Justice A natural Reason is to be rendered for it It is the Multitude of People and the abundance of their Riches which are the only Strength and Glory of every Prince The Bodies of his Subjects do him Service in War and their Goods supply his present Wants therefore if not out of Affection to his People yet out of Natural Love to Himself every Tyrant desires to preserve the Lives and protect the Goods of his Subjects which cannot be done but by Justice and if it be not done the Prince's Loss is the greatest on the contrary in a Popular State evey man knows the Publick good doth not depend wholly on his Care but the Common-wealth may well enough be governed by others though he tend only his Private Benefit he never takes the Publick to be his Own Business thus as in a Family where one Office is to be done by many Servants one looks upon another and every own leaves the Business for his Fellow until it is quite neglected by all nor are they much to be blamed for their Negligence since it is an even Wager their Ignorance is as great For Magistrates among the People being for the most part Annual do always lay down their Office before they understand it so that a Prince of a Duller Understanding by Use and Experience must needs excell them again there is no Tyrant so barbarously Wicked but his own reason and sense will tell him that though he be a God yet he must dye like a Man and that there is not the Meanest of his Subjects but may find a means to revenge himself of the Injustice that is offered him hence it is that great Tyrants live continually in base fears as did Dionysius the Elder Tiberius Caligula and Nero are noted by Suetonius to have been frighted with Panick fears But it is not so where wrong is done to any Particular Person by a Multitude he knows not who hurt him or who to complain of or to whom to address himself for reparation Any man may boldly exercise his Malice and Cruelty in all Popular Assemblies There is no Tyranny to be compared to the Tyranny of a Multitude 16. What though the Government of the People be a thing not to be endured much less defended yet many men please themselves with an Opinion that though the People may not Govern yet they may partake and joyn with a King in the Government and so make a State mixed of Popular and Regal Power which they take to be the best tempered and equallest Form of Government But the Vanity of this Fancy is too evident it is a meer Impossibility or Contradiction for if a King but once admit the People to be his Companions he leaves to be a King and the State becomes a Democracy at least he is but a Titular and no Real King that hath not the Sovereignty to Himself for the having of this alone and nothing but this makes a King to be a King As for that Shew of Popularity which is found in such Kingdoms as have General Assemblies for Consultation about making Publick Laws It must be remembred that such Meetings do not share or divide the Sovereignty with the Prince but do only deliberate and advise their Supreme Head who still reserves the Absolute Power in himself for if in such Assemblies the King the Nobility and People have equal Shares in the Sovereignty then the King hath but one Voice the Nobility likewise one and the People one and then any two of these Voices should have Power to over-rule the third thus the Nobility and Commons together should have Power to make a Law to bind the King which was never yet seen in any Kingdom but if it could the State must needs be Popular and not Regal 17. If it be Unnatural for the Multitude to chuse their Governours or to Govern or to partake in the Government what can be thought of that damnable Conclusion which is made by too many that the Multitude may Correct or Depose their Prince if need be Surely the Unnaturalness and Injustice of this Position cannot sufficiently be expressed For admit that a King make a Contract or Paction with his People either Originally in his Ancestors or personally at his Coronation for both these Pactions some dream of but cannot offer any proof for either yet by no Law of any Nation can a Contract be thought broken except that first a Lawful Tryal be had by the Ordinary Judge of the Breakers thereof or else every Man may be both Party and Judge in his own case which is absur'd once to be thought for then it will lye in the hands of the headless Multitude when they please to cast off the Yoke of Government that God hath laid upon them to judge and punish him by whom they should be judged and punished themselves Aristotle can tell us what Judges the Multitude are in their own case 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The Judgment of the Multitude in Disposing of the Sovereignty may be seen in the Roman History where we may find many good Emperours Murthered by the People and many bad Elected by them Nero Heliogabalus Otho Vitellius and such other Monsters of Nature were the Minions of the Multitude and set up by them Pertinax Alexander Severus Gordianus Gallus Emilianus Quintilius Aurelianus Tacitus Probus and Numerianus all of them good Emperours in the Judgment of all Historians yet Murthered by the Multitude 18. Whereas many out of an imaginary Fear pretend the Power of the People to be necessary for the repressing of the Insolencies of Tyrants wherein they propound a Remedy far worse than the Disease neither is the Disease