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
Oyer and Terminer Gaol-Delivery and Justices of Peace are determined by the Death of the Predecessor that made them Therefore the Statute of 25 Ed. 3. declares it to be Treason if any man kill the Chancellor The Judges represent the King's Person Treasurer or the Kings Justices of the one Bench or the other Justices in Eyre or Assise or any other Justices assigned to hear and determine being in their places doing their Offices The (f) Id. 3. Instit p. 18 140. reason whereof is assigned because all these represent the King 's Royal Person in his own Courts by his own Commission under the Great Seal in the very Execution of the Kings Royal Office viz. Administration of publick Justice to his People As therefore the King at his Coronation (g) Facies fieri in omnibus Justiciis tuis aequam rectam Justitiam discretionem in misericordia veritate secundum vires tuas taketh an Oath to make to be done in all his Judgments equal and right Justice and Discretion in Mercy and Truth according to his Power So he lays the Burthen thereof upon the Judges according to that of E. 3. for the Pleasure of God and quietness of our Subjects as to save our Conscience and keep our Oath by the assent of our great Men and other of our Council we have commanded our Justices that they shall from henceforth do even Law and Execution of right to all our Subjects Rich and Poor without having regard to any Person c. Therefore before this in (h) Nulli vendemus nulli negabimus aut differemus Justitiam vel Rectum c. 29. Magna Charta we find that the King will sell deny or defer Justice to none Yet from hence it doth not follow that if in the opinion of some the King doth not do Justice that therefore any Subject should conclude as the Master of the Hospitallers of Jerusalem in England at Clerkenwell Anno 1252. 37 H. 3. did The Story is thus told by (i) Hist p. 826 827. Edit prioris Matthew Paris The Master waiting a time when he might discourse with the King he complained of some Injuries done him The King loseth not his Authority tho' he do not Justice and shewed the King some Charters of Protection of himself and his Ancestors The King answered with an Oath and in Wrath You Prelates and Religious especially Templars and Hospitallers have so many Liberties and Charters that they make you proud c. Therefore they ought prudently to be revoked which imprudently have been granted to you for even the Pope oftentimes revokes his Grants with a non obstante and the King told him so he would do To all which the (k) Cui Magister Hospitalis respondit alacâ—iter vultu elevato Quid est quod diciâ— Domine Rex Absit ut in ore tuo recitetur hoc verbum illepidum absurdum Quamdia Justitiam observas Rex esse poteris quam cito bane infregeris Rex esse desines Master saith Matt. Paris answered chearfully and with a lifted up Countenance What is this you say my Lord the King far be it from you to speak so absurd a thing As long as you observe Justice you may be a King and as soon as ever you break this you cease to be a King Thus he would make Dominion founded in Justice as others in Grace But I need not add many Authorities upon this Head for by the universal Suffrage of the profound Lawyers the Kings of England solely nominate create and (l) Dyer fol. 56. appoint all the Judges of the great Courts at Westminister and may remove them at their Pleasure and alone make (m) Davis 45. and appoint Justices of Oyer and Terminer of Gaol-delivery Justices of the Peace Sheriffs and the like Officers and (n) Coke 4. Inst n. 4. 14. 114. 117. remove them when they see Cause and the (o) Bulstrod 3. 296. 1 H. 7. c. 25. Prerogative of making Judges cannot be given or claimed by a Subject The King hath also Power to name create make (p) Sheppard's Grand Abridgment part 3. p. 53. and remove the great Officers Ecclesiastical and Civil by Sea and Land as Archbishops Bishops by way I suppose of Conge deslier The King 's placing and displacing all Great Officers and Translation Lord Chancellor or Keeper Lord Treasurer Lord President Lord Privy-Seal Lord High Steward Lord Admiral Lord High Constable Earl Marshal Lord Chamberlain Privy Counsellors the Marshal or Steward of the Kings House and the rest of the Officers of his Houshold Master of the Horse Officers of the Mint of the Castles Port-Towns and Shipping Lord Lieutenants and many more too tedious to be named So that either mediately or immediately all Officers are by the Kings appointment which is not only a manifest badge but a necessary appurtenance of the Soveraignty SECT 2 The Court of High-Steward THE Kings Courts have been various The Court of the High-Steward as that of the Privy-Council called the Council-Board of which I have spoke before The Court of the High-Steward of England intituled Placita Coronae coram Seneschallo Angliae disused since the Reign of Henry the Fourth and now a Lord High-Steward is only appointed pro hac vice with limitations for the Tryals of some Peers of the Kingdom upon Inditement His Power anciently was (q) Coke 4 Inst c. 4. Supervidere regulare sub Rege immediate post Regem totum Regnum Angliae omnes Ministros Legum infra idem Regnum temporibus Pacis Guerrarum The next Court which is now totally suppressed was the Honourable Court of Star-Chamber The Star-chamber Court of ancient time stiled Coram Rege Concilio suo coram Rege Concilio suo in Camera stellata of which I shall have occasion to write something in the Chapter below SECT 3 The Court of King's-Bench AS to the great and standing Courts The King's-Bench the first of them that is mentioned in Ancient Writers is that of the Kings Bench coram Rege This (r) Rex illarum Curiarum habet unam propriam sicut Aulam Regiam Justiciarios Capitales qui proprias Causas Regias terminant Bracton saith was the Kings proper Court called the Kings Hall and had for Judges in it Chief-Justices which determined the Kings proper Causes c. The same (s) Justiciariorum quidam sunt Capitales generales perpâ—tui majores a latere Regis residâ—ates qui emnium aliorum corrigere tenentur injurias errores Lib. 3. c. 7. fol. 108 b. Author speaking of the Justices of this Court saith That some of them were Capital General perpetual and the greater sitting by the Kings side which were to correct the injuries and errors of all others Fleta in describing this Court saith My Lord Coke gives this account That the King in this Court hath his Justiciaries as well Knights as Clergy-men as
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
together with Judges and King's Council Citizens Burgesses of Parliament and Barons of the Cinque-Ports being usually summoned to the one but to the other some few Spiritual and Temporal Lords only without (x) Brief Register part 1. pag. 187. to 192. any Judges Assistants Knights Citizens Burgesses or Barons of the Cinque-Ports or some few of them only and divers who were no usual Lords or Barons of Parliament as Mr. Prynn hath made evident and the Rolls themselves in the Margin notes them by de Concilio summonito or deveniendo ad Concilium which some Antiquaries having not noted have confounded them SECT 4. Of the Judicature of the House of Lords IT is evident that the Lords in Parliament have ever been the usual Judges not only in all criminal and civil causes 6. The Lords Judicature proper for Parliaments to judg or punish and Writs of Errors but likewise in all cases of Precedencies and Controversies concerning Peers and Peerage which Power was in them as the King 's Supreme Court before there were any Knights Citizens or Burgesses summoned to our Parliaments So Hoveden (y) Annal. pars poster p. 561. ad 566. is express in the case of Sanctius King of Navar and Alphonsus King of Castile Comites Barones Regalis Curiae Angliae adjudicaverunt Anno 1177. 23 H. 2. So Fleta in Ed. the First 's time writes (z) Habet enim Rex Curiam suam in Concilio suo in Parliamentis suis praesentibus Pralatis Comitibus Baronibus Proceribus aliis viris peritis ubi terminatae sunt dubitationes judiciorum Lib. 2. c. 2. p. 66. thus The King hath his Court in his Council in his Parliaments there being present the Prelates Earls Barons Nobles and other skillful Men viz. the Judges Assistants where are ended the doubts of Judgments This Particular of the Jurisdiction of the House of Lords is so fully in every Branch of it proved by Mr. Prynn in his Plea for the Lords House that it were an Injury to the inquisitive Reader not to referr him to that Treatise for full Satisfaction therefore I shall only pick out a very few out of a Manuscript I have of the Priviledges belonging to the Baronage of England and Mr. Prynn In the fourth of King (a) Roâ— Parl. 4 E. 3. m. 7. num 3. Judgment of Lords on John Mautravers Edward the Third the Peers Earls and Barons assembled at Westminster saith the Record have strictly examined and thereupon assented and agreed that John Mautravers is guilty of the death of Esmon Earl of Kent Uncle of our Lord the King that now is wherefore the said Peers of the Land and Judges of Parliament judged and awarded that he the said John should be drawn hanged and beheaded In the first of R. 2. John Lord of (b) Rot. Par. 1 R. 2. m. 6. num 38 39. Gomenys and William de Weston were brought before the Lords sitting in the white Chamber On John Lord of Gâ—menys and William Weston for delivering up Forts to the Enemy and were severally charged at the Commandment of the Lords by Sir Richard Scroop Knight Steward of the Kings House William Weston being accused for rendring the Castle of Outhrewike and John Lord of Gomenys for rendring the Castle of Ards. They both made plausible defences and Sir Rich. Scroop Steward tells William that the Lords sitting in full Parliament do adjudge him to death But because our Lord the King is not yet informed of the manner of this Judgment the execution thereof shall be respited till the King be informed thereof and the like Sentence he passed upon John Lord of Gomenies only adding that he being a Gentleman and Banneret should be beheaded There are many more Examples of Judgments given in Capital matters upon Bergo de Bayons 4 E. 3. m. 7. num 4. Thomas de Gurny eadem membrana num 5. and others and for Offences not Capital of Richard Lions 59 E. 3. m. 7. William le Latymer 42 E. 3. m. 2. William Ellis ibid num 31 John Chichester and Botesha 1 R. 2. num 32. Alice Piers Ibid. num 41. Mr. Antiquity of Judgment by Peeâ—s Prynn (c) Plea for Lords p. 203. Hist lib. 4. shews this Jurisdiction out of Historians even from Cassibellan out of Geoffrey of Monmouth Also Anno 924. of Elfred a Nobleman who opposed King Aethelstan's Title and had his Lands adjudged by the Peers forfeit to him the Words of the King are Et eas accepi (d) Malmsb. de Gest is Reg. lib. 2. c. 6. p. 62. Spelman Conc. Tom. 1. p. 407 408. Anno 1043. quemadmodum judicaverunt omnes â—ptimates Regni Anglorum So Earl Godwin having murdred Prince Alfred Brother to King Edward the Confessor being fled into Denmark and hearing of King Edward's Piety and Mercy returned and came to London to the King who then held a Great Council and denied the Fact and put himself upon the (e) vnde super hoc pono me in consideratione Curiae vestrae Chron. Brompton col 937 938. consideration of the Kings Court and the King speaks to the Earls and Barons thus Volo quod inter nos in illa appellatione rectum judicium decernatis debitam justiciam faciatis and after it is said Quicquid judicaverint per omnia ratificavit So in the Constitutions of (f) An. 1164. M. Paris 94. Sicut Barones caeteri debent interesse judiciis Curiae Regis cum Baronibus quousque perveniatur in judicio ad diminutionem membrorum vel ad mortem The House of Lords the King's Court of Barons Clarendon it is appointed That the Archbishop Bishops and those Clergy that held in Capite as by Barony should be Parties in the Judgments of the Kings Court as other Barons ought with the other Barons till it come in Judgment to the loss of Member or to Death So in the Case of Tho. Becket Archbishop of Canterbury Anno 1165. 11 H. 2. we find in Hoveden parte post p. 494 495. that Barones Curiae Regis judicaverunt eum esse in misericordia Regis and afterwards when he would not yield to the Kings Will he (g) Dixit Baronibus suâ—s Cito facite mihi judicium de illo qui homo meus Ligeus est stare Juri in Curia mea recusat saith to his Barons Quickly make to me Judgment of him who is my Liege Man and refuseth to stand to the Law in my Court The Barons going out judg'd him fit to be seiz'd on and sent to Prison and the Historian saith tunc misit Rex Reginaldum Comitem Cornubiae Robertum Comitem Leicestriae ad indicandum ei judicium de illo factum Anno 1208. King (h) Anno 10 Johan Mat. Paris p. 218. John exacted Pledges of his Subjects and amongst others of William de Breause who said If he had offended the King he would be ready to answer his Lord and that without Hostages secundum judicium
in the Record Item mandatum est singâ—lis Vicecomitibus per Angliam quod venire faciant duos Milites delegalioribus probioribus discretioribus Militibus singulorum Comitatuum ad Regem London in forma praedicta Item in forma praedicta scribitur Civibus Ebor. Lincoln caeteris Burgis Angliae quod mittant in forma praedicta duos de discretioribus legalioribus probioribus tam Civibus quam Burgensibus suis and so to the Barons of the Cinque-Ports which runs thus Rex Baronibus Ballivis Portus sui de Sandwico Cum Praelati Nobiles Regni nostri tam pro negotio Liberationis Edwardi Primogeniti nostri quam pro aliis Communitatem Regni nostri tangentibus ad instans Parliamentum c. Vobis mandamus in fide dilectione quibus nobis tenemini firmiter injungentes omnibus aliis praetermissis mittatis ad nos ibidem 4 de legalioribus discertioribus Portus vestri c. Nobiscum cum praefatis Magnatibus Regni nostri tractatum super praemissis consilium impensuri From all which it is observable first Observations on the first Writ to the Barons of the Cinque-Ports that in all probability the Writs then issued to the Knights Citizens and Burgesses were the same in form and substance with those to the Spiritual and Temporal Lords and in those to the Sheriffs c. Secondly the Qualifications of those to be elected are limited Thirdly It doth not appear whether the Counties themselves or the Sheriffs alone were to elect Fourthly The Writs for electing Citizens and Burgesses were directed immediately to the Citizens and Burgesses themselves not to the Sheriffs of the Counties Lastly that no Writ issued to the Citizens of London their Liberties then being seized into the King's Hand and that York and Lincoln are the only Cities mentioned particularly in the Roll. The first Writs entred at large in the Rolls are those (e) Cl. 22 E. 1. m. 6. dorso 22 E. 1. wherein is expressed that the King intending a Colloquium Tractatum with his Barons and great Men he commands that the Sheriffs cause to be elected two Knights De diâ—â—retioribus ad laborandum potentioribus cum plena potestate pro se tota communitate Com. praedicti ad consulendum consâ—ntiendum pro se communitate illa Hiis quae Comites Barones Proceres praeâ—icti concorditer ordinaverint in praemissis c. of the more discreet and more able to take Pains c. to come to Westminster c. with full Power for themselves and the whole Community of the said County to consult and consent each for himself and the said Community to those things which the Earls Barons and Nobles aforesaid unanimously ordain in the Premisses so that for want of such like Power the Business remain not undone I shall now insert what Variations I find in the Writs of Summons promiscuosly whether to Knights Citizens or Burgesses unless there be some remarkable difference to be observed First The Qualifications in the Writs As to their Qualifications generally both Knights Citizens and Burgesses are to be de legalioribus discretioribus ad laborandum potentioribus In the Writ 25 E. 1. (f) Cl. 25 E. 1. m. 6. dorso it is probioribus legalioribus and some two or all of these Epithetes are generally used till (g) Cl. 22 E. 3. m. 7. dorso 22 E. 3. m. 7. dorso where it is expressed that the Knights be gladio cinctos ordinem militarem habentes non alios de qualibet Civitate de quolibet Burgo duos Burgos de aptioribus discretioribus probioribus fide dignis Militibus Civibus Burgensibus Cl. 24 E. 3. par 2. m. 3. dorso and in the Twenty fourth of E. 3. there is an addition and limitation No Maintainers of Sâ—its c. to be choâ—â—n Qui non sunt Placitorum aut querelarum manutentores aut ex hujusmodi quaestu viventes sed homines valentes bonae fidei publicum commodum diligentes eligi and the self-same Limitations are in the 25 28 and 29 E. 3. So that it was used so long as the King thought fit In (h) Cl. 26 E. 3. m. 14. dorso 26 Ed. 3. it is unum Militem de provectioribus discretioribus magis expertis Militibus and so for Citizens and Burgesses by which it appears the King desired not any under Age as now is allowed to be chosen In 31 Ed. 3. besides (i) Cl. 31 E. 3. m. 2. dorso the usual words de discretioribus probioribus there is added de elegantioribus personis eligi Which in no Writ else before or after is to be found In the 36 E. 3. (k) Cl. 36 E. 3. m. 16. dorso it is de melioribus validioribus Militibus c. That of the Forty fourth of (l) Cl. 44 E. 3. m. 12. dorso E. 3. runs Duos Milites gladiis cinctos in Armis Actibus Armorum magis probatos circumspectos discretos It appears by the Parliament Roll 46 (m) Nul home de Ley pursuont busoignes en la Courte de Roy ne Viscount pur le Temps que il est Viscount soient retournez ne acceptez Chevalers des Countees neque ves qui sont Gentz de Ley Visâ—ounts ore retournez au Parlement eient Gages Rot. Parl. 46 E. 3. cum 13. E. 3. That it was accorded and assented to in that Parliament and an Ordinance made That no Lawyer pursuing Business in the Court of the King nor any Sheriff while he was Sheriff should be returned or accepted Knights of the Counties and if any were so returned they should have no wages Therefore in the fourteenth Number of the said Roll it is thus expressed Mes voyet le Roy que Chevalers Serjaunts i. e. Esquires not Serjeants at Law des meulieur valeurs du paiis soiz retornez desore Chevalers en Parlement quils sount esluz en plein Counts That Knights and Esquires of greatest value in their Country should be chosen in the full County The very next Writ 47 E. 3. (n) Cl. 47 E. 3 m. 13 dorso To be Knights giâ—t with Swords and skilful in Arms. runs thus Duos Milites gladiis cinctos seâ— Armigeros which explains the word Serjaunts before as in that Age being reputed Servants to Knights as holding Lands in such a Tenure of them de dicto Com. digniores probiores in Actibus Armorum magis expertos discretos non alterius conditionis duos Cives Burgenses qui in navigo exercitio mercandisarum notitiam habeant meliorem eligi and then in the Close follows Nolumus autem quod tu seu aliquis alius Vicecomes Regni praedicti aut aliquis alteriâ—s conditionis quam superius specificatur aliqualiter sit electus and the last Clause
de Sabaudia J. Filius Galfridi Jacobus de Audel Petrus de Monteforti vice totius Communitatis praesentibus Literis sigilla nostra apposuimus in Testimonium praedictorum So that it is plain it was not Peter de Montefort that signed vice Communitatis but they all did it and he was a great Baron himself the Head of whose Barony was Beldesent Castle in Warwickshire I think it not amiss here to offer my Opinion concerning this Question and the great Controversie betwixt Dr. Concerning the Commons first summoning to Parliament Brady and Mr. Petyt and those that are so earnest to find the Commons summoned to Parliament before the 49 H. 3. before King John granted his Charter wherein he grants that he will cause to be summoned the Archbishops Bishops Abbats Earls and greater Barons of his Kingdom singly by his Letters and besides (i) Et Praeterea faciemus submoneri in generali per Viâ—ecomites Ballivos nostros omnes alios qui in Capite tenent de nobis Matt. Paris fol. 216. Edit ult num 20. will cause to be summoned in general by his Sheriffs The Tenents in Capite in stead of the Representative Commons as now and Bayliffs all others which hold of him in Capite at a certain day there is no doubt but the Tenents in Capite such of them at least as were eminent for Parts or as the King pleased were summoned to the great Councils and it being in that Charter said that the cause of the Meeting should be expressed in the Summons and that Forty days warning should be given and in the same Charter that the City of London should have all its ancient Liberties and free Customs and that all other Cities Burghs and Villa's which was of the same import as a Free Burrough as we find in Pontefract which is always stiled Villa Some summoned from Cities and Burroughs before King John's time but not as our Citizens and Burgesses now by Representation and the Inhabitants Burgenses who held a certain Land called Burgage Land and the Barons of the Cinque Ports and all the Ports should have all their Liberties and their Free Customs ad habendum commune concilium Regni de Auxiliis c. that is as I suppose to have some of their Members at the great Councils where Aids were to be granted to the King other ways than in three cases before excepted that is to redeem the Kings body to make his Eldest Son a Knight and to marry once his Eldest Daughter excepting which three Particulars reserved before in his Charter he had granted that no Scutage nor Aid should be laid on his Kingdom unless by the Common Council of his Kingdom From whence I think may be inferred that such Cities Burroughs and Villa's which held in Capite or the Lord that was principal owner of them by his Praepositus Ballivus or some that held immediately under him and so some for the Dominicae Civitates Burgi Regis might be summoned with the lesser Barons or the other Tenents inc Capite But this doth not prove them to come by way of Representatives nor that they had any more Power than the Knights Citizens and Burgesses had in after-times which as I have made it apparent by the several expressions in the Summons was only to hear and assent to what the King and Magnates ordained Since there are now extant no Summons in King John's time or before the 49 H. 3. except some few that are about the Tenents in Capite aiding the King in his Wars the subsequent Practices are the best Expounders of ancient Usages Upon the whole I do judge that before King John's Charter there were many of the Tenents in Capite summoned to the great Councils but so as the King had his liberty to summon whom he pleased and that some from Cities Burghs Villa's and other Ports did come to the great Council but still at the Kings pleasure and that in King John's time the body of the Kingdom siding with the Lords that so often rebelled against him the Lords thinking to make their Party stronger got the Clause for other Tenents in Capite to be summoned by general Summons After King John's Charter the Tenents in Capite so numerous as might be reputed an House of Commons Now whatever number were convened before King John's Charter this general Summons must greatly encrease the House of Commons as I may call it and there needs no such strife about the want of Freemen in these Councils for after this Charter all who were properly Freemen were capable the other were generally Tenents to them and Homagers which was a Tenure that though it might free their Persons yet their Lands were obnoxious to forfeiture upon every breach of Homage and their Lords had the power of taxing them so that in some sense they were their Tenents Representatives and as long as they were Freeholders themselves and were a more numerous body if they all appeared as for any thing I see they might do if not hindred by Impotence Nonage or the Kings service they far exceeded the number of Representatives in the Reigns of King H. 3. E. 1. and E. 2. So that it amounts to the same thing as to the general Freedom of the Nation when all these were Members of the Great Councils Who properly Freeholders in Kâ— John's time whether the common Freeholder were represented or not as now which Dr. Brady hath so nervously confuted every where in his Introduction that they were not that I think the Freedom Mr. Petyt Mr. Pen and others make so great a coyl about no ways impaired by Dr. Brady who like a judicious Person would have us use propriety of Speech and rather be thankful for the Freedom we now enjoy and our Ancestors have from time to time obtained by the grant of Kings than to make such Claims to native Freedoms and Liberties as Mr. Pen would have it that our Ancestors contended for as if their Ancestors had enjoyed them before we had any Kings and stipulated with their Kings for them before they admitted them to Soveraignty which no considering person that will impartially read ancient History either of our Country or others can find any certain footsteps of To return now to the business which the foregoing observation gives some light to I conceive as the Thegns the Kings Prepositi and Reeves As the Thegns in the Saxon-times so the Praepositi Reeves c. of Burroughs after by reason of their Imployments about the Kings Demesn Lands governing of Burroughs Stewards of Hundreds Wapentakes and men employed in other civil Affairs of the Kingdom did meet in the Saxon Councils so from Cities and Burroughs where great Lords had Fees as most if not all of them may be easily proved to have been held immediately of the King or of some of the very great Barons there might come before King John's time some Members to the great
