I read that the Senators who are all chosen out of the Nobility and seldom exceed the number of 28 with the chief of the Realm do chuse their King They have always in a manner set the Kings eldest Son upon the Royal Throne The Nobility of Denmarke withstood the Coronation of Frederick 1559 till he sware not to put any Noble-man to death until he were judged of the Senate and that all Noble-men should have power of life and death over their Subjects without appeal and the King to give no Office without consent of the Councel There is a Chancelour of the Realm before whom they do appeal from all the Provinces and Islands and from him to the King himself I hear of nothing in this Kingdom that tends to Popularity no Assembly of the Commons no elections or representation of them Sweden is governed by a King heretofore elective but now made hereditary in Gustavus time it is divided into Provinces an appeal lieth from the Vicount of every territory to a Soveraign Judge called a Lamen from the Lamens to the Kings Councel and from this Councel to the King himself Now let the Observator bethink himself whether all or any of these three Countries have found out any art at all whereby the people or community may assume its own power if neither of these Kingdomes have most Countries have not nay none have The people or Community in these three Realms are as absolute vassals as any in the world the regulating power if any be is in the Nobility Nor is it such in the Nobility as it makes shew for The election of Kings is rather a Formality than any real power for they dare hardly chuse any but the Heir or one of the blood Royal if they should chuse one among the Nobility it would prove very factious if a stranger odious neither safe For the Government though the Kings be sworn to raign according to the Laws and are not to do any thing without the consent of their Councel in publick affairs yet in regard they have power both to advance and reward whom they please the Nobility and Senators do comply with their Kings And Boterus concludes of the Kings of Poland who seem to be most moderated that such as is their valour dexterity and wisdome such is their Power Authority and Government Also Bodin saith that these three Kingdoms are States changable and uncertain as the Nobility is stronger than the Prince or the Prince than the Nobility and the people are so far from liberty that he saith Divers particular Lords exact not onely Customs but Tributes also which are confirmed and grow stronger both by long prescription of time and use of Iudgments The End AN ADVERTISEMENT TO THE JURY-MEN of ENGLAND TOUCHING WITCHES ADVERTISEMENT To the JURY-MEN OF ENGLAND THE late Executon of Witches at the Summer Assises in Kent occasioned this brief Exercitation which addresses it self to such as have not deliberately thought upon the great difficulty in discovering what or who a Witch is To have nothing but the publick Faith of the present Age is none of the best Evidence unless the universality of elder times do concur with these Doctrines which ignorance in the times of darkness brought forth and credulity in these days of light hath continued Such as shall not be pleased with this Tractate are left to their liberty to consider whether all those Proofs and Presumptions number'd up by Mr. Perkins for the Conviction of a Witch be not all Condemned or confessed by himself to be unsufficient or uncertain He brings no less than eighteen signs or proofs whereby a Witch may be discovered which are too many to be all true his seven first he himself confesseth to be insufficient for Conviction of a Witch His eight next proofs which he saith men in place have used he acknowledgeth to be false or insufficient Thus of his Eighteen proofs which made a great shew fifteen of them are cast off by himself there remains then his sixteenth which is the Confession of a Witch yet presently he is forced to yield That a bare Confession is not a sufficient proof and so he cometh to his seventeenth proof which is two credible witnesses and he here grants that the League between the Devil and the Witch is closely made and the practices of Witches be very secret that hardly a man can be brought which upon his own knowledge can aver such things Therefore at last when all other proofs fail he is forced to fly to his eighteenth proof and tells us that yet there is a way to come to the knowledge of a Witch which is that Satan useth all means to discover a Witch which how it can be well done except the Devil be bound over to give in evidence against the Witch cannot be understood And as Mr. Perkins weakens and discredits all his own proofs so he doth the like for all those of King James who as I remember hath but Three Arguments for the discovery of a Witch First the secret Mark of a Witch of which Mr. Perkins saith it hath no power by Gods Ordinance Secondly The discovery by a fellow Witch this Mr. Perkins by no means will allow to be a good proof Thirdly the swimming of a Witch who is to be flung cross ways into the water that is as Wierus interprets it when the Thumb of the right Hand is bound to the great Toe of the left Foot and the Thumb of the left Hand to the great Toe of the right Foot Against this Tryal by water together with a disability in a Witch to shed Tears which King James mentions Delrio and Mr. Perkins both argue for it seems they both write after King James who put forth his Book of Daemonologie in his youth being in Scotland about his age of thirty years It concerns the people of this Nation to be more diligently instructed in the Doctrine of Witch-craft than those of Forraign Countries because here they are tyed to a stricter or exacter Rule in giving their sentence than others are for all of them must agree in their Verdict which in a case of extream difficulty is very dangerous and it is a sad thing for men to be reduced to that extremity that they must hazard their Consciences or their Lives A DIFFERENCE BETWEEN An English and Hebrew WITCH THE Point in Question is briefly this Whether such a Witch as is Condemned by the Laws and Statutes of this Land be one and the same with the Witch forbidden by the Law of Moses The Witch Condemned by our Statute-law is 1 Iacob Cap. 12. One that shall use practice or exercise any Invocation or Conjuration of any evil or wicked spirit or consult covenant with entertain or employ feed or reward any evil or wicked spirit to or for any intent or purpose or take up any dead man woman or child out of his her or their grave or any other place where the dead body resteth or the