indeed so frequent as they would have us think Let us be judged by the History even of our own Nation We have enjoyed a Succession of Kings from the Conquest now for above 600 years a time far longer than ever yet any Popular State could continue we reckon to the Number of twenty six of these Princes since the Norman Race and yet not one of these is taxed by our Historians for Tyrannical Government It is true two of these Kings have been Deposed by the People and barbarously Murthered but neither of them for Tyranny For as a learned Historian of our Age saith Edward the Second and Richard the Second were not insupportable either in their Nature or Rule and yet the People more upon Wantonness than for any want did take an unbridled Course against them Edward the Second by many of our Historians is reported to be of a Good and Vertuous Nature and not Unlearned they impute his defects rather to Fortune than either to Council or Carriage of his Affairs the Deposition of him was a violent Fury led by a Wife both Cruel and unchast and can with no better Countenance of Right be justified than may his lamentable both Indignities and Death it self Likewise the Deposition of King Richard II was a tempestuous Rage neither Led or Restrained
that is God can only compel but the Law and his Courts may advise Him Rot. Parliament 1 Hen. 4. nu 79. the Commons expresly affirm Judgment in Parliament belongs to the King and Lords These Precedents shew that from the Conquest until a great part of Henry the Third's Reign in whose days it is thought the Writ for Election of Knights was framed which is about two hundred years and above a third part of the time since the Conquest to our days the Barons made the Parliament or Common Councel of the Kingdom under the name of Barons not only the Earls but the Bishops also were Comprehended for the Conquerour made the Bishops Barons Therefore it is no such great Wonder that in the Writ we find the Lords only to be the Counsellors and the Commons Called only to perform and consent to the Ordinances Those there be who seem to believe that under the word Barons anciently the Lords of Court-Barons were comprehended and that they were Called to Parliament as Barons but if this could be proved to have been at any time true yet those Lords of Court-Barons were not the representative Body of the Commons of England except it can be also proved that the Commons or Free-holders of the Kingdom chose such Lords of Court-Barons to be present in Parliament The Lords of Manors came not at first by Election of the People as Sir Edw. Coke treating of the Institution of Court-Barons resolves us in these words By the Laws and Ordinances of ancient Kings and especially of King Alfred it appeareth that the first Kings of this Realm had all the Lands of England in Demean and les grand Manors and Royalties they reserved to themselves and of the remnant they for the Defence of the Realm enfeoffed the Barons of the Realm with such Jurisdiction as the Court-Baron now hath Coke's Institutes First part Fol. 58. Here by the way I cannot but note that if the first Kings had all the Lands of England in Demean as Sir Edw. Coke saith they had And if the first Kings were chosen by the People as many think they were then surely our Fore-fathers were a very bountiful if not a prodigal People to give all the Lands of the whole Kingdom to their Kings with Liberty for them to keep what they pleased and to give the Remainder to their Subjects clogg'd and encumbred with a Condition to defend the Realm This is but an ill sign of a limited Monarchy by original Constitution or Contract But to conclude the former point Sir Edward Coke's Opinion is that in the ancient Laws under the name of Barons were comprised all the Nobility This Doctrine of the Barons being the Common Councel doth displease many and is denied as tending to the Disparagement of the Commons and to the Discredit and Confutation of their Opinion who teach that the Commons are assigned Councellors to the King by the People therefore I will call in Mr. Pryn to help us with his Testimony He in his Book of Treachery Disloyalty c. proves that before the Conquest by the Laws of Edward the Confessor cap. 17. The King by his Oaths was to do Justice by the Councel of the Nobles of his Realm He also resolves that the Earls and Barons in Parliament are above the King and ought to bridle him when he exorbitates from the Laws He further tells us the Peers Prelates have oft translated the Crown from the right Heir 1. Electing and Crowning Edward who was illegitimate and putting by Ethelred the right Heir after Edgars decease 2. Electing and Crowning Canutus a meer Foreigner in opposition to Edmund the right Heir to King Ethelred 3. Harold and Hardiknute both elected Kings successively without title Edmund and Alfred the right Heirs being dispossessed 4. The English Nobility upon the Death of Harold enacted that none of the Danish bloud should any more reign over them 5. Edgar Etheling who had best Title was rejected and Harold elected and crowned King 6. In the second and third year of Edw. 2. the Peers and Nobles of the Land seeing themselves contemned entreated the King to manage the Affairs of the Kingdom by the Councel of his Barons He gave his Assent and sware to ratifie what the Nobles ordained and one of their Articles was that He would