaments I shall enlarge It must be considered from whom they have this Authority They have the Use and Exercise of the Legislative Power so far as is necessary for that Act although it be not radically in them for although the King's Authority cannot be separated from him privativè so as to deprive him of it yet cumulativè it may be inherent in his own Person and yet be in others too as the Light of the Sun is inherent in its own Body and yet diffused through the whole World And so we call it Moon-shine and Star-light when all their Lights are from the Sun And this Delegate Authority may be called theirs because for the time of their Sitting they are by the Sovereign and Constitution of Government so capacitated to act But since they are called by the King 's Writ and dissolved at his Pleasure they cannot be said to have the Power radically in themselves If this radical Power in the Two Houses were true How could the (f) 24 H. 8. 1 E. 6. c. 2. Statutes declare the King to have entire whole and plenary Power and to be so Supreme that all Authority is derived from him and all Obedience and Allegiance due to him and him alone An utmost Chiefty and Primity of Share as they used to speak in 1641. will not make out the Force of the Statutes Because the Kings of England desiring to rule their People by Lenity have out of Princely Clemency condescended so far as not to impose upon them as hereafter it will appear they anciently did any new Law or alter and repeal the old without their own Consents by their Representatives The Black Parliament of 1641. would have the People believe The Encroachments of the Black Parliament that their Authority was equal with the Kings But when Success had hardned them they were not content with a share they at first challenged but laid claim to all wholly excluding the King and denying him his Negative Voice usurping and taking upon them the whole Power of making Laws So that this Serpent of Co-ordinate Power is not to be suffered to wrigle in its Head lest the whole Body glide easily after But I leave the further discourse of this to its proper Place Preface to the following Chapters and shall now proceed to give some Light to the Government the Britans had among them by the Comparison is found betwixt them the Gauls and Germans Being desirous as much as I can to show the Ancientest usages and under the several Conquests of England how the Government hath received Growth and Alteration sometimes the People being under the Slavery of absolute Conquerors and other times factious Nobles bearding their Kings how the even Thred of Regular Government hath been carried on or interrupted how from an absolute Power of giving Law and ruling in a Military way by the Feudal Law and many other particulars the Government is brought to that Temperament whereby the Subjects may if they will be dutiful live happilier than any other do To illustrate all these it will be necessary to represent the State of the Britans under the Romans and to discourse of the Germans from whence our Saxon Ancestors came and of both of their Manners and Laws and from thence to proceed to illustrate the Legislative Power In all which if I carry my Reader out of his Country to view the State of our Ancient Neighbours I hope he will think it no ill spent time to make that pleasing as well as profitable towr And though I represent him his Ancestors rude and barbarous in Comparison of the Roman civilizedness yet he will find they had some Religion some Arts great and generous Souls as well as strong Bodies and their greatest mis-hap seems to be that those in Britan Gaul or Germany were not under one Monarchy
as well as Norway which was the reason why William the Conquerour understanding that the Danish Law was used in that part where the Danes had settled themselves he preferred them before other Laws because his Country of Normandy was sprung from the Danes and Norwegians and it was with much difficulty that he was perswaded against imposing them upon the whole Kingdom saying the Danes and Norwegians were as sworn Brothers with the Normans These Danes entred about the year 790. and were at last overcome by King Alfred and by agreement betwixt him and Guthrun King of the Danes who governed the Kingdom of the East Angles and Northumbrians Guthruns People enjoyed the Danish Laws which differed from the other in nothing so much as the proportion of the Mulcts King Edward the Elder Aethelstan Edmund and Edgar made Laws but from the time of Edgar to Edward the Confessour the Danes having the principal Command the Danish Laws mostly prevailed But Edward the Confessour of these three Laws composed one which saith the Monk of (d) Lib. 1. c. 50. Edward the Confessor 's Laws composed of all Chester are called the Common Laws and to his Days were called the Laws of King Edward By all I have hitherto noted concerning the Laws either made in Germany France Lombardy Burgundy Bavaria or other Countries after they came to have any established Government of their own or in England during the Heptarchy It is apparent whoever was Soveraign imposed the Laws which as to the Saxons in the next Chapter I shall make particularly appear When the Roman Imperial Law began to be disused That the Roman Laws begun to be disused as soon as their Empire declined and was broken is as manifest for these several Nations by the appointment of their Soveraigns had their unwritten Customs and Laws revised and according to the suitableness of them to the Government of their People had them writ into Books and enjoyned them to be observed by their Subjects To make it evident that the Imperial Roman Law was much disused after Justinian's time upon the account of other Soveraignties being established which acknowledged not that dependence upon the Empire as formerly I shall offer something from Mr. (e) Notes upon Fortescue p. 20. Selden who if any other is to be credited in this kind of reading after I have said something of Justinian The Emperour Justinian (f) Proaem de Consirmatione Institutionum Of Justinian 's Laws in the year of our Lord 565 by the help of Tribonian Master and Exquaestor of the Sacred Palace and Exconsul and of Theophilus and Dorotheus Illustrious Men of whose Skill and Knowledge in the Laws and their Fidelity in observing his Commands the Emperour had manifold experience of Although he had commanded them by his Authority and Perswasions to compose those Institutions that the Subjects might not learn the Law from (g) Non ab Antiquis Fabulis discere sed ab Imperiali splendore appetere Breviter expositum quod antea obtinebat quod postea desuetudine inumbratum Imperiali remedio illuminatum est Legimus recognovimus plenissimum nostrarum constitutionum robur eis accommodavimus Ancient Fables but from the Imperial Splendor as he calls it desire them and after fifty Books of Digests or Pandects and four Books of Institutions were made in which were expounded whatever before-time was used and what by disuse was obscured by the Imperial Remedy was Illuminated and he had accomodated to them his fullest Authority and had appointed them to be read and taught at Rome Berytus and Constantinople and no where else Yet the body of the Civil Law was so neglected that till Lothar the Second about the year 1125. took Amalsi and there found an old Copy of the Pandects or Digests it was in a manner wholly disused Under that Lothar the Civil Law began to be profest at Bologna and one Irner or Werner made the first Glosses upon it about the beginning of Frederick Barbarossas's time in Anno 1150. and Bologna was by Lothar constituted to be Legum Juris Schola una sola (h) Sigon de Regno Italiae lib. 11. 7. This Book Lothar gave to the Pisans by reason whereof saith Mr. Selden it is called Litera Pisana and from thence it is now removed to Florence where in the Dukes Palace it is never brought forth but with Torch-light and other Reverence By this account we may note That even before Justinian's time some Laws had been rather by old Traditions which he calls old Fables than by certain Authority received others were by long disuse forgot and after they were thus established by Imperial Authority yet the succeeding Barbarity of the Ages and the new Kingdoms erected caused other Laws to obtain Force the first of which we find very rude All the first Laws we read of in any Nation seem either so comparatively to the refinedness of the Laws in these Ages or else the Digesters and Authorizers of them complain how obscure rude or indigested those were out of which they extracted theirs The great Subversion the Saxons made by their Conquest The Saxons made so great and universal a Subversion in the State that scarce any City Dwelling River Hill or Mountain retained its former Roman or British name so that we have less reason to expect any satisfactory account either of British History Polity or Laws when we only know where they had Camps Stations or Cities Palaces or Fortifications or Temples by the Coyns Brick tessellated Pavements Glass Earthen or Jett Fragments of Cups and other Houshold-stuff or Urns and Sacrificing Dishes which by chance have been found in the Rubbish of many Towns that have been certainly fired and totally demolished which sufficiently disâ—â—ver the noble Structures and rich Furniture the Romens and Britans had before the Saxon Invasions Besides which we may consider not only the continual Wars and Depredations the Saxons made one upon another but that the Daves like a fatal Hurricane or Whirlwind tore up Root and Branch every where overturning ransacking burning and destroying all that they could not peaceably possess Having thus far treated of the State of the Britans and something of the Laws in general A short Glossary of the Names or Titles of the Constituent Parts of Great Councils as a Praeliminary to the better understanding who are meant by the Persons who we find do constitute the great Councils I shall out of Sir Henry Spelman Somner and Doctor Brady give a very short Glossary referring the curious Reader to the Books themselves The most common Words in the Saxon Laws that are used besides the Bishops The Witan or Wites Einhard divides the Germans into four sorts of Degrees the Noble Free-men those made free and Servants his words are Quatuor differentiis gens illa consistiâ— Nobilium sâ—iliâ—et Liberorum Libertorum atque Servorum Adam Brem Hâ—â—t Eccles c. 5. to express the Persons
properly as Somner renders it with the Advice Counsel Instruction or Exhortation as our modern word Lore imports of Cenred my Father and Heddes my Bishop and Ercenwold my Bishop and with all my Aldermen i. e. Princes Dukes Earls Viceroys Military Officers Senators or Ministers of State as the word then signified those old Wites i. e. principal or chief Noble Men Chieftains Governours or Wisemen of my Kingdom do command and likewise with mycelre somnug Godes Theowena The great Assembly Congregation or Synagogue of Gods Servants i.e. the Clergy (f) Waes 〈◊〉 thaere hae le 〈…〉 be thâ—m stâ—â—hâ—le ures rices meditating or studying the Health of our Souls and upon the Estate or establishing of our Kingdom That ryht AE (g) Not Aew Nuptiâ—e 〈…〉 observes and appears in the 〈…〉 Gefasâ—inedâ— and ryhte cynedomas thurh ure Folc Gefaestenode getrymmed waeron That right Laws and right or just Judgment or Dooms of the King or Office and Dignity of Magistrates and Somner be fastned or established and trimmed perfected or accomplished That no Alderman or under our Jurisdiction or as probably the Compound word may be rendred any Prince under us Theoden signifying a Lord Prince or Ruler or as in the Saxon Chronology a King after them shall turn from break corrupt or change Awendan these ure domas these our Decrees Sentences or Ordinances Then in the First Chapter it follows We beodaeth that ealles Folces AE domas thus synd gehealden We bid or command that all our People shall after hold fast or observe these Laws and Dooms From this Preface the candid Reader may observe First Observations on this Preface That Kings are the gift of God and that Godes Gyffe signifies the same with Dei Gratia they are not the Creature of the People Secondly That Princes for the better Government of their People in the setling of Laws in Church and State consult deliberate and advise with their Bishops Noblemen and eminently Wise men of their Kingdoms whom for their Wisdom they honour with public Imployments in their Dominions Thirdly That after such Consultation Deliberation and Advice the Sovereign establishethâ— and instituteth the Laws And Lastly That such Laws are not to be broken or infringed by the Judges or supremest Officers under the King much less by the Subjects The next (h) Spelman Câ—ncil vol. 1. p. 313. Other Great Councils in the Saxon times of Offa. Council I find is that of Colchyth in the Kingdom of Mercia Anno 793. wherein are said to be Nine Kings present viz. Offa and Egferd his Son and seven more numbred by Sir Henry Spelman Fifteen Bishops and Twenty Dukes and so in another at (i) Id. p. 314. Verulam it is said to be under Offa who called together his Bishops and Optimates but these are only about Religious matters So (k) Id. p. 3â—0 Ad Aâ—â—um 8â—â— Kenulph Kenulph King of Mercia writing to Pope Leo the III. begins Kenulphus Gratia Dei Rex Merciorum cum Episcopis Ducibus omni sub nostra ditione dignitatis gradu So at the Synod at (l) Idem fâ—â— 328. Colichyth 6 Kal. Aug. Ann. Dom. 8â—6 Wulfred the Archbishop being Praesident it is expressed that Caenulf the King of the Mercians was present cum suis Principibus Ducibus Optimatibus So we find a Synodal Council at Clovesho (m) Iâ—em fol. â—32 〈…〉 rum praesidente Beornâ—lpho Rege Merciorum and Wulfrid the Archbishop the other Bishops Abbats and the Nobility of all Dignities treating concerning the profit of Ecclesiastical and Secular Persons and the stability of the Kingdom That which I shall note from these is this That in these Synodal Councils sometimes it is said the King praesided other times the Archbishop but mostly all the Persons that constitute such Councils are the King the Archbishops Bishops Abbats Priors and the Optimates The next Council I find is called (n) Idem pag. 336. Anno 833. Withlasius Concilium Pananglicum held at London 26 May Anno 833. wherein Withlasius King of the Mercians gives several immunities to the Abby of Croyland and more than once he saith volo praecipio and this he saith he doth in the (o) In praesentia Dominorum meorum Egberti Regis West-Saxoniae Aethelwulphi filii ejus coram Pontificibus Proceribus presence of his Lords Egbert King of the West Saxons and Aethelwulph his Son and before the Bishops and the greater Noblemen of all England in the City of (p) Majoribus totius Angliae in Civitate Londonia ubi omnes congregati sumus pro consilio capiendo contra Danicos Piratas litora Angliae assidus infestaâ—tes London where they were all gathered to take Counsel against the Danish Pirates daily infesting the Coast of England Therefore Sir Henry Spelman judgeth this Council properly to be called for secular Affairs and to be such as we now call our Parliaments The Witnesses to it are the said Withlase the Archbishop of Canterbury Celnoth and Eadbald Archbishop of York and after nine more Bishops and three Abbats Egbert and his Son Adelwulph sign and after them Wulhard Athelm and Herenbrith Dukes Swithin the Kings Presbyter and Bosa his Secretary But I shall leave these and come to more direct secular great Councils The Laws of King Alfred Regnare coepit 871. desiit 900. as that of King Alfred who in the first part of his Laws recites the Commandments and Laws by Gods appointment delivered by Moses to the Children of Israel to be observed and some of the New Testament and from that of our Saviour quod vobis fieri non velitis id aliis non faciatis concludes that Jâ—Plgment of Right ought to be given to every one and that on (q) On thissum anum Dome mon maege gethencean that he aeghwelâ—re on riht gedemeth LL. Alured p. 21. this one Sentence That Man must bethink him much that judgeth Right to every one and he adds That after the propagating of the Gospel in England as well as in other places were gathered for making of Laws both for Church and State it is to be supposed he means Holy (r) Haligra Bisceopa eac othera gethungenra Witena Ibid. Bishops and other famous wise Men or Wites Then in the Conclusion of the Laws about Religion and Prefatory to the secular Laws he saith I Alfred King have gathered (s) Thaes togaeder gegaderod awritan het these Sanctions together and caused them to be written many of them being observed by his Ancestors Those that he liked (t) Tha the me ne licodon Ic awearp mid minra witena getheat on othre wifan behead to heoldanne Ib. p. 22. not with the Council of his Wites he rejected and those he liked he bid or commanded to be holden and concludes Ic tha Aelfred West-Seaxna Cyning eallum minum Witun thaes geeowde hi tha cwaethon that him that licode eallum to healdenne which thus I
Ethelred and his Wites have enacted all his People to mulct for the breach of Peace These were enacted at Woodstock in Mercia after the English Laws Tho general Council of (o) Spâ—lman Concil vol. 1. fol. 510. The Council of Aenham under King Aethelred Aenham called Pananglicum is said to be Hortatu Aelfeagi Dorobernensis Wulstani Eboracensis Archipraesulum ab Aethelredo Rege edictum accersitisque Episcopis universis Anglorum Optimatibus in dic Pentecostes celebratum and the Saxon Title of it is Be witena geraednessa rendred Sapientum decreta In the conclusion of the Latin Copy of them this is added Haec itaque legalia statuta vel decreta in nostro Synodali Conventu a Rege (p) Idem fol. 529. magnopere edict a cuncti tunc temporis Optimates se observaturos fideliter spondebant Sir Henry Spelman gives several reasons why this may be called a General Council because it contains Secular Laws as well as Divine and here we have expresly said it was at Pentecost one of the set times for such Councils and it was by the King's Summons and the Clergy and Optimates consented In the Charter of the Priviledges granted by King (q) Spelman Concil vol. 1. fol. 507 508. Anno 1006. Ethelred to the Church of Canterbury after the Subscription of the King the Archbishops Bishops and Abbats these are subscribed Aelfric Elfhelm Leoffwin Leoffig Ealderman which in the Latin version are stiled Duces Aethelmer mines Alaffordes discthen translated Domini mei dapifer verbatim Dish Thegne or Thane Byrhtric Cynges Thegen Minister Regis Leofric Hraegel Thein rei vestiariae Minister Master of the Wardrobe Aet suman is added but neither Lambard nor Somner interpret it Syward Cynges Thegen aet Raede Minister Regis a Conciliis Secretary or Counsellor the rest only mentioned Gewitnys and in the Latin Charter of the same which we may imagine was the Original these Thegnes are called Ministri and so are these following Ordulf Eadric Ethelric Leofric Sigeraed VVulstan Senex Juvenis Lysing Leofâ—tan The Preface to the Laws of Canutus is conceived in the same Words as that of King Edgar's The Laws of Canutus fol. 97. Regn. coepit A. 1016 desiit 1035 only he is stiled Cnut Cyning ealles Englandes Cyninge Dena Cyning Northrigena Cyning King of all England King of Denmark and Norway they were Established at VVinchester on thaem Halgan Mid-winter Tide i. e. at Christmass The Preface to his Laws in Sir Henry (r) Concil Tom. 1.552 Spelman is conceived in these words This is thonne seo worldcunde geraedness the Ic will midminan VVitenan roede the man heald ofer eall Englaland These are the Worldly Constitutions that I will with my Wites Advice that Men hold all over England In most of the Chapters it is said we laeroth we teach we beodath we bid or command we forbeodath we forbid and in the Conclusion it is in the single Person of the King nu bidde Ic georne on Godes naman beode manna gehwylcne Now I command all and bid every Man in God's Name The Preface to the Latin version of them saith Haec (s) Idem fol. 562. sunt Instituta Cnudi Regis Anglorum Dacorum Norwegarum venerando sapientum Concilio ejus ad laudem gloriam Dei suam Regalitatem commune commodum habita in sancto natali Domini apud Wintoniam So we find that Anno 1024. When (t) Monast Aug. vol. 1. fol. 295. col 1. num 30. Canutus drove the Clerks living dishonestly from the Church of St. Edmund and placed Monks there it is said he did it cum consilio Archiepiscoporum Episcoporum Optimatum So in another Council it is thus Ego Cnut Rex totius Albionis cum Concilio Archiepiscoporum Episcoporum Abbatum Comitum omniumque fidelium elegi sanciendum By the word fidelium here is meant the Thegne or lesser Nobility as Doctor Brady fully proves in his Glossary and elsewhere Anno 1032. He grants Priviledges to Glastenbury (u) Spelman vol. 1. Concil fol. 537. which he doth consensu Optimatum meorum with the consent of his Nobles yet he useth the words concedo prohibeo in the single Person to denote from whose single Authority all concessions flowed Of this Canutus (w) Gest Regum lib. 2. c. 11. Malmsbury saith that he commanded to be observed for ever all the Laws of ancient Kings especially those made by King Ethelred his Predecessor under (x) Sub interminatione Regiae mulctae perpetuis temporibus observari praecepit the penalty of the Kings Fine to the observing of which he saith in his time it was sworn under the name of King Edwards Laws not that he had appointed them but had observed them It is of latter time (y) MS. Burgi Sancti Edmundi Spelman Conc. vol. 1. fol. 534. recorded that Canutus in the fifth Year of his Reign calling together all the Prelates of his Kingdom Proceresque ac Magnates Wulstan Adelwode the Archbishops and other Bishops seven Dukes and seven Earls and divers Abbats of Monasteries cum quamplurimis gregariis Militibus ac cum populi multitudine copiosa who were personally present Votis Regiis unanimiter consentientibus praeceptum decretum fuit Sir Henry Spelman saith That this Manuscript must be writ towards the latter end of Henry the Third's Reign if not after because it useth the word Parliament and discourseth of the Constitution of Parliament as in that Age not as the great Councils in Canutus time were which I note that it may be observed upon how slender Antiquities Sir Edward (z) Praefat. 4. Report King Edward the Confessor 's Laws Coke relied From what Malmsbury observes of these Laws of Canutus we may conclude that whereever the Laws of King Edward the Confessor are mentioned in after Ages these Laws of Canutus must be understood and that it is a fruitless Enquiry to search for any other than those which Hoveden and Ingulphus give us as confirmed by VVilliam the Conqueror therefore I shall referr the Inquisitive Reader to the Authors and Sir (a) Concil vol. 1.619 625. Henry Spelman and Mr. Selden I shall therefore only note who were the constituent Parts of the great Councils in his time That convention at Christmas the Twenty fifth of his Reign as Sir Henry Spelman (b) Iâ—em fol. 627. hath published it was Praesentibus Edwardo Rege Confâ—ssore Edgitha Regina Stigando Archiep. Cant. Eldredo Archiep. Ebor. caeterisque Angliae Aepiscopis Abbatibus Capellanis Regis Comitibus Ministris seu Thanis Regis Militibus qui in Chartarum sequentium subscriptionibus nominantur Then follows the second Charter to (c) Id. 631. St. Peters of Westminster where after the Bishops and Abbats we find the Subscriptions of Raynbaldus the Chancellor and Harold Edwin Leofdwyn and Guden are titled Dukes Ergar Kendus Wygodus Robertus Ednothus are called Ministri then I suppose
acquired a Soccage Tenure and Fee-simple Estate Therefore the foresaid (q) Praefat. Reger Twysden fol. 155. The English possess their Lands by â—avour not otherwise Hereditarily So Mut. Paris saith Commilitonibus terras Anglorum possessiones affluentiori manu contulit illud parvum quod remansâ—rat sub jugo posuit perpetuae servitutis Gervase of Tilbury concludes this Observation thus Sic igitur quisquis de gente subacta fundos vel aliquid hujusmodi possidet non quod ratione successionis debere sibi videatur adeptus est sed quod solummodo meritis suis exigentibus vel aliqua pactione interveniente obtinuit viz. So every one of the conquered Nation possest their Lands or any thing else not that he should seem to get it by way of Succession but by his deserts or by some Compact or Covenant made with his Lord as it must be understood The most industrious Doctor Brady having on purpose writ so much of this Argument in his Answer to the Argumentum Anti-Normanicum and out of so many Historians confirmed it in the Answer to the Appendix Brady p. 313.314 I must refer the Reader that desires satisfaction to his Book being loth to crowd those matters which are not directly to my purpose Only I cannot but note that the reason why we so often find the same Lands that have been granted by a Father for him and his Heirs required and had a Confirmation by the Son was because the Tenure was so fickle for want of Homage or Omission of Service whereby they might be forfeited I now proceed to the great Councils that I have found in the Reign of William the Conquerour and shall begin with that wherein the Laws I have spoken before of out of Hoveden were made which are agreed by all to be in the Fourth year of his Reign In general we find Gervase of Tilbury telling us The Conqueror makes written Laws That when the famous Subduer of England King William had subjected to his Empire the utmost parts of the Island and by terrible examples had brought to perfect obedience the Minds of Rebels that they might not have liberty to fall into the same errors for the future he (r) Decrevit subjectum sibi populum Juri scripto legibusque sabjicere Quasdam reprobavit quasdam autem approbans Transmariâ—â—s Neustriae leges quae ad Regni pâ—â—â—m tuendam efficâ—teissionae videbantur adjecit Gerv. Tilb. lib. 1. c. 29. resolved to govern the People subjected to him by written Right and Law therefore the English Law being propounded according to their threefold distinction that is the Mercian Law Dane Law and West-Saxon Law he rejected some and approved others and added such Transmarine Norman Laws as seemed most efficacious to defend the Peace of the Kingdom In this account we may observe That the King solely is said to reject and approve and to add such of the Norman Laws as he thought fit for securing the Peace of the Kingdom and the Ingenious Dr. Brady thinks the 52 55 56 58 59 62 63 64. are those Norman Laws intimated Concerning the Oath which Frederick Abbat of St. Albans administred to the King on the Holy Gospel and the Reliques of the Church of St. Albans whereby he swore That for the good of Peace he would observe the good and approved ancient Laws of the Kingdom which the pious Kings of England and especially King Edward had inviolably observed I must refer the Reader to (s) Fol. 48. num 20 30 40. Matthew Paris to understand the occasion of it and Dr. (t) Argum. Antinorm p. 261. Brady's Exposition or Commentary upon it and how little he observed it What the Laws were that King William the First confirmed Authors agree not about as may be seen by comparing (u) Fol. 343. Hoveden (w) Fol. 138 149 Knighton Collect. 2354. N. 61. Lambard of Wheelocks Edition and Spelman in the First Tome of his Councils Fol. 624. Selden (x) In Eadmerum fol. 172. num 20. in his Notes upon Eadmerus writes very suspiciously of all the Laws that are attributed to King Edward except the Crowland Copy judging neither Hoveden Knighton or the Author of the Lichfield Chronicle well versed in Law matters and who writ long after Ingulphus of whom he gives this Character Qui in hac re testium non tam facile Princeps merito dicendus est quam solus forsan cui ut par fit credamus The Title of the Laws properly ascribed to William the Conquerour The Title of the Conqueror's Laws are in the Latin thus (y) Ces sont le Leis les Custumes que le Reis William grantut tut le peuple de Engleterre â—pres le Conquest de la Terre Ice les meismes que le Reis Edward sun Câ—sin tent devant luy LL. W. fol. 159. Hae sunt leges consuetudines quas Will. Rex concessit universo Populo Angliae post subactam terram Eaedem sunt quas Edwardus Rex cognatus ejus observavit ante eum In English thus These are the Laws and Customs (z) LL. W. 1. p. 170. which William the King granted to all his People of England after the subduing of the Land They are the same which Edward the King his Kinsman before him observed In this Preface we have only to note that the Laws are expresly said to be the Kings Grant and the Supplemental Laws after the 50th which were found in the Croyland Copy being writ in the Red Book of (z) LL. W. 1. p. 170. the Exchequer are by way of Charter or Grant thus Will. Rex Anglorum c. omnibus hominibus suis Francis Anglis salutem and all along the Authoritative parts expressed by statuimus volumus interdicimus prohibemus praecipimus decretum est The Terms used by the Conqueror in Law-giving The expressions Authors use concerning his Laws whereby the absolute Soveraignty of the Conquerour in the point of Law-giving is manifested are to be found in all those who have writ of his Life I shall content my self with a few Ordericus (a) Fol. 853. Vitalis saith eamque i. e. England Gulielmus Rex suis Legibus commode subegit that he subdued or rather subjected England profitably to his Laws Eadmer (b) Hist Nov. fol. 6. num 10 20 30. Vsus atque leges quas patres sui ipse in Normannia solehant in Anglia scribâ—re volens Cuncta divina simul humana ejus nutum expectabant Edit Gal. de Moulins saith That King William designing to establish in England those Usages and Laws which his Ancestors and he observed in Normandy c. all Divine and Humane Things he ordered at his pleasure The Chronology of Rouen saith Leges quas in hunc diem Angli observant idiomate Normanico promulgavit The Laws which at this day the English observe he published in the Norman Language Mr. Camden saith (c) Britan. fol. 109. That
called 50 Regni By the Statute of Marleburgh 52 H. 3. it is evident All the Barons not summoned but the more discreet and so of the lesser Barons That even all the great Barons were not summoned but only the more Discreet and such as the King thought fit to call and the like is observed of the lesser Barons or Tenents in Capite For if it had been by General Summons that Restriction of the more Discreet had been useless so that it appears that what (z) Britannia fol. 122. Quibus ipâ—â— Rex dignaâ—us est brevia summonitionis dirigere venirent c. non alii Mr. Camden's ancient Author observes is true That after the horrid Confusions and Troubles of the Barons Wars those Earls and Barons whom the King thought worthy to summon by his Writ to meet came to his Parliaments and no other The Preamble to this Statute of (a) Stat. Edit 1576. p. 15. Marlebridge runs thus in Tottel Providente ipso Domino Rege ad Regni sui Angliae meliorationem exhibitionem Justitiae prout Regalis Officii poscit Vtilitas pleniorem convocatis discretioribus ejusdem Regni tam majoribus quam minoribus provisum est statutum ac concordatum ordinatum According to Pulton the (b) Fol. 14. Preamble is thus That whereas the Realm of England of late had been disquieted with manifold Troubles and Dissentions for Reformation whereof Statutes and Laws be right necessary The Use and Benefit of Laws whereby the Peace and Tranquillity of the People must be observed wherein the King intending to devise convenient Remedy hath made these Acts Ordinances and Statutes underwritten which he willeth to be observed for ever firmly and inviolably of all his Subjects as well high as low Thus we see in the whole Reign of H. 3. excepting in that Parliament of Montfort's Faction the Bishops and dignified Clergy Earls Barons and Tenents in Capite were only summoned as Members of the great Councils and there were no Representatives of the Commons and the Kings Authority in summoning dissolving and making Laws is most manifest Of Parliaments in King Edward the First 's Reign I Shall now glean out of Tottel and Pulton's Editions of the Statutes the most material Preambles which give light to the constituent Parts of Parliaments to the Legislative Power in the King with the Concurrence of the two Houses and how that in the Series of the Kings Reign hath been expressed and such other matters relating to the Parliament as may shew the gradual Progress of their Constitution to the usage of this present Age leaving the Reader to make his own remarques from the matters of Fact and the expressions used by my Authors and explaining some The Preface to the Statute of (a) Ceux sont les establishments le Roy Ed. fitz Roy Hen. fait a Westminst c. par son Councel par Passentments des Archevesques Evesques Abbes Priores Countes Barons tout le Commonalty de la terre illonques summons Tottel Stat. fol. 24. Pulton p. 19. Westminster begins thus These are the Establishments of King Edward Son to King Henry made at Westminster at his first General Parliament after his Coronation c. by his Council and by the Assent of the Archbishops Bishops Abbats Priors Earls Barons and the whole Commonalty of the Land thither summoned This Parliament was prorogued before it met and the Writ of Prorogation mentions only Quia generale Parliamentum nostrum quod cum Praelatis Magnatibus Regni nostri proposuimus habere c. Therefore having prorogued it mandamus c. Intersitis ad tractandum ordinandum una cum Praelatis Magnatibus Regni nostri (b) Brady against Petyâ— fol. 147. c. So that all the Members are included in the two general Terms of Praelati Magnates which great Men very frequently comprehended as well the Barones Majores as Minores the Earls Barons and greater Tenents in Capite and the less which then were called the Community of the Kingdom The rest of the Preamble of the Statutes made at (c) Pulton's Stat. An. 1275.3 E. 1. f. 19. Westminster runs thus Because our Lord the King hath great Zeal and desire to redress the State of the Realm c. the King hath ordained and established these Acts under written The Preface to the Statute de Bigamis 4 Oct. 4 Ed. 1. is thus (d) In prasentia venerabilium purum quâ—ruâ—dam Episcoporum Angliae aliorum de Concilio Râ—gis â—â—citatae sâ—â—erunt constitutiones â—ub â—riptae postmodâ—â—m coram Domino Rege Concilio sâ—o auditae publicatae Quia omnes de consiliâ—â—am â—usâ—â—â—â—arii quam alii concordaverunt c. Tottel p. 39. b. expressed In the Presence of certain Reverend Fathers Bishops of England and others of the Kings Council the constitutions under written were recited and after heard and published before the King and his Council for as much as all the King's Council as well Justices as others did agree that they should be put in writing for a perpetual memory and that they should be stedfastly observed In the First Chapter it is said Concordatum est per Justiciarios alios sapientes de Concilio Regni Domini Regis It was agreed by the Justices and other wise or sage Men of the Council of the Kingdom of the Lord the King Perhaps saith the judicious Doctor Brady the best understanding of the preamble and first Chapter may be that the Laws and Constitutions were prepared by the King and his (e) Answer to Pâ—tyt fol. 148. Council with the Assistance of the Justices and Lawyers that were of it or called to assist in it and declared afterwards in Parliament (f) Praeâ—iâ—â—ae autem constitutiones eâ—iâ—â— suerunt c. exâ—une lâ—â—um habeanâ— Tottel fol. 40. for it is said in the close of the Statute The aforesaid Constitutions were published at Westminster in the Parliament after the Feast of St. Michael the 4th of the Kings Reign and thence forward to take place The Preamble to the Statute of Gloucester Anno 1278. 6 E. 1. is thus (g) Pour amendment de son Roialm pur plus pleinir exhibition de droit si comâ—â—â—â— prâ—sit dâ— Office demanâ— appâ—lles le plues discretes de son Roialme auâ—â— bien des Granders comâ— des Meindres establie est concordantment ordine Tottel fol. 50. The King for the amendment of the Realm and for the more full Exhibition of Justice according as the benefit of his Office requires having called the most discreet of his Realm as well the greater as the smaller It is established and unanimously ordained as Pulton adds after by the King and his Justices certain Expositions were made The Statute of Mortmain is thus prefaced Nos pro (h) Tottel p. 48. Vtilitate Regni volentes providere Remedium de Concilio Praelatorum Comitum Baronum aliorum fidelium
7th May 20 E. 3. runs thus Because that by divers complaints made to us we have perceived that the Law of the Land which we by our Oath are bound to maintain is the less well kept c. we greatly moved of Conscience in this matter c. by the assent of the great Men and other Wise Men of our Council We have ordained c. The Preamble to the Statute of Labourers (h) Idem Anno 1349. fol. 120. repealed 23 E. 3. was thus Upon deliberation and treaty with the Prelates and the Nobles and learned Men assisting us of their mutual assent ordained and that Statute for Labourers which remains in force 25 E. 3. saith Whereas it was ordained by our Lord the King and by assent of the Prelates Earls Barons and others of his Council c. It is apparent by several Records So one Knight for a County when two Burgesses 27 E. 3. So the King names one Knight one Citizen and one Burgess to be sent 43 E. 3. m. 2. That the Kings of England have not been tied to the certain number of Knights Citizens and Burgesses though for a long while two only have been chosen of each but heretofore sometimes but one other times two or three as that 18 E. 1. and 4 Knights 22 E. 1. Besides which liberty there is a (i) Cl. 24 E. 3. p. 2. m. 3. memorable Record in this Kings Reign wherein the King appointed the qualifications of such as were to be chosen Members of the House of Commons The Writ is directed to all the Sheriffs of England Quod de Comitatu tuo duos Milites c. de discretioribus probioribus Militibus Civibus Burgensibus ad laborandum potentioribus qui non sint Placitatores querelarum manutentores aut ex hujusmodi quaestu viventes c. sed homines valentes bonae sidei publicum commodum diligentes eligi Qualification of Members to be elected Pleading Lawyers Maintainers of Plaints and such as lived of such like gain were forbid to be chosen upon some particular Reason of State then inducing it of which I shall write something in the Chapter of Parliaments The other Preambles most (k) Pulton An. 1350. fol. 121.25 E. 3. Idem Anno 1350. fol. 125. Assent of the Commonalty remarkable in this Kings Reign are mostly By the assent of the Prelates Earls Barons and other great men and all the Commons or of all the Commonalty of the Kings Realm The King hath Granted Ordained Established c. The Statute for the Clergy (l) Idem Anno 1350. fol. 122. 25 Regni saith Our Lord the King seeing and examining by good deliberation the Petitions and Articles delivered to him in his Parliament c. by Simon Archbishop of Canterbury and other Bishops of his Province upon certain Grievances c. By the Assent of his Parliament by the assent of his Parliament for him and his Heirs willeth and granteth the Points underwritten The Statute of Provisors 25 E. 3. is (m) Id. 1350. fol. 129.25 E. 3. The King bound by his Oath to remedy Mischiefs and Damageâ— to his Realm by accord of his People in Parliament singular in its Preamble That whereas in the Parliament 15 E. 1. at Carlisle the Petition heard put before the said King and his Council in his said Parliament by the Commonalty of the said Realm containing c. whereupon the said Commons have prayed our Lord the King that sith the right of the Crown of England and the Law of the said Realm is such That upon the Mischiefs and Damages which happen to his Realm he ought and is bound by his Oath with the accord of his People in his Parliament thereof to make Remedy and Law and remove the Mischiefs and Damages which thereof ensue so pray the King thereupon to ordain Remedy The Statute of Provisors (n) Id. 135â— fol. 131. 27 E. 3. runs Our Lord the King by the Assent and Prayers of the Great Men and Commons of this Realm c. hath ordained The Statute of (o) Idem Anno 1353. fol. 133. Staple 27 E. 3. hath a singular Preface whereas good deliberation had with the Prelates Dukes Earls Barons and Great Men of the Counties that is to say of every County one One Knight for a County and so for Cities and Burroughs for all the Counties and so of Cities and Burroughs c. by the Council and common consent of the said Prelates c. Knights and Commons the King hath ordained c. In the 28. Princes are named after Prelates The Preamble of the Statute at (p) Idem Anno 1362. fol. 152. The Request of the Commons Westminster 36 E. 3. runs thus The King at the request of the Commons by their Petition delivered to him in the said Parliament by the Assent of the Prelates Dukes Earls Barons and other Great Men in the Parliament assembled have granted for him and his Heirs for ever the Articles underwritten In the Second Chapter of which it is said The King of his own Will without motion of the Great Men or Commons hath granted in ease of his People The Statutes made (q) Idem Anno 1368. fol. 159. 42 E. 3. have only At the Parliament of our Lord the King it is assented and accorded So in (r) Idem Anno 1369. fol. 190. 43 E. 3. The Prelates Great Men and Commons seeing the Mischiefs pray the King in this present Parliament thereupon to ordain Remedy The Preamble to the Statutes (s) Idem Anno 1376. fol. 191. 50 E. 3. runs thus The Prelates Dukes Earls Barons and others assembled at the Parliament c. Our Lord the King desiring much that the Peace of his Land be well kept and his faithful Subjects in quietness and tranquillity maintained hath therefore made and ordained certain Ordinances and also granted certain Graces and Pardons to his Commons of England In all which it is evident the Two Houses had no more but an Advising or Petitioning and Assenting Power It is every where expressed that the King solely Ordaineth Establisheth Granteth However he owns an obligation by his Coronation Oath to make good Laws for his Subjects CHAP. XXVII Of the Parliaments of England during the Reigns of King Richard the Second to the First Year of King James the Second THE Preface to the Statutes at (a) Pulton An. 1377. fol. 163. Westminster 10 R. 2. is thus Richard by the Grace of God c. to the Sheriff of Nottingham Greeting Know you That to the Honour of God c. by the whole Assent of the Prelates Dukes Earls and Barons of this our Realm Special Instance and Request of the Commons at the instance and special Request of the Commons of our Realm assembled at our Parliament We have ordained and established certain Statutes in amendment and relief of this our said Realm That at (b) Idem Anno 1378.
