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
OBSERVATIONS CONCERNING THE Original and Various Forms OF GOVERNMENT As Described Viz. 1 st Upon Aristotles Politiques 2 d. Mr. Hobbs's Laviathan 3 d. Mr. Milton against Salmatius 4 th Hugo Grotius de Jure Bello 5 th Mr. Hunton's Treatise of Monarchy or the Nature of a limited or mixed Monarchy By the Learned Sir R. Filmer Barronet To which is added the Power of Kings With directions for Obedience to Government in Dangerous and Doubtful Times LONDON Printed for R. R. C. and are to be Sold by Thomas Axe at the Blew-Ball in Ducâ—-Lane 1696. Augustissimi CAROLI Secundi Dei Gratia ANGLIAE SCOTIAE FRANCIAE ET HIBERNIAE REX Bona agere mala pati Regium est Page 1. The Author's PREFACE THere is a general Belief that the Parliament of England was at first an Imitation of the Assembly of the Three Estates in France therefore in order to prepare the Vnderstanding in the Recerche we have in hand it is proper to give a brief Accompt of the mode of France in those Assemblies Scotland and Ireland being also under the Dominion of the King of England a Touch of the manner of their Parliaments shall be by way of Preface 1. In France the Kings Writ goeth to the Bailiffs Seneschals or Stewards of Liberties who issue out Warrants to all such as have Fees and Lands within their Liberties and to all Towns requiring all such as have any Complaints to meet in the Principal City there to choose two or three Delegates in the name of that Province to be present at the General Assembly At the day appointed they meet at the Principal City of the Bailiwick The King 's Writ is read and every man called by name and sworn to choose honest men for the good of the King and Commonwealth to be present at the General Assembly as Delegates faithfully to deliver their Grievances and Demands of the Province Then they choose their Delegates and swear them Next they consult what is necessary to be complained of or what is to be desired of the King and of these things they make a Catalogue or Index And because every man should freely propound his Complaint or Demands there is a Chest placed in the Town-Hall into which every man may cast his Writing After the Catalogue is made and Signed it is delivered to the Delegates to carry to the General Assembly All the Bailiwicks are divided into twelve Classes To avoid confusion and to the end there may not be too great Delay in the Assembly by the Gathering of all the Votes every Classis compiles a Catalogue or Book of the Grievances and Demands of all the Bailiwicks within that Classis then these Classes at the Assembly compose one Book of the Grievances and Demands of the whole Kingdom This being the order of the Proceedings of the third Estate the like order is observed by the Clergy and Nobility When the three Books for the three Estates are perfected then they present them to the King by their Presidents First the President for the Clergy begins his Oration on his knees and the King commanding he stands up bare-headed and proceeds And so the next President for the Nobility doth the like But the President for the Commons begins and ends his Oration on his knees Whilst the President for the Clergy speaks the rest of that Order rise up and stand bare till they are bid by the King to sit down and be covered and so the like for the Nobility But whilst the President of the Commons speaks the rest are neither bidden to sit or be covered Thus the Grievances and Demands being delivered and left to the King and His Council the General Assembly of the three Estates endeth Atque ita totus actus concluditur Thus it appears the General Assembly was but an orderly way of presenting the Publick Grievances and Demands of the whole Kingdom to the consideration of the King Not much unlike the antient Vsage of this Kingdom for a long time when all Laws were nothing else but the King's Answers to the Petitions presented to Him in Parliament as is apparent by very many Statutes Parliament-Rolls and the Confession of Sir Edw. Coke 2. In Scotland about twenty days before the Parliament begins Proclamation is made throughout the Kingdom to deliver in to the King's Clerk or Master of the Rolls all Bills to be exhibited that Sessions before a certain day then are they brought to the King and perused by Him and only such as he allows are put into the Chancellour's hand to be propounded in Parliament and none others And if any man in Parliament speak of another matter than is allowed by the King the Chancellor tells him there is no such Bill allowed by the King When they have passed them for Laws they are presented to the King who with his Scepter put into His hand by the Chancellor ratifies them and if there be any thing the King dislikes they raze it out before 3. In Ireland the Parliament as appears by a Statute made in the Tenth year of Hen. 7. c. 4. is to be after this manner No Parliament is to be holden but at such Season as the King's Lieutenant and Council there do first certifie the King under the Great Seal of that Land the Causes and Considerations and all such Acts as they think fit should pass in the said Parliament And such Causes and Considerations and Acts affirmed by the King and his Council to be good and expedient for that Land And His Licence thereupon as well in affirmation of the said Causes and Acts as to summon the Parliament under His Great Seal of England had and obtained That done a Parliament to be had and holden after the Form and Effect afore-rehearsed and if any Parliament be holden in that Land contrary to the Form and Provision aforesaid it is deemed void and of none Effect in Law It is provided that all such Bills as shall be offered to the Parliament there shall be first transmitted hither under the Great Seal of that Kingdom and having received Allowance and Approbation here shall be put under the Great Seal of this Kingdom and so returned thither to be preferred to the Parliament By a Statute of 3 and 4 of Philip and Mary for the expounding of Poynings Act it is ordered for the King 's Passing of the said Acts in such Form and Tenor as they should be sent into England or else for the Change of them or any part of them After this shorter Narrative of the Vsage of Parliaments in our Neighbour and Fellow Kingdoms it is time the inquisitio magna of our own be offered to the Verdict or Judgment of a moderate and intelligent Reader Rob. Filmer A COLLECTION Of the several TRACTS Written by Sir ROBERT FILMER Knight I. The Free-holders Grand Inquest touching our Soveraign Lord the King and his Parliament To which are added Observations upon Forms of Government Together with Directions for Obedience
to Governors in Dangerous and Doubtful Times II. Reflections concerning the Original of Government upon 1. Aristotle's Politiques 2. Mr. Hobs's Leviathan 3. Mr. Milton against Salmasius 4. H. Grotius De Jure Belli 5. Mr. Hunton's Treatise of Monarchy or the Anarchy of a limited or mixed Monarchy III. A Succinct Examination of the Fundamentals of Monarchy both in this and other Kingdoms as well about the Right of Power in Kings as of the Original and Natural Liberty of the People A Question never yet Disputed though most necessary in these Times IV. The Power of Kings And in Particular of the King of England V. An Advertisement to the Jury-Men of England touching Witches Together with a Difference between an English and Hebrew Witch VI. PATRIARCHA Or the Natural Power of KINGS The Argument A Presentment of divers Statutes Records and other Precedents explaining the Writs of Summons to Parliament shewing I. That the Commons by their Writ are only to Perform and Consent to the Ordinances of Parliament II. That the Lords or Common Councel by their Writ are only to Treat and give Counsel in Parliament III. That the King himself only Ordains and makes Laws and is Supreme Judge in Parliament With the Suffrages of Hen. de Bracton Jo. Britton Tho. Egerton Edw. Coke Walter Raleigh Rob. Cotton Hen. Spelman Jo. Glanvil Will. Lambard Rich. Crompton William Cambden and Jo. Selden THE Free-holders GRAND INQUEST Touching Our Sovereign Lord the King and His Parliament EVery Free-holder that hath a Voice in the Election of Knights Citizens or