WEST SEAXNA CYNING I Ine by the Grace of God King of the West Saxons in his preamble to his Laws But until about our Henry the Third it was not of so constant use as that the Stile of the King necessarily required it This Stile of Dei Gratia is frequently given in old time Given to Spiritual Lords and yet in use to Spiritual Lords nothing being more common in the Instruments of Bishops and Abbats in the Chartularies of Monasteries and it is given from Kings to them in the Summons of Parliament and Writs to Assemble or Prorogue Convocations in this form Jacobus c. Reverendissimo in Christo â—â—tri praedilectoque fideli Consiliario nostro Georgio eadeâ—◠〈…〉 Archiepiscopo Cantuariensi c. But at this day though it 〈◊〉 â—â—ven to them they use it not in the first Person but Deâ— (i) Rosula Novella 〈◊〉 cap. 111. â—â—mentia or Providentia Divina and in older times when they writ to the Pope Emperor or King they were not to write Dei Gratia of themselves but only such or such licet indignus vel immerens Bononiae Episcopus c. By all these Titles we cannot but observe that the dignity of Kings and Sovereigns was looked upon in all Ages as deriving Authority from God Almighty and his Vicegerents here upon Earth having the Attributes of God that as he was Supreme over all things in Heaven and Earth so they within their Districts upon Earth I shall end this Chapter with this Observation That the Attribute of Dei Gratia applied to Sovereigns and Bishops might probably have Authority from the Constitution of Justinian (k) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Just Noâ— 6. init 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ibid. which runs thus The greatest Gifts which Gods goodness from above hath conferred on Men are the Priesthood and Empire both of which proceed from one and the same Principle and are for the ordering and disposing of the Affairs of Mankind Concerning the peculiar Title of our Kings of England Defender of the Faith the learned Spelman having given us thâ— Copy of the Bull and discoursed so fully of it I shall 〈◊〉 the curious Reader to him for satisfaction CHAP. XVII Of the Soveraignty of the Kings of England according to our Histories and Laws THE Titles and Attributes which other Soveraign Princes have either assumed The Kings of England have used all the Titles proper to Sovereign Princes or have been given to them our Kings of England have used as might be made appear by innumerable Examples But I shall treat but of a few and shew wherein the Soveraignty is discovered and what ancient Prerogatives they have by their acts of Grace quitted and lastly how the long Parliament of 1641. would have cramped the King's Authority First as to the Title of King or Emperor promiscuously So our Edgar frequently in his Charters calls himself Albionis Anglorum Basileus As King Emperour Lord. and I have noted before that the Grecians esteemed the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to be of full as eminent Signification as Emperor So in a Charter (a) Cod. Wigorn. to Oswald Bishop of Worcester he is called Anglorum Basileus omniumque Regum Insularum Oceanique Britanniam circumjacentis cunctarumque Nationum quae infra eam includuntur Imperator Dominus In which we may note that one of our Kings of England writ himself not only Basileus according to the Grecian usage which signified King and Emperor but also Emperor and Lord three of the fullest Attributes either the Grecian or Roman Emperors ever used as also Lord of the British Sea as Canutus his Successor challenged So in a Charter to (b) Mon. Ang. par 1. p. 64. Peterburg Ego Edgar sub ipso sidereo Rege praesidens Regno Magnae Britanniae I have seen another (c) Lib. MS. Roberti de Swapham c. Fundationis Burgensis Coenobii p. 38. of his Charters prefaced thus Gratia Domini nostri Jesu Christi omnium seculorum omnia suo Intuitu distribuentis Regna terrarum moderantis habenas rerum Ego Edgar sub ipso eodem Rege praesidens Regno Britanniae c. So King (d) Id. p. 39. Edward in the same Book stiles himself Ego Edwardus Rex Anglorum Monarchiam Regiminis tenens hoc decretum Patris mei per deprecationem Abbatis Aidulfi perhenniter affirmavi In which we may note that Edgar owns himself subject to Jesus Christ God And King Edward saith he holds the single Command of Government So King Edward in a (e) Coke Praefat. 4. Reports Rex Anglorum totius Britanniae Telluris Gubernator Rector Angligenum Orcadarum necnon in Gyro jacentium Monarcha Anglorum Induperator Charter to Ramsey stiles himself Totius Albionis Dei moderante Dominatione Basileus King of all Albion and King Edwin in a Charter to Crowland calls himself King of England and Governour and Ruler of all the Land of Britain So Ethelred in his Charter to Canterbury stiles himself Of all the English born and the Oreades lying in Circuit about it Monarch and Emperor of the English So that by Orcades must be understood all the Isles about Britain So William Rufus dates his Charter to the Monastery of Shaftsbury secundo Anno Imperii mei By all which it appears that the Kings of England have justly assumed the Supream Imperial Command in their own Dominions and though the Title of Emperor hath been disused Kings of England as much Sovereigns as Emperours yet we shall find the substance of it sufficiently challenged in that of (f) Ipse omnes libertaâ—â—s 〈◊〉 Râ—gno habebat suo quas Imperator vendicabat in Imperio Matt. Paris in vita Willielmi 2. William Rufus to Arch-Bishop Anselm when he told him That he had all the Liberties in his Kingdom which the Emperor challenged in the Empire And in a Constitution (g) Râ—gâ—um Angliae ab omâ—i subjectione Imperiali liberrimum Claus 13 E. 2. m. 6. dorso of King Edward the Second it is declared That the Kingdom of England is most free from all Imperial Subjection which excluded all public Notaries who were made by the Emperor or Popes and by this Constitution were utterly rejected The Statutes for it This further appears in the (h) Stat. Anno 23 E. 3. c. 1. Vide Coke Instit 2. 111. 4 part 6. 8. 3. Instit 120 125. Statute of Praemunire made 23 Ed. 3. which runs thus That it being shown by the grievous and clamorous Complaints of the great Men and Commons how that divers of the People be and been drawn out of the Realm to answer of things whereof the Cognizance pertaineth to the King's Court and also that the Judgments given in the same Court be impeached in another Court in prejudice and dis-inherison of our Lord the King and of his Crown c. Therefore it was enacted That none of the King's Liege-People of