Barons made an Ordinance touching the Exemption of the Abby of Bury from the Bishops of Norwich In the tenth year of the Conquerour Episcopi Comites Barones regni regia potestate ad universalem Synodum pro causis audiendis tractandis convocati saith the Book of Westminster In the 2 year of William 2. there was a Parliament de cunctis regni Principibus another which had quosque regni proceres All the Peers of the Kingdom In the seventh year was a Parliament at Rockingham-Castle in Northampton-shire Episcopis Abbatibus cunctique regni Principibus una coeuntibus A year or two after the same King de statu regni acturus c. called thither by the Command of his Writ the Bishops Abbots and all the Peers of the Kingdom At the Coronation of Hen. 1. All the People of the Kingdom of England were called and Laws were then made but it was Per Commune Concilium Baronum meorum by the Common Councel of my Barons In his third year the Peers of the Kingdom were called without any mention of the Commons and another a while after consensu Comitum Baronum by the consent of Earls and Barons Florentius Wigoriensis saith these are Statutes which Anselme and all the other Bishops in the Presence of King Henry by the assent of his Barons ordained and in his tenth year of Earls and Peers and in his 23. of Earls and Barons In the year following the same King held a Parliament or great Councel with His Barons Spiritual and Temporal King Hen. 2. in his tenth year had a great Councel or Parliament at Clarendon which was an Assembly of Prelates and Peers 22. Hen. 2. saith Hovenden was a great Councel at Nottingham and by the Common Councel of the Archbishops Bishops Earls and Barons the Kingdom was divided into six parts And again Hovendeâ—… saith that the same King at Windsor apud Windâ—… shores Communi Concilio of Bishops Earls and Barons divided England into four Parts And in hiâ—… 21 year a Parliament at Windsor of Bishops Earlâ—… and Barons And another of like Persons at Northampton King Richard 1. had a Parliament at Nottingham in his fifth year of Bishops Earls and Barons Thiâ—… Parliament lasted but four days yet much was donâ—… in it the first day the King disseiseth Gerard de Canvil of the Sherifwick of Lincoln and Hugh Bardolâ—… of the Castle and Sherifwick of York The second day he required judgment against his Brother Iohn who was afterwards King and Hugh de Novaâ—… Bishop of Coventry The third day was granted to thâ—… King of every Plow-land in England 2 s. He required also the third part of the Service of every Knights Fâ—… for his Attendance into Normandy and all the Wooâ—… that year of the Monks Cisteaux which for that 〈◊〉 was grievous and unsupportable they fine for Moâ—…ny The last day was for Hearing of Grievancesâ—… and so the Parliament brake up And the same yeaâ—… held another at Northampton of the Nobles of thâ—… Realm King Iohn in his fifth year He and his Great mâ—…met Rex Magnates convenerunt and thâ—… Roll of that year hath Commune Concilium Bâ—…ronum Meorum the Common Councel of my Baronâ—… at Winchester In the sixth year of King Henry 3. the Nobleâ—… granted to the King of every Knights Fee two Markâ—… in Silver In the seventh year he had a Parliament at London an Assembly of Barons In his thirteenth year an Assembly of the Lords at Westminster In his fifteenth year of Nobles both Spiritual and Temporal M. Par. saith that 20. H. 3. Congregati sunt Magnates ad colloquium de negotiis regni tractaturi the Great men were called to confer and treat of the Business of the Kingdom And at Merton Our Lord the King granted by the Consent of his Great men That hereafter Usury should not run against a Ward from the Death of his Ancestor 21. Hen. 3. The King sent his Royal Writs commanding all belonging to His Kingdom that is to say Arch-bishops Bishops Abbots and Priors installed Earls and Barons that they should all meet at London to treat of the Kings Business touching the whole Kingdom and at the day prefixed the whole multitude of the Nobles of the Kingdom met at London saith Mat. Westminster In his 21 year At the Request and by the Councel of the Lords the Charters were confirmed 22. Hen. 3. At Winchester the King sent his Royal Writs to Arch-bishops Bishops Priors Earls and Barons to treat of Business concerning the whole Kingdome 32. Hen. 3. The King commanded all the Nobility of the whole Kingdom to be called to treat of the State of His Kingdom Mat. Westm ' 49. Hen. 3. The King had a Treaty at Oxford with the Peers of the Kingdom M. Westminster At a Parliament at Marlborow 55. Hen. 3. Statutes were made by the Assent of Earls and Barons Here the Place of Bracton Chief Justice in thiâ—… Kings time is worth the observing and the ratheâ—… for that it is much insisted on of late to make foâ—… Parliaments being above the King The words iâ—… Bracton are The King hath a Superiour God also thâ—… Law by which he is made King also his Court viz the Earls and Barons The Court that was said iâ—… those days to be above the King was a Court of Earls and Barons not a Word of the Commons or thâ—… representative Body of the Kingdom being any paâ—… of the Superiour Court Now for the true Senâ—… of Bractons words how the Law and the Court 〈◊〉 Earls and Barons are the Kings Superiours theâ—… must of Necessity be understood to be Superiours 〈◊〉 far only as to advise and direct the King out of hiâ—… own Grace and Good Will only which appeaâ—… plainly by the Words of Bracton himself wherâ—… speaking of the King he resolves thus Nec potest 〈◊〉 necessitatem aliquis imponere quod injuriam suam corrigâ—… emendat cum superiorem non habeat nisi Deum 〈◊〉 satis ei erit ad poenam quod Dominum expectat ultoreâ—… Nor can any man put a necessity upon Him to correâ—… and amend his Injury unless he will himself sinâ—… he hath no Superiour but God it will be sufficieâ—… Punishment for him to expect the Lord an avengeâ—… Here the same man who speaking according to somâ—…mens Opinion saith the Law and Court of Earls aâ—… Barons are superiour to the King in this place telâ—… us himself the King hath no Superiour but God thâ—… Difference is easily reconciled according to the Dâ—…stinction of the School-men the King is free from tâ—… Coactive Power of Laws or Councellors but may be suâ—…ject to their Directive Power according to his owâ—… Will that is God can only compell but thâ—… Law and his Courts may advise Him Rot. Parliament 1 Hen. 4. nu 79. the Commons expresly affirm Iudgment in Parliament belongs to the King and Lords These Precedents shew that from the Conquest untill a great
part of Henry the Third's Reign in whose dayes it is thought the Writ for Election of Knights was framed which is about two hundred years and above a third part of the time since the Conquest to our dayes the Barons made the Parliament or Common Councel of the Kingdom under the name of Barons not only the Earls but the Bishops also were Comprehended for the Conquerour made the Bishops Barons Therefore it is no such great Wonder that in the Writ we find the Lords only to be the Counsellours and the Commons Called only to perform and consent to the Ordinances Those there be who seem to believe that under the word Barons anciently the Lords of Court-Baâ—…ons were Comprehended and that they were Called to Parliament as Barons But if this could be proved to have been at any time true yet those Lords of Court-Barons were not the representative Body of the Commons of England except it can be also proved that the Commons or Free-holders of the Kingdome chose such Lords of Court-Barons to â—…e present in Parliament The Lords of Manors â—…ame not at first by Election of the People as Sir Edw. Coke treating of the institution of Court-Baâ—…ons resolves us in these words By the Laws and Ordinances of ancient Kings and especially of King Alâ—…red it appeareth that the first Kings of this Realm â—…ad all the Lands of England in Demean and les grand Manors and Royalties they reserved to themselves and of the remnant they for the Defence of the Realâ—… enfeoffed the Barons of the Realm with such Iurisdiction as the Court-Baron now hath Coke's Instituteâ—… First part Fol. 58. Here by the way I cannot but note that if thâ—… first Kings had all the Lands of England in Demean 〈◊〉 Sir Edward Coke saith they had And if the firâ—… Kings