Burgesses for the Parliament ought to know with what Power he trusts those whom he chooseth because such Trust is the Foundation of the Power of the House of Commons A Writ from the King to the Sheriff of the County is that which gives Authority and Commission for the Free-holders to make their Election at the next County-Court-day after the Receipt of the Writ and in the Writ there is also expressed the Duty and Power of the Knights Citizens and Burgesses that are there elected The means to know what Trust or Authority the Countrey or Free-holders confer or bestow by their Election is in this as in other like Cases to have an eye to the words of the Commission or Writ it self thereby it may be seen whether that which the House of Commons doth act be within the Limit of their Commission greater or other Trust than is comprised in the Body of the Writ the Free-holders do not or cannot give if they obey the Writ the Writ being Latine and not extant in English few Free-holders understand it and fewer observe it I have rendred it in Latine and English Rex Vicecomiti salut ' c. QVia de Advisamento Assensu Concilii nostri pro quibusdam arduis urgentibus Negotiis Nos statum defensionem regni nostri Angliae Ecclesiae Anglicanae concernen ' quoddam Parliamentum nostrum apud Civitatem nostram West duodecimo die Novembris prox ' futur ' teneri ordinavimus ibid ' cum Praelatis Magnatibus Proceribus dicti regni nostri colloquium habere tract ' Tibi praecipimus firmiter injungentes quod facta proclam ' in prox ' comitat ' tuo post receptionem hujus brevis nostri tenend ' die loco praedict ' duos milit ' gladiis cinct ' magis idoneos discretos comit ' praedicti de qualib ' civitate com' illius duos Cives de quolibet Burgo duos Burgenses de discretior ' magis sufficientibus libere indifferenter per illos qui proclam ' hujusmodi interfuerint juxta formam statutorum inde edit ' provis ' eligi nomina corundum milit ' civium Burgensium sic electorum in quibusdam indentur ' inter te illos qui hujusmodi election ' interfuerint inde conficiend ' sive hujusmodi electi praesentes fuerint vel absentes inseri cósque ad dict' diem locum venire fac ' Ita quod iidem milites plenam sufficientem potestatem pro se communitate comit ' praedicti ac dict' Cives Burgenses pro se communitat ' Civitatum Burgorum praedictorum divisim ab ipsishabeant ad faciendum consentiendum his quae tunc ibid ' de communi Consilio dicti reg nostri favente Deo contigerint ordinari super negotiis ante dictis Ita quod pro defectu potestatis hujusmodi seu propter improvidam electionem milit ' Civium aut Burgensium praedictorum dicta negotia infecta non remaneant quovismodo Nolumus autem quod tu nec aliquis alius vic' dicti reg nostri aliqualiter sit electus Et electionem illam in pleno comitatu factam distincte aperte sub sigillo tuo sigillis eorum qui electioni illi interfuerint nobis in cancellar ' nostram ad dict' diem locum certifices indilate remittens nobis alteram partem indenturarum praedictarum praesentibus consut ' una cum hoc breve Teste meipso apud Westmon ' The King to the Sheriff of Greeting WHereas by the Advice and Consent of our Councel for certain difficult and urgent Businesses concerning Us the State and Defence of our Kingdom of England and the English Church We have ordained a certain Parliament of ours to be held at Our City of _____ the _____ day of _____ next ensuing and there to have Conference and to treat with the Prelates Great men and Peers of our said Kingdom We command and straitly enjoyn you that making Proclamation at the next County-Court after the Receipt of this our Writ to be holden the day and place aforesaid You cause two Knights girt with Swords the most fit and discreet of the County aforesaid and of every City of that County two Citizens of every Borough two Burgesses of the discreeter and most sufficient to be freely and indifferently chosen by them who shall be present at such Proclamation according to the Tenor of the Statutes in that case made and provided and the Names of the said Knights Citizens and Burgesses so chosen to be inserted in certain Indentures to be then made between you and those that shall be present at such Election whether the Parties so elected be present or absent and shall make them to come at the said day and place so that the said Knights for themselves and for the County aforesaid and the said Citizens and Burgesses for themselves and the Commonalty of the aforesaid Cities and Boroughs may have severally from them full and sufficient Power to Perform and to Consent to those things which then by the Favour of God shall there happen to be ordained by the Common Councel of our said Kingdom concerning the Businesses aforesaid So that the Business may not by any means remain undone for want of such Power or by reason of the improvident Election of the aforesaid Knights Citizens and Burgesses But We will not in any
case you or any other Sheriff of our said Kingdom shall be elected And at the Day and Place aforesaid the said Election made in the full County-Court you shall certifie without Delay to Us in our Chancery under your Seal and the Seals of them which shall be present at that Election sending back unto Us the other part of the Indenture aforesaid affiled to these Presents together with this Writ Witness our Self at Westmin By this Writ we do not find that the Commons are called to be any part of the Common Councel of the Kingdom or of the Supream Court of Judicature or to have any part of the Legislative Power or to Consult de arduis regni negotiis of the Difficult Businesses of the Kingdom The Writ only says the King would have Conference and Treat with the Prelates Great men and Peers but not a Word of Treating or Conference with the Commons The House of Commons which doth not minister an Oath nor fine nor imprison any but their own Members and that but of late in some Cases cannot properly be said to be a Court at all much less to be a part of the Supream Court or highest Judicature of the Kingdom The constant Custom even to this day for the Members of the House of Commons to stand bare with their Hats in their Hands in the Presence of the Lords while the Lords sit covered at all Conferences is a visible Argument that the Lords and Commons are not fellow-Commissioners or fellow-Counsellors of the Kingdom The Duty of Knights Citizens and Burgesses mentioned in the Writ is only ad Faciendum Consentiendum to Perform and to Consent to such things as should be ordained by the Common Councel of the Kingdom there is not so much mentioned in the Writ as a Power in the Commons to dissent When a man is bound to appear in a Court of Justice the words are ad Faciendum Recipiendum quod ei per curiam injungetur which shews that this Word Faciendum is used as a Term in Law to signifie to give Obedience For this we meet with a Precedent even as ancient as the Parliament-Writ it self and it is concerning Proceedings in Parliament 33 Ed. 1. Dominus Rex mandavit vicecom ' quod c. summon ' Nicolaum de Segrave ex parte Domini Regis firmiter ei injungeret quod esset coram Domino Rege in proximo Parl. c. ad audiendum voluntatem ipsius Domini Regis c. Et ad faciendum recipiendum ulterius quod curia Domini Regis consideraret in Praemissis Our Lord the King commands the Sheriff to summon Nicholas Segrave to appear before our Lord the King in the next Parliament to hear the Will of the Lord our King himself and to perform and receive what the Kings Court shall further consider of the Premises Sir Edw. Coke to prove the Clergy hath no Voice in Parliament saith that by the Words of their Writ their Consent was only to such things as were ordained by the Common Councel of the Realm If this Argument of his be good it will deny also Voices to the Commons in Parliament for in their Writ are the self-same Words viz. to consent to such things as were ordained by the Common Councel of the Kingdom Sir Edw. Coke concludes that the Procuratores Cleri have many times appeared in Parliament as Spiritual Assistants to Consider Consult and to Consent but never had Voice there how they could Consult and Consent without Voices he doth not shew Though the Clergy as he saith oft appeared in Parliament yet was