several places of his Politics was as King as expresly in one place he saith Every house is governed by Kingly command by him that is eminentest in Age. The Fathers Government In which short sentence we may note that this must relate to an Infancy in the World before Families were embodied and seems to overthrow the opinion of its Eternity ascribed to the Philosopher and however is a plain illustration of the Rise and Original of Kingly Government from that of the Paternal In this Family the same Philosopher (c) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 P. lib. 1. c. 8. distinguisheth the Husband's rule That over the Wife is civilly that over the Children Kingly both which words are used for a milder sort of Government than that which was masterly over Servants So that it is not to give Parents the Power of Saturn to devour their Children nor was there need for a late Author (d) French Monarchy p. 68. to bewail the state of Children under such a Tyranny as he accounts it of Parents For I shall hereafter I hope make it appear that Kingly Government is of all other the least Arbitrary as exercised especially in England and that Kings are justly stiled Patres Patriae Fathers of their Countries and that it is Kingly as well as Fatherly to govern without asperity and bitterness by benevolence and Paternal care which never was known in Republican Patriots However all I will infer at present from hence is that Government is coeval with Families and shall speak more of it in the Chapter of Monarchy Society of Families From these private Lares and Occonomies sprung up Societies For man being of all the Creation only endowed with Speech and that furnishing him with discourse upon things troublesome and pleasant profitable and unprofitable just and unjust For (e) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. lib. 1. c. 2. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ib. that before all other Creatures saith the Philosopher it is the Property of man that he alone hath the sence of Good and Evil Just and Unjust from thence it must follow not only that man is a sociable Creature or fitted for Political Government but that Society is founded in Nature For the Tongue cannot be imploy'd reasonably but in Company none but one crazed in his Sense will hold Parly with himself or talk to himself the thoughts of his heart State of France p. 1. Nature that gave man a Tongue gave him also Inclination to Society where he might use it Why Man is Sociable as a late Author out of Aristotle words it The same is demonstrated by the Moral Virtues which are proper and peculiar to mankind How and to whom shall Justice be administ'red but amongst men How shall Fortitude appear but upon such occasions as appear amongst men Where shall Prudence have place unless in debating and resolving the affairs of men Who can be liberal if he gives not to many Who shall enjoy the sweets of Friendship if he have not to whom he may be a Friend with whom to share his happiness Nature therefore that hath made Virtue proper to man hath also made it proper to man to live in Company These praecognita being granted it will be easy to evince People the Subject of Government that no Society can be happy without Government the body of the People being the Subject matter of it of which the Philosopher (a) Polit. lib. 4. c. 4. lib. 7. c. 4. lib. 6. c. 1. reckons several kinds as Fishers at Tarentum and Byzantium Mariners at Athens Merchants at Aegina and Chios Skippers at the Island Tenedos and in all places are Husbandmen Artificers Soldiers and Nobles so that Government is most necessary to combine these into Societies for mutual safety and profit Therefore the same (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. lib. 1. cap. 1 3. Philosopher observes that to obey and command which are the Characteristics of Government are not only to be numbered among the profitable but the necessary For as soon as we are born we fall under that discrimination The great (c) Sine imperio nec domâ—s ulla nec civitâ—s nec gens nec hominum universum genus stare nec rerum natura omnis nec ipse mundus potuit Lib. 3. de Lâ— initic Orator assures us that without Government The necessity of Government neither House City or Nation nor the Complex of Mankind or Nature nor the World it self could subsist So the divine Plato (d) Tom. 2. p. 391. tells us that it is a Law established by Nature that the Inferior should yield to the Superior in Eminence and that Law would be inverted if we did not yield to them and live according to the direction of our Governors So the Aborigines in (e) Genus hominum agresle sine legibus sine imperio Sallust are those only which are reputed a wild sort of men without Laws and Government and Tacitus (f) Incerti nimium solutique megis sine Dominoquamin libertate speaking of the Babarous Parthians calls them loose and unsetled rather without a Lord than in Liberty and there may be good reason for it since as Justin (g) Ab exalibus Seytharum Parthorum Impirium suisse dedudum lib. 22. notes they sprung from the People banished from the Scythians and so we may suppose them none of the most civilized among them Uncontrouled Liberty may seem sweet and be affected by a sett of People led by Appetite only The Evil of Liberty and upon the first notion but when the Wise and Sober reflect upon the inconveniences of it where lawless and unlimitted there inevitably will appear a necessity of Government and Laws to rescind the Luxuriousness of our depraved desires without which we should all run into Spruns and Ramel-wood and the Capreoli Suckers Wiâ—s Neque sera hominum pectora frâ—geseunt donec vim senserint imperii and Brambles would choak up the richest Soil yea the rude dispositions of men without the force of Government would not more be broken than those of untamed Beasts Mr. Hobs (h) Levi â—han hath introduced in the condition of Nature an imaginary State of War whereby every man in his pure Naturals The state of Nature not a state of War had right to every thing his brawny Arm or daring Soul could gripe covet or affright his fellows from possessing and ascribes to his Aborigines such a baseness and villany in their Nature as degrades them to that Bestiality rarely found amongst Savages Allowing them scarce Reason or such an one as was wholly subordinate to their Appetites as if he had taken his observation from the Swine-Trough where he had seen the master Boar pass from Trough to Trough to drive the weaker from their feeding till he had been satisfied (a) Earl of Clarendon's Survey c. 13 14 15. All which saith a most Judicious Nobleman he doth for no other
in the Assyrian Empire Nebuchodonosor is styled King of Kings Daniel c. 2. and after the translation of this Empire to the Persians Artaxerxes Mnemon in his Commission to Ezra for the Restitution of Jerusalem and the Temple thus salutes him Artaxerxes King of Kings to Ezra the Priest And on the Great Cyrus his Tomb this Epitaph was written in Persian Characters if you believe the Authors that have it (r) Eustach ad Dionys Strab. Geog. 15. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Here I Cyrus lie who was King of Kings And the bare Name of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the King without addition is especially used for the Persian whence the Nation is styled also 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The most Kingly Nation (s) Diodor. bibl 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Sesoosis the same with Sesostris in Herodotus King of Egypt attributed to himself the Title of King of Kings in his erected Columns of Victory And (t) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Earth and Water given as Tokens of Homage Plutarch reports That Tigranes King of Armenia was angry and would not vouchsafe to answer Lucullus because in his Letter he had styled him King only and not King of Kings The Acknowledgment of Regal Supremacy paid by way of Homage from Princes or People under the Subjection of such Kings was the Acceptance upon their Demand of Earth and Water A special Example of which is in (u) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Herâ—dot in Melpom. Darius's Letters to Indathyrsus King of the Scythians where he first invites him to the Field but if he would not then bringing to the Sovereign as Gifts Water and Earth come to a Parley as the Words run So in the Assyrian Empire the King commands (w) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lib. Judith Olophernes That he should bid all the Western Nations prepare him Earth and Water By the yielding up of these two Elements they acknowledged a giving up to those Sovereigns their Jurisdiction over them When William the Conqueror landed at (x) Malmesh de Gestis Reg. lib. 3. Hist Norman apud Camd. Hastings in Sussex as he came out of his Ship he fell down and one of his Knights told him Sir you have possession of England and shall be King and observing that he had took up Sand and Earth in his Hand he added And you have taken Livery and Seisin of the Country So when Land is sold in England the way of receiving Possession is by delivering a Clod of the Earth and a Twig of Wood if any be growing on it To denote also the Sovereignty of such Princes kissing of the Feet or embracing their Knees or Adoration was used Kissing the Teet Knees and Hands of Princes (y) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Herodotus saith When the old Persians meet you may know whether they be equal or not for in Salutation they kiss one another but if one be something inferiour they kiss only the Cheeks and if one be far more ignoble he falls down adoring the other The manner of which Adoration is yet observed in the Eastern Empires as may be seen in the Prints of them in Mr. Ogilby's Asia especially in Japan Thence we have Adorari more Persarum and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is expressed by Euripides thus personating Phrygius to Orestes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Falling down I adore thee O King after the Persian manner In Alexander's turning the Grecian Liberty