them exoptabiles leges and that they should have their Woods and Hunting free It is recorded of Henry the First King Henry the First 's Oath that having gathered to London the Clergy of England and all the People he promised them an amendment of the Laws with which they were oppressed in the time of his Father and his Brother lately deceased that he might obtain their (y) Vt animos corum in sui promotionem accenderet good Wills to his Promotion and that they might receive him for their King and Father to which the Clergy and all the Nobility answered * Si animo volenti ipsis vellet concedere charta sua communire illas libertates antiquas consuetudines quae floruerunt in Regno tempore Sancti Regis Edwardi Mat. Paris 250. n. 53. Hist Novel lob 3. p. 55. That if with a willing Mind he would grant them and with his Charter confirm all the Liberties and ancient Customs which flâ—rished in the Kingdom in the time of the Holy King Edward they would consent to him and unanimously consecrate him King and he freely yielding to his and affirming by his Oath that he would do it he was consecrated King the Clergy and People favouring it Eadmerus saith That in ipso consecrationis die bonas Sanctas omni Populo Leges se servaturum omnes oppressiones iniquitates quae sub fratre suo emerserunt in omni sua dominatione tam Dei Lege quam in secularibus negotiis prohibiturum subversurum sposponderat haec omnia Jurisjurandi Interjectione formula per totum Regnum divulgata ire praeceperat and when he was Crowned he granted the Laws recited by (z) Diademate insiâ—nitas has libertates subscriptas in Regno ad exaltationem Sanctae Ecclesiae pacem Populo tenendam concelsit Mat. Paris Hist p. 46. num 40. ult Edit Matthew Paris to be held in his Kingdom for the exalting of the Holy Church and Peace of his People which Laws being at large recited by Matt. Paris may be perused by the Inquisitive wherein he will find how far the old Laws were confirmed and what a Foundation there was laid for Magna Charta Concerning King Stephen (a) Histor. Novel p. 101. b. num 40. Vide Mat. Paris p. 62. num 35. Malmsbury saith King Stephen's Oath That Henry his Brother Bishop of Winchester was a great help to his obtaining the Crown having great hopes that he would follow his Grandfather King William's Steps in the Government of his Kingdom especially in matters of Ecclesiastical Discipline therefore he saith William Archbishop of Canterbury 〈◊〉 exacted a solemn Oath from him of granting and preserving the Liberty of the Church the Oath it self is long and the Immunities to the Church many those to the Laity are conceived in these words Omnes Exactiones Mescheningas Injustitias sive per Vicecomites vel per alios quoslibet male inductas funditus extirpo Bonas Leges Antiquas justas Consuetudines in Murdris Placitis aliis Causis observabo observari praecipio constituo Malmsbury saith That the King swore according to the tenor of the Writing he there produceth Dated at Oxford Anno Dom. 1136. 1 Regni I find no mention of an Oath taken by K. H. 2. at his Coronation but (b) Chron. col 1043. num 67. Brompton saith that he confirmed the Charter of his Grandfather King Henry the First King Henry the Second's Oath and that he was sollicitous ut Lex quae extincta videbatur paulatim exsurgeret and Matt. Paris (c) Hist 1080 1081. saith That Anno 1172. he swore before the Cardinals that he would abrogate all the evil Customs introduced in his time against the Church We find that Pope Alexander (d) Gul. Newbrigensis lib. 4. c. 25. Gerv. Dorob Chron. col 1413. Matt. Paris p. 117. the Third Excommunicated several Bishops and suspended the Archbishop of York for his rash Presumption in the Coronation of a new King in contempt of the Archbishop of Canterbury to whose Office of ancient Right it was known to belong and for that in the Coronation according to Custom there was no sworn Caution offered or exacted by them for the keeping of the Liberties of the Church but afterwards (e) Vt Regni consuetudines antiquas sub quibus dignitas pericliâ—bitur Ecclesiae illibatae debeant omni tempore observari Hoveden Annal. pars poster p. 518 519. it is said to be confirmed by Oath that the ancient Customs of the Kingdom from which the dignity of the Church was in danger should inviolably be kept in all time to come The Solemnities of King Richard the First 's Coronation are fully described by the Abbat of Jorval (f) Rectam Justitiam exercebit in populo sibi commisso leges malas consuetudines perversas si aliqua sint in Regno suo delebit bonas custodies Brompton col 1158. num 60. and as to his Oath King Richard the First 's Oath he saith that he swore and vowed the Holy Evangelists and the Reliques of many Saints being set before him that he would bear Peace Honour and Reverence all his Life to God and the Holy Church and its Ministers and then he swore that he would exercise right Justice to the People committed to him and after he swore that he would blot out or abolish evil Laws and perverse Customs if any were in his Kingdom and he would keep good Laws I find that King John took an Oath as Duke of Normandy King John's Oaths that he would defend Holy Church and its Dignities in good Faith without evil Intention and would honour all the Ordained and that he would destroy all evil Laws if any were and substitute good ones the words (g) Matt. Paris fol. 165. ult Edit num 27. are quod ipse Sanctam Ecclesiam ejus dignitates bona fide sine malo Ingenio defenderet ordinatos honoraret quod Leges iniquas si quae essent destrueret bonas surrogaret At his Coronation (h) Quod sanctam Ecclesiam ejus ordinatos diligeret eam ab incursione malignantium indemnem conservaret quod perversis legibus destructis bonas substitueret rectam Justitiam in Regno Augliae exerceret Idem p. 166. num 4. Promisit se per anxilium Dei bona side ea quae juraverat servaturum he took another Oath that he would love Holy Church and the ordained of it and would preserve it indempnified from the Incursions of the Malignant and that the perverse Laws being destroyed he would substiâ— good ones and would exercise right Justice in England Besides these Matth. Paris p. 189. of the Old Edition saith That he was sworn by the said Archbishop ex parte Dei districte prohibitus ne honorem hunc accipere praesumeret nisi in mente habeat opere quod juraverat
adimplere that is On the part of God by the Archbishop he was strictly forbid that he presume not to take this Honour unless he had a resolution to fulfil in work what he had sworn To which the King promised That by the help of God he would in good faith observe what he had sworn In the Fifteenth of his Reign he was forced by the Barons to take another Oath (i) Mat. Paris Hist p. 229 230. Quod sanctam Ecclesiam ejusque ordinatos diligeret manuteneret contra omnes adversarios suos pro posse suo quodque bonas Leges Antecessorum suorum praecipue Leges Edwardi Regis revocaret iniquas destrueret omnes homines suos secundum justa Curiae suae judicia judicaret quodque singulis redderet jura sua Juravit praeterea Innocentio Papae ejusque Catholicis Successoribus fidelitatem obedientiam And that he would make restitution of those things he had taken away by reason of the Interdict This Clause of restoring King Edward's Laws which had been disused from the time of the Conquest being thus inserted in King John's Oath was after inserted into the Coronation-Oath of Edward the Third and so continued The best Account of the Coronation-Oath of King Henry the Third is in (k) Idem p. 243. num 26. Matthew Paris That he swore before the Clergy and People The Oath of King Henry the Third the Holy Evangelists and the Reliques of several Saints being laid before him and Joceline Bishop of Bath reading the Oath which was very little different from that which King John took Quod honorem pacem reverentiam praestabit Deo sanctae Ecclesiae ejus ordinatis omnibus diebus vitae suae and so word for word as in King John's only for perversas consuetudines here is iniquas consuetudines It was in relation to the preceding Oaths that (l) 1. IVt Ecclesia Dei omni populo Christiano vera pax omni suo tempore observetur 2. Vt rapacitatem omnes iniquitates omnibus gradibus interdicat 3. Vt in omnibus judiciis aequitatem praecipiat misericordiam Bract. lib. 3. de Actionibus c. 9. fol. 107. Bracton saith The King ought at his Coronation in the Name of Jesus Christ being sworn to promise these three things to the People being his Subjects First To command and to his power see it performed that the Peace shall be kept to the Church and all Christian People in all his time Secondly That all Ravages and all Iniquities in all degrees shall be by him forbidden Thirdly That in all his Judgments he shall command Equity and Mercy and that by his Justice all may enjoy firm Peace per Justitiam suam firma gaudeant Pace universi None of our Historians mention the Oath of Edward the First that I have met with King Edward the First 's Oath not recorded nor Mr. Prynne Therefore I think it very probable that it was conceived in the same Form as that of his Fathers and Grandfathers That he took an Oath for it is most certain that he took one by the Expressions in sundry of his Prohibitions to the Legates of Popes to Bishops and others in these Words Torpescere non possumus quia exhaeredationem quae statum Coronae nostrae contigit sicut ex Sacramenti vinculo adstringimur pro viribus evitemus ne Coronae dignitatis nostrae Jura depereant studiosam (m) Prynne's Epist Dedicat. to the chird Vol. of Legal Vindication nos debet operam adbibere ad ea manutenenda conservanda eo potius debemus esse solliciti quoad hoc vinculo juramenti teneri dignoscimus adstringi that is We cannot be slothful because we should avoid to our power our dis-inheriting which appertains to the State of our Crown as we are tied by the Bond of our Oath which to maintain and preserve we ought to afford our studious help lest the Rights of our Crown and Dignity perish and we ought the more to be solicitous in this as that we know our selves to be held and bound by the bond of the Oath Hitherto we find nothing of the Vulgus elegerit besides what is mentioned in King William Rufus his promise That he would grant his Subjects a more desirable Law and better than they could chuse which is no ways to be interpreted of such a choice as the Republicans would have understood Our Historians are generally silent what the Oath was that Edward the Second took The Oaths of King Edward the Second and King Edward the Third but it is to be found in the Clause Rolls of the Tower (n) Cl. 1. E. 2. num 10. 1 E. 2. in French thus which I shall render into English as well as I can Also Cl. 1 E. 3. m. 24. dorso SIRE Volez vous granter garder per vestre serement confirmer au People d' Engleter les Leys les Custumes a eux grantes per les Anciens Rois d' Engleter voz Predecessours droitas devotz a Dieu nomement les Leys les Custumes Franchises grantz au Clergie au People par le glorieus Roy Seint Edward votre Predecessure Respons Jeo les grants prometts Sire Garderez vous a Dieu a Seint Eglise au Clergie au Poeple Pece accord en Dieu entirement selons vostre Poair Respons Jeo les garderez Sire Freez or perhaps feres vous faire en tous voz Jugements ovels droit Justice discretion en misericorde verite a vostre Poair Respons Jeo les fray Sire Grantez vous a tenir garder des Leys les Custumes droitureles le quels la Communate de votre Roiaume auras eslu les defenderz inforciers al honeur de Dieu a votre Poair Respons Jeo les grants prometts SIR Will you grant and keep and by your Oath confirm to your People of England the Laws and Customs granted to them by the Ancient Kings of England your predecessors righteous and devout to God and namely the Laws and Customs and Franchises granted to the Clergy and the People by the glorious King St. Edward your Predecessor Answer I do grant and promise this Sir Do you keep to God and his Holy Church and to the Clergy and to the People Peace and accord in God entirely according to your Power Answer I shall keep these Sir Will you suffer to be done in all your Judgments equal and right Justice and Discretion with Mercy and Truth according to your Power Answer I will do it Sir Do you grant to hold and keep the Laws and the Customs that are lawful which the Community of your Realm shall have chosen and defend and enforce these to the Honour of God to your Power Answer I grant and promise them Several Answers have been given to the Objection raised from this last Clause The Oath of King Richard the
Earls Barons Great Men and the whole body of the Tenents in Capite expressed by those words in the former Questions Clergy and People for by them these demands were made and no doubt they would first ask for themselves for the Vulgar or Rabble could not come near to make their Demands at such a Solemnity as this was so (y) Walsingham fol. 95. num 20. great and splendid there being at it Charles and Lewis Earls of Clermont two of the King of France's Brothers the D. of Brabant the Earl of Fens and the other great Men both of France and England with the Countess of Artois Whoever desires further satisfaction may consult the same learned (z) Elossary p. 24. Author who makes it clear That the word Plebs Vulgus Populus in the Writers of that Age was used for the Laity in way of contradistinction from the Clergy I shall at present leave this and note that for any thing appears to the contrary the same Interrogations Oath c. presented to Edward the Second and Third without the additions of King Richard's continued without any alteration to Henry the Eighth's (a) Book of Oaths fol. 1. time and in that we find the King promiseth he shall keep and maintain the Liberties of the Holy Church of old time granted by their Righteous Kings of England The Oath of King Henry the Eighth I find in the Heralds Office the words thus Do ye grant the rightful Laws and Cusioms to be holden and permit ye after your Strength and Power such Laws as to the Honour of God shall be chosen to the People by you to be strengthned and desensed Vid in Coll. Arm. p. 60. and that he shall keep all the Lands Honours and Dignities righteous and free of the Church of England in all manner Holy without any manner of minishments and the rights of the Crown hurt decay or loss to his Power shall call again into the ancient estate and that he shall keep the Peace of Holy Church and of the Clergy and of the People with good accord and that he shall do in his Judgment Equity and right Justice with Discretion and Mercy and that he shall grant to hold the Laws and Customs of the Realm and to his Power keep them and affirm them which the People and Flock have chosen and the evil Laws and Customs wholly to put out and stedfast and stable Peace to the People of this Realm keep and cause to be kept to his Power In this Oath King Henry the Eighth interlined for the right explication of it instead of People and Flock these Words which the Nobles and People have chosen with my Consent The Oath of King Edward the Sixth Oath of Edward the Sixth so far as relates to my purpose was this Do you grant to make no new Laws but such as shall be to the honour and glory of God and to the good of the Commonwealth and that the same shall be made by the consent of the People as hath been accustomed Oaths of Queen Mary and Queen Elizabeth not seen by the Author The Oaths of King James the First and King Charles the First The Oath of King Charles the Second Hist Coronationis Caroli 2. in Colleg. Arm. I have not seen any Transcripts of the Oaths of Queen Mary or Queen Elizabeth those which King James and King Charles the First took run thus Will you grant to hold and keep the Laws and Rightful Customs which the Commonalty of this Kingdom have and will you defend and uphold them to the Honour of God so much as in you lyeth That Branch of the Oath which relates to my purpose taken by King Charles the Second runs thus Sir Will you grant to keep the rightful Customs which the Commonalty of your Kingdom have c. The Oath that our present King James the Second took at his Coronation The Oath of King James the Second was in the same Words as that of his Royal Brother wherein the Word Customs is to be taken in the largest extent to include Laws also Now upon the whole we must consider First Considerations upon this Discourse of the Coronation Oaths That in the Eye of the Law the King never dyes so that he is King before any Solemnity of Coronation Secondly The variety of Forms and Precedents seem to prove that one precise form is not simply necessary so the interlining of Henry the Eighth upon Record also shews And if it had been of consequence to have retained the old form we should have heard of it either then or in some succeeding Parliaments Lastly it cannot be denied that if the King be bound by a lawful Oath to pass all Bills it is not the form of denying it but the not doing of it which makes the Perjury And so when the King is tender of a flat denial and attributing so much to the judgment of his great Council that he only useth the words avisera it would be a strange Doctrine that all the Kings of England who have given this Answer have been forsworn and neither Parliament nor Convocation taken notice of it in so many Ages But when by dint of Argument the Parliament Champions were driven from these Holds they fled to their last Burrow So one of them confesses that in Acts of Grace the King is not bound to assent nor in Acts wherein he is to depart from the particular right and interest of his Crown and lastly that if he do not consent however bound by Oath yet they are not binding Laws to the Subject How the Long Parliament Writers would have the King part with his Prerogative in Cases of necessity only But then comes the handful of Gourds which spoils the Pottage Except in cases of necessity If the safety of the People be concerned If it may prove dangerous or inconvenient to them then an extraordinary course may be taken This was the plausible Plea of 1641. to get the Militia into their hands for they urged that in case of apparent and imminent danger the Peoples safety was not to be neglected They might not be exposed as a prey to their Enemies therefore must be put into a posture of defence This was grateful to the People out of that real love they bare to themselves they must favour that side which pretends to take care of their safety Give to any Person or Society a Legislative Power without the King in case of necessity (b) Answer to Observ b. 76. permit them withal to be sole Judges of necessity when it is and how long it lasts and then it is more than probable the necessity will not determine till they have their utmost desires which is the same in effect as if they had the Legislative Power Further it must be considered that necessity upon that supposition must be very evident there needs no such great stir who shall be Judge of it when it comes indeed it
and his People as they loved to phrase it they answer by their Prolocutor that those who contract to their own ruin or esteem such Contracts before their own preservation are felonious to themselves and rebellious to Nature Inferring from thence That if the legal Constitution of Government The Writers for the Parliament affirm That where the Houses think the Constitution of the Government is not agreeable to the Liberty of the People they may alter it be not agreeable to the Liberties the House conceives needful for them they are obliged to contend to alter them which is no more nor less than if a Criminal being condemned to be hanged should be guilty of another Felony and Treason against Nature to yield to the Sentence but that he ought in his own defence to kill as many as he could that he might thereby save his life by escape Thus I hope I have made apparent the falshood of the Positions ranged in defence of that dismal Parliament How the Long Parliament voted all the Power into their own Hands who made use of them as Platforms upon which to plant the Artillery of their Acts and Ordinances For under the pretext of their obligation to preserve the Kingdom they voted to put it in a posture of defence and they voted from the King his Navies Officers Privy Counsellors and Revenues pretending the Navies were still reserved for the King in better hands than he would put them and for the other they would furnish him with better principled Ministers Whereas by the same Precedent the Subjects were bound to give up their Estates to their ordering as often as they pretended they could dispose of them more wisely For they might alledge the State which they reputed themselves had an interest paramount in them in case of publick extremity so that as they pretended the Head without the Body was the State before so now it was fit the Body should be without the Head whereas the Law hath provided against either exorbitances and if there was necessity we must fall into one we ought in reason to chuse the former because being better acquainted with that we could better digest it and it would be less burthensom to our Estates to satisfie one than five hundred nay ten thousand as it appeared when the greedy Commonwealths men with their Committees Armies c. was that flat Vermine in the Bowels which how true soever it is of the lumbricus latus was certainly true of this Monster That it was every where Head and Mouth It is to be well weighed When Parliaments beneficial when not that as Parliaments are in the highest degree beneficial when they keep within the bounds of duty and sobriety so when they will have their Ordinances to have the force of Laws and not govern themselves by known Laws they are the cause of many Distempers in a Kingdom and the Subjects condition is most unhappy in the Multitude of Physicians for extraordinary Remedies such as they always pretend to use are saith Sir Henry Wotton like hot Waters which may help at a pang but being too often used spoil the Stomach A Compleat Parliament is that (f) Answer to Observ p. 150. Panchreston or Soveraign Salve for all Sores but some would make the name of Parliament a Medusa's Head to transform reasonable men into Stones and subordinate Monarchy to the two Houses who must be denied nothing but with their good will would claim for them a paramount interest with the Soveraign whom they would advance only to the height and mighty Dignity of a Doge of Venice or a Roman Consul whilest they must be the Tribunes of the People their Supervisors So that we cannot be content to gather the blessed fruits right constituted Parliaments would afford us but we must rend away the top Branch yea stub up the Tree that we may scramble for the Fruit. Tacitus (g) 10 Annal. gives a Caution how a Prince may support his Authority that he do not vim Principatus resolvere cuncta ad Senatum revocando Kings not to grant away their Prerogatives at the Importunity of Parliaments It is fit a Prince should have the Glory of performing those things himself which are his Prerogatives and not to refer such things to Conventions of Parliament which properly belong not to their Cognizance Since therefore by the condescensions of our Wise and Gracious Princes there are several things in England the King cannot by Law do alone it is a most requisite Wisdom in Princes that as they observe the Laws in securing the Peoples Liberties and Privileges so by no Arbitrary Assumption of either or both Houses to let their Prerogatives be invaded for those are now no more than are rationally and politically necessary for orderly and established Government The Encroachments of the never to be forgotten long Parliament several of which I have in this and the foregoing Chapter hinted may be sufficient documents to Princes not to yield such a body too much Power for if the ballance once decline a little weight will sink it Therefore though Princes are not to enlarge their Prerogatives nova siti ad alia aliaque properare yet they ought to preserve those that remain For any Raveling once yielded will make the Royal Cittadel defenceless Testudo ubi collecta est in suum tegmen tuta est ad omnes ictus ubi exerit partes aliquas quodcunque nudavit obnoxium infirmum est The Tortoise as long as it keeps within its shell and coverture is safe but if it unbare any part it is obnoxious to danger Above all things a Prince should he careful never to part with the Prerogative of Summoning and Dissolving Parliaments For we cannot forget that the Houses of 1641. not content with a Bill for Triennial Parliaments got an Act for perpetuating themselves and that would not satisfie but they prepared a Bill for the certainty of future Parliaments whether the King had occasion for them or not so that if the King omitted the sending out of Writs and Summons the Chancellor might and for failure the Sheriff and I know not what inferiour Officers of which the Blessed King complains I cannot dismiss this Subject without taking notice of the Fundamental cause of Factious Members of Parliament The fundamental Cause of Factious Members in Parliament In England there is no such powerful Engine to make Faction and Sedition formidable and dangerous to Government as when the Majority of the Freeholders are wrought upon by the Arts I have in some measure hinted before and shall more largely in the Chapter of Faction to chuse Members of the House of Commons of their own Temper for such a Number being imbodied in that House give and receive mutual strength from one another For when such are met they do not take care to unite the minds of the Subjects to their Prince or one to another or imploy their time upon the great concerns of
When Princes not to make themselves Parties but only private-Animosities betwixt some of the Nobility wherein the Government is not much concerned there may be some allowance for my Lord Verulam's Opinion That Princes being Common Parents should not lean to one Party because a Boat that is overset by the unequal Weight on one side may carry such Passengers in it as the Prince would not lose Therefore to study ways to piece them and solder up the flaws is better than to side with one to the Ruin of the other and sometimes of themselves also As we may observe in Henry the third of France who entred into the League and it was shortly after turned against himself which may be a document saith that wise Lord to Kings how they make themselves a Party for by that a Prince makes himself unus ex nobis which makes an Obligation Paramount to that of Soveraignty So that a Prince must be very cautelous when he must side with one Party which he espouseth (d) In caducam pariâ—tem ne inclinet lest he lean upon a ruinous Wall But if there be a Party by whose fall the Prince (e) Cujus râ—ina se quoque tradura est Tacitus de Moribus Germ. likewise shall be sure to be ruined as in case of Factions against Government as I mean in this whole Discourse it is necessary for him strenuously to support it When Princes to support one Party Upon this Consideration it seems to me that it ever will be the great Interest of the Kings of England to defend and support the Episcopal Government for that by fatal Experience it was found that the overthrow of it was the Praeludium to the Destruction of the Blessed King and Monarchy For although he was a very great Champion of the Church of England as established by Law yet he too fatally yielded to take away the Bishops Votes in Parliament whereby he lost a considerable Party in the House that would never have deserted his Interest So that in this case I may apply that of Galba (f) Manifestum est neque perire nos neque salvos esse nisi una posse Tacit. 10. Hist P. 195. Edit Lips 5. to his Soldiers It is manifest that undivided or alone they can neither be Saved or Perish in times when they are attacqued But to return to the Prognosticks of dangerous Seditions I shall mention some that Tacitus hath noted and described Speaking of the Revolt of the Legions in Germany under Germanicus at the Beginning of Tiberius's Reign Unanimity a dangerous Sign he saith Those that looked deeply into the Disposition of the Soldiers judged it a strong Argument of an unappeasable Revolt (g) Id militares animos altius conjâ—â—â—antibus praecipuum indicium magni atque implacabilis motus quod neque disjecti nil paucorum instinctu sed pariter ardescerent pariter silerent tanta aequalitate constantia ut regi crederes 1. Annal. that they were not scattered or divided nor any attempt given by a few but grew insolent together were quiet at once with such moderation and constancy that one would have thought they had been governed by one Head For when any Sedition is carried on with such Unanimity it is a certain Sign that the Poyson hath a large spread and there are few sound Parts left The Progress (h) Ad tuendam plebem Tribunitio Juâ—e â—tentum militem doâ—is populum Annena cunâ—los dulcedine oâ—ii pellexit Insurgere paâ—tatim munia Senaâ—us Magistratuum Legum in se trahere nullo adversante lbid Augustus made to establish the Sovereignty in himself The Methods of Designers is the usual Method by which such as intend subverting of Government may proceed which according to the same Author was That to ingratiate himself with the People he contented himself with Tribunitian Authority to defend the Common People that he wound himself into the Favour of the Soldiers by Gifts of the People by Provision of Sustenance and of all in general with the sweetness of Ease and Repose by little and little taking upon him the affairs of the Senate the Duty of the Magistrates and Laws and so without the Contradiction of any he obtained the Empire This in Augustus was commendable and Politically done being to alter a Commonweal into a Monarchy and Wisemen by his method might have foretold his Design So in Seditious enterprises against Monarchy the way is to court the People and insensibly cajole them with the sweetness of Liberty under a Commonwealth and the heaviness of the Yoak of Monarchy and having possessed them with this they have no more to do but to await some critical time or revolution that may suit their Design as some new Imposition laid some publick Calamity the displacing some great Officer or Death of some great Man or their Prince such (i) Opportunos magnis conatibus transitus rerum 1. Histor Revolutions being the sittest times for great Attempts as Tacitus speaks of Otho's Conspiracy by Galba's Covetousness to the Soldiery c. Concerning Sejanus the same Judicious (k) Primas dominandi spes in arduo ubi sis ingressus adesse studia ministros Lib. 4. Annal. Author gives us the Saying of Drusus That the first hopes of attaining Command or working themselves into Power by Sedition is difficult but after the Entrance there will not want aids of Council and assisting Hands Therefore it is most necessary Speedy Suppression most necessary that Princes diligently watch the motions of all kind of Seditious aspiring Persons to prevent their first Entrance upon their Designs lest they prove afterwards too Powerful In such a State of affairs the Council of (l) Nibil in civilibus discordiis festinatione tutius ubi facto magis quam consilio opus 1. Hist Tacitus is to be followed That nothing is safer in Seditions and Civil Discords than quickness of dispatch when there is more need of Action than Consultation The misfortune is great which happens to the Subjects by Faction and Sedition The Mischiefs of Faction for such things once begun are not in a short time hushed but the Animosities are durable and when one (m) Inter victores victosque nunquam solida sides coalescit Idem 2. Hist Party overcomes yet the Conquered retains his old grudge and is always catching at opportunities to promote his Interest and there is rarely in that Generation at least a sincere amnesty and union of Affections Therefore as Princes by Acts of Pardon endeavour to put all into a State of Unpunishableness though they cannot into a State of Innocence so those that have assisted the Seditious Party ought with a generous Repentance and Fidelity to their Prince endeavour all their Lives to be rubbing out those Stains by their Loyalty For he that (n) Quem paenitet peccasse pene est innocens repents he hath offended is in the next degree to the Innocent It
Parliament of England knew they had no Power to make such an Act and we may conclude That such Politick and Temporary provisions find no approbation either by the Laws or succeeding ages who in all such cases judge more impartially therefore it is much more honourable for the Legislative Power to found their Laws upon Justice and Right rather than upon the humours and Interests of those who desire but the shadow of a Law to countenance their designs It must be owned that King Edward the Second was deposed The Injustice in deposing Kings for making use of Gaveston and the Spencers But how illegally all succeeding ages have acknowledged and it rather shews how extravagant the People and their Representatives are in their humors than how just their Powers are For by the same parity of Reason the horrid Murther of the blessed Martyr or the Murther of Edward the Second may be justified as his deposing may be and the like may be said of King Richard the Second against whom the Fourteenth Article was that he refused to allow the Laws made in Parliament which had been in effect to consent that the two Houses should have been the Soveraign and that he had transferred the Royal Power on them Whoever desires further satisfaction may consult Arnisaeus in that Treatise Quod nulla ex causa subditis fas sit contra legitimum Principem arma sumere Whereas Richard Duke of York in Henry the Sixth's time after he had been declared Heir Apparent was by another Act of Parliament declared uncapable of Succession all that can be inferred from it is When Acts of Parliament to be less esteemed That Acts of Parliament when they are bottomed upon private affections to Parties in times of Faction and civil War are not to be looked upon with that veneration as when they regularly pass in times that are calm when no potent Persons oppress Justice or usurping Powers hinder faithful Judges from expounding the Laws soundly Therefore we find in the claim of the said Duke of York that it is more consentaneously to Law expressed That no Act taketh place or is of force against him that is right inheritor of the Crown as accordeth saith the Record with Gods Laws and all natural Laws and we may observe that though there was a Succession of three Kings of the House of Lancaster who had usurped the Crown for Sixty Years yet all our Historians and the Laws call those Kings de facto and not de jure Such a true sence of just and right the uninterested Ages have had of that Usurpation ever since although there were Acts of Parliament carefully penned to corroborate â—he Title of the house of Lancaster during that time and all ways and means used to have established that Line yet by vertue of the Right of Lineal Succession Edward the Fourth Son to the said Duke of York came to be owned lawful King of England though the Right of his Family had been interrupted ever since Henry the Fourth usurped the Crown which might have been a sufficient document to all Ages not to have attempted any sort of praeterition of the Right Heir Yet we find that unsuccessful attempts were made by H. 8. contrary to the fundamentals of Succession which when rightly considered I hope will convince all of how little validity even such Acts are to be reputed Therefore because these have been made use of for Precedents I shall speak a little more fully to them In the 25 of H. 8. (f) Cap. 22. the Marriage with Queen Katherine is made void Concerning the several Entailings of the Crown by King Henry the Eighth and that with Queen Anne's declared good and an Entail made on the Issue Male or Female and the Penalty for hurting the Kings Person disturbing his Title to the Crown or slandering the present Marriage is judged High Treason and Anno 26. (g) Cap. 2. a strict Oath is injoyned to observe the Succession there appointed But 28 H. 8. (h) Cap. 7. it is declared that the former Act was made upon a pure perfect and clear foundation thinking the Marriage then had between his Majesty and the Lady Anne they are the words of the Act in their Consciences to have been pure sincere and perfect and good c. till now of late that it appeareth that the said Marriage was never good or consonant to the Laws but utterly void and of none effect and so both the Marriage with the Princess Katherine and the Lady Anne are declared void and their Issue made illegitimate and the perils are enumerated that might ensue to the Realm for want of a declared lawful Successor to the Crown and the Act impowers the King if he dye without Issue of his body that he may limit the Crown to any by his Letters Patents or his last Will in Writing and it is declared Treason to declare either of the Marriages to be good or to call the Lady Mary or Lady Elizabeth Legitimate and the former Oath is made void and this may be judged to be procured when he resolved to settle the Crown on Henry Fitz Roy Duke of Richmond his natural Son But after the Birth of Prince Edward 38 H. 8. (i) Cap. 1. another alteration is made whereby the Crown is entailed on Prince Edward and for want of his Issue on the Lady Mary and for want of her Issue on the Lady Elizabeth and for want of Issue of the King or them then the King is impowered by his Letters Patents or last Will to dispose of the Crown at his free will It is therefore to be considered that in such a juncture of affairs when the legality of the Kings Marriages were so disputable by reason that two of the legal Successors upon niceties not of nature but of the Popes 〈◊〉 for Divorcing were declared Bastards there was some â—eason (k) 25 H. 8. c. 22. that the Act should express that the Ambiguity of several Titles pretended to the Crown then not perfectly declared but that men might expound them to every ones sinister affection and sence contrary to the right legality of Succession and Posterity of the lawful Kings and Emperours of the Realm hath been the cause of that great effusion and destruction of mens blood and the like cause will produce the like effect as the words are Upon such grounds it was very plausible to declare by Act of Parliament the Succession But this does not prove that where the Right of nature is clear that the Parliament may invert the same and they teach us how dangerous it is to leave Parliaments to the Impression of Kings when it is too obvious the first of these Laws was made to gratifie the Kings affection to Queen Anne in the case of naming a Successor as it is also to expose Kings to the Arbitrariness of Parliaments And we may well infer H. 8. taking such care by his Parliaments to legitimate and illegitimate his
without citing or hearing them For if they had such Power we should be the greatest Slaves and live under the most arbitrary Government imaginable Therefore an absolute Prince cannot in an Hereditary Kingdom where the Successor is to succeed Jure Regni (z) Nulla clausula Successori Jus auferri potest modo succedat ille Jure Regni Aristaeus c. 7. num 5. prejudge the Successors right of Succession for the same right the present King hath to the Possession the next of Blood hath to the Succession Therefore Hottoman Lib. 2. de Regno Galliae affirms That ea quae Jure Regni primogenito competunt ne Testamento quidem Patris adimi possunt That in the absolute Monarchy of France The Father cannot by his last Will deprive the First-born of those things which belong to him by Royal right So when the King of France designed to break the Salique Law of Succession as in the Reign of Charles the Fifth it was found impracticable by the three States So when Pyrrhus would have preferred his younger Son to the Crown (a) Pausanias lib. 1. the Epirots following the Law of Nations and then own refused him So Anno 1649. when Amurat the Grand Signior left the Empire to Han the Tartarian passing his Brother Ibrahim the whole Officers of State did unanimously cancel the Testament and restored Ibrahim the true Heir though no other than a Fool. So if Kings could have inverted their Succession Saint Lewis had preferred his own Third Son to Lewis his Eldest and Alphonsus King of Leon in Spain had preferred his Daughter to Ferdinand his Eldest Son and Edward the Sixth of England had preferred and did actually prefer the Lady Jane Grey to his Sisters Mary and Elizabeth Thirdly It is undeniable in the opinion of all Lawyers That a King cannot in Law alienate his Crown but that the Deed is void nor can he in Law consent to an Act of Parliament declaring that he should be the last King For if such consents and Acts (b) Jus Regium p. 163. had been sufficient to bind Successors then weak Kings by their own simplicity and gentle Kings by the Rebellion of their Subjects or being wrought upon by the importunity of their Wives or Concubines or the mis-representation of Favourites might do great mischiefs to their People in raising up continual Factions of the miseries of which I shall speak hereafter This is owned in Subjects That the Honour and Nobility that is bestowed upon a man and his Heirs doth so necessarily descend upon those Heirs that the Father or Predecessor cannot exclude the Successor or derogate from his Right by renouncing resigning following base or mean Trades or such like For Fab. Cod. 9. tiâ— 28. say the Lawyers since he derives his Right from his old Progenitors and owes it not to his Father his Fathers Deed should not prejudge him so much more in Kings the ill consequences of such violations of Justice and Right being infinitely more destructive the Predecessor should not do any Act to prejudice his Successor For that right of blood which makes the Eldest First makes the other Second and all the Statutes that acknowledge the present Kings Prerogative acknowledge that they belong to him and his Heirs For as a Prince cannot even ex plenitudine potestatis legitimate a Bastard in prejudice of former Children though they have only but an hope of Succession much less can he bastardize or disinherit the Right Heir who is so made by God and honoured from him with the Character If therefore Kings how absolute soever cannot de jure invert the natural order of Succession there is no reason that the States of Parliament should have such a Power For by the known Laws they have no Legislative Power otherwise than by assenting to what the King does and all that their assent could do would be no more than that they and their Successors should not oppose his nomination because of their consent but that can never amount to a Power of transferring For if the States of Parliament had this Power originally in themselves to bestow why might they not reserve it for themselves and so perpetuate the Government in their own hands So Judge Jenkin asserts according to Law That no King can be named or in any time made in this Kingdom (d) Liberty of Subject p. 25. by the People Kings being before there were Parliaments and there is good reason for then the Monarchy should not be Hereditary but Elective the very Essence of Hereditary Monarchy consisting in the Right of Succession whereas if the Parliament can prefer the next save one they may prefer the last of all the Line and the same reason by which they can chuse a Successor which can only be that they have Power above him should likewise in the opinion of a very (e) Jus Regium p. 167. learned Person justify their deposing of Kings as we saw in the last Age that such reasons as of late have been urged to incapacitate the Children of King Charles the First from the hope of Succession viz. Popery and Arbitrary Government did embolden men to dethrone and murther the Father who was actual King For if it were once yielded that the Houses had a Right in themselves to take care for the Salus populi that none but such Princes should succeed who were approved of by the prevailing Faction in their body nothing but confusion would follow one Party having their Votes seconded by force one time and a quite contrary another yet all pretending the Publick Weal and so a large breach should be made by pretending to stop one dangerous Successor to the inflowing of successive Usurpers and thereby the Crown should not only by ambulatory but unstable upon every head that wore it and alwaies in danger of a bloody surprise till at last the Regalia being secured from the expectant Heir the Factious would find a way to pillage them from the present Soveraign and convert them into a Mace for an House of Commons I writ this Part with greater Enlargements in answer to the plausiblest Arguments for the Bill of Seclusion while that matter was in the hottest agitation But since there will be no need of dilating upon that Subject now that God Almighty hath so signally determined the Controversie by the peaceable settlement of his Majesty upon his Throne I shall close this Chapter with some few remarks of the miseries have been brought upon Kingdoms and especially upon this by the disjoynting the Succession So we read what dreadful (f) Jus Regium p. 166. mischiefs arose from Pelops preferring his younger Son to the Kingdom of Mycene The Miseries which Kingdoms have sustained where the Succession hath been interrupted from Oedipus commanding that Polynices his Youngest Son should reign interchangeably with the Eldest From Parisatis the Queen of Persia's preferring her Youngest Son Cyrus to her Eldest Artaxerxes From Aristodomus admitting
fallacious Argument For it is found by experience that some few more crafty Citizens who have gained Credit with the People order Business in their close Committees and so undiscernably lead the Multitude to whatever they call the Publick Good of which they having prevailed upon their Affections are esteemed the most competent Judges by which any one of the Juncto for they must gratifie each other mutually is enabled to cross the Course of Law in a Friend's behalf and to put a sharper Edge upon the Sword of Justice when it strikes an Enemy These kind of men by frothy Eloquence in set Speeches cunningly fitted to the Capacity of the Common People having got the Art of changing the Peoples Opinion of Just and Unjust for Reasons are not weighed where such Numbers hold the Ballance their Art is to apply their Harangues to that which rules the weaker men the Affections and these are easily convinced and made the Measures of their Judgments the want of weight in the (d) Suaden'o docent non docendo suadent Premisses being supplied by an extraordinary love to the Conclusion The Judgments of Right and Wrong being not like Mathematical Knowledge are as various as their Interests different because they concern Meum and Tuum wherein Profit is the (e) Vtilitas Justi prope mater Aequi est Parent of Equitable and Just and these Ruling men when they have a mind to do a man a prejudice can easily transfer his Business to the Common Peoples Verdict where they shall be sure to have their Fleece torn off by the Brambles or Briars or suffer as cruel Death if they be judged Capital Offenders as those may be conceived to undergo that are rolled to death in a spiked Barrel So we find the Grecian Emperor Isacius Angelus and the two De Witts were torn in pieces when exposed to be worried by the Rabble Secondly as to Liberty 2. True Liberty is wanting in Democracy it is strange Men should so generally fall in love with a bare sound and court a name of freedom which duly examined signifies nothing They cannot mean by it a looseness from all Laws they dare not own such pernicious Licence the true debate is not Whether they shall admit the Bonds of Laws for they readily embrace them being forged and fitted by themselves but who shall impose them The question is not Whether (f) Non an servirent sed an servirent uni vel pluribus they should serve but Whether they should serve one or more and with them it is commonly called Liberty to serve many Masters Now if we rightly consider the restraint of our Freedom is that which is most valuable amongst the benefits of Government For this it is preserves Peace among men by it their hands are tied up from doing injury Every one it is true could wish to retain full and absolute liberty but not upon condition all others should enjoy the same For that love to it and delight in it is overbalanced by the fears and the sad consideration arising from the thoughts of others freedom to make us suffer as much as they may be tempted to inflict Besides where can true Liberty be where the unconstant Mobile have the dispensing of it who have no clear Idea of it are always catching at the shadow and the ungrasped Cloud for Juno Their Votes are easily corrupted when a (g) Platarc in Vita Marii Marius pours out Bushels of Corn in the Forum to buy them They are impelled as we see in crowds first one way then another ebbing and flowing in their actions like the unconstant Ocean and this they call their Liberty which rather is their servile Bondage being all this while in the shorter or longer Chain of their corrupt affections or weak judgments For how can we think the common body competent Judges to manage affairs who besides inconstancy and disorder do every thing in such a manner as it is very hard to separate Tumults and Multitudes and amongst Judges so qualified as they are it is not enough to give prudent Council but it must likewise be fortunate otherwise the judicious giver of it may probably find a great abridgment of his Liberty if not worse Thirdly Concerning Equality Concerning Equality while they urge it comes nearer to the Law of Nature by the same reason they must dissolve Government since it would take away all Magistrates Superiors and Inferiors Besides it is against Nature it self that there should be such Equality as to instance if in Rewards it had been intended Nature would have made all men equally deserving and Reason teacheth us that since we may excel others by Education and Industry greater Encouragements should be allotted in consideration of the charges of good breeding and of the extraordinary studies whereby Men enable themselves to serve the Publick Besides this Equality though pretended to conserve doth in truth destroy Unity for none are so quarrelsome none so subject to envy as equals Every one being Judge in his own case will yield nothing to common Justice To close this Chapter We may judge of the thriving of popular States by what we observe of Commons which are always poor and bare of good and wholesome Grass comparatively with Enclosures If these Wafts be taken into one Mans hand he causeth the fertile crop of Thistles to be Mowed stubbs up the Shrubs and Brambles ploughs up the Brakes trencheth and cultivates the Whole and encreaseth the profit four fold whereas when it lies in common every one serves his present turn of it overstocks it and nothing is bred upon it but poor Jades and Beasts of Burthen Yea the greater part of Men in a popular State being bred up to gain make Profit the rule of their Actions entertain but little sence of Honour and thereby the State is soon corrupted by their low affections so that though some may be rich yet the State can never be glorious In the standing Pools of popular Government from the putrilage and mud spawn swarms of Tadpols The rankness of such soyl brings store of Tares and Goss Docks and Nettles Here the Henbane Night-shade and Aconite grow too luxuriantly so that the medicinal and fragrant Plants rarely find room or cultivation CHAP. VII Of the several Forms of Government in Greece before and in Aristotle's time and of the Roman Commonwealth THE Philosopher observes (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. lib. 3. c. 15. that in remote Ages when there were fewer Persons of the sublimest eminence for Valour Wisdom Vertue and publick spiritedness to protect by their Courage and Conduct to institute Laws by their Wisdom to be a living Law by their just dealing and example to study the emolument and benefit of the common People by their good will to them (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. Kingly Government was solely used But after that many grew up to be equal in vertue they endured Kings no longer
affords us many Examples of Persons selling their Country and putting their great Councils upon ill attempts and labouring with their utmost cunning to frustrate good Designs because their Dependance upon a Foreign State or Kingdom was worth much more unto them than they could hope to gain by honest Service to their Country Supposing both the King and Optimacy be willing to promote the Peoples Happiness yet he is more able to compass that End by reason he hath a more United Power and the Execution of all Designs depends upon a single resolve and therefore may be managed with a certain closeness and all convenient swiftness so that good Councils shall be first discovered in their effects Whereas a great Body move slowly and most times the opportunity of Doing is gone by while they are but half way in their deliberation Besides More Inconveniences under Common-wealths than under Kings cateris paribus as there are many Advantages peculiar to Monarchy as in these three Chapters I hope I have evinced so there is not one Inconvenience to which a People living under Aristocracy are not subject in a much higher Degree than they are under Monarchy For supposing a King cruel yet one Man's Cruelty cannot reach so many as that of Multiplied oppressors when every one takes their peculiar Province to fleece or exercise their Lordliness over according as their Estates or Interests are divided The Covetousness likewise of Senators is more devouring because we may feed one Fire with less Expence of Fewel than five Hundred A Princes profuse Largesses to his Favourites is infinitely over-balanced by so many providing for their poor Kindred and making Friends and purchasing Dependants This very thing must likewise be practised by Senators for underproping their several reputations hiring Advocates to plead for them in their absence purchasing of Votes in their private concerns and obtaining of Offices Places and Estates for themselves and their Relations So that these must require more considerable Supplies from the People who must be squeezed every time any single Grandee wants than are necessary to nourish the Liberality of a Prince who hath a large Patrimony standing Revenue and places of Honour and Profit to gratify his Servants withal The wisest States having made ample allowances to their Princes to enable them to bestow Favours according to Merits or liking Some think that of Ecclesiastes Wo to thee O Land when thy King is a Child a strong Argument against Monarchy Another Objection answered because this Calamity is not incident to a Senate because they are not subject to Nonage But the place rightly understood saith a learned (i) Idem p. 23. Writer whom I have epitomized in the Parallel is a very full Confirmation of the happy Condition we have reason to expect under Monarchy and of the Calamities and Woes which probably attend an Aristocracy For the cause of those Miserie 's foretold is plainly thus A King during his Infancy being not able personally to Rule the Government is managed by the Nobles and thence come Factions and all the Mischiefs that accompany them To close therefore this Chapter we may consider that Kings have no Rivals whom they fear and must keep under as Governours of Commonwealths have which is no small Blessing to a People Kings as Proprietors take all the care possible saith a very (k) Jus Regin◠p. 58. Learned Author to improve their Dominions whereas Republicans are as Tenants mind nothing so much as their private Profit and the very Pretenders to Liberty and Property in this and the last Age have been the great Cheats of the Nation They when raised to govern grew insolent whereas Princes are still the same and their Passions rise not because their Fortunes do not The Prevailing Factions in Commonweals spare none that oppose them having no consideration of them but as Enemies whereas Kings pity even Rebels as considering them still as their Subjects and though I cannot say with my (l) Idem Author of one Year yet I may say of the whole time of the Usurpation That more were murthered and ruined in that Reforming Age than suffered by the Great Mogul and King of France in that space of time and more Severity was exercised by those Reformers than by all the Race of our Kings these Six hundred years And whatever Evil Ministers Kings are said to have yet what that Judicious Author notes of Scotland we may say the like of England That after they had taken from the Blessed King his Prerogative of chusing Judges and Councellors the Parliament did the next year put in I will not say with him the greatest Blockheads and Idiots in the Nation but men of much meaner Parts and more corrupt and unfit either for knowledge or the upright dispensing of the Laws Justice and Equity than any Age had known I have discoursed of this Head before and so shall say no more but that as well as in Antient times the unequal Distribution of Justice hath been noted so the Severity of the State of Venice against their Nobles and the executing Men without Citing or Hearing upon meer Jealousies induced a wise Spaniard who hath collected the Arbitrary Courses practised and allowed in that State to say That there is less of Liberty there than under the worst of Monarchies And for the State of Holland it hath been more than once observed how ingrateful they have been to all their Neighbours who have assisted them in their greatest need and with what a Jealousie they treat the Prince of Orange whose Ancestors setled them in the Possession of what they have as well as to the Crown of England is obvious to common Observation By them their Allies have been unworthily deserted In the matter of Trade no Pact or Faith hath been kept In their Country Mint and Cummin Coleworts and Herbs are excised nothing worn nothing fed upon or necessary for Humane Life but pays something to their Exchequer You pay a Tribute for the Ground you walk on for the Rivulets you pass on only they have not yet found out a Tax upon their Foggy Air. CHAP. X. The Character of a good King in general BEfore I come to treat of the Sovereignty I think it convenient to discourse of the usefullest Qualifications of Monarchs and the benefits that will redound to themselves and their Subjects thereby The (a) Ethic. 8. c. 10. Polit. lib. 3. 5. c. 4. Philosopher in several places compares a King to a Parent and Shepherd but a Tyrant to a Lord over Slaves and a Wolf Difference of a King and a Tyrant The One in his Government having a special Regard to the Peoples Benefit the Other governing without or against Law pro nutu arbitrio reducing all things under their absolute will and Power in such a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as is unhappy to their People and in the Conclusion to themselves The ancient Authors Description of a Good
WEST SEAXNA CYNING I Ine by the Grace of God King of the West Saxons in his preamble to his Laws But until about our Henry the Third it was not of so constant use as that the Stile of the King necessarily required it This Stile of Dei Gratia is frequently given in old time Given to Spiritual Lords and yet in use to Spiritual Lords nothing being more common in the Instruments of Bishops and Abbats in the Chartularies of Monasteries and it is given from Kings to them in the Summons of Parliament and Writs to Assemble or Prorogue Convocations in this form Jacobus c. Reverendissimo in Christo â—â—tri praedilectoque fideli Consiliario nostro Georgio eadeâ—◠〈…〉 Archiepiscopo Cantuariensi c. But at this day though it 〈◊〉 â—â—ven to them they use it not in the first Person but Deâ— (i) Rosula Novella 〈◊〉 cap. 111. â—â—mentia or Providentia Divina and in older times when they writ to the Pope Emperor or King they were not to write Dei Gratia of themselves but only such or such licet indignus vel immerens Bononiae Episcopus c. By all these Titles we cannot but observe that the dignity of Kings and Sovereigns was looked upon in all Ages as deriving Authority from God Almighty and his Vicegerents here upon Earth having the Attributes of God that as he was Supreme over all things in Heaven and Earth so they within their Districts upon Earth I shall end this Chapter with this Observation That the Attribute of Dei Gratia applied to Sovereigns and Bishops might probably have Authority from the Constitution of Justinian (k) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Just Noâ— 6. init 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. which runs thus The greatest Gifts which Gods goodness from above hath conferred on Men are the Priesthood and Empire both of which proceed from one and the same Principle and are for the ordering and disposing of the Affairs of Mankind Concerning the peculiar Title of our Kings of England Defender of the Faith the learned Spelman having given us thâ— Copy of the Bull and discoursed so fully of it I shall 〈◊〉 the curious Reader to him for satisfaction CHAP. XVII Of the Soveraignty of the Kings of England according to our Histories and Laws THE Titles and Attributes which other Soveraign Princes have either assumed The Kings of England have used all the Titles proper to Sovereign Princes or have been given to them our Kings of England have used as might be made appear by innumerable Examples But I shall treat but of a few and shew wherein the Soveraignty is discovered and what ancient Prerogatives they have by their acts of Grace quitted and lastly how the long Parliament of 1641. would have cramped the King's Authority First as to the Title of King or Emperor promiscuously So our Edgar frequently in his Charters calls himself Albionis Anglorum Basileus As King Emperour Lord. and I have noted before that the Grecians esteemed the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to be of full as eminent Signification as Emperor So in a Charter (a) Cod. Wigorn. to Oswald Bishop of Worcester he is called Anglorum Basileus omniumque Regum Insularum Oceanique Britanniam circumjacentis cunctarumque Nationum quae infra eam includuntur Imperator Dominus In which we may note that one of our Kings of England writ himself not only Basileus according to the Grecian usage which signified King and Emperor but also Emperor and Lord three of the fullest Attributes either the Grecian or Roman Emperors ever used as also Lord of the British Sea as Canutus his Successor challenged So in a Charter to (b) Mon. Ang. par 1. p. 64. Peterburg Ego Edgar sub ipso sidereo Rege praesidens Regno Magnae Britanniae I have seen another (c) Lib. MS. Roberti de Swapham c. Fundationis Burgensis Coenobii p. 38. of his Charters prefaced thus Gratia Domini nostri Jesu Christi omnium seculorum omnia suo Intuitu distribuentis Regna terrarum moderantis habenas rerum Ego Edgar sub ipso eodem Rege praesidens Regno Britanniae c. So King (d) Id. p. 39. Edward in the same Book stiles himself Ego Edwardus Rex Anglorum Monarchiam Regiminis tenens hoc decretum Patris mei per deprecationem Abbatis Aidulfi perhenniter affirmavi In which we may note that Edgar owns himself subject to Jesus Christ God And King Edward saith he holds the single Command of Government So King Edward in a (e) Coke Praefat. 4. Reports Rex Anglorum totius Britanniae Telluris Gubernator Rector Angligenum Orcadarum necnon in Gyro jacentium Monarcha Anglorum Induperator Charter to Ramsey stiles himself Totius Albionis Dei moderante Dominatione Basileus King of all Albion and King Edwin in a Charter to Crowland calls himself King of England and Governour and Ruler of all the Land of Britain So Ethelred in his Charter to Canterbury stiles himself Of all the English born and the Oreades lying in Circuit about it Monarch and Emperor of the English So that by Orcades must be understood all the Isles about Britain So William Rufus dates his Charter to the Monastery of Shaftsbury secundo Anno Imperii mei By all which it appears that the Kings of England have justly assumed the Supream Imperial Command in their own Dominions and though the Title of Emperor hath been disused Kings of England as much Sovereigns as Emperours yet we shall find the substance of it sufficiently challenged in that of (f) Ipse omnes libertaâ—â—s 〈◊〉 Râ—gno habebat suo quas Imperator vendicabat in Imperio Matt. Paris in vita Willielmi 2. William Rufus to Arch-Bishop Anselm when he told him That he had all the Liberties in his Kingdom which the Emperor challenged in the Empire And in a Constitution (g) Râ—gâ—um Angliae ab omâ—i subjectione Imperiali liberrimum Claus 13 E. 2. m. 6. dorso of King Edward the Second it is declared That the Kingdom of England is most free from all Imperial Subjection which excluded all public Notaries who were made by the Emperor or Popes and by this Constitution were utterly rejected The Statutes for it This further appears in the (h) Stat. Anno 23 E. 3. c. 1. Vide Coke Instit 2. 111. 4 part 6. 8. 3. Instit 120 125. Statute of Praemunire made 23 Ed. 3. which runs thus That it being shown by the grievous and clamorous Complaints of the great Men and Commons how that divers of the People be and been drawn out of the Realm to answer of things whereof the Cognizance pertaineth to the King's Court and also that the Judgments given in the same Court be impeached in another Court in prejudice and dis-inherison of our Lord the King and of his Crown c. Therefore it was enacted That none of the King's Liege-People of