thenceforward order all the Affairs of the Kingdom by the Councel of his Clergy and Lords 7. William Rufus finding the greatest part of the Nobles against him sware to Lanfranke that if they would choose him for King he would abrogate their over-hard Laws 8. The Beginning saith Mr. Pryn of the Charter of Hen. 1. is observable Henry by the Grace of God of England c. Know ye That by the Mercy of God and Common Councel of the Barons of the Kingdom I am Crowned King 9. Maud the Empress the right Heir was put-by the Crown by the Prelates and Barons and Stephen Earl of Mortain who had no good Title assembling the Bishop and Peers promising the amendment of the Laws according to all their Pleasures and Liking was by them all proclaimed King 10 Lewis of France Crowned King by the Barons instead of King John All these Testimonies from Mr. Pryn may satisfie that anciently the Barons were the Common Councel or Parliament of England And if Mr. Pryn could have found so much Antiquity and Proof for the Knights Citizens and Burgesses being of the Common Councel I make no doubt but we should have heard from him in Capital Characters but alas he meets not with so much as these Names in those elder Ages He dares not say the Barons were assigned by the People Councellors to the King for he tells us every Baron in Parliament doth represent his own Person and speaketh in behalf of himself alone but in the Knights Citizens and Burgesses are represented the Commons of the whole Realm therefore every one of the Commons hath a greater voice in Parliament than the greatest Earl in England Nevertheless Master Pryn will be very well content if we will admit and swallow these Parliaments of Barons for the representative Body of the Kingdom and to that Purpose he cites them or to no Purpose at all But to prove the Treachery and Disloyalty of Popish Parliaments Prelates and Peers to their Kings which is the main Point that Master Pryn by the Title of his Book is to make good and to prove As to the second Point which is That until the time of Hen. 1. the Commons were not called to Parliament besides the general Silence of Antiquity which never makes mention of the Commons Coming to Parliament until that time our Histories say before his time only certain of the Nobility were called to Consultation about the most important affairs of the State He caused the Commons also to be assembled by Knights Citizens and Burgesses of their own Appointment much to the same purpose writes Sir Walter Raleigh saying it is held that the Kings of England
had no formal Parliaments till about the 18 th year of King Hen. 1. For in his Third year for the Marriage of his Daughter the King raised a Tax upon every Hide of Land by the Advice of his Privy Councel alone And the Subjects saith he soon after this Parliament was established began to stand upon Terms with their King and drew from him by strong hand and their Swords their Great Charter it was after the establishment of the Parliament by colour of it that they had so great Daring If any desire to know the cause why Hen. 1. called the People to Parliament it was upon no very good Occasion if we believe Sir Walter Raleigh The Grand Charter saith he was not originally granted Regally and freely for King Hen. 1. did but usurp the Kingdom and therefore the better to secure himself against Robert his elder Brother he flattered the People with those Charters yea King John that confirmed them had the like Respect for Arthur D. of Britain was the undoubted Heir of the Crown upon whom John usurped so these Charters had their original from Kings de facto but not de jure and then afterwards his Conclusion is that the Great Charter had first an obscure Birth by Vsurpation was fostered and shewed to the World by Rebellion in brief the King called the People to Parliament and granted them Magna Charta that they might confirm to him the Crown The third Point consists of two parts First that the Commons were not called to Parliament until Hen. 3. days this appears by divers of the Precedents formerly cited to prove that the Barons were the Common Councel For though Hen. 1. called all the People of the Land to his Coronation and again in the 15. or 18. year of his Reign yet always he did not so neither many of those Kings that did succeed him as appeareth before Secondly For calling the Commons by Writ I find it acknowledged in a Book intituled The Privilege and Practice of Parliaments in these words In ancient times after the King had summoned His Parliament innumerable multitudes of People did make their Access thereunto pretending that Privilege of Right to belong to them But King Hen. 3. having Experience of the Mischief and inconveniences by occasion of such popular Confusion did take order that none might come to His Parliament but those who were specially summoned To this purpose it is observed by Master Selden that the first Writs we find accompanied with other Circumstances of a Summons to Parliament as well for the Commons as Lords is in the 49 of Hen. 3. In the like manner Master Cambden speaking of the Dignity of Barons hath these words King Hen. 3. out of a great Multitude which were seditious and turbulent called the very best by Writ or Summons to Parliament for he after many Troubles and Vexations between the King himself and Simon de Monefort with other Barons and after appeased did