it only ad consentiendum as I take it and not ad faciendum for the Word Faciendum is omitted in their Writ the cause as I conceive is the Clergy though they were to assent yet by reason of Clerical Exemptions they were not required to Perform all the Ordinances or Acts of Parliament But some may think though the Writ doth not express a Calling of the Knights Citizens and Burgesses to be part of the Common Councel of the Kingdom yet it supposeth it a thing granted and not to be questioned but that they are a part of the Common Councel Indeed if their Writ had not mentioned the Calling of Prelates Great men and Peers to Councel there might have been a little better colour for such a Supposition but the truth is such a Supposition doth make the Writ it self vain and idle for it is a senseless thing to bid men assent to that which they have already ordained since Ordaining is an Assenting and more than an Assenting For clearing the meaning and sense of the Writ and Satisfaction of such as think it impossible but that the Commons of England have always been a part of the Common Councel of the Kingdom I shall insist upon these Points 1. That anciently the Barons of England were the Common Councel of the Kingdom 2. That untill the time of Hen. 1. the Commons were not called to Parliament 3. Though the Commons were called by Hen. 1. yet they were not constantly called nor yet regularly elected by Writ until Hen. 3. time For the first point Mr. Cambden in his Britannia doth teach us that in the time of the English Saxons and in the ensuing Age a Parliament was called Commune Concilium which was saith he Praesentia Regis Praelatorum Procerumque collectorum the Presence of the King Prelates and Peers assembled No mention of the Commons the Prelates and Peers were all Barons The Author of the Chronicle of the Church of Lichfield cited by M. Selden saith Postquam Rex Edvardus c. Concilio Baronum Angliae c. After King Edward was King by the Councel of the Barons of England he revived a Law which had lain asleep three score seven years and this Law was called the Law of St. Edward the King In the same Chronicle it is said that Will. the Conquerour anno regni sui quarto apud Londin ' had Concilium Baronum suorum a Councel of his Barons And of this Parliament it is that his Son Hen. 1. speaks saving I restore you the Laws of King Edward the Confessor with those amendments wherewith my Father amended them by the Councel of his Barons In the fifth year as Mr. Selden thinks of the Conquerour was a Parliament or Principum conventus an Assembly of Earls and Barons at Pinenden Heath in Kent in the Cause between Lanfranke the Arch-bishop of Canterbury and Odo Earl of Kent The King gave Commission to Godfrid then Bishop of Constance in Normandy to represent His own Person for Hearing the Controversie as saith M. Lambard and caused Egelrick the Bishop of Chichester an aged man singularly commended for Skill in the Laws and Customes of the Realm to be brought thither in a Wagon for his Assistance in Councel Commanded Haymo the Sheriff of Kent to summon the whole County to give in Evidence three whole days spent in Debate in the End Lanfrank
and the Bishop of Rochester were restored to the Possession of Detling and other Lands which Odo had withholden There is mention of a Parliament held under the same King William the Conquerour wherein all the Bishops of the Land Earls and Barons made an Ordinance touching the Exemption of the Abby of Bury from the Bishops of Norwich In the tenth year of the Conquerour Episcopi Comites Barones regni regià potestate ad universalem Synodum pro causis audiendis tractandis convocati saith the Book of Westminster In the 2 year of William 2. there was a Parliament de cunctis regni Principibus another w ch had quosque regni Proceres All the Peers of the Kingdom In the seventh year was a Parliament at Rockingham-Castle in Northamptonshire Episcopis Abbatibus cunctisque regni Principibus una coeuntibus A year or two after the same King de statu regni acturus c. called thither by the Command of his Writ the Bishops Abbots and all the Peers of the Kingdom At the Coronation of Hen. 1. All the People of the Kingdom of England were called and Laws were then made but it was Per Commune Concilium Baronum meorum by the Common Councel of my Barons In his 3 d. year the Peers of the Kingdom were called without any mention of the Commons and another a while after consensu Comitum Baronum by the consent of Earls and Barons Florentius Wigorniensis saith these are Statutes which Anselme and all the other Bishops in the Presence of King Henry by the assent of his Barons ordained and in his tenth year of Earls and Peers and in his 23. of Earls and Barons In the year following the same King held a Parliament or great Councel with His Barons Spiritual and Temporal King Hen. 2. in his tenth year had a great Councel or Parliament at Clarendon which was an Assembly of Prelates and Peers 22 Hen. 2. saith Hovenden was a great Councel at Nottingham and by the Common Councel of the Arch-bishops Bishops Earls and Barons the Kingdom was divided into six parts And again Hovenden saith that the same King at Windsor apud Windeshores Communi Concilio of Bishops Earls and Barons divided England into four Parts And in his 21 Year a Parliament at Windsor of Bishops Earls and Barons And another of like Persons at Northampton King Richard 1. had a Parliament at Nottingham in his fifth year of Bishops Earls and Barons This Parliament lasted but four days yet much was done in it the first day the King disseiseth Gerard de Canvil of the Sherifwick of Lincoln and Hugh Bardolph of the Castle and Sherifwick of York The second day he required Judgment against his Brother John who was afterwards King and Hugh de Novant Bishop of Coventry The third day was granted to the King of every Plow-land in England 2 s. He required also the third part of the Service of every Knights Fee for his Attendance into Normandy and all the Wool that year of the Monks Cisteaux which for that it was grievous and unsupportable they sine for Money The last day was for Hearing of Grievances and so the Parliament brake up And the same year held another at Northampton of the Nobles of the Realm King John in his fifth year He and his Great men met Rex Magnates convenerunt and the Roll of that year hath Commune Concilium Baronum Meorum the Common Councel of my Barons at Winchester In the sixth year of King Henry 3. the Nobles granted to the King of every Knights Fee two Marks in Silver In the seventh year he had a Parliament at London an Assembly of Barons In his thirteenth year an Assembly of the Lords at Westminster In his fifteenth year of Nobles both Spiritual and Temporal M. Par. saith that 20 H. 3. Congregati sunt Magnates ad colloquium de negotiis regni tractaturi the Great men were called to confer and treat of the Business of the Kingdom And at Merton Our Lord the King granted by the Consent of his Great men That hereafter Vsury should not run against a Ward from the Death of his Ancestor 21 Hen. 3. The King sent his Royal Writs commanding all belonging to His Kingdom that is to say Arch-bishops Bishops Abbots and Priors installed Earls and Barons that they should all meet at London to treat of the King's Business touching the whole Kingdom and at the day prefixed the whole multitude of the Nobles of the Kingdom met at London saith Matt. Westminster In his 21 year At the Request and by the Councel of the Lords the Charters were confirmed 22 Hen. 3. At Winchester the King sent his Royal Writs to Arch-bishops Bishops Priors Earls and Barons to treat of Business concerning the whole Kingdom 32 Hen. 3. The King commanded all the Nobility of the whole Kingdom to be called to treat of the State of His Kingdom Matt. Westm ' 49 Hen. 3. The King had a Treaty at Oxford with the Peers of the Kingdom Matt. Westminster At a Parliament at Marlborough 55. Hen. 3. Statutes were made by the Assent of Earls and Barons Here the Place of Bracton Chief Justice in this Kings time is worth the observing and the rather for that it is much insisted on of late to make for Parliaments being above the King The words in Bracton are The King hath a Superiour God also the