Commons may be unjust so that the Lords and Commons themselves may be the Judges of what is just or unjust But where a King by Oath binds his Conscience to protect just Laws it concerns him to be satisfied in his own Conscience that they be just and not by an implicite Faith or blind Obedience no man can be so proper a Judge of the Justness of Laws as he whose Soul must lie at the Stake for the Defence and Safeguard of them Besides in this very Oath the King doth swear to do equal and right Iustice and Discretion in Mercy and Truth in all His Iudgments facies fieri in omnibus judiciis tuis aequam rectam justitiam discretionem in Misericordia Veritate if we allow the King Discretion and Mercy in his Iudgments of Necessity he must judge of the Justness of the Laws Again the clause of the Oath quas vulgus elegerit doth not mention the assenting unto or granting any new Laws but of holding protecting and strengthning with all his Might the just Laws that were already in Being there were no need of Might or Strength if assenting to new Laws were there meant Some may wonder why there should be such Labouring to deny the King a negative Voice since a negative Voice is in it self so poor a thing that if a man had all the Negative Voices in the Kingdom â—…t would not make him a King nor give him Power to make one Law a negative Voice is but a â—…ivative Power that is no Power at all to do or act any thing but a Power only to hinder the Power of another Negatives are of such a malignant or destructive Nature that if they have nothing else to destroy they will when they meet destroy one another which is the reason why two Negatives make an Affirmative by destroying the Negation which did hinder the Affirmation A King with a Negative Voice only is but like a Syllogisme of pure negative Propositions which can conclude nothing It must be an Affirmative Voice that makes both a King and a Law and without it there can be no imaginable Government The reason is plain why the Kings negative Voice is so eagerly opposed for though it give the King no Power to do any thing yet it gives him a Power to hinder others though it cannot make Him a King yet it can help him to keep others from being Kings For Conclusion of this Discourse of the negative Voice of the King I shall oppose the Judgment of a Chief Iustice of England to the Opinion of him that calls himself an utter Barister of Lincolns Inn and let others judge who is the better Lawyer of the two the words are Bracton's but concern Mr. Pryn to lay them to heart Concerning the Charters and Deeds of Kings the Iustices nor private men neither ought nor can dispute nor yet if there rise a Doubt in the Kings Charter can they interpret it and in doubtful and obscure Points or if a word contain two Senses the Interpretation and Will of Our Lord the King is to be expected seeing it is his part to interpret who makes the Charter full well Mr. Pryn knows that when Bracton writ the Laws that were then made and strived for were called the Kings Charters as Magna Charta Charta de Foresta and others so that in Bracton's Judgment the King hath not only a Negative Voice to hinder but an Affirmative to make a Law which is a great deal more than Master Pryn will allow him Not only the Law-maker but also the sole Iudge of the People is the King in the Judgment of Bracton these are his words Rex non alius debet judicare si solus ad id sufficere possit the King and no other ought to judge if He alone were able Much like the words of Bracton speaketh Briton where after that he had shewed that the King is the Viceroy of God and that He hath distributed his Charge into sundry portions because He alone is not sufficient to hear all Complaints of His People then he addeth these words in the Person of the King Nous volons que nostre jurisdiction soit sur touts Iurisdictions c. We Will that Our Iurisdiction be above all the Iurisdictions of Our Realm so as in all manner of Felonies Trespasses Contracts and in all other actions Personal or Real We have Power to yield or cause to be yielded such Iudgments as do appertain without other Process wheresoever we know the right Truth as Iudges Neither was this to be taken saith Mr. Lambard to be meant of the Kings Bench where there is only an imaginary presence of His Person but it must necessarily be understood of a Iurisdiction remaining and left in the King 's Royal Body and Brest distinct from that of His Bench and other ordinary Courts because he doth immediately after severally set forth by themselves as well the authority of the Kings Bench as of the other Courts And that this was no new-made Law Mr. Lamâ—…d puts us in mind of a Saxon Law of King Edgars Nemo in lite Regem appellato c. Let no man iâ—… Suit appeal unto the King unless he cannot get Right aâ—… home but if that Right be too Heavy for him then lâ—… him go to the King to have it eased By which iâ—… may evidently appear that even so many years agâ—… there might be Appellation made to the Kings Persae whensoever the Cause should enforce it The very like Law in Effect is to be seen in the Laws of Canutus the Dane sometimes King of thâ—… Realm out of which Law Master Lambard gatheâ—… that the King Himself had a High Court of Iustia wherein it seemeth He sate in Person for the words bâ—… Let him not seek to the King and the same Court â—… the King did judge not only according to meeâ—… Right and Law but also after Equity and gooâ—… Conscience For the Close I shall end with the Suffrage â—… our late Antiquary Sir Henry Spelman in his Glossary he saith Omnis Regni Iustitia solius Regis est c. All Iustice of the Kingdom is only the King 's and Hâ—… alone if He were able should Administer it but thâ—… being impossible He is forced to delegate it to Ministers whom he bounds by the limits of the Laws the positive Laws are only about Generals in particular Cases they are sometimes too strict sometimes too remisâ—… and so oft Wrong instead of Right will be done if wâ—… stand to strict Law also Causes hard and difficult dâ—…ly arise which are comprehended in no Law-books â—… those there is a necessity of running back to the King tâ—… Fountain of Iustice and the Vicegerent of God himself who in the Commonwealth of the Iews took such Cause to His own cognisance and left to Kings not only the Example of such Iurisdiction but the Prerogative also Of Privilege of Parliament WHat need all this ado will some say to
first before the Councel of Edw. 4. after that before the President of the Requests of that King Hen. 7. and then lastly before the Councel of the said King 1 Hen. 7. In the time of Hen. 3. an Order or Provision was made by the Kings Councel and it was pleaded at the Common Law in Bar to a Writ of Dower the Plaintifs Atturney could not deny it and thereupon the Judgment was ideo sine die It seems in those days an Order of the Kings Councel was either parcell of the Common Law or above it Also we may find the Judges have had Regard that before they would resolve or give Judgment in new Cases they consulted with the Kings Privy Councel In the case of Adam Brabson who was assaulted by R. W. in the Presence of the Justices of Assise at Westminster the Judges would have the Advice of the Kings Councel for in a like Case because R. C. did strike a Juror at Westminster which passed against one of his Friends It was adjudged by all the Councel that his right hand should be cut off and his Lands and Goods forfeited to the King Green and Thorp were sent by the Judges to the Kings Councel to demand of them whether by the Stat. of 14 Edw. 3. 16. a word may be amended in a Writ and it was answered that a word may be well amended although the Stat. speaks but of a Letter or Syllable In the Case of Sir Thomas Ogthred who brought a Formedon against a poor man and his Wife they came and yielded to the Demandant which seemed suspitious to the Court whereupon Judgment was staid and Thorp said that in the like case of Giles Blacket it was spoken of in Parliament and we were commanded that when any like should come we should not go to Judgment without good Advice therefore the Judges Conclusion was Sues an counseil comment ils voilent que nous devomus faire nous volums faire autrement nient en oest case sue to the Councel and as they will have us to do we will do and otherwise not in this Case 39 Edw. 3. Thus we see the Judges themselves were guided by the Kings Councel and yet the Opinions of Judges have guided the Lords in Parliament in Point of Law All the Judges of the Realm Barons of Exchequer of the Quoif the Kings learned Councel and the Civilians Masters of Chancery are called Temporal Assistants by Sir Edw. Coke and though he deny them Voices in Parliament yet lie confesseth that by their Writ they have Power both to treat and to give Councel I cannot find that the Lords have any other Power by their Writ the Words of the Lords Writ are That you be present with Us the Prelates Great men and Peers to treat and give your Counsel The words of the Judges Writ are that you be present with Us and others of the Counsel and sometimes with Us only to treat and give your Counsel The Judges usually joyned in Committees with the Lords in all Parliaments even in Queen Eliz. Reign untill her 39th Year and then upon the 7th of November the Judges were appointed to attend the Lords And whereas the Judges have Liberty in the upper House it self upon Leave given them by the L. Keeper to cover themselves now at Committees they sit always uncovered The Power of Judges in Parliament is best understood if we consider how the judicial Power of Peers hath been exercised in matter of Judicature we may find it hath been the Practice that though the Lords in the Kings Absence give Judgment in Point of Law yet they are to be directed and regulated by the Kings Judges who are best able to give Direction in the difficult Points of the Law which ordinarily are unknown to the Lords And therefore if any Errour be committed in the Kings Bench which is the highest ordinary Court of Common Law in the Kingdom that Errour must be redressed in Parliament And the Manner is saith the Lord Chancellor Egerton If a Writ of Errour be sued in Parl. upon a Iudgment given by the Iudges in the Kings Bench the Lords of the higher House alone without the Commons are to examine the Errours The Lords are to proceed according to the Law and for their Iudgments therein they are to be informed by the Advice and Councel of the Iudges who are to inform them what the Law is and to direct them in their Iudgment for the Lords are not to follow their own Discretion or Opinion otherwise 28 Hen. 6. the Commons made Sute that W. de la Pool D. of Suffolk should be