decree and ordain That all those Earls and Barons unto whom the King himself vouchsafed to direct His Writs of Summons should come to his Parliament and no others but that which he began a little before his Death Edward 1. and his Successors constantly observed and continued The said prudent King Edward summoned always those of ancient Families that were most wise to His Parliament and omitted their Sons after their Death if they were not answerable to their Parents in Vnderstanding Also Mr. Cambden in another place saith that in the time of Edw 1. select men for Wisdom and Worth among the Gentry were called to Parliament and their Posterity omitted if they were defective therein As the power of sending Writs of Summons for Elections was first exercised by Hen. 3. so succeeding Kings did regulate the Elections upon such Writs as doth appear by several Statutes which all speak in the Name and Power of the Kings themselves for such was the Language of our Fore-fathers In 5 Ric. 2. c. 4. these be the words The King Willeth and Commandeth all Persons which shall have Summons to come to Parliament and every Person that doth absent himself except he may reasonably and honestly excuse him to Our Lord the King shall be amerced and otherwise punished 7 Hen. 4. c. 15. Our Lord the King at the grievous complaint of his Commons of the undue Election of the Knights of Counties sometimes made of affection of Sheriffs and otherwise against the Form of the Writs to the great slander of the Counties c. Our Lord the King willing therein to provide Remedy by the Assent of the Lords and Commons Hath Ordained That Election shall be made in the full County-Court and that all that be there present as well-Suitors as others shall proceed to the Election freely notwithstanding any Request or Command to the contrary 11 Hen. 4. c. 1. Our Lord the King Ordained that a Sheriff that maketh an undue Return c. shall incur the Penalty of a 100 l. to be paid to Our Lord the King 1 H. 5. c. 1. Our Lord the King by the Advice and Assent of the Lords and the special Instance and Request of the Commons Ordained that the Knights of the Shire be not chosen unless they be resiant within the Shire the day of the date of the Writ and that Citizens and Burgesses be resiant dwelling and free in the same Cities and Burroughs and no others in any wise 6 Hen. 6. c. 4. Our Lord the King willing to provide remedy for Knights chosen for Parliament and Sheriffs Hath Ordained that they shall have their Answer and traverse to Inquest of Office found against them 8 Hen. 6. c. 7. Where as Elections of Knights have been made by great Out-rages and excessive number of People of which most part was of People of no value whereof every of them pretend a Voice equivalent to Wortby Knights and Esquires whereby Man-slaughters Riots and Divisions among Gentlemen shall likely be Our Lord the King hath ordained That Knights of Shires be chosen by People dwelling in the Counties every of them having Lands or Tenements to the value of 2 l. the year at the least and that he that shall be chosen shall be dwelling and resiant within the Counties 10 H. 6. Our Lord the King ordained that Knights be chosen by People dwelling and having 2 l. by the year within the same County 11 H. 6. c. 11. The King willing to provide for the Ease of them that come to the Parliaments and Councels of the King by his commandment hath ordained that if any Assault or Fray be made on them that come to Parliament or other Councel of the King the Party which made any such Affray or Assault shall pay double Damages and make Fine and Ransom at the Kings Will. 23 H. 6. c. 15. The King considering the Statutes of 1 H. 5. c. 1. 8 Hen. 6. c. 7. and the Defaults of Sheriffs in returning Knights Citizens and Burgesses ordained 1. That
the King a Subject Councel loseth the name of Counsel and becomes a Command if it put a Necessity upon the King to follow it such Imperious Councels make those that are but Counsellors in name to be Kings in Fact and Kings themselves to be but Subjects We read in Sir Robert Cotton that towards the end of the Saxons and the first times of the Norman Kings Parliaments stood in Custom-grace fixed to Easter Whitsuntide 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 for Guests to bar him their Company who gave them their Entertainment And although now a-days the Parliament sit not in the Court where the Kings houshold remains yet still even to this day to shew that Parliaments are the Kings Guests the Lord Steward of 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 takes the Oaths of the Members of the House of Commons the first day of the Parliament Sir Richard Scroop Steward of the Houshold of our Sovereign Lord the King by the Commandment of the Lords sitting in full Parliament in the Great Chamber put J. Lord Gomeniz and William Weston to answer severally to Accusations brought against them The Necessity of the King's Presence in Parliament appears by the Desire of Parliaments themselves in former times and the Practice of it Sir Robert Cotton proves by several Precedents whence he concludes that in the Consultations of State and Decisions of private Plaints it is clear from all times the King was 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 final Judgment is only the Kings Indeed of late years Queen Mary and Queen Elizabeth by reason