called Vice-comites The Court of the County that had an Earl was held by the Earl and the Bishop of the Diocesse after the manner of the Sheriffs Turns unto this Day by which means both the Ecclesiasticall and Temporal Lawes were given in charge together unto the Country the causes of Vavosors or Vavosories appertained to the Cognizance of this Court where Wills were proved Judgment and Execution given cases criminall and civill determined The Kings Thanes had like jurisdiction in their Thain-Lands as Lords in their Manours where they also kept Courts Besides these in particular both the Earls and Kings-Thanes together with the Bishops Abbots and Vavosors or Middle-Thanes had in the High Court or Parliament of the Kingdome a more publick jurisdiction consisting first of Deliberative power for advising upon and assenting unto new Lawes Secondly of giving Counsel in matters of State and thirdly of Judicature upon Suits and Complaints I shall not omit to enlighten the obscurity of these times in which there is little to be found of a Methodical constitution of this High Court by the addition of an Argument which I conceive to bear a strong testimony unto it self though taken out of a late Writing that conceals the Authour It is well known saith he that in every quarter of the Realm a great many Boroughs do yet send Burgesses unto the Parliament which neverthelesse be so anciently and so long since decayed and gone to naught that they cannot be shew'd to have been of any reputation since the Conquest much lesse to have obtained any such priviledge by the grant of any succeeding King wherefore these must have had this right by more ancient usuage and before the Conquest they being unable now to shew whence they derived it This Argument though there be more I shall pitch upon as sufficient to prove First that the lower sort of the people had right unto Session in Parliament during the time of the Teutons Secondly that they were qualify'd unto the same by election in their Boroughs and if Knights of the Shire as no doubt they are be as ancient in the Countries Thirdly if it be a good Argument to say that the Commons during the raign of the Teutons were elected into Parliament because they are so now and no man can shew when this custom began I see not which way it should be an ill one to say that the Commons during the reign of the Teutons constituted also a distinct house because they do so now unlesse any man can shew that they did ever sit in the same House with the Lords Wherefore to conclude this part I conceive for these and other reasons to be mentioned hereafter that the Parliament of the Teutons consisted of the King the Lords Spiritual and Temporal and the Commons of the Nation notwithstanding the style of divers Acts of Parliament which runs as that of Magna Charta in the Kings name only seeing the same was neverthelesse enacted by the King Peers and Commons of the Land as is testified in those words by a subsequent Act. The Monarchy of the Teutons had stood in this posture about two hundred and twenty years when Turbo Duke of Neustria making his claim to the Crown of one of their Kings that dyed Childlesse followed it with successeful Arms and being possessed of the Kingdom used it as conquered distributing the Earldomes Thane Lands Bishopricks and Prelacies of the whole Realm amongst his Neustrians From this time the Earl came to be called Comes Consul Dux though Consul Dux grew afterward out of use The Kings Thanes came to be called Barons and their Lands Baronies the Middle-Thane holding still of a mean Lord retained the name of Vavosor The Earl or Comes continued to have the third part of the pleas of the County paid unto him by the Sheriff or Vice-comes now a distinct Officer in every County depending upon the King saving that such Earls as had their Counties to their own use were now Counts-Palatine and had under the King Regal Jurisdiction insomuch that they constituted their own Sheriffs granted Pardons and issued Writs in their own names nor did Kings Writ of ordinary Justice run in their Dominions till a late Statute whereby much of this priviledge was taken away For Barons they came from henceforth to be in different times of three kinds Barons by their estates and Tenures Barons by writ and Barons created by Letters Pattents From Turbo the first to Adoxus the seventh King from the Conquest Barons had their Denomination from their Possessions and Tenures and these were either Spiritual or Temporal for not onely the Thane Lands but the possessions of Bishops as also of some twenty six Abbots and two Priors were now erected into Baronies whence the Lords Spiritual that had Suffrage in the Teuton Parliament as Spiritual Lords came to have it in the Neustrian Parliament as Barons and were made subject which they had not formerly been unto Knights service in chief Barony comming henceforth to signifie all honorary possessions as well of Earls as Barons and Baronage to denote all kinds of Lords as well Spiritual as Temporal having right to