into this Servitude Q. Curtius expresseth it by Venerari procumbere humi corpus prosternere and thereof Justin saith the (z) Retentus est a Macedonibus mos salutandi Reges explosa adoratione Jam coepisset Heliogabalus adorari Regum more Persarum Macedonians retained the manner of saluting their Kings exploding the Adoration Lampridius speaking of Alexander Severus saith That he forbad himself to be adored but Heliogabalus began to be adored after the Persian manner As to the Kissing the Learned (a) Tit. Hon. c. 3. Selden saith It was usual in Adoration among the Romans either to kiss the Images of their Gods or adoring them to stand somewhat off before them (b) Cicero in Varr. Act. 5. Lucret. lib. 1. Sape salutantum c. solemnly moving the Right-hand to the Lips and then casting it as if they had cast Kisses and turning the Body on the same Hand which was the right Form of Adoration and it grew by Custom first that the Emperours being next to Deities and by some accounted as Deities had the like done to them in acknowledgment of their Greatness After some of the Roman Emperours would be called Jupiter be supposed carnally to lie with Venus and the Moon and upon their infinite such-like frantick Conceits pretended themselves to be Divine they were not satisfied with Those usual Customs but thought themselves much wronged and their Majesty impaired if they who saluted them (c) Dio Cass Hist 59. presumed to kiss above the Knee We find Examples of Kissing the Hands and Feet in Caligula Therefore (d) Homo natus in hoc ut mores liberâ—â— civitatis Persica servitute mutaret 2. de Benef. c. 5. Seneca speaking of his offering his Feet to kiss says He was a man born to that so as to change the Customs of a Free City into Persian Servitude Maximinus Junior allowed the kissing the Knees Feet and Hands and Diocletian according to Pomponius Laetus published an (e) Vbi omnes sine generis discrimine proâ—â— rati pedes exosâ—ularentur exornans calceamenta auro gemmis margaritis Edict That all without distinction being prostrate should kiss the Feet therefore he adorned his Shoes with Gold Gems and Pearl Yet this was not allowed by all For Tiberius as Suetonius tells us oscula quotidiana prohibuit edicto and the elder (f) Dii prohibeant ut quisquam ingenuorum pedibus meis osculum figat Capitolin Maximin although a Tyrannical and most wicked Prince yet would suffer none to kiss his Feet saying The Gods forbid that any Freeman kiss my Feet And Alexander Severus was only saluted by his Name God save thee Alexander as Lampridius tells us who adds That if any bowed the Head or spoke any thing like a Flatterer if his Quality permitted he was spurned away or if his Dignity allowed not such an Injury to be done him he was laughed at aloud And (g) Lib. 10. Epig. 72. Martial in Trajan's time rejects those base Flatteries that had been used to Domitian thus Ad Parthos procul ite Pileatos Inopes humilesque supplicesque Pictorum sola basiate Regum Princes use now only the kissing of the Hand besides a profound Obeisance to them in stead of these forementioned Adorations and the kissing of the Hand is offered frequently as a Testimony of serviceable Love to other Great Persons according to that of (h) Inest in aliis partibus quaedam Religio sicut dextra osculis aversa appetitur fide
subsequent Acts of Parliament supplied all Defects and all the Limitations of that absolute Power which accrued by Conquest being the free Concession of himself and his Successors which appears in their Grants by way of Charter as I shall hereafter have occasion to enlarge upon it is most evident that the King's Power is absolute where no Law (f) D. Digs Unlawfulness of Resisting can be produced to the contrary and no special Case can be determined by the Subject to the Kings disadvantage and though the Kings succeeding the Conquest to sweeten Subjection quaedam jura pactis minuerunt and these Acts of Grace were confirmed by Promise and Oath No Contract betwixt King and Subjects whereby they may exact an Account yet we find no Footsteps of any security given that should endanger the Person or Regal Authority by giving to their Subjects any legal Power to unking them if they should not perform Covenant Nor could it be rational to expect such for they knew full well if they should not break such Promises yet a Pretence that they did so as we have known it was alledged concerning the Coronation Oath might upon the first opportunity create a Civil War Therefore their Subjects had as little reason to accept as the Kings had to offer so pernicious a Security as would bring both Parties into such a sad Condition For if Rebellion were to be allowed in any Case that Case would be always pretended and though the Prince were Just Wise and Religious yet ambitious Men to compass their own Ends would impute to him Oppression Weakness or Irreligion as the World knows by too sad Experience was verified in King Charles the Martyr who taking his measures of others Sincerity by the rule of his own Heart suffered pretences of publick Good to grow up to insolent Tumults and at last to Rebellion and notwithstanding his Exemplary Practice in his publick Devotions was traduced to have but handsomly dissembled and favoured another Religion in his Heart and at last brought before a crew of Regicides impeached of breach of Trust Tyranny and I know not how many horrid Crimes against his Subjects who yet died the Peoples Martyr and the Royal Asserter of their Liberties and Priviledges which all his Subjects found to expire with him the greatest Arbitrariness and cruellest Tyranny being during their Power exercised by the new Common-wealth Men that ever was read of in any History Those who read Books among those of the Sect of Libertines in Politicks and so much magnify the great name of Liberty of the Subject and co-ordinate Powers Writers who lived under Common-wealths no Guides to us converse most in Greek and Latin Authors who lived under Commonwealths and so were profuse in the commendation of their Country Government against Usurpers or else these admired Authors were (g) Jus Regium p. 134. Stoicks who out of a selfish Pride equalled themselves not only to their Kings but to their own Gods even as our Quakers who pretend a Light within them a more sure guide to them than the Law Now the same reason they had to commend their form of Government We have more reason to commâ—nd our Government than the Romans or Grecians theirs and so much more as Monarchy is preferrable to Aristocracy we in England have reason to commend our Constitution where our Kings are truly the Fathers of their Country and if they would ballance the convenience or inconvenience of either Government they would soon discover it For whereas they say that the Doctrine of Non-resistance is the readiest Motive to establish Tyranny It is much more certain and experimentally known that the Leaders of the Rabble always prove such and that the Distractions of a civil War which ordinarily are occasioned by the pretence of reforming something amiss in the Governours and Competitions betwixt Persons for Soveraignty destroy more than the Lusts of any one Tyrant can do which made Lucan a Republican and of the Pompeian Party conclude after a sad review of the continual Civil Wars betwixt Sylla and Marius Caesar and Pompey without touching upon what followed under the Triumvirs Foelices Arabes Medique Eoaque tellus Qui sub perpetuis tenuerunt Regna Tyrannis And if he preferred even the Tyranny or absoluteness of those Kings before the State of Civil Wars how much more have we reason to submit and that chearfully to the most easy Yoak of the Sovereignty of our Princes We need not be solicitous that their unaccountableness to their Subjects shall prompt them to Tyranny because we have good Security as strong as humane Wisdom ever invented that we shall live happily under that Constitution which our Fore-fathers enjoyed the Benefit of in an high Degree The Security we have that no Arbitrary Government can be exercised in England never distrusting the sound temper of the Policy For first our Kings swear at their Coronations to preserve the Laws Liberties Properties and Religion Secondly If they should command illegal things the Executors of them are responsible to Parliamentary Inquisitions Lastly the Interest of the King is the same with that of the Subject as to their Prosperity and Misery so that a King will always consult the good of his Subjects which made (h) Praeestis hominibus sed hominum causa nec domini modo Arbitri rerum sed Tutores Administratores estis Collata est in sinum vestrum a deo hominibus Respublica sed nempe in sinum ut foveatur Epist Dedicat ad Imp. Reges Principes Lipsius tell the Sovereigns That they govern over Men but for their good and are not only Lords and Judges of Matters but Tutors and Administrators That the Government of the Commonweal by God and Men is placed in their Bosoms or Laps but so as to be cherished and protected there To conclude this discourse We have heard of or seen the sad Calamities the Republican Rebellion brought upon all his Majesties Dominions when the mild Government of King Charles the First was altered to the most Bloody and Tyrannical one of his rebellious Subjects that any Age could parallel and we have had Experience of the merciful Government of his Royal Son and Successor and have lived to see all the Establishments of Usurpers brought to Confusion We have seen a formidable Rebellion burst forth in our Magnanimous King James the Second's Reign which had been forming seven Years before utterly overthrown in two Months and we cannot peruse Histories but we must meet with infinite Examples of the sad devastations such Rebellions bring to their Country and the unsuccessfulness of them Therefore I would earnestly advise all Malecontents never to make their Country's Ruine and the slain Carcasses of their Countrymen the Steps by which they must ascend the Scaffolds or the Rounds of the Ladders they must mount the Gallows which without a Prince's Clemency are the sure Rewards of all Rebels and their certain Fate CHAP.