Law by which he is made King also his Court viz. the Earls and Barons The Court that was said in those days to be above the King was a Court of Earls and Barons not a word of the Commons or the representative Body of the Kingdom being any part of the Superiour Court Now for the true Sense of Bractons words how the Law and the Court of Earls and Barons are the Kings Superiours they must of Necessity be understood to be Superiours so far only as to advise and direct the King out of his own Grace and Good Will only which appears plainly by the Words of Bracton himself where speaking of the King he resolves thus Nec potest ei necessitatem aliquis imponere quod injuriam suam corrigat emendat cum superiorem non habeat nisi Deum satis ei erat ad poenam quod Dominum expectat ultorem Nor can any man put a necessity upon him to correct and amend his Injury unless he will himself since he hath no Superiour but God it will be sufficient Punishment for him to expect the Lord an Avenger Here the same man who speaking according to some mens Opinion saith the Law and Court of Earls and Barons are superiour to the King in this place tells us himself the King hath no Superiour but God the Difference is easily reconciled according to the Distinction of the School-men the King is free from the Coactive Power of Laws or Counsellors but may be subject to their Directive Power according to his own Will
for him to enquire what and whence that Power is and how far it reacheth The chief Writ of Summons to the Peers was in these words CAROLUS Dei Gratia c. Reverendissimo in Christo patri G. eadem gratia Archiepiscopo Cantuariensi totius Angliae Primati Metropolitano salutem Quia de advisamento assensu Concilii nostri pro quibusdam arduis urgentibus negotiis Nos statum defensionem regni nostri Angliae ecclesiae Anglicanae concernentibus quoddam Parliamentum nostrum apud W. c. teneri ordinavimus ibidem vobiscum cum caeteris Praelatis Magnatibus Proceribus dicti regni nostri Angliae colloquium habere tractatum Vobis in fide dilectione quibus nobis tenemini firmiter injungendo mandamus quod consideratis dictorum negotiorum ardititate periculis imminentibus cessante quacunque excusatione dictis die loco personaliter intersitis Nobiscum cum caeteris Praelatis Magnatibus Proceribus praedictis super dictis negotiis tractaturi vestrumque concilium impensuri hoc sicut Nos Honorem nostrum ac salvationem regni praedicti ac ecclesiae sanctae expeditionemque dictorum negotiorum diligitis nullatenus omittatis Praemonentes Decanum Capitulum ecclesiae vestrae Cantuariensis ac Archidiaconos totumque Clerum vestrae Diocesis quod idem Decanus Archidiaconi in propriis personis suis ac dictum Capitulum per unum idemque Clerus per duos Procuratores idoneos plenam sufficientem potestatem ab ipsis Capitulo Clero habentes praedictis die loco personaliter intersint ad consentiendum hiis quae tunc ibidem de Commune Concilio ipsius Regni Nostri divina favente Clementia contigerint ordinari Teste Meipso apud Westm ' c. CHARLES by the Grace of God c. To the most Reverend Father in Christ W. by the same Grace Arch-bishop of Canterbury Primate and Metropolitan of all England Health Whereas by the Advice and Assent of our Councel for certain difficult and urgent Businesses concerning Us the State and Defence of Our Kingdom of England and of the English Church We have Ordained a certain Parliament of Ours to be holden at W. c. and there to have Conference and to treat with you the Prelates Great men and Peers of Our said Kingdom We straitly Charge and Command by the Faith and Love by which you are bound to Us that considering the Difficulties of the Businesses aforesaid and the imminent Dangers and setting aside all Excuses you be personally present at the Day and Place aforesaid to treat and give your Counsel concerning the said Businesses And this as you love Us and Our Honour and the Safe-guard of the foresaid Kingdom and Church and the Expedition of the said Businesses you must no way omit Forewarning the Dean and Chapter of your Church of Canterbury and the Arch-deacons and all the Clergy of your Diocese that the same Dean and the Arch-deacon in their proper Persons and the said Chapter by one and the said Clergy by two fit Proctors having full and sufficient Power from them the Chapter and Clergy be personally present at the foresaid Day and Place to Consent to those things which then and there shall happen by the favour of God to be Ordained by the Common Councel of our Kingdom Witness our Self at Westm ' The same Form of Writ mutatis mutandis concluding with you must no way omit Witness c. is to the Temporal Barons But whereas the Spiritual Barons are required by the Faith and Love the Temporal are required by their Allegiance or Homage The Difference between the two Writs is that the Lords are to Treat and to Give Counsel the Commons are to Perform and Consent to what is ordained By this Writ the Lords have a deliberative or a consultive Power to Treat and give Counsel in difficult Businesses and so likewise have the Judges Barons of the Exchequer the Kings Councel and the Masters of the Chancery by their Writs But over and besides this Power the Lords do exercise a decisive or Judicial Power which is not mentioned or found in their Writ For the better Understanding of these two different Powers we must carefully note the distinction between a Judge and a Counsellor in a Monarchy the ordinary Duty or Office of a Judge is to give Judgment and to command in the Place of the King but the ordinary Duty of a Counsellor is to advise the King what he himself shall do or cause to be done The Judge represents the Kings Person in his absence the Counsellor in the Kings Presence gives his Advice Judges by their Commission or Institution are limited their Charge and Power and in such things they may judge and cause their Judgments to be put in execution But Counsellors have no Power to command their Consultations to be executed for that were to take away the Sovereignty from their Prince who by his Wisdom is to weigh the Advice of his Councel and at liberty to resolve according to the Judgment of the wiser part of his Councel and not always of the greater In a word regularly a Councellor hath no Power but in the Kings Presence and a Judge no Power but out of his Presence These two Powers thus distinguished have yet such Correspondency and there is so near Affinity between the Acts of judging and counselling that although the ordinary Power of the Judg is to give Judgment yet by their Oath they are bound in Causes extraordinary when the King pleaseth to call them to be his Counsellors and on the other side although the proper work of a Counsellor be only to make Report of his Advice to his Sovereign yet many times for the Ease only and by the Permission of the King Councellors are allowed to judge and command in Points wherein ordinarily they know the mind of the Prince and what they do is the act of the Royal Power it self for the Councel is always presupposed to be united to the Person of the King and therefore the Decrees of the Councel are styled By the King in his Privy Councel To apply this Distinction to the House of Peers whe find originally they are called as Counsellors to the King and so have only a deliberative Power specified in their Writ and therefore the Lords do only then properly perform the Duty for which they are called when they are in the King's Presence that He may have Conference and treat with them the very Words of the Writ are Nobiscum ac cum Praelatis Magnatibus Proceribus praedictis super dictis negotiis tractaturi vestrumque concilium impensuri with Us and with the Prelates Great men and Peers to treat and give your councel the word Nobiscum implieth plainly the King's Presence It is a thing in reason most absurd to make the King assent to the Judgments in Parliament and allow Him no part in the Consultation this were to make