the King who by the same Laws hath the Power of putting in execution and suspending the execution of the Laws in many Cases or that Aristocracy or Democracy have any such mixture with the Monarchy as they can impose their Laws upon him For to suppose a mixed Monarchy consisting of Three Estates independent for their Authority upon one another and to have several shares in the Rights of Sovereignty and to say The Government of three Estates is the Government of one Monarch is perfect nonsence for when (q) Besold Synopsis Polit. Doct. l. 1. c. 6. Monarchy Aristocracy and Democracy are melted and allayed together that which resulteth can take its name from none of the simple species or kinds of Government but must have some other Appellation Whoever will consider aright of the concurrence of the two Houses in preparing Bills will find How the two Houses concur in making Laws That though the Houses be as the Causa sine qua non yet the efficient procatarctick Cause and the Authoritative Power in passing these into Laws is the King only and what the two Houses do without his Assent is but as the Counsellor at Law 's framing a Deed and the Clerks Ingrossing the Indenture of Conveyance but till the Seal be set to it and delivery made as the Act and Deed of Donor or Conveyor it is of no force and virtue neither do we call it the Act and Deed of the Counsellor or Clerk but of the Person that seals it Another Objection those Champions for the two Houses made great noise with was (r) King's Supremacy p. 84. Objection That the Mixture is in the Supremacy of Power That the Power where the Legislative is in all Three is in the very Root and Essence of it compounded and mixed of those three so that where this height of Power resideth in a mixed Subject that is in three concurrent Estates the consent and concursus of all being most free and none depending on the Will of the other that Monarchy is in the most proper sence and in the very model of it a mixed Constitution And that such is the State of the Monarchy of England the Objector thinks clear because the House of Peers are an Aristocracy and the Commons a Democracy and this mixture of Interests and Powers being in the very Legislative Power he concludes the mixture is in the Root and Supremacy of Power and not in the exercise alone In answer to which it must be considered Answer That is only in the Exercise of the Power That though the concurrence of both the Estates with the Monarch in the making and promulgation of Laws be such as our Laws describe yet it is no otherwise than in the precedent Chapters by undeniable proofs I have made it out That what participation soever the two Houses have with the King in the Legislature it is only derivative from the Crown by the King's Summons and the restriction of those Summons to do and consent It is known to be the common Assertion of (s) Panorm cap. Gravem de Sent. Excom Canonists (t) Bertol. in Lomnes Populi sect de Justitia Jure q. 2. Civilians and (u) Suarez lib. 1. de Leg. c. 8. n. 9. Schoolmen That the Legislative Power is communicable by the Princes allowance and that such a concurrence as our Kings have allowed is no Argument of Supremacy such a mixture of the three Estates hath been in other Monarchies * Besold de Juribus Magist c. 2. which every where are owned to be absolute in respect of Power For as they are summoned by the Princes single Authority and dissolved at his own pleasure they can claim no sort of Right during their Session further than to consult about and prepare Bills for the Royal Assent Therefore (w) De Imperio Summarum Potestatum circa sacra c. 8. num 11. Grotius saith Istam Legislationem quae aliis quam Summae Potestati competit nihil imminuere de jure Summae Potestatis quod in Scholis dicunt cumulative datum censeri non privative So in our Kingdom every Corporation hath Authority to make Ordinances and Constitutions within their own Liberties for the good Order and Government of the Body and the Inhabitants (x) Coke 5. part tit Cases de By-Laws Ordinances of every Parish to make By-Laws and Ordinances among themselves for their own profit where they have Custom for it and for the Publick Good where they have no Custom Surely this is a sort of Legislative Power yet thereby it cannot be inferred that they have any Co-ordinate Power with the King in the Rights of Soveraignty So that allowing the Power of the two Houses as large as can be proved by the Laws for the stretch that the Parliamentarians would make is by the Tenters they only have set up the whole latitude of the Nomothetical Power is not jointly in the two Houses for none but Strangers to our Laws can deny That the King hath sole Power to dispense with the Statutes and abate their Rigour where a mischief would otherwise insue he alone hath Power by Edicts and Proclamations to order all Affairs for which there is no order taken by certain and perpetual Laws The Legislative Power is either (y) King's Supremacy p. 88. Of Architectonical and Preceptive Power Architectonical or Preceptive The Architectonical is that which layeth Materials of Law and consisteth in two things First in determining what is just convenient or necessary Secondly in declaring and promulgating that to be actually made a Law and Enacted which upon consultation is thought to be just convenient or necessary The first shews no Jurisdiction in the Persons who have it but only an Office and Imployment to deliberate and consult But whoever hath the Second Power hath a Jurisdiction to define Authoritatively what shall be Law and this Preceptive Power is that which makes the Law sacred and inviolable and which giveth it force to oblige the Conscience Now it is evident by undeniable Testimony and Authority that the exercise of the Architectonical Power is only committed to the two Houses who have votum consultivum decisivum but it is derived from the King who hath only the Preceptive Power So that the Writers for the two Houses generally did use a Sophistical way of arguing not discovering what they could not but know the difference betwixt the King's and the two Houses Powers in the making of Laws For subordinate Agents that are but Instruments of another and work by a derived Power when they concur with the Principal and supream Agent have their causality in producing the Effect yet this doth not prove the Authority to be radically in them As in an Estate of Lands saith (z) Idem p. 91. Mr. Sherringham wherein a Man hath a perpetual Right in Fee his Right is distinguished from the King 's Right of whom he holds the King having the demean of the
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
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
Capitularia Caroli (e) See Fred. Lindebrogus Codex Legum Antiq. magnis the Burgundian Alman Bavarian Saxon Longobard Ripuarian and Frisons Laws mention such Officers for preserving the publick Peace and (f) See Prynne 's Irenarch Redivivus p. 1. ad 5. punishing all Malefactors and infringers of the publick Peace as we have At the Common-Law before Justices of Peace were made there were sundry Persons to whose Charge the maintenance of the Peace was recommended and who with their other (g) Dalton's Justice of Peace c. 1. Conservators of the Peace Offices had and yet still have the Conservation of the Peace annexed to their Charge as incident to and inseparable from their said Offices yet they were only stiled and so now are by their Offices the Conservation of the Peace being included therein First the King is the principal (h) Idem Conservator of the Peace within his Dominions The King the principal Conservator of Peace and is properly Capitalis Justiciarius Angliae in whose Hands at the beginning the Administration of all Justice and all Judicature in all Causes first was and afterwards by and from him only was the Authority derived and given to all yet the Power nevertheless remains still in himself insomuch that he may himself sit in Judgment as in ancient times the Kings here have done and may take Knowledg of all cases and causes Before I leave this Head I cannot pass by the Act of (i) 20 H. 7. c. 11. H. 7. wherein is so fully declared the King's Care to have due Administration of Justice as in the close of the last Chapter I have only hinted The Reasons why Justices of Peace made The King's Care for right and easie Administration of Justice The Preamble saith The King considereth that a great part of the Wealth and Prosperity of the Land standeth in that that his Subjects may live in Surety under his Peace in their Bodies and Goods and that the Husbandry of this Land may encrease and be upholden which must be had by due Execution of Laws and Ordinances and so commandeth the Justices to execute the tenor of their Commission as they will stand in Love and Favour of his Grace and in avoiding the pains that he ordained if they do the contrary If they be lett or hindred they must show it to the King which if they do not and it come to the Kings knowledg they shall be out of his Favour as Men out of Credence and put out of Commission for ever Moreover he chargeth and commandeth all manner of Men as well Poor as Rich which be to him all one in due Administration of Justice that is hurt or grieved in any thing that the said Justice of Peace may hear determine or execute in any wise that he so grieved make his complaint to the next Justice of Peace and if he afford no remedy then to the Justices of the Assise and if he find no remedy there then to the King or Chancellor c. and as a further security it is added And over that his Highness shall not lett for any favour affection costs charge nor none other cause but that he shall see his Laws to have plain and true execution and his Subjects to live in security of their Lands Bodies and Goods according to his said Laws Thus we see who is the Principal Other Conservator of the Peace and Royal Conservator of the Peace others are the Lord Chancellor or Lord Keeper Lord Treasurer Lord High Steward of England Earl Marshal Lord High Constable of England every Justice of the Kings Bench and Master of the Rolls who have the power included in their Office and over all the Realm when they are present may award Precepts take Recognisances for the Peace of which and others Lambard in his Eirenarche may be consulted and how far Justices of Assise Stewards of the Sheriffs Turn and Court of Pye-powders the Sheriffs Chief Constable Coroners and Petty Constables may commit to Ward breakers of the Peace in their view though they cannot take surety at the request of any man that being peculiar to the Justices of Peace's Office Sir Edward Coke (k) Term. Pasch fol. 176. 4. Inst Coram Rege prima fuit Institutio Justiciariorum pro Pace conservanda Ad Pacem nostram conservandam saith that the first institution of Justices for the preserving the Peace was 6 Ed. 1. but Mr. Prynne will have it of older date because he finds that King Henry the Third by several Patents or Writs from the 17th to the end of his Reign did constitute and appoint several persons in most Counties of the Realm to be Guardians and Preservers of the Peace of the Realm and in the Patent 51 H. 3. m. 10.13 dorso it is dilectis fidelibus suis custodibus pacis Com. Linc. North. Ebor. Vicecom eorundem Comitat. and the like 54 H. 3. m. 21. d. But the first regular settlement of them seems to be Anno 1327. 1 Ed. 3. c. 16. The Authorities afterwards were further explained 4 Ed. 3. c. 2. 18 Ed. 3. c. 2. 34 Ed. 3. c. 1. Sir Edward Coke (l) Ibid. 171. tells us that the Commission of Peace stood over-burthened and incumbered with divers Statutes some whereof were before and some since repealed and stuffed with many vain and unnecessary repetitions and many other corruptions crept into it by mistaking of Clerks c. for amendment and correction whereof (m) Mich. 32 33 Eliz. Sir Christopher Wray Chief Justice of England assembled all the Judges of England and upon perusal had of the former Commission of Peace and due consideration had thereupon and often conferences betwixt themselves they resolved upon a reformation of the form with divers additions and alterations both in matter and method as it stood in Sir Edward's time and he saith It needed another Reformation by reason of Statutes since repealed and others expired of which he gives several instances Therefore he saith It is a good rule for all Judges and Justices whatsoever that have Jurisdiction by any Statute which at the first was Temporary or for a time to consider well before they give Judgment Whether that Statute hath been continued or made perpetual and if at first it was made perpetual Whether it be not repealed or altered by any later Statute What Commissions Patents and Writs were issued out by King Edward the First for preserving the Peace of the Realm suppressing seising and punishing of those who disturbed it may be found Cl. 9 Ed. 1. m. 10. d. in Rylies (n) P. 443 451 to 457 433 480. Prynne's Animadv fol. 149. Appendix so there is a Patent 14 Ed. 1. m. 15. 15 Ed. 1. m. 13. de militibus constitutis ad Articulos in Statuto de conservatione pacis edito contentoâ— observandos constituting persons of note in every County to observe them named in the Record and so for other Kings Reigns
may be disguised it is upon the State it self It is this kind of Envy that principally forebodes Mischief and requires greater Skill and Dexterity in the Prince and his Ministers to avoid the Malignity of the Blast of these black Souls and the Sting of such Asps Vipers and Scorpions Therefore it is no small Skill to chuse out such for publick Negotiations as will be less subject to be envied which in Part may be understood by electing those that have Worth Ability and Vertue to commend them and not private Affection or Interest only Sixthly 6. The Discontented The discontented are File-leaders of Faction The best foresight and prevention of Mischief from them is that there be no fit Head that hath Reputation with the discontented Party upon whom they may turn their Eyes Such are either to be won off or affronted with some other of the same Party that may oppose them and so divide the Reputation and make distinct Interests among them for Factions generally subdivide as that of the Optimates and Lucullus did against Pompey and Caesar and when the Senates Authority was pulled down Caesar and Pompey after broke upon one another So Antonius and Lepidus against Brutus and Cassius and after they were overthrown Antonius and Augustus divided So in the late War the Presbyterians and Independents clashed till at last the Contest betwixt them two so weakned both that it much facilitated the Restauration of the King To give moderate Liberty for Grief and Discontent to evaporate so it be without too great Insolence saith a Wise Man (w) St. Albans tit Sedition is safe especially if a Prince noting the Causes of Discontent be removing of them insensibly during his Connivence so as he seem aliud agere to let them see it was not for want of Foresight or Good-will that he set not on the Work sooner but that he waited the critical time The neglect of this some think was one of the great misfortunes of King Charles the First 's Reign That his Ministers who could not but be sensible how universal the discontent of the People was from the beginning of his Reign yet suffered them fifteen years to be fermenting and the causes not to be insensibly removed till when it was done at last all at once Anno 1640 1641. the King got no thanks for it as seeming to be favours rather extorted than freely granted For by the long lodging of discontent in the bosom of the People the humour turned back made the wound bleed inwardly and ingendered dangerous Ulcers and malignant Imposthumes However it is too apparent though that was a great oversight yet the backwardness of the Parliaments to afford Supplies and the designers of the Civil Wars who had been at work all along were the true Cause of those Miseries together with the blessed Kings Clemency Carrying men from hopes to hopes of redress so as it be not too tiresome is one of the best Antidotes against the poyson of discontentment and when it ariseth not so much from malice as mistake (x) Da malorum poenitentiae honorum consensui spacium Tacit. 1. Histor a Prince may respite a while the Prosecution to give space to the evil to repent and to the good to consent or be convinced perhaps a little time will mellow and meliorate humours diem forsitan tempusque ipsum leniturum iras sanctitatemque animis allaturam as Livy judiciously observes Yet this is to be admitted with some restriction For as Tacitus notes (y) Ipse inutili contatione agendi tempus consultando consumpsit mox utrumque concilium aspernatus quod inter ancipitia deterrimum est dum media sequitur nec ausus est satis nec praevidit Id. 3. Hist in another case of Valens Lieutenant to Vitellius That using delay in prosecuting the Enemy to the great danger of his cause he spent the time of Action in Consultation and then rejecting the extreams of Counsel he took the middle course which saith he in cases of danger and doubt of all other is the worst So in punishing Authors of Faction it is better use severity at first for a terror than to suffer smaller Symptoms of discontent to pass so long unrectified that at last they sprout out with Hydra's heads and grow too numerous to suppress for in such cases all delays are dangerous and soft quiet dealing brings more evil than hazarding rashly as in another case about (a) Nec contatione opus ubi perniciosior fit quies quam temeritas Idem 1. Hist Otho's Conspiracy and the quickness of the execution of it he relates which might have been prevented if Galba or Piso had well observed Otho's popularity and his ingratiating himself with the Souldiery whom Galba had discontented about the Donative Seventhly 7. The Emulous The Emulous being such as think themselves equally capable of their Prince's Trust and Regard make great ruptures in a State Therefore Tacitus condemns the Politicks of Caius Caesar (b) Aequatus inter duos beneficiorum numerus mixtis utriusque mandatis discordia quaesita auctaque pravo certamine legatorum jus adolevit diuturnitate officii vel quia minoribus major mulandi cura 4. Hist that divided the Proconsulship of Africk betwixt the Proconsul and the Legate giving the latter the Legion for by parting the Office thus betwixt two without subordination their charge and points of Commission lying intermingled and running joyntly together bred and nourished discord and quarrel and through sinister emulation the Legat Valerius Festus who had command of the Legion murthered Piso the Proconsul of Africk So by the reason of that emulous hatred betwixt Vinius and Lucro c Galba knew not what Council to follow and was ruined Eighthly 8. Popularity Popular men are to be noted of what Principles they are and to which of the qualifications of the Factious Persons they are inclined or how many of Factious Ingredients are in their composition It is worth the Prince's care saith a great (d) Operae pretium est 〈◊〉 nere litium animos eâ—sque tanquam suspectos notare qui nimium populariter student â—i enim facile plebis animos quaquaversum torquent adrapiunt quodlib ertatis avidi praesentem Rempublicam contemnuaâ— Lipsius Polit. Praefat. Author to discover the inclinations of his Subjects especially those who over much affect popularity for their wheedles easily twine and hurry the common peoples minds whither they please despising the Government out of a greedy desire of liberty If these being covetous cannot be set upon some Collections of Taxes and Duties on the Subject which may be heavy upon them though laid on by Authority whereby they may be rendered ingrateful to the people who often bestow their ill will upon such or if they cannot be trapped in some escapes of their words or actions whereby fear of punishment may make them slacken their Sails lest they be over-set and cannot ride the storm Or if they