were chosen by the People as many thinâ—… they were then surely our Forefathers were a verâ—… bountiful if not a prodigal People to give all thâ—… Lands of the whole Kingdom to their Kings witâ—… Liberty for them to keep what they pleased and tâ—… give the Remainder to their Subjects clogg'd anâ—… cumbred with a Condition to defend the Realmâ—… This is but an ill sign of a limited Monarchy by original Constitution or Contract But to conclude thâ—… former Point Sir Edward Coke's Opinion is thâ—… in the ancient Laws under the name of Barons were comprised all the Nobility This Doctrine of the Barons being the Commâ—… Councel doth displease many and is denied aâ—…tending to the Disparagement of the Commons anâ—… to the Discredit and Confutation of their Opinioâ—… who teach that the Commons are assigned Councelloâ—… to the King by the People therefore I will call in Mâ—… Pryn to help us with his Testimony He in his Booâ—… of Treachery and Disloyalty c. proves that before thâ—… Conquest by the Laws of Edward the Confessoâ—… cap. 17. The King by his Oaths was to do Iustice 〈◊〉 the Councel of the Nobles of his Realm He also resolves that the Earls and Barons in Parliament aâ—… above the King and ought to bridle him when he exorâ—…tates from the Laws He further tells us the Peers anâ—… Prelates have oft translated the Crown from the right Heâ—… 1. Electing and Crowning Edward who was illegitimate and putting by Ethelred the right Heir after Edgars decease 2. Electing and Crowning Canutus a meer Foreigner in opposition to Edmund the right Heir to King Ethelred 3. Harold and Hardiknute both elected Kings successively without title Edmund and Alfred the right Heirs being dispossessed 4. The English Nobility upon the Death of Harold enacted that none of the Danish bloud should any more reign over them 5. Edgar Etheling who had best Title was rejected and Harold elected and crowned King 6. In the second and third year of Edw. 2. the Peers and Nobles of the Land seeing themselves contemned entreated the King to manage the Affairs of the Kingdome by the Councel of his Barons He gave his Assent and sware to ratifie what the Nobles ordained and one of their Articles was that he would thenceforward order all the Affairs of the Kingdom by the Councel of his Clergy and Lords 7. William Rufus finding the greatest part of the Nobles against him sware to Lanfranke that if they would choose him for King he would abrogate their over-hard Laws 8. The Beginning saith Mr. Pryn of the Charter of Hen. 1. is observable Henry by the Grace of God of England c. Know ye That by the Mercy of God and Common Councel of the Barons of the Kingdom I am Crowned King 9. Maud the Empress the right Heir was put by the Crown by the Prelates and Barons and Stephen Earl of Mortain who had no good Title assembling the Bishops and Peers promising the amendment of the Lawâ—… according to all their Pleasures and Liking was by thâ—… all proclaimed King 10. Lewis of France Crowned King by the Barons in stead of King John All these Testimonies from Mr. Pryn may satisfie that anciently the Barons were the Common Councel or Parliament of England And if Mr. Pryn could have found so much Antiquity and Proof for thâ—… Knights Citizens and Burgesses being of the Common Councel I make no doubt but we should have heard from him in Capital Characters but alas he meets not with so much as these Names in those elder Ages He dares not say the Barons were assigned by the People Councellors to the King for he tells us every Baron in Parliament doth represent hiâ—… own Person and speaketh in behalf of himself alone but in the Knights Citizens and Burgesses are represented the Commons of the whole Realm therefore every one of the Commons hath a greater voice in Parliament than the greatest Earl in England Nevertheless Masteâ—… Pryn will be very well content if we will admiâ—… and swallow these Parliaments of Barons for the representative Body of the Kingdom and to that Purpose he cites them or to no Purpose at all But to prove the Treachery and Disloyalty of Popish Parliaments Prelates and Peers to their Kings which iâ—… the main Point that Master Pryn by the Title of hiâ—… Book is to make good and to prove As to the second Point which is That untill the time of Hen. 1. the Commons were not called to Parliament besides the general Silence of Antiquity which never makes mention of the Commons Coming to Parliament untill that time our Histories say before his time only certain of the Nobility were called to Consultation about the most important affairs of the State He caused the Commons also to be assembled by Knights Citizens and Burgesses of their own Appointment much to the same Purpose writes Sir Walter Raleigh saying it is held that the Kings of England had no formal Parliaments till about the 18th year of King Hen. 1. For in his Third year for the Marriage of his Daughter the King raised a Tax upon every Hide of Land by the Advice of His Privy Councel alone And
the Subjects saith he soon after this Parliament was established began to stand upon Terms with their King and drew from him by strong hand and their Swords their Great Charter it was after â—…he establishment of the Parliament by colour of it that â—…hey had so great Daring If any desire to know the â—…ause why Hen. 1. called the People to Parliament â—…t was upon no very good Occasion if we believe Sir Walter Raleigh The Grand Charter saith he was not originally granted Regally and freely for King Hen. 1. did but usurp the Kingdom and therefore the â—…etter to assure himself against Robert his elder Brother â—…e flattered the People with those Charters yea King John â—…hat confirmed them had the like Respect for Arthur Dâ—… Britain was the undoubted Heir of the Crown upon whom John usurped so these Charters had their original â—…rom Kings de facto but not de jure and then afterwards his Conclusion is that the Great Charter had â—…rst an obscure Birth by Usurpation and was fostered and â—…ewed to the World by Rebellion in brief the King calâ—…ed the People to Parliament and granted them Magna Charta that they might confirm to him the Crown The third Point consists of two parts First that â—…he Commons were not called unto Parliament until Hen. 3. dayes this appears by divers of the Precâ—…dents formerly cited to prove that the Barons weâ—… the Common Councel For though Hen. 1. called aâ—… the People of the Land to His Coronation and agaiâ—… in the 15. or 18. year of his Reign yet alwayes hâ—… did not so neither many of those Kings that diâ—… succeed him as appeareth before Secondly for calling the Commons by Writ find it acknowledged in a Book intituled The Privilege and Practice of Parliaments in these words lâ—… ancient times after the King had summoned His Parliament innumerable multitudes of People did maâ—… their Access thereunto pretending that Privilege â—… Right to belong to them But King Hen. 3. haviâ—… Experience of the Mischief and inconveniences by occasion of such popular Confusion did take order that noâ—… might come to His Parliament but those who were specâ—…ally summoned To this purpose it is observed bâ—… Master Selden that the first Writs we find accompaniâ—… with other Circumstances of a Summons to Parliamenâ—… as well for the Commons as Lords is in the 49 â—… Hen. 3. In the like manner Master Cambden speaking of the Dignity of Barons hath these Words King Hen. 3. out of a great Multitude