as well as Norway which was the reason why William the Conquerour understanding that the Danish Law was used in that part where the Danes had settled themselves he preferred them before other Laws because his Country of Normandy was sprung from the Danes and Norwegians and it was with much difficulty that he was perswaded against imposing them upon the whole Kingdom saying the Danes and Norwegians were as sworn Brothers with the Normans These Danes entred about the year 790. and were at last overcome by King Alfred and by agreement betwixt him and Guthrun King of the Danes who governed the Kingdom of the East Angles and Northumbrians Guthruns People enjoyed the Danish Laws which differed from the other in nothing so much as the proportion of the Mulcts King Edward the Elder Aethelstan Edmund and Edgar made Laws but from the time of Edgar to Edward the Confessour the Danes having the principal Command the Danish Laws mostly prevailed But Edward the Confessour of these three Laws composed one which saith the Monk of (d) Lib. 1. c. 50. Edward the Confessor 's Laws composed of all Chester are called the Common Laws and to his Days were called the Laws of King Edward By all I have hitherto noted concerning the Laws either made in Germany France Lombardy Burgundy Bavaria or other Countries after they came to have any established Government of their own or in England during the Heptarchy It is apparent whoever was Soveraign imposed the Laws which as to the Saxons in the next Chapter I shall make particularly appear When the Roman Imperial Law began to be disused That the Roman Laws begun to be disused as soon as their Empire declined and was broken is as manifest for these several Nations by the appointment of their Soveraigns had their unwritten Customs and Laws revised and according to the suitableness of them to the Government of their People had them writ into Books and enjoyned them to be observed by their Subjects To make it evident that the Imperial Roman Law was much disused after Justinian's time upon the account of other Soveraignties being established which acknowledged not that dependence upon the Empire as formerly I shall offer something from Mr. (e) Notes upon Fortescue p. 20. Selden who if any other is to be credited in this kind of reading after I have said something of Justinian The Emperour Justinian (f) Proaem de Consirmatione Institutionum Of Justinian 's Laws in the year of our Lord 565 by the help of Tribonian Master and Exquaestor of the Sacred Palace and Exconsul and of Theophilus and Dorotheus Illustrious Men of whose Skill and Knowledge in the Laws and their Fidelity in observing his Commands the Emperour had manifold experience of Although he had commanded them by his Authority and Perswasions to compose those Institutions that the Subjects might not learn the Law from (g) Non ab Antiquis Fabulis discere sed ab Imperiali splendore appetere Breviter expositum quod antea obtinebat quod postea desuetudine inumbratum Imperiali remedio illuminatum est Legimus recognovimus plenissimum nostrarum constitutionum robur eis accommodavimus Ancient Fables but from the Imperial Splendor as he calls it desire them and after fifty Books of Digests or Pandects and four Books of Institutions were made in which were expounded whatever before-time was used and what by disuse was obscured by the Imperial Remedy was Illuminated and he had accomodated to them his fullest Authority and had appointed them to be read and taught at Rome Berytus and Constantinople and no where else Yet the body of the Civil Law was so neglected that till Lothar the Second about the year 1125. took Amalsi and there found an old Copy of the Pandects or Digests it was in a manner wholly disused Under that Lothar the Civil Law began to be profest at Bologna and one Irner or Werner made the first Glosses upon it about the beginning of Frederick Barbarossas's time in Anno 1150. and Bologna was by Lothar constituted to be Legum Juris Schola una sola (h) Sigon de Regno Italiae lib. 11. 7. This Book Lothar gave to the Pisans by reason whereof saith Mr. Selden it is called Litera Pisana and from thence it is now removed to Florence where in the Dukes Palace it is never brought forth but with Torch-light and other Reverence By this account we may note That even before Justinian's time some Laws had been rather by old Traditions which he calls old Fables than by certain Authority received others were by long disuse forgot and after they were thus established by Imperial Authority yet the succeeding Barbarity of the Ages and the new Kingdoms erected caused other Laws to obtain Force the first of which we find very rude All the first Laws we read of in any Nation seem either so comparatively to the refinedness of the Laws in these Ages or else the Digesters and Authorizers of them complain how obscure rude or indigested those were out of which they extracted theirs The great Subversion the Saxons made by their Conquest The Saxons made so great and universal a Subversion in the State that scarce any City Dwelling River Hill or Mountain retained its former Roman or British name so that we have less reason to expect any satisfactory account either of British History Polity or Laws when we only know where they had Camps Stations or Cities Palaces or Fortifications or Temples by the Coyns Brick tessellated Pavements Glass Earthen or Jett Fragments of Cups and other Houshold-stuff or Urns and Sacrificing Dishes which by chance have been found in the Rubbish of many Towns that have been certainly fired and totally demolished which sufficiently disâ—â—ver the noble Structures and rich Furniture the Romens and Britans had before the Saxon Invasions Besides which we may consider not only the continual Wars and Depredations the Saxons made one upon another but that the Daves like a fatal Hurricane or Whirlwind tore up Root and Branch every where overturning ransacking burning and destroying all that they could not peaceably possess Having thus far treated of the State of the Britans and something of the Laws in general A short Glossary of the Names or Titles of the Constituent Parts of Great Councils as a Praeliminary to the better understanding who are meant by the Persons who we find do constitute the great Councils I shall out of Sir Henry Spelman Somner and Doctor Brady give a very short Glossary referring the curious Reader to the Books themselves The most common Words in the Saxon Laws that are used besides the Bishops The Witan or Wites Einhard divides the Germans into four sorts of Degrees the Noble Free-men those made free and Servants his words are Quatuor differentiis gens illa consistiâ— Nobilium sâ—iliâ—et Liberorum Libertorum atque Servorum Adam Brem Hâ—â—t Eccles c. 5. to express the Persons
its Mitigation So Matt. Paris saith Episcopatus Abbatias omnes quae Baronias tenebant eatenus ab omni servitute sâ—â—ulari libertatem habuerant sub servitute statuit militarâ— and according to the Rules of the Feudal Law which as it was the Law for the most part in Normandy as to Possession and Tenure so was it in England until by the Indulgence of Usurpers as well as of lawful Sovereigns to the great Men and of them to their Tenents and Followers their Tenures became more easie and were changed into Inheritances both Free and Bond. So by Compact or Agreement betwixt kind and favourable as well as indigent Lords and serviceable Tenents as also by the Introduction of the use of the Canon or Imperial Law the Rigor of the Feudal Law was abated and received several Alterations and Amendments by flux of Time and especially by Acts of great Councils or Parliaments and the Necessities or Indulgence of Princes So that instead of more rigid Tenures the soft ones of Fee-simple in all its kinds by Deed or Feofment or inheritable and qualified Copyholds were introduced As to the second Particular concerning William the Conqueror's setling Laws for the equal Government Of the Conqueror's Laws both of the Normans and English I shall first give an account out of (f) Parte posteriori fol. 346. Hoveden what these were and how they were procured He saith That the Danish Laws being understood by the Conqueror to be used in Norfolk Suffolk and Cambridg-shire others (g) Chron. Liâ—â—f See for the Conqueror's Charter and Laws Dr. Brady fol. 17 252 254 258 298 249. add the Deirans and the Isles concerning Forfeitures he preferred them before the other Laws of the Kingdom and commanded they should be observed and gives the reason for it that his and the Ancestors of most of the Barons of Normandy were come from Norway therefore the Laws of the Danes ought to be preferred before those of the Britains viz. of the English and Picts Which saith my (h) Quo audito mox universi compatriota qui legâ—s edixerant tristâ—s essecâ—i unanimiter deprecati sunt quatenus permitâ—eret lâ—ges sibi prâ—prias consueâ—udines