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
great Oeconomy the whole System is kept in regular and orderly Motion is firmly established and enabled to exert all those beneficial Powers that are admired in a well composed Body Politic. The Body without the Head being but a Trunk and inanimate Carcase and the Head without the Body as a curious piece of Clock-work without Motion It must be owned to be a noble Enterprise to make researches into the constituent Parts Harmony and Composure of Government which is that benign Supreme Power which influenceth vast Societies of men and combines all tempers constitutions and interests in one noble Machine for the benefit of the whole and every part and makes every Dominion a little World wherein Beauty Order and the Blessings of this Life are inspired into all the Members how minute soever with that calmness when no disturbances are given it that we scarce hear the motions of the (c) Sic orbem Reipubliâ—e esse conversum ut vix sonitum audire vix impressam orbitam viâ—ere possumus Cic. â—â— Attic. Ep. 36. Machine or see the Springs that move it But as in the Body Natural the (*) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Philosopher observes That by the turbulence of depraved Appetites by heady Rashness and seducing Passions in the vitious and ill-affected the Body seems to command the Soul and Reason is dethron'd So in the Commonweal when from mistakes and misguided Zeal Discontent Ambition and other vitious Inclinations People are infected whereby the Malignant Fever of Sedition or the Pest of Rebellion rageth in a State the Sovereign is for a time kept from the Exercise of his Royal Power The Scheme of the whole work and sometimes dethron'd But to leave this pleasing Allegory which I could pursue in comparing all the Members of the Body and Faculties of the Soul with the constituent Parts and Offices of Government I shall instead of that draw a short Scheme of my design in this Work which I had never undertaken if it had not been that I was invited to it by a Great and Wise Minister of State My Lord President whose glorious Service to his Prince and Country will be celebrated in remotest Ages and having liv'd to make some Observations on the Causes and Managery of the Rebellion against King Charles the Martyr and the tendency to another Civil War of later date and revolving with my self that though many wise and judicious Persons both know and have learnedly writ of the secret Springs and Movements of them infinitely beyond what I can pretend to and that both our own Country-men have in Parts writ of all the branches of the English Government and many Foreigners of Politics in general or such as were fitted for the Governments under which they lived yet having met with none that had so particularly writ of the Excellency of the English Monarchy as to illustrate it so as it might be useful to the preventing Seditions and Rebellions and to clear the Commodiousness and Necessity of submitting to it and placing a great Portion of our happiness here in living under it I conceived it might be a profitable Essay to excite those who have not leisure and opportunity to peruse great and numerous Volumes to extract for their use such things as had occurred in my poor Reading to induce them to prize it as they ought and to furnish them with such Arguments as my low Reasoning was able whereby to answer the Objections of our late Republicans against it and discover their Methods of Proceedings towards the overthrowing it and to caution all the well-meaning Subjects against all the Arts of Factious and Seditious People and Principles And though I cannot promise my self the success I wish yet I hope I may excite some more knowing learned and judicious to furnish our little World with a more Copious and Elaborate Piece which may supply my defects and more abundantly satisfy the ingenious and curious Reader to whom I shall now draw the Curtain and expose the Model of the designed Work First Therefore (d) cap. 2. as a Foundation I shall treat of the necessity of Government in General In which Chapter I shall discourse of its Original in Families c. (e) cap. 3. Then that the People are not the original of Government Then (f) cap. 4. of the benefit of Government in instituting Laws In (g) cap. 5. securing Property and other particulars From this I proceed to treat of the (h) cap. 6. inconvenience of Democracy and of the several (i) cap. 7. Forms of Common Wealth Governments before and in Aristotle's time After which (k) cap. 8. of the inconvenience of all kinds of Republick Governments Then of the preference (l) cap. 9. of Monarchical Government before all others In all which Chapters I touch upon the Principles and Practices of our late Republicans which having dispatched I give the Character of a good (m) cap. 10. King in general Then that the care (n) cap. 11. of Religion is incumbent upon Kings Then of the (o) cap. 12. Clemency Prudence (p) cap. 13. Courage (q) cap. 14. and Military Conduct of Kings of the (r) cap. 15. burden and care of Kings (s) cap. 16. The Excellency of Hereditary Monarchy Then I proceed to the King's Authority and (t) cap. 17. Sovereignty in general and more (u) cap. 18. particularly according to our Laws by the Enumeration of many particulars (w) cap. 19. Then as a Corollary that the Sovereign is not accountable to any upon Earth That the King is not to be (x) cap. 20. Resisted or Rebelled against In what cases he may (y) cap. 21. dispence with the Execution of the Laws of his Country Then I treat of the King's Authority (z) cap. 22. in making Laws and of the Laws of the Romans in Britain and of the British and German Polity Next of the Saxons (a) cap. 23. great Councils of whom they consisted and how the Laws were established by the respective Kings Then of the great (b) cap. 24. Councils from the Conquest to the beginning of Hen. 3. Then of the great Councils (c) cap. 25. and Parliaments during the Reign of Hen. 3. to the end of Edw. 3. After which of the Parliaments (d) cap. 26. of England during the Reign of Edw. 2. to the 22. of King Charles the 2d Then of Modern (e) cap. 27. rightly constituted Parliaments and of the Factious (f) cap. 28. Members of Parliaments wherein I discourse at large of the Encroachments of some Parliaments especially of some Houses of Commons Then from the great Council I pass to the (g) cap. 29. Right Honourable the Privy Council their Qualifications to be at the King 's sole appointing Of Ministers (h) cap. 30. of State c. Then of the King's Sovereignty in appointing (i) cap. 31. Magistrates (k) cap. 32.
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
Monarchy Aristocracy Democracy were not so evenly poiz'd and attemper'd ad pondus as Lycurgus endeavoured it in the Lacedaemonian State I shall content my self with an Epitome not a Paraphrase as the forementioned Author hath made of what Polybius (p) Lib. 6. Histor p. 197. Edit Basil hath left in his Excellent History wherein he deducing matters from such an Original as those who knew not or believed not the Creation could do delivers us his sence of the mutations and managery of Government to this purpose That when by reason of some great Inundation 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 great Plague or Death all Institutions and Arts having been lost In process of time by the propagation of those that escap'd these Devastations a multitude grew who herded according to their kind and for the weakness of their Party in respect of ravenous Creatures as well as their Savage Neighbors we may suppose they associated together it necessarily followed that he who in the Strength of his Body and confidence of Spirit excell'd the rest obtain'd the Princedom and Empire as we see in Bulls Goats Cocks c. and so the rest obey'd that Man who was properly the Monarch and in Process of time 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by familiar Conversation and living together under this one Head like a select Flock or Herd these Mortals began to think of Honest and Just and their contraries and by the noble or ignoble actions of some of the Society the Sence of Honour and Disgrace was impress'd in their Minds and consequently of Profitable and Incommodious (q) Idem pag. 198. He that was their Governour excelling in Power and in the opinion of all endowed with those qualifications were judged good and profitable and administring to his Subjects what was competent to every of them They now fearing no violence most willingly submitted themselves to him and he being venerable to them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 with unanimous consent they impugn and revenge themselves on those who oppose or conspire against his Government and so from a Monarch he becomes a King when reason had obtain'd the Principality which before Fierceness and Power possess'd So that in all this first settlement of Monarchy or a Kingdom in the purest state of Nature we can conceive describ'd we have no mention in this judicious Author of Compact with the People or Election but of submitting It is true upon the degeneracy of Kings Factions arising he speaks of Election not of those of strong Bodies only and daring Souls for such he presumes made themselves Masters but of such as by their Wills and Reason experimentally discover'd in their Actions were most agreeable to the Peoples liking But that this was done by the force of Faction appears from what he subjoins 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that those who were thus destined for the Kingdom selected special places and encompassed them with Rampiers or Walls fortifying them for the security of themselves and to supply their Subjects with necessaries from whence arose the great Cities which had large Sokes by which means they possess'd the whole Country of the Kingdom I do own that he makes offence and hatred of the People or envy against the succeeding Princes who were debauched and degenerated 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to be the causes why in process of time some of the Noblest became the leaders of the People to repress such Princes and root out the Monarchy and Kingdom But still it was because Factions encreased and so Aristocracy was changed into Oligarchy which set of Rulers oppressing the People whose discontents being observ'd by some popular Persons they animated them to join to subvert the Oligarchy Hitherto we find nothing of the imaginary delegation of the Peoples Power to one or more but prosperous events crown'd their Rebellions against their Superiors What follows is observable that the People having slain the Optimacy fearing the Injustice of Superiors they durst not set a King over themselves nor trust the Government in the hands of a few having so late Instances of their Tyranny and Sloth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 So the single and sincere Hope which was only left in themselves induced them to establish a Democracy and so to themselves receive the Trust and Providence of the Common-weal which the (r) French Monarchy or Absolute Power p. 20. Paraphrast calls their last untainted hope founded on themselves that is in their own Strength So that till the forms of Government by a King or Tyrant Aristocracy or Oligarchy were wholly subverted we hear not a Syllable of the Peoples challenging a power and then it is no wonder when they have slain the richest and divided the spoil and have entertained an opinion that they shall never be Servants more but live in an equal Freedom and Wealth if they be blown up with a popular Pride and call themselves the supream Power But what is this to the natural Freedom pleaded for when it is nothing but the headstrong unbridledness of the Multitude that have cast their Riders and got loose the Reins on their own Neck (s) Idem pag. 199. Polybius goes on to tell us how Democracy was soon overturned after though for a while those who had Experience of the Oppression of the Rich were delighted with the Equality and Liberty of the present State 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that seemed sweet to them above all Treasure yet afterwards some growing Rich little valued that Equality and Liberty which custom had made them sleight and nauseate and so began to contemn the Poor and excelling the rest in Riches began to covet Rule yet knowing they could not by their own Interest or eminence of Vertue obtain it they began to be lavish of their Wealth and variously bait the People and so corrupt them into Tumults and Sedition and the People being thereby raised to hopes of living upon the Goods of those of contrary Factions by following some magnanimous and daring Captain who yet for his Poverty could not Lawfully aspire to the Honours of the Common-wealth found no better or easier way to rise but by heightning Factions whereby Parties being imbodied Murthered Plundered and Destroyed one another till at last wearied or one Man getting a greater interest in the People than the rest and being fortunate to overtop the rest they submit to such and after all their miseries return again to Monarchy I cannot dismiss (t) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polybius without noting from him how preferrable Monarchy is to any of the popular sorts of Government For he observing that as Iron is wasted by rust Wood by worms so that although they might escape exterior defacings yet they will decay by those inbred devourers So he observes that all simple Governments are apt to some evil that is peculiar and consequential to their Nature as he instanceth in a Kingdom changed into Monarchy absolute by which he means that which we now
call Tyranny Aristocracy into Oligarchy Idem pag. 200. and Democracy into Bestial Chirocracy 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 when the Seditious of the people prevail more by Fisticuffs than reason When he enumerates the causes of the Envy and Hatred of the People against the King that is turned Tyrant he never mentions that the People challenged any Original Right or that they conferred any trust upon him or made any compact with him to govern so and so But that some young Princes degenerating from their Just Prudent Wise and Valorous Ancestors giving themselves up to Debauchery and because of their plenty following their Pleasures committed excess in ther Habits eat more deliciously and luxuriously indulged themselves in prohibited Lusts by some necessities or wantonness galling the Necks of their Subjects or committed some contumelious or outragious Act against some powerful Person or committing the managery of affairs to some unfit or envied Person lost the affections of some popular persons and by their immersing themselves in Pleasure neglecting the Inspection into their affairs or by their sloth and lasiness neglecting the timely redress of Evils or suppressing of some growing Faction gave opportunity to some of the most popular and daring of their Subjects to conspire together to put an end to their Lives and Governments But in all this he mentioneth nothing of those miserable devastations which are brought upon whole Countries that in popular Governments are torn in pieces by them as too often I shall have occasion to mention For certainly one days misrule by the Rable may do more mischief to a Country than the whole age of a vitious Prince and the pretences of making Government more easie for the People and that the end of it is the Peoples safety hath ushered in all Tragical Revolutions and Rebellions and however Philosophers and other Writers of Greece and Rome declaim against Tyranny and absolute Monarchy yet they conceal not the perpetual intestine as well as Foreign Wars betwixt one Commonweal and another or what Butcheries Countries have undergone whereever the People got a participation of the executive parts of the Soveraignty It is not unfit to be observed what the great (u) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Arist de Repub. l. 5. c. 10. initio Philosopher notes that a Kingdom is the refuge and defence of the good against the injury of the People for saith he a King is constituted of the good and those that excel in vertue and vertuous actions but a Tyrant is taken out of the People and Multitude against the Noble and Illustrious as he instanceth in Phidon at Argos Phalaris in Ionia Panaetius among the Leontines Cypselus at Corinth Pisistratus at Athens and Dionysius at Syracuse by the cunning leading of the People So that according to his opinion and the experience of all ages the People may be truly said to be the Original of Tyrants and not of Kings For whereever an unlawful Government was introduced which properly might be called Tyranny it was brought upon the People by their own choice some ambitious cunning man having wound himself into their good opinion was by their strongth and assistance able to suppress the Nobility and establish himself their Executioner after he had long been their Creature Those who please themselves with the notion of Compact and Agreement mostly do it for some ill end to make a plausible Scheme to decoy the People into an opinion that Princes can claim no more Power as of right belonging to them than the People shall intrust them withal which they may from time to time as they shall see cause in order to the pretended publick weal and safety either enlarge or restrain at their pleasure These must suppose saith a most profound (w) Bishop of Lincoln Preface to the Power of Princes Scholar a multitude all free without any sort of dependences on Parents under no restraint but every one at full liberty to do what he listeth with an equality of Power in them none having authority over other which surely was never yet found in any People or Country since the Creation of the World if these men will own its Creation or the Scripture-History of it and if they could in Authentic History point out some Parallel story they would do well to produce it for though I have quoted Polybius his conjecture of a state nearest it yet he makes no such inference from it that I can find But the forementioned Reverend Bishop hath suggested so many quaeries to be answered before any thing can be yielded to in this way of contract that it will puzzle the ablest of the Patrons of this popular way of constituting Government to solve any of them whereby to satisfie any considerate man of the legality of such a way or the consentaneousness of it to Principles of nature and the state of Liberty these men are such pretenders to It would be resolved whether Women and Children Mad-men and Fools had the freedom of suffrage as well as Men of Age and Fortunes and understandings If any were excluded who did it and by what authority If all were admitted whether with equal right to every one or with some inequality Was the Wives interest towards making up the bargain equal with that of the Husband and the Child with that of the Parents and the Servant's if there were or could be any such thing as Master and Servant equal with that of his Master's If one had not an equal share and interest in the business whence did the inequality arise who made the difference among them and what right had any man and how came he to have that right to give more or less power to one than another If all were equal who could summon the rest to convene or appoint the day and place of meeting Or when met take upon him the Authority and Office of regulating their proceedings or presiding or moderating in their Assembly of determining such doubts and differences as might arise while matters were under debate of calculating the voices and drawing up the Articles of Agreement in case they should agree Supposing all these doubts were cleared and the Contract made as they would have it it may be demanded whether majority of Votes shall conclude all that are present Dissenters as well as others Whether by vertue of an Act of those upon the place an obligation shall lie upon such as are casually necessarily or willingly absent when it was free for them to do so no man having power to require their appearance And whether a contract made by such persons as were at liberty before can debar those that shall succeed them in the next Generation from the use of that liberty their Ancestors had and enjoyed If so by what Law and Right are the said respective persons so concluded and whence should the obligation spring None of these look like the Dictates of the Laws of Nature and other Laws besides that according to the
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