which wâ—… seditious and turbulent called the very best by Writ â—… Summons to Parliament for he after many Troubles aâ—… Vexations between the King himself and Simon â—… Monefort with other Barons and after appeased dâ—…decree and ordain That all those Earls and Barons uâ—…to whom the King himself vouchsafed to direct Hâ—… Writs of Summons should come to his Parliament anâ—… no others but that which he began a little before hâ—… Death Edward 1. and his Successours constantly oâ—…served and continued The said prudent King Edwarâ—… summoned always those of ancient Families that were most wise to His Parliament and omitted their Sons after their Death if they were not answerable to their Parents in Understanding Also Master Cambden in another place saith that in the time of Edw. 1. select men for Wisdom and Worth among the Gentry were called to Parliament and their Posterity omitted if they were defective therein As the power of sending Writs of Summons for Elections was first exercised by Hen. 3. so succeeding Kings did regulate the Elections upon such Writs as doth appear by several Statutes which all speak in the Name and Power of the Kings themselves for such was the Language of our Fore-fathers In 5 Ric. 2. c. 4. these be the words The King Willeth and Commandeth all Persons which shall have Summons to come to Parliament and every Person that doth absent himself except he may reasonably and honestly excuse him to Our Lord the King shall be amerced and otherwise punished 7 Hen. 4. c. 15. Our Lord the King at the grievous complaint of his Commons of the undue Election of the Knights of Counties sometimes made of affection of Sheriffs and otherwise against the Form of the Writs to the great slander of the Counties c. Our Lord the King willing therein to provide Remedy by the Assent of the Lords and Commons Hath Ordained That Election shall be made in the full County-Court and that all that be there present as well Suitors as others shall proceed to the Election freely notwithstanding any Request or Command to the contrary 11 Hen. 4. c. 1. Our Lord the King Ordained that a Sheriff that maketh an undue Return c. shall incur the Penalty of 100 l. to be paid to Our Lord the King 1 H. 5. c. 1. Our Lord the King by the Advice and Assent of the Lords and the special Instance and Request of the Commons Ordained that the Knights of the Shire be not chosen unless they be resiant within the Shire the day of the date of the Writ and that Citizens and Burgesses be resiant dwelling and free in the the same Cities and Burroughs and no others in any wise 6 Hen. 6. c. 4. Our Lord the King willing to provide remedy for Knights chosen for Parliament and Sheriffs Hath Ordained that they shall have their Answer and traverse to Inquest of Office found against them 8 Hen. 6. c. 7. Whereas Elections of Knights have been made by great Out-rages and excessive number of People of which most part was of People of no value whereof every of them pretend a Voice equivalent to Worthy Knights and Esquires whereby Man-slaughters Riots and Divisions among Gentlemen shall likely be Our Lord the King hath Ordained That Knights of Shires be chosen by People dwelling in the Counties every of them having Lands or Tenements to the value of 2 l. the year at the least and that he that shall be chosen shall be dwelling and resiant within the Counties 10. H. 6. Our Lord the King ordained that Knightâ—… be chosen by People dwelling and having 2 l. by the year within the same County 11 H. 6. c. 11. The King willing to provide for the Ease of them that come to the Parliaments and Councels of the King by his Commandment hath ordained that if any Assault or Fray be made on them that comâ—… to Parliament or other Councel of the King the Parâ—… which made any such Affray or Assault shall pay doublâ—… Damages and make Fine and Ransom at the Kings Wilâ—… 23. H. 6. c. 15. The King considering the Statutes of 1 H. 5. c. 1. 8. Hen. 6. c. 7. and the Defaults of Sheriffs in returning Knights Citizens and Burgesses ordained 1. That the said Statutes should be duely kept 2. That the Sheriffs shall deliver Precepts to Maiors and Bayliffs to chuse Citizens and Burgesses 3. The Penalty of 100 l. for a Sheriff making an untrue Return concerning the election of
the King at His Parliament of his special Grace and for Affection which he beareth to his Prelates Earls and Barons and others hath granted that they that have Liberties by Prescription shall enjoy them In the Stat. de finibus Levatis the Kings Words are We intending to provide Remedy in our Parliament have ordained c. 28. Edw. 1. c. 5. The King Wills that the Chancellor and the Iustices of the Bench shall follow Him so that he may have at all times some neer unto him thaâ—… be learned in the Laws and in Chap. 24. the words are Our Lord the King after full Conference and Debate had with his Earls Barons Nobles and other Great men by their whole Consent hath ordained c. The Stat. de Tallagio if any such Statute there be speaks in the Kings Person No Officer of Ours No Tallage shall be taken by Us We Will and Grant 1. Edw. 2. begins thus Our Lord the King Willeth and Commandeth The Stat. of 9. the same King saith Our Lord the King by the Assent of the Prelates Earls and other great States hath Ordained 10. Edw. 2. It is provided by our Lord the King and his Iustices The Stat. of Carlile saith We have sent our Command in writing firmly to be observed 1. Edw. 3. begins thus King Edw. 3. at his Parliament at the request of the Commonalty by their Petition before him and his Councel in Parliament hath granted c. and in the 5th Chap. The King willeth that no man be charged to arm himself otherwise than he was wont 5. Edw. 3. Our Lord the King at the Request of his People hath established these things which He Wills to be kept 9. Of the same King there is this Title Our Lord the King by the Assent c. and by the Advice of his Councel being there hath ordained c. In his 10 year it is said Because Our Lord King Edw. 3. hath received by the Complaint of the Prelates Earls Barons also at the shewing of the Knights of the Shires and his Commons by their Petition put in his Parliament c. Hath ordained by the Assent c. at the Request of the said Knights and Commons c. The same year in another Parliament you may find these be the Articles accorded by Our Lord the King with the Assent c. at the Request of the Knights of the Shires and the Commons by their Petition â—…ut in the said Parliament In the year-year-Book 22 Edw. 3. 