sit in Parliament the Baronies in this sense were sometimes more and sometimes fewer but commonly about 200 or 250 containing in them a matter of sixty thousand feuda militum or Knights fees whereof some twenty eight thousand were in the Clergy It is ill luck that no man can tell what the land of a Knights fee reckoned in some Writs at 40 l. a year and in others at 10. was certainly worth for by such an help we might have exactly demonstrated the Ballance of this Government But sayes Cook it contained twelve plough lands and that was thought to be the most certain account but this again is extreamly uncertain for one Plough out of some Land that was fruitfull might work more than ten out of some other that was barren Neverthelesse seeing it appeareth by Bracton that of Earldoms and Baronies it was wont to be said that the whole Kingdome was composed as also that these consisting of 60000 Knights fees furnisht 60000 men for the Kings service being the whole Militia of this Monarchy it cannot be imagined that the Vavosories or Freeholds in the people amounted to any considerable proportion Wherefore the Ballance and Foundation of this Government was in the 60000 Knights fees and these being possest by the 250 Lords it was a Government of the Few or of the Nobility wherein the people might also assemble but could have no more than a meer name And the Clergy holding a third to the whole Nation as is plaine by the Parliament Rolle it is an absurdity seeing the Clergy of France came first through their riches to be a state of that Kingdome to acknowledge the people to have beene a state of this Realme and not to allow it unto the Clergy who were so much more weighty in
the Result but is the Supream Judicature and the ultimate Appeal in this Common-wealth For the Popular Government that makes account to be of any standing must make sure in the first place of the Appeal unto the People Ante omnes de provocatione adversus Magistratus ad Populum sacrandoque cum bonis capite ejus qui regni occupandi concilia inesset As an Estate in trust becomes a mans own if he be not answerable for it so the Power of a Magistracy not accomptable unto the People from whom it was received becoming of private use the Common-wealth loses her Liberty Wherefore the right of Supream Judicature in the People without which there can be no such thing as Popular Government is confirmed by the constant Practice of all Common-wealths as that of Israel in the Cases of Achan and of the Tribe of Benjamin adjudged by the Congregation The Dicasterion or Court called the Heliaia in Athens which the Comitia of that Common-wealth consisting of the whole People and so being too numerous to be a Judicatory was constituted sometimes of Five hundred at others of One thousand or according to the greatnesse of the Cause of Fifteen hundred elected by the Lot out of the whole body of the People had with the nine Archons that were Presidents the Cognizance of such Causes as were of highest importance in that State The Five Ephors in Lacedemon which were Popular Magistrates might question their Kings as appears by the Cases of Pausanias and of Agis who being upon his Tryall in this Court was cryed unto by his Mother to appeal unto the People as Plutarch hath it in his Life The Tribunes of the People of Rome like in the nature of their Magistracy and for sometime in number unto the Ephors as being according unto Halicarnasseus and Plutarch instituted in imitation of them had power diem dicere to Summon any Man his Magistracy at least being expired for from the Dictator there lay no Appeal to answer for himself unto the People As in the case of Coriolanus which was going about to force the People by withholding Corn from them in a famine to relinquish the Magistracy of the Tribunes In that of Sp. Cassius for affecting Tyranny Of M. Sergius for running away at Veii Of C. Lucretius for spoyling his Province Of Junius Silanus for making War against the Cimberi in jussu Populi with divers others And the Crimes of this nature were call'd Laesae Majestatis Examples of such as were arraigned or tryed for Peculate or Defraudation of the Common-wealth were M. Curius for intercepting the money of the Samnites Salinator for the unequal division of Spoyles unto his Souldiers M. Posthumius for Cheating the Common-wealth by a feigned Shipwrack Causes of these two kinds were of more Publique nature but the like Power upon Appeals was also exercised by the People in private Matters even during the time of the Kings As in the Case of Horatius Nor is it otherwise with Venice where Doge Loridano was Sentenced by the great Council and Antonio Grimani afterwards Doge questioned for that he being Admiral had suffered the Turk to take Lepanto in view of his Fleet. Neverthelesse there lay no Appeal from the Roman Dictator unto the People which if there had might have cost the Common-wealth dear when Sp. Moelius affecting Empire circumvented and debauched the Tribunes whereupon T. Quintius Cinninatus was created Dictator Who having