committed to Prison for many Treasons and other Crimes the Lords of the higher House were doubtful what Answer to give the Opinion of the Iudges was demanded their Opinion was that he ought not to be committed for that the Commons did not charge him with any particular Offence but with general Reports and Slanders this Opinion was allowed 31. Hen. 6. A Parliament being prorogued in the Vacation the Speaker of the House of Commons was condemned in a thousand Pounds Damages in an Action of Trespass and committed to Prison in Execution for the same when the Parliament was re-assembled the Commons made sute to the King and Lords to have their Speaker delivered The Lords demanded the Opinion of the Judges whether he might be delivered out of Prison by Privilege of Parliament upon the Judges Answer it was concluded that the Speaker should remain iâ—… Prison according to the Law notwithstanding the Privilege of Parliament and that he was Speaker which Resolution was declared to the Commons by Moyâ—… the Kings Serjeant at Law and the Commons were commanded in the Kings name by the Bishop 〈◊〉 Lincoln in the absence of the Arch-bishop of Canterbury then Chancellor to chuse another Speaker 7 Hen. 8. A Question was moved in Parliament Whether Spiritual Persons might be convented before Temporal Iudges for criminal Causes there Sir Iohn Fineux and the other Judges delivered their Opinion that they might and ought to be and their Opinion allowed and maintained by the King and Lords and Dr. Standish who before had holden the same Opinion wâ—… delivered from the Bishops I find it affirmed that in Causes which receive Determination in the House of Lords the King hath 〈◊〉 Vote at all no more than in other Courts of ministerial Iurisdiction True it is the King hath no Vote at all if we understand by Vote a Voice among others for he hath no partners with Him in giving Judgement But if by no Vote is meant he hath no Power to judge we dispoil him of his Sovereignty It is the chief Mark of Supremacy to judge in the highest Causes and last Appeals This the Children of Israel full well understood when they petitioned for a King to judge them if the dernier resoâ—… be to the Lords alone then they have the Supremacy But as Moses by chusing Elders to judge in small Causes did
Augustissimi CAROLI Secundi Dei Gratia ANGLIAE SCOTIAE FRANCIAE ET HIBERNIAE REX Bona agere mala pati Regium est Page 1 THE Free-holders GRAND INQUEST Touching Our Sovereign Lord the KING And His PARLIAMENT To which are added OBSERVATIONS UPON FORMS OF GOVERNMENT Together with Directions for Obedience to Governours in Dangerous and Doubtful Times By the Learned Sir ROBERT FILMER Knight Claudian de laudibus Stiliconis Fallitur egregio quisquis sub Principe credit Servitium Nunquam Libertas gratior extat Quà m sub Rege pio LONDON Printed in the Year MDCLXXIX The Author's PREFACE THere is a general Belief that the Parliament of England was at first an Imitation of the Assembly of the Three Estates in France therefore in order to prepare the Understanding in the Recerche we have in hand it is proper to give a brief Accompt of the mode of France in those Assemblies Scotland and Ireland being also under the Dominion of the King of England a touch of the manner of their Parliaments shall be by way of Preface 1. In France the Kings Writ goeth to the Bailiffs Seneschals or Stewards of Liberties who issue out Warrants to all such as have Fees and Lands within their Liberties and to all Towns requiring all such as have any Complaints to meet in the Principal City there to choose two or three Delegates in the name of that Province to be present at the General Assembly At the day appointed they meet at the Principal City of the Bailiwick The King 's Writ is read and every man called by name and sworn to choose honest men for the Good of the King and Commonwealth to be present at the General Assembly as Delegates faithfully to deliver their Grievances and Demands of the Province Then they choose their Delegates and swear them Next they consult what is necessary to be complained of or what is to be desired of the King and of these things they make a Catalogue or Index And because every man should freely propound his Complaint or Demands there is a Chest placed in the Town-Hall into which every man may cast his Writing After the Catalogue is made and Signed it is delivered to the Delegates to carry to the General Assembly All the Bailiwicks are divided into twelve Classes To avoid confusion and to the end there may not be too great Delay in the Assembly by the Gathering of all the Votes every Classis compiles a Catalogue or Book of the Grievances and Demands of all the Bailiwicks within that Classis then these Classes at the Aslembly compose one Book of the Grievances and Demands of the whole Kingdom This being the order of the Proceedings of the third Estate the like order is observed by the Clergy and Nobility When the three Books for the three Estates are perfected then they present them to the King by their Presidents First the President for the Clergy begins his Oration on his knees and the King commanding he stands up bare-headed and proceeds And so the next President for the Nobility doth the like But the President for the Commons begins and ends his Oration on his knees Whilst the President for the Clergy speaks the rest of that Order rise up and stand bare till they are bid by the King to sit down and be covered and so the like for the Nobility But whilst the President of the Commons speaks the rest are neither bidden to sit or be covered Thus the Grievances and Demands being delivered and left to the King and His Counsel the General Assembly of the three Estates endeth Atque ita totus actus concluditur Thus it appears the General Assembly was but an orderly way of presenting the Publick Grievances and Demands of the whole Kingdom to the consideration of the King Not much unlike the antient Usage of this Kingdom for a long time when all Laws were nothing else but the King's Answers to the Petitions presented to Him in Parliament as is apparent by very many Statutes Parliament-Rolls and the Confession of Sir Edw. Coke 2. In Scotland about twenty dayes before the Parliament begins Proclamation is made throughout the Kingdom to deliver in to the King's Clerk or Master of the Rolls all Bills to be exhibited that Sessions before a certain day then are they brought to the King and perused by Him and onely such as he allows are put into the Chancellour's hand to be propounded in Parliament and none others And if any man in Parliament speak of another matter than is allowed by the King the Chancellour tells him there is no such Bill allowed by the King When they have passed them for Laws they are presented to the King who with his Scepter put into His hand by the Chancellor ratifies them and if there be any thing the King dislikes they raze it out before 3. In Ireland the Parliament as appears by a Statute made in the Tenth year of Hen. 7. c. 4. is to be after this manner No Parliament is to be holden but at such Season as the King's Lieutenant and Councel there do first certifie the King under the Great Seal of that Land the Causes and Considerations and all such Acts as they think fit should pass in the said Parliament And such Causes and Considerations and Acts affirmed by the King and his Councel to be good and expedient for that Land And His Licence thereupon as well in affirmation of the said Causes and Acts as to summon the Parliament under His Great Seal of England had and obtained That done a Parliament to be had and holden after the Form and Effect afore rehearsed and if any Parliament be holden in that Land contrary to the Form and Provision aforesaid it is deemed void and of none Effect in Law It is provided that all such Bills as shall be offered to the Parliament there shall first be transmitted hither under the Great Seal of that Kingdom and having received Allowane and Approbation here shall be put under the Great Seal of this Kingdom and so returned thither to be preferred to the Parliament By a Statute of 3 and 4 of Philip and Mary for the expounding of Poynings Act it is ordered for the King 's Passing of the said Acts in such Form and Tenor as they should be sent into England or else for the Change of them or any part of them After this shorter Narrative of the Usage of Parliaments in our Neighbour and Fellow Kingdoms it is time the inquisitio magna of our own be offered to the Verdict or Iudgment of a moderate and intelligent Reader REFLECTIONS Concerning the ORIGINAL OF GOVERNMENT Upon I. Aristotle's Politiques II. Mr. Hobs's Leviathan III. Mr. Milton against Salmasius IV. H. Grotius De Iure Belli V. Mr. Hunton's Treatise of Monarchy VI. Another Treatise of Monarchy by a nameless Author Arist. Pol. Lib. 4. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 LONDON Printed in the Year MDCLXXIX THE ANARCHY OF A LIMITED OR MIXED Monarchy OR A
Knights Citizens and Burgesses 4. The Penalty of 40 l for Maiors or Bayliffs making untrue Returns 5. Due Election of Knights must be in the full County-Court between the Hours of Eight and Eleven before noon 6. The Party must begin his Suit within 3 Moneths after the Parliament began 7. Knights of the Shire shall be notable Knights of the County or such notable Esquires or Gentlemen born of the said Counties as shall be able to be Knights and no man to be such Knight which standeth in the Degree of a Yeoman and under The last thing I observe in the Writ for Election of Members for Parliament is That by the express words of the Writ Citizens and Burgesses for the Parliament were eligible at the County-Court as well as Knights of the Shire and that not only Free-holders but all others whosoever were present at the County-Court had Voices in such Elections see the Stat. 7. Hen. 4. cap. 15. I have the longer insisted on the Examination of the Writ being the Power and Actions of the House of Commons are principally justified by the Trust which the Free-holders commit unto them by virtue of this Writ I would not be understood to determine what Power the House of Commons doth or may exercise if the King please I confine my self only to the Power in the Writ I am not ignorant that King Hen. 7. in the Cause of the Duke of Britain and King Iames in the Business of the Palatinate asked the Councel of the House of Commons and not only the House of Commons but every Subject in particular by Duty and Allegiance is bound to givâ—… his best Advice to his Sovereign when he is thoughâ—… worthy to have his Councel asked 13. Edw. 3. nu 10. All the Merchants of England were summoned by Writ to appear at Westminster in proper Person