Religion (s) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. lib. 5. c. 11. saith It is not foolishly and impertinently to be pretended whereby we may infer it is to be sincere and Cordial So Pomponius (t) In Philipp◠Laetus tells us That Philippus Arabs covered his Wickedness and Cruelties by feigning himself a Christian and relaxing their Persecutions and he reigned but five Years and He and his Sons were massacred by his Soldiers at Verona Indeed it cannot be expected otherwise but that the Judgment of God and the Indignation of Men should fall upon such Dissimulation and Hypocrisie For however Princes or private Persons may lacker over their specious Religiousness yet in some times or places it will appear so thin that it will be discovered and at best it will bear no resemblance with pure Gold Foyl It must not be denied That Princes have a larger Latitude than others to conceal their Sentiments of Religion or to set the fairest Gloss upon it as being to guide their Actions in this matter as well as in secular Affairs suitable to the Interests of State But every one will likewise acknowledge that a Prince The Credit a Prince gains that is truly Religious who useth in this as well as other matters a generous plain dealing is valued more by this Standard Coin without Alloy than those are who make as the States of Holland do their Third in Silver mixed with four parts of adulterate Metal pass for currant Sterling Coyn. Among just Men such a Prince that deals candidly with God and the World will find infinite more credit than any Tinsel heart will do But I must pass to another of the Florentine's Paradoxes (u) Discourse lib. 1. cap. 12. 〈◊〉 's Opinion of the Bencht of the Heathen Religion he saith The Pagan World was kept principally in Obedience by the belief they had in the Responses of Oracles as that of Jupiter Ammon at Delos or Apollo's at Delphos c. or by the Prognosticks of the Augurs and that when once Men began to sleight these they neither believed God nor the Devil but became as ungovernable as unchained Slaves and in another (w) Id. lib. 2. c. 5. place adds That the cause why the Force and Power of Christians is less than that of the Grecians and Romans was in the difference of their Religion For that the Christian Religion makes the Honour of the World contemptible and of little Estimation whereas the Gentiles esteemed Honour to be the Soveraign good which to obtain they had an exceeding great Fierceness and Hardiness in all their Deeds and Enterprizes and that the Heathen Religion promiseth no Happiness but to such as having fought for their Prince Country and Commonweal were loaded with Glory and worldly Honour whereas the Christian Religion promiseth blessings to such as are humble and contemplative and to those which despise most the Goods and Honours of this World and further adds That the Christian Religion hath conducted and brought the World into that Weakness and Feebleness we see it in delivering it as a Prey to the wicked and barbarous People because all Christians to take the way to Paradise dispose and arm themselves rather to receive Blows than to give or take Vengeance So that to him it seems That the thing which makes Christians so effeminate and cowardly proceeds only from this That they esteem more of an Idle and Contemplative than an Active Life In answer to all which I do own The Answer That the Oracles and Augurs had some Influence upon the People but we must likewise yield That they were often Instruments and Tools fitted by Princes to carry on some designs to give Courage to their Soldiers and disheartning to their Enemies and that God in the Machine was oftentimes a Prince's Spring that lay there As to the Rites and Ceremonies whatever Power they had to influence Mens Minds to Obedience and Duty to Governours and to stimulate and excite them to great and glorious Actions the same Motives and Inducements we may find in the Christian Religion and better bottomed That there is something else besides bare Forms Modes and Schemes of Religion that ought to be countenanced and cherished by Princes and which is very conducive not to make any Comparisons to the support of Government I will now endeavour to prove First therefore let us consider what is related of Numa Concerning Numa Pompilius It is said he appointed divers Ordinances concerning Priests and several Ceremonies whereof several Rolls were found in his (x) Livius lib. 40. Decad. 4. Sepulcher Anno V. C. 574. in the Consulship of Lucius Manilius in a Stone Coffin one part Latin and the other Greek These Books being seven in all by order from the Consuls and Senate were perused by Quintus Petilius who made such a Report of them that according to Livy they were decreed to be burnt as of no great account and besides judged pernicious and damageable to the Commonwealth by bringing that Religion into Use which was like to bring great (y) Cum animadvertisset pleraque dissolvendam Religionem esse Ibid. alterations in the present Rites Valerius Maximus gives something a different account for he saith the Greek Books only (z) De disciplina sapientiae quia aliqua ex parte ad solvendam Religionem pertinere existimabantur noluerunt enim prisei viri quicquam in hac asservari civitate quo animi hominum a deorum cultu avocarentur Lib. 5. de Religione num 12. of the Discipline of Wisdom were burnt for that they were judged in some respects to dissolve Religion For saith my Author the Ancients would preserve nothing in this City by which the Minds of Men might be withdrawn or led aside from the Worship of the Gods From this Story I shall first mark obiter that it seems for want of the engraving these Institutions of Numa concerning Religion in Brass as the Roman Laws were though the successive Priests had the ordering them ever since yet there was that alteration made in that long interval of time in the Rites and Ceremonies from what he had instituted that to have reduced them to their practice was like to un-hinge all their present Ecclesiastical Polity and so the Senate Consuls and Priests thought it more adviseable to burn and annihilate them than to disorder the present Establishment Secondly We may note that the Senate and Consuls took care that nothing should be exposed to the People how sacred a Relique soever that might enervate or debilitate Religion Now we may further note out of a judicious (a) Dionys Halicarnassaeus lib. 11. Historian That Numa built a Temple to Faith where he established many Ceremonies to induce People to reverence Faith The good things Numa established in order to Government and to fear Perjury and ordained likewise upon Controversies happening among Parties they should be bound to go to the same Temple and there with certain
that he act nothing that (m) Cordati magni Principis est nihil committere quod ipsius dignitati aut famae detrahit may detract from his Fame and the Dignity of his Place All the Actions of Sovereigns being not only Examples but Precepts there being no such Incentments to Vertue or Vice as their Practices Besides A Prince to be Exemplary in Vertue what I have hitherto delivered on this Head there lies still an heavier Burthen upon a Prince That for his Subjects sake he be not only vertuous himself but by all his Industry endeavour to take care that they be so likewise I know this is much facilitated by his own Example For as (n) Vita 〈…〉 ad 〈…〉 ad 〈…〉 perio nobis 〈…〉 quam exemplo Paneâ—â—â— Pliny saith The Life of the Prince is a standing Law of manners to it we direct our course are all Heliotropes turning to it For Subjects need not so much command as Example yet we find that when some in the Senate moved (o) 〈…〉 suasurus 〈…〉 quibus 〈…〉 essemus Lib 3. Annal. Tiberius that he would restrain the Roman Luxury he writes to them That he knows not whether he should perswade them to pass by the strong and overgrown Vices rather than to discover how unable they were to suppress them and so tells them that he would not have the matter of envy to fall upon him but refers it to the proper Officers There being (p) Majus aliqued excelsius a 〈…〉 Ibid. something greater and more sublime required of a Prince viz. the guarding of Italy the Sea and Provinces By this we may see how arduous a task it is to root out vicious Customs and Habits which by a short Intermission of Executing the Laws severely will soon be so overgrown A Prince to 〈◊〉 care that hiâ— Subjects be Vertuous that it will be much Labour to dig up their Roots and requires a long and frequent weeding 'till all the Young Plants the Evil Plentiful Seed hath produced be cleansed out of the Ground This Tiberius that declined this task was at that time in such esteem that some Provinces as particularly the further Spain would have built Temples to him and he denying that yet could tell the Senate That it was (q) Majoribus meis dignum rerumque vestrarum providum const antâ—â—â— in periculis offensionurâ— pro utilitate publica non pavidum credant Tacit Annal. lib. 4. enough to him that he possessed the Supreme place and desired them to witness and Posterity to remember That they believed he was worthy of his Ancestors was provident of their Affairs constant in Danger not fearful to give Offence to any for the profit of the Commonwealth These things to him should be Temples and the beautifulest Statues In this we find a short Description of the Burthen of a Prince and a shorter but comprehensive one in (r) Maximo Imperio maximam esse cur 〈◊〉 Ad Caesarem Sallust That the greatest Empires have the greatest Cares (s) Sed 〈◊〉 adstricti moris Aâ—ctor fuit antiquo ipse cultu victuque 〈◊〉 inde in 〈◊〉 aemulandi amor validior quam poena ex legibus metâ—â— 3. Annal. Tacitus tells us of Vespasian That he was Author of a stricter manner of living than formerly using the Ancient Frugal Dyet and plainer Cloths which had that effect that the study to imitate the Prince was more efficacious than the Fear and Punishment of the Laws If then to be conspicuous in all sorts of Vertue and the Actions (t) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 5. Polit. c. 10. that flow from them and the whole higher and lower class of them in the most Comprehensive Qualifications be no small Labour and require no small sedulous Care to effect in ones self how much more must it be to make so many Millions more Vertuous by Example Precept strict Vigilance and Punishments Every one that attentively reflects on this must needs own it an Herculean Labour and such as exceeds almost the Apprehension of the Subjects Since then we are happy in such a King as hath laid this as a Corner Stone upon which his Throne is built King James the Second's discouraging Vice by his own Example to discountenance all Vice and since so great and weighty a Burthen of the well-ordering and governing so great a People lies with great pressure upon him for our ease and tranquillity let us not be so impolitick unworthy or ingrateful by Seditions Factions or Rebellions to cause him to undergo more disquiets For the result will be Our own Miseries and Calamities will sit close behind us when we set our Faces against such a Prince worthy of the most Imperial of Diadems CHAP. XVI Of the King's Authority and Soveraignty AN awful Reverence The Sublimeness of The Subject Qualm and Trembling must necessarily surprise every one that considerately raiseth his Thoughts to contemplate so sublime a Subject as the Soveraignty of Princes least what he delivers should appear too dis-spirited and below the dignity of the Theam or he should be guilty of such Indiscretion as to think he could enrich the Crown and Scepter with Lacker of his own Composure (a) Magnum propiusque noscendum id eruditissimo viro visum Lib. 6. Epist 16. Jam navibus cinis inciderat quo prepius accederet calidior densior Jam pumices nigrique ambusti fracti igne lapides Ib. Pliny the younger tells us that the great Naturalist his Uncle was so desirous to discover the true causes of the burning of Vesuvius what materials they were that afforded Fuel to so lasting a Fire and by what imprisoned Spirits so violent eruptions of Flame and Cinders were at times belched out of the Caverns of that Mountain though less stupendious than Aetna Hecla or other Vulcano's that his curiosity led him to climb so near the Eruptions of those Flames that Posterity lost the Benefit of his Observations by his untimely Death in the approaches he made We daily see the Pyralis not only singe her Wings but often lose her Life by her rash approaches to the Flame It behoves me therefore with all the Circumspection I can to endeavour to keep my self from such a Fate as Temerity too prying or daring an Attempt may bring upon me on the one hand or that I fall not into as unpitied a Destiny of being contemned and despised for too gross and palpable Flattery in equalling the Throne of Kings with that of the Deity The Flattery of some especially of Valerius Maximâ—â— A bold stroke of this kind of Sycophantry we find in (b) Penes quem hominum deorumque consensus maris ac terrae Regimen esse voluit cujus coelesâ—i providentia virtutes de quibus dicturus sum benignissime foventur vitia severissime vindicantur Prologo Valerius Maximus his Epistle Dedicatory to Tiberius wherein he tells him that he invokes him as Patron of
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
(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
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.
Euridicus Euric or Theodoric for by those Names he is called Anno Dom. 466. made them be digested into writing These Levigild Aera 608 amended and they had their fullest Vigor from the Kings Chindaswind and Recaswind and these are used in Spain and that part of France called Gallia Narbonensis anciently Braccata containing Savoy Dauphin Province and Languedoc The next Laws for Antiquity are the Burgundian Gundebald or Gundebaud The Burgundian Laws who was made tributary to Clouis King of France Anno Dom. 501. having setled Burgundy under his Jurisdiction did appoint saith (u) Lib. 2. c 33. Gregory Turonensis milder Laws for the Burgundians lest he might oppress the Romans and Lindenbrogius notes That his Laws agree with the Responses of Papinian though (w) De Impietate Duellici examinis Agobard in his Book to Lewis the Emperor complains of the unjustness of one branch of them in admitting Duel when Proof might otherwise be had However here it appears they were made by his Authority The next are the Laws of the Alemans Baiuvarians and Francks * all which took their beginning from Theoderic the First (x) Spehaan 's Gloss Lex Baioriorum Lex Baiuvariorum Baioriorum Boiorum containing Franconia now Bavaria and Bohemia according to some Son of Clouis the First who founded the French Kingdom Anno 511. having triumphed over the Almains and being converted to Christianity he took the Name of Lewis when he was in Catalonia he called to him wise Men skilled in the Ancient Laws of his Kingdom and he himself indicting he commanded the Laws of those Nations according to every ones Customs to be written adding rescinding and changing them according as Christian Religion required and those which for the ancient Pagan Rites he could not alter himself Childebert the Second begun and Clotharius the Second perfected and Dagobert the great made them better and to every Nation concerned in them Lex Aalmannorum he gave them in writing As to that part which is called the Lex Alamannorum they were amended by Clotharius the Second Son of Chilperic and his Princes viz. Thirty three Bishops Thirty four Dukes Seventy two Earls and the rest of the People as appears by the Title so that this by an Act of the King and great Council and the former by the Kings themselves are recorded to be appointed or made Lex Francorum As to the Law of the Francs not the Salic Law which is of later date we find no more mention of them after they were digested by Theodoric the first till the time of Charles the Great who and his Son published Laws by the Name of Capitularies which Ann. 840. were writ by Ansegisus Abbas Lobiensis and Benedictus Levita so that here is no mention but of the Kings and Emperors sole establishing these Laws Lex Longobardorum The Longobards now Lombards in Italy were a Colony of the Saxons who were removed into Pannonia or Hungary and by Narses General to Justinian about the year 550 were called into Italy to assist the Emperor against Totila King of the Goths whom Narses totally routed in Italy and these Longobards (y) Warnefridus Hist Longobard lib. 4. c. 44. seated themselves there and established a Kingdom and Rotharis their King reduced the Laws which they held only by Use and Memory being mostly such as the Saxons had used into writing and caused the Book of them toâ—be called an Edict which was about 70 years after their setling in Italy the succeeding Princes Grimoald Luitprandus Rachis and Aistulphus and after Charles the Great Latharius and Pipin added and amended them Sir Henry Spelman (z) Glosser tit LL. Longobard saith that betwixt our Laws and those of the Longobards there is a great Agreement in the Laws Rites Words and other Particulars but saith our Ancestors brought out of Germany their Customs not written but according to the custom of the Lacedaemonians and the Ancient Nations of the North retained them in their memories only In the Laws of Henry the First Lex Ripuariorum we find the Ripuarian Laws which were made for those of Luxenburg Gelderland and Cleves not only approved but some of them are word for word in his Laws as Sir Henry Spelman notes As to the Salic Law the Francs a People of Germany The Salick Law passing the Rhine subdued a great part of Gaul and in the third year of Pharamond four of the Nobles of the Nation reviewed all the Originals of Causes according to the Salic Law There are two Prologues to these Laws the first names the four Noblemen that digested them the second saith names the Anno Dom. 798. The Lord Charles the Noble (a) Anno Dom. 798. Dom. Carolus Rex Francorum incliâ—â—s hunc libellum tractatâ—s Legis Salicae seribere ordinavit King of the Francs ordained the writing of that Book of the Salic Law In the Laws of King Henry the First Sir Henry Spelman notes That many things are taken out of the Salic Laws as he instanceth in the 87 and 89 Chapters where the Words are used and Punishments are appointed secundum Legem Salicam according to the Salic Law I shall now set down something in general of our Country Law (b) Glâ—sser Lex Anglorum The English Saxon Laws from Germany Sir Henry Spelman observes That the Laws of the English in Britain seem to take their Original from the German Manners or Customs but he knows not who first introduced them It is known that there came into England upon the Invitation of Vortigern the Jutes or Goths Angela is a Town near Flemshurg a City of Sleswick perhaps our Flamburgh in Yorkâ—â—ire had its Name from some that inhabited that City the Angli or English and the Saxons tho all here obtained the Names of Saxons The Jutes setled in Kent and the Isle of Wight The Saxons in Essex Middlesex and Sussex and so on the Sea Coast to Cornwall and were called the West Saxons The Angli possessed the East and North parts which were called Mercia Those of Kent had their Laws The tripartite Division of the Saxon Laws but after being swallowed up in the West-Saxon Kingdom they were subject to their Laws The Angli used the Mercian Laws till the Danes over-running the Provinces of East-England and of the North Humbers brought in their Customs not differing very much from the Laws they had before from hence sprung the threefold Division of Laws viz. the (c) West-Seaxna Laga Myrcna Laga Dene Laga West-Saxon Laws the Mercian Laws and the Danish Laws The first Laws we have an account of were made by Ethelbert King of Kent Anno 561. and the next by Ina King of the West Saxons who began to Reign Anno 712. and the next by Offa King of the Mercians of which Laws I have spoke before The Danish Laws were such as were not only used in Denmark but in Normandy Danish Laws
him liberty to go telling him that he owned not Vrban pro Apostolico and that it had neither been his nor his Fathers custom that any should own (d) Paternae consuetudinis eatenus extitisse ut praeter suam licentiam aut electionem aliquis in Regno Angliae Papam nominaret quicunque sibi hujus dignitatis potestatem vellet praeripere unum foret ac si coronam suam sibi conaretur auferre Idem num 50. any Pope in the Kingdom of England without his Licence or Election and whoever would take from him this Power of his Dignity did the same as if he endeavoured to despoil him of his Crown But Anselm persisted that he had declared before he would consent to be Bishop while he was Abbat of Becc that he received Vrban for Pope neither that he would in any manner depart from his Obedience and Subjection At which the King was very angry protesting that Anselm could not against the Kings good pleasure keep his Faith which he owed to him and his Obedience to the Apostolick See So Anselm saving his Reason or Argument which he declared concerning his Subjection and Obedience to the Roman Church desired Respite for the examining the Matter in Question till it might be defined by common consent the Bishops Abbats and all the Princes of the Kingdom meeting together whether saving his Reverence and Obedience to the Apostolick See he could keep his Faith to his Earthly Prince The Question moved Whether Archbishop Anselm could keep his â—aith to thâ— King saving his Obedience to the Apostolick See and if it be proved that both of them could not be done he had rather depart the Kings Land till the Pope was owned than for an Hour deny Obedience to St. Peter and his Vicar Then it follows Idem num 10. Dantur ergo Induciae atque ex Regia Sanctione ferme totius Regni Nobilitas 5. Id. Martii pro ventilatione istius causae in unum apud Rochingheham exit The Convention was on Sunday in the Church of the Castle The King and those (e) Rege suis secretius in Anselmum Concilium stuâ—iese texentibus Anselmus autem Episcopis Abbatibus Principibus ad se a Regio secreto vocatis that were of the Kings part secretly and studiously contriving their Councils against Anselm then follows a plain description who they were that constituted this Great Council Anselmus autem Episcopis Abbatibus Principibus ad se a Regio secreto vocatis Anselm calling the Bishops Abbats and Princes to himself from the Kings Secret Council or from the Consultation they had with the King By these I conceive we may understand the constituent Parts of this Great Council Then follows eos assistentem Monachorum Clericorum Laicorum numerosam multitudinem hac voce alloquitur Anselm makes his Speech to those that is to the Bishops Abbats and Princes and likewise to the numerous multitude of Monks Clerks and Laicks there present standing or sitting there as Auditors not Assessors as the sequel will show (f) Id. num 30 40 50. He tells them how he was forc'd to leave his Country by reason of the Kings desire that Council being taken it pleased the King and them to chuse him and that then he declared for Pope Vrbane and then tells them the straits he was in as before related and so desired their Counsel and prays them all especially his Brethren and Co-Bishops to give him advice The (g) Id. fol. 27. num 10. Bishops tell him They would advise him to submit to the King in all things as they were ready to do but if he commanded they would acquaint the King with his Discourse and return his Answer and the King (h) Anselmus ad hospitium suum Curiam manere petiturus reverteretur ordered that all things should be deferred till the next day because that was Sunday and Anselm should return to his Lodging he being about to petition that the Court might remain unless the words are to be read curiam mane repetiturus he to return to the Court in the Morning because the following words are Factum est ita mane juxta condictum reversi sumus It was so done and in the Morning according to agreement we returned Then it follows Anselmus in medio Procerum conglobatae multitudinis sedens ita orsus est Si juxta quod a vobis Domini Fratres hesterno die consilium de praesenti causa petivi vel nunc dare velletis acciperem Anselm sitting in the midst of the Nobles and the encompassing multitude begun thus If you my Lords and Brothers will give me counsel about the present Cause as I Yesterday desired or petitioned I will receive it In which we may observe that he applies himself principally to the Clergy unless we read the words disjunctively Domini Fratres as we shall presently find he doth They give him the same Answer they did the day before That he should submit to the Pleasure of the King but if he according to God expected Counsel from them which might in any thing gainsay the Kings Will it would be labour in vain for they would not assist him in it Then Anselm lifting up his Eyes aloft with a lively Countenance and a reverend Voice speaks to them thus Cum nos qui Christianae Plebis Pastores vos qui Populorum Principes vocamini When we that are the Pastors of the Christian People and you that are called the Princes of the People will give me Counsel not otherwise than according to the Will of one Man your Prince I will run to the chief Pastor and Prince of all to the Angel of the Great Council c. In which we may observe to my purpose In this Contest is discovered who were the Members of the Great Councils that he divides this Curia or Great Council into two parts the Pastors of the People or the Bishops and Abbats and the Princes of the People so as here are no Commons as in the acceptance of the word in this and later Ages they are understood For the Multitudo here mentioned are to be taken to be Spectators who flocked to hear the Cause as in other Courts and even at this day upon the hearing of Appeals at the Bar of the House of Lords it is usual for many to croud in as far as the Bar. That these Great Councils met where the King kept his Court at Christmas Easter and Whitsontide by custom often is mentioned in our Histories and needs no further Proof than what Doctor Brady hath produced therefore upon this occasion of Archbishop Anselm I shall only relate what Eadmerus saith Great Council at Pentecost de more That he attended the King at Pentecost sometimes at Dinner-time when he made his great Feasts and other times during the Holidays to try if the King's Mind was altered but found no change (i) Peractis igitur Festivioribus diâ—bus