3. pl. 25. It is said The King makes the Laws by the Assent of the Peers and Commons and not the Peers and Commons The Stat. of 1. Ric. 2. hath this Beginning Richâ—…d the 2. by the Assent of the Prelates Dukes Earls and Barons and at the Instance and special Request of â—… Commons Ordained There being a Statute made 5 Ric. 2. c. 5. against Lollards in the next year the Commons Petition Him Supplient les Commons que come un estatute fuit fait c. The Commons beseech that whereas a Statute was made in the last Parliament c. which was never Assented to nor Granted by the Commons but that which was done therein was done without their Assent In this Petition the Commons acknowledge it a Statute and so call it though they assented not to it 17 Ric. 2. nu 44. The Commons desire some pursuing to make a Law which they conceive hurtful to the Commonwealth That His Majesty will not pass it As for the Parliaments in Hen. 4. Hen. 5. Hen. 6. Edw. 4. and Ric. 3. Reigns the most of them do agree in this one Title Our Lord the King by the Advice and Assent of His Lords and at the special Instance and Request of the Commons Hath ordained The Precedents in this Point are so numerous that it were endless to cite them The Statutes in Hen. 7. days do for the most part agree both in the Titles and Bodies of the Acts in these words Our Lord the King by the Assent of the Lords Spiritual and Temporal and the Commons iâ—… Parliament assembled and by the Authority of the same hath ordained Unto this Kings time we find the Commons very often petitioning but not petitioned unto The first Petition made to the Commons that I meet with among the Statutes is but in the middle of this King Hen 7. Reign which was so well approved that the Petition it self is turned into â—… Statute It begins thus To the Right Worshipfuâ—… Commons in this present Parliament assembled Sheweth to your discreet Wisdoms the Wardens of the Fellowship of the Craft of Upholsters within London c. This Petition though it be directed to the Commons in the Title yet the Prayer of the Petition is turned to the King and not to the Commons for it concludes therefore it may please the Kings Highness by the Advice of the Lords Spiritual and Temporal and his Commons in Parliament c. Next for the Statutes of Hen. 8. they do most part agree both in their Titles and the Bodies of the Acts with those of his Father King Hen. 7. Lastly In the Statutes of Edw. 6. Qu. Mary Q. Elizabeth K. Iames and of our Sovereign Lord the King that now is there is no Mention made in their Titles of any Assent of Lords and Commons or of any Ordaining by the King but only in general terms it is said Acts made in Parliament or thus At the Parliament were Enacted yet in the Bodies of many of these Acts of these last Princes there is sometimes Mention made of Consent of Lords and Commons in these or the like words It is Enacted by the King with the Assent of the Lords and Commons Except only in the Statutes of our Lord King Charles wherein there is no Mention that I can find of any Consent of the Lords and Commons or Ordaining by the King But the words are Be it Enacted by Authority of Parliament or else Be it Enacted by the King the Lords Spiritual and Temporal and Commons as if they were all Fellow-Commissioners Thus it appears that even till the time of K. Ed. 6. who lived but in our Fathers dayes it was punctually expressed in every King's Laws that the Statutes Ordinances were made by the King And withal we may see by what degrees the Styles and Titles oâ—… Acts of Parliament have been varied and to whose Disadvantage The higher we look the more absolute we find the Power of Kings in Ordaininâ—… Laws nor do we meet with at first so much as thâ—… Assent or Advice of the Lords mentioned Nay 〈◊〉 we cast our eye upon many Statutes of those that bâ—… of most Antiquity they will appear as if they weâ—… no Laws at all but as if they had been made only to teach us that the Punishments of many Offencâ—… were left to the meere pleasure of Kings The punitive part of the Law which gives all the Vigoâ—… and Binding Power to the Law we find committed by the
Poor only for so the Opposition â—…eth but then Aristotle saw his Democratie wouâ—… prove to be no Transgression but a perfect Politie 〈◊〉 his Oligarchy would not be for the Benefit of a few and those the best men for they cannot be the best men that seek onely their private Profit In this Chapter the mind of Aristotle about the several kinds of Government is clearliest delivered as being the foundation of all his Books of Politiques it is the more necessary to make a curious Observation of these his Doctrines In the first place he acknowledgeth the Government of one man or of a Monarchy and that is a perfect Form of Government Concerning Monarchy Aristotle teacheth us the beginning of it for saith he the first Society made of many Houses is a Colony which seems most naturally to be a Colony of Families or Foster-bretheren of Children and Childrens children And therefore at the beginning Cities were and now Nations under the Government of Kings the Eldest in every house is King and so for Kindred sake it is in Colonies Thus he deduced the Original of Government from the Power of the Fatherhood not from the Election of the People This it seems he learnt of his Master Plato who in his third Book of Laws affirms that the true and first Reason of Authority is that the Father and Mother and simply those that beget and ingender do command and rule over all their Children Aristotle also tells us from Homer that every man gives Laws to his Wife and Children In the fourth Book of his Politiques cap. 2. he gives to Monarchy the Title of the first and divinest sort of Government defining Tyranny to be a Transgression from the first and divinest Again Aristotle in the eighth Book of his Ethicks in the 12 Chapter saith That of the right Kinds of Government a Monarchy was the best and a popular Estate the worst Lastly in the third Book of his Politiques and the sixteenth Chapter concerning Monarchy he saith that A perfect Kingdom is that wherein the King rules all things according to his own Will for he that is called a King according to the Law makes no kind of Government Secondly he saith there is a Government of a few men but doth not tell us how many those few men may or must be only he saith they must be more than one man but how many that he leaves uncertain This perfect Government of a few any man would think Aristotle should have called an Oligarchy for that this word properly signifies so much but in stead of the Government of a few Aristotle gives it a quite other name and terms it an Aristocraty which signifies the Power of the best the reason why it is called an Aristocraty saith Aristotle is for that there the best men govern or because that is not always true for that it is for the best of the governed by this latter reason any Government and most especially a Monarchy may be called an Aristocraty because the End of Monarchy is for the best of the governed as well as the End of an Aristocraty so that of these two Reasons for calling the Government of a few an Aristocratie the first is seldome true and the latter is never sufficient to frame a distinction This Aristotle himself confesseth in his next Chapter saying that the Causes aforesaid do not make a Difference and that it is Poverty and Riches and not Few and Many that makes the Difference between an Oligarchy and Democraty there must be an Oligarchy where rich men rule whether they be few or many and wheresoever the Poor have the Sovereignty there must be a Democraty Now if Aristotle will allow Riches and Poverty to make a Difference between an Oligarchy and a Democratâ—… these two must likewise make the Difference between an Aristocraty and a Polity for the only Difference Aristotle makes between them is in their Ends and not in their Matter for the same few men may make an Aristocraty if their End be the Common Good and they may be an Oligarchy if they aim only at their private Benefit Thus is Aristotle distracted and perplexed how to distinguish his Aristocratie whether by the smallness of their Number or by the Greatness of their Estates Nay if we look into Aristotles Rhetoriques we shall find a new Conceit not only about Aristocratie but also about the sorts of Government for whereas he has taught us in