of their Sex being not so fit for publick Assemblies have brought them out of Use by which means it is come 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 commonly placed or at least from the Confirmation of Him who in all Courts and in all Causes is Supreme Judge All Judgment 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 judicious Proceeding in a Criminal Cause of the Barons before the Conquest wherein I observe the Kings Will was that the Lords should be Judges in the Cause wherein Himself was a Party and He ratified 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 to 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 presently 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 Judgment 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 Godwin's Answer I will that in this Appeal between us ye decree right Judgment and do true Justice 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 must wholly put himself into the King's 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 King's 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 comprise 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 Judgment 2. Of King John 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 Council 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 Bruxal was commanded safely to keep the said William until he had other Commandment from our Lord the King 4 Ric. 2. Also the Lords adjudged John Lord of Gomentz for surrendring the Towns and Castles of Ardee and for
King Edgar in these words as I find them in Mr. Lambert Nemo in lite Regem appellato nisi quidem domi Justitiam consequi aut impetrare non poterit sin summo jure domi urgeatur ad Regem ut is Onus aliqua ex parte Allevet provocato Let no man in Suit appeal to the King unless he may not get Right at home but if the Right be too heavy for him then let him go to the King to have it eased As the Judicial Power of Kings was exercised before the Conquest so in those setled times after the Conquest wherein Parliaments were much in use there was a High-Court following the King which was the place of Soveraign Justice both for matter of Law and Conscience as may appear by a Parliament in Edward the First 's time taking Order That the Chancellour and the Justices of the Bench should follow the King to the end that he might have always at hand Able Men for his Direction in Suits that came before Him And this was after the time that the Court of Common-Pleas was made stationary which is an Evidence that the King reserved a Soveraign Power by which he did supply the Want or correct the Rigour of the Common Law because the Positive Law being grounded upon that which happens for the most part cannot foresee every particular which Time and Experience brings forth 12. Therefore though the Common Law be generally Good and Just yet in some special Case it may need Correction by reason of some considerable Circumstance falling out which at the time of the Law-making was not thought of Also sundry things do fall out both in War and Peace that require extraordinary help and cannot wait for the Usual Care of Common Law the which is not performed but altogether after one sort and that not without delay of help and expence of time so that although all Causes are and ought to be referred to the Ordinary Process of common Law yet rare matters from time to time do grow up meet for just Reasons to be referred to the aid of the absolute Authority of the Prince and the Statute of Magna Charta hath been understood of the Institution then made of the ordinary Jurisdiction in Common Causes and not for restraint of the Absolute Authority serving only in a few rare and singular Cases for though the Subjects were put to great dammage by False Accusations and Malicious Suggestions made to the King and His Council especially during the time of King Edward the Third whilst he was absent in the Wars in France insomuch as in His Reign divers Statutes were made That provided none should be put to answer before the King and His Council without due Process yet it is apparent the necessity of such Proceedings was so great that both before Edward the Third's days and in his time and after his Death several Statutes were made to help and order the Proceedings of the King and his Council As the Parliament in 28. Edw 1. Cap. 5. did provide That the Chancellour and Justices of the King's Bench should follow the King that so he might have near unto him some that be learned in the Laws which be able to order all such matters as shall come unto the Court at all times when need shall require By the Statute of 37. Edw. 3. Cap. 18. Taliation was ordained in case the Suggestion to the King proved untrue Then 38. Edw. 3. Cap. 9. takes away Taliation and appoints Imprisonment till the King and Party grieved be satisfied In the Statutes of 17. Ric. 2. Cap. 6. and 15. Hen. 6. Cap. 4. Dammages and Expences are awarded in such Cases In all these Statutes it is necessarily implyed that Complaints upon just Causes might be moved before the King and His Council At a Parliament at Glocester 2. Ric. 2. when the Commons made Petition That none might be forced by Writ out of Chancery or by Privy Seal to appear before the King and His Council to answer touching Free-hold The King's answer was He thought it not reasonable that He should be constrained to send for his