to confer upon great business concerning the Kings Honour the Salvation of the Realâ—… and of themselves In Passages of publick Councel it is observable saith Sir Rob. Cotton that in ancient times the Kings of England did entertain the Commons with weighty Causes thereby to apt and bind them to a readiness of Charge and the Commons to shun Expence haâ—… warily avoided to give Advice 13. Edw. 3. The Lords and Commons were called to consult how the domestick Quiet may be preserved the Marches of Scotland defended and thâ—… Sea secured from Enemies The Peers and Commons having apart consulted the Commons desired Not to be charged to Councel of things of whicâ—… they had no Cognisance de queux ils n' ont pas de Cognisance 21. Edw. 3. Justice Thorp declaring to the Peeâ—… and Commons that the French War began by theiâ—… Advice the Truce after by their Assent accepted and now ended the Kings Pleasure was to havâ—… their Counsel in the Prosecution the Commons being commanded to assemble themselves and when they were agreed to give notice to the King and the Lords of the Councel after four days Consultation Humbly desire of the King that he would be advised therein by the Lords and others of more Experience than themselves in such Affairs 6. Ric. 2. The Parliament was called to consult whether the King should go in Person to rescue Gaunt or send an Army The Commons after two dayes Debate crave a Conference with the Lords and Sir Thomas Puckering their Speaker protests that Councels for War did aptly belong to the King and His Lords yet since the Commons were commanded to give their Advice they humbly wished a Voyage by the King 7. Ric. 2. At the second Session the Commons are willed to Advise upon View of Articles of Peace with the French whether War or such Amity should be accepted they modestly excuse themselves as too weak to Counsel in so weighty Causes But charged again as they did tender their Honour and the Right of the King they make their Answer giving their Opinions rather for Peace than War For fuller Manifestation of what hath been said touching the Calling Election and Power of the Commons in Parliament it is behooful to observe some Points delivered by Sir Edw. Coke in his Treatise of the Jurisdiction of Parliaments where First he fairly begins and lays his Foundation that the High Court of Parliament consisteth of the Kings Majesty sitting there and of the three Estates 1. The Lords Spiritual 2. The Lords Temporal 3. And the Commons Hence it is to be gathered that truly and properly it cannot be called the High Court of Parliament but whilst the King is sitting there in Person so that the Question now a days whether the Parliament be above the King is either false or idle false if you exclude and idle if you include the King's Person in the word Parliament The case truly put and as it is meant is whether the three Estates oâ—… which is all one the Lords and Commons assembled in Parliament be above the King and not whether the King with the three Estates be above the King It appears also that they are much mistaken who reckon the King one of the three Estates as Mr. Pryn pag. 20. and many others do for the three Estates make the Body and the King is Caput Principium finis Parliamentor as confesseth Sir Edw. Coke Secondly Sir Edw. Coke delivers That certain it is both Houses at first sate together and that it appears in Edward the Third's time the Lords and Commons satâ—… together and the Commons had no continual Speaker If he mean the Lords and Commons did sit and Vote together in one Body few there be that will believe it because the Commons never were wont to lose or forego any of their Liberties or Privileges and for them to stand now with their Hats in their hands which is no Magistratical Posture there where they were wont to sit and Vote is an alteration not imaginable to be indured by the Commons It may be in former times when the Commons had no constant Speaker they were oft and perhaps for the most part in the same Chamber and in the presence of the Lords to hear the Debates and Consulations of the Great Councel but not to sit and Vote with them for when the Commons were to Advise among themselves the Chapter-house of the Abby of Westminster was oft-times their place to meet in before they had a settled House and their meetings not being very frequent may be the reason I conceive why the name of the House of Commons is not of such great Antiquity or taken notice of but the House of Lords was only called the Parliament-House and the Treatise called Modus tenendi Parliamentum speaks of the Parliament as but of one House only The House where now the Commons sit in Westminster is but of late Use or Institution for in Edward the Sixth's dayes it was a Chappel of the Colledge of Saint Stephen and had a Dean Secular Canons and Chorists who were the Kings Quire at his Palace at
patri G. eadem gratia Archiepiscopo Cantuarienâ—…i totius Angliae Primati Metropolitano salutem Quia de advisamento assensu Concilii nostri pro quiâ—…usdam arduis urgentibus negotiis Nos statum defensionem regni nostri Angliae ecclesiae Anglicaâ—…ae concernentibus quoddam Parliamentum nostrum apud W. c. teneri ordinavimus ibidem vobiscum cum â—…aeteris Praelatis Magnatibus Proceribus dicti regni nostri Angliae colloquium habere tractatum Vobis â—…n fide dilectione quibus nobis tenemini firmiter injungendo mandamus quod consideratis dictorum negotioruâ—… arduitate periculis imminentibus cessante quacunquâ—… excusatione dictis die loco personaliter intersitis Nobiscum cum caeteris Praelatis Magnatibus Proceribâ—… praedictis super dictis negotiis tractaturi vestrumque concilium impensuri hoc sicut Nos Honorem nostrâ—…ac salvationem regni praedicti ac ecclesiae sanctae expeditionemque dictorum negotiorum diligitis nullatenus omittatiâ—… Praemonentes Decanum capitulum ecclesiae vestrae Caâ—…tuariensis ac Archidiacanos totumque Clerum vestrae Diâ—…cesis quod idem Decanus Archidiaconi in propriis peâ—…sonis suis ac dictum Capitulum per unum idemque Clerâ—… per duos Procuratores idoneos plenam sufficientem poâ—… statem ab ipsis Capitulo Clero habentes praedictis die â—… loco personaliter intersint ad consentiendum hiis quae tuâ—…ibidem de Commune Concilio ipsius Regni Nostri divinâ—… favente Clementia contigerint ordinari Teste Meipso apâ—… West c. CHARLES by the Grace of God c. To the moâ—… Reverend Father in Christ W. by the samâ—… Grace Arch-bishop of Canterbury Primate and Metropolitan of all England Health Whereas by thâ—… Advice and Assent of our Councel for certain difficult and urgent Businesses concerning Us the Statâ—… and Defence of Our Kingdom of England and 〈◊〉 the English Church We have Ordained a certaâ—… Parliament of Ours to be holden at W. c. aâ—… there to have Conference and to treat with you thâ—… Prelats Great men and Peers of Our said Kingdoâ—… We straitly Charge and Command by the Faiâ—… and Love by which you are bound to Us that coâ—…sidering the Difficulties of the Businesses aforesaiâ—… and the imminent Dangers and setting aside all Excuse you be personally present at the Day and Place aforesaid to treat and give your Counsel concerning the said Businesses And this as you love Us and Our Honour and the Safeguard of the foresaid Kingdom and Church and the Expedition of the said Businesses you must no way omit Forewarning the Dean and Chapter of your Church of Canterbury and the Arch-deacons and all the Clergy of your Diocese that the same Dean and the Arch-deacon in their proper Persons and the said Chapter by one and the said Clergy by two fit Proctors having full and sufficient Power from them the Chapter and Clergy be personally present at the foresaid Day and Place to Consent to those things which then and there shall happen by the favour of God to be Ordained by the Common Councel of our Kingdom Witness Our Self â—…t Westm. The same Form of Writ mutatis mutandis concluding with you must no way omit Witness c. â—…s to the Temporal Barons But whereas the Spirituâ—…l Barons are required by the Faith and Love the Temporal are required by their Allegiance or Homage The Difference between the two Writs is that the Lords are to Treat and to Give Counsel the Commons â—…re to Perform and Consent to what is ordained By this Writ the Lords have a deliberative or a â—…onsultive Power to Treat and give Counsel in difficult Businesses and so likewise have the Judges Barons â—…f the Exchequer the Kings Councel and the Maâ—…ters of the Chancery by their Writs But over and â—…esides this Power the Lords do exercise a decisive or Iudicial Power which is not mentioned or found in their Writ For the better Understanding of these two different Powers we must carefully note the distinction between a Iudge and a Counsellor in a Monarchy the ordinary Duty or Office of a Iudge is to give Judgment and to command in the Place of the King but the ordinary Duty of a Counsellor is to advise the King what he himself shall do or cause to be done The Iudge represents the Kings Person in his absence the Counsellor in the Kings Presence gives his Advice Iudges by their Commission oâ—… Institution are limited their Charge and Power and in such things they may judge and cause their Judgments to be put in Execution But Counsellors have no Power to command their Consultations to bâ—… executed for that were to take away the Sovereignty from their Prince who by his Wisdom is to weighâ—… the Advice of his Councel and at liberty to resolvâ—… according to the Judgment of the wiser part of hiâ—… Councel and not always of the greater In a word regularly a Counsellor hath no Power but in thâ—… Kings Presence and a Iudge no Power but out oâ—… his Presence These two Powers thus distinguished have yet such Correspondency and there is so neeâ—… Affinity between the Acts of judging and counselling that although the ordinary Power of the Judgâ—… is to give Judgment yet by their Oath they arâ—… bound in Causes extraordinary when the King pleaseth to call them to be his Counsellors and oâ—… the other side although the proper work of a Counsellor be only to make Report of his Advice to his Sovereign yet many times for the Ease only and by the Permission of the King Counsellors are allowed to judge and command in Points wherein ordinarily they know the mind of the Prince and what they do is the act of the Royal Power it self for the Councel is always presupposed to be united to the Person of the King and therefore the Decrees of the Councel are styled By the King in his Privy Councel To apply this Distinction to the House of Peers we find originally they are called as Counsellors to the King and so have only a deliberative Power specified in their Writ and therefore the Lords do only then properly perform the Duty for which they are called when they are in the Kings Presence that He may have Conference and treat with them the very Words of the Writ are nobiscum ac cum Praelatis Magnatibus Proceribus praedictis super dictis negotiis tractaturi vestrumque concilium impensuri with Us and with the Prelates Great men and Peers to treat and give your councel the word Nobiscum implieth plainly the Kings Presence It is a thing in reason most absurd to make the King assent to the Judgments in Parliament and allow Him no part â—…n the Consultation this were to make the King â—… Subject Councel loseth the name of Councel â—…nd becomes a Command if it put a Necessiâ—…y upon the King to follow it such Imperious Councels make those that are but Counsellors â—…n name to