his Politiques that there be three sorts of right or perfect Government and as many sorts of wrong which he calls Transgressions or Corruptions he comes in his Rhetoriques and teacheth us that there be four sorts of Government 1 A Democratie when Magistracies are distributed by Lots 2. In an Oligarchy by their Wealth 3. In an Aristocratie by their Instructions in the Law It is necessary for these to appear the best from whence they have their name 4. A Monarchy according to the name wherein one iâ—… Lord over all Here we see Aristocratie is not distinguished by smallness of Number nor by Riches but by Skill in the Laws for he saith those that are instructed in the Laws govern in an Aristocratie 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Point 〈◊〉 dreamt of in his Politiques by which it seems Aristotle himself did not know well what he would haâ—… to be an Aristocratie And as he cannot teach us truly what an Aristocratie is so he is to seek to tells us where any Aristocratie ever was even himself seems to doubt whether there be any such Form of Government where he saith in his third Book of Politiques cap. 5. It is impossible for any Mechanical man to be a Citizen in an Aristocratie if there be any such Government as they call Aristocratical His if makes him seem to doubt of it yet I find him affirm that the Commonwealth of Carthage was Aristocratical he doth not say it was an Aristocratie for he confesseth it had many of the Transgressions which other Commonwealths had and did incline either to a Democratie or an Oligarchy The Government of Carthage did transgress from an Aristocratie to an Oligarchy And he concludes that if by Misfortune there should happen any Discord among the Carthaginians themselves there would be no Medicine by Law found out to give it Rest wherein me-thinks Aristotle was a kind of Prophet for the Discords between the Citizens of Carthage were the main Cause that Hannibal lost not only Italy but Carthage it self By these few Collections we may find how uncertain Aristotle is in determining what an Aristocratie is or where or when any such Government was it may justly be doubted whether there ever was or can be any such Government Let us pass from his Aristocraty to his third sort of perfect or right Government for which he finds no particular Name but only the common Name of all Government Politia It seems the Greeks were wonderfully to seek that they of
the Bodies of the Tribunes from all Arrests or other Violence they grew in time by Degrees to such Boldness that by stopping the legal Proceedings of the Consuls when they pleased to intercede they raised such an Anarchy oft times in Government that they themselves might act and take upon them what Power soever they pleased though it belonged not to them This Gallantry of the Tribunes was the Cause that the Commons of Rome who were diligent Pretenders to Liberty and the great Masters of this part of Politiques were thought the only famous Preservers and Keepers of the Liberty of Rome And to do them right it must be confessed they were the only men that truly understood the Rights of a Negative Voice if we will allow every man to be naturally free till they give their Consent to be bound we must allow every particular Person a Negative Voice so that when as all have equal Power and are as it were fellow-Magistrates or Officers each man may impeach or stop his Fellow-Officers in their Proceedings this is grounded upon the general Reason of all them which have any thing in Common where he which forbiddeth or denyeth hath most Right because his Condition in that Case is better than his which commandeth or moveth to proceed for every Law or Command is in it self an Innovation and a Diminution of some part of popular Liberty for it is no Law except it restrain Liberty he that by his negative Voice doth forbid or hinder the Proceeding of a new Law doth but preserve himself in that Condition of Liberty wherein Nature hath placed him and whereof he is in present Possession the Condition of him thus in Possession being the better the stronger is his Prohibition any single man hath a juster Title to his Negative Voice than any Multitude can have to their Affirmative to say the People are free and not to be governed but by their own Consent and yet to allow a major part to rule the whole is a plain Contradiction or a destruction of natural Freedom This the Commons of Rome rightly understood and therefore the transcendent Power of the Negative Voice of any one Tribune being able of it self to stay all the Proceedings not of the Consuls and Senate only and other Magistrates but also of the rest of his fellow-Tribunes made them seem the powerfullest men in all Rome and yet in Truth they had no Power or Jurisdiction at all nor were they any Magistrates nor could they lawfully call any man before them for they were not appointed for Administration of Justice but only to oppose the Violence and Abuse of Magistrates by interceeding for such as appealed being unjustly oppressed for which Purpose at first they sate only without the Door of the Senate and were not permitted to come within the Doors this Negative Power of theirs was of Force only to hinder but not to help the Proceedings in Courts of Justice to govern and not to govern the People And though they had no Power to make Laws yet they took upon them to propound Laws and flattered and humoured the Commons by the Agrarian and Frumentarian Laws by the first they divided the Common fields and conquered Lands among the Common People and by the latter they afforded them Corn at a cheaper or lower price by these means these Demagogues or Tribunes of the Commons led the Vulgar by the Noses to allow whatsoever Usurpations they pleased to make in Government The Royal Power of the Consuls was never taken away from them by any Law that I hear of but continued in them all the time of their pretended popular Government to the very last though repined at and opposed in some particulars by the Commons The No-Power or Negative Power of the Tribunes did not long give content to the Commons and therefore they desired that one of the Consuls might be chosen out of the Commonalty the eager propounding of this point for the Commons and the diligent opposing of it by the Nobility or Senate argues how much both parties regarded the Sovereign power of a Consul the Dispute lasted fourscore years within two the Tribunes pressing it upon all advantages of opportunity never gave over till they carried it by strong hand or stubbornness hindring all Elections of the Curule or greater Magistrates for five years together whereby the Nobles were forced to yield the Commons a Consul's place or else an Anarchy was ready to destroy them all and yet the Nobility had for a good while allowed the Commons Military Tribunes with Consular Power which in effect or substance was all one with having one of the Consuls a Commoner so that it was the bare Name of a Consul which the Commons so long strived for with the Nobility In this contentionsome Years Consuls were chosen some years Military Tribunes in such Confusion that the Roman Historians cannot agree among themselves what Consuls to assign or name for each Year although they have Capitoline Tables Sicilian and Greek Registers and Kalenders Fragments of Capitoline Marbles linen Books or Records to help them a good while the Commons were content with the Liberty of having