what condition soever shall draw any out of the Realm in Plea whereof the Cognizance appertaineth to the King's Court or of things whereof Judgments be given in the King's Court c. This Statute as well as that of Provisors 25 Ed. 3. was made to hinder the Subjects Appeals to Rome or to any other Court in such things whereby the King's Soveraignty might be diminished and this Statute relates to one made by King Edward the First Also in the Statute of Provisors 25 Ed. 3. reference is made to the (i) Anno 35 Regni Statute made at Carlisle by King Edward the First The Statute of (k) 16 R. 2. c. 5. Praemunire for purchasing Bulls from Rome gives an account of the preceding Statutes and further saith Whereas our Lord the King and all his Liege-People ought of right and of long time were wont to sue in the King's Court to receive their Presentments to Churches Prebends and other Benefices of Holy Church which they had right to present to the Conisance of Plea of which Presentment belongeth unto the King's Court of the old right of his Crown used and approved c. then particularly enumerates the Encroachments of the Bishop of Rome by Processes Excommunications of Bishops for executing Judgments given in the King's Courts and the translating of Prelates out of the Realm or from one spiritual Living to another against the King's Laws and Regality c. The Statute expresly declares That the Crown of England hath ever been so free that it is in no Earthly Subjection but immediately subject to God in all things touching the Regality of the Crown and to no other Under King Henry the Eighth (l) 24 H. 8. c. 12. the whole Parliament say that by sundry old and authentick Histories and Chronicles it is manifesty declared and expressed that this Realm of England is an Empire and so hath been accepted in the World governed by one Supream Head and King having the Dignity and Royal Estate of the Imperial Crown of the same unto whom a Body Politick compact of all sorts and degrees of People divided in Terms by names of Spirituality and Temporalty have bounden and owen to bear next to God a natural and humble Obedience The next (m) 25 H. 8. c. 21. Year in another Statute it is stiled the Imperial Crown and Royal Authority recognizing no Superior but only Your Grace and in the Chapter following the Kings of England are stiled Kings and Emperors of this Realm and in (n) 28 H. 8. c. 7. another of the same King it is called The most Royal Estate of the Imperial Crown of this Realm So in the same (o) Stat. Hilâ—â—◠〈…〉 8. c. 2. Year before the Title of Lord of Ireland was altered into King the Stile is Kings and Emperors of the Realm of England and of the Land of Ireland and in several other Statutes it is called the Imperial Crown I have inserted these to clear that by our Laws the Kings of England are under no Subjectjon to any foreign Prince or Potentate whatsoever And Mr. (p) Tit. Hâ—â— p. 21 22. Selden saith that the Supremacy is not only used by the English Sovereigns but hath been challenged by the Kings of Spain Denmark Poland the Czars of Muscovy and other free Princes over all within their own Dominions exclusive of all foreign Powers and upon the like ground of Supremacy was that Law made by King James the Third of Scotland in these words Our Sovereign Lord has full Jurisdiction and free Empire within this Realm c. A Confirmation of this Supremacy of our Kings appears in what is reported of our King Edward the Third That when Lewis (q) Quod Râ—x Anglix non se submisit ad osâ—ula pedum suorum of Bavier the Emperor had an Interview with him the Emperor stomached that the King of England submitted not himself to kiss his Feet But the King answered That he was (r) Rex inunctus habet vitam membrum in potesâ—ate sua ideirâ—â— non debet se submittere tantum sicut Rex alius an anointed King and had Life and Member in his Power therefore he ought not to submit himself to him as other Kings Whence it was that Alsonso the ninth King of Castile defining what Kings were after he had dispatched the Particulars that belonged to the Emperor says That they are every one in their Kingdoms the Vicars or Vicegerents of God placed over the People to govern them (s) Bien assi come el Emperador en su Imperio Partid 2. tit 1. Ley 5. 8. no otherwise than as the Emperor is in his Empire Whoever desires further Satisfaction in this Point may have recourse to the voluminous Collections of Mr. Pryn and other Authors that have treated of the Kings Supremacy Most of what I have hitherto discoursed relates to the King's Supremacy ab extra that he hath no foreign Superior that ought to impose any thing upon him or his Subjects contrary to his Pleasure and his Laws in his Dominions I shall now give a short Abridgement of what I find our learned Lawyers have writ concerning the King's Authority and Sovereignty in his Kingdom of England and how Wherein the King's Sovereignty consists according to our Laws in former Ages Kings have quitted some of their Royal Prerogatives In our Laws the King is stiled in Ecclesiastical matters the Supreme Ordinary (t) Cokâ— 11. 86. Calvin's Case 215. in Civil matters caput Reipublicae Pater Patriae totius Regni Pater-Familias Chief Justice c. being furnished with plenary Power to render Justice and Right to every Member and part of the whole Body (u) Coâ—â— 2 part 1 2. 24 H. 8. c. 1. 24 Eliz. c. 1. without the help of Foreign Jurisdiction Some Attributes of God in a similitudinary way say (w) 〈◊〉 8◠〈◊〉 177 2â—8 212 〈…〉 the great Lawyers are aseribed to him for the Excellency of his Person and the greatness of his Office as Sovereignty and Power Omnipresence Majesty Immortality c. In his Political (x) 〈…〉 Grand Abâ—iâ—gment part 3. p. 44. Capacity not subject to the Infirmities of others as Nonage Death Attainder c. So no Laches Negligences Defects or Stops of Blood can be imputed to or fastned upon him as is well known in the case of King Henry the Seventh (y) St. Albans vita â—en 7. p. 29. wherein it was unanimously resolved by the Judges That his Natural Capacity doth so far participate with the Politic which is superadded to the Body natural of the King that these become consolidate consubstantiate and indivisible in one and the same Royal Person and the Body Politic which is the more worthy and of a sublimer Nature is in no ways obnoxious to the Humane Imbecillity of Death Infamy Crime or the like but doth draw from the Natural Body all Imperfections and Incapacities whatsoever So that there is
Particulars of Royal Abatements Edicts or make new Laws or change any of the old standing Laws without the mutual Consent of the two Houses of Parliament He may not oppress the People or in any Arbitrary way take from them their Liberties or Estates under any pretence whatsoever without due course of Law Nor can he impose upon their (m) Stamford's Pleas of the Crown Persons what Charges or Burthens he pleaseth but according to and by the Laws of the Kingdom He cannot do any thing against the Law of the Nation or against common Right cannot change Ancient Customs for a Legal (n) Hâ—ghs 's Reports 254.263 Cousâ—uetudo lâ—galis plus habet quam concessio Regalis Custom is more available than a Royal Concession yet on the other side that Custom which advanceth against the Prerogative of the King is void He cannot impose Arbitrary (o) Petit. of Right 3 Car. 1.7 Car. 1. c. 17. payments erect new Offices of Charge to the Subject may not deny or delay Justice may not compel his People to make Gifts Loan Benevolence or Tax without consent of the two Houses The King (p) 2 Car. 1. c. 1. Coke 12.46.2 part Brown lib. 2. c. 2. Coke Instit 2 part 47 48. Petition of Right Dyer 176. may not imprison without just Cause nor keep any Mans Cause from Tryal may not send any man out of the Realm without his own Consent may not in time of Peace Billet or Quarter Soldiers or Mariners upon his People against their Wills may not grant Commission to try Men by Martial Law in time of Peace nor to determine any matters of difference betwixt Subjects other ways than by ordinary (q) 21 Jac. c. 31. Coke 11.87 Plowden 497. course of Law and ordinary Courts may not by Patent or Licence make a grant of a Monopoly or the benefit of a Penal Law or give a Power to dispense with Penal Laws in some Cases (r) Coke 11.87 He may not have or take that he hath right to which is in the Possession of another but by due course of Laws and may not make new or alter old Courts of Justice unless to be kept after the Course of the Law and not in Course of Equity Nor (s) Sheppard's Grand Abridgment part 3. fol. 49. alter the Courts of Westminster that have been time out of mind nor erect new Courts of Chancery Kings-Bench Common-pleas or Exchequer (t) Fleetwood lib. 1. c. 8. He may not by his last Will and Testament under the great Seal or otherwise dispose of the Government or of the Crown it self nor give and grant away the Crown-Lands or Jewels which he hath in his Politic Capacity nor give away any of the incommunicable Prerogatives By these Abatements of Power and gracious Condescentions of the Kings of England for the Benefit and Security of the Subject No Power co-ordinate with the King 's we are not to conclude that there either is or can be any Co-ordination or Coaequality of any State Order or Degree of the Subjects with the Sovereign nor any Competition of the Subjects Power in his Concurrence with the Vertual and Primary Influence of the Sovereign but a plain Subordination and subjected Ministration of the one under the Sovereignty of the other For although there is a Co-operation of the Members with the Head for the performing some Acts of State and they may seem Orders or States coaequally Authorized in the Power of Acting with the Sovereign in Petitioning for advising or consulting about or consenting upon the Kings Summons to Laws And although in judging and determining matters of Private Interest the King hath not an Arbitrary Judgment but is restrained to the Judgment to be administred by the proper sworn Judges in his Courts whom he appoints to judge according to his Laws and in the making of Laws his Power and Judgment is restrained to the Concurrence of the Nobles and Commons in Parliament yet in all other things wherein he is not expresly restricted by any Law of his own or Progenitors granting he retaineth the absolute Power as in the particulars before mentioned and in the Chapters of Parliaments I shall further discourse In the Rebellion under King Charles the First the (u) Observations on His Majesty's Messages c. The Rebels in 1641. would have lessened the King's Sovereignty and placed it in the People or their Representatives Pencombatants for the Party knowing they had the whole Current of the Laws against them made a great noise and bustle with Sophisms and plausible specious Pretences to captivate the Populace and nothing was more frequent than the Misapplication of that of the Philosopher That the King was Singulis major but Vniversis minor Inferring from thence That the Collective Body of the People and their Representatives were Greater in Authority than the King In answer to which it may be observed That the Aphorism how true soever in any other sense is most false in any sense of Sovereignty For if it be meant That the King is a better Man only than any of us single this doth not tell us he is better than Two and this is no more than possibly he might be before he was King For we must needs look upon Princes as Persons of Worth Honour and Eminency when taken from the People which the superaddition of Royalty did not destroy Besides any Lord of the Land may challenge such a Supremacy over all the Knights and any Knight over all the Esquires Furthermore if Princes be Sovereigns to single Persons of Subjects only and not to the universality of them then every single Subject by himself is a Body Politick whereof the King as King is Head and so the Publick Community is out of the King's Protection he being no King as to them in a complex Body Such impudent Falsities and many more destructive Consequences flow from such absurd Principles And if the Maxim were true the People have placed a King not over but under themselves But they enforce the Argument still further That the Fountain and efficient Cause of Power is the People and from hence they say the Inference is just That he is less than the Universe But the (w) Answer to Observations p. 10. Consequence is rather the contrary For suppose the People were the efficient Cause of Power it can be no otherwise than by translating or deriving their divided Power and uniting it in him Since then they cannot retain what they have parted with nor have what they gave away it follows That he who hath all their Power and his own particular besides must needs be greater and more powerful than they it being a very great Truth That he is the only Fountain of Power and Justice Another of their Maxims was That quicquid efficit tale illud est magis tale And they assume But the King was made by the People therefore less than the People In answer to which it is
apparent the Argument is Sophistical as being built on a Maxim in it self amphibolous which is not simply true but as it is restricted For it is true before the Effect produced not after So a Spark firing a City was once more Fire than the Houses but not so after the whole Town is become a Flame It is true also in those Agents in whom the Quality by which they operate is inherent not true in those who by ways of Donation divest themselves of Power or Wealth For a thing cannot retain its Fulness after it hath emptied it self If the Objector have an Estate which he would willingly improve let him bestow it on another and he shall make him rich and by his own Argument himself richer It is to be supposed rather than such an one will part with his Estate he will find an Answer to his Objection As to the minor Proposition I have before cleared I hope That the People are not the Original Cause of Government But the Observer saith They are the Final Cause and the End is far more valuable in Nature and Policy than that which is the Means therefore the Commons whose Good is the final End of all Government are more Honourable than the Sovereign But the Rule holds in such Means only as are valuable by that relation they bear to their Ends and have no proper Goodness of their own A King is not so to his People If we look back to his first Extraction when he was first taken from the People to be set over them we must needs behold him as a Man of some Worth Honour and Eminence which the superaddition of Royalty did not destroy but encrease and to be a means of his Peoples Preservation is very consistent with the Heighth of Honour Besides they that would captivate the unthinking Multitude by such Fallacies must consider that the Question is not Who is Preferable but Who is Superiour One good Christian is preferable to a thousand that are not so yet his Interest in the Commonwealth may not be preferable A Shepherd is ordained for his Flock yet a Flock of Brutes is not preferable to any Reasonable Creature Further the King's Interest and the Peoples are inseparable in the Construction of the Law which presumes what the King doth he does for the People Whether therefore the King's Power be derived from God or the People it is preferable If from God because his Ordinance If from the People because the People have elected him and consented it (x) Jus Regium p. 68. should be and have trusted him with the Publick Interest which is still preferable If this way of arguing were sound Angels being Ministring Spirits for the good of Men it would follow That Men should be more Honourable than Angels and the poor Client should be a better Man than his Learned Counsellor and the simple Patient than his Doctor As to Bracton's Authority Rex habet superiorem Deum legem item Curiam suam I must refer the scrupulous Reader to the Book called The Case of our Affairs p. 14. CHAP. XVIII That the Sovereign is unaccountable to any but God BEfore I come to treat of the several Branches of the Sovereignty of Kings in the Executive parts of them I shall from the general Idea of their Sovereignty deduce three Corollaries in this and the two following Chapters which seem to me to flow naturally from the Being of a Sovereign viz. That such are accountable to none but the Great Sovereign of the Universe And secondly may dispense in some Cases with the Laws And lastly must not be resisted or rebelled against The necessary Motive to treat of the Unaccountableness of Kings the Murther of King Charles the First If there were no other Motive to induce me to treat of this Head the barbarous Murther of the Blessed Martyr King Charles the First would have the same power as the sense that Croesus's dumb Son had to see his Father's Life in imminent danger which made such a violent emotion of the Spirits as unloosned the stiff Ligaments by which his Tongue was contracted or forced an Irruption of Powerful Spirits to invigorate the paralytick Muscles of it so that he cried out Spare my Father So certainly the Consideration of such an High Court of Justice that arraigned and sentenced their Sovereign should raise an Indignation in any one that hath sense of Allegiance Duty or Religion to defend that as a Fundamental Truth That Sovereigns are subject to no Tribunal but that of their Heavenly Sovereign In the handling this I shall pick out some of the Assertions of Learned and Judicious Authors Heathens and Christians and annex and intersperse such Reasons as may evince it and then show That this doth not leave Princes to a Tyrannical Liberty and lastly give some short Remarks upon the unparallell'd Sentence of the Regicides of King Charles the First of Immortal Memory (a) Vsher's Power of Princes part 4. pag. 196. Edit Cracovian Divine and Humane Authorities to prove it Rabba bar Nachman in his great Gloss upon Deuteronomy saith positively No Creature may judge the King but the Holy and Blessed God alone For the Original Hebrew of which and the place of Moses from whence he deduceth this Assertion I must refer the Reader to the Authors cited having chosen this not only for the fulness of the Expression but for the Antiquity though not of the Comment yet of the Text before any other All those Places also in Holy Scripture which style Princes and Judges of the Earth (b) Psal 8. 5. with Heb. 2.7 and Psal 97.7 with Heb. 1.6 Exod. 21.6 22.8 Gods and the Sons of God and Psal 82.6 I have said ye are Gods and all sons of the most High which in the Chaldee Paraphrase is thus rendred Behold ye are reputed as Angels and all of you as it were Angels of the most High (c) Job 1.6 2.1 38.7 are sufficient Proofs of this Truth As are likewise those Places that tell us It is the Will of God that we (d) 1 Pet. 2.13 15. submit our selves to these Higher Powers for his sake Therefore (e) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Orat. 3. de Regno St. Chrysostom calls Regality such a Government as is not subject to the control of any Sophocles calls it (f) In Antiq. v. 11 27. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Free and Independent Regiment and (g) Xiphilin 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Marcus Aurelius in Dio an Absolute Kingdom not subject to the Control of any To all which agrees that of Horace Lib. 3. Carm. Od. 1. Regum timendorum in proprios Greges Reges in ipsos Imperium est Jovis By which he fully expresseth That as Kings have Power over their Subjects so God hath the Power over Kings All the vast Collections that may be made of Emperours asserting or Subjects owning that their Authorities are from God that God gave them their Kingdoms
they were Crowned of God c. of which there is a copious Collection in Archbishop (h) Power of Princes a pag. 47 ad pag. 65. Vsher are so many Arguments to prove this Assertion That as they derive their Authority from God so they should only be accountable to him But I shall now proceed to more positive Authorities Marcus (i) Xiphilin excerpt ex Dionys M. Aureli◠〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Aurelius saith Of a Free Monarch none may judge but God alone and (k) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dion Hist Rom. l. 53. Dion Cassius tells us That Kings are loosened from the Laws that is they are freed from all coactive Obedience to them and are held by none of the written Ordinances So (l) Ereptumque Principi illud in Principatu beatissimum quod nihil cogitur Panaeg Pliny tells us That the happiest thing in a Princedom is that the Prince may be constrained to nothing Therefore the most Judicious (m) Vsher's Power of Princes p. 73. Primate saith In regard of themselves Kings are said to be exempted from Subjection to the Laws because they are not tied otherwise than for Convenience and good Example sake to the observation of such as are more positive and temporary Laws and because they are not liable to the Civil Punishment set down for the breach of any Law as having no Superiour upon Earth that may exercise such Power over them For as in another (n) Idem p. 96. place he saith If the People may call him to an account for the Breach of the Law the State is plainly Democratical if the Peers it is Aristocratical and if either or both it cannot be accounted Monarchical To which we may add that of the Judicious Lord (o) Clarendon's Survey c. 29. p. 163. Chancellor That though a Prince's violating his Faith is against the Law of Nature yet the Obligation doth not set any Judge over the Sovereign nor doth any Civil Law pretend there is any Power to punish him It is enough that in Justice he ought to do it and that there is a Sovereign in Heaven above him though not on Earth So (p) Comment in 12. Johannis Cyril of Alexandria saith Who dare violate the Decrees of the Kings o the Earth unless he himself be one that is invested with Regal Dignity and I may add his Superiour For in such the Charge of transgressing the Law hath no place at all So (q) Quando Rex delinquit soli Deo reus est 〈◊〉 hominem non habet qui eâ—â—s facta dijudicet In Psal 51. Cassiodorus saith If any of the People transgress he sinneth against God and the King but when the King offendeth he standeth guilty to God alone because he hath no Man to be Judge of his Doings So Nicephorus Catena Lyra Didymus Arnobius Junior and all the Commentators on the fifth Verse of the 51. Psalm on those Words Against thee only have I offended concur in the same Assertion That Kings are subordinate to none but God Nor do any oppose it but such as would place a Mufti or Sanhedrim above Kings Consentaneous to which was the Sentence of the (r) Nesas est in dubium deducere ejus potest â—em cui omnium Gubernatio superno constat delâ—gata judicio P. 514. Council of Toledo That it is unlawful to call his Power in question to whom the Government of all is known to be delegated by Judgment from above (s) In cujus solius pctestate sunt a quo sunt sâ—cundi post quem primi Apolog. c. 3. Tertullian speaking of the Prerogative of Kings saith They are in his Power alone from whom they are second and after whom the first and in another place (t) Colimus Imperatorâ—m ut hominem Deo secundum solo Deo minorem Ad Scap. c. 2. We worship the Emperor as a Man next to God and who hath obtained of God whatever he is and is only less than God So * Adversus Parm. l. 3. Optatus saith Over the Emperor is none but he that made the Emperor Therefore St. Chrysostom (u) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Hom. 2. ad Pop. Antioch saith The King is top and Head of all Men on Earth having none upon Earth higher than himself So (w) Vâ—pote constituti supra lâ—ges divino examini reservati seculi lâ—gibus non cohibentur Praefat. Chron. Reasons to prove it Otto Frisingensis well notes That Kings alone as being placed above Laws are reserved to Gods Judgment and are not restrained by any secular Laws There is good Reason for all this For if the Sovereign were obliged ex officio to give an account of his Administration to his Subjects or had any Superior upon Earth to exact a reason of his Actions if he governed not according to the Laws and for Transgressions to inflict a Punishment upon him he should cease from being a Sovereign As in the Chapter of Non-resistance I shall further prove It is a Constitution grounded upon Necessity to place Impunity somewhere for the avoiding Confusion for a Circle in Government would be of most pernicious Consequence and infinitely absurd it must be saith a late (x) D. Digs against Resistance p. 39 40. Author that any should challenge a right to rule the Rulers and be Superior to the Supream (y) Jus consistens in impunitate delictorum This Dernier resort or last appeal must rest somewhere It is a right consisting in unpunishableness for Faults which fences the Person or Persons in whom is Supream Domination and secures them as strongly as Laws can do from all Violence and if it were otherwise a most large In-let would be made to overthrow all Authority for every malicious Malecontent would be pretending some Arbitrariness or oppression in the Government for which if they had any colour of Authority they would be calling him to an account This Unaccountableness to Men hinders not their Obligation â—o God's 〈…〉 makes 〈…〉 I foresee how solid Judicious and Religious Authors soever have brought to vouch this Assertion yet Republican Libertines will be raising up their Crests against me and more moderate Persons will be pulling me by the Ear and admonishing me lest hereby I should make the Sovereign lawless and give him liberty to do what he listeth Therefore no ways deserting the Principle of unaccountableness the Mischief of the contrary of which I think is sufficiently discovered in the Chapter of Commonwealth-Government I shall endeavour out of good Authors and the examples of great Princes to lay down some Rules which Princes may think prudential for them to imitate First therefore I shall observe what the great (z) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lib. 3. Polit. c. 12. Philosopher notes That a King that governs by Law makes no new Species of Government from that King that makes the Law his Standard So that governing by Laws and according to them in his Opinion is very agreeable
(q) Power of the Prince p. 81. Primate is obvious because the inflicting of a punishment is an Act of a Superior to an Inferior and to make one upon Earth Superior to the Supreme Governour would imploy an absolute contradiction though a Father or Master were never so faulty none would be so absurd as to think that their Servants or Children might chastise them When I reflect on that dismal Day when the wicked High Court of Justice arraigned and sentenced the most Innocent Just and Religious King that possibly hath worn a Crown since our Saviours time I always stand amazed and read or meditate on that Tragical Act with a concern next to that of our Saviour's suffering All that black and bloody Scene was acted by Men of and upon the Principles successful Rebels made use of The Preamble to the Treasonable Charge against King Charles the First That Kings are admitted and trusted with a limited Power to govern by and according to the Laws of the Land and not otherwise and by their Trust Oath and Office are obliged to use the Power committed to them for the Good and Benefit of the People and for the Preservation of their Rights and Liberties which they charged that Blessed King to have designedly violated To which I shall give only some k short Heads of his Majesties Answer (r) His Majesty's Speeches and Tryal p. 429. which if they had been weighed were enough to confound all their arguing He demanded by what lawful Authority he was seated there he had a trust committed to him by God by old and lawful Descent that he would not betray Pag. 431. to answer to a new unlawful Authority That England was an Hereditary Kingdom He tells them how great a sin it is to withstand lawful Authority and submit to a Tyrannical or Unlawful That Kings can be no Delinquents That Obedience unto Kings is strictly commanded in the old and new Testament pag. 435. particularizing that one place Where the word of a King is there is Power and who may say unto him What dost thou Eccl. 8.4 That no Impeachment can lye against him all running in his Name That the King can do no wrong the House of Commons never being a Court of Judicature can erect none He owns an Obligation to God to defend and maintain the Liberties of his People against all such Illegal and Arbitrary Proceedings Pag. 439. But 't was to no purpose to show such Crown-Jewels before such Wolves and Bears that were gaping for his Blood and would not admit his only request to them to be heard for the Welfare of the Kingdom and Liberty of the Subject before they precipitated Sentence against him before the Lords and Commons and pressed it That it may be it was something he had to say they had not heard before Hand But nothing his sacred Majesty could say would move those who under a vile and notorious Lye in the Name of the People the Supreme Authority as they called it passed that barbarous Sentence against that sacred Head to the amazement of the whole World sufficient to raise the utmost Indignation of all good Men against such barbarous Principles and Proceedings CHAP. XIX That the Sovereign may dispense with the Execution of the Laws of his Country in several Cases HAving discoursed of the Kings being unaccountable to any but God Almighty when he governs not according to the Laws of God Nature or his Dominions The Connexion of this with the foregoing Chapter upon that Foundation That there cannot be two Supremes here upon Earth in one Kingdom I come now to discover what Power Kings in general and our Kings in particular have to dispense with the Execution of the Laws upon some cases for it is far from my thoughts ever to suggest any such dangerous assertion That Princes in general may dispense with the Execution of the Laws Plutarch (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Compar Flaminii Philopaemenis setteth this down as a chief point of that natural skill which Philopoemen had in Government That he did not only rule according to the Laws but over-ruled the Laws themselves when he found it conducing to the Weal publick For as the (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Justin Jun. Imp. praef Constit 3. Emperor saith whilst the Laws stand in force it is fit that sometimes the Kings Clemency should be mingled with the severity of them especially when by that means the Subject may be freed from much Detriment and Damage Princes according to the (c) Princeps est supra legem adeo quod secundum conscientiam suam judicare potest Cyrus in L. Rescript c. Judgment of great Lawyers have Power to judge according to their own Conscience and not according to the Letter of the Law and no doubt it was such written Laws as these that (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Justinian Novel 105. Justinian the Emperor meant when upon the enacting of a Constitution of this kind he added thereunto this Limitation From all these things which have been said by us let the Emperors State be excepted whereunto God hath subjected the very Laws themselves sending him as a living Law unto Men who therefore in another place assumeth to himself the Title of a Father of the Law Whereupon the (e) Nota Imperatorem vocari patrem Legis under c Leges sune ei subjecte Gloss in Novel 12. c. 4. Glossator maketh this Observation Note That the Emperor is the Father of the Law whereupon the Laws also are subject to him So the great (f) Princeps est supra legem in quantum si expediens est potest legem mutare in ea dispensare pro loco tempore Vid. Thom. in 1.2 q. 96. Artic 5. ad 3. Schoolman saith The Prince is above the Law so far that if it be expedient he may change the Law and dispense with Time and Place as when a Man is condemned to banishment the Prince if he see cause may revoke him from thence and therein saith (g) Gloss in lib. 4. de Poenis Accursius his own Will is accounted a great and just cause Magna justa Causa est ejus Voluntas The Reason of these Assertions is couched in what Aeneas (h) Convenit Imperatori Juris rigorem aequitatis fraeno temperare cui soli inter aequitatem jusque interpositam interpretationem licet incumbit inspicere De Ortu Authoribus Imperii Sylvius observes That there is a certain other thing to which the Emperor is more obnoxious than to the Law and that is Equity which is not always found written Now if the Law doth command one thing and Equity perswade another It is fit the Emperor should temper the Rigor of the Law with the Bridle of Equity as he who alone may and ought to look unto that Interpretation which lyeth interposed betwixt Law and Equity since no Law can sufficiently
Misgovernment to call their Sovereigns to an account In the first Place it ought to be considered that by constituting any check upon Sovereign Princes all Decisions and Controversies must be writ in Blood and it would lay a fruitful (b) Non tanti est civilia bella movere Arguments against Resisting of Princes Seed-Plot of civil Wars by indulging the most pernicious Freedom of righting our selves for though the People or some ambitious Male-contents may not be so happy as they could wish yet to make use of Force as a Remedy will certainly encrease the Miseries If this Principle be granted it will make Sovereigns always jealous Would make Princes always jealous and consequently studious to secure themselves against such opposition by strong Hand which will be very galling to the Subject Besides upon all differences betwixt the King and People No Judges can be betwixt King and People no Judge can be found to determine the Matter and to allow this Power to the People is to allow a Difference that can have no end before one half of the Nation have ruined another as by sad Experience we found in our late Civil Wars Further it ought to be considered That this not only overthrows Monarchy but all Government for who will obey It overthrows all Government when they can resist Under all Governments we should have one Rebellion (c) Just Right of Monarchy p. 92.93 rising out of the Ashes of another for only those who prevailed should be satisfied and all the rest would certainly conclude that they might more justly oppose those Usurpers than the first did their lawful Prince and thus Government which is designed for the Security Peace and Tranquillity of the State should be perpetually embroyled and by the cruel Hostilities of emulous Factions mastering one another the common People and those who would desire to live peaceably should be the continual Prey of Ravenous Harpyes and Vultures If we allow Subjects to take Arms against their Prince Not allowed in Families we ought to allow Children the like Liberty against their Parents Servants against their Masters Soldiers against their Officers and the common Rabble against their Magistrates For the King in his Sovereignty eminently comprehends all these Relations Besides what reasonable Man can think much more ought to assert that it is fit to allow this Principle when all Ages Mischiess of the Peoples Liberties and daily Experience teach us That the numerous Party of Mankind is difficultly by the most rational and strictest Laws contained in their duty What might we therefore expect if every Man should be invested with Power to be his own Judge and be loosed from all Laws and encouraged to the Duty as it must be upon this Doctrine of transgressing disobeying and breaking all Laws that establish a Government uneasie to him It cannot but be observed and by daily Experience is found 〈◊〉 in all Popular Congresses in all Elections or public Votes of the Body of the People how violent they are when opposed by some few How Insolent when they find their Strength that nos numeri sumus And how Cruel when enraged as in the History of Cardinal Bentivolio to go no higher in that of Naples under Masianello and that of Amsterdam against the De Witts and many more might be instanced in And it will certainly be allowed that the Multitude being cajoled by Pretenders to be their Patriots and the publick-spirited maintainers of their Liberties Properties and Religion the usual Shams and Wheedles ambitious and contriving Men make of to seduce them find these very Men more unjust oppressive exorbitant and Arbitrary than the worst of Princes Therefore since the multitude is no better qualified to judge nor juster when led by such Chieftains Surely all prudent Men and Lovers of their own and their Countries Happiness must conclude it much safer and conducibler to the Publick Weal to obey those whom God hath set over them and the Laws their Duties and Oaths oblige them to bear Faith and Allegiance to than to subject themselves to their fellow-Subjects who can have no other Title but rebellious Success to warrant them to harass butcher and ruin them Whereas at the worst in Kings we have but an ill Master but allowing Subjects to usurp we may fight our selves into slavery under hundreds of Tyrants and those too fighting one against another so that we shall not know even which of those Devils to obey Would we consult the Histories of preceding times or our own Experiences we should find the Pretenders to reform (d) Idem p. 92. Pretenders to Reformation greatest Oppressors Government have proved the greatest Cheats to those they have seduced They in reality neither promoting Liberty or Religion but under that Vizard-mask shrouded other black designs and when they succeeded in their Attempts they became infinitely more oppressive to the People than the lawful Powers ever had or could be they pretended to protect them from the Rigor of And when (e) Idem p. 90 91. others rose against them on the same pretence they did in the severest manner declare that Rebellion in others which they contended to be lawful in themselves Whoever will not be convinced of this if he by woful Experience knew it not may read it in the Histories of our late Miseries and if he have any Spirit of Ingenuity or Christianity will totally abandon such Principles as brought so wasting a Calamity on our Country In the Constitution of our English Government we have but one Sovereign The Constitution of England's Government Monarchical to whom we owe Fealty Homage Allegiance and Obedience by Oaths and Laws Even all the Acts of Parliament that acknowledg this a Monarchy are so many solid Arguments and Testimonies of the Kings Supremacy and to set up any co-ordinate Power whatsoever would be to create Regnum in Regno in Temporals as the Phanatick Principle That Dominium fundatur in Gratia or in Orthodoxa Religione doth in Spirituals Than which no Sentiment was ever invented more dangerous to overturn States and bring all to Confusion If indeed we were to form the Government under which we were to live No new Government now to be framed we might agree upon setting up Ephori Tribunes of the People Daemagogues Calvin's Three Estates or a co-ordinate Power in the two Houses as so many checks upon the Supreme Governour But we are born under a Monarchy fix'd by Law and Consent time out of Mind so that we may as well yield to the Levellers reducing us to the pure pute State of Nature as the forming such an Idaea of a Common-wealth wherein a Sovereign is to be resisted if any factious Party think themselves aggrieved It is to be well considered that though William the Conqueror had little or no Title of Right yet his Conquest with the Subjects submission then and in after Ages to his Successors and the Obligation of Oaths and
subsequent Acts of Parliament supplied all Defects and all the Limitations of that absolute Power which accrued by Conquest being the free Concession of himself and his Successors which appears in their Grants by way of Charter as I shall hereafter have occasion to enlarge upon it is most evident that the King's Power is absolute where no Law (f) D. Digs Unlawfulness of Resisting can be produced to the contrary and no special Case can be determined by the Subject to the Kings disadvantage and though the Kings succeeding the Conquest to sweeten Subjection quaedam jura pactis minuerunt and these Acts of Grace were confirmed by Promise and Oath No Contract betwixt King and Subjects whereby they may exact an Account yet we find no Footsteps of any security given that should endanger the Person or Regal Authority by giving to their Subjects any legal Power to unking them if they should not perform Covenant Nor could it be rational to expect such for they knew full well if they should not break such Promises yet a Pretence that they did so as we have known it was alledged concerning the Coronation Oath might upon the first opportunity create a Civil War Therefore their Subjects had as little reason to accept as the Kings had to offer so pernicious a Security as would bring both Parties into such a sad Condition For if Rebellion were to be allowed in any Case that Case would be always pretended and though the Prince were Just Wise and Religious yet ambitious Men to compass their own Ends would impute to him Oppression Weakness or Irreligion as the World knows by too sad Experience was verified in King Charles the Martyr who taking his measures of others Sincerity by the rule of his own Heart suffered pretences of publick Good to grow up to insolent Tumults and at last to Rebellion and notwithstanding his Exemplary Practice in his publick Devotions was traduced to have but handsomly dissembled and favoured another Religion in his Heart and at last brought before a crew of Regicides impeached of breach of Trust Tyranny and I know not how many horrid Crimes against his Subjects who yet died the Peoples Martyr and the Royal Asserter of their Liberties and Priviledges which all his Subjects found to expire with him the greatest Arbitrariness and cruellest Tyranny being during their Power exercised by the new Common-wealth Men that ever was read of in any History Those who read Books among those of the Sect of Libertines in Politicks and so much magnify the great name of Liberty of the Subject and co-ordinate Powers Writers who lived under Common-wealths no Guides to us converse most in Greek and Latin Authors who lived under Commonwealths and so were profuse in the commendation of their Country Government against Usurpers or else these admired Authors were (g) Jus Regium p. 134. Stoicks who out of a selfish Pride equalled themselves not only to their Kings but to their own Gods even as our Quakers who pretend a Light within them a more sure guide to them than the Law Now the same reason they had to commend their form of Government We have more reason to commâ—nd our Government than the Romans or Grecians theirs and so much more as Monarchy is preferrable to Aristocracy we in England have reason to commend our Constitution where our Kings are truly the Fathers of their Country and if they would ballance the convenience or inconvenience of either Government they would soon discover it For whereas they say that the Doctrine of Non-resistance is the readiest Motive to establish Tyranny It is much more certain and experimentally known that the Leaders of the Rabble always prove such and that the Distractions of a civil War which ordinarily are occasioned by the pretence of reforming something amiss in the Governours and Competitions betwixt Persons for Soveraignty destroy more than the Lusts of any one Tyrant can do which made Lucan a Republican and of the Pompeian Party conclude after a sad review of the continual Civil Wars betwixt Sylla and Marius Caesar and Pompey without touching upon what followed under the Triumvirs Foelices Arabes Medique Eoaque tellus Qui sub perpetuis tenuerunt Regna Tyrannis And if he preferred even the Tyranny or absoluteness of those Kings before the State of Civil Wars how much more have we reason to submit and that chearfully to the most easy Yoak of the Sovereignty of our Princes We need not be solicitous that their unaccountableness to their Subjects shall prompt them to Tyranny because we have good Security as strong as humane Wisdom ever invented that we shall live happily under that Constitution which our Fore-fathers enjoyed the Benefit of in an high Degree The Security we have that no Arbitrary Government can be exercised in England never distrusting the sound temper of the Policy For first our Kings swear at their Coronations to preserve the Laws Liberties Properties and Religion Secondly If they should command illegal things the Executors of them are responsible to Parliamentary Inquisitions Lastly the Interest of the King is the same with that of the Subject as to their Prosperity and Misery so that a King will always consult the good of his Subjects which made (h) Praeestis hominibus sed hominum causa nec domini modo Arbitri rerum sed Tutores Administratores estis Collata est in sinum vestrum a deo hominibus Respublica sed nempe in sinum ut foveatur Epist Dedicat ad Imp. Reges Principes Lipsius tell the Sovereigns That they govern over Men but for their good and are not only Lords and Judges of Matters but Tutors and Administrators That the Government of the Commonweal by God and Men is placed in their Bosoms or Laps but so as to be cherished and protected there To conclude this discourse We have heard of or seen the sad Calamities the Republican Rebellion brought upon all his Majesties Dominions when the mild Government of King Charles the First was altered to the most Bloody and Tyrannical one of his rebellious Subjects that any Age could parallel and we have had Experience of the merciful Government of his Royal Son and Successor and have lived to see all the Establishments of Usurpers brought to Confusion We have seen a formidable Rebellion burst forth in our Magnanimous King James the Second's Reign which had been forming seven Years before utterly overthrown in two Months and we cannot peruse Histories but we must meet with infinite Examples of the sad devastations such Rebellions bring to their Country and the unsuccessfulness of them Therefore I would earnestly advise all Malecontents never to make their Country's Ruine and the slain Carcasses of their Countrymen the Steps by which they must ascend the Scaffolds or the Rounds of the Ladders they must mount the Gallows which without a Prince's Clemency are the sure Rewards of all Rebels and their certain Fate CHAP.
this State of the Empire and of absolute Sovereign Princes (x) Leges jubere universis singulis civilâ—s dare De Repub lib. 1. c. 10. lib. 3. Bodin saith it is the first and principal part of Majesty to command Laws and impose them on all and singular the Subjects and he saith That in the Emperors time the name of the Senate was inscribed only to testify such Laws were made and to render them more acceptable to the People by the opinion they would then have that they were made with Council and Prudence So (y) Polit. c. 11. Law-making the Prerogative of Sovereign Princes Anisaeus ranks it among the first of the Jura Majestatis to make Laws for that the Government saith he is for the most part by Laws therefore they should be in the hand of the Sovereign for that they have no Power but as they are inforced by his Authority who possesseth the Plenitude of Empire I shall only note a few things of the absoluteness of the Roman Emperors in point of Law-making or abrogating and so pass to the considerations of our English Monarchy referring the larger and more explicit treating of it to the Chapters of Parliaments In the Capitol now Lateran Palace is extant a Table of (z) Gruteri Inscript p. 142. A Fragment of the Lex Regia yet extant Brass where is to be seen a fragment of the Lex Regia renewed as to Vespasian confirming many things of Sovereign and sole Authority as descending upon him from his Predecessors and enacting That what he had done decreed or commanded before his Ratification should be held and taken for as good Law as if the People it self had done decreed or commanded it So that tho' he might make use of the Senate or Peoples Ratification yet his Right was as strong before So (a) Tit. De Legibus lib. 1. Constantine challengeth to himself alone Authority to judge betwixt Law and Equity and so in point of Repeal of Laws (b) Non ab aliis sed a sese leges abrogatas suisse Lib. 3. Theodosius and Valentinian say That the Laws were to be abrogated by no other but themselves It is not to be doubted but that great and vast Empires require for their better Government a more absolute Power in the Sovereign to make Laws suitable to Emergencies for the Preservation of the whole So the Ottoman Empire and those of China Persia and the Mogul could not well be conserved entire without it Yet in these there are established Laws agreeable to the Laws of Nature and of Nations whereby the Rights of meum and tuum to Strangers are adjusted and the Subjects though they have no Property like the Europaeans yet are kept in Order and under Protection of the Laws and their Absoluteness consists principally in the ordering the Execution of any Subject without Juridical Process in placing and displacing Governours or depriving Cities Provinces and Kingdoms of Priviledges I have enlarged upon this Head to show how happy we are in England The happy State of England in the disposing of the Legislative Power that though the Force and Vigor of all our Laws flow from our Sovereigns Paternal Care â—â—ace and Bounty yet in the Point of making and abrogating Laws not only Consultation is had with so venerable a Body as the two Houses of Parliament are but nothing is done by the Sovereign without their own Preparation of Bills for his Royal Assent A wise and wealthy part of which are chosen by our selves and by the Kings Permission impowered in that particular to act for us in deliberating upon and fashioning such Bills as they petition the Sovereign to grant So that what the Judicious (c) Preface to the Reader Comp. History Dr. Brady after many other learned Men asserts is most true That by time and the Concessions of our Kings the Subjects of this Government have and may enjoy all Freedom and Happiness that sober rational Men can desire and such as is no where to be found but in this Island and the Dominions to it belonging nor can any Man that loves his Prince or Country wish for other than the present Constitution By the whole series of great Councils in the Saxon times until 49 Hen. 3. and the Parliaments succeeding I shall make it clear That the Royal Assent is that which forms the Preparatory Bills presented by both Houses into Laws and that in ancienter times the Laws were made by the Kings sole Grant by way of Charter I shall here only lay down some Preliminaries to shew in general what the ancient Usage was referring Particulars to the following Chapters First it appears That there were no certain (d) Sheringham's Supremacy p. 51. Anciently Kings called whom they pleased to advise them in making Laws Persons designed by Law whose Concurrence was required to constitute a great Council but the Kings used the Advice only of those whom they pleased to call unto themselves who were always such as they thought most able to counsel and direct them in the matters that were to be consulted of and whose assent was most likely to add most Credit and Estimation to the Laws that were to be divulged So we find in (e) Chron. Sax. Anno 670. fol. 516. And tha haefde getheal mid his witum freondam mid heora Teymenysse fultum gethafunge Christes geleassan onfeng Bed Eccl. Hist lib. 3. c. 22. Bede that Segebert or Sigbercht who was King of the East Saxons in the time of Oswi King of Northumberland who perswaded him to become a Christian held a Council with his Wites i.e. Nobles and Wisemen and his Friends and by their Advice Aid and Consent received the Christian Faith We find that Offa King of the Mercians made Laws without the Assent of his Great Council for he being at Rome (f) Mat. Paris vita Offae p. 171. Hoc autem per totam suam ditionem teneri in perpetuum constituit golng into the School of the English which was there out of his Royal Munificence He gave to the support of the People of his Kingdom that should come thither a Penny to be paid yearly for ever out of every Family by all whose Goods in the Fields exceeded the value of Thirty Pence and this he made a perpetual Constitution throughout all his Dominions excepting the Lands conferred upon the Monastery of St. Albans This Imposition and Law continued a long while in force though we find it not confirmed by any great Council in his own time or his Successors only in the Laws of King Edgar and King Edward it is enjoyned to be payed as the Kings Alms which implies it was the Kings Gift solely not by consent of a great Council So his Son (g) Matt. Paris Auct additam fol. 239 240. Ecgfrid grants Thyreseld to St. Albans with the Consent and Testimony of his Magnates which imports it to be granted by Consent of a Great
Nec aliud adversus validissimas Gentes pro nobis utilius quam quod in commune non consulunt Vita Agricolae p. 308. but divided into Multitudes of little Kingdoms which made Tacitus observe That there was nothing more profitable to the Romans against the most puissant and valiant Nations than that they advised not in common CHAP. XXII Of the Government of the Britans and the Romans imposing their Laws upon them Antiquity of English Customs CHancellor (a) Regnum illud eisdem quibus jam regitur consuetudinibus continue regulatum suit De laudibus LL. Angliae c. 17. Fortescue affirms That in all the times of the Britans Saxons Danes and Normans and of their Kings this Realm was ruled with the self same Customs that it is now governed withal which he saith if they had not been right good some of those Kings moved either with Justice with Reason or Affection would have changed them or else altogether have abolished them and especially the Romans who did judge all the rest of the World by their own Laws So Sir Edward Coke (b) Epistle to the sixth Book of Reports saith the common Law of England was here before the Entry of the Romans Saxons Danes and Normans and it was never altered by any of them and so he (c) Proem to 2. Instit fol. 1. and 2. Instit fol. 3. makes Magna Charta Declaratory of the principal Grounds of the fundamental Laws of England and for the residue that it is additional to supply some Defects of the Common Law and was no new Declaration So Sir John Davis in his Preface to the (d) Leges mâ—â—ibus receptâ—â— majoris sunt Autoritatis quam leges scriptae Arist Polit. lib. 3. c. 12. Irish Reports magnifies the Common Law as Jus non scriptum better than all the written Laws in the World excelling Parliament Laws which are written coming nearest to the Law of Nature which is the Root and Touchstone of all good Laws When I read these Assertions I think it had been incumbent upon these learned Men to have deduced as far as they could by History some Testimonies of Ancient Writers to have confirmed their Positions But in none of them do we find the least offer of a Proof for what they say I think it would be a very commendable Work and very pleasant to all ingenious Persons The Benefit to have our Common Laws and Customs ascertained and compared with all Ancient Laws if some of the Long Robe would digest into Heads that which is owned as the Common Law For though Sir John Davis calls it unwritten and which had its beginning beyond the Memory of any Man living and that a Custom tryed and approved time out of mind doth become a Law to bind the People yet nothing can hinder but whatever is preserved in the Memory of Men living and owned as custom may be committed to writing Now I would not only desire it might be so written and published but that some judicious Lawyer who was likewise well versed in History and Antiquities would search out for some parallel written Laws among the Graecians and Romans as also compare all the Saxon Laws we have the Laws of the Lombards Boiarian Ripuarian and other Laws and then I doubt not but they would acquire a greater Veneration in the World and it would be known whether the Opinions of the learned Chancellor and Lord Chief Justice were to be relied upon as to the Antiquity of them before the Roman time The Glory of his Profession and of our Nation as to that learning he was versed in which was not small I mean (e) Notes upon Fortescue p. 14. ad 22. Mr. Selden hath given the best Solution to this point of the Antiquity of our Customs and Common Law that I have yet met with which I shall abstract in as summary a way as I can First he saith The Opinion of the Antiquity of our Common Law before the Civil is founded upon the Story of Brute of which the Chancellor speaks in his Thirteenth Chapter and that Story supposing him to be here more than three Hundred Years before Rome was built makes the Chancellor conclude our Common Law so Ancient but supposing there were some Truth in that Fiction how can the Chancellor be certain that the same kind of Law and Policy hath ever since continued unless an Oral Tradition may here find as great respect as it hath with some in spiritual matters The Antiquity of all Laws Therefore with Mr. Selden we may judge all Laws in general originally to be equally Ancient as being grounded upon Nature every Nation taking the grounds of their Laws from it and Nature being the same in all the beginning of all Laws must be the same Even from the first Peopling of the Land when Men by Nature being civil and sociable Creatures grew to plant common Society and I may add when they being under the Government of a Prince received Laws by his Appointment extracted out of the Laws of Nature the Necessity of Government and the Conveniences of the People we may date National Laws Now though the Law of Nature be truly said to be immutable yet it 's as true that it 's limitable and the limited Law of Nature is that now used in every State for the divers Opinions of Interpreters proceeding from the weakness of Mans Reason and the several conveniences of divers States have made those different Limitations which the Law of Nature hath suffered It falls out that in several Nations they are so disguised by the various Modifyings and Repairs that as to their first being they are like (f) Vbi nihil ex pristina materia supersit Jason's Ship that had nothing of the old Materials remaining Therefore the learned Selden adds That little follows in point of Honour or Excellency specially to be attributed to the Laws of a Nation in general by any Argument drawn from the difference of Antiquity which in substance is alike in all for as soon as Italy was peopled this beginning of Laws was there and so when there was first a State in that Land which the Common Law now governs there were natural Laws limited for the Convenience of civil Society here Notwithstanding the Opinion of the (g) De laudibus LLâ— Angliae c. 17. Chancellor that neither the Roman Civil Laws nor the Laws of the Venetians which above all other he saith are reported to be of most Antiquity nor the Laws of any Paynim Nation of the World are of so old and antient Years as the Customs or common-Common-Law of England and that they have weathered out the changes and overthrow of People by the Romans Saxons Danes and Normans Yet I cannot believe but every of those Nations when they obtained the Power of Government introduced their own Laws and abolished what they found not agreeable to their own Politie As to the British Laws Whence to learn the
Suos liberos nisi cum adolever in t ut munus militiae sustinere possint palam ad se adire non patiuntur De Bello Gallico l. 6. Caesar saith They do not permit their Children to come to them in open Sight but when they are grown up to that Age that they may be able to undergo Military Duty and serve in War And of the Britans he (m) Vxores habent deni duodenique inter se communes maxime fratres cum fratribus parentes cum liberis sed si qui sunt ex his nati eorum habentur liberi a quthus primum virgines quaeque ductae sunt Idem saith particularly They have ten or twelve Wives in common amongst them and especially Brothers and Fathers with their Children but what Children were born of such Mothers were fathered on them by whom they were first lain with when they were Maids This strange Confusion had some thing of the Primaeval Practice of Polygamy and some think helped to the multiplying of People where it must be rare for any Woman to be unfruitful that had so many Gallants The Men of Gaul (n) Viri quantas pecunias ab uxoribus dotis nomine acceperunt tantas ex suis bonis aestimatione facta cum dotibus communicant c. Idem Caesar now speaks what Mony they receive with their Wives upon account of Portion they lay downv much out of their own Estate upon an Appraisement made to make a Joint-stock with the Portion There is an account jointly kept of the Product and the Profits reserved and the longer Liver enjoys all The Men have Power (o) Viri in uxores sicuti in liberos vitae necisque habent potestatem Idem of Life and Death over their Wives as well as over their Children saith the same Caesar Whereupon Bodin (p) Bodin de Repub. lib. 1. c. 2. chargeth Justinian with a falshood for affirming that other People had not the same Fatherly Power as the Romans had When a Master of a Family who is of higher Birth and Quality dies his Kindred meet together That if the manner of his Death were suspicious they may by Torture as Servants were used examine they Wife concerning the Business and if she be found Guilty they (q) Caesar de Bello Gallico lib. 6. Igni atque omnibus tormentis excruciatas intersiciunt torment her miserably and burn her alive To this Sir (r) Preface to the Sixth Book of Reports Edward Coke referrs the Antiquity of that Law which we at this day use of devoting to the Flames those wicked Baggages who stain their Hands with the nefarious Murther of their Husbands Those Servants (s) Servi Clientes quos ab iis dileâ—â—os esse constabat just is funeribus confectis una â—remabantur De Bello Gallico lib. 6. and Dependants who were known to have been beloved by their Masters in his Life-time were when the Funeral Rites were prepared burnt with him for Company This was used by many Nations Many when they are (t) Plerique cum aut aere alieno aut magnitudine Tributorum aut injuâ—ia potentiorum premuntur sese in serviâ—utem dicant Nobilibus In hos eadem sunt Jura quae dominis in servos Idem opprest with Debt or great Taxes or with the injurious Oppression of great Men put themselves out to Service to the Nobles over such they have the same Right or Authority as Masters have over their Servants or Slaves Thus I have extracted the principal Laws Usages Customs and Powers of Government Civil and Religions used by the Gauls and Britans as they are recorded by Julius Caesar and others in which we find the Druids were their Gownmen and were the Guardians and Interpreters of their Laws the same Caesar telling us positively That the Discipline of these Druids was first found in Britain I come now to the last Particular That the Romans setled Common-wealths where they conquered that where the Romans conquered they established a form of Commonwealth in such places as they thought most convenient for their Obedience to them and in other places they allowed Tributary Kings which will appear by what follows (d) Livius lib. 61. The Averni of the Gauls were a great People Bituitus was their King and fought two bloody Battles with the Romans the one against Domitius and the other against Fabius he being taken Prisoner and his Son Congentiatus were deprived of the Kingdom by the Senate and the City set free Afterwards Ciltilus Father of (e) Caes Comment l. 7. Vercingetorix although he had by Battle got the principality of all Gaul yet aspiring to be King was slain by the City who had obtained this freedom from the Roman Senate So that it was a free City till Caesar's time and is reckoned so in Pliny's time yet though there were some made so free by the Romans and others following the Example of the Romans had cast off their Princes and Kings yet I cannot with Ramus conclude so universally of the Gauls That every where the Government consisted of an elected or annual Prince and Senate and People that had free suffrages Having thus far given some short hints of the Government of the Britans by comparing them with the manner of the Government of the Gauls and Germans as supposing it might be made out from good Authority that there was a great Agreement in their Forms of Government I come now more directly to prove that where the Romans conquered they established their own Laws and that the unwritten Laws and Customs must be of little force during the Peoples Subjection to the Romans and so by some Hundred of years disuse were like to be so far forgotten as it cannot be said as Chancellor Fortescue doth that during the Britans Romans Saxons Danes and Normans the Realm hath been ruled with the self same Customs First therefore we may consider That the Druids who if they had not the Law-making Power yet were the sole Judges and decided all Controversies being so wholly abolished and we finding no account of the Laws they judged by we may well conclude That the Brittish Laws whatever they were lost their Esteem and Use Where the Romans conquered they â—stablished their Laws Especially when we consider that the Roman Conquest broke and destroyed all the Princely Families especially the lineage of their Kings So that now none had any setled Authority but as he could court the People if he intended to make a party against his Neighbour or oppose the Romans which might be the true reason why Xiphilin (f) Apud Britannâ—s populus magna ex parte Principatum tener Vita Severi saith That with the Britans the People had a great share in the Government which might very well be after the Subversion of their Monarchies and the Commixture of the Roman Colonies with them (g) De moribus vet Gallorum p. 77. The Romans introduced their Language where they