â—â—iqua halere Id. num 10. Hoveden fol. 347 num 1. Author being heard by the great Men of the Country who had as hereafter I shall show been appointed to revize the Laws they all were very sorrowful and unanimously intreated him that he would permit them to have the Laws proper to themselves and their ancient Customs under which their Fathers lived and they were born and bred under for that it would be very hard for them to receive unknown Laws and to judge of those things they understood not See Brady's Answer to Argum. Aâ—tiâ—oâ—â— p. 298 299. But finding the King unwilling to be drawn to consent they follow on their suit praying for the Soul of King Edward who bequeathed him his Crown and Kingdom whose Laws they were that they might not have the Laws of strange Nations imposed on them but he would grant them the Continuance of their Countries Laws To which intreaty of his Barons after Counsel taken my Author saith I cannot conceive but here were many of the Saxon Nobility and Men of best Account otherwise they could not call them the Laws their Fathers had lived under and the Normans could not then know much of our Laws or Speech but this was before he had subdued all fully he acquiesced and from that day the Laws of King Edward were of great Authority and Esteem throughout England and were confirmed and observed before other Laws of the Country Our Author further notes That these were not the proper Laws of King Edward but of Edgar his Grandfather which had been little observed for 68 years as in one place and 48 years in another he saith by reason of the Danish Invasions c. and being revived repaired and confirmed by King Edward were called his Laws The Account the Chronicle (i) Anglos Nobiles Sapientes suaâ—â—ge eruditos Id. fol. 348. Spelm. Concil tom 1. fol. 619. of Lichfield gives is this That King William in the fourth year of his Reign at London by the Counsel of his Barons made to be summoned through all the Counties of England all the Noble Wisemen and such as were skilled in their Law that he might hear their Laws and Customs and then gives an account how he approved of the Danish Laws used in Norfolk c. Concerning the Kindness the Conqueror pretended in his first four Years and his Rigour after see at large Dr. Brady in his Answer to the Argumentum Antinormanicum especially p. 260. and 299. But afterwards at the Intreaty of the Community of the English he yielded to grant them King Edward's Laws Before I proceed any further I cannot but note that what Hoveden calls Compatriotae here is called Communitas Anglorum and in both of them afterwards it is called Concilio Baronum by which we may know who these Compatriotae and this Communitas were viz. the Barons or great Men. Our Author proceeds That by the King's Precept out of every County of England Twelve Wisemen were chosen who were enjoyned an Oath before the King that according to their utmost they should discover the establishments of their Laws and Customs (k) Vt quoad possent recto tramite incedentes nec ad dextram nec ad sinistram divertentes nihil addentes nihil praevarieando mutantes Omnia quae praedicti â—urati dixerunt going in a strait Path neither declining to the right or left Hand omitting adding or prevaricating nothing and Aldred Archbishop of York who crowned King William and Hugh Bishop of London by the King's command writ the Laws which the said sworn Persons did produce But it is to be noted that this Chronicle of Lichfield is of a later Date than other Writers and the Laws in it differ from those in Ingulphus The next Testimony is that of (l) Circa sinem Hist fol. 519. num 36. Leges aquiâ—â—mi Regis Edwardi quas Dom. meus inclitus Rex W. authenticas esse perpetuas c. proclamarat Ingulphus who tells us That he brought from London to his Monastery i.e. Croyland the Laws of the most just King Edward which his Lord the famous King VVilliam willed to be Authentic and Perpetual and had proclaimed under the severest Penalties to be inviolably kept through the whole Kingdom of England and commended them to his Justiciaries in the same Language they were set forth in c. of which I shall say something below The Author of Jus Anglorum ab Antiquo and the Argumentum Anti-Normanicum and Mr. Petyt in his Rights of the Commons asserted have writ largely to prove That the Conqueror made little Innovation in our Laws and on the contrary the profoundly learned (m) Answer to Petyt p. 14. Great Officers Normans Doctor Brady hath from undeniable Records
the Justices in Queen Elizabeth's time the Chancellor tells them that the Queen had levied Forces and Reason willeth and the obedience of good Subjects requireth that all things that the Prince commandeth for defence of the State should by the Subjects diligently and obediently be performed for dutys sake either not examining the cause or presuming the best cause but at that time she was pleased to signifie the cause of her doings As to the King of England's making War and Peace abroad it hath always been owned as the King 's sole Prerogative and when some Parliaments have addressed to our Kings to make War or Peace contrary to what the Soveraign judged convenient they have been advertised of their Duties yet when War is to be made in remote Countries which cannot be performed without great Expence much time and the exhausting of the Kingdoms Forces That the People may more chearfully serve their Prince and Country and that the Exchequer may not be too much diminished whereby the usual Charges of the Government may not be substracted Kings have upon good Reason proposed the Matter to their Parliaments whereby necessary Aids might be sufficiently supplied The Laws now in force concerning the Militia are That the (k) 13 Car. 2. c. 6. 14 Car. 2. c. 3. King hath the Prerogative alone to dispose of the Militia of the Nation to make War and Peace Leagues and Truces to grant Safe-Conduct without the Parliament and he may issue out Commissions of Lieutenancy impowering them to form into Regiments to lead them and employ them as well within their own as other Countries as the King shall direct to suppress Insurrections Rebellions and Invasions He hath the Command of all the Forts and places of Strength and alone to have the keeping and Command of the Magazins of Arms he alone to give Letters of Mark and Reprizal in times of War to give Safe-Conduct for Merchants to make a stop of Trades as he sees cause In the time of danger and for defence of the (l) Coke 7. 25. Realm may command all his Subjects to Arm and they are to assist him and for this the Commission of Array may be made use of and all the Courts of Officers of War in a time of War are his Prerogative and the Subjects are to serve the King within the Kingdom against Rebels and Traytors (m) Jenkins Cent. 6. Case 14.26.89 without Pay or Wages and this as it seems in any part of the Nation especially if the King go himself The Subject except in an extraordinary (n) Coke 7.8 Case is not to be forced out of the Realm unless it be to go with the Kings Person nor in any case unless upon the sudden Invasion or Assault of an Enemy to serve the King without wages and the King in time of War may take any mans (o) I e. 3. Stat. 1. 2 Eliz. c. 2. House to build a Fort or make a Bulwark upon any mans Land But the King may not rate the Nation to pay any money towards any War of his It is true in time of Peace the King cannot quarter his Military Forces without the consent of the respective Subjects nor raise money without Act of Parliament for the maintenance of any Army so that the Subject while they keep dutiful are in no danger of oppression by such a Power yet without a competent Standing Force and Guard Some Standing Forces necessary at the Kings absolute pleasure what Livy saith of the Senate (p) Timor inde Patres incessit ac si dimissus exercitus foret rursus câ—tus occultaeque conjurationes fierent Lib. 6. The Long Parliaments Claim of the Militia would be most true of all Soveraigns That if the Forces were dismissed unlawful Assemblies and covert Conspiracies would be again set on foot The longest lived mischievous Parliament that any English History can record knowing that they could not effect their designs of weakning the King without the Power of the Militia though they had a numerous Party prepared to espouse their Interest and as ready for Rebellion as they could desire yet that they might have some colour for justifying their proceedings pretended necessity of putting the Kingdom into a posture of defence against foreign Invasions which by subtile Plots they possessed the people they had Intelligence of and for fear of any violence to be offered to themselves or that the King seduced by evil Counsellors should set up Arbitrary Power so having obtained that Fatal Act of not being to be dissolved without their own consent issued out their Commissions for Levying Trayning and