one of the Consuls a Commoner but about fourscore years after they enjoyed this Privilege a Desire took them to have it enacted that a Decree of the Commons called a plebiscitum might be observed for a Law Hortensius the Dictator yielded to enact it thereby to bring back the Seditious Commons who departed to Ianiculum on the other side of Tybur because they were deeply engaged in Debt in regard of long Seditions and Dissensions The eleventh Book of Livy where this Sedition is set down is lost we have only a touch of it it in Florus his Epitome and St. Augustine mentions the Plundring of many Houses by the Commons at their departing this Sedition was above 220 years after the Expulsion of Kings in all which time the People of Rome got the Spoil of almost all Italy and the wealth of very many rich Cities and yet the Commons were in so great Penury and over whelmed with Debts that they fell to plunder the rich Houses of the Citizens which sounds not much for the Honour of a popular Government This communicating of a legislative Power to the Commons touching Power of enfranchising Allies Judgments Penal and Fines and those Ordinances that concerned the Good of the Commons called Plebiscita was a dividing of the Supreme Power and the giving a Share of it to others as well as to the Consuls and was in effect to destroy the legislative Power for to have two Supremes is to have none because the one may destroy the other and is quite contrary to the indivisible nature of Sovereignty The Truth is the Consuls having but annual Sovereignty were glad for their own Safety and Ease in Matters of great Importance and Weight to call together sometimes the Senate who were their ordinary Councel and many times the Centuries of the People who were
next under God the Sovereignty over the Israelites p. 252. but he doth not allow it to Ioshua but will have it descend to Eleazar the High-Priest Aaron's son His Proof is God expresly saith concerning Ioshua He shall stand before Eleazar who shall ask Counsel for him before the Lord after the judgment of Urim is omitted by Mr. Hobs at his word they shall go out c. therefore the Supreme Power of making Peace and War was in the Priest Answ. The Work of the High-Priest was onely Ministerial not Magisterial he had no power to Command in War or to Judge in Peace onely when the Sovereign or Governour did go up to War he enquired of the Lord by the Ministry of the High Priest and as the Hebrews say the Enquirer with a soft voice as one that prayeth for himself asked and forthwith the Holy Ghost came upon the Priest and he beheld the Brest-plate and saw therein by the Vision of Prophecy Go up or go not up in the letters that shewed forth themselves upon the Brest-plate before his face then the Priest answered him Go up or Go not up If this Answer gave the Priest Sovereignty then neither King Saul nor King David had the Sovereignty who both asked Counsel of the Lord by the Priest OBSERVATIONS ON Mr. Milton Against SALMASIUS I. AMong the many Printed Books and several Discourses touching the Right of Kings and the Liberty of the People I cannot find that as yet the first and chief Point is agreed upon or indeed so much as once disputed The word King and the word People are familiar one would think every simple man could tell what they signified but upon Examination it will be found that the learnedst cannot agree of their Meaning Ask Salmasius what a King is and he will teach us that a King is he who hath the Supreme Power of the Kingdom and is accountable to none but God and may do what he please and is free from the Laws This Definition I. M. abominates as being the Definion of a Tyrant And I should be of his Mind if he would have vouchsafed us a better or any other Definition at all that would tell us how any King can have a Supreme Power without being freed from humane Laws To find fault with it without producing any other is to leave us in the Dark but though Mr. Milton brings us neither Definition nor Description of a King yet we may pick out of several Passages of him something like a Definition if we lay them together He teacheth us that Power was therefore given to a King by the People that he might see by the Authority to him committed that nothing be done against Law and that he keeps our Laws and not impose upon us his own Therefore there is no Regal Power but in the Courts of the Kingdom and by them pag. 155. And again he affirmeth the King cannot Imprison Fine or punish any man except he be first cited into some Court where not the King but the usual Iudges give Sentence pag. 168. and before we are told not the King but the Authority of Parliament doth set up and take away all Courts pag. 167. Lo here the Description of a King He is one to whom the People give Power to see that nothing be done against Law and yet he saith there is no Regal Power but in the Courts of Iustice and by them where not the King but the usual Iudges give Sentence This Description not only strips the King of all Power whatsoever but puts him in a Condition below the meanest of his Subjects Thus much may shew that all men are not agreed what a King is Next what the word People means is not agreed upon ask Aristotle what the People is and he will not allow any Power to be in any but in free Citizens If we demand who be free Citizens That he cannot resolve us for he confesseth that he that is a free Citizen in one City is not so in another City And he is of Opinion that no Artificer should be a free Citizen or have Voice in a well ordered Commonwealth he accounts a Democratie which word signifies the Government of the People to be a corrupted sort of Government he thinks many men by Nature born to be Servants and not fit to govern as any part of the People Thus doth Aristotle curtal the People and cannot give us any certain Rule to know who be the People Come to our Modern Politicians and ask them who the People is though they talk big of the People yet they take up and are content with a few Representors as they call them of the whole People a Point Aristotle was to seek in neither are these Representors stood upon to be the whole People but the major part of these Representors must be reckoned for the whole People nay I. M. will not allow the major part of the Representors to be the People but the sounder and better part only of them and in right down terms he tells us pag. 126. to determine who is a Tyrant he leaves to Magistrates at least to the uprighter sort of them and of the People pag. 7. though in number less by many to judge as they find cause If the sounder the better and the uprighter Part have the Power of the People how shall we know or who shall judge who they be II. One Text is urged by Mr. Milton for the Peoples Power Deut. 17. 14. When thou art come into the Land which thy Lord thy God giveth thee and shalt say I will set a King over me like as all the Nations about me It is said by the Tenure of Kings these words confirm us that the Right of Choosing yea of Changing their own Government is by the Grant of God himself in the People But can the foretelling or forewarning of the Israelites of a wanton and wicked Desire of theirs which God himself condemned be made an Argument that God gave or granted them a Right to do such a wicked thing or can the Narration and reproving of a Future Fact be a Donation and approving of a present Right or the Permission of a Sin be made a Commission for the doing of it The Author of his Book against Salmasius falls so far from making God the Donor or Grantor that he cites him only for a Witness Teste ipso Deo penes populos arbitrium semper fuisse vel ea quae placerâ—…t forma reipub utendi vel hanc in aliam mutandi de Hebraeis hoc disertè dicit Deus de reliquis non abnuit That here in this Text God himself being Witness there was always a Power in the People either to use what Form of Government they pleased or of changing it into another God saith this expresly of the Hebrews and denies it not of others Can any man find that God in this Text expresly saith that there was always a Right in the People to use what Form