(f) Glossar p. 362. Leges pristinas longa receptas consuetudine abolevit Britannisque novas dedit Sir Henry Spelman's Glossary I find that the Manuscript saith That he abolished the old Laws received by long Custom and gave to his Britans new ones which from the Makers Name are called the Laws of Hoel Dha Who over reads these Laws saith a judicious (g) Sacred Laws p. 76. Author will have little reason to think our Common Law ran from any such Fountain and it seems the old Laws and Customs of this People were far worse and more rude yet as the Proem informs us I know some will be displeased that I take no notice of the Mulmutian or of the Mercian Laws concerning which the Abbat (h) Jo. Bromp Coll. 956. num 10. of Jorval and the Monk (i) Lib. 1. c. 50. Concerning the Mercian Laws not British See for this and against it what the Judicious Selden hath writ in his fourth fifth and sixth Chapters of his Janus Anglorum in which the Story of Brute is judiciously confuted of Chester give this account That Dunwallo Mulmucius a British King who lived 430 years before our Saviour made those Laws which continued in esteem till Edward the Confessors days by the Name of the Leges Molmucinae in which he appointed Cities the Temples of the Gods and the Ways leading to them and the Ploughs of the Country Men to be Sanctuaries and after Mercia a Queen of the Britans Wife of Gwithelin whom Leland calls Mercia proba in the Minority of her Son saith the Monk of Chester who ruled in the Country of the Mercians published a Law full of Discretion and Justice called the Lex Mercia which two Laws Gildas the Historian translated out of the British Language into Latin and these in the Saxons time were called Merchena Laga or the Law of the Mercians which Alured the Saxon saith the Monk of Chester from the Latin turned into the Saxon Language and added the West Saxon Law and Canutus added the Danelga or Danish Law all which three being joyned together by Edward the Confessor made those we call the Common Law or King Edward's Laws To which I shall only give Sir Henry Spelman's answer in his Glossary That it is true that King Alfred did write the Mercian Laws into his own West Saxon Laws but as appears by the Preface to his Laws that he collected what ever he found in the Laws of King Ina his Countryman Offa King of the Mercians or Ethelbert who was first baptized and those that were just he collected others being rejected It is not probable that Offa a Saxon King the cruellest Enemy to the Britains having driven them out of all the Confines of his Kingdom into Wales should carry back their Laws as his Spoils especially the Laws being so wicked that in the next Age they should be expunged and juster Laws be chosen as we see in the Preface to those of Hoel Dha I shall offer but one Argument more and so conclude with Sir Henry Spelman's opinion When Ethelbert King of Kent made his Laws Anno 613. as in the next Chapter I shall relate Bede saith he framed them after the Roman Example after Romana Bisena by which we may understand either according to the Laws then used by the Civil or Ecclesiastic State of the Romans As to Sir Henry Spelman (k) Glossar tit Lex Whence most Laws after the breaking of the Roman Empire he saith when the Goths Saxons Longobards Danes Normans and other Inhabitants about the Baltic Sea and Northern parts of Germany had made great Conquests in Europe they imposed their Laws every where upon the conquered and their Country Riâ—â— hence the Agreement betwixt the Laws of the Germans French Italians Spaniards and Sicilians and who ever boast of the Antiquity of their Municipal Laws can deduce them no higher For (l) Quis enim victor populus sub victi legibus conquiniscet saith he What conquering People will bow the neck under the Laws of the conquered especially when they have ejected a great part of them out of the Country So that if the Britains had any Laws of their own after the Roman Conquest they must be preserved in the remotest parts of Scotland and after in Wales but England had other Laws as I shall make appear hereafter CHAP. XXIII Of the German Government and Laws of several Countries after breaking of the Roman Empire and an Introduction to understand the Saxon Law-makers HAving treated of the State of the Britans under the Romans I now in order should immediately treat of the Saxons great Councils and discover by what Authority Laws were made in their time who made up the great Council and whose advice was implied in the framing of their Laws But before I enter upon Particulars it may be needful to say something of the German Polity a Member of which most famous Country though we find not them mentioned during the time of the twelve Caesars no doubt the Saxons were Caesar tells us The Gods the Germans worshipped The Germans had no Druids * Germani neque Druidas habent qui rebus divinis praesint neque sacrisiciis student which attended Divine Matters nor did they study Sacrifices and that they accounted among the Gods those they see and from whom they are manifestly helped in their works as the Sun Vulcan and the Moon the rest they have not received as much as by report But Tacitus mentions their God Tuisto born of the Earth and his Son Mannus and that they worshipped Mercury most to whom they sacrificed Men but to Hercules and Mars other Animals Although the Germans Gauls and Britans were Barbarous yet they were Valiant and capable of great Improvement and that some worshipped Isis When I read in Caesar Tacitus Diodorus Strabo and others of the Barbarousness of the Germans Gauls and Britans their homely Diet poor Cottages and Clothing their Habitations dispersed according as there was convenience of Water or Wood and that uncultivated Disposition they describe I am ready to think before the Roman Attacques upon them they had lived something like the Savage Indians and had little of Arts or Industry among them but when I consider on the other side their great Armies their Weapons the Chariots of the Britans and Gauls called Esseda the (a) Lanceo ferreo cubitali longitudine latitudine duorum palmorum Aerea Galea caput muniâ—bant paulatim eminentiore in qua aut cornua impressa essent aut avium vel quadrupedum essigies sculptae Caesar l. 3. Lances of the Gauls with Heads of Iron a Cubit long and two Palms broad their large Shields and Brass Helmets the German Spears called Framâ—â—â— and the Ornaments of their Shields and Helmets with Figures of Birds or four-footed Beasts in Brass their orderly raising of such and such numbers of Men in such and such Circuits and Jurisdiction of Cities and their training up
Euridicus Euric or Theodoric for by those Names he is called Anno Dom. 466. made them be digested into writing These Levigild Aera 608 amended and they had their fullest Vigor from the Kings Chindaswind and Recaswind and these are used in Spain and that part of France called Gallia Narbonensis anciently Braccata containing Savoy Dauphin Province and Languedoc The next Laws for Antiquity are the Burgundian Gundebald or Gundebaud The Burgundian Laws who was made tributary to Clouis King of France Anno Dom. 501. having setled Burgundy under his Jurisdiction did appoint saith (u) Lib. 2. c 33. Gregory Turonensis milder Laws for the Burgundians lest he might oppress the Romans and Lindenbrogius notes That his Laws agree with the Responses of Papinian though (w) De Impietate Duellici examinis Agobard in his Book to Lewis the Emperor complains of the unjustness of one branch of them in admitting Duel when Proof might otherwise be had However here it appears they were made by his Authority The next are the Laws of the Alemans Baiuvarians and Francks * all which took their beginning from Theoderic the First (x) Spehaan 's Gloss Lex Baioriorum Lex Baiuvariorum Baioriorum Boiorum containing Franconia now Bavaria and Bohemia according to some Son of Clouis the First who founded the French Kingdom Anno 511. having triumphed over the Almains and being converted to Christianity he took the Name of Lewis when he was in Catalonia he called to him wise Men skilled in the Ancient Laws of his Kingdom and he himself indicting he commanded the Laws of those Nations according to every ones Customs to be written adding rescinding and changing them according as Christian Religion required and those which for the ancient Pagan Rites he could not alter himself Childebert the Second begun and Clotharius the Second perfected and Dagobert the great made them better and to every Nation concerned in them Lex Aalmannorum he gave them in writing As to that part which is called the Lex Alamannorum they were amended by Clotharius the Second Son of Chilperic and his Princes viz. Thirty three Bishops Thirty four Dukes Seventy two Earls and the rest of the People as appears by the Title so that this by an Act of the King and great Council and the former by the Kings themselves are recorded to be appointed or made Lex Francorum As to the Law of the Francs not the Salic Law which is of later date we find no more mention of them after they were digested by Theodoric the first till the time of Charles the Great who and his Son published Laws by the Name of Capitularies which Ann. 840. were writ by Ansegisus Abbas Lobiensis and Benedictus Levita so that here is no mention but of the Kings and Emperors sole establishing these Laws Lex Longobardorum The Longobards now Lombards in Italy were a Colony of the Saxons who were removed into Pannonia or Hungary and by Narses General to Justinian about the year 550 were called into Italy to assist the Emperor against Totila King of the Goths whom Narses totally routed in Italy and these Longobards (y) Warnefridus Hist Longobard lib. 4. c. 44. seated themselves there and established a Kingdom and Rotharis their King reduced the Laws which they held only by Use and Memory being mostly such as the Saxons had used into writing and caused the Book of them toâ—be called an Edict which was about 70 years after their setling in Italy the succeeding Princes Grimoald Luitprandus Rachis and Aistulphus and after Charles the Great Latharius and Pipin added and amended them Sir Henry Spelman (z) Glosser tit LL. Longobard saith that betwixt our Laws and those of the Longobards there is a great Agreement in the Laws Rites Words and other Particulars but saith our Ancestors brought out of Germany their Customs not written but according to the custom of the Lacedaemonians and the Ancient Nations of the North retained them in their memories only In the Laws of Henry the First Lex Ripuariorum we find the Ripuarian Laws which were made for those of Luxenburg Gelderland and Cleves not only approved but some of them are word for word in his Laws as Sir Henry Spelman notes As to the Salic Law the Francs a People of Germany The Salick Law passing the Rhine subdued a great part of Gaul and in the third year of Pharamond four of the Nobles of the Nation reviewed all the Originals of Causes according to the Salic Law There are two Prologues to these Laws the first names the four Noblemen that digested them the second saith names the Anno Dom. 798. The Lord Charles the Noble (a) Anno Dom. 798. Dom. Carolus Rex Francorum incliâ—â—s hunc libellum tractatâ—s Legis Salicae seribere ordinavit King of the Francs ordained the writing of that Book of the Salic Law In the Laws of King Henry the First Sir Henry Spelman notes That many things are taken out of the Salic Laws as he instanceth in the 87 and 89 Chapters where the Words are used and Punishments are appointed secundum Legem Salicam according to the Salic Law I shall now set down something in general of our Country Law (b) Glâ—sser Lex Anglorum The English Saxon Laws from Germany Sir Henry Spelman observes That the Laws of the English in Britain seem to take their Original from the German Manners or Customs but he knows not who first introduced them It is known that there came into England upon the Invitation of Vortigern the Jutes or Goths Angela is a Town near Flemshurg a City of Sleswick perhaps our Flamburgh in Yorkâ—â—ire had its Name from some that inhabited that City the Angli or English and the Saxons tho all here obtained the Names of Saxons The Jutes setled in Kent and the Isle of Wight The Saxons in Essex Middlesex and Sussex and so on the Sea Coast to Cornwall and were called the West Saxons The Angli possessed the East and North parts which were called Mercia Those of Kent had their Laws The tripartite Division of the Saxon Laws but after being swallowed up in the West-Saxon Kingdom they were subject to their Laws The Angli used the Mercian Laws till the Danes over-running the Provinces of east-East-England and of the North Humbers brought in their Customs not differing very much from the Laws they had before from hence sprung the threefold Division of Laws viz. the (c) West-Seaxna Laga Myrcna Laga Dene Laga West-Saxon Laws the Mercian Laws and the Danish Laws The first Laws we have an account of were made by Ethelbert King of Kent Anno 561. and the next by Ina King of the West Saxons who began to Reign Anno 712. and the next by Offa King of the Mercians of which Laws I have spoke before The Danish Laws were such as were not only used in Denmark but in Normandy Danish Laws
by whose Council and Advice the Kings used in the making Laws are the Witan Wites From Wita which Womner renders Optimas Princeps Sapiens a Nobleman Prince or Wiseman from witan to know and understand So in the Laws of King Ina we read Gethungenes Witan a famous noble or renowned Wite from Gethungen So in the version of Bede by King Alfred Witum is rendred Counsellors so by Sapientes when we meet with it in any Authors that render Witan by it we are to understand not only Judges but sometimes Dukes Earls Prapositi Provosts Thegns the King's Officers or Ministers So in the Charter (i) Histor Privileg Eccl. Eliensis fol. 117. b. of King Edgar to the Church of Ely Anno 970. Alferre Egelwinc and Brithnoth are called Dukes and Hringulph Thurferth and Alfric are called Ministri The first of which in another Charter is called Alderman and the other by the name of Sapientes Upon perusal and collating several Transcripts of Deeds and Councils I am of opinion that where Wites or Sapientes are used for Princes Noblemen and great Personages those are to be understood that were called to the Kings Council had command over Countries as Lord Lieutenants or were Members of the great Councils So that they were of the most wise and knowing of the great Princes Dukes Earls and Barons and where it doth not seem to import such great Men of Birth then it signifies Judges Which as to the first seems to be clear by what is said in the Auctuary (k) Lamb. fol. 147. tit de Heretochiis Qui Heretoches â—pud Angloâ—voâ—abantur se Barones Nobiles insignes sapientes vocati ductores excercituum c. to the 35 Law of Edward the Confessor where it is said There were other Powers and Dignities appointed through the Provinces and all the Countries and several Shires which are called by the English Heretoches in King Ina's Laws Here Thegne i. e. Noble Ministers or Officers and when he reckons up those who were to be understood by this name Heretoges he calls them Barons Nobles and famous Wisemen called Generals or great Officers in the Army and as to the latter Signification Doctor Brady hath sufficiently cleared it in Adelnoth's Plea against the Monks of Malmsbury where it is said that in the Presence of the King subtili disceptatione a Sapientibus suis i. e. Regis audita where by Sapientes must be understood the King's Judges Alderman Alderman or Ealderman was both a general Name (l) Spelman 's Glossary given to Princes Dukes Governours of Provinces Presidents Senators and even to Vice-Roys as also to particular Officers hence Aldermannus totius Angliae like my Lord Chief-Justice Aldermannus Regis Comitatus Civitatis Burgi Castelli Hundredi c. of whose Offices it is not easy particularly to define This being so copiously discoursed of by Sir Henry Spelman I shall refer the Reader to him The word Thane or Thegen was used by the Saxons in their Books variously sometimes it signified a stout Man Thane Soldier or Knight other times Thanus (m) Cyninges Thegen Med mera Thegen Woruld Thegen Maesse Thegen Somner Dial. Regius signified the Kings great Officer a Nobleman or Peer of the Realm other times a Thane or Nobleman of lower degree sometimes we meet with secular or Lay Thanes other times Spiritual Thanes or Priests Some Thanes were as the King's Bailiffs Praefects Reeves of which Doctor Brady gives account in his Argum. Antinorm Page 283. In several of the Councils we find no particular orders denominated but only a division of the whole into the Clergy Clergy and Laity and Laity So in the Council that Sir H. Spelman (n) Spelm. 1. Tom. Concil tells us Ethelbert King of Kent held 685. with Bertha his Queen and Eadbald his Son and the Reverend Bishop Austine Communi concilio tam Cleri quam Populi and the rest of the Optimates Terrae at Christmass having called a Common-Council of the Clergy and People by which it is apparent that both the Clergy o and Laity there understood are comprehended under the name Optimates Terrae the Nobility of Land So in King Ina's Laws as I shall hereafter particularize the command is given to Godes Theowas Gods Servant and eales folces all People So King Edmund held a great Council at Easter in London of Gods (p) Egther ge godcundra hada ge woruld cundra Order and the Secular Order or Worlds Order which Brompton (q) Mandavit omnibus Majoribus Regnorum veniunt Wintoniam Clerus Populus renders Laici in another part of King Edward's Laws So the Majores Regnorum of King Edgar are commanded to come and then it is said There came to Winchester the Clergy and People those were the Majores Regnorum The like was frequently used after the Conquest so at the Coronation of Henry the First Matthew Paris speaks of the gathering of the Clergy and all the People and then saith Clero Angliae Populo universo The Clergy answering him and all the Magnates and in another place Clero Populo favente the Clergy and People favouring Further we find in a great Council held by the King Anno 1102. 2 H. 2. (r) Omnes Principes Regni sui Ecclesiastici secularis ordinis Flo. Wigor fol. 651. lin 21. all the chief Men of his Kingdom of the Ecclesiastic and secular Order So that Plebs Populus Vulgus Incola where by way of Antithesis or contra-Opposition they are used do signify the Clergy and Laity or Lay-Princes not the common People After the Conquest we meet with the Word Regnum sometimes and other times Regnum Sacerdotium As to the first the Sence is to be understood best in the Quadripartite History (s) Quadrilog lib. 1. c. 26. of the Life of Thomas Becket where it is said the King called to Clarendon Regnum universum all the Kingdom and then saith To whom came the dignified Clergy and the Nobles which Matt. Paris puts out of all doubt by the enumeration that he makes of all that appertained to the Kingdom to be the Arch-Bishops Bishops Abbats and Priors Installed and the Earls and Barons So the meaning is best understood of the words in the last Chapter of Magna Charta that the Arch-Bishops Bishops Abbats Priors Earls Barons Knights and free Tenents and all of the Kingdom gave a fifteenth part of their Moveables and in other places after the Barons it is said Omnes alii de Regno nostro qui de nobis tenent in Capite concerning which the most Learned Doctor Brady hath given plentiful Proofs Magnates Proceres By the words Magnates Proceres frequently found in the Councils after the Conquest are to be understood the Arch-Bishops Bishops Abbats and Priors for the Clergy and the Earls and Barons for the Laity only unless afterwards that Dukes were included However they were used always to contra-distinguish
had with Ecclesiasticks and Laicks and in the Laws it is often said Thonne cwaedon these we pronounce or appoint and sometimes the single person is used and in other places us betweonan heoldan it is holden betwixt us Here we find the Great Council summoned by the King and the constituent parts of it to be the Clergy and Laity and that the Laity were only the Princes Dukes Earls great Officers Military Commanders the Kings Ministers Graeves Praepositi Thanes sometimes denoted by the general names of Wites translated Sapientes Magnates Optimates c. as is every where beyond all possible doubt cleared by the most Judicious Dr. Brady in his Answer to Mr. Petyt to whose great collection for the proof of this point before I proceed further I shall only in transitu instance in a few The Title of the Council of Berghamsted (f) Spelman Concil vol. 1. fol. 194. Anno 697. Withrad 5 of Withred King of Kent is This Synd Wightraedes domas Cantuara Cyninges Saxon Great Councils These are the Judgments of Withred King of Kent and the persons mentioned particularly are the King that convened them and Birthwald Bretone Heahbisceop High or Archbishop of Britain Gibmund Bishop of Rochester and the rest of the Ecclesiastick (g) Aelc had ciricean thaere maegthe acmodlice Order of that Nation mid thy Hersuman Folcy with the Military Persons such as in after times were called Here-Thegni in King Ina's Laws and Heretoches in the Auctuary (h) Lamb. tit Heretoch fol. 147. to the 35 Laws of King Edward the Confessor which are there interpreted Barones Nobiles Insignes Sapientes Ductores Excercitus So in the Council at Clovesho 3. Cal. Nov. Anno Dom. 824. under (i) Spelm. Conc. vol. 1. fol. 333. Beornwulph Beornwulph King of the Mercians besides the Archbishop VVulfred and several Bishops and Abbats are enumerated only Beornoth Eadberht Sigered Egberht Eadwulf Alheard Mucel Vhtred and Ludica under the stile of Duces Bynna Frater Regis Aldred Thelonius So in the Great Council at London (k) Idem fol. 336. Egbert 26 May Anno 833. the Title is Presidentibus Egberto Rege West-Saxoniae Withlasio Rege Merciorum utroque Archiepiscopo caeterisque Angliae Episcopis Magnatibus and besides the Bishops and Abbats that subscribe we find these Adelwulphus filius Regis West-Saxoniae Wulhardus Dux Athelmus Dux Herenbrithus Dux So in the Council at Kingsburie Anno 851. Bertulph Idem fol. 344. under Bertulph King of the Mercians it is said to be praesentibus Ceolnotho Dorobernensi Archiepiscopo caeterisque Regni Merciae Episcopis Magnatibus and the Subscribers are besides the Bishops and Abbats Ernulphus Dux Osrithus Dux Serlo Comes Elbertus Comes Huda Comes Oflat Pincerna Regis I have upon this occasion instanced in these few of the Ancientest to clear who the Persons were according to their Orders Ranks and Degrees that constituted these Great Councils and shall now proceed to other Saxon Councils succeeding Eldred King of all England gave the Monastery (l) Ingulphi Hist fol. 477. King Eldred's Great Council of Croyland to Abbat Turketul and his Monks by his Charter dated in Festo Nativitatis B. M. Virginis Anno Dom. 948. cum universi Magnates Regni per Regium edictum summoniti when all the great Men of the Kingdom were summoned by the Kings command and then more particularly he divides them into the two Orders of Ecclesiasticks and Laicks thus Tam Archiepescopi Episcopi Abbates quam caeteri totius Regni Proceres Optimates Londoniis convenissent ad tractandum de negotiis publicis totius Regni Some may object That Ingulphus giving this account may rather express the Members and the occasion of it to treat of the Publick Affairs of the whole Kingdom according to the usage of the Age he lived in than of the Age the Great Council was held in which is well to be observed in many cases But in the Laws of King Edgar I shall shew it was then used in such manner to give account of the great Councils as both his Laws and those I have hitherto mentioned of the oldest Date manifest The Preface to King Edgar's Laws is thus This is seo geraednysse the Eadgar Cyng mid his Witena getheahte geraed King Edgar's Laws Lamb. Conc. fol. 62. Regn. coepit 959. desiit 975. This is the Constitution Act or Decree which King Edgar with his Wisemen or Great-men hath made ready trimmed or enacted Then follow the three great Ends for which such Councils are called viz. God to lofe to the Love Glory or Praise of God in appointing Religious Laws him Sylfum to Cynescipe rendred by Lambard ad Regiae Majestatis ornamentum or according to the significancy of the Words himself to make Kingly or his own Kingship or Soveraignty to manifest and thirdly eallum his leodscip to thearf all his People or Nation to profit or according to Lambard ad totius Reipublicae utilitatem The same King Edgar (m) Spelmanâ— Concil Tom. 1. fol. 4â—5 in his Charter to Glastonbury concludes it thus Hanc privilegii paginam Rex Edgarus XII Regni sui Sacro Scripto apud Londoniam communi Concilio Optimatum suorum confirmavit So that it appears this was in the presence of a great Council and the Witnesses named are Elfgina Regis mater Edward Clito filius Kinedius Rex Albaniae Mareusius Archiparata Admiral Then follow both the Archbishops and several Bishops and Abbats after whom the secular Optimates viz. Elpher Oslac Ethelwine by the Title of Duces Oswold Eufward Ethelsic Ellshie by the Title of Ministri which were Officers under the King as Thegns praepositi In the account given of a Council held at (n) Idem 490. Winchester in this Kings Reign those present at it are reckoned thus Praesentibus Edgaro Rege cum Conjuge Dunstano Archiepiscopo Elfero Principe Merciorum Ethelwino Duce Orientalium Anglorum and the same persons called Duces in the foregoing Charter Elfwoldo suo Germano Brithnotho Comiti cum Nobilitate totius Regni So that none but the Nobility were present The Witnesses to a Charter of the same King to the Monastery of Hyde in Winchester are the King Archbishop Dunstan Eadmund Clito legitimus praefati Regis filius Edward eodem Rege Clito procreatus Aelftheyth Regina Eadgita Regis avia the present Queen hath the precedence of the Queen Dowager Then follow several Bishops and Abbats after whom the Lay-Peers viz. Odgar Athelstan Athelwin Dukes Aethelweard Aelfweard and Walston Ministri It is to be noted That most do make the Laws of King Edward the Confesson to be principally a revival of King Edgar's Laws mixing such as Canutus had adjoyned to them The Preamble to the Laws of King Ethelred runs thus The Laws of Ethelred fol. 88. Regn. coepit A. 979. desiit 1016. This is tha geraednyss the Ethelred Cyning his Witan geraeddon eallum Folc to fritherbote These are the Constitutions King
according to the Title the Knights Agelnodus Walfricus Sywardus Godricus To the third Charter (d) Id. 636. when he dedicated St. Peter's Church Anno 1066. there are these more added to the Lay-Nobility besides Osbern Peter and Robert the King's Chaplain who are placed next after the Chancellor As to King Edward's Laws and their Confirmation by the Conqueror and the Addâ—â—ions and Amendments see Dr. Brady fol. 254. Aâ—gum Aâ—tinorm 296 298 299. As to the â—arallel betwixt the Saxon and Norman Laws see his Preface to the Norman Story before the Dukes Gud Comes Marheâ—â—s Comes Radulphus Minister Agelnodus Minister and besides that Wulfric Syward and Godrich in the aforesaid Charter are called here Knights there are added Colo and Wulsward Knights and the Conclusion of all is Omnes consentientes subscripsimus So that here may be noted the use of the Subscriptions of the Noblemen to the King's Charters which then were only by the mark of a Cross and in after times by their Seals to those we call Acts of Parliament as hereafter will be shown Having thus treated of the General Councils and such like Conventions under the Saxon and Danish Kings I shall pass to the Norman Kings and so descending to the present Age show the constituent Parts of the great Councils and Parliaments and by what variety of Expressions in the gradual Progress of the respective Kings Reigns the Soveraigns enacting of Laws was exhibited only before I enter I cannot but take notice that Mr. Selden by what compliance I know not Ab his vix alios ante Saxones comperio Custodes sub eis varie partitos c. Explent numerum Rex Conâ—â—â—â—â—ularius Cancellarius Thesaurarius Angliae Aldermannus Aldermannus Provinâ—â—arum Gravii Janus Angl. p. 40. with the mode of his time calls those which we make constituent Parts of the great Councils of the Saxon times Custodes and saith he scarce meets with any of these Guardians of the Laws different from these Lawmakers Yet he brings no Representatives of the Commons for he makes them the King the Lord High-Constable the Chancellor the Treasurer the Alderman of England the Aldermen of Provinces and the Graves I cannot but wonder that he should not at least give some hint what difference there was betwixt the King and his Graeve in the point of Law-making Surely he knew the Constitution of the great Councils as well as any but being a Sitting Member in that long Parliament was in that Particular tainted per contagionem uvaque livorem deducet ab uva CHAP. XXV Of the great Councils of the Norman Kings 'till the end of the Reign of King John WHAT Changes William the Conqueror made in the Government how he brought in the Feudal Laws of Normandy and many other Alterations Doctor Brady hath proved at large in his Argumentum Anti-Normanicum and the Preface to his Complete History so that I shall touch very little upon that Subject The Conqueror saith the learned Sir (a) Praefâ—tio ad LL. Willielmi primi pag. 155. Edit Wheeloch Three things the Conqueror designed Roger Twysden having obtained the Kingdom by dint of Sword and knowing that no Empire is firmly established by Arms without Justice applied his mind to three things First That he might have a sufficient Military Force Secondly That he might gratifie his French and Norman Adventurers yet so as the English might not by over much severity be instigated to rebel And Thirdly That the Husbandmen might live as Servants and to perform the Drudgery but not to be wholly extirpated As to the First He disposed the Militia so as (b) Lib. 4. p. 523. About his Militia and Revenue Ordericus Vitalis tells us it was reported That he could expend 1600 l. and 30 s. three Half-pence Sterling Money every day besides the Presents Fines for remitting of Punishments upon Transgressions of the Laws and many other ways whereby his Treasury was encreased and he made the Kingdom be surveyed and all his Tributes or Revenues Piscos as in the time of King Edward he made be truly described His Lands he so distributed to his Soldiers Disposed the Lands in Military Service and disposed them so that in the Kingdom of England he had 60000 Horsemen which he could with great readiness call together therefore in the 58 Law ascribed to him and which is in the Red Book of the Exchequer it is thus expressed We (c) Statuimus etiam sirmiter praecipimus ut omnes liberi homines totius Regni nostri sint fratres cenjurati ad Monarchiâ—m nostram ad Regnum nostrum pro viribus suis facultatihus contra inimicos pro posse suo defendendum viriliter servandum Pacem Dignitatem Coronae nostrae integram observandâ—m judicium rectum justitiam constanter omnibus modis pro posse suo sine delatione â—aciendam Fol. 171. appoint and firmly command that all the Liberi Homines such as held in Military Service to whom he had distributed all the Lands of the English except what he kept in his own Possession as in all Authors that treat of such matters is most evident of his whole Kingdom should be sworn Brothers to defend and manfully preserve his Monarchy and the Kingdom according to their Power against all Enemies and keeping entire the Peace and Dignity of his Crown and for the executing of right Judgment and Justice constantly in all ways according to their Power without Deceit or Delay I have inserted this at large because it seems the Primary Law upon which his Government was established and it seemeth to me to be the Substance of the Oath of Fealty that all the Subjects which held in Capite were to take or that the same Oath was to the same ends and purpose This Law is said to be made in the City of London But without doubt it was much according to the (d) Monsieur Berault Custom Norman fol. 86. usage of Normandy established by Rollo and what had been practised by the Francks when they conquered the Gauls in the declining of the Roman Empire who distributed their Lands among their Soldiers to whom was reserved the Dignity of Gentlemen and the Management of Arms and the use of them taken from the Ancient Gauls who were called Roturiers and they were only permitted to manage the matters of Husbandry and Merchandice So the Conqueror gave to some of his Followers (e) Brady's Preface Norm History p. 159. whole Counties to some two or three or more Counties with a great Portion of Land to others Hundreds Mannors or Towns who parcelled them out to their Dependants and Friends 'till at last though the Saxons most frequently held their own Estates of those new Lords and by new Titles from them some Soldiers and ordinary Men had some proportionable Shares for their Services though upon hard Conditions possessing them for the most part as Feudatories Of the Feudal Law and
its Mitigation So Matt. Paris saith Episcopatus Abbatias omnes quae Baronias tenebant eatenus ab omni servitute sâ—â—ulari libertatem habuerant sub servitute statuit militarâ— and according to the Rules of the Feudal Law which as it was the Law for the most part in Normandy as to Possession and Tenure so was it in England until by the Indulgence of Usurpers as well as of lawful Sovereigns to the great Men and of them to their Tenents and Followers their Tenures became more easie and were changed into Inheritances both Free and Bond. So by Compact or Agreement betwixt kind and favourable as well as indigent Lords and serviceable Tenents as also by the Introduction of the use of the Canon or Imperial Law the Rigor of the Feudal Law was abated and received several Alterations and Amendments by flux of Time and especially by Acts of great Councils or Parliaments and the Necessities or Indulgence of Princes So that instead of more rigid Tenures the soft ones of Fee-simple in all its kinds by Deed or Feofment or inheritable and qualified Copyholds were introduced As to the second Particular concerning William the Conqueror's setling Laws for the equal Government Of the Conqueror's Laws both of the Normans and English I shall first give an account out of (f) Parte posteriori fol. 346. Hoveden what these were and how they were procured He saith That the Danish Laws being understood by the Conqueror to be used in Norfolk Suffolk and Cambridg-shire others (g) Chron. Liâ—â—f See for the Conqueror's Charter and Laws Dr. Brady fol. 17 252 254 258 298 249. add the Deirans and the Isles concerning Forfeitures he preferred them before the other Laws of the Kingdom and commanded they should be observed and gives the reason for it that his and the Ancestors of most of the Barons of Normandy were come from Norway therefore the Laws of the Danes ought to be preferred before those of the Britains viz. of the English and Picts Which saith my (h) Quo audito mox universi compatriota qui legâ—s edixerant tristâ—s essecâ—i unanimiter deprecati sunt quatenus permitâ—eret lâ—ges sibi prâ—prias consueâ—udines â—â—iqua halere Id. num 10. Hoveden fol. 347 num 1. Author being heard by the great Men of the Country who had as hereafter I shall show been appointed to revize the Laws they all were very sorrowful and unanimously intreated him that he would permit them to have the Laws proper to themselves and their ancient Customs under which their Fathers lived and they were born and bred under for that it would be very hard for them to receive unknown Laws and to judge of those things they understood not See Brady's Answer to Argum. Aâ—tiâ—oâ—â— p. 298 299. But finding the King unwilling to be drawn to consent they follow on their suit praying for the Soul of King Edward who bequeathed him his Crown and Kingdom whose Laws they were that they might not have the Laws of strange Nations imposed on them but he would grant them the Continuance of their Countries Laws To which intreaty of his Barons after Counsel taken my Author saith I cannot conceive but here were many of the Saxon Nobility and Men of best Account otherwise they could not call them the Laws their Fathers had lived under and the Normans could not then know much of our Laws or Speech but this was before he had subdued all fully he acquiesced and from that day the Laws of King Edward were of great Authority and Esteem throughout England and were confirmed and observed before other Laws of the Country Our Author further notes That these were not the proper Laws of King Edward but of Edgar his Grandfather which had been little observed for 68 years as in one place and 48 years in another he saith by reason of the Danish Invasions c. and being revived repaired and confirmed by King Edward were called his Laws The Account the Chronicle (i) Anglos Nobiles Sapientes suaâ—â—ge eruditos Id. fol. 348. Spelm. Concil tom 1. fol. 619. of Lichfield gives is this That King William in the fourth year of his Reign at London by the Counsel of his Barons made to be summoned through all the Counties of England all the Noble Wisemen and such as were skilled in their Law that he might hear their Laws and Customs and then gives an account how he approved of the Danish Laws used in Norfolk c. Concerning the Kindness the Conqueror pretended in his first four Years and his Rigour after see at large Dr. Brady in his Answer to the Argumentum Antinormanicum especially p. 260. and 299. But afterwards at the Intreaty of the Community of the English he yielded to grant them King Edward's Laws Before I proceed any further I cannot but note that what Hoveden calls Compatriotae here is called Communitas Anglorum and in both of them afterwards it is called Concilio Baronum by which we may know who these Compatriotae and this Communitas were viz. the Barons or great Men. Our Author proceeds That by the King's Precept out of every County of England Twelve Wisemen were chosen who were enjoyned an Oath before the King that according to their utmost they should discover the establishments of their Laws and Customs (k) Vt quoad possent recto tramite incedentes nec ad dextram nec ad sinistram divertentes nihil addentes nihil praevarieando mutantes Omnia quae praedicti â—urati dixerunt going in a strait Path neither declining to the right or left Hand omitting adding or prevaricating nothing and Aldred Archbishop of York who crowned King William and Hugh Bishop of London by the King's command writ the Laws which the said sworn Persons did produce But it is to be noted that this Chronicle of Lichfield is of a later Date than other Writers and the Laws in it differ from those in Ingulphus The next Testimony is that of (l) Circa sinem Hist fol. 519. num 36. Leges aquiâ—â—mi Regis Edwardi quas Dom. meus inclitus Rex W. authenticas esse perpetuas c. proclamarat Ingulphus who tells us That he brought from London to his Monastery i.e. Croyland the Laws of the most just King Edward which his Lord the famous King VVilliam willed to be Authentic and Perpetual and had proclaimed under the severest Penalties to be inviolably kept through the whole Kingdom of England and commended them to his Justiciaries in the same Language they were set forth in c. of which I shall say something below The Author of Jus Anglorum ab Antiquo and the Argumentum Anti-Normanicum and Mr. Petyt in his Rights of the Commons asserted have writ largely to prove That the Conqueror made little Innovation in our Laws and on the contrary the profoundly learned (m) Answer to Petyt p. 14. Great Officers Normans Doctor Brady hath from undeniable Records
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
a se primo essent ordinata Eadmer tells us That when the Archbishop of Canterbury presided in a general Council of the Bishops the King permitted him not to appoint or forbid any thing but such things as were agreeable to his will and by himself were first ordained Also he saith in all his Dominions he would allow no Bishop of Rome to be accounted Apostolic but whom he commanded to be received nor any to receive his Bulls or Breves unless they were first shown to him I have in the beginning of this Chapter spoken something of the Mutations that William the Conqueror made in the Constitution of the Government of England concerning which I shall only note That the Conqueror took all the care that a great Commander and Conqueror of a great Nation could do for securing his Conqests (p) Pictav fol. 197. C. Ingulph 512. a lin 7. What the Conqueror did to secure his Conquest by building Fortresses and Castles within the City of London and placing Norman Garrisons and French Governours or Castellanes in the Castles in the Country and giving them great Estates and carrying the chief of the English Nobility with him as Hostages into Normandy and imposed his Laws as Pictavensis relates (q) Id. fol. 2â—6 a. 207 c. 2â—8 a. b. and though he who was Chaplain to the Conqueror speak of the Conqueror's smooth behaviour to the English ordering things as he saith prudently justly and mildly some to the Profit and Dignity of the City some to the advantage of the whole Nation and other some to the benefit of the Churches of the Land and whatever Laws he dictated he established with excellent reason and adds That no French-man (r) Nulli tamen Gallo datum est quod Anglo â—uiquam injuste fuecit ablatum Idem fol. 208. c. had any thing given him which was unjustly taken from any Englishman which last Ordericus Vitalis omits though in other things he follows Pictavensis exactly yet Pictavensis writing but to the Fourth of his Reign Anno 1070. as is noted by Ordericus we must look upon them as incompetent Witnesses of the severity the Conqueror after used when he had secured his Conquest So that what is urged by some of the Conqueror's lenity and his little change of Laws and Government is to be understood of those times while he was unsafe in his Conquests and doth not so interfere as they would make the World believe How he comported himself after he had secured his Conquest with the assertion of those who from credible Authors speak of his treating the English as a Conquered People For Pictavensis (s) Jure Belli possedit fol. 206. a. saith that he possessed the Country by the rights of War Ordericus (t) Adjutoribus suis inclytas Angliae Regiones distribuit ex insimis Normannorum Clientibus Tribunos Centuriones ditissimos erexit Orderic Vit. 251. Vitalis saith That having circumvented the two great Earls of Mercia and slain Edwin and imprisoned Morcas then he began to shew himself and gave the best Counties of England to his Assistants and of the lowest of the Norman Clients or very mean People he made very rich Colonels and Captains as he particularizes there and in another (u) Fundos eorum cum omnibus divitiis obtinâ—imus Id. fol. 853. place That having overthrown by Force and Arms the English Saxons they obtained their Lands and all their Riches Malmsbury (w) Malmsb. fol. 52. a. num 40. Vix aliquis Princeps de progenie Anglorum esset in Anglia sed omnes ad servitutem moerorem redacti essent ita ut Anglieum vocari opprobrjum saith That there was no Englishman Duke or Bishop or Abbat but Strangers do gnaw the Riches and very Bowels of England So (x) Hen. Hunt fol. 210 b. num 10. About the continuing the English Saxons but changing their Tenures Services c. Hen. of Huntingdon saith there was scarce any Prince of the Progenie of the English but all are reduced to Servitude and Sorrow so that it is a disgrace to be called an Englishman and Gervase of Canterbury saith That he used both Ecclesiastick and Secular Rights or Laws as he pleased tam Ecclesiastica Jura quam secularia sibi usurpavit As to King William's displacing of the Saxons I find in the Transcript of Doomsday-Book that I have for Yorkshire that very many enjoyed the same Lands they did in Edward the Confessors time but I remember no where that I do not find them hold of some Norman Lords which is agreeable to what Dr. Brady writes but I refer the Discourse of those to my Antiquities of Yorkshire if God give me life and ability to publish them As to the Conqueror's changing the holding of Lands here to the (y) Spelman Gloss Feodam Feudal Tenure used in Normandy begun by the Germans Longobards Francks and others and of which something seems to be hinted in the English Saxon Laws all Authors do conclude that the Conqueror brought the exacter use at least of them into England and divided the whole Land into several Knights-fees whereof there are reckoned 700 Tenants in Capite besides Bishops Abbats Priors and great Church-men and the Laws of King Edward that the Conqueror permitted to be used were either most of them Penal Laws from which he got profit or such as are properly his own and were efficacious for the preservation of the Peace and establishment of Government as the 52 55 56 58 59 64. whereof the 55 58 and 59. are Feudal How William the Conqueror brought in his other Norman Laws Dr. Brady in his Preface to the Norman Story hath at large discoursed so that in Justice I must refer the Curious Reader to his elaborate work and to Mr. Selden in his Second Book of his Janus Anglorum Of the Great Councils in William the Second's time IN the Reign of William Rufus we find few Great Councils So that Anselm Archbishop of Canterbury complains (a) Eadmer Hist Nov. lib. 1. fol. 24. lin 8. to him when he was preparing to pass into Normandy that since he was King there had been no General Council of the Bishops nor of several years before so that Christianity was much decayed The first great Council I have met with is that of Winchester (b) Idem fol. 20. num 30. Anno D. 1093. 5 W. Rusi The Contest betwixt William the Second and Anselm This Council is only thus expressed Rex adunato Wintoniae conventu Nobilium without specifying either Ecclesiasticks or Laicks In this Council the King declared Anselm Archbishop and he did Homage to him (c) Idem p. 26. num 10.6 Gul. 2. This Anselm sought leave of the King that he might go to Rome to receive the Pall from Pope Vrban whom the King did not own for Pope but Clement This and some other Matters occasioned sharp words and unkindness from the King to Anselm the King absolutely denying
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
reason because it passed under his Broad Seal Likewise when the Constitution of Parliament was altered 49 H. 3. whereby in place of the Tenents in Capite which were numerous two Knights were chosen probably by the rest of the Tenents in Capite for the Shires and two Citizens and two Burgesses for Burroughs to represent all those that held in Capite and it is likely all other their Subfeudatary Tenents yet the number was not constantly observed there being sometimes Knights and no Citizens or Burgesses sometimes one Knight one Citizen and one Burgess other times two or three Knights left as it seems to the Sheriffs or the Chusers Election till after it was fixed as it now is for two Knights two Citizens and two Burgesses unless in some places of Wales where to this Day some two or three Burroughs chuse but one or two Burgesses Likewise it is worth the observing how gradually the Advice and Assent hath pass'd from the Advice of the Bishops and Nobles to the Assent likewise and sometimes at their request only the King ordains and then from the Potition of the Commons to their joyning in Advice and after to their Assent and many other material progressive alterations which in this recapitulation I cannot insist upon till it hath come to that constitution so much to be valued by all wise Englishmen as it is the product of the generous condescensions of Gracious Kings and the wise contrivance of our considerate Ancestors Therefore I shall now pass to consider our present Constitution of Parliaments CHAP. XXVIII Of the modern rightly constituted Parliaments SECT 1. Of the General Vse of Parliaments I Have before given an account how the Persian Laws were made by the (a) Daniel cap. 6. v. 7 8. King his Princes Governours Nobles and Captains as in a great Council of several Orders with the Sovereign but we have an older example in Scripture Great Councils in Scripture that seems to be the Pattern of all great Councils such as we call Parliaments under a Monarchy For it is said (b) Legem praecepit nobis Moyses haereditatem multitudinis Jacob. Erit apud rectissâ—â—um Rex congregatis Principibus populi cum Tribubus Israel Deâ—â— cap. 33. v. 4 5. Moses commanded us a Law even the Inheritance of the Congregation of Jacob and he was King in Jesurun when the Heads of the People and Tribes of Israel were gathered together Here is the King Moses commanding a Law and the Heads of the People the Princes or House of Lords and the Tribes that is some to represent the chief of the Tribes like our House of Commons The Roman Senate under the Emperors resembled our ancient Great Councils that consisted of such as the King convened and of the Patrician and Equestrian Order The Comitia bore no resemblance with our Commons and the Amphictyonican (c) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Assemblies the Achaian Booâ—â—an and Pan Aetolian were Assemblies of Deputies as the States General of Holland Such Assemblies in all sorts of Governments are necessary Necessary in all Governments for be the Empire never so vast and the Sovereigns Power never so great and uncontroulable yet without Consultation had with the Princes and wise Men for the constituting Laws and modelling the frame and methods of his Government it would soon without such (d) Vis consilii expers mole ruit sua Horat. lib. 3. Od. 4. Buttresses and Undersetters sinking in its Foundation by its own weight with an hideous rush be crushed into an heap of Rubbish In Democracy Great Councils are needful that thereby the (e) Plato de LL. In Democracy Male cuncta ministrat impetus Statius Precipitancy and fury of the Common-People by their gravity may be attempered the common sort being apt to do every thing with a willful Violence which never succeeds well when not directed to a right end If their publick affairs were not committed to a select number of Trustees nothing would be brought to any Issue since none can be heard where all speak nor any good Product be from a jumble of those Atoms Aristocracy it self consists in a select number of the wisest and ablest to govern In Aristocracy who in publick Consultations have no private ends Yet in the great Councils of neither of these forms of Government is there to be found that stayedness orderliness or resolution for the public good as in Monarchy Why such Assemblies are not only convenient In Monarchy but necessary under Monarchy there are many weighty Reasons (f) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Xenoph. Cyropaed 8. Satisfactory to the Subject Xenophon observes that a single Person sees or hears but little and Princes must have many Eyes and Ears which in a special manner these Great Councils are from all parts of the Dominions bringing notice of what is amiss and wants redress as well as what is orderly and wants encouragement Besides Princes thereby have the opportunity to give their Subjects satisfaction in their Administration preventing the surmises and jealousies of the Nobility Gentry and common People that he sleights them in not calling them sometimes to consult about affairs of Moment Furthermore the Prince by such congress The Prince thereby knows the Worthy Subjects consults his own Interest in coming to the Knowledg of the most able active and popular Subjects whereby he may single out such as are most fitted for public Imployments to serve him in the several offices of Government and all who thus have a share in the debating and consulting about Laws will not only be witnesses of the Prince's Grace and Favour in granting such as they have desired and assented to but will be so many Heralds of his Wisdom and care of his Peoples good Government and so many vigorous enforcers of the Execution of those Laws they have so lately assisted to prepare Likewise The Prince is skreened from Obloquy as Privy-Counsellors and other Officers are sometime as Skreens to Princes to ward off the Obloquy of the Mobile when something is imposed that may be wholesome though something bitter to their Palates So especially are these great Conventions necessary where useful Laws though severe are to be enacted Money to be raised or other Impositions laid upon the People who do much more chearfully and less repiningly obey when they know (g) Tum caetera parit Turba libens subit propriis quia legibus acta the Nobility and their own Representatives have judged them convenient All Men naturally loving that such Impositions may immediately result from themselves rather than they should be enjoyned by the Princes Arbitrary power according to that of Claudian Observantior aequi Fit Populus nec ferre negat cum viderit ipsum Auctorem parere sibi The General use of good Parliaments is summed up in the (h) MS. Speech An. 1562. The general Benefits of Parliaments Chancellors Speech 2 Eliz. thus That the principal cause of their
Prince should be limited from using the legislative Power without concurrent assent of the Peers and Commons By which means the constitution of our Parliaments is so equal and geometrical and all parts so equally contribute their Offices that no part can have an extream predominance over other Therefore to prevent any evil that might come by the admission of two such Bodies to a participation of Power in this particular of making Laws if they should combine against the Soveraign the Law gives them an equal Power to assent or dissent The Ballancing of the Powers in Parliament so that opposing the single Power of every one of them to the Votes of every other two there might be so secure a balancing of the Power of one against the other that no practice of any two of them should do any prejudice and diminution to the third without the third Party it self did give consent unto it otherwise the King and Peers might oppress the Commons the King and Commons oppress the Peers or the Peers and Commons oppose the King and the Peers being easily oppressed by the Commons as we saw in our late calamitous Times an Appian Decemvirate or the 30 or 300 Tyrants might get the Power into their own hands In another place he saith Though properly Laws be the Acts of the King in Parliament yet are they also truly the Acts of the whole Parliament because every of the Estates contribute their Power according to the diversity of their Office and Interest and so as from a sacred Tripos the civil Oracles of the Law are delivered It is therefore to be considered saith a Judicious (m) King's Supremacy asserted c. 9. p. 96. where the Reader may find a full Answer to the Deductions they make from the King's way of arguing Author in answer to some other passages of his Majesty that the Parliamentarians wrested That if his Majesty out of a desire to save the effusion of Blood used such gracious Expressions as were most likely to prevail with the People and consolidate their Minds they ought not in Equity to prejudice the Rights of the Crown although he had abdicated therein some parts of his Authority and granted things destructive to his own Prerogative From his Majesties saying That the Power legally placed in both Houses is more than sufficient to prevent and restrain the Power of Tyranny they infer This cannot be made good without a Power of Resistance for that Tyranny cannot otherwise be restrained Which is easily answered For it cannot be understood that the King means by this a forceable resistance or restraint (n) Id possit quisquam quod jure possit but a legal one so far as Humane Prudence can by lawful and just ways provide The Power they have by Law being to inflict punishments on evil Instruments whereby others may be afraid to take upon them such Imployments and they may refuse to give the King Subsidies and other necessary Assistance if he refuseth to moderate excesses which are Powers more efficacious than resistance the success of the one being more probable and likely than the other However The not asserting of King Charles the First 's Prerogative disadvantagious in my poor opinion it had been more honourable and probably more efficacious to have spent less time in this kind of defending the Kings Interest by the Pen and have imployed it in asserting the true Prerogative of the King and his undoubted Rights to have let the People as well as the Houses know what he would reform and out of Princely Clemency grant for his Peoples ease and at their earnest Petition but neither to have depreciated or descended so much below the Majesty and Dignity of his place to enter into Reply and Duply Altercation and Apologies with his Subjects But that King composed all of Mercy Justice and Tenderness to his Subjects judging others by his own Royal Standard of Integrity let the Houses seize his Ships Magazines and left them the City of London's Purse while he retired to the North and plied the Houses with Declarations and Messages to have reduced them to their Duties and though his condescensions were great and the way of Argument such as before I have instanced in yet I cannot find except in that particular of making himself one of the three Estates that he yielded any part of his Royal Prerogative till he was made Prisoner that in his restraint he condescended to a temporary divesting himself of the Militia and other things which all sorts of Subjects except the very chief of those in Rebellion against him found infinitely more tending to the enslaving and utter ruine of the People than ever they could have been if the King had managed all by his absolute Will and the direction of those they accounted his worst Instruments I having in several places cleared the Kings Soveraignty shall only on this Head endeavour to answer the principal of those popular Reasons the Writers for the Parliament used not grounded upon any Law or Constitution of the Government but only upon the false supposition That the Wisdom of the two Houses was to be valued above the Wisdom of the King and Council in proposing matters for the Royal Assent which were conducible to the Liberty of the Subject which they pretended was their whole design and that they would establish the Kings Throne in more Glory and Splendor than had ever been in any Ages The first and principal Topick they used was The Monarchy of England not mixed That the Monarchy of England was in its Constitution allayed and the Power of the two Houses in making Laws had such a Copartnership and radical mixture that they had something more than a Consultive and Assenting part and that the King was oblig'd in the duty of his Office and by his Coronation Oath to grant what they desired Mr. Sherringham (o) King's Supremacy asserted p. 74. hath culled out the prime Arguments of the Author of the Treatise of Monarchy The fuller Answerer and others upon this Head and so fully answer'd them that I must refer the Reader to him for satisfaction and shall only select some of the chiefest of these Arguments more for the orderly continuance of this Discourse than for any need of repeating them First They say That King Charles the First owned the Law (p) Declaration from Nâ—wmarket 9 March 1641. to be the Measure of his Power and if so it is limited But this concludes no more than that his Power is of such a size and bigness as the Law hath ordained and if the Law give the King absolute full and entire Power and limits him only in the exercise of it this is a restraint and limitation according to such Laws as the Soveraign hath established in that particular alone and is the happiness of the English Subject that Kings act not Arbitrarily but this gives no Power to the two Houses to be any checks upon
expelled the House but if a favourer of the Cause he was never recriminated with that or any other by-past or present ill disposition In such Assemblies there often happen one sort of People who are always representing grievances complaining of Male-administration troubling the Church and State shaking up the Lees and Dregs in the richest Vessel of Wine these have learned to catch Eels Tacitus notes the corruptions of the Roman Senate The Corruptness of the Roman Senate which necessitated the change of that State into a Monarchy under Augustus fully significantly and concisely after his manner Suspecto Senatus Populique imperio ob certamen Potentium avaritiam Magistratuum invalido legum auxilio qua vi ambitu postremo pecuniaturbabantur The Provinces observing in this Supremacy of the Senate and People the contests of the most Powerful the Covetousness of the Magistrates the feeble help the Laws afforded by the Arbitrariness of the Senate we may presume by what force and moyen and lastly how all things were distracted by Bribery they were the more easily induced to admit of one Soveraign These particulars were most obvious in the fatal House of Commons Besides these things I have hinted at Of cunning and designing Men. in such a body as we are speaking of where there cannot want men designing some dangerous Revolutions for the establishing their own greatness though some few wise men may be apprehensive of their designs yet we know maxima est pars artis celare artem Such contrivers will be sure by all imaginable Arts to conceal their intentions and obtain an Ascendent over the Judgment of the gross Body who either are not so quick-sighted or aiming at no such things themselves judge others candor by their own and so by their helps the designers may carry the Vote against even such as penetrate further into the aims of the Contrivers than the Majority do so that those that have good ends may be hood winked by others whose ends are worse Fallit enim vitium specie virturis umbra and private ends will steal upon well affected for all grand Conspiracies are veiled under the Mask of Reformation of removing Grievances and evil Counsellors Gallant and vertuous actions do not more often ingratiate men with such a mixed body than a rolling Tongue a precipitate Head vain-glorious profusion oyly insinuations feigned devotions sufferings though deserved from Superiours and above all opposition to the present State So the memorable long Parliament of 1641. by the specious pretences of redressing Grievances The specious Pretences of the Long Parliament taking care of the Public and particularly of the Liberty of the Subject and their Privileges together with vehement Expressions of their Resolutions of Establishing the Kings Throne upon more firm foundations of the peoples Hearts and Affections by insensible Screws wound themselves into the credit of Patriots and being thereby able to carry a numerous party with them in all their Votes by little and little made such encroachments upon the Soveraignty that having undermined it past support they took the advantage of its fall and ruine out of the same specious pretence that the Commonwealth might suffer no detriment to propose their long designed Model of Government not as by them forethought on but as a necessary expedient to accomplish the end as they pretended they had all this while been aiming at viz. the Peoples prosperity which 〈◊〉 they endeavoured to make the World believe they were most Zealous for when God knows the upshot of all was the total dissolution of the best constituted Government and the Establishing themselves a fattened Commonwealth out of the rich spoils of Monarchy Yet these very men were they who some years before possessed as many as they could delude with an opinion Their Hypocritical Promises that none knew better nor affected more the sweetness of so well ballanced a Monarchy than they and that the Kings just Authority was Sacred to them that they would make him more rich and glorious than any of his Predecessors The Observer told the World That it had been often in the Power of former Parliaments to load the Government with greater Fetters and Clogs but they would not and that change of Government could not be in their desires because the advantage of the Lords and Commons in the State was so great that no change of Government could better them except each one could obtain an hereditary Crown But these were but vain flourishes and empty aiery offers success altered their Principles and they were ill troubled to find out excuses and evasions after the Murther of the Blessed King and change of Government for these their so hypocritical Declarations From all which I shall only desire that Posterity may be cautious how they credit the truth of those who in such Conventions are the most active for any Innovation if they see that they zealousliest pretend some greater happiness to the People by lessening the Authority of the Crown It is reported of Frederick the Emperour (c) Aeneas Sylvius de diaetis Fred. Imp. that in the Speech to the Senators he desired them before they entred into the House of their Assembly they would leave two things behind them and then they would give right Judgment and being asked what those were he told them Simulatio dissimulatio Counterfeiting and Dissembling Another of their Arguments How many Counsellors may mislead for the preference of the Houses Counsel before all other Councils was that many Eyes of so many choice Gentlemen from all parts see more than fewer which Sophism easily midwived in the conclusion that then the two Houses judgment of Affairs was to be preferred before the King and his Privy Councils and the Commons before the Peers and by a parity of Reason though they desired not it should be urged so far home that the body of the People was to be preferred before the Commons House which might be urged upon as common a Proverb That By-standers see more than Gamesters But who are so blind as those that will not see Those very Seers if they would have made use of their Eyes to have perused the Histories of former Ages on what specious pretensions Rebellions had begun and how the Laws had settled the Government in an unparallel'd security of the Peoples Rights as well as the Prerogative of the Crown or by serious consideration foreseen the certain and inevitable miseries that would follow the weakning of the Crown and the necessitating the King for his defence to take up Arms these quick-sighted Commoners might have prevented all those Calamities that ensued The Elected like the Electors Whoever considers how easie it is to possess a People with prejudices against the Government of which elsewhere I must enlarge will soon find that it is no difficult matter to have such Elections of Members as were like to be of the same perswasion with the Electors So that