themselves that alters the Form of Government that is whether one man or more than one make the Laws Since the growth of this new Doctrine Of the Limitation and Mixture of Monarchy it is most apparent that Monarchy hath been crucified as it were between two Thieves the Pope and the People for what Principles the Papists make use of for the Power of the Pope above Kings the very same by blotting out the word Pope and putting in the word People the Plebists take up to use against their Soveraigns If we would truly know what Popery is we shall find by the Laws and Statutes of the Realm that the main and indeed the only Point of Popery is the alienating and withdrawing of Subjects from their Obedience to their Prince to raise Sedition and Rebellion If Popery and Popularity agree in this point the Kings of Christendom that have shaken off the Power of the Pope have made no great bargain of it if in place of one Lord abroad they get many Lords at home within their own Kingdoms I cannot but reverence that Form of Government which was allowed and made use of for God's own People and for all other Nations It were impiety to think that God who was careful to appoint Judicial Laws for his chosen People would not furnish them with the best Form of Government or to imagine that the Rules given in divers places in the Gospel by our blessed Saviour and his Apostles for Obedience to Kings should now like Almanacks out of date be of no use to us because it is pretended We have a Form of Government now not once thought of in those days It is a shame and scandal for us Christians to seek the Original of Government from the Inventions or Fictions of Poets Orators Philosophers and Heathen Historians who all lived thousands of years after the Creation and were in a manner ignorant of it and to neglect the Scriptures which have with more Authority most particularly given us the true Grounds and Principles of Government These Considerations caused me to scruple this Modern piece of Politicks touching Limited and Mixed Monarchy and finding no other that presented us with the nature and means of Limitation and Mixture but an Anonymous Author I have drawn a few brief Observations upon the most considerable part of his Treatise in which I desire to receive satisfaction from the Author himself if it may be according to his promise in his Preface or if not from him from any other for him THE ANARCHY Of a Limited or Mixed MONARCHY THere is scarce the meanest man of the multitude but can now in these days tell us That the Government of the Kingdom of England is a LIMITED and MIXED Monarchy And it is no marvel since all the Disputes and Arguments of these distracted Times both from the Pulpit and Press do tend and end in this Conclusion The Author of the Treatise of Monarchy hath copiously handled the nature and manner of Limited and Mixed Monarchy and is the first and only man that I know hath undertaken the task of describing it others only mention it as taking it for granted Doctor Ferne gives the Author of this Treatise of Monarchy this testimony That the Mixture of Government is more accurately delivered and urged by this Treatise than by the Author of the Fuller Answer And in another place Doctor Ferne saith He allows his distinction of Monarchy into Limited and Mixed I have with some diligence looked over this Treatise but cannot approve of these distinctions which he propounds I submit the reasons of my dislike to others judgments I am somewhat confident that his Doctrine of Limited and Mixed Monarchy is an opinion but of yesterday and of no antiquity a meâ—â— innovation in Policy not so old as New England though calculated properly for that Meridian For in his first part of the Treatise which concerns Monarchy in general there is not one proof text or example in Scripture that he hath produced to justifie his conceit of Limited and Mixed Monarchy Neither doth he afford us so much as one passage or reason out of Aristole whose Books of Politicks and whose natural reasons are of greatest authority and credit with all rational men next to the sacred Scripture Nay I hope I may affirm and be able to prove that Aristotle doth confute both limited and mixed Monarchy howsoever Doctor Ferne think these new opinions to be raised upon Aristotles Principles As for other Politicians or Historians either divine or humane ancient or modern our Author brings not one to confirm his opinions nor doth he nor can he shew that ever any Nation or People were governed by a limited or mixed Monarchy Machiavel is the first in Christendom that I can find that writ of a Mixed Government but not one syllable of a Mixed Monarchy he in his discourses or disputations upon the Decades of Livy falls so enamored with the Roman Commonwealth that he thought he could never sufficiently grace that popular Government unless he said there was something of Monarchy in it yet he was never so impudent as to say it was a mixed Monarchy And what Machiavel hath said for Rome the like hath Contarene for Venice But Bodin hath laid open the errours of both these as also of Polybius and some few others that held the like opinions As for the Kingdom of England if it hath found out a Form of Government as the Treatise layeth it down of such perfection as never any people could it is both a glory to the Nation and also to this Author who hath first decipher'd it I now make my approach to the Book it self The Title is A Treatise of Monarchy The first part of it is Of Monarchy in general Where first I charge the Author that he hath not given us any definition or description of Monarchy in general for by the rules of method he should have first defined and then divided for if there be several sorts of Monarchy then in something they must agree which makes them to be Monarchies and in something they must disagree and differ which makes them to be several sorts of Monarchies In the first place he should have shewed us in what they all agreed which must have been a definition of Monarchy in general which is the foundation of the Treatise and except that be agreed upon we shall argue upon we know not what I press not this main omission of our Author out of any humour of wrangling but because I am confident that had he pitched upon any definition of Monarchy in general his own definition would have confuted his whole Treatise Besides I find him pleased to give us a handsom definition of Absolute Monarchy from whence I may infer that he knew no other definition that would have fitted all his other sorts of Monarchy it concerned him to have produced it lest it might be thought there could be no Monarchy but Absolute What our
the whole people but to the supream Heads and Fathers of Families not as they are the people but quatenus they are Fathers of people over whom they have a supream power devolved unto them after the death of their soveraign Ancestor and if any can have a right to chuse a King it must be these Fathers by conferring their distinct fatherly powers upon one man alone Chief Fathers in Scripture are accounted as all the people as all the Children of Israel as all the Congregation as the Text plainly expounds it self 2 Chr. 1.2 where Solomon speaks to All Israel that is to the Captains the Judges and to every Governour the CHIEF OF THE FATHERS and so the Elders of Israel are expounded to be the chief of the Fathers of the Children of Israel 1 King 8.1 and the 2 Chr. 5.2 If it be objected That Kings are not now as they were at the first planting or peopling of the world the Fathers of their People or Kingdoms and that the fatherhood hath lost the right of governing An answer is That all Kings that now are or ever were are or were either Fathers of their People or the Heirs of such Fathers or Usurpers of the right of such Fathers It is a truth undeniable that there cannot be any multitude of men whatsoever either great or small though gathered together from the several corners and remotest regions of the world but that in the same multitude considered by it self there is one man amongst them that in nature hath a right to be the King of all the rest as being the next Heir to Adam and all the other subject unto him every man by nature is a King or a Subject the obedience which all Subjects yield to Kings is but the paying of that duty which is due to the supream fatherhood Many times by the act either of an Usurper himself or of those that set him up the true Heir of a Crown is dispossessed God using the ministry of the wickedest men for