be Kings in Fact and Kings themselves to be but Subjects We read in Sir Roâ—…ert Cotton that towards the end of the Saxons and â—…he first times of the Norman Kings Parliaments stood 〈◊〉 Custom-grace fixed to Easter Whitsontide and Christmas and that at the Kings Court or Palace Parliaments sate in the Presence or Privy Chamber from whence he infers an Improbability to believe the King excluded His own Presence and unmannerly fâ—… Guests to bar Him their Company who gave them theâ—… Entertainment And although now a-days the Parliament sit not in the Court where the Kings housholâ—… remains yet still even to this day to shew that Parliaments are the Kings Guests the Lord Steward oâ—… the Kings Houshold keeps a standing Table to entertain the Peers during the sitting of Parliament and he alone or some from or under him as the Treasurer or Comptroller of the Kings Houshold takeâ—… the Oaths of the Members of the House of Commoâ—… the first day of the Parliament Sir Richard Sâ—…roop Steward of the Houshold of our Sovereign Lord the King by the Commandment of the Lords sitting in full Parliament iâ—… the Great Chamber put I. Lord Gomeniz and William Weston to answer severally to Accusations broughâ—… against them The Necessity of the King's Presence in Parliamenâ—… appears by the Desire of Parliaments themselves iâ—…former times and the Practice of it Sir Robert Cottoâ—… proves by several Precedents whence he concludeâ—… that in the Consultations of State and Decisions of private Plaints it is clear from all times the King wâ—… not only present to advise but to determine also Whensoever the King is present all Power of judging which is derived from His ceaseth The Votes of the Lords may serve for matter of Advice the finaâ—… Judgment is only the Kings Indeed of late years Queen Mary and Queen Elizabeth by reason of theiâ—… Sex being not so fit for publick Assemblies have brought it out of Use by which means it is comâ—… to pass that many things which were in former times acted by Kings themselves have of late been left to the Judgment of the Peers who in Quality of Judges extraordinary are permitted for the Ease of the King and in His absence to determine such matters as are properly brought before the King Himself sitting in Person attended with His great Councel of Prelates and Peers And the Ordinances that are made there receive their Establishment either from the Kings Presence in Parliament where his Chair of State is constantly placed or at least from the Confirmation of Him who in all Courts and in all Causes is Supream Judge All Judgement is by or under Him it cannot be without much less against his Approbation The King only and none but He if He were able should judge all Causes saith Bracton that ancient Chief Justice in Hen. 3. time An ancient Precedent I meet with cited by Master Selden of a judicial Proceeding in a Criminal Cause of the Barons before the Conquest wherein I observe the Kings Will was that the Lords should be Judges â—…n the Cause wherein Himself was a Party and He â—…atified their Proceeding The case was thus Earl Godwin having had a Trial before the Lords under King Hardicanute touching the Death of Alfred Son to King Ethelbert and Brother to him who was afterward Edward the Confessor had fled out of England and upon his Return with Hope of Edward the Confessor's Favour he solicited the Lords â—…o intercede for him with the King who consulting together brought Godwin with them before the King to obtain his Grace and Favour But the King â—…resently as soon as he beheld him said Thou Traytor Godwin I do appeal thee of the Death of my Brother Alfred whom thou hast most trayterously slain Then Godwin excusing it answered My Lord the King may it please your Grace I neither betrayed nor killed your Brother whereof I put my self upon the Iudgment of your Court Then the King said You noble Lords Earls and Barons of the Land who are my Liege men now gathered here together and have heard My Appeal and Godwins Answer I Will that in this Appeal between Us ye decree right Iudgment and do true Iustice. The Earls and Barons treating of this among themselves were of differing Judgments some said that Godwin was never bound to the King either by Homage Service or Fealty and therefore could not be his Traytor and that he had not slain Alfred with his own hands others said that neither Earl nor Baron nor any other Subject of the King could wage his War by Law against the King in his Appeal but most wholly put himself into the Kings Mercy and offer competent Amends Then Leofric Consul of Chester a good man before God and the World said Earl Godwin next to the King is a man of the best Parentage of all England and he cannot deny but that by his Counsel Alfred the Kings Brother was slain therefore for my part I consider that He and his Son and all we twelve Earls who are his Friends and Kinsmen do go humbly before the King laden with so much Gold and Silver as each of us can carry in our Arms offering him That for his Offence and humbly praying for Pardon And he will pardon the Earl and taking his Homage and Fealty will restore him all his Lands All they in this form lading themselves with Treasure and coming to the King did shew the Manner and Order of their Consideration to which The King not willing to contradict did ratifie all that they had judged 23 Hen. 2. In Lent there was an Assembly of all the Spiritual and Temporal Barons at Westminster for the determination of that great Contention between Alfonso King of Castile and Sancho King of Navarre touching divers Castles and Territories in Spain which was by compromise submitted to the Judgment of the King of England And the King consulting with his Bishops Earls and Barons determined it as he saith Himself in the first Person in the Exemplification of the Judgement 2 Of King Iohn also that great Controversie touching the Barony that William of Moubray claimed against William of Stutvil which had depended from the time of King Hen. 2. was ended by the Councel of the Kingdom and Will of the King Concilio regni voluntate Regis The Lords in Parliament adjudge William de Weston to Death for surrendring Barwick Castle but for that Our Lord the King was not informed of the manner of the Judgment the Constable of the Tower Allen Buxall was commanded safely to keep the said William untill he hath other Commandment from our Lord the King 4 Ric. 2. Also the Lords adjudged Iohn Lord of Gomentz for surrendring the Towns and Castles of Ardee and for that he was a Gentleman and Bannaret and had served the late King he should be beheaded and for that our Lord the King was not informed of the manner of the Iudgment the Execution thereof
Maurice Justicer of Ireland The Explanations of the Statute of Gloucester made by the King and His Iustices only were received alwayes for Statutes and are still printed with them Also the Statute made for the correction of the twelfth Chapter of the Statute of Gloucester was Signed under the Great Seal and sent to the Justices of the Bench after the manner of a Writ Patent with a certain Writ closed dated by the Kings hand at Westminster 2 Maii 9 Edw. 1. requiring that they should do and execute all and every thing contained in it though the same do not accord with the Stat. of Gloucester in all things The Provisions of Merton made by the King at an Assembly of Prelates and the greater part of the Earls and Barons for the Coronation of the King and his Queen Elinor are in the form of a Proclamation and begin Provisum est in Curia domini Regis apud Merton 19 Hen. 3. a Provision was made de assisa praesentationis which was continued and allowed for a Law untill the Stat. of West 2. which provides the contrary in express words In the old Statutes it is hard to distinguish what Laws were made by Kings in Parliament and what out of Parliament when Kings called Peers only to Parliament and of those how many or whom they pleased as it appears anciently they did it was no easie matter to put a difference between a Councel-Table and a Parliament or between a Proclamation and a Statute Yet it is most evident that in old times there was a distinction between the Kings special or Privy Councel and His Common Councel of the Kingdom and His special Councel did sit with the Peers in Parliament and were of great and extraordinary Authority there In the Stat. of Westm. 