Exercising Forces in all Counties where they had power by no Law or colour of Law but that of pretended imminent danger wherein the King refused to grant Commissions to such as they could confide in for their aforesaid purposes All which was but colour and shew to wrest the Power out of the Kings hands To obviate such like mischievous practices for the future upon his Majestys happy Restauration it was enacted and declared The Claims of any Right of the Two Houses to the Militia totally vacated That the sole supreme Government Command and disposition of the Militia and all Forces by Sea and Land and of all places of strength c. is and by the Law of England ever was the undoubted right of his Majesty and his Royal Predecessors Kings and Queens of England and that both or either of the Houses of Parliament cannot nor ought to pretend to the same nor can or lawfully may raise or levy War offensive or defensive against his Majesty his Heirs and lawful Successors So that now that great Controversy which wasso violently disputed to the loss of so much English Blood and Treasure is I hope eternally determined never again to be revived without an horrid prosperous Rebellion and this Prerogative of the Crown being thus guarded by Law will never more be attacked while the Royal line continues which is to be hoped and wished will without interruption be prolonged while the British Soil exists CHAP. XXXVI Concerning raising of Money upon the Subject and the obligation of Subjects to supply the Soveraign AS to the raising of Money for the support of Government I have discoursed something in the Title of Property and shall here only treat of the necessity in all Government That the Soveraign be plentifully supplyed with a Revenue suitable to the charge Although Darius the Persian be reckoned by Herodotus one of the first that exacted Tribute The necessity of Tributes and Aids yet it cannot be conceived but that ever since there was a Prince who commanded large Countrys and had potent Neighbours Tribute Aid and such like provision was exacted of the people for the defraying the necessary charges of it So Tacitus (a) Nec enim quies gentium sine armis nec arma sine stipendiis nec stipendia sine tributis 4. Hist tells us That we may be
affords us many Examples of Persons selling their Country and putting their great Councils upon ill attempts and labouring with their utmost cunning to frustrate good Designs because their Dependance upon a Foreign State or Kingdom was worth much more unto them than they could hope to gain by honest Service to their Country Supposing both the King and Optimacy be willing to promote the Peoples Happiness yet he is more able to compass that End by reason he hath a more United Power and the Execution of all Designs depends upon a single resolve and therefore may be managed with a certain closeness and all convenient swiftness so that good Councils shall be first discovered in their effects Whereas a great Body move slowly and most times the opportunity of Doing is gone by while they are but half way in their deliberation Besides More Inconveniences under Common-wealths than under Kings cateris paribus as there are many Advantages peculiar to Monarchy as in these three Chapters I hope I have evinced so there is not one Inconvenience to which a People living under Aristocracy are not subject in a much higher Degree than they are under Monarchy For supposing a King cruel yet one Man's Cruelty cannot reach so many as that of Multiplied oppressors when every one takes their peculiar Province to fleece or exercise their Lordliness over according as their Estates or Interests are divided The Covetousness likewise of Senators is more devouring because we may feed one Fire with less Expence of Fewel than five Hundred A Princes profuse Largesses to his Favourites is infinitely over-balanced by so many providing for their poor Kindred and making Friends and purchasing Dependants This very thing must likewise be practised by Senators for underproping their several reputations hiring Advocates to plead for them in their absence purchasing of Votes in their private concerns and obtaining of Offices Places and Estates for themselves and their Relations So that these must require more considerable Supplies from the People who must be squeezed every time any single Grandee wants than are necessary to nourish the Liberality of a Prince who hath a large Patrimony standing Revenue and places of Honour and Profit to gratify his Servants withal The wisest States having made ample allowances to their Princes to enable them to bestow Favours according to Merits or liking Some think that of Ecclesiastes Wo to thee O Land when thy King is a Child a strong Argument against Monarchy Another Objection answered because this Calamity is not incident to a Senate because they are not subject to Nonage But the place rightly understood saith a learned (i) Idem p. 23. Writer whom I have epitomized in the Parallel is a very full Confirmation of the happy Condition we have reason to expect under Monarchy and of the Calamities and Woes which probably attend an Aristocracy For the cause of those Miserie 's foretold is plainly thus A King during his Infancy being not able personally to Rule the Government is managed by the Nobles and thence come Factions and all the Mischiefs that accompany them To close therefore this Chapter we may consider that Kings have no Rivals whom they fear and must keep under as Governours of Commonwealths have which is no small Blessing to a People Kings as Proprietors take all the care possible saith a very (k) Jus Regin◠p. 58. Learned Author to improve their Dominions whereas Republicans are as Tenants mind nothing so much as their private Profit and the very Pretenders to Liberty and Property in this and the last Age have been the great Cheats of the Nation They when raised to govern grew insolent whereas Princes are still the same and their Passions rise not because their Fortunes do not The Prevailing Factions in Commonweals spare none that oppose them having no consideration of them but as Enemies whereas Kings pity even Rebels as considering them still as their Subjects and though I cannot say with my (l) Idem Author of one Year yet I may say of the whole time of the Usurpation That more were murthered and ruined in that Reforming Age than suffered by the Great Mogul and King of France in that space of time and more Severity was exercised by those Reformers than by all the Race of our Kings these Six hundred years And whatever Evil Ministers Kings are said to have yet what that Judicious Author notes of Scotland we may say the like of England That after they had taken from the Blessed King his Prerogative of chusing Judges and Councellors the Parliament did the next year put in I will not say with him the greatest Blockheads and Idiots in the Nation but men of much meaner Parts and more corrupt and unfit either for knowledge or the upright dispensing of the Laws Justice and Equity than any Age had known I have discoursed of this Head before and so shall say no more but that as well as in Antient times the unequal Distribution of Justice hath been noted so the Severity of the State of Venice against their Nobles and the executing Men without Citing or Hearing upon meer Jealousies induced a wise Spaniard who hath collected the Arbitrary Courses practised and allowed in that State to say That there is less of Liberty there than under the worst of Monarchies And for the State of Holland it hath been more than once observed how ingrateful they have been to all their Neighbours who have assisted them in their greatest need and with what a Jealousie they treat the Prince of Orange whose Ancestors setled them in the Possession of what they have as well as to the Crown of England is obvious to common Observation By them their Allies have been unworthily deserted In the matter of Trade no Pact or Faith hath been kept In their Country Mint and Cummin Coleworts and Herbs are excised nothing worn nothing fed upon or necessary for Humane Life but pays something to their Exchequer You pay a Tribute for the Ground you walk on for the Rivulets you pass on only they have not yet found out a Tax upon their Foggy Air. CHAP. X. The Character of a good King in general BEfore I come to treat of the Sovereignty I think it convenient to discourse of the usefullest Qualifications of Monarchs and the benefits that will redound to themselves and their Subjects thereby The (a) Ethic. 8. c. 10. Polit. lib. 3. 5. c. 4. Philosopher in several places compares a King to a Parent and Shepherd but a Tyrant to a Lord over Slaves and a Wolf Difference of a King and a Tyrant The One in his Government having a special Regard to the Peoples Benefit the Other governing without or against Law pro nutu arbitrio reducing all things under their absolute will and Power in such a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as is unhappy to their People and in the Conclusion to themselves The ancient Authors Description of a Good