the removing and setting up of Kings in such cases the Subjects obedience to the fatherly power must go along and wait upon God's providence who only hath right to give and take away Kingdoms and thereby to adopt Subjects into the obedience of another fatherly power according to that of Arist 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 A Monarchy or Kingdom will be a fatherly government Ethic. l. 8. c. 12. However the natural freedom of the People be cried us as the sole means to determine the kind of Government and the Governours yet in the close all the favourers of this opinion are constrained to grant that the obedience which is due to the fatherly Power is the true only cause of the Subjection which we that are now living give to Kings since none of us gave consent to Government but only our Fore-fathers act and consent hath concluded us Whereas many confess that Government only in the abstract is the ordinance of God they are not able to prove any such ordinance in the Scripture but only in the fatherly power and therefore we find the Commandment that enjoyns obedience to Superiours given in the terms of Honour thy Father so that not only the Power or right of Government but the form of the power of governing and the person having that power are all the ordinance of God the first Father had not only simply power but power Monarchical as he was a Father immediately from God For by the appointment of God as soon as Adam was created he was Monarch of the World though he had no Subjects for though there could not be actual Government until there were Subjects yet by the right of nature it was due to Adam to be Governour of his posterity though not in Act yet at least in habit Adam was a King from his Creation And in the state of innocency he had been Governour of his Children for the integrity or excellency of the Subjects doth not take away the order or eminency of the Governour Eve was subject to Adam before he sinned the Angels who are of a pure nature are subject to God which confutes their saying who in disgrace of civil Government or power say it was brought in by sin Government as to coactive power was after sin because coaction supposeth some disorder which was not in the state of innocency But as for directive power the condition of humane nature requires it since civil Society cannot be imagined without power of Government for although as long as men continued in the state of innocency they might not need the direction of Adam in those things which were necessarily and morally to be done yet things indifferent that depended meerly on their free will might be directed by the power of Adam's command If we consider the first plantations of the world which were after the building of Babel when the confusion of tongues was we may find the division of the Earth into distinct Kingdoms and Countries by several families whereof the Sons or Grand-children of Noah were the Kings or Governours by a fatherly right and for the preservation of this power and right in the Fathers God was pleased upon several Families to bestow a Language on each by it self the better to unite it into a Nation or Kingdom as appears by the words of the Text Gen. 10. These are the Families of the Sons of Noah after their generations in their Nations and by these were the Nations divided in the Earth after the floud Every one after HIS TONGUE AFTER THEIR FAMILIES in their Nations The Kings of England have been graciously pleased to admit and accept the Commons in Parliament as the Representees of the Kingdom yet really and truly they are not the representative body of the whole Kingdom The Commons in Parliament are not the representative body of the whole Kingdom they do not represent the King who is the head and principal member of the Kingdom nor do they represent the Lords who are the nobler and higher part of the body of the Realm and are personally present in Parliament and therefore need no representation The Commons only represent a part of the lower or inferior part of the body of the People which are the Free-holders worth 40 s. by the year and the Commons or Free-men of Cities and Burroughs or the major part of them All which are not one quarter nay not a tenth part of the Commons of the Kingdom for in every Parish for one Free-holder there may be found ten that are no Freeholders and anciently before Rents were improved there were nothing near so many Free-holders of 40 s. by the year as now are to be found The scope and Conclusion of this discourse and Argument is that the people taken in what notion or sense soever either diffusively collectively or representatively have not nor cannot exercise any right or power of their own by nature either in chusing or in regulating Kings But whatsoever power any people
Government as the former rule doth from limitation by Laws Thus in brief I have traced Aristotle in his crabbed and broken passages touching diversities of Kings where he first finds but four sorts and then he stumbles upon a fifth and in the next Chapter contents himself only with two sorts of Kings but in the Chapter following concludes with one which is the true perfect Monarch who rules all by his own will in all this we find nothing for a regulated or mixed Monarchy but against it Moreover whereas the Author of the Treatise of Monarchy affirms it as a prime Principle That all Monarchies except that of the Jews depend upon humane designment when the consent of a Society of men and a fundamental Contract of a Nation by original or radical Constitution confers Power he must know that Aristotle searching into the Original of Government shews himself in this point a better Divine than our Author and as if he had studied the Book of Genesis teacheth That Monarchies fetch their Pedigree from the Right of Fathers and not from the Gift or Contract of People his words may thus be Englished At the first Cities were governed by Kings and so even to this day are Nations also for such as were under Kingly Government did come together for every House is governed by a King who is the eldest and so also Colonies are governed for kindred sake And immediately before he tells us That the first Society made of many Houses is a Village which naturally seems to be a Colony of a House which some call Foster-brethren or Children and Childrens Children So in conclusion we have gained Aristotle's judgment in three main and essential points 1. A King according to Law makes no kind of Government 2. A King must rule according to his own will 3. The Original of Kings is from the right of Fatherhood What Aristotle's judgment was two thousand years since is agreeable to the Doctrine of the great modern Politician Bodin Hear him touching limited Monarchy Vnto Majesty or Soveraignty saith he belongeth an absolute power not subject to any Law Chief power given unto a Prince with condition is not properly Soveraignty or power absolute except such conditions annexed to the Soveraignty be directly comprehended within the Laws of God and Nature Albeit by the sufferance of the King of England controversies between the King and his People are sometimes determined by the high Court of Parliament and sometimes by the Lord Chief Justice of England yet all the Estates remain in full subjection to the King who is no ways bound to follow their advice neither to consent to their requests It is certain that the Laws Priviledges and Grants of Princes have no force but during their life if they be not ratified by the express consent or by sufferance of the Prince following especially Privileges Much less should a Prince be bound unto the Laws he maketh himself for a man may well receive a Law from another man but impossible it is in nature for to give a Law unto himself no more than it is to command a mans self in a matter depending of his own will The Law saith Nulla obligatio consistere potest quae à voluntate promittentis statum capit The Soveraign Prince may derogate unto the Laws that he hath promised and sworn to keep if the equity thereof be ceased and that of himself without the consent of his Subjects The Majesty of a true Soveraign Prince is to be known when the Estates of all the People assembled in all humility