Leiges upon Causes reasonable And albeit He did not purpose that such as were sent for should answer Finalment peremptorily touching their Free-hold but should be remanded for tryal thereof as Law required Provided always saith he that at the Suit of the Party where the King and His Council shall be credibly informed that because of Maintenance Oppression or other Outrages the Common Law cannot have duly her Course in such case the Counsel for the Party Also in the 13 th Year of his Reign when the Commons did pray that upon pain of Forfeiture the Chancellour or Council of the King should not after the end of the Parliament make any Ordinance against the Common Law the King answered Let it be used as it hath been used before this time so as the Regality of the King be saved for the King will save His Regalities as His Progenitors have done Again in the 4 th year of Henry the Fourth when the Commons complained against Subpaena's other Writs grounded upon false Suggestions the King answered That he would give in Charge to His Officers that they should abstain more than before time they had to send for His Subjects in that manner But yet saith He it is not Our Intention that Our Officers shall so abstain that they may not send for Our Subjects in Matters and Causes necessary as it hath been used in the time our good Progenitors Likewise when for the same Cause Complaint was made by the Commons Anno 3. Hen. 5. the King's Answer was Le Roy s'advisera The King will be advised which amounts to a Denial for the present by a Phrase peculiar for the King 's denying to pass any Bill that hath passed the Lords and Commons These Complaints of the Commons and the Answers of the King discover That such moderation should be used that the course of the common Law be ordinarily maintained lest Subjects be convented before the King and his Council without just cause that the Proceedings of the Council-Table be not upon every slight Suggestion nor to determine finally concerning Freehold of Inheritance And yet that upon cause reasonable upon credible Information in matters of weight the King's Regality or Prerogative in sending for His Subjects be maintain'd as of Right it ought and in former times hath been constantly used King Edward the First finding that Bogo de Clare was discharged of an Accusation brought against him in Parliament for that some formal Imperfections were found in the Complaint commanded him nevertheless to appear before Him and His Council ad faciendum recipiendum quod per Regem ejus Concilium fuerit faciendum and so proceeded to an Examination of the whole Cause 8. Edw. 1. Edward the Third In the Star-Chamber which was the Ancient Council-Chamber at Westminster upon the Complaint of Elizabeth Audley commanded James Audley to
not then divided into Shires On the contrary there be of our Historians who do affirm that Henry the First caused the Commons first to be Assembled by Knights and Burgesses of their own Appointment for before his Time only certain of the Nobility and Prelates of the Realm were called to Consultation about the most Important Affairs of State If this Assertion be true it seems a meer matter of Grace of this King and proves not any Natural Right of the People Originally to be admitted to chuse their Knights and Burgesses of Parliament though it had been more for the Honour of Parliaments if a King whose Title to the Crown had been better had been Author of the Form of it because he made use of it for his unjust Ends. For thereby he secured himself against his Competitor and Elder Brother by taking the Oaths of the Nobility in Parliament and getting the Crown to be setled upon his Children And as the King made use of the People so they by Colour of Parliament served their own turns for after the Establishment of Parliaments by strong hand and by the Sword they drew from him the Great Charter which he granted the rather to flatter the Nobility and People as Sir Walter Raleigh in his Dialogue of Parliaments doth affirm in these words The great Charter was not Originally granted Legally and Freely for Henry the First did but Vsurp the Kingdom and therefore the better to assure himself against Robert his Elder Brother he flattered the Nobility and People with their Charters yea King John that Confirmed them had the like respect for Arthur Duke of Britain was the undoubted Heir of the Crown upon whom King John Vsurped and so to conclude these Charters had their Original from Kings de facto but not de jure the Great Charter had first an obscure Birth by Vsurpation and was secondly fostered and shewed to the World by Rebellion 15. A third consideration must be that in the former Parliaments instituted and continued since King Henry the First 's time is not to be found the Usage of any natural Liberty of the People for all those Liberties that are claimed in Parliament are the Liberties of Grace from the King and not the Liberties of Nature to the People for if the Liberty were natural it would give Power to the Multitude to assemble themselves When and Where they please to bestow Soveraignty and by Pactions to limit and direct the Exercise of it Whereas the Liberties of Favour and Grace which are claimed in Parliaments are restrained both for Time Place Persons and other Circumstances to the Sole Pleasure of the King The People cannot assemble themselves but the King