(f) Glossar p. 362. Leges pristinas longa receptas consuetudine abolevit Britannisque novas dedit Sir Henry Spelman's Glossary I find that the Manuscript saith That he abolished the old Laws received by long Custom and gave to his Britans new ones which from the Makers Name are called the Laws of Hoel Dha Who over reads these Laws saith a judicious (g) Sacred Laws p. 76. Author will have little reason to think our Common Law ran from any such Fountain and it seems the old Laws and Customs of this People were far worse and more rude yet as the Proem informs us I know some will be displeased that I take no notice of the Mulmutian or of the Mercian Laws concerning which the Abbat (h) Jo. Bromp Coll. 956. num 10. of Jorval and the Monk (i) Lib. 1. c. 50. Concerning the Mercian Laws not British See for this and against it what the Judicious Selden hath writ in his fourth fifth and sixth Chapters of his Janus Anglorum in which the Story of Brute is judiciously confuted of Chester give this account That Dunwallo Mulmucius a British King who lived 430 years before our Saviour made those Laws which continued in esteem till Edward the Confessors days by the Name of the Leges Molmucinae in which he appointed Cities the Temples of the Gods and the Ways leading to them and the Ploughs of the Country Men to be Sanctuaries and after Mercia a Queen of the Britans Wife of Gwithelin whom Leland calls Mercia proba in the Minority of her Son saith the Monk of Chester who ruled in the Country of the Mercians published a Law full of Discretion and Justice called the Lex Mercia which two Laws Gildas the Historian translated out of the British Language into Latin and these in the Saxons time were called Merchena Laga or the Law of the Mercians which Alured the Saxon saith the Monk of Chester from the Latin turned into the Saxon Language and added the West Saxon Law and Canutus added the Danelga or Danish Law all which three being joyned together by Edward the Confessor made those we call the Common Law or King Edward's Laws To which I shall only give Sir Henry Spelman's answer in his Glossary That it is true that King Alfred did write the Mercian Laws into his own West Saxon Laws but as appears by the Preface to his Laws that he collected what ever he found in the Laws of King Ina his Countryman Offa King of the Mercians or Ethelbert who was first baptized and those that were just he collected others being rejected It is not probable that Offa a Saxon King the cruellest Enemy to the Britains having driven them out of all the Confines of his Kingdom into Wales should carry back their Laws as his Spoils especially the Laws being so wicked that in the next Age they should be expunged and juster Laws be chosen as we see in the Preface to those of Hoel Dha I shall offer but one Argument more and so conclude with Sir Henry Spelman's opinion When Ethelbert King of Kent made his Laws Anno 613. as in the next Chapter I shall relate Bede saith he framed them after the Roman Example after Romana Bisena by which we may understand either according to the Laws then used by the Civil or Ecclesiastic State of the Romans As to Sir Henry Spelman (k) Glossar tit Lex Whence most Laws after the breaking of the Roman Empire he saith when the Goths Saxons Longobards Danes Normans and other Inhabitants about the Baltic Sea and Northern parts of Germany had made great Conquests in Europe they imposed their Laws every where upon the conquered and their Country Riâ—â— hence the Agreement betwixt the Laws of the Germans French Italians Spaniards and Sicilians and who ever boast of the Antiquity of their Municipal Laws can deduce them no higher For (l) Quis enim victor populus sub victi legibus conquiniscet saith he What conquering People will bow the neck under the Laws of the conquered especially when they have ejected a great part of them out of the Country So that if the Britains had any Laws of their own after the Roman Conquest they must be preserved in the remotest parts of Scotland and after in Wales but England had other Laws as I shall make appear hereafter CHAP. XXIII Of the German Government and Laws of several Countries after breaking of the Roman Empire and an Introduction to understand the Saxon Law-makers HAving treated of the State of the Britans under the Romans I now in order should immediately treat of the Saxons great Councils and discover by what Authority Laws were made in their time who made up the great Council and whose advice was implied in the framing of their Laws But before I enter upon Particulars it may be needful to say something of the German Polity a Member of which most famous Country though we find not them mentioned during the time of the twelve Caesars no doubt the Saxons were Caesar tells us The Gods the Germans worshipped The Germans had no Druids * Germani neque Druidas habent qui rebus divinis praesint neque sacrisiciis student which attended Divine Matters nor did they study Sacrifices and that they accounted among the Gods those they see and from whom they are manifestly helped in their works as the Sun Vulcan and the Moon the rest they have not received as much as by report But Tacitus mentions their God Tuisto born of the Earth and his Son Mannus and that they worshipped Mercury most to whom they sacrificed Men but to Hercules and Mars other Animals Although the Germans Gauls and Britans were Barbarous yet they were Valiant and capable of great Improvement and that some worshipped Isis When I read in Caesar Tacitus Diodorus Strabo and others of the Barbarousness of the Germans Gauls and Britans their homely Diet poor Cottages and Clothing their Habitations dispersed according as there was convenience of Water or Wood and that uncultivated Disposition they describe I am ready to think before the Roman Attacques upon them they had lived something like the Savage Indians and had little of Arts or Industry among them but when I consider on the other side their great Armies their Weapons the Chariots of the Britans and Gauls called Esseda the (a) Lanceo ferreo cubitali longitudine latitudine duorum palmorum Aerea Galea caput muniâ—bant paulatim eminentiore in qua aut cornua impressa essent aut avium vel quadrupedum essigies sculptae Caesar l. 3. Lances of the Gauls with Heads of Iron a Cubit long and two Palms broad their large Shields and Brass Helmets the German Spears called Framâ—â—â— and the Ornaments of their Shields and Helmets with Figures of Birds or four-footed Beasts in Brass their orderly raising of such and such numbers of Men in such and such Circuits and Jurisdiction of Cities and their training up
a se primo essent ordinata Eadmer tells us That when the Archbishop of Canterbury presided in a general Council of the Bishops the King permitted him not to appoint or forbid any thing but such things as were agreeable to his will and by himself were first ordained Also he saith in all his Dominions he would allow no Bishop of Rome to be accounted Apostolic but whom he commanded to be received nor any to receive his Bulls or Breves unless they were first shown to him I have in the beginning of this Chapter spoken something of the Mutations that William the Conqueror made in the Constitution of the Government of England concerning which I shall only note That the Conqueror took all the care that a great Commander and Conqueror of a great Nation could do for securing his Conqests (p) Pictav fol. 197. C. Ingulph 512. a lin 7. What the Conqueror did to secure his Conquest by building Fortresses and Castles within the City of London and placing Norman Garrisons and French Governours or Castellanes in the Castles in the Country and giving them great Estates and carrying the chief of the English Nobility with him as Hostages into Normandy and imposed his Laws as Pictavensis relates (q) Id. fol. 2â—6 a. 207 c. 2â—8 a. b. and though he who was Chaplain to the Conqueror speak of the Conqueror's smooth behaviour to the English ordering things as he saith prudently justly and mildly some to the Profit and Dignity of the City some to the advantage of the whole Nation and other some to the benefit of the Churches of the Land and whatever Laws he dictated he established with excellent reason and adds That no French-man (r) Nulli tamen Gallo datum est quod Anglo â—uiquam injuste fuecit ablatum Idem fol. 208. c. had any thing given him which was unjustly taken from any Englishman which last Ordericus Vitalis omits though in other things he follows Pictavensis exactly yet Pictavensis writing but to the Fourth of his Reign Anno 1070. as is noted by Ordericus we must look upon them as incompetent Witnesses of the severity the Conqueror after used when he had secured his Conquest So that what