diversorum negotiorum causae in medium duci ex more coeperunt Id. p. 37. num 40. Ann. 1096. vel 1097. Therefore the Festival-days being passed the causes of divers affairs according to custom began to be transacted saith my Author among which that that of Anselm's was one But to draw to a Conclusion of this King's Reign my Author clears who were the Members of the Great Councils and that they were convened at the King's Pleasure in the relating that in the following (k) Mense Augusto cum de statu Regni acturus Rex Episcopos Abbates quosque Regni Proceres in unum praecepti sui sanctione egisset c. Id. p. 38. num 10. Month of August when the King being to transact things concerning the State of the Kingdom by his Summons had convened the Bishops Abbats and all the Noblemen of his Kingdom The affairs for which they were assembled being dispatched and every one prepared to return home Anselm moves again his Petition and in October when the Convention was dissolved he applied himself again to the King at Winchester Here we may observe that it was the King The King solely summons the Great Councils and dismisseth them who being to transact things about the State of the Kingdom by the Authority of his Precept or Summons called together the Members of the Great Council who are expresly mentioned to be the Bishops Abbats and all the Noblemen of the Kingdom Since therefore we find no other kinds of Great Councils in any Authors that write of this King we may conclude the Commons were no ways represented in any of them Most Authors mention this King with no good Character One old Writer saith Omnis jam legum silâ—it Justitia causisque sub justitio positis sola in Principibus imperabat pecunia Florent Wigorn. That all Justice of Laws was in his time hushed in silence and Causes being put in a Vacation without hearing Money alone bore sway among the great ones Polydore Virgil will have the right or duty of First-fruits called Annats which our Kings claimed for vacant Abbies and Bishopricks to have had their Original from King William Rufus However that be it is certainly true that at his Death the Bishopricks of Canterbury Winchester and Salisbury and twelve Monasteries besides being without Prelates and Abbats payed in their Revenues to the Exchequer We may judge likewise of his burthensome Exactions Matt. Paris fol. 74. Edit penult by what we find in his Brother King Henry the First 's Charter Wherein he saith because the Kingdom was oppressed with unjust Exactions he makes the Holy Church free and all evil Customs wherewith the Kingdom of England was unjustly oppressed he doth henceforth take away and they are all in a manner mitigations of the Severity of the feudal Tenor as any one may see in Matthew Paris Mr. Selden and Dr. Brady and is plain by the very first concerning the Laity That if any one of my Barons Counts or others that hold of me shall dye his Heirs shall not redeem his Lands as he was wont to do in the time of my Father c. And in another Praecipio ut homines mei similiter se contineant erga silios silias uxores hominum suorum That according to the relaxation he had made to his Homagers they should regulate themselves towards the Sons Daughters and Wives of their Homagers Of the Great Councils in King Henry the First 's time COncerning the Great Councils in King Henry the First 's time as also till Edward the First 's time I must refer the inquisitive Reader to Dr. Brady's answer to Mr. Petyt in the respective Kings Reigns and to his Appendix in which he hath amassed out of Eadmerus Simeon Dunelmensis Florentius Wigornensis Hoveden Gervasius Dorobernensis Matt. Paris Malmsbury and other Authentick Writers the Emphatical Expressions by which the constituent Parts of the Great Councils are fully proved to be only the Bishops Abbats and Priors for the Clergy or the great Nobility or prime Tenents in Capite such as the King pleased to summon under the names of Magnates Comites Proceres Principes Optimates Barones or Sapientiores Regni expresly used for Barones Where the Populus is used by way of Antithesis as contradistinct from the Clerus and where Regni Communitas or Ingenuitas is used the same Doctor Brady by pregnant Proof puts it beyond dispute that none of the Commons as now we understand them could be meant as Representatives So that though I had collected a considerable number of such Proofs e're I saw the Learned Doctor 's Book I shall now wave them all and only add in every King's Reign some few that he hath omitted or wherein something remarkable relating to the King's Soveraignty or the manner of constituting Laws is found by him noted or as I have met with them in my Reading In the third of Henry the First in the Feast of St. (a) Omnes Principâ—s Regni sui Ecclesiastici Secularis Ordinis Flor. Wigorn. Anno 1102. 3 H. 1. Michael saith the Monk of Worcester the King was at London and with him all the Princes of his Kingdom of the Ecclesiastick and Secular Order and of the same Council Malmsbury saith The King bidding (b) Ipso Rege annuente communi consensu Episcoporum Abbatum Principum totius Regni adunatum est Conciltum De Gest Pontif. Anno 1102. or willing with the common Consent of the Bishops and Abbats and Princes of the whole Kingdom the Council was united and this being mostly about Ecclesiastick affairs it is added that in this Council the Optimates Regni at the Petition of Anselm were present and gives the reason For that whatever might be decreed by Authority of the Council might be maintained firmly by the mutual care of both orders Whereby we may note the Obligation upon Subjects of both Orders to observe the Laws once enacted by the King and Council Anno 1107. 7 H. 1. Matth. Paris saith (c) Factus est conventus Episcoporum Abbatum pariter Magnatum ad Ann. c. there was a convention of the Bishops and Abbats as likewise of the Magnates i. e. Noblemen at London in the King's Palace Archbishop Anselm being President To which the King assented and speaking of what was established he saith Rex statuit To him Hoveden agrees only what the one calls Magnates the other calls Proceres The Manuscript of Croyland (d) Tum Episcoporum Abbatum totius Cleri Angliae by which must be understood the great dignified Clergy Sub Wifrido Abbate p. 104. saith The same Year the King giving manifold thanks to God for the Victory he had given him over his Brother Robert and other Adversaries appointed a famous Council at London as well of the Bishops and Abbats of the whole Clergy of England as of the Earls Barons Optimatum Procerum totius Regni In this Council
by Sir Edward Coke (m) 4. Instit p. 12.1 Inst p. 69.2 Inst 7 8. Preface to ninth Report beyond all bounds of Truth and Modesty as also the great mistake of our learned judicious Antiquary (n) Archaion p. 257. Mr. Lambard and (o) Doderidge of the Antiquity of Parliaments others of great note who affirm that the true original Title and Right of all our ancient Cities and Burroughs electing and sending Burgesses and Citizens to our Parliaments is Prescription time out of mind long before the Conquest it being a Privilege they actually and of right enjoyed in Edward the Confessor's time or before and exercised ever since Indeed the whole series of the great Councils in the Saxon Danish and Norman Kings Reigns to the Forty Ninth of Henry the Third evince the contrary As to the Wages of the Knights Citizens and Burgesses The Wages of Knights Citizens and Burgesses it being a thing now obsolete though not out of force by those that would claim them I shall only note that the first Writ for them is coeval with our Kings first Writs of Summons and the reason given in the Writ is That whereas the King had summoned two Knights c. and they had stayed (p) Ac iidem Milites moram diuturniorem quam credebant traxerint ibidem propter quod non modicas fecerint expensas Cl. 49 H. 3. m. 10. dorso longer than they believed they should do by reason of which they had been at no small Expence therefore the King appoints the Sheriff by the counsel of Four lawful Knights to provide for the Two Knights of the Shire their reasonable Expences The Writ of the 28 Ed. 1. (q) Rot. Claus 28 E. 1. m. 12. dorso commands that they have rationabiles expensas suas in veniendo ad nos ibidem morando inde ad propria redeundo their reasonable Expences in coming to the King staying there and returning to their homes The like we find for the Citizens and Burgesses in the 1 Ed. 2. there was Four Shillings a day allowed for every Knight and Two Shillings for every Citizen and Burgess Mr. Prynne (r) Brief Parliamentary Writs part 4. p. 4. gives many good reasons why these Wages were allowed some of which I shall recite As first that all Laws allow Sallaries for Services and those being public Servants and Representatives or Atturneys for the Counties Cities Burroughs to consult about the great and arduous Affairs necessary Defence Preservation and Wellfare of the King and Kingdom and theirs for and by whom they were intrusted it is reason as they receive the benefit of their good Service in giving their good Advice towards the redressing of Grievances and making wholsom Laws that they should have allowed their necessary Expences Secondly It appears in ancient times there was no such ambition to be Parliament-men as of late but the Persons elected thought it a burthen therefore lest being elected they should neglect to repair to the Convention they had Sureties called Manucaptors for their Appearance Thirdly This obliged the Counties Cities and Burroughs to be carefuller in electing the discreetest ablest fittest and most laborious persons who would speediest and best dispatch all Public business which occasioned the shortness of Sessions Fourthly It begat a greater confidence correspondence and dependance betwixt the Electors and Elected Fifthly It kept poor petty Burroughs unable to defray the Expences of their Burgesses from electing or sending Members to our Parliaments and oblig'd some to Petition to be eased of the Charge whereby the number of Burgesses was scarce half so many and Parliaments were more expeditious in Councils Aids Motions and their Acts and Debates and so the Sessions were much shortned the Elections were then fairer and for the most part unquestionable the Commons House less unwieldy Privileges of Parliament less enlarged beyond the ancient Standard abuses in Elections Returns and Contests about them by reason of the Mercenary and Precarious Voices less troublesom whereas now in every new Parliament a great part of the time is spent in the regulating Elections But Mr. Prynne hints little upon one great cause of that usage which was that in Burroughs as well as Cities most what the persons elected were the Inhabitants in the Cities and Burroughs Merchants Tradesmen or the most popular Burghers as will appear to whoever peruseth the Chronological Catalogue Mr. Prynne (s) P. 900. to 1072. with no small pains hath collected into his Fourth Part of his Brief Register where I believe one can pitch upon no City of Burrough from the time of Ed. 1. to the 12 Ed. 4. but he will find by the very names that they were such as I have mentioned I am well assured of it for Yorkshire and particularly for the City of York they being generally such as we find in the List of their Mayors Beverly hath Four of the Sirnames of good Families and Kingstone upon Hull hath (t) 8 E. 3. William a S. Pole from whom the great Family of Suffolk sprung but it is well known he was a Merchant there Now since every part of the Country abounds with Gentlemen of Plentiful Fortunes Why wages not now paid to Knights Citizens and Burgesses Generous Education such as are versed in Affairs of their Country as Justices of the Peace Deputy Lieutenants and have been Sheriffs Members of Parliament and born Publick Offices there can be no expectation or Fear that those that are Candidates for Parliament Men for Burroughs will expect any Sallary or Reward so long as they chuse them There being generally Competitors who instead of expecting Wages are generally obliged now to vast expences to purchase the Votesâ— of the Electors so that now the Honourable House of Commons is quite another thing than what it was wont to be in elder Ages when they were summoned principally to give Assent to what the King and the Lords did to assent to Aids and Taxes and apportion their own Taxes bring up their Petitions concerning Grievances to be redressed by the King and his Council or the King and Lords and draw up Impeachments against great Offenders and such like Having thus considered the Writs of Summons to the Members of the House of Commons before Henry the Seventh's time in all its branches Copy of VVrits of Summons now used to the Sheriffs I shall give a Transcript of the Writ of Summons used at this day whereby may be seen how much of the old form is continued which I shall insert in Latin and English that the Emphasis of the Original may not be lost REX Vicecomiti Salutem c. Quia de advisamento assensu Concilii nostri pro quibusdam arduis urgentibus negotiis nos statum defensionem Regni nostri Angliae Ecclesiae Anglicanae concernentibus quoddam Parliamentum nostrum apud c. die c. proxime futuro teneri ordinavimus ibidem cum Praelatis
should be forwardest to supply the necessities of the Crown to shew all Loyal Dutifulness to their Sovereign whereby a most dangerous Rebellion in both Kingdoms was the easilier crushed and which endears them to the King that there can be no danger but whatever good and wholsome Laws they shall propose for the general good of the Kingdom will find a chearful allowance by him How happy had our Forefathers been if King Charles the First had met with such considerate Parliaments who by a seasonable supply and compliance might have had without that vast effusion of Blood and Treasure all their Grievances redressed and the flourishing State of the Kingdom preserved and the Memories of a great many Noblemen and Gentlemen had been transmitted without stain to their remote Nephews But to draw towards a Conclusion of this Discourse Some not willing to hear of the Miscarriages of Parliaments think this Discourse needless Some that may not be willing to hear of the Miscarriages of some Parliaments wherein probably they were concerned may say what need is there now to bring again upon the Stage the rigorous Proceedings of the two Houses of Parliament or more properly of the leading and designing Men in the House of Commons in the Years 1640 and 1680. since we are now happily past these Rocks Quicksands and treacherous Shores All the World indeed must acknowledg we have a Royal wise Pilot Because we have a most wise King and good Parliament who knows full well to steer the Soveraignty of the Commonweal He hath weathered out high going Seas so that neither their over-whelming liquid Mountains nor the terrible Shot from the floating Castles have daunted him magnanimity unparallel'd Courage and an Experience beyond most Crowned Heads have raised him great Trophies of his Victorious toils He is served with sage Councils both private and National So that all must confess we have less cause to fear any more dangers of Hurricanes and Shipwracks But though we now enjoy Halcyon days Yet we are not secure but that in after-Ages evil Members of Parliament may be under a Sovereign enriched with Royal abilities to the heighth of our Wishes though he is blessed with a Parliament as Loyal as can be desired betwixt whom there is no other Strife but who shall out-pass the other in mutual Obligations Yet are we secure that no ill Exhalations may be gathered in after-Ages Can we expect always temperate Weather pleasing Sunshine and fruitful Showres No in small revolutions of Years we find Epidemical Diseases return excesses of Drought Rains or Frosts are often marked in our Annals even after promising Configurations of the Coelestial Bodies I write not an Almanack for a Year The Design of the Author in writing against the Exorbitances of some or Pamphlet for a time my Design is not Infandum renovare Dolorem out of any Pique but as much as in me lies to show from the by-past Irregularities and Exorbitances of some Men how Loyal good and Just Men may measure things by the Golden Standard of the Laws how mischievous Practices and Principles may be obviated how every one may see what the upshot of rebellious Principles will be how to detect and how to avoid the same kind of Rocks and Sands in after-Ages I know some Persons recovered from a valitudinary Condition Some love not to hear of their Distempers love not to hear of the Torments they have undergone nor of the Extravagances of their delirous State Yet this should not hinder but the Healthful and those that would avoid the Calenture should patiently endure to hear a Description of the Causes and Symptoms In this Discourse I have only culled out such Particulars The Author's Apology for himself as I find Judicious Authors have insisted upon against the unprecedented Proceedings of some late Houses of Commons which I think all Loyal Persons disapprove and I believe a great many as well as my self have heard many of the then sitting Members dislike when things were carried with an impetuous Torrent that it was more dangerous to speak against their proceedings or question the unlimited Power assumed by that House than it was to speak Seditious I had almost said Treasonable Words against the King Therefore I hope none of this present Honourable House of Commons who have so signalized their Loyalty in the last Session will take offence at what from such judicious Persons as I have met with I have delivered the Sentiments of My intention is no ways to lessen the Rights or necessary Privileges of that venerable Assembly which never can be unbeneficial to the King or People but when Discontent Faction and Sedition hath too spreadingly infected the Electors The continuance of that worst of Parliaments of 1641. What evil Principles taught during the Long Parliament in their disloyal Practices so long by the overgrowing of the Tares which were only suffered to thrive occasioned so much corrupt seed to be sown as in twenty years there was no wholesom grain left We saw too late how by some evil Seedsmen a fertile but dangerous Crop was shooting up apace It is not a little Labour nor small diligence will howe and weed out the Briars Thistles and destructive Shrubs and poysonous Weeds that shoot their spreading Roots so far But I hope the great Wisdom of this Loyal Parliament will find out ways and methods to prevent the danger of their thriving in a Soil worthy of better Plants than any will be set by Republican Hands CHAP. XXX Of the Kings most Honourable Privy-Council I Find by several Authors Four kinds of the King's Councils The First that there are reckoned Four Councils of the King First The Magnum Concilium consisting of the Prelates and Nobles in Parliament of which Bracton (a) Lib. 1. c. 2. may be consulted and what I have writ in the Chapter of Parliaments Secondly A Convention of the Peers of the Realm The Second Lords of Parliament yet not meeting as a Parliament which appears manifestly in the Record 25 Aug. 5 H. 7. upon an exchange made of some Lands betwixt the King and the Earl of Northumberland the King promiseth to deliver the Earl Lands to the value c. by (b) Per advice assent du Estates de son Realm de son Parliament parensi que Parliament soit devant le Feast de St. Lucy ou autrement per advice de son Grand Council autres Estates de son Realm que le Roy serra assemblez devant le dit Feast in case que le Parliament ne soit Coke 1. Instit lib. 2. c. 10. sect 164. the Advice of the Estates of his Realm of his Parliament if the Parliament be convened before the Feast of St. Lucy or otherwise by the Advice of his Great Council and other Estates of his Realm which the King shall Assemble before the said Feast in case the Parliament be not called which well