chosen Servilius Alaha to be his Lievtenant or Magister Equitum sent him to apprehend Moelius whom while he disputed the Commands of the Dictator and implored the ayd of the People Alaha cut off upon the place By which example you may see in what cases the Dictator may prevent the blow which is ready sometimes to fall ere the People be aware of the danger Wherefore there lyes no Appeal from the Dieii in Venice unto the Great Council nor from our Council of War to the People For the way of proceeding of this Tribe or the Ballot it is as was once said for all Venetian This Discourse de Judiciis whereupon we are fallen bringeth us rather naturally then of design from the two general Orders of every Common-wealth that is to say from the Debating part or the Senate and the Resolving part or the People to the third which is the Executive part or the Magistracy whereupon I shall have no need to dwell For the Executive Magistrates of this Common-wealth are the Strategus in Arms the Signory in their several Courts as the Chancery the Exchequer as also the Councils in divers Cases within their Instructions the Censors as well in their proper Magistracy as in the Council of Religion the Tribunes in the Government of the Prerogative and that Judicatory And the Judges with their Courts Of all which so much is already said or known as may suffice The Tuesday-Lectures or Orations unto the People will be of great benefit unto the Senate the Prerogative and the whole Nation Unto the Senate because they will not only teach your Senators Elocution but keep the Systeme of the Government in their memories Elocution is of great use unto your Senators for if they do not understand Rhetorick giving it at this time for granted that the Art were not otherwise good and come to treat with or vindicate the cause of the Common-wealth against some other Nation that is good at it the advantage will be subject to remain upon the merit of the Art and not upon the merit of the Cause Furthermore the Genius or Soul of this Government being in the whole and in every part they will never be of ability in determination upon any particular unlesse at the same time they have an Idea of the whole That this therefore must be in that regard of equal benefit unto the Prerogative is plain though these have a greater concernment in it For this Common-wealth is the Estate of the People and a man you know though he be virtuous yet if he do not understand his Estate may run out or be cheated of it Last of all the treasures of the Politicks will by this means be so opened rifled and dispersed that this Nation will as soon dote like the Indians upon glasse Beads as disturb your Government with whimsies and freaks of mother-wit or suffer themselves to be stutter'd out of their Liberties There is not any reason why your Grandees your wise men of this Age that laugh out and openly at a Common-wealth as the most ridiculous thing do not appear to be as in this regard they are meer Ideots but that the People have not Eyes There remaineth no more appertaining unto the Senate and the People than order 24 The Twenty fourth Order Whereby it is lawfull for the Province of Marpesia to have 30. Knights of their own election continually present in the Senate of Oceana together with 60. Deputies of Horse and 120. of Foot in the Prerogative Tribe indued with equall power respect
without encouragement by the Roman way of proceeding much lesse that which is proposed But whereas the Roman Legions in all amounted not in one Army to above 30000 Men or little more you have here Fourty thousand and whereas they added Auxiliaries in this regard it is that Marpesia will be of greater Revenue unto you then if you had the Indies for whereas heretofore She hath brought you forth nothing but her native Thistle ploughing out the ranknesse of her Aristocracy by your Agrarian you will find her an inexhaustible Magazine of Men and to her own advantage who will make a far better Accompt by the Arms then by the Pins of Poland Wherefore as a Consular Army consisted of about an equall number of Auxiliaries added unto their Legions by their Latine or Italian Associates you may adde unto a Parliamentary Army an equall number of Marpesians or Panopeans as that Colony shall hereafter be able to supply you By which means the Common-wealth will be able to go forth to Battail with Fourscore thousand Men. To make Wars with small Forces is no Husbandry but a waste a disease a lingring and painful Consumption of Men and Money the Romans making theirs thick made them short and had little regard unto money as that which they who have men enow can command where it is fittest that it should be Levied All the ancient Monarchies by this means got on wing and attain'd unto vast Riches Whereas your Modern Princes being dear Purchasers of small parcels have but empty Pockets But it may be that some will accuse the Order of rashnesse in that it committeth the sole Conduct of the War unto the General and the Custom of Venice by her Proveditori or Checks upon