present their requests and supplications to their Prince without having power in any thing to command determine or give voice but that that which it pleaseth the King to like or dislike to command or bid is holden for Law wherein they which have written of the duty of Magistrates have deceived themselves in maintaining that the power of the People is greater than the Prince a thing which causeth oft true Subjects to revolt from their obedience to their Prince and ministreth matter of great troubles in Commonwealths of which their opinion there is neither reason nor ground for if the King be subject unto the assemblies and Decrees of the people he should neither be King nor Soveraign and the Commonwealth neither Realm nor Monarchy but a meer Aristocracy So we see the principal point of Soveraign Majesty and absolute power to consist principally in giving Laws unto the Subjects in general without their consent Bodin de Rep. l. 1. c. 8. To confound the state of Monarchy with the Popular or Aristocratical estate is a thing impossible and in effect incompatible and such as cannot be imagined for Soveraignty being of it self indivisible how can it at one and the same time be divided betwixt one Prince the Nobility and the people in common The first mark of Soveraign Majesty is to be of power to give Laws and to command over them unto the Subjects and who should those Subjects be that should yield their obedience to the Law if they should have also power to make the Laws who should he be that could give the Law being himself constrained to receive it of them unto whom himself gave it so that of necessity we must conclude That as no one in particular hath the power to make the Law in such a State that then the State must needs be a State popular Never any Commonwealth hath been made of an Aristocracy and popular Estate much less of the three Estates of a Commonweal Such states wherein the rights of Soveraignty are divided are not rightly to be called Commonweals but rather the corruption of Commonweals as Herodotus has most briefly but truly written Commonweals which change their state the Sovereign right power of them being divided find no rest from Civil wars and broils till they again recover some one of the three Forms and the Soveraignty be wholly in one of the states or other Where the rights of the Soveraignty are divided betwixt the Prince his Subjects in that confusion of state there is still endless stirs and quarrels for the superiority until that some one some few or all together have got the Soveraignty Id. lib. 2. c. 1. This Judgment of Bodin's touching Limited and Mixed Monarchy is not according to the mind of our Author nor yet of the Observator who useth the strength of his Wit to overthrow Absolute and Arbitrary Government in this Kingdom and yet in the main body of his discourse le ts fall such Truths from his Pen as give a deadly wound to the Cause he pleads for if they be indifferently weighed and considered I will not pick a line or two here and there to wrest against him but will present a whole Page of his Book or more together that so we may have an entire prospect upon the Observators mind Without Society saith the Observator men could not live without Laws men could not be sociable and without Authority
sworn to keep or not If a Soveraign Prince promise by Oath to his Subjects to keep the Laws he is bound to keep them not for that a Prince is bound to keep his Laws by himself or by his Predecessors but by the just Conventions and Promises which he hath made himself be it by Oath or without any Oath at all as should a private man be and for the same causes that a Private man may be relieved from his unjust and unreasonable Promise as for that it was so grievous or for that he was by deceit or fraud Circumvented or induced thereunto by Errour or Force or just Fear or by some great Hurt even for the same causes the Prince may be restored in that which toucheth the diminishing of his Majesty And so our Maxime resteth That the Prince is not subject to His Laws nor to the Laws of his Predecessors but well to his Own just and reasonable Conventions The Soveraign Prince may derogate from the Laws that he hath promised and sworn to keep if the Equity thereof cease and that of himself without Consent of his Subjects which his Subjects cannot do among Themselves if they be not by the Prince relieved The Foreign Princes well-advised will never take Oath to keep the Laws of their Predecessors for otherwise they are not Sovereigns Notwithstanding all Oaths the Prince may Derogate from the Laws or Frustrate or Disannul the same the Reason and Equity of them ceasing There is not any Bond for the Soveraign Prince to keep the Laws more than so far as Right and Justice requireth Neither is it to be found that the Antient Kings of the Hebrews took any Oaths no not they which were Anointed by Samuel Elias and others As for General and Particular which concern the Right of men in Private they have not used to be otherwise Changed but after General Assemblies of the Three Estates in France not for that it is necessary for the Kings to rest on their Advice or that he may not do the Contrary to that they demand if natural Reason and Justice do so require And in that the Greatness and Majesty of a true Soveraign Prince is to be known when the Estates of all the People assembled together in all Humility present their Requests and Supplications to their Prince without having any Power in any thing to Command or Determine or to give Voice but that that which it pleaseth the King to Like or Dislike to Command or Forbid is holden for Law Wherein they which have written of the Duty of Magistrates have deceived themselves in maintaining that the Power of the People is greater than the Prince a thing which oft-times causeth the true Subjects to revolt from the Obedience which they owe unto their Soveraign Prince and ministreth matter of great Troubles in Commonwealths of which their Opinion there is neither reason nor ground If the King should be Subject unto the Assemblies and Decrees of the People he should neither be King nor Soveraign and the Commonwealth neither Realm nor Monarchy but a meer Aristocracy of many Lords in Power equal where the Greater part commandeth the less and whereon the Laws are not to be published in the Name of him that Ruleth but in the Name and Authority of the Estates as in an Aristocratical Seignory where he that is Chief hath no Power but oweth Obeisance to the Seignory unto whom yet they every one of them feign themselves to owe their Faith and Obedience which are all things so absurd as hard it is to see which is furthest from Reason When Charles the eighth the French King then but Fourteen years old held a Parliament at Tours although the Power of the Parliament was never Before nor After so great as in those Times yet Relli then the Speaker for the People turning himself to the King thus beginneth Most High most Mighty and most Christian King our Natural and Onely Lord we poor humble and obedient Subjects c. which are come hither by your Command in all Humility Reverence and Subjection present our selves before you c. And have given me in charge from all this Noble Assembly to declare unto You the good Will and hearty desire they have with a most fervent Resolution to Serve Obey and Aid You in all your Affairs Commandments and Pleasures All this Speech is nothing else but a Declaration of their good Will towards the King and of their humble Obedience and Loyalty The like Speech was used in the Parliament at Orleans to Charles the 9th when he was scarce Eleven Years old Neither are the Parliaments in Spain otherwise holden but that even a greater Obedience of all the People is given to the King as is to be seen in the Acts of the Parliament at Toledo by King Philip 1552. when he yet was scarce Twenty Five Years old The Answers also of the King of Spain unto the Requests and humble Supplications of his People are given in these words We will or else We Decree or Ordain yea the Subsidies that the Subjects pay unto the King of Spain they call Service In the Parliaments of England which have commonly been holden every Third Year the Estates seem to have a great Liberty as the Northern People almost all breathe thereafter yet so it is that in effect they proceed not but by way of Supplications and Requests to the King As in the Parliament holden in Octob. 