by his Writs calls them to what place he pleases and then again scatters them with his Breath at an instant without any other Cause shewed than his Will Neither is the whole summoned but only so many as the King's Writs appoint The prudent King Edward the First summoned always those Barons of ancient Families that were most wise to his Parliament but omitted their Sons after their Death if they were not answerable to their Parents in Understanding Nor have the whole People Voices in the Election of Knights of the Shire or Burgesses but only Freeholders in the Counties and Freemen in the Cities and Burroughs yet in the City of Westminster all the House-holders though they be neither Freemen nor Free-holders have Voices in their Election of Burgesses Also during the time of Parliament those Privileges of the House of Commons of freedom of Speech power to punish their own Members to examine the Proceedings and Demeanour of Courts of Justice and Officers to have access to the King's Person and the like are not due by a-any Natural Right but are derived from the Bounty or Indulgence of the King as appears by a solemn Recognition of the House for at the opening of the Parliament when the Speaker is presented to the King he in the behalf and name of the whole House of Commons humbly craves of His Majesty That He would be pleased to grant them their Accustomed Liberties of freedom of Speech of access to his Person and the rest These Privileges are granted with a Condition implyed That they keep themselves within the Bounds and Limits of Loyalty and Obedience for else why do the House of Commons inflict Punishment themselves upon their own Members for transgressing in some of these points and the King as Head hath many times punished the Members for the like Offences The Power which the King giveth in all his Courts to his Judges or others to punish doth not exclude Him from doing the like by way of Prevention Concurrence or Evocation even in the same point which he hath given in charge by a delegated Power for they who give Authority by Commission do always retain more than they grant Neither of the two Houses claim an Infallibility of not Erring no more than a General Council can It is not impossible but that the greatest may be in Fault or at least interested or engaged in the Delinquency of one particular Member In such Cases it is most proper for the Head to correct and not to expect the Consent of the Members or for the Parties peccant to be their own Judges Nor is it needful to confine the King in such Cases within the Circle of any one Court of Justice who is Supream Judg in all Courts And in rare and new Cases rare and new Remedies must be sought out for it is a Rule of the Common Law In novo Casu novum Remedium est apponendum and the Statute of Westminst 2. cap. 24. giveth Power even to the Clarks of the Chancery to make New Forms of Writs in New Cases lest any Man that came to the King's Court of Chancery for help should be sent away without Remedy A President cannot be found in every Case and of things that happen seldom and are not common there cannot be a Common Custom Though Crimes Exorbitant do pose the King and Council in finding a President for a Condigne Punishment yet they must not therefore pass unpunished I have not heard that the People by whose Voices the Knights and Burgesses are chosen did ever call to an account those whom they had Elected they neither give them Instructions or Directions what to say or what to do in Parliament therefore they cannot punish them when they come home for doing amiss If the People had any such Power over their Burgesses then we might call it The Natural Liberty of the People with a mischief But they are so far from punishing that they may be punished themselves for intermedling with Parliamentary Business they must only chuse and trust those whom they chuse to do what they list and that is as much liberty as many of us deserve for our irregular Elections of Burgesses 15 A fourth point to be consider'd is That in Parliament all Statutes or Laws are made properly by
none can deny That they differed in their degrees of punishments is possible there are but three sorts that can be proved were to be put to death viz. the Witch the Familiar Spirit the Wisard As for the Witch there hath been some doubt made of it The Hebrew Doctors that were skill'd in the Laws of Moses observe that wheresoever one was to dye by their Law the Law always did run in an affirmative Precept as the man shall be stoned shall dye shall be put to death or the like but in this Text and no where else in Scripture the sentence is only a Prohibition negative Thou shalt not suffer a Witch to live and not Thou shalt put her to death or stone her or the like Hence some have been of opinion that not to suffer a Witch to live was meant not to relieve or maintain her by running after her and rewarding her The Hebrews seem to have two sorts of Witches some that did hurt others that did hold the eyes that is by jugling and slights deceived mens senses The first they say was to be stoned the other which according to the proper notation of the word was the true Witch was only to be beaten The Septuagint have translated a Witch an Apothecary a Druggister one that compounds poisons and so the Latin word for a Witch is Venefica a maker of poisons if any such there ever were or