1. it is said These are the Acts of K. Edw. 1. made at His first Parliament by His Councel and by the Assent of Bishops Abbots Priors Earls Barons and all the Commonalty of the Realm The Stat. of Acton Burnell hath these words The King for Himself and by His Councel hath Ordained and Established In articulis super Chartas when the Great Charter was confirmed at the Request of the Prelates Earls and Barons are found these two provisions 1. Nevertheless the King and his Councel do not intend by reason of this Statute to diminish the Kings Right 2. Notwithstanding all these things before-mentioned or any part of them both the King and his Councel and all they that were present Will and intend that the Right and Prerogative of His Crown shall be saved to Him in all things The Stat. of Escheators hath this Title At the Parliament of our Sovereign Lord the King By His Councel it was agreed and also by the King himself commanded 1 Edw. 3. where Magna Charta was confirmed this Preamble is found At the request of the Commonalty by their Petition made before the King and His Councel in Parliament by the Assent of the Prelates Earls and Barons c. The Statute made at York 9 Edw. 3. goeth thus Whereas the Knights Citizens and Burgesses desired Our Sovereign Lord the King in His Parliament by their Petition c. Our Sovereign Lord the King desiring the profit of His People By the Assent of His Prelates Earls Barons and other Nobles of His Realm and by the Advice of His Councel being there Hath Ordained 25. Edw. 3. In the Statute of Purveyors where the King at the request of the Lords and Commons made a Declaration what Offences should be adjudged Treason It is there further said if per-case any man ride Armed with Men of Arms against any other to slay him or rob him It is not the Mind of the King or of His Councel that in such cases it shall be adjudged Treason By this Statute it appears that even in the case of Treason which is the Kings own Cause as whereas a man doth compass or imagine the Death of Our Lord the King or a man do wage War against Our Lord the King in His Realm or be adherent to the Kings Enemies in his Realm giving to them Aid or Comfort in the Realm or elsewhere in all these cases it is the Kings Declaration onely that makes it to be Treason and though it be said that Difficult points of Treason shall be brought and shewed to the King and His Parliament yet it is said it is the mind of the King and his Councel that determines what shall be adjudged Treason and what Felony or Trespass 27 Edw. 3. the Commons presenting a Petition to the King which the Kings Councel did mislike were content thereupon to amend and explain their Petition the Petition hath these words To their most redoubted Sovereign Lord the King Praying Your said Commons that whereas they have prayed him to be discharged of all manner of Articles of the Eyre c. which Petition seemeth to his Councel to be prejudicial unto him and in Disinherison of his Crown if it were so generally granted His said Commons not willing nor desiring to demand things of Him or of his Crown perpetually as of Escheats c. But of Trespasses Misprisions Negligences Ignorances c. And as in Parliaments the Kings Councel were of Supereminent Power so out of Parliament Kings made great Use of them King Edw. 1. finding that Bogo de Clare was discharged of an Accusation brought against him in Parliament commanded him nevertheless to appear before him and his Councel ad faciendum recipiendum quod per Regem ejus Concilium fuerit faciendum and so proceeded to the Examination of the whole Cause 8 Edw. 1. Edw. 3. In the Star-chamber which was the ancient Councel-table at Westminster upon the complaint of Eliz. Audley commanded Iames Audley to appear before Him and His Councel and determined a Controversie between them touching Land contained in her Jointure Rot. claus de An. 41 Edw. 3. Hen. 5. In a Suit before Him and His Councel For the Titles of the Manors of Serre and St. Lawrence in the Isle of Thanet in Kent took order for the Sequestring the Profits till the Right were tried Hen. 6. commanded the Justices of the Bench to stay the Arraignment of one Verney in London till they had other Commandment from Him and His Councel 34 Hen. 6. rot 37. in Banco Edw. 4. and his Councel in the Star-Chamber heard the Cause of the Master and poor Brethren of Saint Leonard's in York complaining that Sir Hugh Hastings and others withdrew from them a great part of their Living which consisted chiefly upon the having of a Thrave of Corn of every Plow-land within the Counties of York Westmorland Cumberland and Lancashire Rot. pat de an 8. Edw. 4. part 3. memb 14. Hen. 7. and his Councel in the Star-Chamber decreed that Margery and Florence Becket should sue no further in their cause against Alice Radley Widow for Lands in Wolwich and Plumsted in Kent for as much as the matter had been heard
not thereby lose his Authority to be Judge himself when he pleased even in the smallest matters much less in the greatest which he reserved to himself so Kings by delegating others to judge under them do not thereby denude themselves of a Power to judge when they think good There is a Distinction of these times that Kings themselves may not judge but they may see and look to the Iudges that they give Iudgment according to Law and for this Purpose only as some say Kings may sometimes sit in the Courts of Justice But it is not possible for Kings to see the Laws executed except there be a Power in Kings both to judge when the Laws are duely executed and when not as also to compell the Judges if they do not their Duty Without such Power a King sitting in Courts is but a Mockery and a Scorn to the Judges And if this Power be allowed to Kings then their Judgments are supream in all Courts And indeed our Common Law to this Purpose doth presume that the King hath alâ—… Laws within the Cabinet of His Breast in Scrinio pectoris saith Crompton's Jurisdiction 108. When several of our Statutes leave many things to the Pleasure of the King for us to interpret all those Statutes of the Will and Pleasure of the Kings Iustices only is to give an absolute Arbitrary Power to the Justices in those Cases wherein we deny it to the King The Statute of 5 Hen. 4. c. 2. makes a Difference between the King and the Kings Iustices in these words Divers notorious Felons be indicted of divers Felonies Murders Rapes and as well before the Kings Iustices as before the King himself arreigned of the same Felonies I read that in An. 1256. Hen. 3. sate in the Eâ—…chequer and there set down Order for the Appearance Sheriffs and bringing in their Accounts there wâ—… five Marks set on every Sheriffs Head for a Fine bâ—…bâ—…cause they had not distrained every Person that migâ—… dispend fifteen pounds Lands by the Year to receive tâ—… Order of Knighthood according as the same Sherifâ—… were commanded In Michaelmas Term 1462. Edw. 4. sate thâ—… dayes together in open Court in the Kings Bench. For this Point there needs no further Proofs bâ—…bâ—…cause Mr. Pryn doth confess that Kings themselvâ—… have sate in Person in the Kings Bench and other Couâ—… and there given Iudgment p. 32. Treachery and Dâ—…loyalty c. Notwithstanding all that hath been said for tâ—… Legislative and Judicial Power of Kings Mr. Pryâ—… is so far from yielding the King a Power to maâ—… Laws that he will not grant the King a power to hinder a Law from being made that is 〈◊〉 allows Him not a Negative Voice in most case which is due to every other even to the Meaâ—…est Member of the House of Commons in his Judgment To prove the King hath not a Negative Voice 〈◊〉 main and in truth his only Argument insisted oâ—… is a Coronation-Oath which is said anciently soâ—… of our Kings of England have taken wherein thâ—… grant to defend and protect the just Laws and Customâ—… which the Vulgar hath or shall chuse Iustas Legâ—… Consuetudines quas vulgus elegerit Hence Mâ—… Pryn concludes that the King cannot deny any Iaâ—… which the Lords and Commons shall make choâ—… of for so he will have vulgus to signifie Though neither our King nor many of His Predecessors ever took this Oath nor were bound to â—…ake it for ought appears yet we may admit â—…hat our King hath taken it and answer we may be confident that neither the Bishops nor Privy Councel nor Parliament nor any other whosoever they were that framed or penn'd this Oath ever intended in this word Vulgus the Commons in Parliament much less the Lords they would never so much disparage the Members of Parliament as to disgrace them with a Title both base and false it had been enough if not too much to have called them Populus the People but Vulgus the Vulgar the rude Multitude which hath the Epithet of Ignobile Vulgus is a word as dishonourable to the Composers of the Oath to give or for the King to use as for the Members of the Parliament to receive it being most false for the Peers cannot be Vulgus because they are the prime Persons of the Kingdom next the Knights of the Shires are or ought to be notable Knights or notable Esquires or Gentlemen born in the Counties as shall be able to be Knights then the Citizens and Burgesses are to be most sufficient none of these can be Vulgus even those Free-holders that chuse Knights are the best and ablest men of their Counties there being for every Free-holder above ten of the Common People to be found to be termed the Vulgar Therefore it rests that vulgus must signifie the vulgar or common People and not the Lords and Commons But now the Doubt will be what the Common People or vulgus out of Parliament have to do to chuse Laws The Answer is easie and ready there goeth before quas vulgus the Antecedeâ—… Consuetudines that is the Customs which the Vulghath or shall chuse Do but observe the Nature 〈◊〉 Custom and it is the Vulgus or Common People only who chuse Customs Common Usage time out 〈◊〉 mind creates a Custom and the commoner 〈◊〉 Usage is the stronger and the better is the Custom no where can so common an Usage be found 〈◊〉 among the Vulgar who are still the far greatâ—… part of every Multitude if a Custom be commoâ—… through the whole Kingdom it is all one with the Common Law in England which is said to be Common Custom Thus in plain Terms to protect the Customs which the Vulgar chuse is to swear to protect the Common Laws of England But grant that Vulgus in the Oath signifies Lordâ—… and Commons and that Consuetudines doth not signifie Customs but Statutes as Mr. Pryn for a desperate Shift affirms and let elegerit be the Future or Preterperfect Tense even which Mr. Pryn please yet it cannot exclude the Kings negative Voice for as Consuetudines goeth before quas vulgus so doth justas stand before leges consuetudines so that not all Laws but only all just Laws are meant If the sole Choice of the Lords and Commons did oblige the King to protect their Choice without Power of Denial what Need or why is the Word justas put in to raise a Scruple that some Laws may be unjust Mr. Pryn will not say that a Decree of a General Councel or of a Pope is infallible nor â—… think a Bill of the Lords and Commons is infallible just and impossible to erre if he do Sir Edward Coke will tell him that Parliaments have been utterly deceived and that in eases of greatest Moment even iâ—… case of High Treason and he calls the Statute of 11 Hen. 7. an unjust and strange Act. But it may be Mr. Pryn will confess that Laws chosen by the Lords and