also Judges and all sorts of Magistrates For as Plutarch well observes As the Master of the Ship chuseth the best Mariners The Prince's Care in chusing his Ministers the Architect the best workmen so a Prince should imploy those that are fit to administer the Affairs of the Commonweal (b) Vt Gubernator optimos quaerit Nautas Architecton doctissimos Ministros ita Principes eos asciscunt qui ad Rempublicam administrandam sunt idonei Generally it is requisite that Princes chuse such as are more sensible of duty than of rising and such as love business rather on Conscience than upon Bravery and it is fit to discern a busie nature from a willing mind for some are impatient of privateness saith my Lord St. Albans even in Age or sickness like old Towns-men that will be still sitting at the street-doors though thereby they offer Age to scorn Therefore as it is necessary that Ministers of State should be subservient to the Soveraign so it is most requisite that a Prince should be careful in his choice of such as may most beneficially serve him and the Publick Some seem fit for Imployment and yet in places disappoint expectation Omnium consensu capax imperii nisi imperasset saith (c) So Tacitus of Galba lib. 1. Hist Alieno Imperio felicior quam suo vetus in familia nobilitas magnae opes ipsi medium ingenium magis extra vitia quam in virtutibus P. 197. Edit 5. Lips Major privato visus dum privatus fuit 1. Hist c. 11. Tacitus of Galba That in the opinion of all he was capable of Empire if he had not discovered his insufficiency when he was Emperor Therefore it is noted as a good Character of Piso (d) Quo nemo validius otia dilexit aut facilius suffecit negotia magisque quae agenda suntegit sine ulla ostentatione agendi Velleius Paterc Actu otioso simillimus That none more vehemently loved recess from business or with more ease underwent imployment or effected those things which were to be done more actively and without any ostentation So (e) Annal. 13. Edit Lips 5. p. 138. Integre sancteque egit procax otii potessati◠temperantior Tacitus saith of Otho when he governed Portugal that he was one loosely given when he had little to do but in Office and Rule more stayed and temperate Such a person is truly qualified for great Managery it being an assured sign of a worthy and generous Spirit whom Honour amends Vertue in the Ambitious being violent and in those in Authority settled and calm For Honour is or should be the place of Vertue power to do good being the true and lawful end of aspiring and Conscience of the same is the accomplishment of Mans rest Men in great places saith one (f) St. Alban's Essays p. 42. How Great Ministers are Servants who made a great figure in his time are thrice Servants First to their Soveraign or the State Secondly Servants of Fame Thirdly Of business So that they have no freedom either in their Persons Actions or Time their rising is laborious their standing slippery their recess either a Downfal or Eclipse so that they had need borrow other mens opinions to think themselves happy for if they judge by their own feeling they cannot find it for though Tacitus saith Sunt plerumque Regum voluntates vehementes inter se contrariae and though they serve a more benign Prince yet they will find many they deal with either vehement in their Wills or irresolved However the fatigue is so much the greater when the Port cannot be gained without doubling and tacking to save the Wind. Therefore it is most necessary The necessary Qualifications of Ministers of State that great Ministers of State have extraordinary Accomplishments both in dexterity of dispatch vast comprehension vertuous resolvedness and prudent cunctation Nam occultat eorum semina Deus plerumque bonorum malorumque causae sub diversa specie latent Panaegyr For as Pliny well notes In most matters the Deity hides the seeds of things and mostwhat the causes of good and bad things lye hid under the contrary appearances So that it requires a great sagacity in a Minister of State to foresee what the effects will be of Causes and Councils when there may intervene so many by-accidents that can neither be foreseen nor prevented Therefore not only great wisdom is required 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Arist ◠Ethic. c. 8 but great experience and when Ministers of State are endowed with these qualifications whatever the event be yet they are not to be blamed and mostly such grounded resolves succeed well For a wise man (i) Sapiens dominabitur 〈◊〉 over-rules the Stars So a Minister of State who with sufficient ability Diligence Care Fidelity Prudence and Affection Their danger of being supplanted serves his Prince and his Country which are no ways incompatible needs not fear the Detraction of some the mining of others or an inglorious downfal for the Government loseth more by such an ones laying aside than he that hath served his Prince Conscientiously justly and wisely shall lose Those whom either their lucky Stars or conspicuous accomplishments have placed within the Circle of the Court are subject indeed to the greatest danger of inglorious Exits if they be not the most circumspect of Mortals For the envious and ambitious who torment themselves that they are eclipsed by those who interpose betwixt the Sunshine of the Princes favour envy them the Glory of Administration and by cunning and artificial Insinuations of ill Conduct false measures and designs are assiduously heaving them out of their places which if upon false Suggestions they prevail to effect by successive Removals under pretence of reforming matters all things are disjointed the Cement of Government dissolved and greater Errors committed by too frequent fresh Applications 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 whereby the Malady is made incurable by the multitude of Physicians Amongst other Rules which Princes may find it convenient to observe in chusing ministers of State It is one of no small Moment provided they can be as well sitted that they (k) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 be of antient Houses and persons of Fortune For Tacitus (l) Insita mortalibus natura recentem alicrum foelicitatem agris oculis introspicere 2. Hist notes That it is inbred to men to look asquint on the Advancements not so much new as of new Men who coveting too much Power and Honour by that means contract Envies For as he further (m) Nunquam satis fida Potentia ubi nimia est Ibid. observes The Power that is in Excess is not to be confided in being mostwhat Treacherous Therefore (n) Vestra vos non Principis fortur metiamini Panegyr Nihil rerum mortalium tam instabile fluxum est quam potentia non sua vi nixa Tacit. 13. Annal. Pliny adviseth That Ministers of
are to decline by little and little mildly and reverently without shewing of too much Detestation or bitter reprehension and opprobry leaving the things rather undone than rejecting them These wise Directions of so great and ancient an Author are worth Imitation by our sturdy Beggars of Liberty who do or have done it in so imperious a way as if they were in a condition to command it and yet when they had the Power most Tyrannically exacted both Civil and Spiritual Obedience from all others that were not of the same Mold and Cut with themselves The Excellent Seneca saith That Disobedience would be the Destruction of the Roman Commonwealth and so long the People would be out of Danger of it as they endured the Bridle which if once they broke or being by any chance broken they suffered not to be again sitted on (o) Haec unitas hic mâ—ximi Impâ—cii contextus in partes multas dissilier Senec. de Clem. lib. 1. c. 4. the unity and Contexture of the greatest Empire would fly in Splinters and the same end there would be of the Cities Dominion that there was in obtaining it For of old the Commonwealth was so constituted that the Ligament betwixt the Sovereign and Subject could not be dissolved without both their Destructions for as the Prince stands in need of the Peoples Strength so the People of the Headship of the Prince To the which (p) Olim enim it â— se induit Reipublicae Caesar ut diduci alterum non possit sine utriusque pernicie Caesar saith He so embosomed and inweaved himself into the Commonwealth that the one could not be disjointed from the other without the Destruction of them both But every Malecontent will be ready to say they are for Government and can chearfully obey good Princes but such as exercise Arbitrary Government or are Vicious and Irreligeous those they cannot obey To such I would recommend the Saying of (q) Bonos Principes voto excipere qualescunque tolerare Tacit 4. Histor Marcellus about Vespasian We ought to desire good Princes but to submit to whatever they be So (r) Quomodo sterilitatem aut nimios imbres caetera naturae mala ita luxum vel avaritiam dominantium tolerare Ibid. Cerealis told his Soldiers As we endure Barrenness and orecharging Rains and the rest of the Evils of Nature so ought we to undergo even the Luxury and Covetousness of Princes For Vices will be while there are Men but those are not continual but by the intervening of good Princes are recompenced Mr. (s) Civil Wars p. 51. Hobs truly Observes That the vertue of a Subject is comprehended wholly in Obedience to the Laws of the Common-wealth for to obey the Law is Justice and Equity which is the Law of Nature and to obey the Laws is Prudence in a Subject for without such Obedience the Commonwealth which is every Subjects Safety and Protection cannot subsist Indeed Mischief more often happens to any Kingdom from the waywardness or factious Disobedience of Subjects than from the ill Government of Princes Therefore (t) Plut. Canvio 7. Sapient Cleobulus rightly observed That the Republic is well composed where the Subjects fear Infamy more than the Laws for then it may be presumed they are Obedient out of a Principle of Vertue rather than Awe Plutarch (u) De Institutione Principis saith That City or Kingdom is famous where every one performeth his Office If the Prince do what becomes him the Magistrates exercise their Places and the Commonalty obey their Magistrates and the Laws This is the Blessed Harmony wherein this sublunary Government imitates the great Oeconomy the nearer to which every Government comes the more beautiful and stable it will be CHAP. XLII Of Faction and Sedition in the State the Causers and Causes of them IN every Body whether Natural Artificial or Political the Beauty Gracefulness and Use of it consists in its Symmetry Firmness and Union The Fragments of the most excellent Statue the Rubbish of the most magnificent Pallaces the crumbled Dust and Atoms of the Beautifullest Bodies are the Objects of our Pity and Condoling even so ought to be the Discords Factions and Seditions of a Commonweal or Kingdom for by these the whole Compages of the Fabrick is dissolved It was the Consideration of this that made the (a) Nec privaâ—os focos nâ—c publicas leges nec libertatis jura cara babere potest quem discordie quem cades civium quem belium civile delectat Ideo ex numero hominum ejiciendum ex sinibus humanae naturae extermin â—ndum puto Orator say That those who delight in Discords in the slaughter of their Fellow-Citizens and a Civil War neither think their private Hearths i. e. their Properties the publick Laws or the Rights of Liberty dear to them therefore ought they to be spewed out from the Society of rational Men and to be exterminated out of the Confines of humane Nature Faction and Sedition being a Composition of several mischievous Ingredients I shall single them out and give short Characters of them particularly that the Reader may with more ease know their Tendencies The Persons that are apt to be Seditious 1. The debauched Persons apt to be seditious are first the Debauched as Tacitus excellently observes Privatim degeneres in Publicum exitiosi nihil spei nisi per discordias Such as give themselves to Luxury degenerate from the Virtue of their Ancestors are unbridled in their Appetites live without Rule and Order have no regard to the Laws that should restrain them where nothing remains but the instrumenta vitiorum as the Curious (b) Cum raptciâ—â—mo cuique perditiâ—mo non Agri non Fanus sed sol I Insirumenta vitiorum manerent 1. Histor Historian elegantly observes of those that in Galba's time were to refund Nero's Donative Such having emancipated and withdrawn themselves from all subjection to the Laws of the Soveraign of the Universe no wonder they yield obedience to nothing but the Impetus of sensual Appetites and orderly Government curbing these makes it uneasy to them Secondly 2. Vain and light-headed Persons The vain and light Airy headed Persons are fitted to feather the Seditious Arrows that subtiler Heads do fashion these rush into Action without deliberation weary of things long used rather (c) Pro certis â—lim partis novâ— ambigua ancipitia maluâ— Tacit 11. Histor chusing for the sake of Novelty doubtful and uncertain matters than such as are the issues of stay'd Councils Lampoons Libels and Pamphlets are their chief Studies They traffique most at the Booksellers Stall they desire no acquaintance with the seriouser Books of his Shop the Play-house and Coffee-houses entertain them more than the Church or Westminster-Hall They are brittle Tools but sharply edged where they are to cut Feathers and Chaff They are not made to work upon Marble or write Laws in Tables of Stone They
if after the obtaining great Authority and Power they are sensible of parties-making against them For then self-preservation is mixed with their Ambition and that prompts them to dangerous undertakings as it did the Earl of Essex in Queen Elizabeth's time For as Dio (o) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lib. 2. Cassius notes Long and lasting Command lifts up mens Spirits and induceth them to alter Affairs So the long continued Favours of the Queen and the great Imployments under her made that unfortunate Earl impatient to see himself eclipsed and whether out of pure envy to the present Ministers of State or upon greater Designs I enquire not seek to remove at least those with a violent Hand that he thought were his Enemies in which attempt he fell worthily under the Severity of the Law which will allow no Man to expound the goodness of his Intentions when he offers force to his Prince When therefore there is any Necessity of State to make any great (p) Magna libertatis ac Principatus custodia si magna imperia diuturna esse non sinas Lib. 4. Livy's Rule is to be observed That his Authority be short for that is Safety to the Liberty of the People as well as to the Sovereignty of the Prince So the Lord Lieutenants of Ireland and elsewhere are not only removable at the King's Pleasure but they have not been used to be continued long for more durable Commands too much elevate ambitious Mens Genius's and gain them great Dependences who will be apt to own their Honour and places of Profit rather to such great Ministers than to the King himself whereby if they have a mind to make Innovations they have Opportunities and Coadjutors Sejanus is a great Example of Ambitious aspiring and most deserved violent and praecipitate Ruin Tacitus (q) Corpus illi laborem tolerans animus audax sui obtegens in alios criminator juxta aâ—â—lâ—tor superbus palam compesitus pudor intus summa apiscendi libido ejusque causa modo largitus luxus saepâ—us industria ac vigilantia haud minus noxiae quotiens parando Regno finguntur 1. Annal. gives us his Character thus That he was of Body able to endure Labour of Mind bold in his own Actions secret an Informer against others as proud as flattering in shew Modest but inwardly greedy of Aspiring for which Cause he used sometimes largesses and lavishing but more often Industry and Diligence means saith he dangerous alike when they are dissemblingly used to win a Kingdom This Sejanus poisoned Drusus by corrupting Livia his Wife and practised to destroy Agrippina and Germanicus's Children from whom he endeavoured to alienate Tiberius's Mind He requested Tiberius that he might Marry Livia widow of Drusus by which means he thought to get himself incorporated into the Royal Family and having destroyed the whole Race of Germanicus and Drusus the next Heirs of Augustus he might the easier have usurped the Empire in Tiberius's old Age whom he had got to retire to Capraea and commit the management of affairs to himself But for all these gradual and high Steps when he was almost at the top of his Ambition snatching the very Diadem having already got his Image with Tiberius's decreed by the Senate to be set about the Altars of Clemency and Friendship he was at last by Tiberius's Authority and Macro's Diligence utterly destroyed (r) Tiberium variis artibus devinxit adeo ut obscurum adversum alios sibi uni incautum intectumque assiceret Id. Though he had so overcome Tiberius by his Arts that though he was reserved to all others yet to him alone he was cautionless and uncovered For as by his cunning by which he was also circumvented saith Tacitus so by the Anger of the Gods to the affairs of Rome with equal mischiefs to it he flourished and fell So Juvenal (s) Satyra 10. tells us Sejanus ducitur unco Spectandus gaudent omnes nam qui nimios optabat honores Et nimias poscebat opes numerosa parabat Excelsae Turris tabulata unde altior esset Casus impulsae praeceps immane Ruinae Fifthly 5. The Envious The Envious are very carefully to be watched over they secretly sow the Tares that choak the Fruitful Crop of peaceable Government There are some Envies that are less prejudicial to a State as being against some Ministers of State only and not against the Government and these are so natural that in the calmest times they are practised and to prevent this it is only needful for Princes to take care of the choice of such as they commit matters of publick Administration to and that Persons envied so deport themselves as they may not deserve it Publick Envy saith the Learned (t) St. Alban 's Essays c. 1. p. 33. Chancellor is an Ostracism that Eclipseth Men when they grow too great and is a Bridle to great ones to keep them within Bounds Those above others are most subject to be envied Id. who carry the greatness of their Fortunes in an insolent proud and imperious manner whereas wise Men will rather sacrifice to Envy in suffering themselves to be crossed and overborn in things that do not much concern them So the carrying greatness in a plain and open manner without Arrogance and Vain-glory doth demolish Envy Therefore the wise sort of great Persons ever bring upon the Stage somebody upon whom to derive the Envy which otherwise would fall upon themselves Persons of eminent Vertues Id. when they are advanced are less envied for their Fortune seemeth but due to them especially if they be of noble Blood being that much is not added to their Fortune so those advanced by degrees are less envied than those per saltum Those that have joined with their Honours Id. great Cares and Perils are rarely envied son Men think they earn their Honour dearly and pity them sometimes and Pity healeth Envy There fore the more sober sort of Politick Persons in their Greatness are ever bemoaning themselves quanta patintur not that they feel it so though certainly to discharge great places honourably is a vast Fatiegue but to abate the Edge of Envy as my Lord St. Albans wisely observes Unworthy Persons are most envied at first Id. whereas Persons of Worth and Merit are most envied when their Fortunes continue long for by that time though their vertue be the same yet it hath not the same Lustre for fresh Men grow up to shade it These are not the Envies that are so perilous to States for that they are terminated on particular Persons only but that Envy which is dangerous to a State is when it is great upon the Ministers of State when the (u) Dolendi modus ti mendi non item Causes of it especially are small and the Fear greater than the Feeling for that shews the Envy raised upon Design and to be general upon all or most of the Ministers and then however it