1566. when the Estates by a common Consent had resolved as they gave the Queen to understand not to Treat of any thing until She had first Appointed who should Succeed Her in the Crown She gave them no other Answer but That they were not to make her Grave before she were Dead All whose Resolutions were to no purpose without Her good liking neither did She in that any thing that they requested Albeit by the Sufferance of the King of England Controversies between the King and his People are sometimes determined by the High Court of Parliament yet all the Estates remain in full subjection to the King who is no way bound to follow their Advice neither to consent to their Requests The Estates of England are never otherwise Assembled no more than they are in France or Spain than by Parliament-Writs and express Commandments proceeding from the King which sheweth very well that the Estates have no Power of themselves to Determine Command or Decree any thing seeing they cannot so much as Assemble themselves neither being Assembled Depart without express Commandment from the King Yet this may seem one special thing that the Laws made by the King of England at the Request of the Estates cannot be again repealed but by calling a Parliament though we see Henry the eighth to have always used his Soveraign Power and with his only word to have disannulled the Decrees of Parliament We conclude the Majesty of a Prince to be nothing altered or diminished by the Calling together or Presence of the
we cannot think that the King would use their Labours without giving them Wages since the Text it self mentions a Liberal Reward of his Servants As for the taking of the Tenth of their Seed of their Vines and of their Sheep it might be a Necessary Provision for their Kings Household and so belong to the Right of Tribute For whereas is mentioned the taking of the Tenth it cannot agree well to a Tyrant who observes no Proportion in fleecing his People Lastly The taking of their Fields Vineyards and Olive-trees if it be by Force or Fraud or without just Recompence to the Dammage of Private Persons only it is not to be defended but if it be upon the publick Charge and General Consent it might be justified as necessary at the first Erection of a Kingdom For those who will have a King are bound to allow him Royal maintenance by providing Revenues for the CROWN Since it is both for the Honour Profit and Safety too of the People to have their King Glorious Powerful and abounding in Riches besides we all know the Lands and Goods of many Subjects may be oft-times Legally taken by the King either by Forfeitures Escheat Attainder Outlawry Confiscation or the like Thus we see Samuel's Character of a King may literally well bear a mild Sense for greater probability there is that Samuel so meant and the Israelites so understood it to which this may be added that Samuel tells the Israelites this will be the manner of the King that shall Reign over you And Ye shall cry because of your King which Ye shall have chosen you that is to say Thus shall be the common Custom or Fashion or Proceeding of Saul your King Or as the Vulgar Latine renders it this shall be the Right or Law of your King not Meaning as some expound it the Casual Event or Act of some individuum vagum or indefinite King that might happen one day to Tyrannize over them So that Saul and the constant Practice of Saul doth best agree with the Literal Sense of the Text. Now that Saul was no Tyrant we may note that the People asked a King as All Nations had God answers and bids Samuel to hear the Voice of the People in all things which they spake and appoint them a King They did not ask a Tyrant and to give them a Tyrant when they asked a King had not been to hear their Voice in all things But rather when they asked an Egge to have given them a Scorpion Unless we will say that all Nations had Tyrants Besides we do not find in all Scripture that Saul was Punished or so much as Blamed for committing any of those Acts which Samuel describes and if Samuel's drift had been only to terrifie the People he would not have forgotten to foretell Saul's bloody Cruelty in Murthering 85 innocent Priests and smiting with the Edge of the Sword the City of Nob both Man Woman and Child Again the Israelites never shrank at these Conditions proposed by Samuel but accepted of them as such as all other Nations were bound unto For their Conclusion is Nay but we will have a King over Vs that We also may be like all the Nations and that Our King may Judge us and go out before us to fight our Battels Meaning he should earn his Privileges by doing the work for them by Judging them and Fighting for them Lastly Whereas the mention of the Peoples crying unto the Lord argues they should be under some Tyrannical Oppression we may remember that the Peoples Complaints and Cries are not always an Argument of their living under a Tyrant No Man can say King Solomon was a Tyrant yet all the Congregation of Israel complain'd that Solomon made their Yoke grievous and therefore their Prayer to Rehoboam is Make thou the grievous Service of thy Father Solomon and his heavy Yoke which he put upon us lighter and we will serve thee To conclude it is true Saul lost his Kingdom but not for being too Cruel or Tyrannical to his Subjects but by being too Merciful to his Enemies his sparing Agag when he should have slain him was the Cause why the Kingdom was torn from him 3. If any desire the direction of the New Testament he may find our Saviour limiting and distinguishing Royal Power By giving to Caesar those things that were Caesar 's and to God those things that were God's Obediendum est in quibus mandatum Dei non impeditur We must obey where the Commandment of God is not hindred there is no other Law but God's Law to hinder our Obedience It was the Answer of a Christian to the Emperour We only worship God in other things we gladly serve you And it seems Tertullian thought whatsoever was not God's was the Emperours when he saith Bene opposuit Caesari pecuniam te ipsum Deo alioqui quid erit Dei si omnia Caesaris Our Saviour hath well apportioned our Money for Caesar and our selves for God for otherwise what shall God's share be if all be Caesar's The Fathers mention no Reservation of any Power to the Laws of the Land or to the People S. Ambrose in his Apology for David expresly saith He was a King and therefore bound to no Laws because Kings are free from the Bonds of any Fault S. Augustine also resolves Imperator non est subjectus Legibus qui habet in potestate alias Leges ferre The Emperour is not subject to Laws who hath Power to make other Laws For indeed it is the Rule of Solomon that We must keep the King's Commandment and not to say What dost Thou because Where the Word of a King is there is Power and all that he pleaseth he will do If any mislike this Divinity in England let him but hearken to Bracton Chief Justice in Henry the Third's days which was since the Institution of Parliaments his Words are speaking of the King Omnes sub Eo Ipse sub nullo nisi tantum sub Deo c. All are under him and he under none but God only If he offend since no Writ can go against him their Remedy is by petitioning him to amend his Fault which if he shall not do it will be Punishment sufficient for him to expect God as a Revenger let none presume to search into his Deeds much less to oppose them When the Jews asked our Blessed Saviour whether they should pay Tribute he did not first demand what the Law of the Land was or whether there was any Statute against it nor enquired whether the Tribute were given by Consent of the People nor advised them to stay their Payment till they should grant it he did no more but look upon the Superscription and concluded This Image you say is Caesar's therefore give it to Caesar Nor must it here be said that Christ taught this Lesson only to the conquered Jews for in this he gave Direction for all Nations who are bound as much in Obedience to their
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