Government in Israel And what the Old Testament teacheth us we have confirmed in the New If Saint Paul had onely said Let every Soul be subject to the higher Powers and said no more then men might have disputed whether Saint Paul by higher Powers had not meant as well other Governours as Kings or other Forms of Government as Monarchy but the good luck is Saint Paul hath been his own Interpreter or Comment for after the general Doctrine of Obedience to be given by all men to the higher Powers he proceeds next to charge it home and lay it to the Conscience under pain of Damnation and applies it to each particular mans Conscience saying Wilt thou not be afraid of the Power which Power he expounds in the singular number restraining it to one Person saying He is the Minister of God to thee it is not They are the Ministers to thee and then again He beareth not the Sword in vain and then a third time in the same verse lest thou should'st forget it he saith for He is the Minister of God a Revenger to Wrath c. upon thee if Saint Paul had said They are the Ministers of God or They bear not the Sword in vain it might be doubted whether they were meant of Kings onely or of other Governours also but this Scruple is taken away by the Apostle himself And as St. Paul hath expounded what he means by Higher Powers so St. Peter also doth the like for the self-same Word that St. Paul useth for Higher in Saint Peter is translated Supreme so that though in our English Bibles the words differ yet in the Original they are both the same so that St. Paul might have been Englished Let every Soul be subject to the Supreme Power or St. Peter might have been translated whether to the King as to the higher yet there is this difference that whereas St. Paul useth the word in the Plural number St. Peter hath it in the Singular and with application to the King It will be said Though St. Peter make the King Supreme yet he tells us the King is a humane Ordinance or a Creature of the People's But it is answered Kings may be called an humane Ordinance for being made of one of the People and not by the People and so are humane in Regard of their material Cause not of their efficient If St. Peter had meant that Kings had been made by the People he must also have meant that Governours had been made by the People for he calls the Governours as well an Ordinance of Man as the King for his woods are Submit your selves to every Ordinance of man for the Lord's sake whether it be to the King as Supreme or whether it be to Governours but Saint Peter sheweth that Governours are not made by the People for he saith they that are sent by Him not by them for the punishment of Evil doers so that the Governours are sent by the King and not by the People some would have sent by him to be sent by God but the Relative must be referr'd to the next Antecedent which is the King and not God Besides if Governours be sent by God and Kings by the People then Governours would be Supreme which is contrary to Saint Peter's Doctrine and it will follow that the People have not the power of choosing Representers to Govern if Governours must be sent of God The safest sense of Saint Peter's words is Submit your selves to all Humane Laws whether made by the King or by his Subordinate Governours So the King may be called a Humane Ordinance as being all one with a Speaking Law the word in the Original is Be subject to every humane Creation it is more proper to call a Law made by a King a creation of an Ordinance than the Peoples choosing or declaring of a King a Creation of him But take the words in what sense soever you will it is most evident that Saint Peter in this place takes no notice of any Government or Governours but of a King and Governours sent by him but not by the People And â—…t is to be noted That St. Peter and St. Paul â—…he two chief of the Apostles wrote their Epistles at such a time when the name of a Popular Government or of the People of Rome was at least so much in Shew and in Name that many do believe That notwithstanding the Emperours by strong hand usurped a Military Power yet the Government was for a long time in most things then in the Senate and People of Rome but for all this neither of the two Apostles take any notice of any such Popular Government No nor our Saviour himself who divides all between God and Caesar and allows nothing that we can find for the People OBSERVATIONS UPON Aristotles Politiques TOUCHING Forms of Government WHAT cannot be found in Scripture many do look for in Aristotle for if there be any other Form of Government besides Monarchy he is the man best able â—…o tell what it is and to let us know by what name â—…o call it since the Greek Tongue is most happy in â—…ompounding Names most significant to express the nature of most things The usual terms in this Age of Aristocraty and Democraty are taken up from him â—…o express Forms of Government most different from Monarchy We must therefore make inquiry into Aristotle touching these two Terms True it is Aristotle seems to make three sorts of Government which he diâ—…inguisheth by the Soveâ—…ignty of one man or of a â—…w or of many for the â—…ommon Good These he saith are rigâ—… or perfect Governments 〈◊〉 those that are for the privaâ—… Good of one or of a few 〈◊〉 of a Multitude are Transgressions The Government of a Monarchy for the Common Good he calls a Kingdom The Government of a few more than one an Aristocratie either beeâ—… the best men govern or because it is for the best of 〈◊〉 governed when a Multitude governs for the comâ—… Good it is called by the common name of all Governments a POLITIE It is possible that one 〈◊〉 few may excell in Vertue but it is difficult for many excell in all Vertue except in Warlike Affairs for 〈◊〉 is natural in a Multitude therefore in this sort of Government their principal Use is to war one for another and to possess the Arms or Ammunition The Transgâ—…sions of Government before spoken of are these â—…ranny is the Transgression of the Kingdom and Dâ—…mocratie is the Transgression of the Politie For Tyâ—… is a Monarchy for the Benefit of the Monarch the Oligâ—…chy for the Profit of the Rich the Democratie for the â—…nefit of the Poor None of these are for the Comâ—… Good Here Aristotle if he had stood to his own Prinâ—…ples should have said an Oligarchy should be for 〈◊〉 Benefit of a few and those the best and not for the 〈◊〉 of the rich and a Democratie for the Benefit of 〈◊〉 and not of the
all that time no Image or Picture of God in any Temple or Chappel of Rome also he erected the Pontifical Colledge and was himself the first Bishop or Pontifex These Bishops were to render no Account either to the Senate or Commonalty They determined all Questions concerning Religion as well between Priests as between private men They punished inferiour Priests if they either added or detracted from the established Rites or Ceremonies or brought in any new thing into Religion The chief Bishop Pontifâ—… Maximus taught every man how to honour and serve the Gods This Care had Monarchy of Religion But after the Expulsion of Kings we do not find during the Power of the People any one Law made for the Benefit or Exercise of Religion there be two Tribunitian Laws concerning Religion but they are meerly for the Benefit of the Power of the People and not of Religion L. Papirius a Tribune made a Law called Lex Papiria that it should not be lawful for any to consecrate either Houses Grounds Altars or any other things without the Determinatin of the People Domitius Aenobarbus another Tribune enacted a Law called Domitia Lex that the Pontifical Colledge should not as they were wont admit whom they would into the Order of Priesthood but it should be in the Power of the People and because it was contrary to their Religion that Church-Dignities should be bestowed by the common People hence for very Shame he ordained that the lesser part of the People namely seventeen Tribes should elect whom they thought fit and afterwards the Party elected should have his Confirmation or admission from the Colledge thus by a Committee of seven Tribes taken out of thirty five the ancient Form of Religion was alter'd and reduced to the Power of the lesser part of the People This was the great Care of the People to bring Ordination and Consecration to the Laity The Religion in Venice and the Low-Countries is sufficiently known much need not be said of them they admirably agree under a seeming contrariety it is commonly said that one of them hath all Religions and the other no Religion the Atheist of Venice may shake hands with the Sectary of Amsterdam This is the Liberty that a popular estate can brag of every man may be of any Religion or no Religion if he please their main Devotion is exercised only in opposing and suppressing Monarchy They both agree to exclude the Clergy from medling in Government whereas in all Monarchies both before the Law of Moses and under it and ever since all Barbarians Graecians Romans Infidels Turks and Indians have with one Consent given such Respect and Reverence to their Priests as to trust them with their Laws and in this our Nation the first Priests we read of before Christianity were the Druides who as Caesar saith decided and determined Controversies in Murder in Case of Inheritance of Bounds of Lands as they in their Discretion judged meet they grant Rewards and Punishments It is a Wonder to see what high Respect even the great Turk giveth to his Mufti or chief Bishop so necessary is Religion to strengthen and direct Laws To consider of the Point of Peace It is well known that no People ever enjoyed it without Monarchy Aristotle saith the Lacedemonians preserved themselves by Warring and after they had gotten to themselves the Empire then were they presently undone for that they could not live at Rest nor do any better Exercise than the Exercise of War l. 2. c. 7. After Rome had expelled Kings it was in perpetual War till the time of the Emperours once only was the Temple of Ianus shut after the end of the first Punique War but not so long as for one year but for some Moneths It is true as Orosius saith that for almost 700 years that is from Tullus Hostilius 〈◊〉 Augustus Caesar only for one Summer the Bowels 〈◊〉 Rome did not sweat Blood On the Behalf of the Romans it may be said that though the Bowels of Rome did always sweat Blood yet they did obtain most glorious Victories abroad But it may be truly answered if all the Roman Conquests had no other Foundation but Injustice this alone soils all the Glory of her warlike Actions The most glorious War that ever Rome had was with Carthagâ—… the Beginning of which War Sir Walter Raleigâ—… proves to have been most unjustly undertaken by the Romans in confederating with the Mamertines and Aiding of Rebels under the Title of protecting their Confederates whereas Kings many times may have just Cause of War for recovering and preserving their Rights to such Dominions as fall to them by Inheritance or Marriage a Popular Estate that can neither marry nor be Heir to another can have no such Title to a War in a Foreign Kingdom and to speak the Truth if it be rightly considered the whole time of the Popularity of Rome the Romans were no other than the only prosperous and glorious Thieves and Robbers of the World If we look more narrowly into the Roman Government it will appear that in that very Age wherein Rome was most victorious and seemed