a fore-plotted Chart and fore-ordained Chain of Causes that certainly will produce their effect Nothing (r) Sapientis nihil esse vovum aut subitum ut nunquam dicat non putaram Laertius lib. 6. c. 1. can happen to him new or sudden or that he is not provided for so that he is free from the imperfection of those that being surprised have no excuse but that they had not thought Seneca saith Nothing living is so morose as man none to be treated with greater Arts and Xenophon (s) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Cyropaed lib. 1. tells us It is easier to command all Creatures else than man Therefore prudent and provident circumspection is more necessary for Princes than for all conditions of men besides This it is that makes them confident and boldly to undertake any Action when the design is plotted out before and all Circumstances measured by Scale and Ballance For as Thucydides (t) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lib. 1. observes When with a negligent confidence any matter is proposed in the performance it totters of fails Therefore Herodotus (u) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 A Prince's Political Capacity rightly describes a provident Person That he is upon that account the best if in deliberating he prolong time and be fearful of what may happen but in Action be confident As to a Prince's Political Capacity it is a Theme too bulky for this Treatise it consists of all the Wisdom Forecast Circumspection Adroitness and Dexterity a Prince can use not only to obtain a repute of Wisdom but also to govern his People in difficult times with such Art as they may feel they are brought into a state of Tranquillity when they were wholly despairing of arriving at it Every ordinary Pilot can steer the Ship in an open Sea and fresh Gale it is Tempests Quick-sands and Rocks that require Skill King James the First called it King-craft It is indeed the Royalest of all Arts and they are the happiest Princes who with a good Conscience can best use it All the observations through this whole Treatise are but an illustration of this Political Skill which though collected by a weak Judgment yet being the observations of Wise and Learned Men may I hope not want their use In those dextrous Hits his late Majesty of Glorious Memory was very fortunate in the Transactions with some of his Parliaments and stemming those Troubles too many endeavoured to involve his Reign with In which none doubts but his present Majesty who was particeps Curarum had a great Stroke when every Period in those turbulent times were so ordered that a Civil War was prevented so that we now reap the Benefit of them in enjoying a Blessed Calm which we hope and pray for it may continue after so threatning a Storm Another primary Prevention of Sedition is for a Prince to be Wealthy A Prince's Wealth Riches (w) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Coâ—icus Vetus are not unelegantly called the Life and Blood of Mortals when a private Man is possessed of them we observe how many he obligeth what Respect is paid him how easily he accomplisheth any thing he undertakes â— How much more therefore must it be advantageous to a Prince Obedience is not more generally paid to Shrines than to rich Coffers Te columus Regina pecunia Thousands of Hands are set on Work thousands of contriving Heads consult the best for the Prince's affairs Millions of Weapons are fitted for his use who hath a full Exchequer Fleets are equipped (x) Quisquis hâ—bet nummos secura navigat aura Fortunamque suo temperat arbitrio Petronius and scour the Ocean defending a Prince's Territories and carrying his Victorious Ensigns into remotest Lands when their Admiral is ballasted with Silver When all Engins of Battery fail the strongest City may be reduced by an Ass laden with Gold The (y) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 2. Polit. c. 7. Philosopher tells us It is not only necessary to have Wealth according to Phaleus's Constitution suitable to the Extent of the Command but also for the Uses abroad to defend the Country against the next Neighbours and Strangers Above all other means to prevent and suppress Sedition The necessity of a Standing Force the keeping up a sufficient Force is the securest and most efficacious means for thereby the Person and the Government of the Prince are surely defended Therefore Dio (z) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Li. 42. Cassius saith There are two things that maintain keep and encrease any Government viz. Military Force and Riches So (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. lib. 2. c. 7. Aristotle tells us That all forms of Government are so to be ordered that they may have sufficient Warlike Force Therefore the keeping in good Discipline a competent Force and having good Guards are most necessary for a Prince So that I think it was but a part of Tiberius's Art of Dissimulation when Togonius moved That so often as he came into the Senate twenty Senators armed should be appointed for his Guard and he made reply (b) Neque sibi vitam tauti ut armis tegenda foâ—eâ— 6. Annal. That his Life was not of that worth that it should be sheltered or defended with Arms. Sloth never preserves (c) Non ignavia magna Imperia contineri sed virorum armorumque faciendum certamen Si foris bostem non habet domi inveniet great Empires but Arms and Men of Valour for it is a certain Rule That in all Countries where Enemies are wanting abroad Peace Riches and the Factions that they produce without a Competent Militia will endanger Civil Wars at home Therefore a Prince must always keep subsidiary Forces to prevent such Mischiefs for at one time or other Seditious Men will be troubling the State and such times may happen (d) Is habirus animorum suit ut pessimum facinus auderent pauci plures vellent omnes paterentur 1. Histor as Tacitus describes in Otho's Insurrection against Galba That such was the disposition of their Minds that some few durst commit the greatest Wickedness more willed it and the most or all did quietly suffer it whereas by the readiness of standing Forces the Prince may top the Poppy Heads and over-power Insurrections at their first Peeping and so terrify all the rest that they may keep their Huts and Cabins There is more need for a Prince to have a well disciplined competent Force for that new raised Men are not to be relied upon Besides (e) Tumultuariâ—e Belgarum Cobortes Paganorum lixarumque ignava sed procax ante periculum manus Subito delectu suppletâ— Legiones augebantur 4. Hist many other Proofs of this we may find one memorable instance in Tacitus who tells us That Herennius having in his Camp certain tumultuary cohorts of the Belgians and a great number of Peasants and followers of the Camp brave Men saith he before the danger appears but in danger pitiful
The Advantage of Hereditary Succession in Private Families Aristotle's Opinion Philosopher dividing Kingly Government into four kinds as I have before instanced allows all to be Haereditary except the Aesymnaetian which was Elective and since in many places he affirms Kingdoms to be more durable than Commonwealths we may conclude that the fundamental cause of that duration is the Lineal Succession We experience in private Families where a long Series of Ancestors have transmitted Inheritances to Posterity how by the settledness and encrease of their Estates their alliances and the Employments they have had in their respective Ages they have acquired Honour Renown Interest and Stability that not only a greater Respect is payed to them than to others of a later Rise but they are thereby enabled upon many accounts to manage publick or private affairs with more sure success and repute than those than have not acquired such a nodosam Aeternitatem (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 De Repub. l. 3. c. 11. Aristotle makes that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or natural Love of Parents to their Children to be one reason of the Succession of Sons to Fathers in their Kingdoms thence he makes it improbable that they who have obtained the Soveraignty should not deliver it to their Children because it would discover a Vertue beyond the ordinary Elevation of humane Nature to prefer the Benefit and good of the People by leaving them the Liberty of chusing upon every avoidance the most worthy if such a Prince's Son appeared not so rather than to establish the Principality in their own Family (c) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 pâ—ly 〈◊〉 lib. 6. p. 455. D. Edit Wickl 1509. Several Reasons why Succession is to be preferr'd before Election Polybius speaking of Kings being most eminent for Wisdom Polybius his Opinion Justice and Valour whereby they drew the People to reverence them and consequently to submit themselves to their Conduct and Command saith That the Son having his education under such a vertuous wise Father whereby he had been present with him when affairs of the greatest Importance had been debated in common presumption was judged to be better capacitated to govern than any of a strange Family and so none would envy him his dignity but all readilier judged him the fittest to succeed And there is good reason to consider the cause of it for Government is an Art not easily attained to and by the unskilfullness in the proper Rules and Maxims the wrong Applications the Ignorance in pursuing the right Methods and chusing fit Instruments the Factious and Populace get advantages to make unfortunate times Therefore those Monarchs who from their Infancies are trained up and accustomed to Instructions in the Rudiments of Government as they grow up must more readily comprehend them must attain the better understanding of the great affairs and secret reasons of Stâ—â—â— be more quick apprehensive and sagacious in perceiving what is conducive to the common good and what not and so more ready in all publick Dispatches than such who have not been educated with all these Advantages Besides Governours at first must be to seek in understanding the nature of great Affairs so that one may as well expect (c) Dr. Nalson's Common Interest p. 113. a Man taken from the Plough should be able to Conn a Ship and carry her an East-India Voyage as that a Person though of the greatest natural and acquired Parts should at first be fit to Pilot the Government or skilful and dexterous in the steerage of the important affairs of a publick State and as in Republicks it falls out by that time he hath arrived at a competent Skill he must resign his Place and Power to others as raw and unexperienced as he was Whereas Succession in Monarchy doth effectually prevent this Inconvenience and which is of great moment it gives them an Interest and desire of designing well for the publick good safety and security of the People and the opportunity of finishing whatever is well begun For though it have happened by the Succession of a weak or vitious Prince that damage and infelicity have befallen the People yet it is very rare in History that two such succeed one another So we find in this Kingdom that Ed. 1. and Ed. 3. brought as great Honour and Renown to their Countries as their Fathers had Misfortunes and even in such Princes Reigns the Calamities that have befallen their Kingdoms have rather sprung from the Potency of Factions that took the advantage by the weakness of the Prince to bring him to Contempt that they might obtain the managery of affairs than from other Causes For even under such unfortunate Princes if it were not for factious Disturbances the Laws and good Order might during their Reigns conserve their Kingdoms in Peace Whereas in Kingdoms that are Elective The Inconveniences that happen where Right Succession is not observed Competitors and Candidates cause not only great Disturbances and Mischiefs at the Instant as we have infinite Examples when the Roman Emperors were chosen by the Factions of the Senate or Army as also in Germany before the expedient of chusing a King of the Romans and in the Miseries that have befallen Poland but Aemulations and Animosities have been continued for Ages among the prime Nobility and thence it is that the (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lib. 5. Polit. c. 10. Giphanii Comment Philosopher so long since hath ascribed it one of the Principal Causes of the Destruction of a Kingdom when there is Discord in the Royal Family or as his Interpreter saith among the participes Regni as Brethren and Kindred of the Royal Family as (e) In vita Cleomenis Aegidis Plutarch tells us in the Kingdom of Sparta and as Justin gives us an account of the slaughter of Brethren and Kinsmen in the Kingdom of Syria and as it occasioned the Destruction of the flourishing Kingdom of Egypt by the Competition betwixt Ptolomy and Cleopatra and as our Ancestors sadly experienced in the Civil Wars betwixt the Houses of York and Lancaâ—â—â— and France in the Faction of Orleance and Burgundy and of later Date in the Kingdom of Hungary betwixt King John and the Emperor Ferdinand If therefore such Calamities befal Countries where Factions ruine their Peace how much more shall we judge the miserable Confusions will be when any shall challenge a Power to make a Breach in the Royal Chain of Succession especially when we find even at Rome upon the Election of the Pope by custom the People plunder the Pallace of the Cardinal who is elected Pope and since that outrage is committed where such an one is chosen as is owned by so great a part of Europe to be Christ's Vicar we are not to wonder that at the Death of the Ottoman Heir the Janizaries and Soldiery rifle and plunder Jews and Christians and cease not to commit all manner of Outrages till the new Grand Signior by his
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
intended to invade the Subjects Liberties but if they allowed the Writ the delicious Power of Imprisoning such as they had a Pique to was utterly lost and all Persons referred to the ordinary Courts of Justice or upon their failure to the House of Lords Sir William Jones against any ones Release by Habeas Corpus if they were imprisoned by the House of Commons the Supreme Tribunal of England Sir William Jones insisted much upon the Power of the House and that they did not intend by that Act to bind themselves which yet must bind the King though it might as well be alledged That he did not intend to bind himself by it However Sir William persisted urging See Debates of the House p. 217. That whatever Reasons may be given for discharging such as are not committed for Breach of Privilege if grounded on the Act for the Habeas Corpus will hold as strong for discharging of Persons for Breach of Privilege and so consequently deprive the House of all its Power and Dignity and so make it insignificant and said That was so plain and obvious that all the Judges ought to take notice of it and so judged it below the House to make any Resolution therein but rather to leave the Judges to do otherwise at their peril and let the Debate fall without any Question But Baron Weston had the Courage to grant the Habeas Corpus Baron Weston grants the Habeas Corpus as rather willing to expose himself to the Displeasure of the House than deny or delay Justice contrary to his Oath I could not omit this remarkable Passage as a Specimen of the Arbitrariness of the Leading Party in that House Brief Register part 4. p. 846. and now shall proceed to Mr. Prynne's Remarks upon the Proceedings of the long House of Commons He observes Privilegia omnino amittere meretur qui sibi abutitur concessa penestate Ejus est interpretari cujus concedere Summa Rosella Privilegium 3. That Privileges may be lost by the abuse of the Power and that whatever Privilege the House hath is from the King's Grant or Toleration Therefore according to the Canonists Rule If the Privilege granted be expressed in general dubious or obscure Words then it is in the power of him to interpret who hath the power to grant Now the Petition of the Speaker is That the Commons in this Parliament may and shall have all their Ancient and Just Privileges allowed them Therefore the King Nemini liceat Chartas Regias nisi ipsis Regibus judicare Placita Parl. 18 E. 1. num 19. p. 20. being the sole Granter of these Privileges must be the only proper Interpreter and Judge of them as he is of all his other Charters of Privileges Liberties Franchises and Acts of Parliament themselves after his Regal Assent thereto not the Commons or Persons to whom they are granted and that both in and out of Parliament by Advice of his Nobles or Judges of the Common-Law Therefore he saith first How the Breach of Privilege to be punished according to Mr. Prynne See the Authority Brief Regist part 2. p. 847. That if the Commons by Petition to the King and Lords in Parliament complain of the Breach of their ancient Privileges and Liberties as they ever did in the Cases of Lark Thorp Hyde Clerk Atwyll and others the King by Advice of his Lords in Parliament assisted with his Judges hath been and as he humbly conceives is the sole proper Judge of them and their violations not the Commons who being Parties Prosecutors and Complainants are no legal indifferent Judges in their own or Menial Servants cases if they will avoid partiality which is the reason the Law allows Challenges to Jurors in Civil and Criminal causes Therefore he observes Ibid. p. 1206. that the House of Commons taking Informations without Oath may be easilier abused by misinformation and sometimes thereby are put upon over hasty Votes which upon finding out evil Combinations they are forced to retract Secondly The Chancellor or Lord Keeper to grant the Writ If the complaint of the breach of Privilege be made in the Commons House and thereupon an Habeas Corpus Writ of Privilege or Supersedeas prayed under the great Seal for the Members or menial Servants release whose Privilege is infringed the Lord Chancellor or Keeper of the great Seal representing the Kings person in Chancery the Court for relief in cases of Privilege is the properest Judge and Examiner of the claimed Privilege and its violations upon Oath and other sufficient Evidence assisted by all the Kings Judges in cases of difficulty who thereupon will grant or deny the Writs Thirdly The Judges of the Courts to which the Writ is directed to judge of the validity of the Privilege When these Writs of Privilege Supersedeas or Habeas Corpus are granted to any Member or menial Servants and directed to any of the Kings Courts to enlarge their restrained Persons or stay any Arrests Process or Judgments against them the Kings own Judges in his respective Courts to which they are directed are then the proper Judges of the Privileges of Parliament and of their breaches suggested in these Writs who may examine not only all matters of Law or Fact comprised in them which are Traversable but likewise adjudge allow or disallow the very Privilege it self if no real ancient Parliamentary Privilege allowed by the Laws and Customs of the Realm How far he is in the right I will not undertake to judge but I remember somewhere he wisheth an Act of Parliament to pass to adjust these matters which possibly would prevent many of those chargeable attendances about false Returns and save much expence of time in the discussing of them and enable the Subjects to pay a right and due obedience to them SECT 12. Concerning the Royal Assent to Bills I Have treated so much of this elsewhere as to the sole Power in the King the ancient Custom of Sealing the Acts with the Kings Seal and of some of the Prelates and Nobles as Witnesses of their Assents that I shall only now speak as to the usual formality of passing the Bills into Acts by the Kings last Act. See also his Memorials For Mr. Hackwell hath given a full account of the manner how Statutes are enacted in Parliament by passing of Bills to which Book I refer the curious Reader that would understand the order that is used in the debating and passing of them When Bills are passed by both Houses upon three several Readings in either House Hackwell of Passing of Bills p. 179. ad 182. they ought for their last approbation to have the Royal Assent whereby every Statute is as Mr. Hackwell observes like Silver seven times tryed The Royal Assent is usually deferred to the last day of the Session and because some have been of opinion that the passing of Bills The Royal Assent determines not the Session
Preservatives and Antidotes against the Poison and Infection of Faction and Sedition are a Prince's innate Virtue his Prudence Justice Providence Political Capacity Wealth Militia Fortunateness Fame and the harmony betwixt him and his Great Councils of which in order As to a Prince's Genuine Virtues A Prince's Vertue they are many and where they meet in a Constellation they out-shine the Jewels of the Crown The Majesty and Awfulness of these commands sometimes where Armies cannot they win upon all Nothing (a) Nihil virtute amabilior quam qui adeptus est ubicunque erit gentium a nobis diligetur Cicero l. 1. de Natura Deorum is more amiable nothing more universally loved and honoured than Virtue even the same of it when the Person is unknown gains an applause how much more must it be revered in a Crowned head Laws do not preserve all things saith (b) Stobaeus Serm. 1. Antisthenes but the Rule of Virtue teacheth every where what is honest and unbecoming So Epictetus compares a Soul throughly imbued with Virtue to a Spring of Water which is always pure sweet plentiful and endued with no evil quality Therefore (c) Plutarc in Lacon Charilaeus being asked Which was the best Common-weal answered That wherein many Citizens strive who shall excel in Virtue without Sedition As in the Opal the colour of several precious Stones are found the smaller Fire of the Carbuncle the shining Purple of the Amethyst the green Sea of the Smaragd so in a truly Virtuous Prince all the Sunbeams of Light Warmth Beauty and Celestial Influence for his Peoples cherishing comfort Glory and Prosperity are contained So the (d) Intaminatis fulget honoribus Nec sumit nec ponit secures Arbitrio popularis aurae Horat. Carm. Lib. 5. Od. 2. Poet tells us That it shines with unsullied Honours neither assuming or laying down the Ensigns of Soveraignty at the suffrage of the Populace having a firmer Basis than the Fleeting Bubbles of their Breath Pliny (e) Discimus experimento sidissimam esse custodiam Prineipis ipsius innocentiam Panaegyr tells Trajan That we learn by experience That a Prince's own Innocence is his faithfullest Guard By this word I understand not only his gentleness in not oppressing his Subjects but the whole complex of Virtue whereby he is guilty of no enormous Vices but hath the Soveraignty over his own passions as well as over his Subjects As to a Prince's Prudence A Prince's Prudence I have elsewhere spoken at large and shall now add upon so copious a Subject some gleanings out of good Authors In these things saith (f) Praeterita cogita praesentia ordina futura provide Senec. de Beneficâ—s Seneca Prudence is best discovered when by-past times are collated by observing the Annals and Histories of former Ages by ordering present Affairs according to the best Reason and providently forecasting future effects of present Counsels Tanquam oculus mentis undiquaque lucidissimus So a Prince will know how former Seditions have sprung and what hath been the cure of them how parallel the present are to by-past and how for the future to provide That the Roots and Fangs of them be digged up for foregon (g) Facta praeterita certa documenta dant futuris deeds give certain instructions for the future former miscarriages teach such a Prince sufficient caution Other Virtuous Qualifications may be common to the Soveraign and Subject but Prudence is his peculiar Province therefore (h) Stobaeus de Prudentia Jamblichus calleth this The very Prince of Virtues So when (i) Plut. in Lacon Archidamus was commended that he had overcome the Arcadians in Battel he answered That it had been much better if he had overcome them by Prudence So Antisthenes (k) Tutissimum murum esse prudentiam nec collabitur nec proditur Machinis aut suffossionibus aut vallorum proditione capiuntur prudentis autem decreta sunt inexpugnabilia Laert. lib. 6. c. 1. saith Prudence is the safest Wall it neither falls down or is betray'd all Walls Bulwarks or other defences by Batteries Mines or Treacheries may be taken but the determination of a Prudent Prince is inexpugnable The Counsels and Actions of a Prince endowed with this Virtue are never like to have the misfortune of those (l) Vtque evenit in consiliis infoelicibus optima viderentur quorum tempus essugerit Tacitus 1. Hist A Prince's Justice which are never known to be best till they have passed the season of being put in execution Justice in a Prince's Government and Faith in the Sacred observance of their Royal Words are not to be reckoned among the lesser Stars but are the two great Luminaries without (m) Remota Justitia quid sunt Regna nisi magna latrocinia Aug. 4. de Civ Dei which there would be nothing but Gloominess Tempests and Showres yet though Justice be that Sun Faith is not to be reputed that Moon that is changeable as to us by the interposition of the Earth but as it is in it self always enlightened by the Sun Faith is the companion of Justice and that (n) Justitiae consors tacitumque in pectore Numen Silius Ital. secret Divinity lodging in a Prince's Breast which must needs be reverenced of all Acts of State and Power may alter according to emergencies but a Prince that makes the Just Laws and his Promises the Standard of his Actions is surely possessed with that Divine (o) Sanctissimum humani generis bonum Senec. Epist Wisdom which every where is reputed Sacred for his Subjects have thereby as sure a foundation to rely upon as his Laws for they may be mis-interpreted by corrupt Judges but nothing can vitiate corrupt or extinguish that vestal Fire which burns in the Breast of a Prince who is the Defender of his Laws and his Faith Therefore Cato Censor tells us That the Romans placed Faith next to Jupiter in the Capitol for that they both are the defenders of Mankind nothing so efficaciously preserving Government in its force stability and titeness as Justice and Faith As to a Prince's Providence it is a sure Rampire A Prince's Providence for who will rebel against him whom they judge to do all things circumspectly and with cunctation The opinion conceived of such a Prince (p) In animos hominum illabitur admirationis praetextu velata Valer. lib. 2. c. 1. slides into the Souls of Men shaded with admiration and the Subjects soon fall from suspecting to admiring his Conduct for such a Prince is in his own nature wary and better pleased with cautelous (q) Cunctator natura cui cauta consilia cum ratione quam foelicia ex casu placent Counsel with reason than happy ones by chance as the great Historian observes A Provident Prince passeth vigorously from the beginning of his Affairs to the end and disposeth all things with easy order having by his forecast removed all difficulties by