infallible and every Member an Angel But the Observer Objection That if the King have a Negative Voice there will be no need of Parliaments and his Pewfellows urge That if the Houses can do no Act for publick good without the King's consent and if the King may reject their Counsels and Advice it were needless to put the Country to the charge of choosing Members of Parliament And if the King may prefer other opinions before Parliamentary Motives then Parliaments are vain and useless helps Princes are unlimited and the People miserable These Objections are of such an odious nature Answer That no good Subject can take delight in them whose duty is to pray for the like consent among the several Orders of the Kingdom as is supposed to be among the several Orbs of Heaven The King undoubtedly the Primum movens the Great and Privy Council the lower Spheres The usual but not the only form of the Kings Answers to such Bills as they were not willing to pass Le Roy s'avisera proves (e) Answer to Observations p. 56. That after the advice of this his Great Council he is yet at liberty to advise further with persons or occasions as his own Wisdom shall think meet But these Authors will by no means take notice That the use of Council is to perswade not to compel as if a Man in business of great concernment might not very prudently consult with many Friends and yet at last follow the advice perhaps of one if it appear more proportionable to the end he aims at If it were because they are a more numerous body therefore their Counsel is upon that account to be yielded to then the liberty of dissenting may be denied to the House of Peers in comparison of the House of Commons and to that House too in comparison of the People and so both King Lords and Commons are voted out of Parliament Besides Natural Wisdom and Fidelity there is a thing called Experience of high concernment in the managery of Publick Affairs He that will steer one Kingdom aright must know the right Constitution of all others their Strength their Affections their Counsels and Resolutions that upon each different Face of the Skie he may alter his Rudder The best Governments have more Councils than one One for the Publick Interest of the Kingdom another for the Affairs of State a Council for War and a Council for Peace Let them be as wise and faithful Counsellors as the Observer pleaseth only let them be but Counsellors Necesse est us Lancea in libra ponderibus impositis deprimi sic animum perspicuis cedere Let their conlusions have as much credit as the premisses deserve and if they can necessitate the Prince by weight of Reason and convincing Evidence of experience let them do it on Gods name But it is not to be done upon the Authority of a bare Vote as I think all uninterested persons are satisfied in the Votes of the Houses in 1641. about the Militia Church-Government and the voted Nineteen Propositions or the late Votes about the Bill of Seclusion the Repealing of the branch of the Statute of Queen Elizabeth against Protestant Dissenters and the Loans upon the Kings Revenue There are other ends besides Counsel for which Parliaments are called as consenting to new Laws furnishing the Public with Moneys and maintaining the Interest of the Government and liberty of the Subject from the removing one social end to inferr that an Action is superfluous deserves no answer but silence and contempt This should teach the Electors Wisdom not to chuse such as have Factious Bents or are not truly qualified in their Allegiance to their Prince or Malecontents who render such Conventions useless to the Publick Ends of Government and the Peace Tranquillity and Prosperity of both Prince and People Because the Long Parliament Writers would have no Stone unturned nor any specious Argument uninforced Concerning the Coronation-Oaths of the King of England that might bring the King to their Lure to consent to what they proposed they endeavoured to make the World believe that the King was bound by his Coronation Oath to pass all such Bills as they presented or tendered to him grounding as Mr. Prynne and others alledged on a promise of the Kings at his Coronation to grant and keep the Laws and Customs which the Commonalty shall chuse Before I come to give the particular Answer I think it not unfit to take this opportunity to give a full account of the Coronation Oaths of our Kings and how the same from Age to Age were varied by which the Ingenious Reader will find what the respective Kings by their Oaths did promise That I may deduce as high as I have yet found the Original of Soveraign Princes taking Oaths at their Coronations it may be noted that the first Emperor that was Crowned and had any Coronation Oath prescribed was (f) Evagrius Hisâ— Eccles lib. 3. c. 32. Who first took a Coronation-Oath Anastasius the Greek Emperor who being elected by the Senate and Soldiers about Ann. 486. Euphemius Patriarch of Constantinople suspecting him to be addicted to the Heresy of Eutychius and the Manichees would not consent to his Coronation till he should deliver him a Writing under his Hand ratified with his Oath wherein he should plainly declare That if he were Crowned Emperour he would maintain the true Faith and Synod of Chalcedon during his Reign and bring in no Novelty to the Church of God This Writing ratified with his Oath Macedonius the Treasurer was to keep and after he was made Patriarch the Emperor demanded it and said It was a great discredit unto his Subjects that his Hand-writing should be kept to testifie against him or that he should be tied to Pen and Paper There is no mention of any Coronation Oath used from thence to the Year 804. that (g) Eutrop. lib. 24. p. 145 146. Zonar Annal. tom 3. fol. 142 143. Imperatorio Diademate est ornatus postulato prius scripto quo promitteret se nulla Ecclesiae statuta violaturum Stauratius Son to Nicephorus slain in his Wars against the Bulgarians being declared Emperor by some Michael Curopolata was adorned by the Patriarch with the Diadem a Writing before being desired in which he promised to violate none of the Statutes of the Church c. Which is the first Precedent of a Promise not an Oath demanded from or given by any Roman King for confirming the Laws of the Church c. The first Emperor Crowned at Rome by any Pope (h) Onuphr was Charles the Great Anno 800. but without an Oath and Henry the Fifth (i) Dicens Imperatorem nemini jurari debere cum juramentorum sacramenta ab omnibus sint sibi adhibenda Hermold Chron. Scl. l. 1. c. 40. Sim. Dunelm 232 237. refused to take any Corporal Oath saying That an Emperor ought to Swear to none for that Oath i. e. of Fealty
ought to be made to him from all I shall not with Mr. Prynne in his Epistle Dedicatory to his third Tome of Chronological Vindication meddle with the dispute how the Canonists argue from the Popes Crowning of Emperors and Kings that they acquire a Spiritual and Temporal Monarchy over them as their Sovereign Lords For that however some may hold the Doctrine yet it is exploded by most As to the Crowning and Anointing of some British and Saxon Kings I must refer the Reader to Mr. Selden (k) Tit. Hon. part 1. c. 8. fol. 149. and Mr. Prynne in the forecited Epistle The first of our Kings that is recorded in History to have taken an Oath at his Coronation was Canâ—tus of whom Sim. (l) De Gestis Regum Agg. col 173. Wigorn. Chro. 384. Dunelmensis and others give this account That after the death of Aethelred the Bishops Abbats Dukes and the Nobles of England and the most part of the men of the Kingdom as well of the Clergy as Laity met together with one consent at Southampton and chose Canutus for their King and swore Fealty to him to whom he also swore Quibus ille juravit quod secundum Deum secundum seculum fidelis esse vellet eis Dominus King Canutus his Oath that according to God and the World that is the Laws of God and the Kingdom he would be a faithful Lord unto them Mr. Prynne here noâ—es that Usurpers more frequently used to take such Oaths than lawful hereditary Kings So when the Citizens of London and some few Noblemen with unanimous consent chose (m) Clitonem Eadmundum unanimo consensu in Regâ—m levavere Matt. Westm p. 410. 411. Edmond called Ironside the eldest Son of Aethelred who was right Heir there is no mention of an Oath So when Harold reputed Son of Cnute was Crowned there is no Oath recorded nor of any taken by Hardicnute right Heir of Cnute So Anno 1041. (n) Flor. Wigorn. Chro. p. 404. Edward the Confessor 's Oath Edward the Confessor annuente Cleno Populo Londoniis in Regem eligitur and was Crowned Anointed and Consecrated yet not any of our Historians besides William of Malmsbury de gestis Regum Lib. 2. c. 13. p. 80. speaks of an Oath who saith that he being sent for by the Nobles upon terms proposed to him by Earl Godwyn there was (o) Nihil erat quod Edwardus pro necessilate temporis non polliceretur Ita utrinque fide datae quicquid petebatur sacramento sirmavit nothing that King Edward did not promise by reason of the necessity of the time so that Faith was given by either Party and what was desired he confirmed by Oath but this was in their private Consultation Yet Archbishop (p) In Regem Angliae sublimatus prius juravit se Leges Canuti inviolabiliter servaturum Spelm. Conc. tom 2. p. 342. Stratford in his Epistle to King Edward the First saith that St. Edward being raised to be King of England first Swore inviolably to keep the Laws of Canutus We find no Coronation Oath of Harold mentioned Matt. Westm Flor. Hist p. 433 saith that extorta fide a Majoribus Capiti proprio imposuit Diadema that having exacted Fealty of the great Men he put the Crown on his own Head and after when Crowned by Archbishop Alfred William the Conqueror 's Oath he took no Coronation Oath but as my Author saith Leges aequas coepit condere (r) Elo. Wigorn. Chro. p. 412. Hoveden part Annal. prior p. 450. Stubs Acta Pontif. col 1702. Coram Clero Populo jurando promittere se velle sanctas Ecclesias Rectores earum defendere necnon cunctum populum sibi subjectum justa Regali providentia regere rectam Legem statuere tenere Rapinas injustaque judicia penitus amovere interdicere Sim. Dunelm col 195. num 43. As to King q William the Conqueror Aldred Archbishop of York Crowned him and imposed on him an Oath The words of the Authors are Ipsa nativitatis die ab Aldredo Ebor. Archiepiscopo apud Westmon in Regem totius Angliae sublimiter Coronâ—um inunxit consecravit honorifice Having before as 〈◊〉 Archbishop required from him before the Altar of St. Peter the Apostle before the Clergy and People by Oath promised That he would defend Holy Church and the Governours of it which Clause occurs not before and likewise govern all the People subjected to him with a Just and Regal Providence and appoint and hold right Law and wholly remove and interdict all Rapines and unjust Judgments The Oath which he took to observe St. Edward's Laws was afterwards Anno 1072. when he entring into a Parly with the English Nobility who intended to have set up Edgar Atheling because King William had violated their ancient Laws and introduced new ones he by the Advice of Archbishop (r) Man Paris vita Fritherici Abbatis 13. St. Albani p. 30. Lanfrank Swore that bonas antiquas Leges Regni sc Leges quas Sancti pii Angliae Reges maxime Rex Edwardus statuit inviolabiliter observare Only William of Malmsbury (s) Modeste erga subjectos ageret aequo jurâ— Anglos quo Francos tractaret De Gestis Pontif. lib. 3. fol. 154. saith that Aldred the Archbishop would not consecrate him before he had exacted from him before all the People this Oath That he would modestly deport himself towards all his Subjects and with an equal Law treat the English as he did the French William Rufus promised to Lanfranck (t) Justitiam aequitatem misericordiam se per totum Regnum si Rex foret in omni negotio servaturum pace libertatem securitatem Ecclesiae contra omnes defensurum Eadmerus Hist Novel lib. 1. p. 13 14. If he were King King William Rufus's Oath in all his Affairs through all his Kingdom to preserve Justice Equity and Mercy and to defend the Liberty and Security of the Church in Peace against all H. Huntingdon Lib. 7. fol. 213. b. and Hoveden Anno 1088. fol. 264. b. say That when he needed the help of the English he promised them such desirable Laws or better than they would chuse But Malmsbury and others say he kept them not for Usurpers such as he was rarely observe the Laws or their Promises further than they serve their own Interest Therefore Mr. Prynne notes that the Promise Eadmerus and (u) Col. 214. Simeom Dunelm mention was before he was King and the other Promise was when most of the Norman Nobility except the Archbishop Lanfranck designed to make Robert his Brother King and then he called them together and then told them If they would be Faithful to him (w) R. Hoveden part 1. Annal. p. 264. b. num 20. Meliorem Legem quam vellent eligere eis concederet omne injustum Scottum interdixit (x) Lib. 7. fol. 213. b. Huntingdon saith the promised
Second as they found it in the Latin (o) Cl. 1. R. 2. m. 44. Records therefore before I apply those it is needful to note the Latin which as we find it 1 R. 2. was this Capto per Archiepiscopum Cantuar. Sacramento Dom. Regis Corporali de concedendo servando cum sucra confirmatione Leges consuetudines ab antiquis justis Deo devotis Regibus Angliae Progenitoribus Plebi Regni Angliae concessas praesortim leges consuetudines libertates a gloriosissimo sanctissimo Rege Edwardo Clero Populoque Regni praedicti concessas servando Deo Ecclesiae Sanctae Domini Cleroque Populo pacem concordiam integre in Deo juxta vires suas de faciendo fieri in omnibus judiciis suis aequam rectam Justitiam discretionem in misericordia veritate otiam de tenendo custodiendo justas Leges Consuetudines Ecclesiae de faciendo per ipsum Dom. Regem eas esse protegendas ad honorem Dei corroborandas quas vulgus juste rationabiliter elegerit juxta vires ejusdem Dom. Regis This is an additional Clause This is verbatim the Latin for the preceding French except in the additional Clause and the Conclusion which makes the just Laws and Customs both to relate to those of the Church and those that the Vulgar shall have justly and reasonably chosen The like we find (q) Rot. Parl. 1 H. 4. num 16 17. 1 H. 4. and in the Pontificale of the Archbishops and Bishops and it is added after the King hath King Henry the Fourth's Oath as before expressed answered to the Proposals Pronunciatis omnibus confirmat Rex se omnia servaturum Sacramento super Attari praestito coram cunctis i. e. that the King by his Oath taken upon the Altar before all present to observe these confirms them The Solemnities and Ceremonies used at the Coronation of King Richard the Second may be perused at large in Tho. (r) Hist Aug. fol. 194 195. Juravit coraem Archiepiscopo Proceribus qui ibi aderant quoniam ipsi solum ejus Juramentum audire potuerunt Walsingham and he saith he swore before the Bishops and Nobles there present for they only could hear his Oath that he would permit the Church to enjoy its Liberties and would honour it and its Ministers that he would hold right Faith and would forbid Rapines and all Iniquities in all their Degrees 2ly That he would make to be kept every where the good Laws of the Land and especially the Laws of St. Edward King and Confessor who was buried in that Church and would make all evil Laws to be abrogated 3ly That he would not be an accepter of Persons but would make right Judgment betwixt man and man that especially he (s) Praecipue misericordiam observaret sicut sibi suam indulgeat misericordiam clemens misericors Deus would observe Mercy as the Clement and Merciful God might grant Mercy to him Having thus given an account of these Coronation Oaths I come to the Objections First They (t) Prynne's Treachery and Disloyalty Answer to the Objections about the Words Quas vulgus elegerit say that the word Vulgus doth signifie the two Houses and the word elegerit is to be taken in the Future Tense so that the King is obliged to consent to such Laws as the two Houses especially the Commons do chuse It is a wonder to me how men that pretended to any reading or learning in Antiquities or in the Constitution of the Government could defend their Cause with such pitiful Reasonings especially against King Charles the First who neither had taken such an Oath nor many of his Predecessors before him The Latin Translation of two French words gave all the occasion of dispute for that which is called Communate is rendered Plebs and Vulgus and aura eslu is translated elegerit whereas were it to have been understood in the Future Tense it should have been eslira and agreeable to that in all the Authentick Records of the Exchequer the word elegerit is Englished in the Preterperfect Tense Thus much may suffice as to the word elegerit Dr. Brady's Glossary will satisfie the Curious about the import of the word it self Concerning the word Vulgus one solid (u) Freeholders Grand Inquest b. 46. What meant by Vulgus according to the Opinion of some Author saith That we may be confident that neither the Bishops Privy Council Parliament or any other whosoever they were that framed or penned this Oath ever intended in this word the Commons in Parliament much less the Lords they would never so much disparage the Members of Parliament as to disgrace them with a Title both base and false It had been enough if not too much to have called them Populus the People but Vulgus the Vulgar the rude multitude which hath the Epithete of ignobile vulgus is a word as dishonourable to the Composers of the Oath to give or for the King to use as for the Members of the Parliament to receive therefore he judgeth that by Vulgus must be meant the Common People not the Lords and Commons But then saith the same Author the doubt will be what the Common People or Vulgus out of Parliament have to do to chuse Laws In answer to which the preceding word is to be considered Consuetudines quas Vulgus elegerit the Customs which the Common People have chosen If we observe the nature of Custom Customs chosen by the Vulgar or Common People it is the Vulgus or Common People only who chuse Customs Common usage time out of mind creates a Custom and the commoner the usage is the stronger and the better is the Custom No where can so common an usage be found as among the Vulgar who are still the far greatest part of every multitude If a Custom be common through the whole Kingdom with us it is all one with the Common Law of England which is often called Common Custom so that to protect the Customs which the Vulgar chuse is to swear to protect the Common Laws of England Agreeable to this is what the learned Dr. Brady (w) Glossary p. 36. notes That upon the whole it signifies no more than that the Community had chosen that is owned submitted to and desired still to use their Old Customs which by use time out of mind they had enjoyed for the better management of Affairs and Conveniency betwixt Man and Man all the Nation over or in any particular County Hundred Town City or Burrough such long practices being the foundation of all Customs but these are to be just which intrench not upon the Government or Laws and by permission and sufferance only become Laws But the same (x) Id. p. 35. Author judiciously affirms That the Community here intended was the Community of the Bishops What meant by the Community Abbats Priors
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
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
saith That Enrollments (l) Pur le Enrolments de Pardon de Roy in le Chancery en temps le Roy Alfred of Pardons of the King were in the Chancery in the time of King Alfred Altho' Mauricius Regis Cancellarius by that title subscribes as witness to the Charter of King William the Conquerer to the Abby of Westminster yet none of these prove that such a Court was in those Ages constituted as we now call the Chancery For Sir Henry Spelman (m) Gless p. 107 ◠proves the Chancery was no Court but only the Ship as he calls it of the Kings Writs and Charters in old time now consisting of three Parts sc è Collegio Scribarum Regiorum è Foro Juris communis è Praetorio boni aqui Mr. Lambard (n) Archaion p. 62 63. hath proved that till the Reign of King Edward the First we find nothing of the Chancellors hearing and determining of Civil causes for till then the Justiciarius Angliae had the great Power Sir William Dugdale 's Origines Jurid fol. 36. b. which being then restrained ad placita coram Rege tenenda the King together with the trust and charge of the Great Seals appointed him to represent his own Royal and extraordinary Preheminence of Jurisdiction in Civil Causes and he gives this particular reason for his opinion That Britton a Learned Lawyer in Edward the First 's time writing of all other Courts from the highest Tribunal to a Court Baron maketh no mention of this Chancery Yet towards (o) 28 E. 1. c. 5. the latter end of his Reign we find it enacted The Chancellor and Justices of the King's-Bench to follow the King That the Chancellor and Justices of the Bench should follow the King that is remove with the Kings Court so that he might have at all times near him some Sages of the Law which were able to order all such matters as should come unto the Court at all times when need should require Yet this Act did not give an absolute Power to the Chancellor alone of determining in such Civil Causes as may seem by that Law which was made 20 Ed. 3. (p) Cap. 6. where it appears the Treasurer was joyned with him to hear complaints against Sheriffs Escheators c. something like this about Purveyors and Escheators that they might not oppress was enacted (q) Cap. 3. 36 Ed. 3. Nevertheless Mr. Lambard observes When Causes in Equity determined in Chancery that it doth not appear in the Reports of the Common Law that there is any frequent mention of Causes usually drawn before the Chancellor for help in Equity till from the time of King Henry the fourth nor are there found any Bills and Decrees in Chancery before the 20 of H. 6. such Causes as since that time were heard in that Court having formerly been determined in the Lords House of Parliament So Sir Edward Coke saith In the Chancery are two Courts First the ordinary coram Domino Rege in Cancellaria where in the Lord Chancellor or Lord Keeper of the Great Seal proceeds according to the right line (r) Secundum Legen Consuetudinem Angliae of the Laws and Statutes of the Realm Secondly extraordinary according to the Rule of Equity Secundum aequum bonum But it is not my business to enter into particulars The curious may consult Sir Edward (s) 4. Instit c. 8. Coke Mr. Richard Cromptom cap. 3. Sir Henry Spelman 1. glossar 1. de Cancellario à pag. 105. ad pag 113. Ryley's Appendix Ash's Repertory tit Courts Sect. 2. Roll's Abridgment p. 374. to 587. Prynne's Animadversions p. 48. Anno 5 Eliz. (t) Cap. 18. it was Enacted that the Lord Keeper for the time being hath always had used and executed and so may for the future The Lord Keeper equal to Lord Chancellor the like place Authority Preheminence Jurisdiction Execution of Law c. as the Lord Chancellor of England for the time being lawfully used The Oath of the Chancellor or Lord Keeper is to be found (u) Rot. Parl. 10 R. 2. col 8. 10 R. 2. consisting of six Parts First That well and truly he shall serve our Soveraign Lord the King and his People in the Office of Chancellor The Oath of the Lord Chancellor or Lord Keeper Secondly That he shall do right to all manner of people Poor and Rich after the Laws and usages of the Realm Thirdly That he shall truly counsel the King and his Counsel he shall layen i. e. hide or keep secret Fourthly That he shall not know nor suffer the hurt or disheriting of the King or that the Rights of the Crown be decreased by any means as far as he may lett it Fifthly That if he may not lett it he shall make it clearly and expresly to be known to the King with his true Advice and Counsel Sixthly That he shall do and purchase the Kings profit in all that he reasonably may as God help him and by the Contents of this Book SECT 6. Of the Court of the Exchequer SIR Edward Coke saith the Authority of this Court is of original Jurisdiction without any Commission Bracton mentioneth nothing of this Court and Fleta giveth a very short account that the King hath his Court and his Justiciaries residing at his Exchequer but descends to no particulars of the Jurisdiction (w) Fol. 2 b. But x Britton who lived in Edward the First 's Reign and all along writes in the name of the King as if his whole work had been the Kings gives us an account of the Nature of this Court in several particulars To hear and determine all Causes which touch the Kings Debts his Fees and the incident Causes without which these cannot be tried So of Purprestures Rents Farms Customs and generally of whatever appertained to the Revenue of the Crown the Tenants and Receivers of it so that the Court is divided into two Parts viz. Judicial Accounts called Scaccarium Computorum and into the Receipt of the Exchequer The principal Officer is the Lord Treasurer of England who formerly had this great Office The Lord Treasurer principal Officer of the Exchequer by delivery of the Golden Keys of the Treasury and hath the Office this day by delivery of a white Staff at the Kings Will and Pleasure his Oath is much-what the same as the Chancellors differing principally in that clause That the Kings Treasure he shall truly keep and dispend The other great Officers are the Treasurer of the Exchequer the Chancellor and Chief Baron and other Barons of the Exchequer The rest of the Officers are particularly reckoned in Sir (x) 4. Instit fol. 106 107 108. Edward Coke The Oath of the Barons of the Exchequer is to be found in the Statutes (y) The Oath of 〈◊〉 Barons of the 〈◊〉 chequer 20 Ed. 3. cap. 2. whereof the principal parts are That he shall truly charge and discharge
mixt and they rode from seven Years to seven Years These Justices in Eyre continued no longer than till Edward the Third's time for then as Mr. (m) Notes on Hengham p. 143. Justices of Assize Selden notes Justices of Assizes came in their Places though it is manifest that Justices of Assize were sooner begun For (n) Lib. 3. c. 10. Bracton mentions these Justices of Assizes in his time in these words Sunt etiam Justitiarii constituti ad quasdam Assisas duo vel tres vel plures qui quidem perpetui non sunt quia expleto negotio Jurisdictionem amittunt The form of the Writ in (o) Cl. 9 H. 3. m. 11. dorso 9 H. 3. is set down by Sir William Dugdale in which the King constitutes his Justitiarii to take the Assizes of new disseising and Delivery of the Gaol and the Command to the Sheriff is to cause (p) De qualibet Villa quatuor legales homines Praepositum de quolibet Burgo vel Villa mercanda duodecim legâ—les homines omnes Milites libere Tenentes c. four legal Men and the Provost out of every Village and twelve lawful Men out of every Market-Town and Borough and all the Knights and Free-Tenents that is all that held in Capite to do what the Justices should on the King's part appoint In 21 E. 1. (q) Placit Parliam 21 E. 1. num 12. another settlement was made that either discreet Justices should be assigned to take Assizes Jurats and Certificates throughout the whole Realm viz. for the Counties of York Northumberland Westmoreland Cumberland Lancaster Nottingham and Derby two In the Counties of Lincoln Leicester Warwick Stafford Salop Northampton Rutland Gloucester Hereford and Worcester other two In the Counties of Cornwall Devon Somerset Dorset Wiltshire Southamptom Oxford Berks Sussex and Surrey two For the Counties of Kent Essex Hertford Norfolk Suffolk Cambridge Huntingdon Bedford and Bucks two and that the Assizes c. of Middlesex should be taken before the Justices of the Bench. (r) Mâ—ltis vigiliis excegitata inventa fuit recuperandâ—e possessionis gratia ut per summariam cognitionem absque magna Juris solennitate quasi per compendium negotium terminetur Lib. 4. sol 164 b. Bracton speaking of the Writ called Assiza novae disseisinae saith it was found out and contrived by much Vigilance for the recovering of Possessions by a summary or speedy Conusance without great Solemnity of the Law that the business might be compendiously determined For before at Common-Law Assizes were not taken but either in the Bank or before Justices in Eyre which was a great delay to the Plaintiff and a great molestation and vexation of the Recognitors of the Assize therefore in Magna Charta the Assizes are appointed to be taken in the respective Counties and the Patents to Justices of Assize run thus (s) See the Patent Clause and Fine-Rolls from King John to Edw. 4. Sciatis quod constituimus vos Justiciarios nostros una cum hiis quos vobis associaverimus ad omnes Assisas c. in Com. c. arainandas capiendas c. facturi inde quod ad Justitiam pertinet secundum legem Consuetudinem Regni vostri Angliae Salvis nobis amerciamentis inde provenientibus The Justices of Nisi Prius (t) Ad exonerationem Juratorum ad ceâ— lerem justitiam in ea parte exhibendum Stat. de Finibus 27 E. 1. c. 4. were first instituted by the Statute of Westm Justices of Nisi Prius 2. and their Authority is annexed to the Justices of Assize These Justices were instituted for two principal Causes for the ease of Jurors and for the speedy exhibiting of Justice SECT 8. Justices of Oyer and Terminer AS to the Justices of Oyer and Terminer they are appointed either by (u) Coke 4. Inst fol. 162. general or special Commission By general Commission they are to enquire of Treasons Misprisions of Treason Insurrections Rebellions Murders Felonies Manslaughter (w) Interfectionibus Killing Burglaries Rapes of Women unlawful Assemblies Conventicles (x) Verborum prolationibus false News Combinations Misprision Confederacies false Allegations Riots Routs Retainings Escapes Contempts Falsities Negligences Concealments Maintenances Oppressions Combinations (y) Cambipartiis of Parties Deceits and other ill Deeds Offences and Injuries whatever and to do thereupon what appertains to Justice according to the Law and Custom of the Kingdom Special Commissions were not granted unless for enormous (z) Nisi pro â—nermi transgressione ubi necesse apponere festinum remedium Cl. 14 E. 3. part 1. m. 41. dorso Hil. 2 H. 4. Rot. 4. Mich. 1 H. 8. Transgressions where there was a necessity of speedy Remedy In some cases we find the Justices of Oyer and Terminer have upon an Indictment found proceeded the same day against the Party indicted So Thomas Marks Bishop of Carlisle before Commissioners of Oyer and Terminer was Indicted tryed and adjudged all in one day for High-Treason Likewise Sir Richard Empson was indicted of High-Treason and tried all in one day So Robert Bell 10 Dec. 3 E. 6. and 10 Eliz. 4 Aug. John Felton was before Commissioners of Oyer and Terminer in London indicted of High-Treason and tried the same day by the advice of all the Judges of England SECT 9. Of the Kings Erection of Courts IN some Cases the King may erect new Courts of Justice What new Courts the King may erect and grant Conusance of Pleas to a Corporation to be kept after the Rules of the Law not in a way of a Court of Equity but may not alter the great Courts at Westminster that have been time out of mind nor erect a new Court of Chancery Kings-Bench Common Pleas Exchequer c. Although in a proper Court such as our Chancery a Judge of Equity be allowed yet if it were permitted in all other Courts to expound the Law against the letter and perhaps the meaning of the Makers according to Conscience as we speak there would soon be introduced absoluteness and Arbitrary Power Therefore great Care is taken by those that understand the Law that matters be not left to the discretion of any Persons Commissionated by the King to adjudge of any Causes So the plausible Statute (b) 11 H. 7. c. 3. of H. 7. to put in Execution the Penal Laws impowering Justices of Assize and of Peace upon Information for the King by their Discretion to hear and determine all Offences and Contempts against any Statute unrepealed was found to have Authorised Empson and Dudly to commit upon the Subject unsufferable pressures and oppressions So that (c) 1 H. 8. c. 6. soon after that Kings death it was repealed and those two brought to Tryal and executed for their oppressions So the Statute (d) C. 2. 8 E. 4. of Liveries c. by the discretion of the Judges to stand as an Original is deservedly repealed In
the Commission of Sewers by Law (e) Discretio est discernere per Legem quid sit justum Coke Inst 4. fol. 41. 3 H. 8. allowing the Commissioners to make Orders c. according to their Judgments and Discretions the word Discretion is interpreted by Lawyers to discern by Law what is Just as appears when a Jury do doubt of the Law and desire to do what is Just they find the special matter and the entry is Et super tota materia petunt advisamentum discretionem Justiciariorum that is they desire that the Judges would discern by Law what is Just and give Judgment accordingly It was resolved in the Court of Common-Pleas when a new Court was (f) Whyte's Sacred Laws p. 33. erected 31 H. 8. to hear and determine according to Law and Custom or otherwise to their sound discretion That the last Clause was against Law For when Laws are writ and published Magistrates know what to command and the People to obey otherwise the Law must necessarily be errant wandring uncertain and unknown which is a (g) Miser servitus ubi jus vagum miserable yea the most miserable Slavery This was the ground of the taking away the most August and very Ancient Court of the Star-Chamber The Court of Star-chamber dissolved though appointed by Act of Parliament (h) 3 H. 7. c. 1. 21 H. 8. and consisting of very great Personages as the Lord Chancellor Lord President of the Council Lord Privy-Seal Bishops Lords and Justices For tho' there were other Reasons that moved the Houses to be so pressing to get that Act pass the grounds of its Repeal alledged in the (i) 17 Car. 1. c. 10. Preamble of the Act are That the Judges have not kept themselves to the points limited by the Statutes and have undertaken to punish where no Law doth warrant and to make Decrees for things having no such Authority and have inflicted heavier punishments than by Law warranted and that all matters Examinable and Determinable before them had their proper Remedy Redress and Punishment by Common Law and in the ordinary Courts of Justice elsewhere In the like manner and on the same reason were the Court of Request (k) Ibid. cap. 9. before the (l) Cap. 48. President of the Marches of Wales of the President and Council in (m) Cap. 49. the North and of the County-Palatine (o) Cap. 37. of Chester either totally abolished or much eclipsed Having thus far discoursed of the several standing Courts I think it necessary to give an account of the Oath the Judges of either Bench are enjoyned to take having before spoke of the Lord Chancellor Lord Treasurer and Barons of the Exchequers Oath SECT 10. Of the Judges Oath COncerning this Oath there is a Controversie betwixt Mr. (p) Animadv on Coke's 4. Inst fol. 38. Prynne and Sir Edward Coke the latter affirming it to be in our Printed Statutes but not upon Record which Mr. Prynne disproves thus That the Oath of the Judges Barons of the Exchequer and Justices Itinerant and the Ordinances annexed to the Oath were made by the King because of divers complaints to him by the assent of the great men and other wise men of his Council and commanded to be openly published by the Sheriffs of every County by (q) 7 May 20 E. 3. special Writs issued to them for the Reasons specified in the beginning and close of the Writs at least three Months before the Parliament was held that Year and they are all entred upon Record as they are Printed in the Statute Books at large (r) Cl. 20 E. 3. part 1. m. 12 13. 20 E. 3. in the Clause-Rolls but not in the Parliament or Statute-Rolls of that Year because not made in but before the Parliament From whence I note a good Argument of the Kings Prerogative in appointing Judges and Commissionating them himself without any Parliamentary concurrence since he appoints the very Oath which was to direct them in their Office out of Parliament We find the Commons so well pleased with this Oath that in the (s) Rot. Parl. 20 E. 3. num 25. Parliament 20 E. 3. they petitioned the King that the Justices of Assise and Enquiry might be sworn by the same Oath as the Justice of the Bench Abridgment of Records p. 48. and that the chief of them might have power to swear the rest which the King assented to with some Qualifications but when in the Twenty first of his Reign they petitioned that his other Ministers might take the Oath and might be sworn to take nothing from any other the King answered that he would advise what other Ministers shall be fit to take the Oath Mr. Prynne refers us to the Cl. 18 H. 3. m. 19. Cl. 35 E. 1. m. 7. Cl. 1 E. 2. m. 19. and Cl. 5 E. 3. m. 27. for some Clauses of the Oaths of Justices agreeing with those prescribed to the Kings Council But the Oath as it hath been after used is to this purpose That they shall swear well and lawfully to serve our Lord the King and his People in the Office of Justice and lawfully counsel the King in his Business not counsel or assent to any thing which may turn him in damage or disherison by any manner way or colour and shall not know of any such thing but cause the King to be warned thereof by themselves or others shall do equal Justice and Execution of Right to all the Subjects and take neither by themselves nor others privily or apertly Gift or Reward of Gold or Silver nor of any thing which may turn to their profit unless it be Meat or Drink and that of a small value of any man that shall have any Plea or Process hanging before them c. shall take no Fee as long as they are Justices nor Robes of any man great or small but of the King give no Advice to any man great or small where the King is Party If any of what condition soever come before them in their Sessions with force and Arms or otherwise against the Peace or against the Statute thereof made to disturb the execution of the Common Law or to menace the People that they may not pursue the Law That they cause their Bodies to be Arrested and put in Prison and if they cannot be Arrested that the King be certified That they themselves nor others maintain no Plea or Quarrel hanging in the Kings Court or elsewhere in the Country That they deny to no man Common Right by the Kings Letter nor none other mans nor for none other Cause and in case any other Letters come to them contrary to the Law they do nothing by such Letters but certifie the King thereof and proceed to execute the Law notwithstanding any such Letters That they shall procure the profit of the King and of his Crown and if in default shall be at the Kings Will of Body Lands and
do Authoritas rei indicatae vim legis habet So that can be no Appeal from the King to himself the King delegates his Power to them quod Rex facit per Officiarios per se facere videtur they give Judgment for the King not for themselves to that the Laws Authorize them and none but them so that the Kings assent or dissent cannot frustrate their Judgment which they render in invitos against the will of one of the Parties at least because expedit Reipublicae ut finis sit datus Therefore as to the Power of declaring Law the King is restrained ordinarily to the Mediation of the Judges who are to give the genuine sence and Interpretation of the Law according to Art and rules of science and so by their Interpretation and Judgment therein they bind both King and Subject Yet in some (d) Case of our Affairs p. 4. cases the Judge do not only consult among themselves Judges to apply themselves to the King to determine a doubtful case but must have recourse to the King as the Fountain of Justice so (e) Postnati si disputatio oriatur Justiciarii non possunt interpretari sed in dubiis obscuris Domini Regis expectanda est Interpretatio voluntas cum ejus est Interpretari cujus est condere It is saith Sir Thomas Smith (f) Commonwealth part 2. c. 10. to be taken for a Principle that the Life and Member of an English man is in the Power only of the Prince and his Laws so that when any of his Subjects is spoiled either of life or limb the Prince is endammaged thereby and hath good cause to ask account how his Subjects should come to that mischief and forasmuch as the Prince who governeth the Scepter and holdeth the Crown of England hath this in his care and charge to see the Realm well governed the Life Member and Possessions of his Subjects kept in peace and assurance he that by violence shall attempt to break that Peace and assurance hath forfeited against the Scepter and Crown of England So that from hence it appears how equal and just it is that the King should have the appointment of Judges Justices of Peace Why the King only to appoint Judges c. that neither his Peace should be broken his Subjects injured in their Persons or Estates nor his Laws be violated What Judges are to observe There being sufficient Provision in the Law against the violating of Justice by the Judges who are to observe these following statutes 1. Magna Charta That no Freeman shall be taken or Imprisoned or disseised of his freehold or liberty or Customs or be Out-lawed or exiled or otherwise destroyed That the King (g) Cap. 9. will not pass upon him or condemn him but by lawful Judgment of his Peers or by the Law of the Land and by another 5 E. 3. That no man shall be Attached by any Accusation nor fore-judged of Life or Limb nor his Lands Tenements Goods nor Chattles seized into the Kings hands against the form of the Great Charter and the Law of the Land and 25 Ed. 3 (h) Cap. 4. Stat. 5. That none shall be taken by Petition or Suggestion made to the King or to his Council unless by Indictment or Presentment of good and lawful People of the same Neighbourhood where such deed be done in due manner or by Process made by writ original at the Common Law and so by (i) 24 E. 3. c. 3. another That no man of what State and Condition soever he be shall be put out of his Lands or Tenements nor taken nor Imprisoned nor disinherited without being brought to answer by due Process of Law and in another (k) 41 E. 5. c. 1. That no man be put to answer without Presentment before Justices or matter of Record or by due Process or Writ original according to the old Law of the Land But I must leave this to the Learned in our Municipal Laws and shall note some few things from old Authors that may discover how much just Judgment hath ever been valued The impartiality and yet the tenderness and compassion in inflicting Punishment is notorious in Zeleucus Impartiality requisite in a Judge who while he governed the Locrians made a Law That whoever committed Adultery should have both his Eyes put out and his Son being found guilty he commanded the Law to be put in Execution and the body of the Citizens interceding he ordered one of his Sons Eyes to be put out and likewise one of his own that the Law might not be broken and yet that he might not be over rigid to his Son The (l) Neque inflecti gratia neque perfringi potentia neque adulterari pecunia possit Pro Cecinna Orator tells us That Justice should neither be warped by Favour nor broken by Power nor adulterated by Money and in another place (m) Exuit personam Judicis quisquis Amici personam induit saith That he puts off the person of a Judge who assumes that of a friend He indeed is an upright Judge in whose hand the Ballance of Justice neither totters nor falls by the Authority of any Person Talis debet esse Juris minister ut in ejus manu nullius authoritate personae titubet aut vacillet librae Justitiae Besides the avoiding of Partiality Pâ—ecipitancy to be avoided it is necessary in every Judge that he fully examine what is brought before him and not with too great Precipitancy determine matters upon (n) Qui statuiâ— aliquid parâ—e inâ—udita altera 〈…〉 siatuit 〈◊〉 tamen aequus est Senec. Medaea the hearing only of one side for though he may chance to do Justice in such a Case yet he doth not do justly that fully hears not both Parties Allegations It is a very mischievous things when Judges delay the Executing of Justice (o) Holy Court Tom. 1. lib. 3. p. 90. Delays in doing Justice mischievous Causinus out of the Chronicles of Alexandria tells us That Juvenalis a Widow complaining to Theodorick King of the Goths and Romans that a Suit of hers in Court was drawn out for the space of three Years Theodorick called the Judges before him and acquainted them with the Complaint and commanded them to do her speedy Justice which within two days they did and being again called by the King he asked them how it came to pass that they had dispatched that in two days which had not been done in three Years They answered that His Majestie 's Recommendation had made them finish it so soon To whom the King replied That when he put them into Office he consigned all Pleas to them and other Proceedings and since they had spun out the Business for three Years that required but two days dispatch they should die and at that Instant commanded their Heads to be smitten off Court to redress Delays We find in Sir Edward Coke
(p) 14 E. 3. c. 5. Stat. 1. Rot. Parl. 2 â— 2. num 63. confirmed by Parliament a Court for redress of Delays of Judgment in the Kings Great Courts raised by Statute 14 E. 3. whereby one Prelate two Earls and two Barons the Chancellor Lord Treasurer the Justices of both the Benches and other of the Kings Council have Power to call before them the Tenor of Records and Processes of such Judgments so delayed and to proceed to take a good accord and Judgment and so remand all to the Justices before whom the Plea did depend He likewise (q) 4. Instit c. 6. fol. 67. tells us That by the Common-Law it is required that both plena celeris Justitia fiat and all Writs of Praecipe quod reddat are quod juste sine dilatione reddat c and that there did and yet doth lye a Writ de pracedendo ad Judicium when the Justices or Judges of any Court of Record or not of Record delayed the Party Plaintiff or Defendant Justice and in Case the Prelate the two Earls two Barons the Chancellor Treasurer c. may not for the Difficulty determine it then to bring it to the next Parliament there to have a final accord From this whole Discourse I hope it is apparent that as our Kings authorize the Justices to do right to every one according to the Laws and Customs of England so the Judges cannot well fail of performing it Before I end this Chapter I cannot omit the inserting of some of the Expressions that I find in the Saxon Laws whereby the desire those Kings had that equal Justice should be administred is very manifest The eighth Law of King Ina inflicts a mulct of thirty Shillings upon every (r) Hwilcum scirmen oththe othrum dâ—man Shireman or other Judge that grants not Justice to him that requires it and besides that within a Week he afford him right in Saxon thus binnan seoffon nihte gedo hine rihtes wrythe The first of the secular Laws of King Edgar runs thus That every one enjoy the Benefit of right Judgment whether he be Poor or Rich but in exacting of Punishments let there be that Moderation that they may be attempered to Divine Clemency and may be tolerable to Men. The Saxon runs thus That ole mà n sy folc rihtes wyrth ge earm geeadig and him mon righte Domas deme sy on thaerebote swylec forgyffenysse swylec hit fore God ge beorglice sy and for weoruld aberendlic The third Law of the same King is that the Judg who shall pass false Judgment on any shall pay the King a Hundred and twenty Shillings unless he confirm it by Oath that he did it by Error and Ignorance not for Malice However he shall be removed (s) Et tholige a his Thegnscipes butan he aeft al thaem Cyng gebiege swa he hin gethasian wills out of his place unless he obtain the same again of the King By which it further appears that in those days the King removed and placed Judges at his Pleasure The first of the secular Laws of King Canutus runs thus First I will that Man (t) That man ribte laga upp araere aegh wylec unlaga georne assylle set up right Laws and unjust Laws be suppressed and that every one according to his Power pluck up utterly by the Roots all unrighteousness and set up Gods Right i. e. Divine Justice and for the time to come the Poor as well as the Rich enjoy right Judgment and to both of (u) Fole rihtes wyrthe him man ribte domes deme them right Dooms be deemed Then the next Law is for exhibiting Mercy in judgment that even in Capital Matters such moderation be used in imposing the mulct that it be (w) Swa it for Gode sy gebeolice for woruld aberendlice As in the Law of King Edgar attempered to divine Clemency and be to be born by Men and that he that judgeth think in his Mind what he asks when he saith in the Lords Prayer and forgive us our Debts or Trespasses as we forgive them that trespass against us and he forbids that any Christian be put to Death for any small or contemptible cause that for a (x) Et ne forspille man for litlum Godes handgeweorce his agenne ceap the he deorgevobt small matter they suffer not to perish the work of Gods Hands which he hath redeemed with a great price In the Eleventh Law we find that the King saith That by all help and work it is to be endeavoured by what reason principally he may gain Counsel that may (y) His man fyrmest mâ—g raed aredian Theode to Thearfe ribâ—ne Cristendom swy thort araeran agh wilec unlaga georne assyllan confirm such things as are for the profit of the Republick and may confirm Christian Piety and may totally overthrow Injustice from hence that Profit at last coming to the Kingdom that Iniquity may be suppressed and Justice may be set up in the Presence of God and Men. I could add more but I shall have occasion in the next Chapter to mention something of this Subject and shall only close with that Admonition of King James (z) Dalton's Justice of Peace c. 2. the First to the Judges in the Star-Chamber 1616. wherein he gave them in Charge to do Justice uprightly and indifferently without delay without Partiality Fear or Bribes with stout and upright Hearts with clean and uncorrupt Hands and not to utter theirown Conceits but the true meaning of the Law not making Laws but interpreting the Law and that according to the true Sence thereof and after deliberate Consultation remembring their Office is Jus dicere not Jus dare CHAP. XXXIV Of Justices of Peace and their Sessions SIR Edward Coke (a) 4. Instit c. 31. fol. 170. observes that the Constitution of Justices of Peace is such a form of subordinate Government for the Tranquillity and quiet of the Realm as no part of the Christian World hath the like which may be true in the particular Limitation of the Power Officers like our Justices of Peace anciently in other Countries But that in other Countries such like Officers have been appointed particularly for the preservation of Peace is evident in the ancient Laws of the Wisigothes (b) Lib. 2. c. 16. compiled by Theodoricus their King about the Year of our Lord 437. which constituted Pacis Assertores and appointed them Judges to hear and determine those causes quas illis Regia deputaverit ordinandi Potestas So in the Sicilian (c) Anno 1221. Ibid. p. 704. to 722. lob 1. tit 8. Laws compiled by the Emperor Frederick the Second we find one Title de cultu pacis generali pace in Regno servanda and another de (d) Ibid. tit 41. officio Justiciaratus where the Title Office and Commission of the Justiciarii Regionum is at large recited almost in Parallel terms with ours at this Day The
of enlarging their Priviledges have subjected themselves as well to the slavery of Red-coats and the Tyranny of a Corps du guard or Council of War as they had their Prince under their Committees and Armies which considerations I hope will be worth their remembring What I have writ in most of the Chapters of this Treatise less or more appertains to the Gentry out of a true and cordial desire that if any such Critical time should in any Age return as that of Forty and Forty one or Eighty and Eighty one the Gentry may consider the History of former Ages and be able to distinguish betwixt Realities and feigned Pretences and will well weigh what I have writ in the preceding Chapter of the Nobility for that it is in most particulars applicable to to them which makes me shorter in this and that above all things they will seriously consider that though in every (l) Mâ—gis alii 〈◊〉 nes quâ—m alii mores Taâ—it 1. Histoâ— Generation new Men do arise that to carry on their Factious Design pretend different Causes yet the ends of all that are Male-contents and seditiously displeased with the Government is the same and commonly their Fate is parallel Therefore above all the Infections let them study to avoid that of murmuring and repining against the Government or that of being seduced by those who cover their dark Thoughts and Designs too close to be discovered by common Eyes The more such pretend Zeal for the common Good the more they pretend publick Spirits and care of Religion If they be found to have any the least Tincture of Immorality Envy Ambition Revenge Cruelty or aspiring in their Tempers the more they are to be suspected and avoided CHAP. XXXIX Of the Commonalty of England of the lower rank especially THESE are more especially the subject matter of Government The Employments they are engaged in The Common Peoples Duty makes it more profitable for them to look downwards and cultivate their Freeholds and Tenements and reap the golden Fruits of their Toil than to spend their time in the fruitless enquiries after the managery of States and Empire for whereover Soveraignty lodgeth they must still be Subjects Obedience saith a well observing (a) Cornwallis's Es says 46. Author not Examination is the destined Function of the Common People which Laws preserve them in The Industrious would soon be ruined by the Free-booters in every Hamlet if the Laws and Government were not their Guard By the several Rebellions properly of the Commons in Richard 2. H. 8. The Miseries of Insurrections and Edward the Sixth's time we have sad Examples of the Calamities they brought not only on their Neighbours and the disturbance they gave the Government but likewise the ruins they brought upon themselves and when they had wearied themselves with Rapine Murthers and a Hundred cruel Ravages and Butcheries they were at last either totally subdued and their Chieftains Executed and the rest Fined or they perished in the Fight being never able to effect any of their pretended Liberties they made the Insurrections to have obtained It is for want of Consideration that they are decoyed into such barbarous Outrages which in such Rebellions they generally commit They ought to consider Their Obligations to their Prince and that very seriously that it is from their Princes sollicitous Care that they enjoy Peace and Plenty to them they owe not only Allegiance and Obedience as they are their Soveraigns but especially Gratitude Loyalty and all dutiful Services For the good Laws from time to time have been confirmed by their Kings for their Prosperities without which they would be in a continual State of War and Feuds one against another They owe to the Paternal Care and Prudence of the Sovereign and his Government those Methods and Rules whereby they are so benignly ruled in England especially whereby they are in a freer and more plentiful Estate than any other Commoners in the World By the vertue of those Priviledges granted to them by their Kings they have Propriety in their Goods none can out them of their Possessions imprison or molest them while they observe the equitable Laws Their Privileges They have according to their several Capacities and Abilities a participation of Offices in their particular Hamlets Parishes Wapentakes or Counties either relating to the assistance to the Justice of the Land in Juries or conserving of the Peace in being petty or chief Constables or other Officers and have a peculiar Priviledge many other Commoners want of chusing their Representatives whereby they are only subject to such Laws as they or their Ancestors have given consent to The Government worthy Country-men makes fertile your Enclosures protects your Flocks and Herds secures your going out and coming in makes your Sleeps undisturbed guards your home-bred Commodities when you send them abroad secures those are brought home to you appoints you Markets for buying or selling your Corn and Cattle and your own Manufactures Let those among you The Calamities they sustained in the late War that are not ashamed they were Sequestrators Membrs of the Parliaments Army or active Officers Oppressors Plundereres or Informers against their Loyal Neighbours consider what they reaped in the late unhappy Wars begun with all the specious Pretences of redressing grievances securing Propriety and reforming Religion precious Names most wickedly abused Remember how unsupportable were the Taxes and Sequestrations What affrightments were you continually in by the Quartering of imperious Soldiers and their Plunders where they neither left Food nor Rayment for your Wives and Children and what they could not devour or carry away they destroyed Consider the effusion of so much Blood in the cruel Battles and their most unjust High-Courts of Justice how all the Laws either were stifled or miserably distorted The best Preservatives against the relapse into such miserable times Advice to the Commonalty is to reflect upon them often to live quietly under your Sovereign to give him no occasion to unsheath any of his Swords against you to reduce you to Obedience Avoid all Factious Whisperers of discontent You were within these six Years by past wrought so upon by cunning Designers of a Commonwealth that you made choice of such Representatives as neither would supply that Prince o immortal Memory who had preserved them and you in that Peace he had restored them to when nothing but War and miserable Devastations were in all the Countries of the Continent nor admit our present Gracious Soveraign who had adventured his Life so often for their Safety to succeed in the Throne of his Royal Ancestors Remember I beseech you dear Countrymen these things and consider how near the Gulph and Pits Brink of inevitable Miseries you were Be thankful to those Loyal Persons who by their Counsels and Addresses withheld you from the imminent Ruine Be mis-led no more by such as can sow nothing but Darnel Cockle Poppy and Tares among
be not guilty of some great immorality which being discovered may render them less acceptable it will be necessary that the Prince chuse fit Persons to make applications to them by such as have some Authority over or with them and can rectifie any mischiefs of the intention of the Government and by dint of reason make such out of love with the Contagion of popular breath to suck in the vitabler air of the Court or by rectifying their Judgments oblige them to manage the multitude in their duty to their Prince rather than encourage them in the sullen Malecontentedness of their nature By such means these popular persons might be made as good Instruments as ever they were evil For certainly were the generality of people once brought to a sence that established Government is infinitely less oppressive to them than when Faction giving it a disturbance forceth it to arm for their suppression at the common Peoples charge they would neither lend an Ear to the pragmatical and idle Persons who never are in their Element but when they are sowing Dissentions or making Parties either in their Parishes especially in Corporations or busying themselves with Officers of State which is another kind of business than their shallow understandings can apprehend But the itch of appearing some body in the rout makes them scrub upon every log and post rather than lose the pleasure of spending that little Salt in their Blood Ninthly 9. Cunning men The cunning close men are either such who are no great lovers of the Government yet dare slily nibble at it or they are the Achitophels As to the first their strength lyes in the Art of wheedling shrugs and insinuation they being afraid to show their morphewed Complexion never put off their Vizard but when they are among their Confidents which shows how little courage they have unless in a Croud or Tumult and then they are no longer assured than the whole body is succesful If it come to dispute and hazard they are the first that fly to their Burrow They are Moles indeed But if their walks be once discovered they are easily catcht and are so blind they neither know how to avoid the Trap or their own destruction and when uncased are the despicablest of Vermin The Achitophels are presumed to be of quicker sence and nimbler parts and have always some private (c) Privati pertinacia in publicum exitium Tacit. 10. Hist end that they eagerly pursue though it be to the ruine of the Publick yet they have a peculiar short sightedness In that they neither look back on former Precedents of unsuccessful attempts of that nature nor forward to consider how many contingences may happen whereby the whole design may be disappointed or how many and different Engines are to be imployed to rear that new Frame of Government So that if any few that have generousness or honesty scent the design the whole machine by the unloosing of some few pins falls in confusion and buries in its rubbish the Architects who (d) Imperium cupienribus nihil medium inter summa aut praecipitia Tacit. 2. Hist have no half paces betwixt height and precipice These are presumed to have plotting heads and all the wiles of the subtilest Foxes and not to want courage resolution and conduct rarely undertaking such designs but when there is some general discontent or pretensions of redressing Grievances Therefore wise Princes are to substract the subject matter of their pretences and to set on work able Counterminers whom they are in some publick manner to disgrace or disoblige whereby they may the easilier be admitted into the inmost Councils of the Achitophels and by secret Intelligence on the one hand advertise the Prince of the methods drift and design of those men and on the other side push things forward to some overt Acts in which these Miners may be surprized During which time the Prince is to encourage strengthen and impower all who are true to his interest which done it will be a strange fatality if he in a little time triumph not over these cunning Intriguers As to I novators in Religion it is found by long expetience how difficult it is to suppress them Tenthly Innovators in Religion A nulla re majus periculum Imperiis Sceptris quam ab innovata insidiose simulata Religione lib. de una Religione For though it be true what Lipsius saith That danger to Empires happens from nothing more than from Religion innovated or treacherously dissembled yet neither he nor any Prince could yet find a sufficient means either to prevent the Ingress or stop the spreadings of different Modes of Religious worship and of Doctrines that are judged conducible to a more Pious living when they are not too chargeable or too difficult to be performed Therefore most Princes in Europe whose Subjects are numerous of different Religions considering the inconvenience of dispeopling their Countries or endangering Civil Wars countenance one form of Discipline that appears to them the best adapted to the constitution of their Secular Government by capacitating only such as adhere to it to enjoy Offices and Preferments and permitting others in a private way to enjoy the liberty of their Opinions so as they may not be dangerous to the State Interdicting publick Orations upon controverted Points or when they find danger of Seditions by them retrenching some of their privileges to keep them in subordination Having thus gone through these ten particulars I shall say something of Libels and Corporations and so close this Chapter As to Libels we find in Tacitus Of Libels That Crematius Cordus being accused that he had commended Brutus and Cassius as the last of the Romans this was thought to reflect upon Tiberius and in his defence Cordus (f) Ipse divus Julius ipse divus Augustus tulere ista reliquâ—re haud facile dixerim moderatione magis an sapientia namque spreta exolescunt si irascare agnita videntur saith That Livy had commended Pompey that Messalla Corvinus had spoken honourably of Cassius that Catullus and Bibaculus's Verses were read which were stuffed with Calumnies against Julius and Augustus yet those Emperors suffered them and left them unpunished whether with more moderation or wisdom he would not determine For such things being slighted grew stale and unregarded but if the Prince be incensed against them they take fire faster Such Libels therefore as in a slight manner only make ingenious Reflexions upon select Persons In the twenty eighth Law of King Alfred entituled Be fole leasungum gewyrâ—tum Of false Rumors or Lies done or told to the People the Punishment was That his Tongue should be cut out bim mon accors tha Tungan of unless he redeemed it at the price of his Head or attack not the Government enviously and in such a way as the Government is not in danger may be connived at But the Authors of malicious witty Libels are principally to be