to be most popular she owed most of her Glory to an apparent kind of Monarchy For it was the Kinghâ—… Power of the Consuls who as Livy saith had the same Royal Iurisdiction or absolute Power that the Kings had not any whit diminished or abated and held all the same Regal Ensignes of supreme Dignity which helpt Rome to all her Conquests whiles the Tribunes of the People were strugling at home with the Senate about Election of Magistrates enacting of Laws and calling to Account or such other popular Affairs the Kingly Consuls gained all the Victories abroad Thus Rome at one and the same time was broken and distracted into two Shewes of Government the Popular which served only to raise Seditions and Discords within the Walls whilest the Regal atchieved the Conquests of Foreign Nations and Kingdomes Rome was so sensible of the Benefit and Necessity of Monarchy that in her most desperate Condition and Danger when all other Hopes failed her she had still Resort to the Creation of a Dictator who for the time was an absolute King and from whom no Appeal to the People was granted which is the royallest Evidence for Monarchy in the World for they who were drawn to swear they would suffer no King of Rome found no Security but in Perjury and breaking their Oath by admitting the Kingly Power in spight of their Teeth under a new name of a Dictator or Consul a just Reward for their wanton expelling their King for no other Crime they could pretend but Pride which is most tolerable in a King of all men and yet we find no particular Point of Pride charged upon him but that he enjoyned the Romans to labour in cleansing and casting of Ditches and paving their Sinks an Act both for the Benefit and Ornament of the City and therefore commendable in the King But the
of Government they please The Text not warranting this Right of the People the Foundation of the Defence of the People is quite taken away there being no other Grant or proof of it pretended 2. Where it is said that the Israelites desired a King though then under another Form of Government in the next line but one it is confessed they had a King at the time when they desired a King which was God himself and his Vice-roy Samuel and so saith God They have not rejected thee but they have rejected me that I should not reign over them yet in the next Verse God saith As they have forsaken me so do they also unto thee Here is no Shew of any other Form of Government but Monarchy God by the Mediation of Samuel reigned who made his Sons Judges over Israel when one man constitutes Judges we may call him a King or if the Having of Judges do alter the Government then the Government of every Kingdom is altered from Monarchy where Judges are appointed by Kings it is now reckoned one of the Duties of Kings to judge by their Judges only Where it is said He shall not multiply to himself Horses nor Wives nor Riches that he might understand that he had no Power over others who could Decree nothing of himself extra Legem if it had said contra legem Dei it had been true but if it meant extra legem humanam it is false 4. If there had been any Right given to the People it seems it was to the Elders onely for it is said it was the Elders of Israel gathered together petitioned for a King it is not said it was all the People nor that the People did choose the Elders who were the Fathers and Heads of Families authorized by the Judges 5. Where it is said I will set a King over me like as all the Nations about me To set a King is not to choose a King but by some solemn publick Act of Coronation or otherwise to acknowledge their Allegiance to the King chosen It is said thou shalt set him King whom the Lord thy God shall choose The Elders did not desire to choose a King like other Nations but they say now make us a King to judge us like all the Nations III. As for Davids Covenant with the Elders when he was annointed it was not to observe any Laws or Conditions made by the People for ought appears but to keep Gods Laws and serve him and to seek the Good of the People as they were to protect him 6. The Reubenites and Gadites promise their Obedience not according to their Laws or Conditions agreed upon but in these words All that thou cammandest us we will do and whithersoever thou sendst us we will go as we harkened to Moses in all things so will we harken unto thee only the Lord thy God be with thee as he was with Moses Where is there any Condition of any humane Law expressed Though the rebellious Tribes offered Conditions to Rehoboam where can we find that for like Conditions not performed all Israel deposed Samuel I wonder Mr. Milton should say this when within a few Lines after he professeth that Samuel had governed them uprightly IV. Ius Regni is much stumbled at and the Definition of a King which saith His Power is supreme in the Kingdom and he is accountable to none but to God and that he may do what he please and is not bound by Laws it is said if this Definition be good no man is or ever was who may be said to be a Tyrant p. 14. for when he hath violated all divine and humane Laws nevertheless he is a King and guiltless jure Regio To this may be answered That the Definition confesseth he is accountable to God and therefore not guiltless if he violate Divine Laws Humane Laws must not be shuffled in with Divine they are not of the same Authority if humane Laws bind a King it is impossible for him to have Supreme Power amongst men If any man can find us out such a kind of Government wherein the supreme Power can be without being freed from humane Laws they should first teach us that but if all sorts of popular Government that can be invented cannot be one Minute without an Arbitrary Power freed from all humane Laws what reason can be given why a Royal Government should not have the like Freedom if it be Tyranny for one man to govern arbitrarily why should it not be far greater Tyranny for a multitude of men to govern without being accountable or bound by Laws It would be further enquired how it is possible for any Government at all to be in the World without an arbitrary Power it is not Power except it be arbitary a legislative Power cannot be without being absolved from humane Laws it cannot be shewed how a King can have any Power at all but an arbitrary Power We are taught that Power was therefore given to a King by the People that he might see by the Authority to him committed that nothing be done against Law and that he keep our Laws and not impose upon us his own therefore there is no Royal Power but in the Courts of the Kingdom and by them pag. 155. And again it is said the King cannot Imprison Fine or Punish any man except he be first cited into some Court where not the King but the usual Iudges give Sentence pag. 168. and before we are told not the King but the Authority of Parliament doth set up and take away all Courts pag. 167. Lo here we have Mr. Milton's perfect Definition of a King He is one to whom the People gave Power to see that nothing be done against Law and that he keep our Laws and not impose his own Whereas all other men have the Faculty of Seeing by Nature the King only hath it by the Gift of the People other Power he hath none he may see the Judges keep the Laws if they will he cannot compell them for he may not Imprison Fine nor punish any man the Courts of Justice may and they are set up and put down by the Parliament yet in this very Definition of a King we may spy an arbitrary Power in the King for he may wink if he will and no other Power doth this Description of a King give but only a Power to see whereas it is said Aristotle doth mention an absolute Kingdom for no other Cause but to shew how absurd unjust and most tyrannical it is There is no such thing said by Aristotle but the contrary where he saith that 〈◊〉 King according to Law makes no sort of Government and after he had reckoned up five sorts of Kings he concludes that there were in a manner but two sorts the Lacedemonian King and the Absolute King whereof the first was but as General in an Army and therefore no King at all and then fixes and rests upon the Absolute King who ruleth according to
the People may choose what Form of Government they please and their Will is the Rule of Right Populus eligere potest qualem vult gubernationis formam neque ex praestantia formae sed ex voluntate jus metiendum est lib. 1. c. 3. Also that the People choosing a King may reserve some Acts to themselves and may bestow others upon the King with full Authority if either an express Partition be appointed or if the People being yet free do command their future King by way of a standing Command or if any thing be added by which it may be understood that the King may be compelled or else punished In these Passages of Grotius which I have cited we find evidently these Doctrines 1. That Civil Power depends on the Will of the People 2. That private men or petty Multitudes may take up Arms against their Princes 3. That the lawfullest Kings have no Propriety in their Kingdoms but an usufructuary Right only as if the People were the Lords and Kings but their Tenants 4. That the Law of Not resisting Superiours is a humane Law depending on the Will of the People at first 5. That the Will of the first People if it be not known may be expounded by the People that now are No Doubt but Grotius foresaw what Uses the People might make of these Doctrines by concluding if the chief Power be in the People that then it is lawful for them to compel and punish Kings as oft as they misuse their Power Therefore he tells us he rejects the Opinion of them who every where and without Exception will have the chief Power to be so the Peoples that it is lawful for them to compel and punish Kings as oft as they misuse their Power and this Opinion he confesseth if it be altogether received hath been and may be the Cause of many Evils This cautelous Rejection qualified with these Terms of every where without Exception and altogether makes but a mixt Negation partly negative and partly affirmative which our Lawyers call a negative Repugnant which brings forth this modal Proposition that in some Places with Exception and in some sort the People may compel and punish their Kings But let us see how Grotius doth refute the general Opinion that People may correct Kings He frames his Argument in these words It is lawful for every man to yield himself to be a private Servant to whom he please What should hinder but that also it may be lawful for a free People so to yield themselves to one or more that the Right of governing them be fully set over without retaining any part of the Right and you must not say That this may not be presumed for we do not