is urged by some of the Conqueror's lenity and his little change of Laws and Government is to be understood of those times while he was unsafe in his Conquests and doth not so interfere as they would make the World believe How he comported himself after he had secured his Conquest with the assertion of those who from credible Authors speak of his treating the English as a Conquered People For Pictavensis (s) Jure Belli possedit fol. 206. a. saith that he possessed the Country by the rights of War Ordericus (t) Adjutoribus suis inclytas Angliae Regiones distribuit ex insimis Normannorum Clientibus Tribunos Centuriones ditissimos erexit Orderic Vit. 251. Vitalis saith That having circumvented the two great Earls of Mercia and slain Edwin and imprisoned Morcas then he began to shew himself and gave the best Counties of England to his Assistants and of the lowest of the Norman Clients or very mean People he made very rich Colonels and Captains as he particularizes there and in another (u) Fundos eorum cum omnibus divitiis obtinâ—imus Id. fol. 853. place That having overthrown by Force and Arms the English Saxons they obtained their Lands and all their Riches Malmsbury (w) Malmsb. fol. 52. a. num 40. Vix aliquis Princeps de progenie Anglorum esset in Anglia sed omnes ad servitutem moerorem redacti essent ita ut Anglieum vocari opprobrjum saith That there was no Englishman Duke or Bishop or Abbat but Strangers do gnaw the Riches and very Bowels of England So (x) Hen. Hunt fol. 210 b. num 10. About the continuing the English Saxons but changing their Tenures Services c. Hen. of Huntingdon saith there was scarce any Prince of the Progenie of the English but all are reduced to Servitude and Sorrow so that it is a disgrace to be called an Englishman and Gervase of Canterbury saith That he used both Ecclesiastick and Secular Rights or Laws as he pleased tam Ecclesiastica Jura quam secularia sibi usurpavit As to King William's displacing of the Saxons I find in the Transcript of Doomsday-Book that I have for Yorkshire that very many enjoyed the same Lands they did in Edward the Confessors time but I remember no where that I do not find them hold of some Norman Lords which is agreeable to what Dr. Brady writes but I refer the Discourse of those to my Antiquities of Yorkshire if God give me life and ability to publish them As to the Conqueror's changing the holding of Lands here to the (y) Spelman Gloss Feodam Feudal Tenure used in Normandy begun by the Germans Longobards Francks and others and of which something seems to be hinted in the English Saxon Laws all Authors do conclude that the Conqueror brought the exacter use at least of them into England and divided the whole Land into several Knights-fees whereof there are reckoned 700 Tenants in Capite besides Bishops Abbats Priors and great Church-men and the Laws of King Edward that the Conqueror permitted to be used were either most of them Penal Laws from which he got profit or such as are properly his own and were efficacious for the preservation of the Peace and establishment of Government as the 52 55 56 58 59 64. whereof the 55 58 and 59. are Feudal How William the Conqueror brought in his other Norman Laws Dr. Brady in his Preface to the Norman Story hath at large discoursed so that in Justice I must refer the Curious Reader to his elaborate work and to Mr. Selden in his Second Book of his Janus Anglorum Of the Great Councils in William the Second's time IN the Reign of William Rufus we find few Great Councils So that Anselm Archbishop of Canterbury complains (a) Eadmer Hist Nov. lib. 1. fol. 24. lin 8. to him when he was preparing to pass into Normandy that since he was King there had been no General Council of the Bishops nor of several years before so that Christianity was much decayed The first great Council I have met with is that of Winchester (b) Idem fol. 20. num 30. Anno D. 1093. 5 W. Rusi The Contest betwixt William the Second and Anselm This Council is only thus expressed Rex adunato Wintoniae conventu Nobilium without specifying either Ecclesiasticks or Laicks In this Council the King declared Anselm Archbishop and he did Homage to him (c) Idem p. 26. num 10.6 Gul. 2. This Anselm sought leave of the King that he might go to Rome to receive the Pall from Pope Vrban whom the King did not own for Pope but Clement This and some other Matters occasioned sharp words and unkindness from the King to Anselm the King absolutely denying
Assembly was that things there proposed may be orderly and diligently debated deeply considered and thereupon wisely concluded To examine whether any Law already made be too sharp and sore and so over-burthensome to the Subject or over-loose and soft and so over-dangerous to the State For that acriores sunt morsus intermisseae Libertatis quam retentae He further adds The use of them is to consider the want and superfluities of Laws whether Graft Malice or Covetousness hath devised any ways or means to defraud the Benefit and Force of Laws and in matter of Policy for the more perfect upholding and establishing the Soveraigns Royal State and the Preservation of the Common-weal committed to the Princes care Bodin (i) Lib. 3. de Repubâ— p. 350. commends the Constitution of the Government in England and Spain that they have Parliaments once in three Years whereby Princes upon any imminent danger may have recourse to their Council and Assistance to defend their Countries from Hostile Attempts to raise Money for public Necessity cure the Diseases of the Commonweal confirm the State appoint Laws hear the Complaints of the grieved amend Male-Administration by calling ill Mannagers to account understand what the Prince otherwise may be ignorant of and generally to have counsel in all things which in Prudence are necessary for the happy Government of the Commonweal Sir (k) Commonwealth part 1. c. 2. p. 37. Tho. Smith saith As in War where the King himself is in Person with the Nobility Gentry and Yeomanry the Power and Force of England is So in Peace and Consultation where the Prince is to give Life and the last and highest Commandment the Nobility for the higher the Knights Esquires and Gentlemen for the lower part of the Commonwealth and the Bishops for the Clergy be present to advertise and consult and shew what is necessary for the Commonwealth every thing being advised with mature Deliberation every Bill being thrice read and disputed upon in either House apart and after the Prince himself doth consent thereto that is the Prince's and whole Kingdoms Deed whereupon no Man can justly complain but must accommodate himself to find it just See Prynne part 1. Brief Register p. 447. good and obey it and concludes that whatever the People of Rome might do either in Centuriatis or Tribunitiis Comitiis the same may be done by the Parliament of England which representeth and hath the Power of the whole Kingdom Thus far of the general use now to the Constitution Concerning the word Parliament it is concluded by most Of the word Parliament to come from the French word parler to speak therefore before the word was used by our Historians as appliable to this great Convention the Latin word Colloquium was frequently used to signify a Conference betwixt the King and the great Men summoned to consult advise and take Counsel with the King and among themselves Yet before the word was used to signifie these great Assemblies we find it applied to other Meetings in William Rufus's time For Ingulphus Abbat of Croyland speaking of private Consultations in that Abby saith That Semannus de Lek (a) Veniens coram conventu in nostro publico Parliamento c. coming before the Convention in their publick Parliament took his Oath of Fidelity to them as Serjeant of their Church The First that is noted to use this word among all our Historians is (b) Convenit ad Parliamentum Generalissimum totius Regni Angliae c. p. 674. Matthew Paris Anno 1246. 