her Commanders in Chief may seem to be of greater Prudence but in this part of our Government neither Venice nor any Nation that maketh use of mercenary Forces is for our Instruction A mercenary Army with a standing Generall is like the fatall Sister that Spins But proper Forces with an annuall Magistrate are like Her that cuts the thread Their Interests are quite contrary and yet you have a better Proveditor then the Venetian another Strategus sitting with an Army standing by him whereupon that which is marching if there were any probability it should would find as little possibility that it could recoyl as a Forraign Enemy to invade you These things considered a War will appear to be of a contrary nature unto that of all other reckonings in as much as of this you must never look to have a good accompt if you be strict in imposing Checks Let a Council of Hunts-men assembled before-hand tell you which way the Stagg shall run where you shall cast about at the fault and how you shall ride to be in at the Chase all the day but these may as well do that as a Council of War direct a General The hours that have painted wings and of different colours are his Counsel he must be like the eye that maketh not the scene but hath it so soon as it changes That in many Counsellors there is strength is spoken of civill Administrations As to those that are Military there is nothing more certain then that in many Counsellors there is weaknesse Joynt Commissions in Military affairs are like hunting your Hounds in their Couples In the Attick War Cleomenes and Demaratus Kings of Lacedemon being thus coupled tugg'd one against another and while they should have joyn'd against the Persian were the Cause of the calamity whereupon that Common-wealth took better Counsel and made a Law whereby from thenceforth there went at once but one of her Kings unto Battail The Fidenati being in rebellion and having slain the Colony of the Romans four Tribunes with Consular power were created by the people of Rome whereof one being left for the guard of the City the other three were sent against the Fidenati who through the division that happened among them brought nothing home but dishonour whereupon the Romans created the Dictator and Livy gives his judgment in these words Tres Tribuni potestate Consulari documento fuêre quà m plurimum imperium bello inutile esset tendendo ad sua quisque consilia cum alii aliud videretur aperuerunt ad occasionem locum hosti When the Consuls Quictius and Agrippa were sent against the Aequi Agrippa for this reason refused to go forth with his Colleague saying Saluberrimum in administratione magnarum rerum summam imperii apud unum esse And if the ruine of Modern Armies were well considered most of it would be found to have fallen upon this Point it being in this case far safer to trust unto any one Man of common Prudence then to any two or more together of the greatest Parts The Consuls indeed being equal in Power while one was present with the Senate and the other in the Field with the Army made a good Ballance and this with us is exactly follow'd by the Election of a new Strategus upon the march of the old one The Seven and twentieth Order Whereby the Elders in case of Invasion are obliged unto equall duty with the Youth and each upon their own Charge is suitable unto reason for every Man defends his own Estate and unto our Copy as in the War with the Samnites and Tuscans Senatus justitium indici delectum omnis generis hominum haberi jussit nec ingenui modo et juniores Sacramento adacti sunt sed seniorum etiam cohortes factae This Nation of all others is the least obnoxious unto Invasion Oceana saith a French Polititian is a Beast that cannot be devoured but by her Self Neverthelesse that Government is not perfect which is not provided at all points and in this ad Triarios res rediit the Elders being such as in a martial State must be Veterans the Common-wealth invaded gathers strength like Antaeus by her fall whilst the whole number of the Elders consisting of five hundred thousand and the Youth of as many being brought up according unto the Order give twelve Successive Battels each Battel consisting of Eighty thousand Men half Elders and half Youth And the Common-wealth whose Constitution can be no stranger unto any of those virtues which are to be acquired in humane life growes familiar with Death ere She dye If the hand of God be upon her for her transgressions She shall mourn for her sins and lye in the dust for her iniquities without losing of her manhood Si fractus illabatur orbis Impavidam ferient ruinae The remaining part being the Constitution of the Provinciall Orbe is partly Civill or consisting of the Elders and partly Military or consisting of the Youth The Civil part of the Provincial Orbe is directed by order 28 The Twenty-Eighth Order Whereby the Council of a Province being constituted of twelve Knights divided by four into thrée Regions for their terme and revolution conformable unto the Parliament is perpetuated by the annuall election