a name of Continuance which as the Law presumes shall always remain as Head and Governour of the People For the English Monarchy (x) Coke 4. Report Praef. knows no Interregnum being Successive by inherent Birthright whereby infinite inconveniences are avoided so that the young Phenix stays not to arise out of the Spicy ashes of the old but the Soul of Royalty by a kind of Transmigration passeth immediately out of one body into another and in the same manner will every right Heir acquire the Royalty after his Predecessor ceaseth to be Therefore the judicious Lord (y) Interregnum aut tituli suspensionem â—aeges Regni non permittere Hist H. 7. p. 26. Verulam observes That H. 7. knowing that the Laws permit not any interim suspension or stay of the Title and having no mind to own his Queens Title the best She being the Heiress of the house of York as he in some respects was Heir of the House of Lancaster he ordered the Act so that it should neither be by recognition nor his Title be established by a new Law (z) Potius media via institit simplicis stabilimenti Ideo verbis tectis utrinque nutantibus his ut haereditas Coronae resideres remaneret continuaretur in Rege but chose a milder way viz. of simple Establishment in covert words interpretable several ways that the inheritance of the Crown should reside remain and continue in him So King James in his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 p. 209. tells the Prince That at the very moment of the expiring of the King Reigning the nearest and lawful Heir entreth in his place and so to refuse him or intrude another is not to hold out the Successor from coming in but to expel and put out their Righteous King So Sir (a) Report 7 8 10 11. Calvin ' s Case Watson and Clark ' s Case 1 Jac. 1. Edward Coke affirms That it is a known Maxim of the Laws That in the moment of the descent of the Crown the person on whom it descends which is the next immediate Heir only becomes complete and absolute King to all intents and purposes And so he saith The second Son of the King of England after (b) 3. Instit 8. the death of the first-born is eldest Son within the Statute of 25 E. 3. as it was resolved in the case of Prince Charles concerning the Dutchy of Cornwall It would be a tedious work to recite all the Authorities in this Case may be found in the Statutes and Law-Books I will content my self instead of all others with the Act of (c) Cap. 2. Recognition 1 Jacobi primi wherein The Recognition of King James the First after the two Houses had enumerated the benefits by the Conjunction of the Houses of York and Lancaster and the uniting of England and Scotland in the Kings Person and that They agnize their constant Faith Obedience and Loyalty to him and his Royal Progeny The worlds of the Act are In most humble and lowly manner do beseech your most Excellent Majesty as a memorial to all posterity among the Records of your High Court of Parliament for ever to endure of our Loyalty Obedience and hearty humble affection it may be published and declared in the High Court of Parliament and enacted by Authority of the same That we being bound thereunto by the Laws of God and man do recognize and acknowledge and thereby express our unspeakable joyes that immediately upon the dissolution and decease of Elizabeth late Queen of England the Imperial Crown of the Realm of England c. did by inherent Birthright and lawful undoubted Succession descend and come to your most Excellent Majesty as being lineally justly and lawfully next and sole Heir of the blood Royal of this Realm as is aforesaid c. and thereunto we most humbly and faithfully do submit and oblige our selves our Heirs and Posterities for ever until the last drop of our blood be spent and do beseech your Majesty to accept the same as the first-fruits of this High Court of Parliament of our Loyalty and Faith to your Majesty and your Royal Progeny and Posterity for ever By which it first appears that the Crown of England is an unalterable Entail and the reversion in him only by whom Kings reign without any Election or consent of the People otherwise than by acknowledging the lawful Right of the Kings derived from God by their blood to them Also from this Recognition we may consider How to understand the Act made by Queen Elizabeth against the Claims of Mary Queen of Scots Secondly what to think of that Act of Queen Elizabeth That if any Person shall affirm that the Parliament of England has not full power to bind and govern the Crown in point of Succession and descent that such a Person during the Queens life shall be guilty of High Treason For we must consider that by the words bind and govern we may conceive the sence to be That the Parliament is Judge where there are differences (d) Jus Regium p. 181. betwixt Competitors in nice and controvertible points which cannot be otherwise decided So that such temporary Acts as these are to be interpreted and restrained by other uncontroverted Laws We must also look upon it as made to secure the Queen against Mary Queen of Scots and to let her know it was to no purpose for her to design any thing against the Right or Person of Queen Elizabeth upon that ground as may be presumed the Queen of Scots might claim for that Queen Elizabeth by Act of Parliament had been declared a Bastard Therefore to let her know that it was to no purpose to insist upon any such claim and that her other Right as next undoubted Heir by blood to the Crown might be altered or governed this Act was made So that we must from hence conclude That it was to be reckoned only as one of those Statutes which the Law says are made ad terrorem ex terrore only which may appear the more evidently because it was never made use of For it is to be mainly considered that this Law being made to exclude Queen Mary and the Scotish Line as appears by that clause wherein it is declared That every Person or Persons of what degree or Nation soever they be who shall during the Queens life declare or publish that they have Right to the Crown of England shall be disinabled to enjoy the Crown in Succession Therefore it was never valid (e) Id. p. 183. For if it had been good King James might have thereby been excluded by that person who should have succeeded next to the Scotish Race For it is undeniable that Queen Mary did during Queen Elizabeth's life pretend Right to the Crown upon the account that Queen Elizabeth was declared Bastard Therefore the calling in of King James after this Act and the acknowledging his Title do clearly evince that the
Issue according to the present interests of his Affairs and Passions that such contradictory Acts could not be all true and though the Responses from Delphos or any Oracles of the Gentile ages might miss the truth as much yet by their dubious answers they forfeited not their reputations so much We may also note (l) Jus Regium p. 178 179. that by God Almighty's Providence and the care of his own Laws the Duke of Richmond was removed by death to prevent the unjust Competitors and Prince Edward was born and by the same Providence and the sence the Subjects had of the great Fundamental of Hereditary Succession contrary to some of these Acts and what Edward the Sixth did in setling the Crown upon the Lady Jane Grey proved of no force for Queen Mary succeeded though she was a Papist and Queen Elizabeth succeeded her though she was declared Bastard The rights of Blood prevailing over the Formalities of Divorce and the Dispensations of the Popes and the Laws made to gratify Henry the Eighth's pleasure as the strength of nature doth often prevail over Poisons and to evince the greater certainty of their being void so little notice was taken of those and the subsequent Acts Anno 1535. that the Heirs of the Blood succeeded without repealing that Act as an Act in it self invalid from the beginning For such Acts are past by without being repealed as we find in the Act of Recognition of Queen Elizabeth no notice was taken of the Act of Parliament against her and Blackwood (m) P. 45. observes very well that so conscious were the makers of these Acts Jus Regium p. 179. of the illegality of them and of their being contrary to the immutable Laws of God Nature and Nations that none durst produce that Kings Testament wherein he did nominate a Successor conformable to the power granted by those Acts but that as soon as they were freed by his Death from the violent oppressions that had forced them to alter a Successor three several times and at last to swear implicitly to whomsoever he should nominate they proclaimed first Queen Mary and after her decease Queen Elizabeth Therefore all these Acts both of Henry the Eighth and Edward the Sixth are to be looked upon as Politick interims to serve for some present ends And as we observe the trepidations vibrations and as we may say uneasiness of things in all that have been displaced till reseated again whereby we have a certain Indicium of any thing Natural so may we note the naturalness of Hereditary Succession by the Tragical Convulsions and unsetledness of things in any State where great force and policy have usurped the Crown till it hath returned to the right owner So we see after the force was removed by the expiration of Henry the Eighth and Edward the Sixth things returned again into their pristin State according to the Laws of the Crown I shall now pass to consider other Reasons and First it may be observed Fundamentals in Government not to be altered That the Venerable Age of such Fundamental Laws should have another kind of respect pay'd to them than to be made obsolete because they will not sort with some new-fashioned Intrigue For it is a most true Maxime Non magis aliunde floret respublica quam si legum vigeat Authoritas So in the first Parliament (n) Cap. 2. of King James the First it is fully expressed That to alter and innovate the Fundamental ad Ancient Laws See Commission for Union 16â—4 Priviledges and good Customs of the Kingdom whereby not only the Kings Regal Authority but the Peoples securities of Lands Livings and Priviledges both in general and particular are preserved and maintained and by the abolishing or alteration of the which it is impossible but that present confusion will fall upon the whole State and frame of Government is of most dangerous consequence whence we may well infer That to endeavour to alter the right of Succession of the Crown in the direct line is one of the most dangerous Innovations of all others as drawing innumerable mischiefs after it Now there can be no greater fundamental right than the Succession of our Monarch The Hereditary Succession is a Fundamental That our Monarchy is Hereditary is the great Basis upon which most of all the positions of the Laws are established which every where we meet with in the Writings of Lawyers viz. That the King never dies the next Successour in Blood is legally King from the very moment in which the last King dies that there needs neither Coronation or Recognition of the People to intitle him to the exercise of his Regal Authority that his Commissions are valid all Men are liable to do him Homage and hold their rights of him and his Heirs he may call Parliaments dispose of the Lands belonging to the Crown and all that oppose him are Rebells Generally this Principle runs through all the Veins of our Laws it is that which gives Life and Authority to our Statutes but receives none from them which are undeniable marks and Characters of a Fundamental Right in all Nations Secondly Such further provision hath the Law made to secure the Succession in the direct line that if the right Heir of the Blood or the Father or Mother of the right Heir be attainted of High Treason by Parliament the Attainder is no obstruction to the descent If he who were to succeed had committed Murther or were declared Traytor formerly to the Crown for open Rebellion against the King and Kingdom yet upon his coming to the Crown he need not to be restored by Act of Parliament but his very right of Blood would purge all these Imperfections For tanta est Regii sanguinis praerogativa dignitas ut vitium non admittat nec se contaminare patiatur saith a (o) Craig learned Lawyer and the Reasons given are For that no Man can be a Rebel against himself nor can the King have a Superior and consequently there can be none whom he can (p) Jus Reg. p. 169. offend and it would be absurd that he who can restore all other Men should need to be restored himself Also the Punishments of Crimes such as Confiscations c. are to be inflicted by the Kings Authority or to fall to the Kings Treasury and it would be most absurd that a Man should exact from himself a Punishment So Richard Plantaginet Duke of York and Edward the Fourth his Son were both attainted yet Edward the Fourth was rightful King and no impediment in the Succession accrued by it So Charles the Seventh of France though banished by Sentence of Parliament did afterwards succeed to the Crown and though Lewis the Twelfth forfeited for taking up Arms against Charles the Eighth yet he succeeded and Alexander Duke of Albany and his Descendants being declared Traytors by his Brother King James the Fourth yet his Son John being called home upon
Xenoph. de Rep. Athenarum Thucyd. lib. 3. this is a Mart wherein voices are bought and sold poverty and ignorance driving the crowds to null that to day which they have eagerly pursued the day before scarce forbearing the same day to condemn and absolve nothing being done amongst them but in tumultuary ferments and an high boyling fret or a dead torpidness and irresolution the Ebbings and Flowings of the Ocean being more regular than theirs whereas all Government according to the (b) Polit. l. 4. c. 4. Philosopher subsists and is established in firmness and constancy by every mans knowing what is his right to enjoy and his duty to do or as (c) Coeius hominum Juris consensu utibitatis communione sociatus De Civitate Dei c. 23. St. Augustine calls it a society of Men incorporated for common benefits by the agreement of Laws It is a grave saying of (d) Populus negligit rempublicam magnitudine nimia communium curarum expers 1. Hist Privata cuique stimulatio vile decus publicum 2. Annal. Tacitus That the common People neglect the affairs of the Common-weal by their over-bulkiness void of publick spirit and care and in another place That the incentives to their private profit produce a disregarding neglect of the publick (e) Quod omnia aetatis membra familiasque singulas in unum corpus cogit De Rep. lib. 1. Bodinus compares a Common-wealth or Government to a Ship and well observes that without the Keel which unites the Stern and Fore-castle Ribs c. it would be but informe lignum So a Community without Government which unites the members of all Ages and all Families in one body can no ways deserve the name of society Such a People headless is not worthy to be called a Body Politick for Government no ways consists in the number of Persons or the heads of Citizens but in the combination of them under one Soveraign Power The unwieldy bulk of numerous Armies wanting Conduct and Discipline rarely effect any glorious enterprise In the Tumults of Naples the Rascality were forced to set up an Head though it were but the frothy boisterous Thomas Anello So were Cade Ket Tyler and others in our popular Rebellions set up as the Captains Leaders and Idols of the Clowns From whence we may learn that even such people as rose up as they pretended to suppress Magistrates Monarchy or Tyranny level Estates and set all at liberty yet once imbodied were forced to chuse Captains to lead them to whose Orders there was a necessity of submission If we thoughtfully consider How Superiority and Government founded in Nature we shall find that Government is founded in nature in which state there is no such thing as equality for the Parent by priority of natural cause must be superior to the Children Yea if we should believe People to be Juvenes ab Aquilone creati like Grashoppers or Locusts or like Cadmus his men sprung up at once out of the Earth underived from any pre-existent Parent all of them having equal Origin and Power yet a short converse one with another would have necessitated them to embody in Societies We Christians believe God made Man after his own Image Dominion given to Man and gave him dominion over all the Creatures of our sublunary world and it is not reasonable to think that he endowed him not with faculties necessary for the administration of that great Empire not only over the Brutes but over his own Species For the Philosopher (f) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 1. Polit c. 5. notes that nature hath made some fit to command and others to obey or serve of which we have many and great Instances So Julius Caesar and others whose great actions are recorded in History manifested more sublime Spirits than any of those who were subdued by them Some born to Empire and when those great Heroes were dead though their Officers and Soldiers survived by whose prowess and valour they had effected those wonders yet we read of a suddain degeneracy as if the soul had expired and left the carcass only of an Army The Orator observes that no Nation was ever so Barbarous No Nation so Savage wherein some Government hath not been as to be wholly void of Religious Worshippers since every where some Deity or other hath been acknowledged Even so we may affirm that never any People were so rude wild and savage but they found a necessity of Government of which they had at least in their first embodying some unpollished Model and some sort of Institutes appointed by and coeval with their Governours by which their political interests and private concerns were regulated without the infinite disorder which would happen to all publick transactions which should be the product of tumultuous votes where every meeting would be a jumble of great and small The Mischiefs of tumultuous voting and want of Magistrates soft and hard sculls a pudling of business and putting all things to chance and blundering in a maze till at last some Mens wisdom formed them into order How then is that condition of a People to be wailed which Tacitus (g) Ea demum libertas Romae est non Senatus non Magistratus non Leges non Mores Majorum non Instituta Patrum 1 Annal. describes to be the Roman State of liberty wherein there was no Senate no Magistrates no Laws no Ancient Usage no Institutes of the Fathers From all which we may conclude that the same nature that ordered societies gives them prudence to know that to preserve the Society and the peace of it it was necessary that there should be one or some who laying aside private advantage and particular Interest should imploy their minds bend all their thoughts and direct their actions for the publick good and by the sinews of power hold all so fast united as they should guide them to the same end and we must determine that Government is absolutely necessary for the being and well-being of a People though there be servitude in it which made Seneca comparing Augustus's times with the preceding irregular ones say Salva esse Roma non potuit nisi benesicio servitutis The City could not have been safe without the benefit of servitude CHAP. III. That the People are not the Original of Authority and Government BEfore I proceed to treat of the several forms of Government I judge it requisite to examine some positions made use of by Republicans so long at least as they argue against Monarchical Government or till they obtain their ends in the subverting of it One of which is that supreme power is originally and fundamentally in the People for whose benefit all Government was established Secondly That there is a tacit reservation of power in them to vary the form of Government and change the Persons when the people finds it convenient for them The Law of Nature as they say justifying any attempt
to shake off those Bonds and Fetters imposed on them by their Superiors or voluntarily yielded to by themselves if they judge that thereby their common Freedom is impeached for that they say the People never submitted to any Government but by way of Agreement and Contract unless in cases of absolute Conquest Therefore one whom the Commonwealth-men esteem their (a) Mr. Algernon Sydney Martyr asserted That Kings have Usurped over the People a power inconsistent with their natural liberty and that Kings owe their right to prescription which the greatest Tyrant may maintain by force and to that consent which they may procure by violence or flattery I am sensible that I might more orderly have placed what I have to answer to these assertions in the Chapter of Monarchy but intending to prove that to be the best of all the known Governments and that Chapter and the other preceding it being so large I judge it not so fit to clog it with this but make it as a preliminary For though I oppose Monarchy principally to this sentiment yet it hath something in it also of use to the right stating of the Original of Government in general First therefore I shall endeavour to evince That God Almighty was the Original Donor of the Authoritative Power of Government The Power was given from God to One and not to Many there neither was nor is Natural Freedom and that not to any collective body of the People Secondly that there never was such a state of primitive freedom or natural liberty as is challenged Thirdly That where ever the Peoples Election was admitted in constituting a Soveraign they capitulated not for any reservery of power of resumption and Lastly that in the present State of our English Monarchy no such Power ought to be challenged First then with a Reverend (b) Dr. Hammond's Address to the Lord Fairfax p. 8 9. The State of Government in the first Ages Kingly Author it is to be considered that if Adam had never fallen and his posterity had remained in the same innocence yet in order to civil life they would have been capable of civil precept and in reason one man or more should have had the superiority over all others as Parents over Children and the consideration of the divers orders of Angels that never fell evidenceth that even in the state of Innocency God designed Superiority not Equality But since from the Fall it is apparent that the irregular passions of Men have caused a need both of Rules and Rulers Laws and Law-makers it was but reasonable that God should and it is most certain that he did design and appoint Government and so gave not man that freedom which is supposed to be the foundation of this Doctrine Hence we may note what God says to Eve Gen. 3.16 That her desire shall be subject to her Husband and he shall rule over her so that here is the first Dominion And the second we find in Scripture is Gen. 4.7 where God tells Cain that his Brother Abel's desire shall be subject to him and he shall rule over him and this was as he was the first-born though after he wickedly slew Abel We have reason to judge according to Scripture that God gave Adam as an universal Monarch Dominion over all his Fellow Creatures and of all Men that should be born into the World as long as he liv'd and the like may be said of Noah so that whatever property as it is clear Cain and Abel had and what share of Government over any part of the World either of their Sons had they held it all of them originally by gift and Assignment Allotment and Authority without awaiting the Election or consent of or entring into any Articles or Capitulations with the People that were to be governed by them So that in the Infancy of the World all Men were born Subjects either to him that was naturally their Father or to him that by Right of Primogeniture was representatively their Father That this continued for many succeeding Generations is most apparent in the Blessing that Jacob and Esau receiv'd from their Father Isaac For Rebecca knowing that such a Blessing was of the same force that now the last Will and Testament or Deed of Gift of a Parent is and of much more absolute force contrived that way to obtain the Blessing of Primogeniture for her Son Jacob that his Brother Esau might serve hm (c) Dudley Digs p. 15. After the multiplying of Mankind though I cannot say with a Learned Author there were so many absolute Princes within the compass of a Parish that a Man had scarce room to walk in a Territory when a Common-wealth was lodged in a Cottage yet it appears from Gen. 10.32 That the Families that sprung from Noah's Sons divided the Earth and gave distinction to Nations and the Cadets of the first Houses travelling to distant places exercised Authority and gave Laws to their Descendants and being thus separated to settle new Plantations every Planter becoming so by himself a Father encreased to a Family and that into divers Families those into a City and thence into divers Cities and at last into a large Dominion (d) Review of Observations p. 2. So that a King in the first Ages of the World was no more than a common Father either by natural right as a Parent or after by a legal Right as the eldest Descendant of such a Father and when the pleasantness or profitable commodiousness of one Soil allured several to covet it then arose Contests and the Conqueror possess'd it forcing the Conquered to seek other Habitations or made them his Slaves and so a Succession of some brave Princes enlarged their Dominions to Empires establishing them by just Laws and good Government So upon the overthrow and breaking up of Kingdoms Instance may be given that some victorious Person obtain'd the Peoples Subjection to him for that being depriv'd of their natural common Father and Sovereign they necessarily entertained such supply of their loss as their Fortunes could best afford them and whatever those conquered People did it was no other but the chusing of one to bear the known Office of the true natural common Father even as those might do who either like Swarms and Colonies voluntarily separated from the main Stock to more roomy and rich Plantations or those who escaped from the Conquerors Sword into a remote unpeopled Land setled themselves in Society and under the Government of one For as hereafter I shall make it appear the world was grown to a great Age e're any form of Government was known but what was Kingly Whereas if the People had known of any such Right they had of Government inherent in and connatural to themselves we should in the Sacred or Prophane Histories have had Instances of it whereas we find the very Savage Americans who if any People live according to natural Instinct to be govern'd by Kings and
Disobedience and Neglect of those who ought to be subject to it So that it is almost impossible to find the least Footsteps of Law that is by far so ancient as Government If we consider the Infancy of the World when Nations were divided by the Swarms that made new Colonies we may easily conceive that Differences and Quarrels would not onely fall out amongst them about Boundaries but within the District of one Government the Shares of distinct Families and Persons would be allotted and these would require the Preservation of those Peculiars from the Incroachment of Thieves Robbers or other mischievous Persons From whence must spring a necessity of Laws to prevent Domestick Quarrels and Injuries and to ascertain to every man his Right and effect those good things which would make the Society happy Which Laws as far as we have any Record of History were first appointed by those who first led the Colonies or such as they chuse out to assist in such a design of concern who being supream over the People had the only Power of making Laws and exacting obedience to them Consentaneous to which the Serjeants at a late Call gave this Motto A Deo Rex a Rege Lex The Benefits Societies enjoy by Laws But however we conceive of the first Authors and Institutors of Laws it no ways lessens the benefit all Societies enjoy by being govern'd by Laws adapted to the Constitution of the People and Government For as (m) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. lib. 1. c. 2. Aristotle observes Of all living Creatures man is the best so he is the worst if not governed by Laws and Judgment Both (n) Lib. 12. de LL. Plato and * Lib. 5. ult Eâ—kic Aristotle agree that Men Just and most Eminent in Vertue being as Gods among Men are under no Law living as regularly (o) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. lib. 3. c. 13. on their own accord as others constrained by the Laws for these good Men are Laws themselves exciting others to Vertue by their Examples Yet since this is but the Portion of a few there is a necessity of enforcing the Laws by Authority upon those that are not obedient to them nor a Law to themselves As to the use of Laws The Usefulness of Laws the (p) 1 de Oratore Orator tells us that by their Authority we are taught to subdue our Lusts to circumscribe and bound our unlawful desires to defend our own and restrain our Eyes and Hands from that which belongs to others They were saith the same Cicero (q) Major hareditas unicuique nesteum a Jure Legious quam aliis a quibus illa bona relicta surt Id. pro Caecinna invented for the security of every one a greater and more plentiful Inheritance coming to us by them than from those that left us our Estates These are fitted for the Diseases of the Common-wealth ex malis moribus oriuntur bonae leges They restrain Men from their depraved Appetites the over-boilings of their Lusts the debauchery of their Lives the Injustice of their Rapines stop the Effusion of Innocent Blood secure every Man's Interest instruct and dispose all to do well and secure them when they do so Hedges are set up saith Mr. Hobs (r) Civil Wars to stop Travellers and keep them in the way that is allowed and prescrib'd and for hindring them from chusing a way for themselves So Laws are made to guide govern and punish Men who presume to decline the Rule and chuse another to walk by that is more agreeable to their own Appetite and Convenience The poorest necessitated Man saith a (s) Fr. Whyte Sacred Laws Judicious Author amidst the Calamities of his wretched Life would yet be more unhappy were not Laws and Government his Sanctuary Oppression the heaviest of all miseries would crush him to pieces and break the Repose of his shortest Slumbers The malice of the Clown the dark Arts of the City would surround us and what we most prize tho' we want the comfort of it no Man's Life could be safe a minute without them nothing could be sure nothing certain no commerce no conversation These protect the Orphan the Widow and the Stranger Seneca elegantly calls the Laws Virtutes Armatas because they compel evil manners into good order for without Laws Men are but a more cunning and pernicious sort of Brutes and where they are instituted and prevail humane Nature is most civilized refin'd and polite It is said of the Liberal Arts that Emolliunt mores nec sinunt esse feros They soften Mens minds and manners they correct that churlishness of temper and addulce and mellow the austere sowre and crabbed Disposition tame and make gentle the Savage Natures file off the Asperities of them all which is equally true of the force and efficacy of the Laws put in Execution What would this great World we live in be less than a great Bedlam were it not for these Political Combinations civil appointments and Laws which in all places and Countries not only curb and command that untamed Pride Fury and Malice which too naturally resides in many But the Laws likewise form and incorporate Men into civil Societies making those persons capable of Living conversing and dwelling together as Men endowed with rational and religious Faculties who otherwise would appear no better than a company of wild and Savage Creatures The Honour given to Law-makers So great Veneration had the Ancients for the Laws that they esteem'd the Lawgivers (t) Stephanus Niger Exposit Carm. Pythag Leges primo rudibus hominum animis simplices eram Maximeque fama celebravit Cretensium quas Minos Spartanorum quas Lycurgus ac mox Atheniensibus quâ—sitiores jam plures Solon praeseripsit Tâ—â—it 3 Annal. Holy and such as had Correspondence with the Deities they worshipped and were while they lived for these great Blessings to their People deified So Minos among the Egyptians makes Mercury the Author of the Laws and among the Cretians Jupiter Lycurgus among the Lacedaemonians fathered them on Apollo Numa Pompilius derived them from the whispers of the Goddess Aegeria the Persians from Zoroaster Xamolxis among the Goths deduces them from Vesta and that Moses received the Jewish Laws from God Almighty we all believe So that as every where we find the Heathens make the Gods descend for their Production and celestial Wisdom to flow into them saith the learned Mr. White in his Sacred Laws of the Land in which little Treatise is comprehended a great deal of curious Learning and who further adds That as Livy allows to Antiquity mixing things humane with divine to deduce the Original of Cities from Gods or Goddesses to make their beginnings more majestic the same may be said of the Laws saith my learned Author if it be Lawful to Canonize any to carry them up to Heaven or fetch them down from thence that Glory is alone due to the
People onely they were of use being the Authors that all things might be reduced to the Power of the People whom they wrought upon by their Suasives to place or displace Magistrates or to enlarge or circumscribe their Power Therefore he scarce allows the (u) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Id. l. 5. c. 5. Name of Government to this kind of Republic because where the Laws have not Authority there is no Commonwealth for that these Demagogues making the Mobile Lord over the Laws and constantly raising Factions against the Rich Civitate ex una duas faciant of one City or Society made two So that in that Contest mostly an Oligarchy prevailed and by the petulancy of the Demagogues who led the People by Herds pretending as it was their Office (w) Neminem plebem injuria afficere that none should injure the People they exasperated the Nobility to subvert the Government or having got a powerful Ascendant usurped it themselves as the Philosopher instanceth in the Islands of Chios and Rhodes in the Cities of Heraclea of Pontus in the Colonies of the Athenians at Megaris the Nobles being abused and banished righted themselves by Arms and obtained the Government and Thrasymachus did the like at Cuma These Demagogues among the Grecians the Ephori among the Lacedemonians and the Tribunes of the People among the Romans are often compared as Officers of the same kind chosen to support the Peoples Interests The Philosopher gives us an account how the Demagogues comported themselves at the places before-named of which number he saith were Pericles Cilon Hyperbolus Lycurgus Hyperides Demosthenes Concerning the Ephori Of the Ephori (x) Saepe valde pauperes accidit esse in hoc Magistratu qui propter paupertatem sunt venales Polit. lib. 2. c. 7. Aristotle saith That among the Lacedemonians they had the greatest Power and being chosen by the People it often hapned that very poor men obtained the Office who by reason of their poverty were mercenary as he instanceth in the Andrici where they being corrupted with Money lost the City He further adds That though these were chosen by the ignorant Populace and often were men very unfit for their Office yet they had Judgment in Capital matters and did not judge in Cases of Death or Ignominy by written Laws but arbitrarily so that the very Kings of Sparta were forced to observe caress and reverence them As to the Tribunes of Rome The Tribunes of Rome they caused many grievous Troubles about the Agrarian Laws Sp. Cassius being the first according to Valerius that raised those Disputes and was slain by his Father though Livy and Dionysius say it was Licinius Stolo and after many years Q. Flaminius put the same in execution the Senate being against it So Gracchus Tiberius Titius c. did upon the same account raise great Commotions This was for the taking the ancient Possessions from the Rich and distributing them among the Poor Therefore (y) Giphan Comment in c. 7. lib. 2. Polit. Cicero saith It was a pleasant thing to the People for that they were thereby supported without Labour but the good Citizens resisted it because it would extinguish Industry and exhaust the Treasury and inure the People to Sloth From all which we may conclude That Democracy in its Constitution is onely fitted for small Principalities and in it neither Industry or worthy Persons can have Encouragement How obnoxious it is to Factions or must have a mixture of other Governments to support it in being headed by some few popular Persons or must have a shadow of Monarchy in the ruling Demagogues Ephori or Tribunes otherwise it cannot subsist This leads me to the Fifth Argument of the Philosopher against Democracy Democracy least durable That it was never found to be of any long continuance For (z) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. lib. 6. c. 4. he saith That all Tyrannical Constitutions are Popular And it is well known That of all Governments what is Tyrannical is the most short-lived Liberty being the End and Scope pretended according to the Fundamental Constitution of Democracy (a) Vicissim parere imperare to Obey and Rule by Turns the sweetness of Command induceth them that have once obtained it to continue it and the Slavery of obeying such Fellows and Companions continually provokes others to cast off the Yoke So that from hence Jars and Feuds shatter the Government in pieces Besides the unwieldy Body of the People seldom continue long in one mind nor can transact things without delegation of Power to some few by all which their instability is discovered and the shortness of their continuance shews the feeble and impotent Principles they are founded upon For where ever it hath had any duration it hath not been from its intrinsick adapture but from the mixture of other Forms in their kinds more durable Democracy being in it self such a Rolling-ground that nothing stable can be built upon it It is not to be denied Where Aristotle allows of Democracy that Aristotle in some Cases allows of Democracy but it is where the (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. lib. 6. c. 4. Multitudes live by Husbandry Pasture or Feeding of Cattel For these being continually employed have not much publick Business nor leisure to attend the Assemblies it being more pleasant and profitable for them to mind their private Affairs than to bear Office where little Profit is to be had But he likewise observes That those that lived upon Tillage and Pasture being the ancientest sort of People before Luxury brought in Handicrafts and Artizans easilier yielded to the Government of a Single Person or Tyranny or Oligarchy so long as they could enjoy their Country Farms in peace Whereas those in Cities consisting of Tradesmen Artificers the mercenary Multitude and such as lead an idle Life having Leisure and Curiosity to carry them to the Assemblies were more subject to Democracy or Aristocracy or any Novelty or Change There are three things which render Democracy most taking with the Vulgar The plausible Pleas for Democracy answered First Pretended impartial Administration of Justice Secondly The specious but empty Name of Liberty Thirdly The so much applauded Equality by which they seem to reduce their Civil Constitutions to the primary Laws of Nature which gave to all men Common Right Concerning the first saith a Judicious (c) Dudley Digs of Resistance p. 22. 1. That Justice is not so impartially administred Author whose Discourse on this Head I shall epitomize Their Hopes that Justice should be more equally administred are grounded upon this That though some Rivers may be corrupted yet the Ocean cannot A man may satisfie the Interests of some few and corrupt them into favour and respect of Persons but it is hard to do the same with a Multitude for to buy Justice of so many would be no thriving Trade But this though plausible is but a very
from the military Tribunes and they having the name of Tribunes from the distinction of the Romans into Tribes that they might be distinguished from the military Tribunes were called the Tribunes of the People At (o) Pighius Tyrannofugio first they were only two but after encreased to the number of ten They had power to hinder any Proceedings in the Senate which they thought might prove prejudicial to the Commons At (p) Stadius in Florum lib. 3. c. 2. Eorum Autoritas magis in intercedendo quam jubendo first they had not Authority to enact any new Decrees as afterwards by abusing their Authority and by Connivance they usurped for in old time they sate (q) Pighius ut supra without the door of the Senate whither whatsoever was determin'd within the Senate was sent to them to be perused and if they approved it they subscribed a Roman T for Tribunus When any new Laws were to be proposed the (r) Godwyn's Roman Antiqu. lib. 3. sect 2. Praetors Consuls Dictators Interrex Decemviri military Tribunes Triumviri and Tribunes of the People only had liberty to propose them and they were exposed to view of the People for three Market days and after the Magistrates assembled the People to hear the Law which by the Proponent was pleaded for by an Oration and seconded by others and if not liked it was opposed in the same manner The People being assembled according to the triple distinction of them into Tribes and the division of each Tribe into ten Curiae or Parishes and the Centuries or Hundreds the Assemblies were called Comitia Tributa Centuriata or Curiata Now into a Pitcher were put the names of these several divisions and that Tribe or Centuries Name which was first drawn was called Tribus vel Centuria Praerogativa because they were first asked their Voices and commonly the vote of that was followed by the rest especially in choice of Consuls the Curia upon which the first Lot did fall was called Principium (s) Hubert in Lib. 1. Cicer. Epist Serm. 2. Now while the People were busy in their Lottery if any Tribune of the Commons should intercidere or forbid the Proceeding he might be heard and the whole Assembly was for that time dismissed or if the Consuls commanded supplications to be offered up in behalf of the Emperor or if it fell on some forbidding of Feasts or if any were seized with the Falling-sickness or the Soothsayers found any unlucky Signs upon any of these the Assembly was dissolved otherwise the Law that was approved by the People was recorded being graven (t) Tacit. Annal. 11. in Brass and put in the Treasure house That which was determined in the (v) Sigonius de Jure lib. 3. cap. 1. Parish-Assemblies was called Lex Curiata that in the Centuries Lex Centuriata that which was in the Assembly of the Tribes was not called a Law but Plebiscitum CHAP. VIII The Inconveniences of all kinds of Republic Governments I Shall now consider all these forms of Commonwealths in gross and hope to satisfy the ingenuous and unbiass'd Reader That if a People were in a capacity to chuse their own Government they should have no reason to chuse a Common-wealth rather than Kingly Government much less that they should endeavour to innovate or introduce it where already so Geometrically composed as it is in England both for the glory and benefit of the King and People It is Judiciously noted by a late (a) Nalson's Common Interest c. 3. The Benefits designed in all Societies Learned Writer That the happiness of all Societies principally consists in the securing domestic Peace or protection from foreign Enemies securing to every Member of the Society their particular right and property free from encroachment and oppression or in the equal distribution of Justice to all according to their proportion of Reward or Punishment Through all which heads I shall endeavour to shew that in Commonwealths these Particulars cannot or have not so effectually been secured as in a rightly constituted Monarchy First as to the securing domestick Peace 1. Securing Domestick Peace the very constitutions of Commonwealths requiring many Magistrates of equal Authority subject to the Political Diseases of State Viz. Covetousness Ambition Oppression and Faction and all the Concomitants of these make them more subject to Intestine Discords than Monarchy can be First Ibid. Covetousness in Commonwealths-men causes Discords It must be considered that in all Commonwealth Governments there is a necessity of change of Persons either annually chosen or to be for some few Years duration and all such must at the same time intend the interests of their private affairs separate from the public and there being most tempting Probabilities of a private and particular advantage to be made of all publick Trust where there is Power it is a perpetual Spur to ambitious and selfish Spirits to court such Employments which are like to be serviceable to their Honour or private Fortunes and the (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit lib. 5. c. 4. best Men being restrained by their modesty and paucity those that have designs by direct or indirect ways wind themselves into those places and by the rotation knowing they shall not long enjoy them they will improve the time in enriching themselves and connive at others that do so lest they themselves should be called to an account every ones rapaciousness being likelier to be so much the eagerer because he knows it may not come again to his turn to have the Quarry to prey upon Therefore the common interest if it be regarded must be only as it is subservient to these By-ends Thus in our late Republic the great Business even of the zealousest Pretenders to the Public was to enrich themselves and their Confederates as was apparent by the considerable Estates they had even after they had been forced to disgorge those fat Portions of Crown Bishops Dean and Chapter and Cathedral Lands By this observation we may conclude that the constituent parts of this Government being ever like to be such the miserable People must be continually spunged to feed so many greedy Worms and when the Prey grows scarce these Blood-Hounds will be sure to fight who shall get the best Share Besides there must be continual Heart-Burnings and Part-making Factions among them when those that are endowed with (c) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. l. 5. c. 7. great Souls or are equal in Fortitude or Vertue have not the eminentest command at least as they judg according to their Worth and Merits By which means some will be carrying things by Arbitrary Power over their Equals as the Philosopher instanceth in Pausanius in Lacedaemon Hanno at Carthage Lysander and Eniadas and the Partheniae who judging themselves equal with those that had rule and being by them slighted and branded with the title of Bastards conspired to have slain the Senate and Optimacy To instance in
all the Factions in Commonwealths were to write a voluminous History I shall touch upon some and show that the causes either given or taken will always be the same in these kinds of Government the very Constitution of them by the purity and equality of Dignity and Power naturally producing Jealousies Animosities and Aemulations whereas the (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. l. 3. c. 15. Philosopher well notes that many may disagree among themselves but one cannot The difference of Judgment as to Conduct and Managery among multitudes of Equals embarrassing Debates the Result must be according to the prevailing of some Faction Every one Judging most advantageously of his own council and advice and those whose Councils are rejected will look upon it as a Diminution of that esteem for Wisdom and Policy which they think they deserve and these Discontents will occasion making of Parties entring into Confederacies and Combinations of Faction and frequently end in popular Insurrections Tumults and Disorders to which Republics by their make are thus propense Since therefore they are the seminaries of Faction we can expect no wholesome Fruit from such corrupt Seed for all factions endeavour to suppress their Opposites and those heats underminings and jarrs are not confined to their Senate-house but are dispersed according to the places of their Residence Estates Marriages or Alliances through the whole Dominions every one strengthening his Interest what he can and the nature of Mankind being to side with one or other if the Parties be Proud Ambitious Covetous or Imperious they will be most absolute and arbitrary in such places where they can prevail and if Persons admitted to Copartnership of Rule be not of their own Nature guilty of such Vices the desires of every one to be reputed the wisest and to gain the leading of a Party or obtain the supream Authority are apt to taint such who being exalted not born to Greatness would have all to judg that such Promotions are the pure-pute effects of their Merits and whoever sets that high value upon himself cannot escape the danger of unsupportable Pride as well as Vanity which will hurry them on to over-bear all Opposition I shall now proceed to some few Instances of the Ruins brought upon many by Faction The Athenian Changes and Factions At Athens after the death of Codrus the race of their Hereditary Kings ceased and there succeeded Kings for term of Life like as the Elective Kings of Poland After twelve such Kings ending in Alcmenon they constituted Decennial Kings or Archontes whereof Erixias was the last and then they passed to annual Magistrates like Lord Mayors or Burgo-Masters and all these changes were by the prevalence of one Faction after another Solon was one of these yearly Magistrates and he compiled their Laws such as the Romans in after-times sent to peruse and reduced into twelve Tables These were framed unto the Practice and maintenance of popular Government which in Solon's own Life-time were violated and almost extinguished for Pisistratus the Son of Hippocrates finding the Citizens distracted betwixt two Factions whereof Megacles and Lycurgus two Citizens of noble Families were become the heads took occasion by their contention and Insolence to raise a third Faction more powerfull because more plausible for that he seemed a Protector of the Citizens in general and having once got love and credit he wounded himself and feigned that by Malice of his Enemies he had like to have been slain for his love to the good Citizens and so procured a Guard and made himself Lord but he was soon driven out by Megacles and Lycurgus and then the Aemulation began afresh betwixt the former Factions and Megacles finding himself too weak called in Pisistratus but he was once more expelled and was restored a third time and governed Athens seventeen Years and his Son Hippias succeeded him who was at last forced to fly to Darius I shall under this Head only touch upon one example more in Athens Concerning the 30 Tyrants of Athens After the Lacedaemonians had subverted the Walls of Athens thirty Men were appointed by the People to compile a Body of their Laws and these had supream Authority and were made Judges and in cases wherein the Laws were defective had power to give Sentence according to their own pleasures At first they exercised their Authority upon lewd and wicked Persons such as were odious to the People But afterwards all sorts of People under the notion of Perturbers of the Peace were Fined Imprisoned or put to Death according as they among themselves judged fit To strengthen their own Tyranny they associated three Thousand Citizens to them the rest they disarmed exercising the greatest Tyranny imaginable upon them and agreed amongst themselves that every one should name one whose Goods should be seized on and the owner put to Death upon which Theramenes one of the Thirty discovering his detestation at those proceedings though there had been a Law that none of the three Thousand should suffer Death at the appointment of the Thirty but have a legal Tryal yet Critias one of these thirty Tyrants ordered Theramenes's name to be blotted out of the Number Theramenes urged the ill consequence to the rest of the Thirty if without any just reason the names of any might be expunged by the overruling of one or more of the number but every one thought fit rather to preserve his own Life by Silence than presently to draw upon himself the danger which as yet he thought concerned him little and perhaps would never come near him so the Tyrants interpreting Silence Consent he was forthwith condemned and compelled to drink Poyson These Proceedings caused many Citizens to fly who under the conduct of Thrasybulus made head against them and at last the Lacedemonians removed the thirty Tyrants to Sparta and the Citizens rose against the Captains of the tyrannical Faction and slew them as they were coming to a Parley and so put an end to that worst of Miseries they had undergone since those thirty were constituted In which sad History we may observe that these Tyrants were elected by the People and at last after their outragious cruelties were by the People destroyed and no doubt they at first appeared such to the People as they might confide in for Administration of Impartial Justice into which belief they had cunningly bewitched them and they were by the same Hands that raised them demolished For as Sir (e) History p. 278. W. Raleigh well observes in popular States when any mischief happens the People take revenge on the Commanders and where any Judgment is left to them as in popular States they will be always pushing on for a Share there will be very dismal and indirect Proceedings and when their Judgment proves sound it is by chance rather than otherwise In Carthage Of Factions in Carthage Factious and disorderly popular Government was as fatal as in any other place Hanno and Bomilcar
Romans Concerning the Roman Ingratitude and onely single two or three of the many Examples of their Ingratitude to their deserving Chiestains to illustrate That Rewards were not bestowed as they ought to have been even to such as were the greatest Preservers of their Country and such as raised the Glory of the Roman Name to the highest pitch of Glory T. Martius Coriolanus called Coriolanus had conquered the Volsci and Aequi yet under pretext that he had advised to sell Corn in time of Dearth at an higher Rate than was convenient he was banished Yet he took not that Revenge he might have done in joyning with the Volsci Furius Camillus subdued the Falisci Furius Camillus but was banished the City upon a Suggestion of some Inequality of dividing the Spoil and retired to ARdaea from whence when the Gauls under Brennus had got all Rome but the Capitol he forgetting the Ingratitude of his Country drew an Army together with which he fell upon the dispersed Gauls and so saved his Country The two Scipio's strangely enlarged the Roman Empire The Two Scipio's by conquering every place where they were employed Publius Scipio the elder Brother overthrew Hannibal and subjected the whole State of Carthage by which he deservedly had the Style of Africanus as his Brother had that of Asiaticus by conquering the Kingdom of Macedon and giving Laws to all Greece and other Territories in Asia Concerning the elder the Senate was unwilling he should carry the War into Africk But the People were earnest for it Concerning Publius Scipio the elder Brother Upon which the Learned (x) Sir Walter Raleigh l. 5. c. 3. sect 18. Historian and Statesman observes That it is often found in Councils of State that the busie and obstinate Heads of a few do carry all the rest and many times Men make a surrender of their own Judgments to the Wisdom that hath gotten it self a Name by giving happy Directions in Troubles by-past therefore he that reposeth himself upon the Advice of many shall often find himself deceived The Counsel of the Many being wholly directed by the Empire of a Few that oversway the rest For here Q. Fabius was accounted the Oracle of his time for his wary Nature suited well with the Business that fell out in the chief of his Imployment therefore others adhered to him that was grown old in following one Course from which they would not shift as the change of Times required But the People who though they could not well advise and deliberate yet could well apprehend embraced the needful Motion of Scipio and furnished him with all Supplies and Furtherance they could From hence I may note the Inconvenience of this Government wherein sometimes the Senators shall be led by one or some few one way and then by others and sometimes the People shall over-rule the Votes of the Senate For though this may be fortunate at some times yet at others it may be as fatal The great Success of Scipio was celebrated with that excess of Joy and deservedly as Rome perhaps never shew'd the like and his Brother L. Scipio's Triumph was not much less than it Yet these two so famous Brothers afterwards were called one after another by two Tribunes of the People to Judgment in probability by the instigation of some of the Faction of the Senate against them The African could not endure that such unworthy Men should question him of purloining from the common Treasure or of being hired by Antiochus to make an ill Bargain for his Country When therefore the Day of Answer came he appeared before the Tribunes not humbled as one accused but followed by a great Train of his Friends and Clients with which he passed through the midst of the Assembly and having Audience told the People That upon the same day of the Year he fought a great Battel against Hannibal and finished the Punic War by a signal Victory In memory of which he thought it no fit Season to brabble at the Law but intended to visit the Capitol and there give Thanks to Jupiter and the rest of the Gods by whose Grace both on that day and at other times he had well and happily discharged the most weighty Business of the Commonweal and that if from the seventeenth Year of his Life until he now grew old the Honourable Places by them conferred on him had prevented the Capacity of his Age and yet his Deserts had exceeded the Greatness of those Honourable Places that then they would pray That the Princes and Great ones of the City might still be like to him So all followed him except the Tribunes and their Slaves and one of the Cryers by whom ridiculously they cited him to Judgment until for very shame as not knowing what else to do they granted him unrequested a longer Day But after when he perceived that the Tribunes would not let fall the Suit he willingly withdrew from that unthankful Rome that could suffer him to undergo such Indignities and so spent the rest of his time at Linternum Concerning Lucius Scipio the younger Brother The same Tribunes proceeded more sharply with his Brother Lucius Scipio the Asiatick whose wise Conduct and Valour had subjected Greece and Macedonia to the Roman Yoke and extended their Empire over those rich Countries They propounded a Decree unto the People touching Money received of Antiochus not brought into the Common Treasury that the Senate should give Charge unto one of the Praetors to inquire and Judicially determine thereof And Matters were so carried against him that he was condemned in a Sum of Money far greater than his Ability and for non-payment his Body should have been laid up in Prison but he was freed from the Rigour of this by Gracchus the Tribune and his Estate being confiscated when there neither appeared any Sign of his being beholden to Antiochus nor there was found so much as he was condemned to pay then fell his Accusers and all whose Hands had been against him into the Indignation of the People It is observed That Cato the elder who had been his Treasurer was a Promoter of this A Man saith Sir Walter Raleigh of great but not perfect Vertue Temperate Valiant and of singular Industry Frugal of the Publick and of his own who though not to be corrupted with Bribes yet was unmerciful and unconscionable in increasing his own Wealth by such means as the Laws did permit Ambition was his Vice which being joyned with Envy troubled both himself and the whole City And some write That Fabius Maximus out of some private displeasure countenanced these Proceedings From these and other Examples it may well be noted Summary of the Reman Discords how this famous Commonweal was pestered with Faction the want of sufficient Imployment were Sparks that help'd the kindling of the Fire of them which now began to appear and first caught hold of those great Worthies to whose Valour and Conduct Rome
〈◊〉 〈◊〉 〈◊〉 〈◊〉 and according to the Use of the Country for that the Barbarous Nations were more prone to Servitude than the Grecians and the Asiaticks endured with less trouble than the Europeans that Command which he calls Absolute as of Masters over Servants This he calls in reality 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Tyrannical Government but Kingly also in that it is firm legitimate and according to the Use of the Country For that he (s) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. lib. 3. cap. 10. Hâ—insii saith Citizens or Subjects defend Kings but Guards of Strangers are employed by Tyrants Kings commanding lawfully over the willing and Tyrants over the unwilling and without Rules of Law The third kind he calls that which among the Grecians was styled the Aesmynetian And this he (t) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Optiva tyrannis i. suffragio 〈◊〉 saith was an Elective Tyranny either perpetual for Life or for a time And this because it was a Command over the Willing such Persons being elected he styles a Kingly Government and instanceth in the Mitylenians who chose Pittacus to be their King against Alcaeus and Antimenides who were banished Such (u) Halicarnassâ—us lib. 5. Dionysius makes the Roman Dictators Such the Cumaeni by an honester Name styled their Tyrants and such were the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of Athens Such a Kingdom Timolio held at Syracuse which he as well as Pittacus spontaneously resigned and did not convert into a Tyranny as Dionysius did or as Sylla and Julius Caesar did at Rome and Aratus at Sicyon according to the (w) Lib. 3. de Officiis Orator The last kind he calls (x) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lib. 3. Polit. c. 10. Heinsii Heroic because it was used in the Heroick Ages and had three Characteristicks of true Kingly Government That it was a Power exercised over the Willing Fatherly and Legitimate For he saith the first Kings either for the Benefits they conferred on the Multitude by Invention of Arts Conduct in War or leading them out in Colonies or supplying them with Lands governing those who lonies or supplying them with Lands governing those who freely yielded to obey were in that esteem and had that Power and Authority which was requisite These had command in War and in things sacred where there were no Priests and did determine Causes and all these things some Kings administred without Oath others were sworn to the observation of them by the lifting up the Scepter and (y) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. concludes that in ancient times Kings had Rule and were Lords over all affairs of the City and those at home and abroad From whence and from what the Philosopher delivered in the beginning of this work and elsewhere (z) Commâ—nt in lib. 1. Polit. initic Giphanius with Thucydides concludes That these Hereditary Kings had such a Power as was restrained by certain Laws and they did not Reign as they listed and at their Pleasure but by certain Prescripts of Laws such we may presume as they ordained This was that Monarchy which was known in the first Ages of the World All People in all Ages and all places having by constant Experience found it most conducive to their Happiness and well-being For had there been any other form under which Mankind could have rationally promised themselves more or more certain Happiness than under this all humane care would long e're this have hit on it and there would have been an universal Regifugium But supposing we should quit these Topicks of Monarchy Other commendable Qualifications of Monarchy being according to the Law of Nature and that it is venerably for its Antiquity there are other Commodities wherein it excells other Forms As first that it is freest from the Canker of Faction which corrodes and consumes all other Governments Hence the most judicious (a) Tacitus 1. Annal. Historian tells us what Asinius Gallus replied to Tiberius That the Body of the Empire is one and so is to be governed by one Soul and in (b) Arduum sape eodem loci potentiam concordiam esse Idem another place tells us how difficult it is to find Concord among Equals in Power especially where not only as at Sparta there were two races of Kings governing at once but as many of them as there were Senators or Magistrates which by Bands and Confederacies are restlessly making Parties against each other whereby the Administration rowls from one Faction to another whereas Kingly Government is uniform and equal in it self and when by Factions Commonweals have been brought almost to utter ruin a (c) Omnem potestatem ad unum conferri pacis interfuit Tacitus 1. Histor single Persons Conduct hath restored all As (d) Perculsum undique ordinavit Imperii corpus quod ita haud dubie nunquam coire consentire potuisset nisi unius Praesidis nutu quasi anima mente regeretur Lib. 4. c. 3. Florus writes of Augustus Caesar that he ordered the shaken and distracted Body of the Empire which without doubt could never have been united in one Form again unless by the Direction of one President as a Soul and Spirit Even so we experienced in his late Majestie 's admirable yea miraculous Retauration which effected as great Blessings to these Islands as that of Augustus to the Roman Empire Besides it is a strong Argument for the Preference of Monarchical Government to all sorts of Republics that in all popular States we find all great affairs managed by some one leading Man who by the dexterity of his Address Power of his Eloquence or the Strength of his Arguments induceth so many as are necessary to join with him to effect them unless when by contrary renitency they are dissolved into Faction So when the Senate of Rome was in a most critical Debate An delenda esset Carthago Cato shewing them the Grapes which a few Years before grew there illustrated from thence the dangerous vicinity of so potent and opulent a State as had contended with them for the universal Empire and wanted only the skill of an uti Victoria to have effected it By which he cooled the warm Debates of the Senate and brought them to an affirmative Determination So Cicero often prevailed so Demosthenes and so the Daemagogues in popular States who are (e) Nalson's Common Interest pro tempore Monarchs the very head of every Faction in a Republic being a King in Disguise or a Tyrant in the dress of a Private Man The single Government being freed from the prime Cause of all intestine decay viz. Faction It necessarily follows that it must be of longer Duration Monarchy more durable as being built upon stronger and firmer Foundations than any other Model Ambitions Aemulations Hostile Parities popular Insolencies Senatorian Tyranny tumultuous Elections and infinite causes of Discords are the inseparable Associates and close Conomitants of all other Forms But in Monarchy hereditary