30 H. 3. where he saith There came to the most general Parliament to London the whole Nobility of all the Kingdom of England The first Mention of it on Record is in the (c) Cl. 49 E. 3. d. 11. Writ of Summons to the Cinque Ports summoning them ad instans Parliamentum nostrum and the next is in the Writ of Prorogation of the (d) Cl. 3 E. 1.20 dorso Parliament 3 E. 1. where it is twice mentioned in the Writ generale Parliamentum nostrum eodem Parliamento Having premised thus much concerning the Name and first usage I shall now discourse of it in particular SECT 2. Of the Summons of the Prelates THAT the King is Caput Principium Finis Parliamenti as Sir Edward Coke notes is obvious to all The Summons have been constantly from the King The Summons only from the King or in his Name In the former Chapters I have discoursed out of our Historians that the Great Councils were always convened by the Kings Now I come to prove it by Records and shall note first the Summons to the Prelates then of the Nobles and thirdly of the Knights Citizens and Burgesses only noting some of the remarkablest of them from Mr. Prynn who hath so fully writ of them in his brief Register of Parliamentary Writs in four parts and his Brevia Parliamentaria Rediviva to whose indefatigable pains in transcribing such an infinite of Records all Antiquaries Lawyers and Statesmen will be always beholding though in the use he made of such before the late King's Restauration or at least while he sate in the long Parliament few Loyal Men can follow his Doctrines All the Writs before the Sixth of King John whereby any were summoned to great Councils are utterly lost that runs (e) Claus 6 Joh. m. 3. dorso The Summons in King John's time thus Mandamus vobis rogantes quatenus omni occasione dilatione postposita sicut nos honorem nostrum diligitis sitis ad nos apud London c. nobiscum tractaturi de magnis arduis negotiis nostris communi Regni Vtilitate vestrum habere consilium aliorum Magnatum Terraendstrae Abbates Priores conventuales toti Diuoecesis citari faâ—iatis The second Record is (f) Claus 26 H. 3. m. 13. dorso 26 H. 3. directed to Walter Archbishop of York differing from the former in these particulars Sicut nos honorem nostrum here is added Pariter vestrum diligitis in fide qua nobis tenemini Anno 38 H. 3. the Writ is directed to the Archbishop of Canterbury Paternitatem vestram omni qua possumus affectione rogamus quatenâ—s nos Jura nostra totaliter indeâ—ensa non deserentes cum omni celeritate convocetis coram vobis Capitulum vestrum Cathedrale Archidiaconos Viros Religiosos Clerum vobis subjectum inducentes eos omnibus modis quibus poteritis quod nobis in tanta necessitate liberaliter subveniant I do not bring in this as a Writ of Summons to a Parliament These Summons for Military Aid out only as a special Writ to excite the Clergy to a free voluntary and liberal Contribution for defence of Gascoign and so to show the Customs of Benevolences in that Age out of Parliament The next (g) Claus 49 H. 3. dorso 11. in schedula The first Summons to the Lords when the Commons also were summoned Writ of
better Condition though Gentiles than the Christians under the Romans or that it is derived from Gens I am more inclined to be of the latter Opinion finding it more agreeable to the common Use For Cicero (b) In Topicis calls those Gentiles qui ex eadem Gente Ingenui qui nunquam Capite sunt diminuti Gens consisting of a multitude which have sprung from one Generation and of many of these Gentes consists a Nation to which agrees that of (c) Gentilis dicitur ex eodem genere ortus is qui simili nomine appellatur Festus ad Verbum Festus that Gentilis is one born of the same Gens or Kindred and who is called by the like Name So we find the Horatii the Corvine Julian Flavian Family c. So the Greeks use the words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for one nobly descended from great Parentage So 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 was Nobility which (d) Polit. lib. 4. c. 8. lib. 5. c. 1. Aristotle calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Antient Wealth and Vertue or the (e) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Rhetor. ad Theod lib 2. c. 5. Dignity of the Ancestor The first Authors of it being stiled famous Men and Honourable 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 In the largest acceptation of the Word as it is now used saith the judicious (f) Tiles of Honour p. 852. Selden it denotes one that either from the Blood of his Ancestors or the Favour of his Sovereign or of them that have Power from the Sovereign or from his own Vertue Employment or otherwise according to the Laws and Customs of Honour in the Country he lives in is ennobled made Gentile or so raised to an eminency above the Multitude perpetually inherent in his Person These are stiled the Nobiles minores for distinction sake The use of the word Nobilis the word Nobiles being now appropriated to those of the higher Rank The ancient use of Nobilis especially before the Roman Monarchy was such that it was justly given to none but him that had Jus imaginum or some Ancestor at least that had born some of the great Offices or their Magistratus Curules as (g) 〈…〉 1. cap. 19. Censorship Consulship c. From whose Image kept he had the Jus Imaginum Therefore the preceding Ancestor was called novus Homo or Ignobilis Some Ages after the Romans were under a Monarchy the Title of Nobilis was given to such as by the Emperors Patents of Offices or their Codicilli Honorarii were first raised out of the lowest Rank After that Arms of Ensigns of Distinction born upon Shields grew to be in may Families Hereditary which was about four hundred Years since as Sir Edward Bish in his Aspilogia avoucheth it came into frequent use that he who was either formerly ennobled by Blood or newly by acquisition either assumed or had by Grant from his Sovereign or those deputed by him some special note of Distinction by Arms also to be transmitted with his Gentry to his Posterity Yet (h) 〈◊〉 Mr. Selden notes that in the Proceedings in the Court of Chevalry betwixt Reginald Lord Grey of Ruthin Plaintiff and Sir Edward Hastings Defendant concerning the bearing of a Manch Gules in a◠Field Or in the depositions taken in the Moote Hall at Bedford it is recorded that John Botiler of the County of Bedford and Roger Tenstal Mayor of Bedford having been the Plaintiffs Servants severally deposed Il est Gentilhom d' Auncestrie mas nad point d' Armes Gentlemen without coats of Arms. That he was a Gentlemen of antient time but had no Arms. But I shall pass from this That which I desire the Gentry to observe is Advice to the Gentry That they are the Seminary of our greater Nobility and that from Loyal Wise Learned Valiant and Fortunate Persons of their Order in all Princes Reigns the Nobility have sprung Therefore as some of them are derived from as numerous Ancestors as any in other Kingdoms and have by Hereditary Succession greater Estates than many foreign Counts and as they desire either to conserve the Repute their Ancestors have honourably entailed on them or to transmit them to their Posterities so it will be their Interest and Glory to accomplish themselves in all sorts of useful Learning whereby they may be Serviceable to their King and Country There are Bodily Exercises they should be well skilled in as Fencing Riding the great Horse and all Military Exercises to enable them to serve in the Militia of the Nation and their diligent perusing all sorts of History and the Laws of the Land will fit them for the managing of Civil affairs and dispensing the Kings Laws as Justices of Peace Sheriffs Commissioners Representatives in Parliament as also for the greater Offices of State Since they are born to large Patrimonies and thereby have a more generous Education and derive a more refined Spirit from their Ancestors they can with infinite more Ease enter into publick Employment having none of those sinking (i) Hand facile emergunt quorum virtutibus obstat Res angust a domi weights of Poverty and mean Education which enforce others to use extream Diligence e're they can mount the first half Pace the Gentleman is seated on by that time he leaves his tutors It is true the Priviledges of the Gentry of England properly so called are not so great as in some Countries where they have power of Life and Death over their Servants or are exempted from Taxes and enjoy other Immunities which are denied to the Commons yet they have others as beneficial in that they make up a great share of the Ministerial parts of the Government It is required by God and their Prince that they should so deport themselves as they may be singular (k) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dio lib. 2. Examples to their Tenants and Neighbours of Wisdom Temperance Justice Loyalty and all the System of Vertues and by a generous Hospitality without Debauchery preserve their Interest in the affection of their Neighbors and that the Poor may daily and zealously pray for them being made the Voiders and receiving the Sportula of their plentiful Tables By this way of living they will sow among their Neighbours the Seeds of all useful Vertues and enrich their Countries and be able in time of need to serve their Prince with their numerous Dependants It is for the use of the blooming Gentlemen I write this The more sage and ancient need only such Intimations to refresh their Memories I have made Observations how fatal it hath been to themselves and the whole Kingdom when the Gentry have been seduced to sleight at first and after as they have been wrought upon by Designers to over-awe or overturn the Government and either by Piques among themselves or Aemulations Envies and Discontents have been brought into the Combinations and Conspiracies with those who under the specious Pretences