be that by the help of the Devil do poison such a one is to be put to death though there be no Covenant with the Devil because she is an Actor and Principal her self not by any wonder wrought by the Devil but by the natural or occult property of the Poyson For the time of Christ saith Mr. Perkins though there be no particular mention made of any such Witch yet thence it followeth not that there were none for all things that then happened are not recorded and I would fain know of the chief Patrons of them whether those persons possessed with the Devil and troubled with strange Diseases whom Christ healed were not bewitched with some such people as our Witches are If they say no let them if they can prove the contrary Here it may be thought that Mr. Perkins puts his Adversaries to a great pinch but it doth not prove so for the Question being only whether those that were possessed in our Saviour's Time were bewitched The Opposers of Mr. Perkins say they were not bewitched but if he or any other say they were the Proof will rest wholly on him or them to make good their Affirmative it cannot in reason be expected that his Adversaries should prove the Negative it is against the Rules of Disputation to require it FINIS Patriarcha OR THE Natural Power OF KINGS· By the Learned Sir ROBERT FILMER Baronet Lucan Lib. 3. Libertas Populi quem regna coercent Libertate perit Claudian Fallitur egregio quisquis sub Poincipe oredit Servitium nusquam Libertas gratior extat Quam sub Rege pio LONDON Printed for Ric. Chiswell in St. Paul's Church-Yard Matthew Gillyflower and William Henchman in Westminster Hall 1680. The COPY OF A LETTER Written by the Late Learned Dr. PETER HEYLYN to Sir Edward Fylmer Son of the Worthy Author concerning this Book and his other Political Discourses SIR HOW great a Loss I had in the death of my most dear and honoured Friend your deceased Father no man is able to conjecture but he that hath suffered in the like So affable was his Conversation his Discourse so rational his Judgment so exact in most parts of Learning and his Affections to the Church so exemplary in him that I never enjoyed a greater Felicity in the company of any Man living than I did in his In which Respects I may affirm both with Safety and Modesty that we did not only take sweet Counsel together but walked in the House of God as Friends I must needs say I was prepared for that great Blow by the Loss of my Preferment in the Church of Westminster which gave me the Opportunity of so dear and beloved a Neighbourhood so that I lost him partly before he died which made the Misery the more supportable when I was deprived of him for altogether But I was never more sensible of the Infelicity than I am at this present in reference to that Satisfaction which I am sure he could have given the Gentleman whom I am to deal with His eminent Abilities in these Political Disputes exemplified in his Judicious Observations upon Aristotles Politiques as also in some passages on Grotius Hunton Hobbs and other of our late Discoursers about Forms of Government declare abundantly how fit a Man he might have been to have dealt in this cause which I would not willingly should be betrayed by unskilful handling And had he pleased to have suffered his Excellent Discourse called Patriarcha to appear in Publick it would have given such satisfaction to all our great Masters in the Schools of Politie that all other Tractates in that kind had been found unnecessary Vide Certamen Epistolare 386. THE CONTENTS CHAP. I. That the first Kings were Fathers of Families 1 THE Tenent of the Natural Liberty of the People New Plausible and Dangerous 2 The Question stated out of Bellarmine and some contradictions of his noted 3 Bellarmine's Argument answered out of Bellarmine himself 4 The Royal Authority of the Patriarchs before the Flood 5 The Dispersion of Nations over the World after the Confusion of Babel was by entire Families over which the Fathers were Kings 6 And from them all Kings descended 7 All Kings are either Fathers of their People 8 Or Heirs of such Fathers or Vsurpers of the Right of such Fathers 9 Of the Escheating of Kingdoms 10 Of Regal and Paternal Power and of their Agreement CHAP. II. It is unnatural for the People to Govern or chose Governours 1 ARistotle examined about the Freedom of the People and justified 2 Suarez disputes against the Regality of Adam 3 Families diversly defined by Aristotle Bodin and others 4 Suarez contradicting Bellarmine 5 Of Election of Kings 6 By the major part of the People 7 By Proxie and by silent Acceptation 8 No example in Scripture for the Peoples chosing their King Mr. Hooker's Judgment therein 9 God governed always by Monarchy 10 Bellarmine and Aristotles judgment of Monarchy 11 Imperfections of the Roman Democratie 12 Rome legan her Empire under Kings and perfected it under Emperours In danger the People of Rome always fled to Monarchy 13 Whether Democraties were invented to bridle Tyrants or whether they crept in by stealth 14 Democraties vilified by their own Hystorians 15 Popular Government more Bloody than Tyranny 16 Of a mixed Government of the King and People 17 The People may not judg not correct their King 18 No Tyrants in England since the Conquest CHAP. III. Positive Laws do not infringe the Natural and Fatherly Power of Kings 1 REgal Authority not subject to Positive Laws Kings