now seek what in a doubtful case may be presumed but what by Right may be done Thus far is the Argument in which the most that is proved if we gratifie him and yield his whole Argument for good is this that the People may grant away their Power without retaining any part But what is this to what the People have done for though the People may give away their Power without Reservation of any part to themselves yet if they have not so done but have reserved a part Grotius must confess that the People may compel and punish their Kings if they transgress so that by his Favour the Point will be not what by Right may be done but what in this doubtful case hath been done since by his own Rule it is the Will and Meaning of the first People that joyned in Society that must regulate the Power of their Successours But on Grotius side it may be urged that in all Presumption the People have given away their whole Power to Kings unless they can prove they have reserved a part for if they will have any Benefit of a Reservation or Exception it lies on their part to prove their Exception and not on the Kings Part who are in Possession This Answer though in it self it be most just and good yet of all men Grotius may not use it For he saves the People the Labour of proving the primitive Reservation of their Forefathers by making the People that now are competent Expositors of the meaning of those first Ancestors who may justly be presumed not to have been either so improvident for themselves or so negligent of all their Posterity when by the Law of Nature they were free and had all things common at an Instant with any Condition or Limitation to give away that Liberty and Right of Community and to make themselves and their Children eternally subject to the Will of such Governours as might misuse them without Controul On the behalf of the People it may be further answered to Grotius that although our Ancestors had made an absolute Grant of their Liberty without any Condition expressed yet it must be necessarily implyed that it was upon condition to be well-governed and that the Non-performance of that implyed Condition makes the Grant void Or if we will not allow an implicit Condition then it may be said that the Grant in it self was a void Grant for being unreasonable and a violation of the Law of Nature without any valuable Consideration What sound Reply Grotius can return to such Answers I cannot conceive if he keep himself to his first Principle of natural Community As Grotius's Argument against the People is not sound so his Answer to the Argument that is made for the People is not satisfactory It is objected that he that ordains is above him that is ordained Grotius answers Verum duntaxat est in ea constitutione cujus effectus perpetuò pendet à voluntate constituentis non etiam in ea quae ab initio est voluntatis postea verò effectum habet necessitatis quomodo mulier virum sibi constituit cui parere semper habet necesse The Reply may be that by Grotius's former Doctrine the very Effect of the Constitution of Kings by the People depends perpetually upon the Will of them that Constitute and upon no other Necessity he will not say that it is by any necessity of the Law of Nature or by any positive Law of God he teacheth that non Dei praecepto sed sponte men entred into Civil Society that it is an Humane Ordinance that God doth onely approve it ut humanum and humano modo He tells us further that Populus potest eligere qualem vult gubernationis forâ—…am ex voluntate jus metiendum est that the People may give the King as little Power as they will and for as little time as they please that they â—…ay make temporary Kings as Dictators and Protectors jus quovis tempore revocabile id est precarium as the Vandals in Africa and the Goths in Spain would depose their Kings as oft as they displeased them horum enim actus irriti possunt reddi ab his â—…i potestatem revocabiliter dederunt ac proinde non idem est
the remedy proved worse than the disease In all great distresses the body of the people were ever constrained to rise and by force of the major party to put an end to all intestine strifes and make a redress of all publick grievances But many times calamities grew to a strange height before so cumbersome a body could be raised and when it was raised the motions of it were so distracted and irregular that after much spoil and effusion of blood sometimes only one Tyranny was exchanged for another till some was invented to regulate the motions of the peoples moliminous body I think Arbitrary rule was most safe for the World but Now since most Countries have found an art and peaceable order for publick Assemblies whereby the people may assume its own power to do it self right without disturbance to it self or injury to Princes he is very unjust that will oppose this art or order That Princes may not be Now beyond all limits and Laws nor yet to be tyed upon those limits by any private parties the whole Community in its underived Majesty shall convene to do justice and that the Convention may not be without intelligence certain times and places and forms shall be appointed for its reglement and that the vastness of its own bulk may not breed confusion by vertue of election and representation a few shall act for many the wise shall consent for the simple the vertue of all shall redound to some and the prudence of some shall redound to all and surely as this admirably-composed Court which is now called a Parliament is more regularly and orderly formed than when it was called mickle Synod of Wittena-gemot or when this real body of the people did throng together at it so it is not yet perhaps without some defects which by art and policy might receive farther amendment some divisions have sprung up of late between both Houses and some between the King and both Houses by reason of incertainty of Iurisdiction and some Lawyers doubt how far the Parliament is able to create new forms and presidents and has a Iurisdiction over it self all these doubts would be solemnly solved but in the first place the true priviledges of Parliament belonging not only to the being and efficacy of it but to the honour and complement of it would be clearly declared for the very naming of priviledges of Parliament as if they were chimera's to the ignorant sort and utterly unknown unto the Learned hath been entertained with scorn since the beginning of this Parliament In this large passage taken out of the Observator which concerns the Original of all Government two notable Propositions may be principally observed First our Observator confesseth arbitrary or absolute government to be the first and the safest government for the world Secondly he acknowledgeth that the Iurisdiction is uncertain and the priviledges not clearly declared of limited Monarchy These two evident truths delivered by him he labours mainly to disguise He seems to insinuate that Arbitrary Government was but in the infancy of the World for so he terms it but if we enquire of him how long he will have this infancy of the world to last he grants it continued above three thousand years which is an unreasonable time for the world to continue under-age for the first opposers he doth finde of Arbitrary power were the Ephori Tribuni Curatores c. The Ephori were above three thousand years after the Creation and the Tribuni were later as for his Curatores I know not whom he means except the Master of the Court of Wards I cannot English the word Curator better I do not believe that he can shew that any Curatores or caetera's which he mentions were so antient as the Ephori As for the Tribuni he mistakes much if he thinks they were erected to limit and bound Monarchy for the State of Rome was at the least Aristocratical as they call it if not popular when Tribunes of the people were first hatched And for the Ephori their power did not limit or regulate Monarchy but quite take it away for a Lacedemonian King in the judgment of Aristotle was no King indeed but in name onely as Generalissimo of an Army and the best Politicians reckon the Spartan Common-wealth to have been Aristocratical and not Monarchical and if a limited Monarchy cannot be found in Lacedemon I doubt our Observator will hardly find it any where else in the whole World and in substance he confesseth as much when he saith Now most Countries have found out an art and peaceable order for publick Assemblies as if it were a thing but new done and not before for so the word Now doth import The Observator in confessing the Iurisdiction to be incertain and the priviledges undetermined of that Court that should bound and limit Monarchy doth in effect acknowledge there is no such Court at all for every Court consists of Iurisdictions and Priviledges it is these two that create a Court and are the essentials of it If the admirably composed Court of Parliament have some defects which may receive amendment as he saith and if those defects be such as cause divisions both between the Houses and between the King and both Houses and these divisions be about so main a matter as Iurisdictions and Priviledges and power to create new Priviledges all which are the Fundamentals of every Court for until they be agreed upon the act of every Court may not onely be uncertain but invalid and cause of tumults and sedition And if all these doubts and divisions have need to be solemnly solved as our Observator confesseth Then he hath no reason at all to say that Now the conditions of Supream Lords are wisely determined and quietly conserved or that Now most Countries have found out an art and peaceable order for publick affairs whereby the people may resume its own power to do it self right without injury unto Princes for how can the underived Majesty of the people by assuming its own power tell how to do her self right or how to avoid doing injury to the Prince if her Iurisdiction be uncertain and Priviledges undetermined He tells us Now most Countries have found an art and peaceable order for publick Assemblies and to the intent that Princes may not be Now beyond all limits and Laws the whole community in its underived Majesty shall convene to do Iustice. But he doth not name so much as one Country or Kingdome that hath found out this art where the whole Community in its underived Majesty did ever convene to do Justice I challenge him or any other for him to name but one Kingdome that hath either Now or heretofore found out this art or peaceable order We do hear a great rumor in this age of moderated and limited Kings Poland Sweden and Denmark are talked of for such and in these Kingdomes or nowhere is such a moderated Government as our Observator means to be found