King More particularly the same (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Polit. l. 5. c. 11. Philosopher describes a good King to be one that no ways governs Tyrannically but as the Master of a Family with a Royal mind not challenging or appropriating all to himself but procuring good for and defending his People and Subjects in the course of his Life using Moderation in all things Affable to his Nobles and in Company desirous to show himself of easie Access sweetning his Government to his People by his gracious Declarations By these saith he (c) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. his Empire will not only be more Beautiful more Esteemed and more Fortunate but more Durable being not dreaded or envied of his Subjects but commanding over the good and not over broken and depressed Spirits Such Princes use a moderate just Government according to the Laws more Majorum contented with Power sufficient to support the Government no ways injurious to their People but willing that some things should not be in their Power that they may the more securely perpetuate what they enjoy For (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. they that are Lords over fewer things necessarily subsist the longer So it is recorded of (e) Lamprid. in vita Molliorem sibi potestatem contemptibiliorem sed securiorem diuturniorem Alex. Severus that when his Wife Menemia Daughter of the Consul Sulpitius and Niece of Catulus told him That he had made his Power gentler and more despicable by not taking State enough upon him and Governing more gently He gravely answered That it was more secure and durable The very same Aristotle relates of Theopompus Therefore saith a grave (f) Ille Reipublicae status optabilis firmus est in quo privatim sancte innoxieque vivitur publica Justitia Clementia vigâ—m Polyb. lib. 6. Histor Author That State of a Commonweal is to be desired and is most firm in which private Persons live Holily and unoppressed or Inoffensive and Justice and Clemency are in full Vigor by the Princes care Therefore (g) Verendus potius subditis est quam metuendus Stobaeus Musonius in Stobaeus saith a Prince should so deport himself in his Government That he should rather be revered and honoured than feared by his Subjects The excellent (h) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polyb. Hist lib. 5. Greek Historian tells us That the Practice of Tyrants is to Lord it over the Unwilling by Terror and vitious Exorbitance being always engaged in mutual hatreds betwixt him and his Vassals But on the contrary Kings doing good to all with Liberality and Clemency govern those that freely are subject to them living in a mutual Benevolence and Charity with his People It is by such a Deportment of a Prince to his Subjects that a Prince receives much inward Contentment For as the Painter delights when he hath finished a curious Piece and every Artist when he hath shewed great Mastership in his work so a Prince when he hath by his prudent wise and merciful Government made his Reign Prosperous and Happy to his Subjects The Satisfaction and content a good King takes in his Administration cannot but receive the greatest satisfaction to himself and will thereby acquire a most glorious and durable name It was a Kingly saying of (i) Cum omnia possumus sola credimus licere nobis laudanda Variarum lib. 50. Theodahad in Cassiodorus That whereas Kings can do all things they think and believe those things only to be lawful for them to do which are Praise-worthy As the Pilot saith the Orator designs a prosperous Voyage The Subjects Benefit the End of good Kings the Physician Health to his Patient so the Supreme Magistrate should have care of his Subjects the (k) Beata civium vita praeposita Attic. l. 8. c. 11. 5. de Repub. Lives of them and their Fortunes for that End being committed to them Hence Tacitus commends that Prince who lives with his People as a Parent with his Children when neither to his own Breast Closet or (l) Nihil in penatibus ejus vaenale aut Ambitioni pervium 13. Annal. initio Family any Access is made by Ambition or in which any thing is Mercenary So we find in the same Judicious Historian the advice of Galba to Piso when he had adopted him was That the surest and shortest Rule to sort good from evil was to weigh with himself (m) Cogitare quid aut nolue 〈…〉 Principe 〈◊〉 â—olueris 1 Histor what under another Prince he would have allowed or blamed Therefore Nerva gloried most That he had done nothing in his Government whereby he might not safely live although he should lay down his Empire and live again a private Life So Trajan said He would approve himself such an Emperor over his Subjects as He being a private Man would have wished the Emperor to have been Therefore (n) Panegy Pliny so highly commends the Peoples Vows for him quod bene Rempublicam ex utilitate civium rexerit Thence the same (o) Non minus hominem se quam hominibus praesse 〈◊〉 Ib. Panegyrist commends him That he did not only consider himself to be mortal Man but that he was appointed to govern Men not Brutes It was to the fore-mentioned Nerva that Fronto said (p) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dio. in Nerva It was a great Evil to have such a Prince under whom none can have Liberty but it is worse when every one hath Liberty to do as he list the one discovering a very Tyrannical Disposition and the other a great remissness and negligence in Government Therefore (q) Nec tihi quod rarissimum aut facilitas Auctoritatem aut severitas Amorem diminuat Vita Agricolae Tacitus adviseth that a Prince's Easiness and too much Lenity weaken not his Authority or his too great Severity lessen the Love of his Subjects Lipsius (r) O vere justum legitimum illum Principem qui in summo fastigio non minus magnus quam bonus audire desiderat duas res diversissimas potentiam ac modestiam miscet quem prodeuntem certatim velut beneficum quoddam Numen aspiâ—nt inter amorem timoremque medium Praefat. ad Imperator Reg. c. gives us this noble Character of a good Prince That being raised to the highest Eminence desires not to be accounted more great than good and mingles two the most different things Power and Moderation whom his Subjects in his Progress look upon as a beneficial and comfortable Divinity so that the People attemper'd with Fear and Love with interchangeable Sentiments doubt whether they shall salute him as their Lord or Parent All Princes must necessarily be most dear to their People saith the (s) MS. Speech 1571. Such Princes dear to their People Chancellor to the Parliament Anno 1571. dearer than their own Lives when they by their Actions demonstrate that
they make the whole Scope and design of their Government the Prosperity of their People Among the chiefest of which Benefits that of Peace is to be most valued as being the end and mark that all good Governours direct their Actions to In another place he makes it a sure sign of good Princes when they wish themselves all the good qualifications and fittedness for Government and all the Vertues of the greatest Princes for their Subjects good this being a full Demonstration how precious and valuable the safety and quietness of their Subjects are to them The learned Lord Chancellor Bacon marshals the degrees of Sovereign Honours under five Heads Degrees of Sovereign Honour every one of which are as so many Characteristicks of great and good Kings First the (t) Essays of Honour and Reputation 1. Conditores Imperiorum Layers of the foundations of Empires as Romulus Cyrus Caesar â— (u) 2. Legislatores perpetui Principes Secondly the Founders of their Laws or Law-makers who by constituting good Laws are as second Founders perpetual Princes because they govern by their Ordinances after they are translated from this World Such were Solon Lycurgus Justinian and others (w) 3. Liberatores Salvatores Thirdly such as have freed their People and delivered their Country from Servitude or have put an end to and composed long civil Wars as Augustus Vespasian our King Henry the Seventh and the Fourth of France and most eminently our late Royal Sovereign (x) 4. Propagatores vel propugnatores Fourthly such as by honourable ways enlarge their Territories or make a noble Defence against Invaders Lastly such who reign justly and make the Age good wherein they live therefore stiled Fathers of their Country such both was and is our late and present Gracious Soveraigns So that such a Prince as others describe according to their Wish or as an Exemplar the English Nation Character of King Charlâ—s the Second and all his Majestie 's Subjects above all other Kingdoms in the World have been and are Blessed with under the Reigns of two such unparallell'd Royal Brothers We may justly give our late Sovevereign of immortal memory that Character which we find in Arnisaeas as the Idea of a good Prince That leaving entirely to his Subjects their Properties governed according to God's Nature's and his own Laws founded upon Equity and Justice or that of (y) Rem pepuli esse non suam privatam Dio. vita Hadriani Hadrian's that so managed his Government That all might know that he studied the Peoples not his own private Profit Surely we may hope for great happiness under our present Sovereign Character of King Jarâ— the Second who hath not only been a Copartner in his Royal Brother's sufferings but a Co-adjutor in the management of his great Empire and hath so signalized himself in the hazzard of his Life and glorious Atchievements for his Country and is endowed with all the Heroic Accomplishments that ennoble Princes in the Records of Fame so that we have the greatest Moral assurances if we disturb not his Reign by Sedition and Rebellion that he will out-go most of his Ancestors in the prosperous Government of his People as well for their Glory as their Peace and Tranquillity Religion in a Prince his Duty and Advantage CHAP. XI The Care of Religion a duty incumbent upon Kings IT is not enough to give a Character of a good King in general but we must descend to Particulars and first of his Care of Religion according to that of (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit lib. 7. c. 8. Aristotle That in all Government the first and principal Concern of a Prince is to take care of things Divine For according to the (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Diog. â—pud Stohaeâ—m Stoick It becomes him that is the Best to be worshipped by the Best and that the great Sovereign of the Universe be worshipped by his Earthly Vicegerents For of old it hath been noted That many advantages both accru'd to the Sovereign and People when the Prince was truly Religious Therefore the (c) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. l. 5. c. 11. Philosopher tells us That it is the duty of the supream Governour principally to take care of those things which appertain to the Deity for thereby the People are more obedient to their Princes as not fearing injustice from them For that it is to be supposed that he that is Pious and Just will not do an Unjust and Impious Action and by it he is more secure in the assurance of Protection from the Deity whereby he may hope for its Defence and Patrociny from the Seditions and Treacheries of his Subjects having the Deity to fight for him Consentaneous to which is what (d) Omnia prospere eveniunt sequentibus deos Adversa autem spernentibus Lib. 5. Livy observes That all things happen to them prosperously that follow the Gods and as unprosperously to them that despise them Upon the same Ground it is that the Orator saith The Romans had not conquered the Spaniards by their Numbers or the French by their Strength the Carthaginians by their Stratagems or Grecians by their Arts nor the Italians and Latines and their Nation and Land by their Native and Inbred Wisdom but by Piety and Religion and (e) Atque hac una sapientia quod Deorum Immortalium numine omnia regi gubernarique perspeximus gentes nationesque superavimus De Aruspic by that Wisdom alone that they understood all things to be governed by the Deity they had overcome People and Nations Agreeable to this Affirmation is what we find recorded of Numa That his care of Religion was the chief cause of the succeeding Felicity of Rome For as the (f) Machiavel's Disc lib. 1. c. 12. Florentine Secretary observes That Romulus exercising his People wholly in Military Affairs his Successor Numa finding he had to deal with a Fierce Usefulness of Religion to civilize Subjects Rude Cruel and Ungovernable people thought the way to attemper and soften their minds was to devise some Religious Institutions which being once given credit to might make them more pliable to Government Therefore (g) Omnium primum ut rem ad multitudinem imperitam illis seculis rudem essicacissimam deorum metum injiâ—iendum ratus est Lib. 1. Livy saith That of all things he thought the fear of the Gods to be the most efficacious means for the ordering the unskilful Multitude rude in that Age. And (h) Numa Religionibus divino jure populum devinxit 3. Annal. Tacitus tells us That with Religions and Divine Laws he yoaked them in obedience and so intent he was in the Observance of the Service to the Gods he had introduced that Plutarch tells us That he being one time Sacrificing was told that the Enemies were advancing against him but he would not desist but returned (i) At ego rem divinam
great Ceremonies swear the points of their Contests He also further declared that those who usurp'd upon the Limits of others Possessions were not only to be punished here but were doomed to Torments in Hell to the end that every Man might be afraid to seize on the Goods of another Mans. These therefore I look upon as the Fundamentals of civil Religion in the rendring so venerable the Faith by Oaths whereby not only Allegiance to the Prince but Society was established upon that firm Basis of mutual Confidence and by the securing Propriety the whole Compages of Government was preserved We ought likewise to consider that there are moral Vertues which conciliate such a Reverence to the Practisers of them Moral Vertues very useful to Government that they are great helps to preserve and make flourishing every Kingdom and Commonweal and which constitute a considerable Religious Portion of civil Government and when Princes and People exercise them both live happilier than when without them great Sanctity and Devotion are only pretended The Vertues I put in the Balance against Bigotry in Religion Better than Hypocritical Holiness are Justice Temperance Charity Fortitude Magnanimity which are branched out into many flourishing Boughs that bear the Golden Fruit upon them such as these Not to do to another that which we would not have done to our selves To live contentedly in our Station To be obedient to our Magistrates and Superiours To live in Charity with all Men To be Compassionate to the Poor and Needy To give no evil Example in any sort of Debauchery To consider that we come into this World to live according to the rules of Life the Sovereign Being of all hath pleased to reveal That we do nothing here which may forfeit our more durable Inheritance in the other World These were the Buttresses of Government in the Heathen World when the whole train of Moral Vertues without Hypocrisie and Dissimulation were practised and can Machiavel or any of his Disciples find that the same things are not pressed as a duty upon all in the Christian Religion there seeming to me this only advantageous difference That the Foundation and Basis upon which these Moral Vertues rest in the Christian Religion is more firm more regular and more curiously hewen and polished and more consentaneous to the Dictates of right Reason in that they are implanted and promulged as standing Laws by one God Omnipotent than in the multiform jarring Polytheism of the Heathens who for every different Species of things or qualifications of Beings introduced a presiding Spirit In answer to the second Plea of the Secretary That Religion doth not dis-spirit Men. That our Religion hath dis-spirited Christians I think every one will be furnished out of the Armory of his own Experience or the perusing of antient and modern Histories with Shield and Buckler against such false Thrusts and will own that there have been as considerable and glorious Atchievements performed by Christians as by Heathens as may be instanced in Constantine the Great Theodosius Valentinian Justin Charlemain Scanderbeg and infinite more modern Christian Princes who neither yield for Manhood Valour or Conduct to Turks or Pagans and how Patient and Meek soever Christianity teacheth Men to be yet it no ways hinders Subjects from using offensive or defensive Arms when commissioned by Lawful Authroity nor discourageth adventuring of Life for the defence of Kings or their Countries nor is it an Extinguisher of Endeavours to serve God the Soveraign or his People in the Honourablest Imployments It must be confessed True Piety lessened by subtile Disputes that since Religion hath been reduced from Precepts and Axioms to Systems and that the practical part of Justice Moral Vertues and Honesty were no longer in Esteem than as they were found subservient to the promoting Speculations there hath been a way found out to render these fundamental and substantial Qualifications of less value in very good Men unless withal they added some quaint Notions that might sublime their Heathenish Moralities as they call them into Elixirs and quintessences of Religion as in our late Times If one could not give a certain Diagnostick when Grace was wrought in him he was not fit for reforming Employment Men being more distinguished by Tests and Oaths than by good Manners By which we forgo the Substance of Moral Piety for a fleeting Shadow and many are so bigotted in their several Sentiments that it is a more arduous task of late than formerly for Princes to comport themselves in this particular so as to keep in one Uniformity Subjects of so different Perswasions whereby they may command that obedience Subjects ought to pay to their Sovereigns To find Expedients or offer any directions to Princes in this Case were to involve ones self in an endless Labyrinth and discover an unpardonable Presumption the Difficulties being very great if not insuperable how to frame Laws that should combine such varieties and diversities of Opinions in one Yoak Order or Rule without such an universal and absolute Monarch as scarce in Idaea much less in Practice can ever be I shall therefore concern my self no way in tugging at the end of that Saw of Controversies which how pleasant soever it may be to such as have an over-weening Opinion of their Knowledge in such Subtilties is very harsh and ungrateful to my Temper This one Hypothesis or Postulatum however I hope few will deny That since Monarchy is the Established Government in his Majestie 's Dominions and however maliciously and potently assaulted in our Memories yet never can be altered here The Government of the Church of England agreeable to the English Monarchy Princes by small searches into the aptitude of the several Schemes of religious Worship and Government may soon find which is most agreeable to the Constitution of the Monarchy and will be most subservient to it In which particular the Church of England as established by Law in its Doctrine and Discipline and all the true Members of it and the Subjects of all Conditions who act according to the Principles of it have obtain'd a Royal and Gracious Character founded upon the constant Experience the Kings of England have had That upon all the most critical trials the Members of it have stood firm to the Crown even when worn by Princes of different Religion Therefore till other Forms practised in the late times can give as undeniable Proofs of their unconditionate Loyalties I think it but reasonable they should allow His Majesty liberty to consult his own and the interest of his Government rather than their inconsistent Models One of the Principles of the Church of England conformable to that of the Christian Religion is That it teacheth Obedience to the Soveraign not for Fear only but for Conscience sake and all considerate as well as Pious Men where they are convinced That it is better to obey God than Man if any thing should be commanded that
Such a Prince is served by the Just the Wise the Prudent and Skilful Nullum Numen abest si sit Prudentia Such a Prince is never short-sighted he foresees every thing in its Original Cause fits every thing to its End Authors commending Prudence The (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Po'â—â— lib. 3. Philosopher tells us That it is the proper and peculiar Vertue of a King For more things saith the Sententious (b) Plura in summa fortuna auspiâ—â—is consiliis quam telis manibus geri 13. Annal Historian are done in great Empires by Conduct and Counsels than by Weapons and Hands Hence Flaccus in his Argonauticks non solis viribus aequum Credere semper acri potior prudentia dextra Hence it is that the great (c) Proprium est prudentiae conciâ—are sibi animos homiâ—um ad usus suns adjungere cum virtutes specâ—â— dispares prudentia junguntur 2. de Officiis ad Brutum Orator saith It is the Property of Prudence to attract and allure Mens Minds and render them useful For Vertues of different Classes by it are united there being nothing that destroyeth Authority so much as the unequal and untimely Interchange of Power pressed too far and relaxed too much and Hatred Timorousness and Temerity Profuseness and Parsimony all which are balanced timed and seasonably applied by Prudence What the Eye is to the Body in discovering the various Figures Dimensions and Distances of Bodies whereby we may direct our Course to or from them that Light of the Soul but much more pure is Prudence which sees not before only and one Hemisphere singly but every where round whereby the Soul forms saith a subtile (d) Jamblichus Episâ— ad Aphalum Philosopher a most beautiful Model and Exemplar of all its Actions It is this Vertue saith another sage (e) Damippus lib. 1. de Prudentia Author which designs and disposeth infinite Things and so is the Parent and Conductor of all other Vertues by whose Prescript and Reason all things are ordered To Exercise this useful Vertue requires a Man not only of Ingenuity The Particulars wherein Prudence useful to a Prince consists Wisdom Memory disquisitive and speculative but also conversant in great and various Affairs in Histories Ancient and Modern whereby he may be able to collate Matters and adjust them to their proper Scope and Designs By this all Men as well as Princes take mature Counsel consider things good and evil commodious and incommodious examine all Instruments as to their fitness and unfitness compare Circumstances revise Examples consider of timing of Business Places and Persons natural tendencies and where Authority is to be used and where Suasives how to countermine how to penetrate into hidden Counsels of others and to unmask their Disguises to ruminate upon things by-past to order the present and provide for the future It is Prudence teacheth how to be skilful in knowing the Causes Symptoms speediest and most effectual Cures of the Diseases of a State For as Prudence is the very healthful constitution of a Soul exerting no sickly or distempered Actions The Diseases of a State 〈…〉 by a Prudent Prince so a prudent Prince endeavoureth with all his Skill and Might to keep the State in a most perfect temper of Health vigour beauty and firmness So that under an old experienced Prince there are no Symptoms of old and decrepit Age in his Kingdom Archytas the Pythagorean saith As a General leads his Army (f) Sicâ—ipsam soelicitatem prasens vitae temperat regitque prudentia Stobaeus the Admiral orders his Fleet the Pilot his Ship or God governs the World and the Soul the Body so presentness of Prudence orders the Happiness of Life It were endless to remember all the Benefits that accrue to a Prince and his People by this only Vertue Prudence Be the Body of the Commonwealth in a Calenture by Factions and Seditions a prudent Prince knows how to extinguish the Fire by substracting the Feeders or breaking the Force of it by subdividing the complication of Causes or diverting of it some other way Doth it bleed by a Civil War He can bind up the Wound Does it suffer by want of Nourishment He can supply it with suitable Food that will neither pamper it to an unwieldy Sloth or luxurious Licentiousness He can by Bleeding or Drenching clear it of all its superfluous Humours He can asswage its Pains by removing Grievances or Oppressions He can invigorate every languid part by cordial Privileges and wholesom Laws can set strait its dislocated or distorted Joynts when any of the great Officers or Magistrates faulter limp or halt in their Duties Medaea never knew so many Balsamick Herbs to renew the old Age of Jason as a prudent Prince doth Rules and Methods to cure all the Distempers of his Kingdom preserve it in a perfect Health or restore it when declining The Consideration of all which made (g) Quam multis virtutibus opus est quibus velut anchoris 〈◊〉 navis firmatur quam varia prudentia qua velut clavo gubernetur Ep. ad Imp. Reg. c. Lipsius say How many Vertues are necessary as Anchors to fasten the Ship of the Commonwealth how various Prudence as a Rudder to govern it CHAP. XIV Of a Prince's Courage and Conduct in Military Affairs IT is not onely necessary that a Prince should know and exercise all those Royal Vertues that make him adorable on the Throne and in his Cabinet-Council when he is clothed with the Robes of Majesty The Benefits to the Subjects under a Martial Prince But he must likewise for the preservation of his People from Foreign Invasions enlarging of his Empire and keeping his Subjects in a profound Peace at home free from intestine Seditions and Rebellions put on his Armour and act the Part of a Generalissimo This requires according to the (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Pol. lib. 2. c. 7. Philosopher many Vertues to establish it Therefore in another place (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Id. l. 7. Pol. c. 2. Laws for encouraging Soldiers he saith In some Countries the Laws were framed towards the attaining of particular Ends to the Governours and People and in some the End of the Laws were that they might rule over their Neighbours as he instanceth in the Lacedaemonian and Cretan Government where the greatest part of their Laws were accommodated to Warfare and concludes That in all Nations which can hope to be Superiour to others such Laws are in honour as he instanceth in the Scythians Persians Thracians and Celtae So in Carthage to encourage Military Service so many Rings were given to the Soldiery as they had served in several Expeditions In Macedonia it had been a Law that he that had killed no Enemy was girt with an Halter And among the Scythians That such an one should not drink of a Cup which at a certain Solemn Feast was to pass round Among
the Empire began to sink the Froth and Flattery came above so that though Augustus and Tiberius forbad any to call them by so proud a Title as Dominus Objectiâ—â—s against the Aâ—tributes given to Princes yet it was lawful to call Domitian Lord and God and his Successors were not satisfied till complemented in the Abstract with Your Everlastingness Your Eternity Divinity c. and when the wooden Eagle was split in two that Chip of the Eastern Empire brake out into Blossoms to a Miracle that with the Porphyrogenneti and Despots were blown about the Sebasto Cratori Pan-hypersebasti protonobilissimi c. and that after these Titles among the Romans so pompous and glorious had been worn a while at Court they descended to the City and Country and further tells us That in France the word Sovereign is commonly used for any Superior as Sovereign of Accounts Treasure Forest Sovereign Judge Sovereign Bailiff c. To him we may add what an older (a) Marcus Antonius surgens Neapoli illustrata Lib. 1. c. 19. sect 10. Author objects That it is an Usurpation of the Attribute only proper to God to give the Title of Majesty to Emperors or Kings and another (b) Jo. 〈◊〉 de Idololatrâ—a Politica c. 1. saith It is a piece of Idolatry to assume the Titles of nostra Divinitas nostrum numen Coeleste Oraculum adorandum Rescriptum c. Which were used by Theodosius and Valentinian and other Christian Emperors in the first and third Person as I have before largely hinted To the first of these I shall answer That the reason of Augustus and Tiberius declining the Title of Dominus was because in that Age it was understood as a Lord over Slaves Answer to the first Objector which in the first setling of the Empire would have caused Heart burnings and Rebellions against them in that State accustomed to Freedom But as the usage of the word came afterwards to be liquified and of a benign and softer signification so there was no reason to reject it especially since the Author himself if no Quaker would not think it unfit in Latin to be used to him as a Gentleman and as to the invidious Expression of the wooden Eagle he might have known that the Ancient Vexilla of the Emperors which had the Eagle upon them as he may see the Figure of them in Antonius and many other Coyns were not always of Wood and if so gilt with Silver or Gold but of Metal But it may be he calls it wooden out of a sleight to the Authority or the better to pursue his Allegory of a Chip blossoming However it discovers the mean and low opinion he hath of such Supreme Powers As to the Hyperbolical Epithetes of the Grecian Emperors something must be yielded to the luxurious exuberance of the Grecian Language and the usage of the Eastern Countries and that Sovereign is sunk so low in France as to be the Epithete of a Baylive it may be ascribed to the Acceptation of the word in signifying any Supreme Officer in his kind as we call Lord High Treasurer Lord High Steward to distinguish them from inferior Treasurers and Stewards As to the two following Authors it may be considered what the judicious Mr. Answer to the other Objectors Selden observes That the Title of Majesty may as well be afforded to them as of Wisdom Power Clemency or any other Quality because those are as all else which is great or good principally in God Therefore (c) Divi Christiani vocari possunt eo modo quo Dii quia Dei sunt vicarii Dei voce judicant Polit. lib. 7. c. 4. sect 4. Contzen in the last Age Professor of Divinity at Mentz saith That Christian Princes may be called Divi or Gods because they are Gods Vicars and do judge by Gods Voice Yet he thinks that Divus Imperator nostra Divinitas nostra Aeternitas and such like are not altogether so fit for Christian Princes for fear both of their arrogating more than they should when they are so magnified as also lest too much offence be taken by such as may miss in the Reason of the Application of those Titles to them We may further note from the learned Selden That when the Lacedaemonians admired a Man they used proverbially to say he is a Divine Man and the Philosopher (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ethic. 7. c. 1. saith That Men became to be reputed or called Gods from the excellence of their Heroic Vertues and these Vertues and themselves also were as he says called Divine by way of some similitude or by reason of Participation with the Deity being all goodness and excellency as the contrary quality that is Inhumanity or Barbarousness is named 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Feritas because it is most like to what is Bestial So that as he who affirms that a Barbarous or Inhuman Fellow is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Bestial makes but an high Expression of his ill nature not at all supposing him to be a Beast so on the other side Divinus or Divinitas or the like expresseth only an Admiration of Excellency which hath its highest and first Example in the Deity and is by some Similitude or Participation in the Person to whom it is attributed Therefore (e) Antiquitus Rectores Reipublicae Divini vocabantur quasi Divinae providentiae ministri 2a 2ae Quaest 99. Art 1. Aquinas saith That anciently Governours of Commonweals were called Divine because they were the Ministers of Divine Providence They being here upon Earth in their Dominions under God Supreme Governours undisputably in Civils as Philip le Beau of France to Pope Boniface the Eighth in his scornful Letter saith instead of sciat sanctitas tua sciat tua maxima fatuitas nos in temporalibus alicui non subesse That in Temporals he was not subject to any Instead of these lofty Titles the modern Sovereigns have contented themselves with the Addition of Dei Gratia Concerning the Style of Dei gratia which applied to Lay Princes doth always signifie a Supremacy in their own Dominions This Stile begun about Charles the (f) Vide Capitular Aquâ—â—â—ranens pâ— 30. Tom. â— Concil 〈◊〉 Great 's time as in several of his Patents appears neither did it continue in use by his Successors till about four Hundred years since Fâ—â— Otho the Third titled himself sometimes nothing but 〈◊〉 â—â—octolorum and Mr. Selden hath not observed it to be 〈◊〉 by the Greek Emperors but that instead of it they used (g) Tit. Hon. par 1. c. 7. Crowned of God the more ordinary and later Expression of them being trusting (h) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Vide Eginhard Annal Franciae Anno Anon. vita Car. M. in Christ that is God or in God Emperor of the Romans With us in England Ine King of the West Saxons that lived many years before Charles the Great useth it IC INE MIDGODES GIFT
to Kingly Government and he every where commends it as most acceptable to the People and most safe for the Prince There is an excellent (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 De Creatione Princ. Soliloquy that Philo brings in his King to make and which may become the potentest Monarch to imitate That he writ the Laws himself into a Book that he might transcribe them into his Soul and imprint into his Mind those divine Characters never to be washed out again whereas other Kings therefore bear Staves for their Scepter the abridgment of the Law should be his Scepter his rejoycing and Glory uncontroulable the Ensign of that unreproveable Government which is fashioned according to the Pattern of Gods own Kingdom Although according to Harmenopulus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the King is not to be subject to the Laws because offending against them he is not punished and as St. (b) Neque ullis ad poenam legibus voâ—antur tuti Imperii potestate Apol. pro Davide Ambrose speaking of David saith He being a King was tyed to no Laws because Kings are freed from the Bonds or Punishments of Faults being called to Punishment by no Laws being protected by the Power of their Empire yet (c) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Greg. Naz. Orat. 27. as a grave Father saith God's Word and right Reason must give a Law to the Law-giver Therefore that weighty and elegant Expression of (d) Temperans Majestatem Caesaris infra Deum magis illum commendo Deo cui soli subjicio Ideo magnus quia coelo minor est Apol. c. 35. Tertullian deserves consideration by all Princes which is this While we temper the Majesty of Caesar under God we commend him the more to God unto whom alone we do subject him therefore great because he is less than Heaven To the voluntary submission of a Prince to his own or the Laws of his Progenitors may be referred the memorable saying of Valentinian (e) Revera majus Imperio est submittere legibus Principâ—tum Lib. 4. c. de Leg. c. Licet Lex Imperii solennibus Juris Imperatorem solverit nihil tamen tam proprium Imperii est quam legibus vivere Lib. 3. c. de Testam the Younger It is in truth a greater thing than Empire to submit the Princedom it self to the Laws and that other equally imitable by Princes Though the Laws of the Empire have freed the Emperor from the Solemnities of the Laws yet nothing is so proper for Empire as to live by the Laws or according to them So inthat commendation which Plutarch gives (f) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Orat. 2. de Fortuna Alex. Alexander the Great That he conceived he ought to be thought superior unto all Men yet subject to Justice Such a Prince we find Pliny fully describe in his (g) Nec minus hominem se quam hominibus praeesse meminit Panegyrick of Trajan That he thinks himself to be one of us and so much the more excellent and eminent he is that he so thinketh and no less remembreth that he is a Man than that he is a Ruler of Men. For he who hath nothing left to (h) Cui nihil ad augendum fastigium superest hic uno modo crescere potest si se ipse submittat securus magnitudinis suae increase his heighth hath but this one way to grow by if he submit himself that is to the governing by Laws it may be presumed he means being secure of greatness and in another place he calls him equal to all in this only greater than the rest That he was better and more nearly to our present purpose Thou hast made (i) Ipse te legibus subjecisti Legibus Caesar quas 〈◊〉 Principi scrip 〈◊〉 thy self subject to the Laws O Caesar which were not written to restrain the Prince by So we find both Severus (k) Licet legibus soluti simus attamen legibus 〈…〉 Instit quibus modis Testam infirment 8. Vet. and Antonius often set down in their Rescripts Although we be loosed from the Laws yet we live by the Laws These Laws are the Laws of God of Nature or those of the Kingdom concerning the first and last I shall not now discourse concerning that of Nature the (l) Non scripta sed nata lex quam non didicimus accepimus legimus verum ex natura ipsa arripuimus hausimus expressimus ad quam non docti sed facti non instituti sed imbuti sumus Pro Milone Orator saith It is not writ but born with us which we have not learnt received or read but from Nature it self have powerfully attracted drunk in and extracted to which we are not taught but made obedient not instructed but imbued Concerning the original of which Law he saith (m) Vnus erit communis quasi Magister Imperator omnium Deus ille legis hujus inventor disceptator lator â—ui qui non pâ—rebit ipâ—e se fugiet aâ— naturam hominis spernabitur atque hoc ipsâ— luet maximas poenas etiamsi caetera supplicia quae putantur â—ffugerit Lib. 3. de Repub. That God our common Master and Ruler of all is the Inventer Judg and Law-giver which he who will not obey must fly from himself i. e. abandon the Dictates of his own Reason and Conscience and despise the Nature of Man and in himself i. e. in his Conscience undergo the greatest Pains although he should escape all those other which commonly are accounted Punishments It is concerning this Law he saith That from it neither the Senate noâ— the People can exempt us nor is it lawful to abrogate it in the whole nor derogate from it (n) Ibid. Neque derogari ex hac aliquid licet neque tota abrogari potest nec vero aut per Senatum aut per populum solvi hac lege possumus The fore-mentioned Archbishop (o) Vsâ—er's Power of Princes p. 70. from hence concludes That to this moral Law of God whether by Nature thus written in the Hearts of Men or more fully delivered by Gods own written word or by just consequence deduced from the grounds of either of them the greatest Monarch upon Earth owes as much obedience as the lowest and meanest of all his Subjects And however the Prince is obliged to the directive force of the Law and so ought to be governed by it as his Director and though it be most true that (p) Reges Jolo Dei timore metuque Gehennae coercentur Isiodorus 3. Sent. c. 31. Kings are restrained only by the fear of God and Hell yet we may conclude that these together with the consideration of their Interests will be sufficient Incitements to them to govern according to such Laws Yet still it is to be owned That when a King doth not act according to such Laws he is not thereby capable of any Punishment for the transgressing of them and the reason saith the learned
XXI Of the King's Authority in making Laws HAving treated of the King's Sovereignty I come now to treat of that Top-branch of it the Power and Authority of the King in giving Laws to his Subjects I must be shorter on this Head because the following Chapters concerning the Great Councils and those particularly concerning Parliaments will more fully illustrate and confirm this Particular In all Government the Legislative Power must be fixed somewhere and it is the concurrent Opinion of all (a) Ab eo i. Principe tanquam a fonte Leges omnes Jura â—manant Vinii Epist Dedicat. Id. Comment in Inst it lib. 1. tit 2. p. 13. a. Civilians That all Laws do flow from the Prince as from a Fountain The Word Lex and Jus by Cicero and the Romans were most-what used promiscuously though Lex or Law did frequently signifie what was writ and enjoyned to be observed Therefore the Plebiscita of the Romans at first were not called Laws because they obliged only part of the Citizens till the Hortensian Law gave them the same force as those which were accorded in Comitiis Centuriatis The Plebiscita were among the Romans The Plebiscita of the Romans after the expulsion of their Kings binding Laws and they were made thus The Magistrates who had the greater Auspices in the Commonwealth such were the Consuls Dictators or Pretors proposed the Laws to the Assemblies of the People and asked them by the Name of Quirites Whether they willed or commanded them And they writ in the Table either A. for Antiquo or V. R. for Vti Rogas As thou askest The Tribunes and Plebeian Aediles were the proper Magistrates of the Plebs but the Aediles were never known to demand the Peoples Suffrage to the Laws The Plebiscita at first were made in the Assemblies of the (b) Tributis Comitiis Centuriatis aut Curiatis Tribes and the Laws in the Hundredary or Curiate Assemblies But to be short L. Valerius and M. Horatius being Consuls it being a doubt whether the Fathers were obliged by the Plebiscita they passed a Law in the Centuriata (c) Anno v. C. 304 305. Howel In the Curiata Comitia saith Dionys Comitia That whatever the Plebs should enjoyn in the Convention of the Tribes should be binding to the People which was confirmed by (d) Anno v. C. 367. Vinnius Q. Hortensius the Dictator at the third Secession of the People to the Janiculum therefore (e) Inter Legem Plebiscitum spâ—â—ies interesset constituendi potestas autem eadâ—m esset Sect. de Origine Juris Id. p. 14. Senatus consultum and Power of the Roman Senate Pomponius saith That the manner of constituting a Law and Plebiscitum differed but the Power was the same That which the Senate commanded and constituted was called a Senatus consultum Vinnius proves That while the Roman Republic stood the Laws were made by the People alone and not by the Senate For they had permitted to them as the Publick Council to take cognisance and Decrees of things that related to the constituting the Republic but so that all Matters of great moment were not established unless the (f) Polyb. lib. 6. Dionys Halic lib. 4. 7. Senatus consulta nullam vim legis babehant nisi plebs ea probaret People confirmed them So that by no Decree of the Senate either any new Law was introduced or any old one abrogated So that neither in Julius Caesar or Augustus's time we find mention of their Decrees And (g) 1. de Repub. c. 10. Bodin affirms That from the time of the expulsion of the Kings to the Empire of Tiberius Caesar the Senate had no power to make Laws but certain Annual Decrees which yet did neither bind the People or Plebs During the Civil Wars there was scarce any Authority but in the Emperors till Augustus in some measure restored the Power of the Comitia as Suetonius tells us who saith That Julius Caesar (h) Jus Comitiorum non in totum populo ademerat sed cum eo partitus est Sueton. in Julio did not wholly abrogate the Power of the Comitia but divided the Power betwixt himself and them and Augustus brought back the ancient Jus of the Comitia And Tacitus tells us of these times Ad eam diem etsi potissima arbitrio Principis quaedam tamen studiis Tribuum fiebant That to that day although most things were done by the Will of the Prince yet some things were done by the Study of the Tribes Yet it is observed That from what time the Laws and the (i) Ex eo igitur tempore legibus plebiscitis quiescentibus Senatus jus facere coepit quanquam non tam propria Auctoritate quam conniventia quadam indulgentia Principum Vinnius p. 14. Plebiscita were weakned or less regarded the Senate began to make Laws but it was by the Connivence and Indulgence of the Princes as appears by the Orations the Princes had in the Senates Therefore (k) Solus arbiter rerum Jure n mine Regio 1. Annal. Tacitus makes his Prince sole Arbiter of Affairs by Kingly Right and Name and gives the Reason for it Because the nature of Commands consists not otherwise than that the last resort be to One Ea est imperandi ratio ut non aliter constet quam si uni reddatur So the Judicious (l) Reges domâ—ni rerum temporumque trahunt conciliis cuncta non sequuntur Lib. 8. Livy saith Kings are Lords of Things and Times attracting all things by their Counsel not following them So Mecaenas's Advice was to (m) Insurgere paulatim munia legum magistratuum ad se trahere Tacit. 1. Annal Augustus insensibly and gradually to draw to himself the Appointment of Laws and Magistrates However by Pliny it is recorded to the Honour of Trajan That he would make no Laws without the Senate as Alexander did nothing in Military Affairs without his Council of Officers or in other Matters of moment without his Council of Prudent Men. Thus the Senate had a shadow of Authority and were something like the Parliaments of France to ratifie the King's Edicts And it was some advantage to a Senate that the Prince concurred with (n) Senatus Potentiam augendo suae serviebant Suet. c. 29. them è contra So we read That Theoderick the Goth passed that obliging Complement upon them (o) Judicium vestrum Patres Conscripti noster comitatur assensus Our Assent Fathers of the Senate accompanies your Judgment So Bodin observes That whenever the Senate had any Authority it was when it was particula quaedam Majestatis and had it not vi Senatus sed quia simul sustinet partem Majestatis So he would ascribe to the Senate Jus decernendi Sententiam pronunciandi but to want the absolute Legislative Power For if the Senate had obtained that the Government must have been Aristocratical How the Equites by a Law
of Caius Gracchus Tribune of the People were brought in to be Judges whereby they had the Lives and Fortunes of the Senators and Nobles in their Power is fully discoursed of in the Judicious History of (p) Lib. 3. c. 9. p. 722. Dr. Howel to whom I refer the Reader There were also Praetorian Laws and the Responsa sapientum but these seem to be Judgments passed in Courts rather than Laws and are like our Precedents and Reports So I pass them as also the Laws of the Twelve Tables only noting Laws of the Twelve Tables That in the great Strife betwixt the Tribunes of the People and the Senate about the 298 of the City Sp. Posthumius and others were sent to Greece to fetch a Transcript of their Laws and they were proposed to the view of all Men in Ten Tables and a Senatus consultum passed for ratifying them and the Question being put to the People in the Centuriata Comitia they were confirmed most religiously in the presence of the Pontifices Augurs and Priests and were engraven in Brass By which Account we have the true Method of the Roman making of Laws The Power of the Senate and all Magistrates Authorities The Power of the Senate and Magistrates were weakned in the Civil Wars being weakned in the Wars of Marius and Sylla and still more in those betwixt Pompey and Caesar the prevailing Party still made the Senators and Tribunes Consuls c. of their Faction The like was done in Augustus's time after the Defeat of Anthony so that both Julius and Augustus got the Tribunitian Power and Consularships and Julius got himself made Dictator for ten Years and had Tribunitian Power for Life By which means they got all the Powers of the Commonweal in effect into their Hands all which was confirmed by the Lex Regia of which I shall say something The Emperors Julius and Augustus Of the Lex Regia having as Conquerors rather than by any other Right got possession of the Sovereign Power after a quieter Settlement obtained the Lex Regia to be established of which (q) Lib. 1. tit 2. Instit Quod Principi placuit legis habet vigorem quum lege Regia quae de ejus Imperio lata est populus ei in eum omne Imperium suum potestatem concedat Justinian saith That what pleaseth the Prince hath the vigour of a Law Forasmuch as by the Lex Regia which was made concerning his Power the People to him and upon him granted and conferred all its Command and Authority Therefore whatever the Emperor by his Epistle appoints or knowing decrees or commands by Edict that is a Law In the Pandects he mentioneth it almost in the same Words and in (r) Tit. De veteri Jure enucleando another place That by an ancient Law called Lex Regia all the Right and all the Power of the Roman People was translated into the Emperor's Authority Some Civilians that have lived in Commonwealths and mixed Governments would gladly evade the force of this by making the Hortensian Law to give the People and Senate equal Power and Authority and by the Lex Regia the Prince came to be joyned to them as a third Party so that the Powers of neither of the other were by this Law extinguished But (s) Ad ostenden lam enixam suam voluntatem omne Imperium suum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 transferendi p. 15. a. Vinnius saith The Words ei in eum signifie the People to have endeavoured to show their Will to transfer all their Power Authority or Command fully and compleatly on the Emperour Otherwise How can it be said they grant omne Imperium Potestatem if they retained any of their old Power Though upon a prudential account that the first Emperors might not endanger their own Interest by too universal a Change they did leave some Shadow of Authority to the Senate and People which Tacitus elegantly calls Vestigia morientis Libertatis some Footsteps of dying Liberty (t) Lib. 4. Hist c. 1. Dr. Howel observes That Justinian declareth That his Sentence standeth for Law and bindeth all under his Command which the very composing of the Body of Law as from him it is transmitted to us The Roman Emperours absolute Authority in making Laws sufficiently demonstrates Wherein he by his sole Authority repealeth what he pleaseth and enacteth a-new what seemeth good to him without interposition of any other Authority which he could not have done nor his Predecessors as to the Plebiscita and Senatus Consulta if he had wanted that Power which the People and Senate had and were devested of Juvenal speaking of the People of Rome how they were fallen from their Power and Authority and were under the Emperors contented to have the Allowances of Corn and the Pleasure of Shows in the Cirques expresseth it thus Qui dabat olim Imperium Fasces Legiones omnia nunc se Continet atque duas tantum res anxius optat Panem Circenses In stead of all other Authors (u) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lib. 53. Dio Cassius may serve to clear this Point whose Discourse on this Subject I shall epitomize He speaking of Augustus saith All the Power of People and Senate was transferred upon him and that all things were managed merely as the Prince pleased though all other Magistrates except the Censors were preserved and they had not this Power by Force but by Law The Power of the Roman Emperours taking upon them all things which were of greatest Force and that by universal consent as well as the Names as of Consuls Imperator not only as General but to signifie their plenary and absolute Power in the Room of King and Dictator They had the Power of raising Men and Money making War and Peace commanding all things effectually both at home and abroad putting to death Equites and Senators and doing all other things which a Consul and other Magistrates who had absolute Power might do They were Censors admitted Persons into Equestrian and Senatorian Ranks and removed them at their Pleasure were inaugurate in all Priesthoods and had all Religious and Sacred things in their Hands As to the Tribunitian Power it enabled them to interpose against any thing that might be done contrary to their Pleasure and thereby they were Sacrosanct or Inviolable so that if any injured them in the least by Word or Deed they might put him to death as piacularly criminal They have another Priviledge saith the same Author which never was universally granted to any Roman for the Emperors are loosed from the Laws by which thing alone Liberty is given them to do those things which he hath related and all other things (w) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Idem He concludes thus The Common-wealth was changed into a better Form and Order for it was utterly impossible â—â—should subsist under the Power of the People From the Consideration of
Fifthly They were wont to be excused from personal Attendance in War nor did they pay Taxes with the rest Such Priviledges we find the (h) Num. 1.48 Ezra 7.24 â—evites among the Hebrews enjoyed Sixthly As to Civil matters they were in such Honour as they determined almost all public and private Controversies and as (i) Magno praeterea apud omnes Galiâ—s in honore sunt nam fere de omnibus controversiis publicis privaâ—isque constituunt si quod est admissum facinus si caedes factae si de Haereditate de sinibus controversia iidem decernunt praemia poenasque constituunt De Bello Gallico 1.7 Caesar saith if any great Wickedness be done any Murther be committed if there be any Controversie about Inheritance or Boundaries they do judge and appoint Rewards and Punishments I sometimes think Facinus may be interpreted any great or noble Enterprize done because Caesar saith They appoint Rewards whereas to none of the other particulars Rewards are due But this obiter Seventhly These saith the same Caesar at a certain time of the Year in the Confines of Carnutum Chartres according to Ortelius which is esteemed the middle of France sit in a consecrated place and thither from every part those who have any Controversies meet and they obey their Judgment and Decrees From whence Ramus thinks That the Druids were dispersed through France as the Priests are now and the Principal of them carried the Controversies of their Citizens to this general Council where the High Priests of the Druids presided * Pausanias in Phocicis Druids in Britain and that this was like the Convention of the Amphictyons f of Delphos when Greece was at Freedom and he thinks this Power of the Druids was Kingly not only over every private Person but over the whole People I have enlarged thus far of the French Druids which some may say appertains not to the Britans but if we will believe (g) Gallorum disciplina in Britannia reperta atque inde in Galliam translata esse existimatur Et nunc qui diligentius eam rem cognoscere volunt plerumque illo discendi causa proficiscuntur Caesar lib. 6. Caesar we shall find that the Discipline of the Druids came from Britain to the Gauls for speaking of them he saith That the French Discipline i. e. the Arts c. taught by the Druids was found in Britain and from thence is believed to be transmitted into Gallia and now saith he those that will more diligently know it for the most part go thither i. e. to Britain to learn it I know Ramus faintly opposeth this because Caesar speaks elsewhere of the Gauls making a part of Britain and that of the Britans the Gauls are the most civil all which may be true and yet the Doctrine have its Original here and Ramus concludes from this That the Discipline or Learning of the Britans and Gauls were both one I shall refer the curious to what Pliny saith of the Misleto The Druids Ceremony in cutting the Misleto from the Oak with how great Ceremony it was cut by the Druid Magicians as he calls them there being present two white Bulls the Priest climbing the Tree in a white Garment and cutting the Misleto from the Oak with a Golden Pruning-knife and receiving it in a white Cassock and then the Bulls were sacrificed Britain being so famous for the best Oaks and the word Druid coming from the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 an Oak we may safely rely upon Caesar's Testimony for the bringing the Learning of the Druids from Britain to France That which I infer from this Discourse is that there were Laws in Britain and that the Druids were the Lawyers and Judges but how the Laws were made or what they were among the Britains is not in my reading to inform the curious how and for what cause the Druids were extirpated I shall speak hereafter The other Member of the honourable part of the Gauls Of the Equites or Nobility were the Equites under which are to be comprehended the Princes and Soldiers (w) Lib. 6. Faâ—â—ionum Principes sunt qui summam Authoritatem eorum judiâ—io habere existimantur quorum ad Arbitrium judiciumque summa omnium rerum conciliorumque redeat Caesar tells us That not only in every City and every Territory for so I interpret Pagus but also almost in every Family there were Factions and they are the Princes of the Factions who in their Judgment are esteemed to have chief Authority to whose Arbitriment and Judgment the Supremacy of all Matters and Councils are remitted This he saith was invented that the common People might not want some to defend them for every one would hinder his own People from being oppressed or circumvented and if in that they failed them they lost their Authority over them and this Caesar saith was the manner throughout all Gallia From hence x concludes the Government was a Timocratia or the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of Aristotle (n) De moribus vet Gall. p. 116. which he and Plato so commend and which was used in Greece and Italy while free where there was a mixture of Kingly Government in Annual Magistrates or of longer Duration and of Aristocracy in the Senate and Democracy in the Authority of the People in chusing or abdicating their Authority all which he concludes from the last Clause That if the Princes of the Factions did not protect those under them they lost their Authority I rather judge these Princes of Factions The Princes Heads of Clans or of the Pagi to be the Heads of such as we call Clans in the Highlands and Ireland for I see no shadow of that Polity Ramus speaks of in this Description and I believe the Government both of Gaul Germany and Britain was rather in several Circles and Destricts than that any one Monarch was over all only in time of War one or more were chosen by common consent to be their Captain General or where the Romans could prevail they established a Commonwealth Government As to the first and second we have the Authority of (k) In pace nullus communis Magistratus sed Principes Regionum atque Pagorum inter suos Jus dicunt controversiasque minuunt Caesar speaking of the Germans with whom the Gauls are all along compared by Ramus hâ— saith In time of Peace the Princes of the Country and of the Pagi give Law among their own People and take order to end their Controversies and then there is no common Magistrate but when there is a War either made by or upon the City Magistrates are chosen who have the command of the War and have Power of Life and Death Such a like choice we find by a Common Council of several Kings and Princes in (l) Comment lib. 5. Britain was made of Cassivillan to manage the War against Julius Caesar That the Gauls by a Common Council at Bibracte chose
Kindred and drives her through the Streets lashing or beating her as she goes along This as Juvenal saith was Ipsis Marti Venerique timendum So Antinous in Homer threatens Irus with the chopping off his Nose Ears and Privities and Vlysses inflicts that very punishment upon his Goat-herd Melanthius for his Pimping So in Canutus his Law the Wife who took other Passengers aboard her than her Husband is doomed she should have her Nose and Ears cut off Jâ—â—us Anglorum The curious may see more in Selden Tacitus observes another Law Hâ—â—redes successoresque sui cuique liberi nullum testamentum Si liberi non sunt pâ—â—ximus gradus in possâ—ssâ—oâ—e sratres patrui avunculi Idem that every ones Children were their Heirs and Successors and there was no Will to be If there be no Children then the next of kin shall inherit Brethren or Unkles by the Fathers or Mothers This seems to point out Gavil-kind otherwise there had been need of a Testament to dispose of something for younger Children So Selden observes that till our Grandfathers time it was not lawful to dispose of Land-Estates by Will unless it were in some Burroughs that had such priviledges but this hindred not but they might dispose by Deeds Another Law he mentions Suscipere inimicitias seu patris seu propiâ—qui quam amicitias necesse est Idem Nec implacabiles durant luitur enim etiam homicidium certo Armâ—ntorum ac pecorum numero recipitque satisfactionem universa domâ—s Idem which shews the use of those are called Deadly Feuds in the North was that to undertake the enmities rather than the friendships whether of ones Father or Kinsman is more necessary Yet he saith those do not hold on never to be appeased for even Murther is expiated by a certain number of Cattle and the whole Family of the murdered Person receives satisfaction So we find in our English Saxon Laws Murthers were formerly bought off with Head-money which was called Wâ—â—gild though one had killed a Noble-man yea a King himself which as I remember was valued at 60000 Thrimsas or Groats and so a Prince 30000 and others Proportionable Another Law we find thus The Lord imposeth upon his Tenant a certain quantity of Corn or Cattle or Clothes Frumenti modum Deminus aut pecoris aut vestis colâ—no injungit Idem Here we certainly find the usage of Country Farmholders In â—â—imitivo Regni sâ—â—tu pâ—st conquis â—â—nem 〈…〉 〈…〉 argenti 〈◊〉 sed sola 〈◊〉 solvebantur Dialog Scaccar So yet in Scotland a Gentleman of Quality or Lords Estate is not computed by Annual Rent but by so many Bolls of Victual So we find in Gervase of Tilbury that the Kings had payments made them out of their Lands not in Summs of Gold or Silver but only in Victuals or Provisions out of which the King's House was supplied with necessaries for daily use which the King's Officers accounting with the Sheriffs reduced into many payments viz. a Measure of Wheat to make Bread for 100 Men 1 s. the body of a Pasture-fed Beef 1 s. a Ram or Sheep 4 d. for Food for 20 Horses 4 d. Thus far I have thought fit to pick out of Tacitus the manners of the Germans and compare some of them with the English Saxon or Norman Customs to discover their Conformity But since in this account from Tacitus we find no satisfactory testimony as to the power of making Laws but that in general they used to meet in Consultation about the New or Full of the Moon where 2 (r) Alter tertius dies consultatione coâ—â—ntium abâ—umitur Id. 636. or 3 Days were usally spent and the Turba or Common Body of those that met which elsewhere he saith was by hundreds being Armed the Priests commanded silence and had the power of keeping Matters in order and the Princes Authority was there as I have noted besore I say considering these things I must seek otherwhere for clearer discovery before which I will only note Judgments given in their Councils that at such Councils as (s) Liâ—â—â— apud concilium accusare quoque discrimen capitis intendere Tacitus describes Judgments were given upon offences for he saith here Accusations might be presented and Capital Matters tried the distinction of punishment * Distinctio paenarum ex 〈◊〉 proditores tranâ—fuâ—â—â— arâ—oribus suspendunt ignavâ—â— imâ—eâ—â—â— â—â—pore Lips torpâ—â—â— Infames 〈…〉 〈◊〉 insupâ—r crate 〈◊〉 â—acitus de moribus German In some Places of Germany Drowning is yet a Punishment as Platerus gives an Account of a Woman tied in a Sack and cast into the River near Basil who was found alive after being taken up at the usual place half a mile below where she was cast in Observat being according to the Crime Traytors and such as fled to the Enemy were hung upon Trees but the slothful unfit for War and such as are infamous for sluggishness as Lipsius will have it Torpore not Corpore infames were drowned in Morasses an Hurdle being laid upon them and the reason he gives of the divers punishments is that the first which he calls Scelera are to be shown while punished but the other which he calls Flagitia wicked and heinous crimes but particularizeth not what they were should be hid and punished by Drowning then follows Levioribus delictis pro modo poenarum equorum pecorumque numero convicti mulct antur pars mulctae Regi vel Civitati pars ipsi qui vindicatur vel propinquis ejus exolvitur and that for smaller faults the punishment was a Mulct of Horses or Cattle whereof a great part was pay'd to the King or City and part to him that was acquitted or his kindred By which we may note a Sovereignty in the Kings or Free Cities or People to whom these Mulcts were pay'd But I leave these obscurer times and proceed to greater light Therefore for the better clearing of the Authority of the Saxon Kings in giving Laws to their Subjects and the discovering who were the constituent parts of the great Councils I shall first note something of the several Laws made in Germany France Several Laws made in several King loms after the declining of the Reman Empire and the Northern Countries and so proceed to some general observations of our Saxon Laws and lastly to illustrate or expound by a short Glossary the Saxon Titles of Great Men found mentioned in the Councils First as the Ancientest I meet with I will begin with the Gothic Laws Gothick Laws These Goths overrun Europe and did not only cause great Wars and Destructions but made great alterations in the Laws and Kingdoms The Goths according to the custom of other Northern People used not written Laws but their Country Customs till (t) Sub Erudiâ—â— Rege Gothi Legum instituta scriptis bahere câ—â—perunt nam antea mâ—ribus consuetudine tenebantur Isidor Chron. Goth. Aera 504.