Cowards as soon as Julius Civilis's Army could advance they were soon defeated and he ascribes the cause of it to the hasty choice of Men to supply the Legions Such new (f) Ignavissimus quisque in periculo minimum ausurus nimii verbis linguae feroces Id. 1. Histor Men make a glittering show at a Muster and will brag more than any of their Courage but they will sooner unsheath their Tongues than their Swords the Slothfullest and those that dare do least with their Hands being forwardest to boast of their Exploits (g) Pro Muraena Cicero comparing the Soldiery and the Gownmen gives Preference to the Military Sagum For he saith All the Lawyers Study Industry and Commendation of Pleading is owing to the safe-guard of Warlike Vertue the one consults for and defends his Client the other is exercised in the defence of the City and propagating the Limits of the Empire and the arts of the long Robe are silenced upon the very suspicion of Tumults Vegetius (h) Nihil neque sirmius neque felicius neque laudabilius est Republica in qua abundant milites Plurimum enim terroris armorum splendor importat 2. de Re Milit tells us That nothing is more firm more happy or more commendable than that Commonwealth which abounds with Soldiers the brightness of their Arms striking Terror into their Enemies whereas their rustiness tempts them to be assaulted as being unprepared and unprovided A standing Force proportionable to the occasion and no greater is as a Nursery to educate the growing Youth in Feats of Arms to inure them to Labour Watchfullness Discipline and Courage for few Princes live their whole time without some occasion of War either at home or abroad In this Kingdom the standing Force is not so great as to be oppressive or formidable to the People and the Militia being a Portion of the People themselves armed by the King's Authority can never be repined at by such as are Lovers of their King and Countries Safety To have them kept in good Discipline by training twice a Year more earefully and industriously would be for the safety and ornament of the Government Only it is requisite that great Care be taken that the Soldiery be not only skillfully trained but be exquisitely (i) St. Alban 's Essays obedient to their Prince and the Officers be well assur'd and of good repute not in the least inclinable to Faction and Sedition holding also good Correspondence with other great Men in the State for the most excellent Historian saith The (k) Fluxa militum sides periculum a singulis Faith of Soldiers is unstable and there wants not danger from them single much more if they should make any formidable Conjunction There are infinite Examples how the standing Armies have altered the Government as in the Roman Empire was most usual the Armies setting up one or other mostly after Nero's death so that we find scarce a Succession of three in many Ages As to a Prince's fortunateness A Prince's Fortunateness it is an happy thing and much for his Security that his Subjects have an Opinion of it or as we ought to speak that he is the care of Heaven and that Divine Providence is his Tutelar Therefore the great Orator (l) Ad amplitudinem gloriam ad res magnas gerendas divinitus adjuncta fortuna dormientibus dii omnia consiciunt in sinum iis de coelo victoria devolat Pro Leg. Manl. Sed â—e Nos facimus fortuna deam coeloque locamus saith That to greatness and Glory and the atchieving great things Fortune divinely sent is to be joined that even to them sleeping and waking the Deity is Beneficial and Victory from Heaven descends into their Lap. (m) Plut. de Fortuna Rom. Ancus Martius first built a Temple to Fortune in a mans habit and Tullus the King ascribed all his actions to the guidance of Fortune So Pliny (n) Lib. 36. c. 5. tells us The Image of good Fortune made by Praxitiles was kept in the Capitol By all which we may note how advantagious they thought good luck or fortune to be for the preservation of the Government and lest it should forsake them according to the opinion of that Age that the Deities lodged in the Statues as the Souls in the Bodies they chained the Image that it might not remove from them That is only reputed good Fortune among the common sort when Princes (o) Prosperis tuis rebus certaturi ad obsequium Fortunam adversâ—m omnes ex aequo detrect abunt Tacit. 2. Histor Lib. 1. Od. 35. affairs succeed well and according to their wishes and when they are so all strive to show obedience and when adverse fortune or evil things happen all do semblably withdraw their Service from their Prince It is of this Horace so elegantly writes under the name of Fortune Te Dacus asper â—e profugi Scythae Urbesque gentes Latium ferox Regumque matres Barbarorum Purpurei metuunt Tyranni To this fortunateness as near akin Of a Prince's Fame I subjoyn the fame and good reputation of a Prince It fans away the Pestilential air of Factions and Seditions keeps young even the old age of Princes So Tacitus (p) Magis sama quam vi stare res suas 6. Annal. saith of Tiberius when he grew old and was retired to Capraea to indulge himself and had contracted much hatred His affairs rather subsisted by fame than other force which if it were true of such a Prince how much more may it be advantagious to one that hath acquired a good fame upon the constant practices of laudable and Princely Actions Therefore the same great (q) Caeteris mortalium in eo stare consilia quid sibi conducere arbitrentur Principum diversam esse sortem quibus praecipuâ— rerum ad famam dirigenda 4. Annal. Historian saith That the Counsels of other Mortals consists in doing what they may judge conducible to their private Affairs but the lot of Princes is different for they must direct their principal actions to attain fame which must necessarily be that which is commendable and of value Yet there lies some difficulty in the make of the speaking Trumpet of a Prince's fame for sometimes it must be fitted to vulgar conception for they mostly misinterpret it as (r) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lib. 3. Thucydides well notes That modesty with them carries a shew of Idleness or Cowardise the circumspect and provident is reputed slothful and whatever is suddainly undertaken and hasty is counted vigorous and manly Therefore a Prince that expects a good fame and report must sometimes anticipate expectation in his proceedings and by surprise gain a repute of great sagacity and in some seasons and actions accommodate himself to the inclinations of his People and gratifie them in their desires So Queen Elizabeth got more money by remitting one Subsidy thereby gaining the
his Uncles Death was declared Tutor and Governour without any remission or being restored and if his Cousin King James had died without Issue he had been declared the true Successour of the Crown We have a memorable Instance of this in H. 7. who when he came to the Crown called his Parliament and the Judges having determined that those Members of the House that had been outlawed by the Parliament in Richard the Third's time and been declared Rebels should absent themselves till a Bill were brought in for their restoring It was moved among the Judges what should be done about the King who had been condemned and declared Traytor c. and it was by the unanimous consent of all the Judges saith the learned (q) St. Alban's Hist H. 7. p. 29. Chancellor declared That the Crown removed all the obstructions in the Blood which might in any manner impede its descent and from that time the King took the Crown Coronam ipsam omnes sanguinis oppilationes quae descensum Coronae ullatenus impediunt deobstruere Vt Regi opera Parliamentaria non fuisset opus the fountain of his Blood was purged and all the Corruptions and Impurities taken away so that he had no need of any Parliamentary help to supply him Thirdly The Consideration of the Oaths which the Subjects are bound to take and observe gives some further Proof of the Obligation of all the Subjects to maintain this lineal Succession The Oaths of Allegiance and Supremacy bind the Subjects to bear Faith and true Allegiance to the King's Highness The Oaths of Allegiance and Supremacy against altering Succession his Heirs and lawful Successors and that to their Power they shall assist and defend all Jurisdictions Priviledges Preheminences and Authorities granted to the King's Highness his Heirs and lawful Successors or united and annexed to the Imperial Crown of this Realm and of those Priviledges c. I think none will deny but that Hereditary Succession is one of the principal Prerogatives intended by those Oaths We are not in these only sworn to His Majesty but his Lawful Successors which word Lawful is inserted to cut off the Pretences of such as should not succeed by Law and the insolent Arbitrariness of such as being but Subjects themselves think they may chuse their King These being promissory Oaths as well to the Successors when their Right shall fall as to the present King they have every of them in their respective degrees and orders and indispensible Right confirmed to them by this Oath So that the Predecessor hath no legal right to deprive his Successor as hereafter I shall clear nor to remit the Peoples Obligation to him as lawful Heir and Successor (r) Address part 3. p. 64. much less can the two Houses do it for they are all within the Obligation of this Oath and it is unreasonable that Men should dispence with their own promissory Oaths to others for this would destroy all Faith and Confidence amongst Men and pull up the very roots of Society and Government Whereas some object out of my Lord (s) Coke on Littleton p. 8. Coke Objection That none is Heir before the death of his Ancestor but Heir apparent It is to be considered Answered that it must be the Heir presumptive or apparent that is here understood otherwise the inserting the word Heir were superfluous if by the Oaths were not intended he that is next Heir upon the Death of the King and if any Person think to evade it by affirming that if the Parliament declare any Person to be no next Heir he ceaseth to be so as also not to be lawful Successor because by such an Act he is outlawed Let such Persons consider that this is neither better nor worse than palpable Aequivocation For we swear in the common Sence of the words and so by Heir we understand such as by proximity of Blood have greatest right to succeed in the Inheritance It may be farther considered that the Lord Chancellor Treasurer and Judges (t) See 18 E. 3. all the great Officers of State the Privy-Council c. are all sworn to defend the Rights of the Crown and that they shall not concurr or assent to any thing which may turn to the King in Damage or Dis-herison How then can any of these much less the Judges who are to expound and interpret the Law consent without palpable violation of their Oaths to the changing of the Essence of the Monarchy I shall now endeavour to prove Acts of Parliament cannot alter Lineal Succession that no Parliament by a compleat Act can legally alter the Succession in an Hereditary Monarchy For first all (u) Jus Reg. p. 153. Kings and Parliaments are subordinate to the Laws of God the Laws of Nature and Nations So that unless we give the Inferior Power and Jurisdiction over the Superior no Act of Parliament can be binding to overturn what those three Laws have have established and I hope I have proved under all these Heads in the preceding part of this discourse that the right of Succession is founded on them As to the Law of God it is clear not only from the general dictates of Religion but 28 H. 8. c. 7. the Parliament uses these words For no Man can dispence with God's Laws which we also affirm and think As to the Laws of Nature they are acknowledged to be immutable from the Principles of Reason So the (w) Sect. sed naturale Institut de Jure naturali Law it self confesseth Naturalia quaedam Jura quae apud omnes gentes observantur divina quadam providentia constituta semper firma atque immutabilia permanent Certain natural Laws which are observed by all Nations and such is that of Primogeniture by Divine Providence being constituted remain always firm and immutable So when the Law declares that a supreme Prince is free from the obligation of Laws solutus Legibus yet Lawyers (x) Voet. de Statutis sect 5. c. 1 Accursius in L. Princeps F. de Leg. Clementina pasturalis de re Judicata still acknowledge that this does not exclude these Supream Powers from being liable to the Laws of God Nature and Nations as is evident by all that treat of that Point Nor can the Law of Nations be overturned by private municipal Laws so all Statutes to the prejudice of Ambassadors who are secured by the Law of Nations are confessed by all to be null and the highest Power whatsoever cannot take off the denouncing of a War before a War can be lawful Besides secondly a Parliament cannot do more than (y) Jus Reg. p. 154. any absolute Monarch in his own Kingdom for they when joyned are but in place of the supreme Power sitting in Judgment We must not think our Parliaments have an unlimited Power de jure so as they may make a forfeiture or take away Life without a cause or pass Sentence against the Subjects
without citing or hearing them For if they had such Power we should be the greatest Slaves and live under the most arbitrary Government imaginable Therefore an absolute Prince cannot in an Hereditary Kingdom where the Successor is to succeed Jure Regni (z) Nulla clausula Successori Jus auferri potest modo succedat ille Jure Regni Aristaeus c. 7. num 5. prejudge the Successors right of Succession for the same right the present King hath to the Possession the next of Blood hath to the Succession Therefore Hottoman Lib. 2. de Regno Galliae affirms That ea quae Jure Regni primogenito competunt ne Testamento quidem Patris adimi possunt That in the absolute Monarchy of France The Father cannot by his last Will deprive the First-born of those things which belong to him by Royal right So when the King of France designed to break the Salique Law of Succession as in the Reign of Charles the Fifth it was found impracticable by the three States So when Pyrrhus would have preferred his younger Son to the Crown (a) Pausanias lib. 1. the Epirots following the Law of Nations and then own refused him So Anno 1649. when Amurat the Grand Signior left the Empire to Han the Tartarian passing his Brother Ibrahim the whole Officers of State did unanimously cancel the Testament and restored Ibrahim the true Heir though no other than a Fool. So if Kings could have inverted their Succession Saint Lewis had preferred his own Third Son to Lewis his Eldest and Alphonsus King of Leon in Spain had preferred his Daughter to Ferdinand his Eldest Son and Edward the Sixth of England had preferred and did actually prefer the Lady Jane Grey to his Sisters Mary and Elizabeth Thirdly It is undeniable in the opinion of all Lawyers That a King cannot in Law alienate his Crown but that the Deed is void nor can he in Law consent to an Act of Parliament declaring that he should be the last King For if such consents and Acts (b) Jus Regium p. 163. had been sufficient to bind Successors then weak Kings by their own simplicity and gentle Kings by the Rebellion of their Subjects or being wrought upon by the importunity of their Wives or Concubines or the mis-representation of Favourites might do great mischiefs to their People in raising up continual Factions of the miseries of which I shall speak hereafter This is owned in Subjects That the Honour and Nobility that is bestowed upon a man and his Heirs doth so necessarily descend upon those Heirs that the Father or Predecessor cannot exclude the Successor or derogate from his Right by renouncing resigning following base or mean Trades or such like For Fab. Cod. 9. tiâ— 28. say the Lawyers since he derives his Right from his old Progenitors and owes it not to his Father his Fathers Deed should not prejudge him so much more in Kings the ill consequences of such violations of Justice and Right being infinitely more destructive the Predecessor should not do any Act to prejudice his Successor For that right of blood which makes the Eldest First makes the other Second and all the Statutes that acknowledge the present Kings Prerogative acknowledge that they belong to him and his Heirs For as a Prince cannot even ex plenitudine potestatis legitimate a Bastard in prejudice of former Children though they have only but an hope of Succession much less can he bastardize or disinherit the Right Heir who is so made by God and honoured from him with the Character If therefore Kings how absolute soever cannot de jure invert the natural order of Succession there is no reason that the States of Parliament should have such a Power For by the known Laws they have no Legislative Power otherwise than by assenting to what the King does and all that their assent could do would be no more than that they and their Successors should not oppose his nomination because of their consent but that can never amount to a Power of transferring For if the States of Parliament had this Power originally in themselves to bestow why might they not reserve it for themselves and so perpetuate the Government in their own hands So Judge Jenkin asserts according to Law That no King can be named or in any time made in this Kingdom (d) Liberty of Subject p. 25. by the People Kings being before there were Parliaments and there is good reason for then the Monarchy should not be Hereditary but Elective the very Essence of Hereditary Monarchy consisting in the Right of Succession whereas if the Parliament can prefer the next save one they may prefer the last of all the Line and the same reason by which they can chuse a Successor which can only be that they have Power above him should likewise in the opinion of a very (e) Jus Regium p. 167. learned Person justify their deposing of Kings as we saw in the last Age that such reasons as of late have been urged to incapacitate the Children of King Charles the First from the hope of Succession viz. Popery and Arbitrary Government did embolden men to dethrone and murther the Father who was actual King For if it were once yielded that the Houses had a Right in themselves to take care for the Salus populi that none but such Princes should succeed who were approved of by the prevailing Faction in their body nothing but confusion would follow one Party having their Votes seconded by force one time and a quite contrary another yet all pretending the Publick Weal and so a large breach should be made by pretending to stop one dangerous Successor to the inflowing of successive Usurpers and thereby the Crown should not only by ambulatory but unstable upon every head that wore it and alwaies in danger of a bloody surprise till at last the Regalia being secured from the expectant Heir the Factious would find a way to pillage them from the present Soveraign and convert them into a Mace for an House of Commons I writ this Part with greater Enlargements in answer to the plausiblest Arguments for the Bill of Seclusion while that matter was in the hottest agitation But since there will be no need of dilating upon that Subject now that God Almighty hath so signally determined the Controversie by the peaceable settlement of his Majesty upon his Throne I shall close this Chapter with some few remarks of the miseries have been brought upon Kingdoms and especially upon this by the disjoynting the Succession So we read what dreadful (f) Jus Regium p. 166. mischiefs arose from Pelops preferring his younger Son to the Kingdom of Mycene The Miseries which Kingdoms have sustained where the Succession hath been interrupted from Oedipus commanding that Polynices his Youngest Son should reign interchangeably with the Eldest From Parisatis the Queen of Persia's preferring her Youngest Son Cyrus to her Eldest Artaxerxes From Aristodomus admitting