A little enquiry would be made into the manner of the Government of these Kingdoms for these Northern people as Bodin observeth breath after liberty First for Poland Boterus saith that the Government of it is elective altogether and representeth rather an Aristocracie than a Kingdome the Nobility who have great authority in the Diets chusing the King and limiting His Authority making His Soveraignty but a slavish Royalty these diminutions of Regality began first by default of King Lewis and Jagello who to gain the succession in the Kingdom contrary to the Laws one for his daughter and the other for his son departed with many of his Royalties and Prerogatives to buy the voices of the Nobility The French Author of the book called the Estates of the world doth inform us that the Princes Authority was more free not being subject to any Laws and having absolute Power not onely of their estates but also of life and death Since Christian Religion was received it began to be moderated first by holy admonitions of the Bishops and Clergy and then by services of the Nobility in war Religious Princes gave many Honours and many liberties to the Clergy and Nobility and quit much of their Rights the which their successors have continued The superiour dignity is reduced to two degrees that is the Palatinate and the Chastelleine for that Kings in former times did by little and little call these men to publike consultations notwithstanding that they had absolute power to do all things of themselves to command dispose recompence and punish of their own motions since they have ordained that these Dignities should make the body of a Senate the King doth not challenge much right and power over His Nobility nor over their estates neither hath he any over the Clergy And though the Kings Authority depends on the Nobility for His election yet in many things it is absolute after He is chosen He appoints the Diets at what time and place He pleaseth He chooseth Lay-Councellors and nominates the Bishops and whom He will have to be His Privy Councel He is absolute disposer of the Revenues of the Crown He is absolute establisher of the Decrees of the Diets It is in His power to advance and reward whom he pleaseth He is Lord immediate of His Subjects but not of His Nobility He is Soveraign Iudge of his Nobility in criminal causes The power of the Nobility daily increaseth for that in respect of the Kings election they neither have Law rule nor form to do it neither by writing nor tradition As the King governs His Subjects which are immediately His with absolute Authority so the Nobility dispose immediately of their vassals over whom every one hath more than a Regal power so as they intreat them like slaves There be certain men in Poland who are called EARTHLY MESSENGERS or Nuntio's they are as it were Agents of Iurisdictions or Circles of the Nobility these have a certain Authority and as Boterus saith in the time of their Diets these men assemble in a place neer to the Senate-House where they chuse two Marshals by whom but with a Tribune-like authority they signifie unto the Council what their requests are Not long since their authority and reputation grew so mightily that they now carry themselves as Heads and Governours rather than officers and ministers of the publick decrees of the State One of the Councel refused his Senators place to become one of these officers Every Palatine the King requiring it calls together all the Nobility of His Palatinate where having propounded unto them the matters whereon they are to treat and their will being known they chuse four or six out of the company of the EARTHLY MESSENGERS these deputies meet and make one body which they call the order of Knights This being of late years the manner and order of the government of Poland it is not possible for the Observator to finde among them that the whole Community in its underived Majesty doth ever convene to do Iustice nor any election or representation of the Community or that the people assume its own power to do it self right The EARTHLY MESSENGERS though they may be thought to represent the Commons and of late take much upon them yet they are elected and chosen by the Nobility as their agents and officers The Community are either vassals to the King or to the Nobility and enjoy as little freedom or liberty as any Nation But it may be said perhaps that though the Community do not limit the King yet the Nobility do and so he is a limited Monarchy The Answer is that in truth though the Nobility at the chusing of their King do limit his power and do give him an Oath yet afterwards they have always a desire to please him and to second his will and this they are forced to do to avoid discord for by reason of their great power they are subject to great dissentions not onely among themselves but between them and the order of Knights which are the Earthly Messengers yea the Provinces are at discord one with another and as for Religion the diversity of Sects in Poland breed perpetual jars and hatred among the people there being as many Sects as in Amsterdam it self or any popular government can desire The danger of sedition is the cause that though the Crown depends on the election of the Nobility yet they have never rejected the Kings successour or transferred the Realm to any other family but once when deposing Ladislaus for his idleness whom yet afterward they restored they elected Wencelaus King of Bohemia But if the Nobility do agree to hold their King to his conditions which is not to conclude any thing but by the advice of his Councel of Nobles nor to choose any wife without their leaves then it must be said to be a Common-weal not a Royalty and the King but onely the mouth of the Kingdom or as Queen Christina complained that Her Husband was but the shadow of a Soveraign Next if it be considered how the Nobility of Poland came to this great power it was not by any original contract or popular convention for it is said they have neither Law Rule nor Form written or unwritten for the election of their King they may thank the Bishops and Clergy for by their holy admonitions and advice good and Religious Princes to shew their piety were first brought to give much of their Rights and Priviledges to their Subjects devout Kings were meerly cheated of some of their Royalties What power soever general Assemblies of the Estates claim or exercise over and above the bare naked act of Councelling they were first beholding to the Popish Clergy for it it is they first brought Parliaments into request and power I cannot finde in any Kingdom but onely where Popery hath been that Parliaments have been of reputation and in the greatest times of Superstition they are first mentioned As for the Kingdom of Denmarke