time THE Preface to the Statutes at (a) Pulton An. 1327. fol. 93. Westminster 1 Ed. 3. is thus To the Honour of God c. King Ed. 3 at his Parliament held at Westminster c. Petition made by the Commonalty to the King and his Council at the request of the Commonalty of his Realm by the Petition made before him and his Council in the Parliament by assent of the Prelates Earls Barons and other great Men assembled at the said Parliament hath granted for him and his Heirs for ever these Articles The title of the Statute made at (b) Idem Anno 1329. fol. 97. Westminster 27 Nov. 4 Ed. 3. is thus At the request of the Commons these things be Established and Enacted by our Lord the King his Prelates Established and enacted by the King Prelates c. Earls and Barons and other of the same Parliament So that at Westminster (c) Idem Anno 1331. fol. 100. 5 Ed. 3. Our Lord the King by the Assent of the Prelates c. and other Great Men and at the request of his People hath granted and established The Preamble to the Statutes at York (d) Idem Anno 1335. fol. 103. Shewed by the Knightsâ— c. for the Commons assented to by the Lords with the Advice of the King's Council 9 E. 3. runs thus It was shewed to our Lord the King by the Knights of the Shires Citizens of the Cities and Burgesses of Burroughs which come for the Commons of the said Shires Cities and Burroughs Our Lord the King c. by the Assent of his Prelates c. and other Nobles of this Realm summoned at this Parliament and by the Advice of his Council being there Upon the said things disclosed to him Ordains c. So the Statute at (e) Idem Anno 1336. p. 105. Westminster 10 E. 3. is Our Lord the King by the Assent of the Prelates c. and at the Request of the Knights of Shires and his Commons by their Petition hath Ordained Established c. The Preamble to the Statute for the Clergy 16 Apr. 14 E. 3. runs thus At the Petition of John Archbishop of Canterbury and other Prelates upon deliberation had with the Peers of our Realm and other of our Council and of the Realm summoned to our said Parliament Thus far we find the King Establishing and Ordaining upon the Petition of the Commons as also of the Prelates with the Assent of the Prelates and Nobility and his Council Before I proceed to those Statutes which mention the assent or advice of the whole Parliament I think fit to insert at large the Repeal of an imperfect Statute made 15 E. 3. There having been (f) Idem Anno 1541. 15 E. 3. fol. 115. a Statute made That Ministers of the Church should not answer before the Kings Justices for things done touching the Jurisdiction of the Church For what reasons and in what manner this was repealed Repeal of Law unduely prâ—cured will best appear by the Kings Precept to the Sheriff of Lincoln which runs thus Whereas at our Parliament summoned at Westminster in the Quindene of Easter last past certain Articles expresly contrary to the Laws and Customs of our Realm of England and to our Prerogatives and Rights Royal were pretended to be granted by us in the manner of a Statute And considering how by the Bond of our Oath we be tied to the observance and defence of such Laws Customs Rights and Prerogatives and providently willing to revoke such things to their own State which be so improvidently done Upon Conference and Treatise thereupon with the Earls Barons and other Wise Men of our said Realm and because we never consented to the making of the said Statute but as it then behoved us we dissimuled in the Premisses by Protestations of Revocation of the said Statute if indeed it should proceed to eschew the danger which by denying the same we feared to come for as much as the said Parliament otherwise had been without dispatching any thing in discord dissolved and so our earnest business had likely been ruinated which God prohibit and the said pretended Statute we promised then to have sealed It seemed to the said Earls Barons and other Wise Men that sithence the Statute did not of our Free Will proceed the same be void and ought not to have the name or strength of a Statute and therefore by their counsel and assent we have decreed the said Statute to be void and the same as much as it proceeded of Dread we have agreed to be adnulled Nevertheless that the Articles contained in the said pretended Statute which by other of our Statutes or of our Progenitors Kings of England have been approved shall according to the form of the said Statute in every point as convenient is be observed and the same we do only for the Conservation and Redintegration of the Rights of our Crown as we be bound and not that we should in any wise grieve or oppress our Subjects whom we desire to rule in lenity and gentleness So the King commands all these things to be openly Proclaimed 1 Oct. 15. Regni From this Statute we may 1st Observations upon iâ—â—â— observe That without the Kings free and express consent there can be no Law pass'd 2ly The Bishops are not mentioned in this it being contrary to some Liberties Churchmen claimed by the Canons 3ly The Kings assent was not compleat but only a temporary one like a Salvo Jure lest his earnest business for which he called them should miscarry for want of a seeming compliance therefore he is said to promise the Sealing of it which was in that Age the Characteristick of Confirmation but never did it but rather made some kind of Protestation in the presence of some that what he did was unwillingly 4ly That seeing it did not proceed of his Free Will therefore by the advice and consent of the Earls Barons and other Wise Men it is declared void Lastly The principal reason why he gave not his free consent to it was because it was against his Coronation Oath whereby he was tied to the observance and defence of the Laws Customs Kings not bound to consent to what Bills the Houses propose Rights and Prerogatives So that upon the whole they that would advise their Princes to consent to whatever Bills the Houses should tender as in the Chapter of Factious Members of Parliament I shall have occasion to discourse may learn from hence That the King found himself obliged to consent to no Bills contrary to the Law Customs Rights and Prerogatives such were those the unhappy Parliament of 41 in the point of the Militia and their other dethroning Bills and of late another Parliament in the Bill of Seclusion endeavoured to impose upon their Soveraigns contrary to the fundamental Laws and Prerogatives of the Crown To proceed The Preface of the Statute at (g) Id. 1346. fol. 118. Westminster
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
Statutes of this Kingdom do give assign and appoint the correction and punishment of all Offenders against the Regality and Dignity of the Crown and the Laws of this Realm unto the King which manifests P. 23 that all such things are to be tried in his Courts So that surely the Commons Privileges must be included for to trouble any saith the Author of The Lawyer outlawed that doth not offend against the Crown or Laws of the Land is very Illegal and Arbitrary Id. p. 16. and an high breach of the Liberty of the Subject It would therefore be considered how improbable it is that after our Ancestors have struggled for many Ages Infoeliciter aegrotat cui plus mali venit a Medico quam a Morbo to preserve themselves and posterity from the unbounded Rule of Arbitrary Pleasure and having obtained that from their Soveraigns in so much that they can neither be fined or imprisoned by their Soveraign unless for transgressing some known Penal Law of the Land should leave any Arbitrariness in the House of Commons who are but the Peoples honourable Deputies Trustees and Atturneys Thirdly The Law hath provided where the Breach of the greatest Privileges are to be tried It is to be considered that the Law hath expresly provided where and how Breaches of Privilege ought to be punished 5 H. 4. c. 6. and 11 H. 6. c. 11. about any Assault upon a Parliament man or his menial Servant to be in the Kings Bench. Since therefore such Assaults are far more Criminal than Arrests of them or words spoken against them or inferiour misdemeanours to argue a majori ad minus it should seem rational that in the Courts of Justice being open to redress all sorts of Illegalities matters should be rather tryed than that persons should be punished by Imprisonments of the House of Commons alone For if this Arbitrariness were allowed it would argue a great defect in our Laws that they are not the entire Rule of the Subjects Civil Obedience and if the ordinary Courts of Justice can try the greater they may certainly try the lesser Crime as they have done in the Case of Done against Welsh River against Cosyn Shewish against Trewynnard Mich. 12. E. 4. Rot. 20. Excheq Hil. 14. E. 4. Rot. 7. Dyer fol. 59. But I have sufficiently shewed before that in old time the determination and knowledge of the Privileges did belong to the Lords How agreeable these ways of Proceedings were to the Usage of the House of Commons in 1640. and 1680. The Proceeding of the Houses in Anno 1640. and 1680. are fresh in every ones memory when not only they ejected and imprisoned their own Members but by Messengers sent for several Gentlemen and others no Members for acting according to the known Laws and King's Proclamations and often for Persons having spoke angrily or slightingly of some Member as in the Case of Abhorrers It is to be hoped those very Gentlemen now wish it might be forgot as I hope it will never be put in practice again when after a chargeable sending for up by the terrible Messengers after being detained in Custody during the Pleasure of the House and brought to receive their Sentence on their Knees at the House of Commons Bar they were dismissed So that I knew one who principally to avoid the Charge his Crime being for speaking Words against a Member in his Cups was forced upon notice of the Messenger 's coming for him to fly into Ireland Fourthly That the Law and Custom of Parliament may be declared It is worthy great Consideration by all the Members of the Honourable House of Commons that it is an undoubted Maxim both in Law and Reason and is necessary to the Obligation of all positive Constitutions That they should be published in express Words The immediate Laws even of God Almighty in the Opinion of Learned Men being not obligatory where they were never promulged Now since it hath not been hitherto published to the People what this Lex Consuetudo Parliamenti is 4. Inst it p. 15. Illa lex ab omnibus quarenda a multis ignorata a paucis cognita Fleta l. 2. c. 2. which Sir Edward Coke saith out of Fleta is to be enquired into of all is understood by many and known to few it would not only be obliging but most necessary that the Honourable House would give a true and full Description of this Law and Custom of Parliament and an exact Account of their Privileges that People might in some measure for the future shun those dangerous Rocks and not be surprized or shipwrack'd on such hidden Shelfs I shall close this long Chapter wherein according to my Talent I have endeavoured to comprise what hath been voluminously treated of by all the Authors I am furnished withal and digested things into an easie Method with some Assertions of Mr. Prynne whose Writings in this Particular are better esteemed than many others He saith Brief Register part 4. p. 685. Mr. Prynne's Opinion concerning the great Privilege the Commons The Parliament being the Supremest Court of Law and Justice ought to proceed legally according to the Course of Law and not to enlarge or extend the Privileges of Parliament beyond their Ancient Just and Legal Bounds nor alter the Law therein by their absolute Power Much more ought the House of Commons themselves to follow their Precedent and not to extend their old or vote up new Privilege to the delay Ibid. p. 1210. retarding or deluding of Common Right and Justice Therefore he condemns the writing of Letters by the Speaker 18 Jacobi 1. 14 Feb. 18 Jac. fol. 24. b. to stay a Tryal betwixt Sir William Coxe and Mr. Humphrey Aylworth as likewise in other Cases the same Year Ibid. fol. 51. b. fol. 137. 3 March and 20 April which he saith is diametrically opposite to the Judges Oath and against the Great Charter which saith See Stat. 2 E. 3. c. 6. 14 E. 3. c. 14.20 E. 3. c. 1 2. Nulli negabimus nulli differemus Justitiam Rectum To which I may add the Hardship used to Mr. Sherridon Lawyer outlawed p. 28. who being in the Custody of the Serjeant at Arms the Warrant of Commitment being during the Pleasure of the House of Commons Mr. Sherridon's Case who was denied the Benefit of the Habeas Corpus Act. without any Cause shown now the Habeas Corpus Act is express That all Persons are Bailable by what Person soever committed not excepting the King and Council much less the House of Commons unless for Treason or Felony One of the Judges made application to the House of Commons to know whether he might grant the Writ of Habeas Corpus to him The Debate lasted three days by reason of the Difficulty of the Cause For if they openly declared against the Habeas Corpus the Nation would be much alarm'd and suspect these Gentlemen instead of securing
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
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
correct the Vitious so they should begin the Reformation at home Chilon's (c) Laertius in vita Chilonis Brother desiring to know why he was not chosen at Sparta as well as Chilon he answered that he knew how to bear an Injury which his Brother did not for in Publick imployments those who are the Censores morum and chastise the Infringers of the Laws must expect Calumnies and evil Entreaties from the incorrigible and debauched and such must be resolved to perform their duty without any other by-end of Revenge Tyranny and Imperiousness on the one hand or hasty rast Cholerickness Partiality or Corruptness on the other Plato (d) Lib. 4. de LL. adviseth that the wealthiest be chosen for the better support of the Dignity but withall that they be such as are exemplary in obeying the Laws For none are more fit to serve their Prince and profit the Subjects than such as are obedient to the Laws which when they make a rule of their own Actions they will be sure to exact it of others It is great disparagement to a Prince to chuse men of vitious or uncommendable lives or such as have not worth and honour to commend them So the Princes of Europe think the Grand Seignior not so well served by Slaves nor was it so commendable in the Roman Emperors to make their Freemen of greater Power with them in the managery of greater affairs than Consuls or Senators which made (e) Praecipuum indicium non magni Principis magni Liberti Panaegyr Pliny say It was the principal sign of a Prince not great where the Freemen were great The Prince cannot be presumed to chuse his Magistrates by his own knowledge of their abilities and fitness for their several Imployments but must trust such as are about him therefore it becomes them well to know the qualifications of such as are to bear Office for the Rule of Tacitus (f) Melius officiis administrationibus non peccaturos praeficere quam damnare cum peâ—â—arint Vita Agricolae is to be observed That it is better not to prefer to Offices and Administrations such as will transgress than to condemn them who have transgressed CHAP. XXXIII Of the Soveraigns appointing Judges Courts of Justice and other Officers HAving treated in the last Chapters of such as have a general inspection into and by the Soveraigns Election and placing them a power of advising at least how the whole frame of Government is to be disposed as both Prince and People may be happy I come now more particularly to the Ministerial Officers of Justice such as are the Lord Chancellor or Keeper Lord Treasurer the two Lord Chief Justices and the rest of the Judges whether they be the Judges at Westminster or those of Assises Oyer and Terminer to try Causes in their respective Circuits I undertake this Task Lugduni tanquam Rhetor dicturns ad Aram The Author's Apology or one that procul profanus adorat The Subject being only fit to be handled by such as have read and digested the whole Body of the Laws and are eminent in the Profession of them whereas I must own my self to have tasted only so much of that Ornamental and most useful Study as may quicken a dull and languid Appetite to praise or rather admire it than that I can hope to benefit the judicious Reader by an imperfect Description of their Calling and Office who by the Sovereign are appointed to be the Oracles of the Law and the Ministers of his Justice whose great Wisdom and Knowledge all ought to reverence But as they make so great a Figure in the Government I could not omit them though it be but to salute the Skirts and hold up the Train of their Scarlet Robes SECT 1. IN Edward the Elders Days those that gave Judgment under the King King Edward the Elder 's Law about Judges Gerefa had the name Gerefa under which name Aldermen Earls Presidents Prefects Governours c. were comprehended From whence with the Germans the word Grave is used for an Earl President Judge c. and our Sheriff is from Scyre gerev Raeve or Graeve of the Shire The Charge in that Kings Laws runs thus (a) Eadweard Cyning vyt thaem Gerefum eallum that gede man swa ribte domas swa gerihtoste cunnon hit on thaere dombec stande ne wandigeth for nanum thingum folcrihte to gerecanne c. Eadward the King wills that all his Graeves give so right Judgment as they can most Righteously as it stands in their Judgment Book that is as we may suppose in the written Laws fearing for no thing or cause to declare or pronounce Right or Justice to the People The which publishing of Justice they shall appoint at certain times or Terms when they will perform it and declare the same So that in this seems to be comprehended what is more at large in the Oath of a Judge in After-Ages We must principally consider that the King is the Fountain and original of all Justice in his Kingdom The King is the Fountain of Justice therefore Bracton (b) Lib. 3. cap. 9 10. Rex non alius debet judicare si solas ad id sufficere possit cum ad hoc per veritatem Sacramenti teneatur astrictus sicut Dei Vicartus Minister in terra saith That the King and not another ought to judge if he alone were sufficient to do it being bound by his Oath to it therefore the King ought to exercise the Power of the Law as Gods Vicar But if our Lord the King be not sufficient to determine all Causes that the Burthen may be lighter divided among several Persons he ought to chuse Men wise and fearing God See Britton fol. 1. Coke 4. Inst c. 7. and appoint them Justiciaries Yet this surrogating of Judges in the Kings respective Courts doth not divest the King of his Power for as the same (c) Rex habet ordinariam Jurisdictionem omnia Jura manu sua quae nec ita delegari possunt quin ordinaria remaneant cum ipso Rege Bracton saith The King hath ordinary Jurisdiction and all Laws are in his Hands which cannot be so delegated but that they remain with the King From which and other Authorities Mr. Lambard saith (d) Archaion That the Courts derive their Powers from the Crown their original and drawing by one and one as it were so many Roses from the Garland of the Prince leave nevertheless the Garland it self undespoiled of the Sovereigns Vertue in the Administration of Justice Therefore saith Sir Edward (e) Tit. Discontinue de Proces part 7. 30. Coke By the Common Law all Pleas were discontinued by the Death of the King and Process awarded and not returned before his Death was lost For by the Death of the King not only the Justices of both the Benches and the Barons of the Exchequer but Sheriffs also and Escheators and all Commissions of
the Kings Lieutenants in England as the Lords Justices were sometimes I suppose in Ireland before (t) Coram quibus non alibi nisi coram semetipso Concilio suo vel Aâ—ditoribus specialibus falsa Judicia Errores Justiciariorum reâ—ertuntur corriguntur whom and no where else unless before the King himself and his Council or special Commissioners false Judgments and Errors of Justices are reversed and corrected and there are determined Breeves of Appeals and other Breeves upon Criminal Actions and Injuries against the Peace of the King And Bracton saith That in Criminal Matters if they touched the King's Person as Treason they were tried coram Rege if concerning private matters then before the Justices only By many Records it appears The Kings of England used to fit in this Court that the King sometimes sate in this Court and that sometimes the King ordered it to follow his Court as particularly in 28 E. 1. (u) Cap. 5. it was established in the Statute of Articuli super Chartas Robert de Bruis was the first Capitalis Justiciarius ad placita coram Rege 8 March (w) Pat. 52. H. 3. m. 24. 52 H. 3. the Title of Justiciarius Angliae of whose great Power the learned (x) Glossary Spelman and (y) Sacred Laws Sir Henry Spelman about the Office of the Chief-Justice of England Mr. White have given an account having an end in Phillip Basset who was advanced to that place 45 H. 3. Who desires further satisfaction may consult Mr. Crompton's Jurisdiction des Courts c. 4. Sir Ed. Coke Sir William Dugdale Mr. Prynne and the Authors they cite who are many and learned and do at large treat of its Jurisdiction and the Practice in it which are foreign to my Design SECT 4. The Court of Common-Pleas The Common-Pleas THis Court of Common-Pleas appears to be as antient as Henry the First 's time for in his Charter to the (z) Coke's Reports part 8. Abbat of B. he grants Connusance of all Pleas so that neither the Justices of the one Bench or of the other or Justices of Assize should meddle Bracton (a) Cognoscunt de omnibus Placitis de quibus Authoritatem habent cognoscendi sine Warranto Jurisdictionem non habent nec Coercionem Lib. 3. c. 10. fol. 105 b. saith This Court had Cognizance of all Pleas of which Authority is given them without warrant they neither having Jurisdiction or Coercion Therefore Sir Edward Coke saith That regularly this Court cannot hold any Common-Plea in any Action real personal or mixt but by Writ out of Chancery returnable in this Court This Court proper for Pleas betwixt Party and Party Those that treat of this Court agree That it was for hearing and determining all Controversies in matters Civil betwixt Party and Party called the Common-Pleas as contradistinct from Pleas of the Crown and was anciently kept in the Kings own Palace Not to follow the King 's Court. In Magna Charta it is granted That the Common-Pleas shall not follow the Kings Court but shall be held in a certain place The Exchequer having been the place where these Causes were heard till (b) Articuli super Chartas cap. 4. 28 E. 1. that by Statute it was provided that no Common-Plea shall from henceforth be held in the Exchequer contrary to the form of the Great Charter The first who had the Appellation of Capitalis Justiciarius in this Court according to Sir William Dugdale was Gilbert de Preston who by that Title had his Livery of Robes (c) Liberat. 1 E. 1. m. 4. 1 E. 1. The number of the Justices (d) See Sir William Dugdale's Origines Juridiciales p. 39 b. The number of the Justices varied 3 E. 2. were Six 14 E. 3. they were Nine the latter end of Henry the Fourth and all the Reign of Henry the Seventh they were but Four Those that would be satisfied about the Jurisdiction of this Court may have recourse to Mr. Richard Crompton's Jurisdiction of Courts c. 7. fol. 91. the Year-Book quoted in Ash his Promptuary Sir Henry Spelman's Glossary tit Bancus Capitalis Justiciar de Banco Communi p. 417. Sir W. Dugdale's Origines Juridiciales Prynne's Animadversion p. 52. and many other good Authors cited by them SECT 5. Court of Chancery THE Court of Chancery in some Writers is placed the first Coâ—rt of Chancery in others as I have placed it Although it is true what Sir Edward (e) Sir Edw. Coke's Arguments for the Antiquity of the Chancery Coke saith That Kings had their Chancellors in the Saxon times indeed he adds the Brittish also of which little can be known yet I dare not avouch with him that the Court of Chancery was then as now the only Court out of which Original Writs do issue it is true that to the Charter of King (f) Spehran Tom. 1. Concil p. 631. Edward the Confessor maâ—e to the Abbat of Westminster amongst the Witnesses it is said Ego Swardus (g) Swyerg trius in Spelman Notarius ad vicem Reynbaldi Regiae dignitatis Cancellarii hanc cartam scripsi subscripsi So (h) Glossary fol. 106. Adulph is accounted Chancellor to King Edgar and Tâ—rketil to King Edred and King Edmund and Wolsine to King Athelstan and that the Chancellor had a Court may be presumed from what is found in the Book of Ely writ as it is supposed about King Stephen's time that King Aethelred who Reigned about Anno 978. appointed and granted Answer Canceliarius qui vel Regum praecepta aut Acta Judicum scribit Spelm. Gloss fol. 104. that the Ch. of Ely then and ever after in the Kings Court should have the dignity of the Chancery which albeit as Sir Edward Coke saith it was void in Law to grant the Chancellourship of England in Succession yet it proveth that then there was a Court of Chancery As to the first it is apparent that the Chancellor then had the power of composing the Charters and before Seals were in use might also subscribe with the Sign of the Cross as other of the Kings Officers did but this doth not prove what kind of Court he was made Judge of for there the Notary in the Chancellors room signs last and in the (i) Tom. 1. p. 486. Councils of Sir Henry Spelman's Edition I find Adulph stiled Herefordensis (k) Id. p. 489. Ecclesiae Catascapus signing last of the Abbats See Spelman Glossar p. 106. As to the Book of Ely I know not how to understand that the Church should have any dignity of Chancellorship in the Kings Court and if it be meant of the Bishop of that See only it might possibly be meant to be the principal Chirographer or drawer of the Kings Charters As to what is found in the Mirror it is of no great validity being writ according to the then custom of the Age wherein the Author
in the Authors in the (o) Sir Edw. Coke 4 Inst Ryley's Appendix p. 521 c. 537 563. Margent the exact Abridgment of the Record of the Tower Tit. Justices of Peace and Prynne's Irenarchus Redivivus The constituting and making of Justices of Peace is inherent in and inseparable from the Crown as appears by the Statute 27 H. 8. c. 24. (p) Dalton c. 3. Some are Justices by Act of Parliament as the Archbishop of York Bishop of Duresm and Ely and their Successors others by the Kings Charters as Mayors and other Officers of Corportion Towns Others are by Commission which are properly Justices of Peace to take care not so much of the publick Discipline and correction of manners as for the Peace and security of the High-ways they being at their Quarter-Sessions to hear and determine of Felons Breakers of the Peace Contempts and Trespasses to suppress Routs and Tumults restore possessions forceably entred c. They (q) Sir Tho. Smith's Commonwealth part 2. c. 22. Who are chosen to be Justices of Peace are elected out of the Nobility Knights Esquires and Gentlemen and such as be learned in the Laws such and such number as the Prince shall think meet and in whom for wisdom and discretion he putteth his trust being mostly Inhabitants within the County saving that some of the High Nobility At the King's Pleasure and chief Magistrates for honour sake are put in all or most of the Commissions Those have no time limited but by Commission from his Majesty alterable at pleasure Much increased in number At first they were but four after eight and now thirty or forty in a Shire either by increase of riches learning or activity in Policy and Government more being found than anciently who have either will or power or both to do their King and Country service and they are not too many to handle affairs of the Commonwealth especially for the benefit of the Subject For the better distributing of Justice that they may have in all parts of the County one or more not very remote to apply themselves to The Faults they may punish Each of them hath Authority upon complaint to him made of any Theft Robbery Manslaughter Murther Violence Complots Routs Riots unlawful Games forceable Entries Excess in Apparel Conventicles evil order in Ale-houses and Taverns of Idle and Vagabond Persons Masters and Servants not observing the Laws Rapes false Moneys Extortions or any such Disturbances of the Peace quiet and good order of the Shire to commit the Persons supposed to be Offenders to the Prison and to charge the Constable or sheriff to bring them thither and the Jaylor to neceive them till the next Quarter-Sessions when the Sheriff or his Under-Sheriff with his Bailiffs be to attend him at their Sections where Informations are given in to them by Bill which is shown to the Juries and if they find just cause for the complaint they find the Bill and the Party is Indicted and Tryed by a Jury of twelve men at the Kings Suit for the King is reckoned the one Party and the Prisoner the other They are also to order the repair of Bridges High-ways the Poor the lame Souldiers pensions and do many things besides according to the Power given in their Commissions which particularizeth all things they are to take Cognizance of sometimes upon suspicion of War to take care for the order of the Shire and sometimes to take Muster of Harness and able men Once in a year or two the Prince with his Council Instructions given to Justices of the Peace saith a Manuscript I have seen chuseth out certain Articles out of Penal Laws made to repress the pride and evil rule of the People and sends them down to the Justices willing them to meet together and consult among themselves how to order the matter most wisely and circumspectly whereby the People might be kept in good order and obedience according to Law and they after a certain space meet and certify the Prince or his Privy-Council how they do find the Shire in rule and order touching those points and all other disorders There was never saith Sir Thomas Smith (r) Part 2. tit Juslices of Pearce in any Commonwealth devised a more wise a more dulce and gentle How beneficial the Institution of Justices of Peace or more certain way to rule the People whereby they are kept always as it were in a Bridle of good order and sooner looked to that they do not offend than punished when they have offended for seeing the chief Persons of Quality and Interest among them have such charge and Authority given them by the King and if occasion be do commit cause to be Indicted and punished or sent to Prison for disobedience Offenders against the Laws It curbeth and terrifieth Offenders so that it is a new Furbishing of the good Laws of the Realm and a continual repressing of Disorders which the Common sort of People are too prone to if it were not for this impending lash which every where is held over Criminals The Law it self as registred and printed is but a dumb and dead thing the Ministers of the Law are those that give life to it and for that end were Justices of the Peace Constituted who being Gentlemen of Interest and parts are the fittest Instruments to see the Laws duly Executed They are principally concerned in seeing to the Execution of several Laws which are Committed to their Charge and it is greatly advantagious to the Country that at every Quarter-Sessions in the face of the Country one of the Justices of the Peace gives a charge to the Jurys wherein with learning and Judgment he acquaints them with the Excellency Antiquity and Utility of Monarchical Government the usefulness of those Laws Wise and Gracious Princes have granted to their Subjects the excellent Composure Contexture and Harmony in the Government and many other particulars fit for them to know as good Subjects and good Neighbours Having met with some Speeches made in Queen Elizabeth's time which relate either to Justices of the Peace or the Execution of Laws in general I think it may not be unacceptable to the Reader to understand in what manner that Queen caused her Chancellor to quicken the execution of the Laws Some touches of which follow (s) MS. Speech to the Justices Itinerant Anno 1559. The Conservation of Peace their principal Charge By the Conservation of Peace and Concord every Commonweal hath a perfect Foundation to begin marvelous good course to increase a strong Pillar to sustain it and a strong Buckler to defend it The plain and good order of each County consisteth in the well or evil Executing of Justice for thereby either every man enjoyeth his own and the whole Commonweal is in a calm and even Temper or by remisness in Execution the Free-Booters and Beasts of Prey are let loose to rob and despoil some and affright
will have more honourable and contented Thoughts and own not only the Truth but yield to the necessity of that of (g) Fato quodam aut sorte nascendi ut caetera ita Principum inclination in hos ossensio in illos Annal. lib 4. Tacitus That as our Birth s are ascribed to Fate or Chance so the Inclinations of Princes to some and their dislike to others as he instanceth in Lepidus under Tiberius We see in the great Oeconomy of the World which we must believe is disposed by the Universal Monarch some noble Families in every Age are Extinct and other new ones by their Vertues and great Accomplishments are raised and the Cadets of others like some Rivers are hid for some space under Ground till when they appear again they are know by their refined Parts to be of noble Abstract Not to repine at the Prince's Favours bestowed on others The Sun is the same most luminous Body though some Maculae are observed in it by curious Telescopes and if Princes Beams shine not always with the same Serenity upon the district of some Families that it hath done it is no more than the Sun in the great Vortex doth and is no more to be repined at Therefore it becomes those noble Souls to be content with their large allotments and shake off all those Vipers that would sting them with Envy and Discontent It is well worth such Noblemens Consideration how their Interests are interwoven with that of the Crown and if any unhappily have loosened the twine or frozen the Zeal they have for its support let them call to Mind the Vertue and Bravery of their Ancestors and observe what Gemms or Gold-work they were of it and strive to fasten themselves there again and out of the Embers kindle again that Loyalty they have derived ex traduce from their generous Ancestors so that (a) Lucan 1.2 v. 557. Fervidus hac iterum circa praecordia Sanguis Inacleat And as the Crown hath bestowed Honour and Wealth upon their noble Families so let them never be wanting with their utmost Industry to support it in all its splendid Prerogatives and of all the Infamy of Mortals let not ingratitude be laid to their Charge How the Nobility may honourably acquaint their Prince with Grievances The Nobility are Conciliarii nati and as their Birth and places give them easy access to the Princes Privy-Chamber and Cabinet though they be not of his secret Council so they have opportunities to present the State of Affairs and ill managery or grievances of the People when they conceive them concealed from their Prince both better and more effectually than others of a lower Rank But then it should be done like Persons of Honour with all Respect and Duty to their Prince and the ostentation of this sort of Charity should not lessen the usefulness of it much less should they blow a Trumpet when they perform it either to aggrandize the Enterprize or to raise discontent at the denial In every Kings Reign it hath been a flourishing time and happy when the Nobility studied with a refined laudable Contention to aemulate one anothers Vertue striving to out-do one another in the Service of their King and Country uniting in that glorious Testudo to defend their Princes Prerogative and the Laws that adjust their own and the Peoples Priviledges It is never to be forgot how in our late Commonwealth How Common-wealths depress the Nobility the House of Peers was by the very Posteriors of the Commons Voted useless and dangerous No sooner was that sacred Head separated from them but they were degraded to Commoners as to any Legislative Power and though those Noblemen that were content to fit in the lower House were highly caressed and applauded yet a few Years hath changed the note and their Names will be recorded to Posterity in far less Lustre than if they had more strenuously espoused the afflicted Kings Quarrel and it is not to be doubted but the Sence of that will be a most prevalent Antidote against the Defection of any of the Nobility that will consider the naturalness of such a degrading if the Commonwealth-Men should ever appear again without their Vizors and it will be an excellent amulet to keep them from the Infection of such Principles and Practice It is worth noting that William the Conqueror giving to his Nobility great Fees to be held of him in Capite How the Nobility had greater Power anciently than now for some Ages the Nobility had great Interests and numerous dependences and had special Jurisdiction over great Baronies and while they served the Crown according to their Tenures the inferior Gentry and Commoners being one way or other Tenents to them could do little in opposition to the Crown But when in King John and Henry the Third's time their greatness was dangerous to the Crown the Commons were brought in to be a part of the Parliament Yet for some while after they retained their Grandeur till as I have hinted Henry 7. retrenched them and Queen Elizabeth preferring so many new Men makeing less use of the ancient Nobility studied to gain the common Peoples Affections by all Arts and Bounties she could use and in after-Ages the Nobility being less valued by the Freeholders and encreased in Number and some of them adhering to the two Houses against their Sovereign their interests both with the Parliament and People grew less But now under a Prince who sets a true value upon the Nobility if they he not wanting to themselves they may hope to attain the lustre of their noble Ancestors and the Commoners be no ways abridged of their Priviledges For then the Government is in the happiest Condition when the Nobility are great without Ambition rich without Oppression eminent in Vertue as in Character The Gentry so deporting themselves to the Commonalty as they desire the Nobility may to them and the Commonalty with humble Industry peaceably enriching themselves and enjoying that freedom and liberty which may keep them in Heart and Courage to serve their Prince and Country with chearful Alacrity and out-do those of their Rank in all other Dominions which in the English Soldiery is observed in all Wars to be their peculiar Excellency ascribable principally to the Benignity of the Government which dispirits them not and when this liberty is not abused to Licentiousness but restrained within the Bounds of humble Candor and Modesty Reverence to their Superiors and thankfulness to their Prince all is in an happy Frame CHAP. XXXVIII Of the Gentry of England I Shall not detain the inquisitive Reader upon the derivation of the Word Gentilhom or Gentleman but refer him to (a) Titles of Honour P. 861 862. Whence the Name Mr. Selden who at large discusseth the point whether with Velserus and some others it be derived from Gentilis or Heathen as introduced when the Goths Hunns and Vandals having overrun the Roman Provinces were in a
Captains of whom Tacitus saith That to him alone the Soldiers Ears were open for he had Eloquence and the Arts of making gentle and pacifying the Multitude and had Authority with them Ninthly 9. Cunning close Men. The cunning close Men who can best dissemble their evil Intentions are dangerous Ingredients of Faction such as (f) Pulckra loquentes iidem in pectore prava struant Odyss 5. speak fair and plausible things of the Government but in their Bosom and to their Confidents and secret Friends are framing Mischief Of such Livy speaks that by little Arts they strow their (g) Fraus in parvis fidem sibipraestant ut cum operae pretium sit cum mâ—rcede fallant Liv. lib. 28. ways to Credit that when it is for their purpose they may deceive with so much more advantage to their publick or private Designs These are such as speak not openly against the Government but can afford it some good words but then you shall be sure they will subjoyn some sighing Wish That such or such a thing were amended or better managed Tenthly Innovators in Religion are the most dangerous of all others to kindle Factions 10. Innovators in Religion their Fire is pretended to be from Heaven their zeal warmed with a divine breath from the Altar Diversity of Religions saith a late grave (h) Address part I p. 10. Writer cause the greatest Ferment of the People From hence the Part-taking and Part-making ill Will Hatred Contentions and Jealousies spring one Party hoping to rise another Party fearing it may be so and striving to pull down or keep down another Presbytery saith he is a State-Faction hatched in Rebellion and a popular State the whole Scheme of it adapted to those ends totally inconsistent with Monarchy and the freedom and liberty of any People that will not be Slaves to the Clergy and this is not so much the Doctrine as the necessary effects of its ill Principles Independency sprung out of it as luxuriant Suckers from the roots of the Tree every Minister of that perswasion desiring only to be Head of his own Congregation advanced the Banner of Toleration so that some'reckoned one hundred and forty several Factions and Heresies the Seeds and Reliques whereof are still scattered among us ready upon any benign Vote of an House of Commons as that was about the taking off the Penal Laws and the Union of Protestants to sprout out of the Soil they lay covered in So that a worse Crop than that of Cadmus's armed men may be expected when ever any cherishing warmth enlivens them This too manifestly appeared of late when such as for above twenty years had lived Separatists from the Church established by Law yet to be qualified for places of Trust Authority or Preferment and to imploy them to the ruin of the Church and Monarchy could take the Sacrament Test c. with all the Formalities required by the Act. We find none of those Pamphlets that inveigh against Arbitrary Government but they generally are against the Church and Monarchy such as these took advantage at the consternation of the People at the Plague Fire and their Plot to push their designs forward which they might do with the greater safety because of the confusion the People were in So that the Scourge which as far as any man can judge was sent for the sins of the former Rebellion was made by them a means of disposing them to commit the same over again when time and opportunity serve as the same Author observes Thus far my Author Having under these Ten general Heads ranked the several causes of Sedition I shall refer the Reader to the (i) Polit. lib. 5. c. 3. Giphanii Comment Philosopher and his Commentators to consider several others that are less material to my purpose noting only that he divides the causes into such as are real causes and naturally produce such effects in the ill managery of Government and such as by designing men are the pretended causes which are Blinds and false Colours to muster the Parties under The pretences that Factious and Seditious persons generally use are That the Government invades the Property of the People by illegal impositions of burthens upon them That the Laws and Customs are altered There is Innovation in Religion Unworthy Persons are advanced who promote Oppression and Arbitrary Rule Liberty and ease (k) Lilertâ—s 〈…〉 Tacit. 1. Histor of the People from some pressures or grievances are pretended This is the Tabret and the Horn-pipe to the Mobile this sets them all on gog The weather-cock common-man thinks himself set upon the Spires of Steeples or the tops of common Halls though he sees not a span length before him He is easily (l) 〈…〉 suturi improvidâ—s spe vana 〈◊〉 Id. puffed up with vain hopes of liberty and when the Factious designers have once possessed the People that such and such Actions of the Magistrates have a tendency to deprive them of their Properties Priviledges and Liberties their jealousies hurry them into all the acts of Rage and Madness which prove so fatal to Kingdoms For when the Rabble that bellua multorum Capitum once feels their strength and finds the reigns loose on their Necks they are ungovernable wild and untameable The hard-mouthed Creature despiseth the Bitt and casts the Rider though it 's the ircertain Fate to be mouthed by a much greater Oppressor that so jades them that they are blessed if they may obtain the benefit of their former despised Masters rule The Nurseries of Sedition are great and populouâ— Cities The Nuâ—â—ries of Sâ—dition being bodies aggregated of all dispositions Hence the Philosopher (m) Giph◠〈…〉 in c. 15. lib. 4. 〈◊〉 Arist well observes That if the Citizens be rich they can spare time to hear the Orations of the. Demagogues to club in Consultations and Combinations and bestow some parts of their wealth to carry on their designs If poor and wanting imployments they are ready for all evil impressions and tumults they are ready to ascribe the want of their Trade and their poverty to the ill administration of the Government All sorts make it a relaxation of their toils and cares in the managing their Trades to refresh themselves with occurrences of State here seditious Libels half whispers false News licentious discourses jealousies murmurings and repinings are forged to be Repast for every Palate Oglios here of several kinds are cooked by the Seditious so they such Poyson with their very racy Liquors they grow as wise as Statesmen by drinking Tea and Coffee and by telling and hearing shreds of News Their Ale and Claret makes their Political heads settle affairs of State and according to their own inclinations they furnish their Correspondents with News by retail casking them up with their Wares and the Plague spreads into the Country by that means Besides in this vast multitude it cannot be wondred there should be diversities of Opinions as
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
is one of the dangerousest signs of a strong and prevailing Faction when a Prince hath notice and apprehension of it yet either for want of courage or easiness of temper to believe better of the Factious than they deserve quiets his resolution of opposing them at some critical time whereby they finding their Prince to yield to their importunities in granting some one thing he hath declared against readily interpret it a fear in him and when they have taken him at low water-mark they flow amain upon him with new and new Floods Such Princes thinking to make themselves easie by complying embarrass themselves the more with fresh troubles strengthen the hands of the Factious and by deserting their best Counsels and Friends open their own retrenchments dismount their own Artillery and give such ground to the Factious as at last they are either forced to quit their Throne or with too late rally'd resolutions fight for that Post they have so supinely quitted CHAP. XLV The Remedies of Faction and Sedition AS no Malady in the natural Body can be cured without the knowledg of the proper causes so the prevention of the growth of Faction and Sedition unto Rebellion is best effected by substracting the matter and taking away the fundamental causes of it First it is to be observed (a) Omne recens malum facile opprimitur inveteratum fit plerumque robustius Cicero Philip. That all budding evils are sooner stifled than those that are not only run up to Seed but suffered to shake in a rank Soil Therefore the Historian (b) Incipiens nondum adulta seditio melioribus conciliis flectitur saith That young and not grown up Sedition is bent with easier Councils So beginning Ulcers are easilier cured than those that are festered to the Bone or are Callous Fistulas Sedition is a personal Crime but because it consists in the several qualifications of the Persons I shall treat of the Cure in the same method as I have of the Causers and Causes The signs being as so many Symptoms which will require also some remarks First as to the debauched 1. The Debauched they are but the Velites the light-armed Vancouriers there is small danger from them They grow as Tares in every Country and Age they are the luxuriant branches of a rank Soil and long peace They are the Sutlors of the Camp There is a curse of peace that brings such weeds but the Howes of the Laws and Ecclesiastical discipline will hinder their growth and eradicate them The best Antidote against the mischiefs these people can bring to the Common-weal is the Prince's example to put vice out of fashion and countenance for a Prince's Vertue and Piety influenceth much No doubt his Majestie 's great care to forbid and discredit all kinds of Vice will work a greater (c) Hac conditio Principum ut quicquid faciam prâ—ipere 〈◊〉 Quintil. Declam 2. reformation among the dissolute than his Laws and will engage the hearts and affections of all vertuous sober and considerate Persons for as the passage among the Romans to the Temple of Honour was through that of Vertue so must that be to Loyalty and Christianity through Morality Secondly The light-headed airy Persons 2. Light-Headed as they are something a kin to the debauched the one pleasing his sensual Appetite and the other feeding the Chimaeras of his Brain as their peculiar Province so they are as little dangerous The suppressing Libels and Pamphlets would starve them But if they wanted them it is likely they would be worse imployed Therefore it is necessary in all Governments to countenance and set on work ingenious Persons who are well principled to the State to ridicule the Factious and feed these flutterers of the Air with Canary-seed and they will never fly against the wind or out of their Aviary but there sport themselves with as much variety of hopes flights and short Notes as the Birds do and yet other mortals be as ignorant of the impulsive causes as we are of the motives of the frisks and flutters of those Choristers of the Air. However these are not to be countenanced and indulged lest their wild Notes be imitated or that airiness grow too fashionable whereby solidity and stayedness be ridicul'd as we have seen it too much in our age when the Military educacation made the Schools and Universities less frequented and the licentiousness of those times is not yet forgot So that whereas in one (d) Pontefract Mr. Wakefield Mr. Hitchin Mr. Skipton Ald. Corporation before the War the Earl of Arundel found three Aldermen that used their Greek Testaments at Church it may be there are not three in a County that do so and Gentlemen have too much disused the reading of Latin Authors from whence our Language hath received the greatest improvement and yet to cover their unkilfulness many are too prone in this Age to decry the use of quotations out of such choice Authors But this in transitu Thirdly 3. The Indigent The necessitous and indigent being the Infantry of Faction and the gross Body require the Governments greater circumspection to prevent their being arrayed by the Factious Chieftains Necessitas ad turpe cogit Robbing and Stealing are their Master exploits in times of Peace Those which will adventure to stretch an Halter will adventure upon Bullets for a small constant Salary and being Mercenary will pass on either side where the greatest prospect of gain is therefore the Government is too take all possible care that Prodigality and Luxury bring not the better sort to want The way to enrich a People in general is to open and well ballance Trade cherish all sort of Manufacture banish Idleness repress wasts and excess improve and husband the Soil regulate all things vendable moderate Taxes and Tributes to invite the Indigent to people new Plantations or those that are fit for it to serve abroad in Military imployments These are such Remedies as being vigorously put in execution will leave few in want but such as by their laziness will chuse to freeze on Horseback rather than take the pains to go on foot to get them heat A Prince that would enrich his Subject saith my (e) Essays Lord St. Albans must take care that the Treasure of money in the State be not gathered into few hands otherwise a State may have a great stock and yet starve Money being like Dung not useful unless spread The best Mine above ground is when a Country affords not only the Commodity but the Manufacture and carriage for then treble hands are set on work Thence in all projects of cutting Rivers for the transporting of Commodities further within Land it ought to be well considered whether it be not more profitable to have many poor men and their Cattle imployed in Land carriage than by the cheaper way of Water only to enrich the Tradesmen and starve a hundred heads for one If the wholsom Laws for
it was so once by the Prince and so the vulgar instantly credit his Sentiments as Oracles so that he having already acquired an easy belief with the greatest facility in the World puts a false gloss upon the Princes best designed Actions and retaining his old dependences they will whisperingly disperse his sence of things Let him then make himself heads of the Country Party and the true Protestants as of late some affected to be called and he is presently without further labour and industry adored as the Peoples prime Patriot Having got Tools enough to work with still pretending his concern for the Publick weal of the People and at the same time tacitly insinuating some reflections upon his Quondam-fellow Counfellors depreciating their Wisdom and Honesty and leaves the application to his Admirers They will be sure to aggravate all appearances of Male-Administration since his laying aside and insinuate that Affairs have a tendency to oppression of the People altering Religion or such like plausible Subjects and so by little and little the Peoples affections will be estranged from their Prince and shall be set upon this new Idol the fallen Lucifer If the Soveraign upon some emergences by necessitated to call a Parliament he shall obtain a great if not a major part of the Members chosen according to the Common Peoples by as he shall put upon them most opposite to the Kings Interest In such an Assembly he shall be sure to have great Interest and under some pretences of Grievances of the Subject render useless to the Affairs of the Soveraign and upon its necessary dissolution improve still his Interest that the succeeding Parliament shall be as wayward and by promoting Bills he knows his Soveraign can neither in Honour or Conscience assent to still more alienate the Peoples affections from him till at last he get to be sole Director of such Assemblies having all this while the Wisdom and cunning to keep himself within the compass and reserve that for Words or Actions he be not obnoxious to the Laws Having obtained this height he is able to influence the Elected of City Magistrates secure himself by them and at last to form Conspiracies against his Prince till which time he being the Idol of the People is only feared and suspected but nothing of Traiterous Designs being yet pregnantly discovered he runs on his risk till some fortunate discovery of his designs force him to abscond and then his whole machinations come to light and if he escape the hand of Justice he is forced to leave his Countrey and ends his life ingloriously abroad This is the common exit of such who had much better have offered violence to these headstrong Passions and been content with a quiet retreat and dieted and physicked their virulent distempers with the applications of sage Counsel and the Precepts of Judicious Men finding out the cure for their Diseases in Books and Solitude than thus to live in the Pangs and Throes of Ambition to the disquiet of their Prince and the emptying of their Country Of such we may not only say with (h) Percandam posthac modestiam ut contentius esset Tacit. 4. Annal. Drusus That Modesty must be prayed to that they be content with their Greatness but Justice must be invoked to prune such luxuriant Branches as not only overtop and Shade all the rest but suck away from them all their Sap and Nourishment In (i) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lib. 2. Dio Cassius I find it advised That such Criminals as these that are above the stroke of Justice and whom a Prince cannot with security to himself bring to a Publick Trial should not be arraigned but as open Enemies instantly punished So some Princes finding such subtle ambitious Men beyond the reach of their Justice by way of publick Arrest and Trial by the Law being satisfied in their Consciences that they were hatching great mischiefs to their State and the subversion of their Government have commanded by their Soveraign Power execution of them by private hands So fell Frier (k) History of Hungary George newly made Cardinal for tampering with Solyman the magnificent to bring him into Transilvania and exclude King Ferdinand by direction from the King to Castald his General there So fell the Duke of Guise and the Cardinal of Burbon but this sort of Justiec brought as great mischiefs afterwards to their Crowns as they could in probability have sustained by their lives at least if the Prince had with watchful oversight so timed the Execution that they had let them live till they had made their Treasons more manifest So Tacitus (l) Inauditi atque indefensi tanquam inno centes â—erierunt 1. Histor speaking of Galba's putting to death Cingonius Varro and Petronius Turpillianus saith That they being not suffered to be heard and defend their Causes judicially perished in the repute of Innocents Therefore there are other ways more just and safe for Princes to take with so great and subtile Criminals As to toyle them into some great errours give them opportunities to shew their ill Conduct and Council or to do something ungrateful to the People that they may go out of their places with such a scar as will stick by them in their retirement and study to enjoy a quiet recess lest they be called to an account for what they connived at when they fell so if they can be rendred unuseful and of little credit with the People they will have none to back them in their attempts but Persons of small Reaches and Interest and then for smaller Transgressions they may be called to an account and if they be conscious to themselves of any guilt they will quit their undertakings for fear of a suddener Catastrophe than Ostracism If such Ambitious Persons have gained so great Interest that neither by setting Spies upon them or by other Arts their secret drift can be sifted out * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 5. Polit. c. 11. then Aristotle's Rule is to be observed by compassings and windings to remove them and not to tak all their Power away at once or to remove them to some higher place where they may have a new Administration to begin in which they are not so well versed on wherein they can do nothing without the Prince and his Councils daily inspection and where no dependences are to be gained Above all a Prince is to take care to follow the (m) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. Philosophers Rule to make no man too great for as he saith It is the safeguard of the Principality to make no one Man great For Tacitus (n) Semper periculosum privati hominis nomen supra nomen Principis attolli Vita Agricolae well observed It is most inconvenient and dangerous to have any one more in vogue than the Prince for if such have not powerful Principles of Loyalty lodged in their breasts they have great temptations and opportunities to do Mischiefs especially
sought after as the Trumpets and Kettle-drums that call together the whole Array against the Government And if they cannot be dispossessed of that Evil Spirit by gentler means they are to undergo the severity of the Laws which are made against Incendiaries of a Kingdom which is of more dangerous consequence than the firing of a Private Man's Habitation The danger from these Libels are the greater because (g) In civitate discordi ob crebras Principum mutationes inter libertatem licentiam incerta parvae quoque res magnis motibus agebantur Tacit. 2. Hist in times of Faction and the often Changes of Government the People being unfixed fluctuating betwixt Liberty and Licentiousness small Matters are transacted with great Emotions As to Corporations they have all of them been endowed with their Privileges by the Grace and Bounty of the Sovereign from whence all Immunities and Honours do flow The first Institution of them was no doubt Concerning Corporations that Justice might be executed in them for the better governing their numerous Inhabitants that they might be the Places of Traffick where the adjacent Country might be supplied and their Neighbours might vend their Growth and Manufacture And thus being enriched by Commerce separated from their Country-Neighbours by Honours Offices and Liberties something a Gentiler Education might be expected there whereby they might be Patterns to their adjoyning Neighbours of good and vertuous Deportment being exempted from the Jurisdiction of the Justices of Peace and attendance upon Assizes whereby Legal Matters in order to the necessary Administration of Justice are executed in their Precincts by their own Members and many of them besides the Privileges to be found at large in the Statutes and Law-Books have power to chuse as many to represent them in Parliament as the whole County hath It would fill a large Volume to recount the particular Powers and Freedoms have been granted to them by the Royal Favour of the successive Kings of England whereby they are erected into little Commonwealths Therefore there is good reason as they may do much good or harm and they have all the enriching Streams and Conduits from the Sovereign Spring and Fountain so they should have a strict dependence upon the Sovereign that they may not employ those great Privileges against the Laws and Government nor the rich pragmatical Magistrates Citizens and Freemen animate Factions and Seditions against it or presume to obtrude their impertinent Advices upon their Sovereign or by their clamorous Petitions for Redress of pretended Grievances and Male-administration or by their Election of Factious Representatives dispose of the Fate of the Empire as they did in 1641. by their general Combinations with the then Parliament which they so effectually assisted in their Rebellion It is too manifest how little Justice the two last Kings could have in the great Metropolis the King 's Imperial Chamber or in other Corporations although they had all less or more received great Instances of their Royal Favours and Graces And tho' the great City by the late King of Immortal Memory 's Royal Munificence and Princely Care as much as in him lay by Act of Parliament and his own particular Bounty after it was so fatally reduced to Ashes was raised into one entire Palace so beautiful and splendid as all People must acknowledge it the Eighth Wonder yet the grateful Returns were unproportionable This great City enjoyed as ample and beneficial Privileges as any could wish for and though it be deprived of some of them yet by the Munificence of our late and present Sovereign it enjoys what is needful for its well governing in subordination to the Publick Since therefore the Corporations mostly were found to have made ill Returns to their Sovereigns for all their special Graces by a most wise Council it hath been judged fit to enquire by what Warrant they enjoyed those Privileges and to recall those Charters that new ones might be granted mostly with Additions of Privileges only that the Magistrates if they should abuse their Authority might be displaced at the King's Pleasure A most necessary Resumption of Power whereby they might not be in a capacity for the future to give any Disturbance to the Government Elsewhere I have given short Hints of the Practice of former Kings in vacating the Charters of the great City and shall only add what I find in the most Judicious Historian was done in a like Case by the Senate of Rome in Tiberius his Reign The Licence (h) Crebrescebat enim Graecas per urbes licentia atque impunitas asyla statuendi complebantur â—â—mpla pessimis servitiaâ—um eodem subsidio obaeraâ—i adversus creditores suspectique capitalium criminum receptabantur nec ullum satis validum Imperium erat coercendis seditionibus populi flagitia hominum ut Caeremonias Deum protâ—entes Igitur placitum ut mitterent civitates Jura atque Legauos c. Magnaque ejus diei species fuit quo Senatus majorum beneficia sociorum pâ—cta Regum etiam qui ante vim Romanam valuerant decreta Ipsorum numinum Religiones introspexit libero ut quondam quod firmaret mutareâ—ve Tacit. 3. Annal. and Impunities of ordaining Sanctuaries and Privileged Places encreased saith my Author throughout the Cities of Greece the Temples were filled with most lewd Bondslaves in the same were received Debtors against their Creditors and Men guilty of Capital Crimes were protected neither was there any powerful Authority able to bridle the Sedition of the People Villanies were protected no less than the Ceremonies of the Gods Therefore it was appointed That the Cities should send their Agents with their Laws Some by way of Resignation of their Charters freely remitted those things they had falsely usurped many did confide in the Antiquity of their Superstitions and their Deserts to the People of Rome The Pomp of that Day saith the Historian was great in shew In which the Senate for Tiberius had left the Senate a Shadow of their ancient Estate by sending the Requests of the Provinces to be examined by them considered of the Privileges granted by their Predecessors the Agreements with their Confederates the Decrees of the Kings before the Countries became subject to the Romans and the Religion of the Gods themselves to confirm or alter all By which it may appear to be no new thing for Sovereigns to enquire into the Privileges of Cities tho' claimed by Divine Original as many of those were from their Gods or by the Bounties of Princes As to Conventicles the Nurseries of Seditions since the Laws are obvious by which they may be suppressed and that in another Chapter I have treated of them I shall take no further notice of them here being as unwilling that truly consciencious mis led People that endanger not the Government should be severely punished as I heartily wish they would give no Disturbance to it CHAP. XLVI The Preservatives against Faction and Sedition THE general Amulets
fifth when the Multitude rule by majority of Voices and not the Law so that their temporary Votes were Law We have resemblance of these kinds of Governments in our Corporations Concerning the Democracies in Corporations where in the Elections of Magistrates in some places all Freemen in others those only who have Burgage Land in others a Common-Council solely have Vote and the whole Body or such and such parts have Power to make By-laws If we had no other Argument against Democracy but this that it is of that narrow capacity that it cannot be adapted to order Regions of large extent it would be sufficient to discredit it for we find in those incorporated little Democracies there are more Factions and divisions than in the whole large adjoining tracts of Land about them though the Villages contain a much numerouser People It is rarely found but that in all Votes relating to the public Combinations are made by Kindreds Companies or Factions The inferior sort having equal Vote often out-number the Richer and Wiser and so businesses are aukwardly or tumultuarily determin'd and the meaner People must either neglect their domestic affairs to attend frequent Conventions or leave the managery to a stirring factious Party which is (k) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. l. 5. c. 5. contrary to the fundamental equality and freedom they labour for As these Corporations were first created by the Sovereigns Grace and Favour for the encrease of Trade and enriching the places and administration of Justice so while they keep themselves within the bounds of their Duties are Loyal to their Prince and Faithful to the Government and presume not by their Pragmaticalness to dispose of the Fate of the Empire or by their factious Elections to make disturbances It is very necessary they should enjoy all their municipal Priviledges But so many Corporations having of late acted contrary it is no wonder that the late King upon solid reason of State issued out his Quo Warranto's against them and in all the new Charters reserv'd a Power in the Crown of displacing the Evil Magistrates at pleasure But to leave this to another place I shall note out of the Philosopher such Arguments as he useth against Democracy 1. Argument against Democracy Injustice As first that the common People being the greater number and the Soveraignty being supposed to be in the whole complex Body whatever they approve must be establish'd as a Right and Law (l) Vbi plebs est domina necesse est ut quod plurimis visum sit hoc quoque sit ratum hoc sit jus Polit. l. 6. c. 2. and suppose they vote a Dividend of the richer Citizens Estates among themselves though this by the force of their Government be just yet in its own nature it is great Injustice to destroy the rich Man's Propriety as well as it were for the Rich to do the same to the Poor 2dly 2. Against the Common Peoples Liberty of Elections Liberty being the principle of all Democratical Government it consists in two things either to live (m) Plerisque jucundius est licenter vivere quam modeste Ib. c. 2. licentiously which in Athens and other places was very fatal and as Demosthenes Isocrates and Cicero complain that under the specious pretence of Liberty even Anarchy prevail'd Or Secondly in the free and uncontroulable Power of chusing their Magistrates and this accasioned the contest of parties for Victory hence Crowds Tumults Routs Riots Frays and Quarrells and after all Heart-burnings (n) In Licurg Vide Giphanii Com. in c. 7. l. 2. Polit. Arist Plutarch gives us an account of the manner of some Elections for Senators that certain Persons being closed in a Room where they might hear the peoples Voices but not see the People One Competitor after another was proposed and him who was judged to have most Voices they carried Crowned to the Temples of the Gods Women and Children following him with Shouts This (o) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 L. 2. Polit. c. 9. Aristotle calls a Childish action in so grave an affair it being not fit for any to seek Magistracy in such a way that by the judgment of the Multitude only is thought fit to Rule but (p) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. he that is worthy be he willing or unwilling should have the place Therefore we observe where the King hath the sole Power of nominating Judges Sheriffs Justices of Peace c. though they are of as great advantage to the Peace and order of the Government as Mayors Sheriffs or Common-Council Men of Corporations there are neither Hubbubs or Quarrels at their Elections and they are generally better qualified than such as court the peoples Favour Therefore (q) Rempublicam perituram in qua viri Principes consultant Populus vero imperita plebecula decernit Laertius exclaims justly that the Common-weal must perish in which the Nobility consult but the People and unskillful common Rabble give Judgment 3dly 3. Their Faction In this Government there is a continual spawning of Faction So it is (r) Giphanii Comment in lib. 5. c. 5. Polit. observ'd that at Athens the Democratical Government mostly obtain'd yet in the Attick State there were no less than three Factions according to the tripartite division of the People viz. the Diacrii that inhabited the mountainous Parts who were for pure Democracy the Pediaci who inhabited the lower Grounds and they were for a mixture of Oligarchy and the Parulii or Inhabitants on the Sea-Coasts and those were a mixture of both which Aristotle calls the Politick Hence Pisistratus appearing an Enemy to the Pediaci made himself gracious with the People and so easily got the Government So he instanceth in the changes of those of Milesia by the Prytania which was like a Consulship or Dictatorship at â—â—me So he gives an account of Dionysius feigning himself to be wounded by the Nobility who hated him for his love to the People raised a great Envy and Rage of the People against them and so established himself So Theagenes by slaying the Cattle of the Nobility animated the People of Maegara to follow him till by suppressing the Nobility and Richer he got himself to be Master of all The like we may read in (s) Lib. 13. c. 9. Diodorus Siculus that Agathocles did at Syracuse All which Changes were the Issues of Factions betwixt the Nobility and Common-people which is as inseparable from this sort of Government as the Prickle is from the Thistle or the Husk from the Corn. Fourthly The Philosopher notes That in this Government the Demagogues were most used These indeed were the Bell-wethers of Faction the Conductors of the Peoples Wills and Affections by the power of their Popularness The (t) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Pol. l. 4. c. 4. Philosopher tells us there was no use of them where the Law commanded but where Matters were judged by the Decrees of the