(p) 14 E. 3. c. 5. Stat. 1. Rot. Parl. 2 â— 2. num 63. confirmed by Parliament a Court for redress of Delays of Judgment in the Kings Great Courts raised by Statute 14 E. 3. whereby one Prelate two Earls and two Barons the Chancellor Lord Treasurer the Justices of both the Benches and other of the Kings Council have Power to call before them the Tenor of Records and Processes of such Judgments so delayed and to proceed to take a good accord and Judgment and so remand all to the Justices before whom the Plea did depend He likewise (q) 4. Instit c. 6. fol. 67. tells us That by the Common-Law it is required that both plena celeris Justitia fiat and all Writs of Praecipe quod reddat are quod juste sine dilatione reddat c and that there did and yet doth lye a Writ de pracedendo ad Judicium when the Justices or Judges of any Court of Record or not of Record delayed the Party Plaintiff or Defendant Justice and in Case the Prelate the two Earls two Barons the Chancellor Treasurer c. may not for the Difficulty determine it then to bring it to the next Parliament there to have a final accord From this whole Discourse I hope it is apparent that as our Kings authorize the Justices to do right to every one according to the Laws and Customs of England so the Judges cannot well fail of performing it Before I end this Chapter I cannot omit the inserting of some of the Expressions that I find in the Saxon Laws whereby the desire those Kings had that equal Justice should be administred is very manifest The eighth Law of King Ina inflicts a mulct of thirty Shillings upon every (r) Hwilcum scirmen oththe othrum dâ—man Shireman or other Judge that grants not Justice to him that requires it and besides that within a Week he afford him right in Saxon thus binnan seoffon nihte gedo hine rihtes wrythe The first of the secular Laws of King Edgar runs thus That every one enjoy the Benefit of right Judgment whether he be Poor or Rich but in exacting of Punishments let there be that Moderation that they may be attempered to Divine Clemency and may be tolerable to Men. The Saxon runs thus That ole mà n sy folc rihtes wyrth ge earm geeadig and him mon righte Domas deme sy on thaerebote swylec forgyffenysse swylec hit fore God ge beorglice sy and for weoruld aberendlic The third Law of the same King is that the Judg who shall pass false Judgment on any shall pay the King a Hundred and twenty Shillings unless he confirm it by Oath that he did it by Error and Ignorance not for Malice However he shall be removed (s) Et tholige a his Thegnscipes butan he aeft al thaem Cyng gebiege swa he hin gethasian wills out of his place unless he obtain the same again of the King By which it further appears that in those days the King removed and placed Judges at his Pleasure The first of the secular Laws of King Canutus runs thus First I will that Man (t) That man ribte laga upp araere aegh wylec unlaga georne assylle set up right Laws and unjust Laws be suppressed and that every one according to his Power pluck up utterly by the Roots all unrighteousness and set up Gods Right i. e. Divine Justice and for the time to come the Poor as well as the Rich enjoy right Judgment and to both of (u) Fole rihtes wyrthe him man ribte domes deme them right Dooms be deemed Then the next Law is for exhibiting Mercy in judgment that even in Capital Matters such moderation be used in imposing the mulct that it be (w) Swa it for Gode sy gebeolice for woruld aberendlice As in the Law of King Edgar attempered to divine Clemency and be to be born by Men and that he that judgeth think in his Mind what he asks when he saith in the Lords Prayer and forgive us our Debts or Trespasses as we forgive them that trespass against us and he forbids that any Christian be put to Death for any small or contemptible cause that for a (x) Et ne forspille man for litlum Godes handgeweorce his agenne ceap the he deorgevobt small matter they suffer not to perish the work of Gods Hands which he hath redeemed with a great price In the Eleventh Law we find that the King saith That by all help and work it is to be endeavoured by what reason principally he may gain Counsel that may (y) His man fyrmest mâ—g raed aredian Theode to Thearfe ribâ—ne Cristendom swy thort araeran agh wilec unlaga georne assyllan confirm such things as are for the profit of the Republick and may confirm Christian Piety and may totally overthrow Injustice from hence that Profit at last coming to the Kingdom that Iniquity may be suppressed and Justice may be set up in the Presence of God and Men. I could add more but I shall have occasion in the next Chapter to mention something of this Subject and shall only close with that Admonition of King James (z) Dalton's Justice of Peace c. 2. the First to the Judges in the Star-Chamber 1616. wherein he gave them in Charge to do Justice uprightly and indifferently without delay without Partiality Fear or Bribes with stout and upright Hearts with clean and uncorrupt Hands and not to utter theirown Conceits but the true meaning of the Law not making Laws but interpreting the Law and that according to the true Sence thereof and after deliberate Consultation remembring their Office is Jus dicere not Jus dare CHAP. XXXIV Of Justices of Peace and their Sessions SIR Edward Coke (a) 4. Instit c. 31. fol. 170. observes that the Constitution of Justices of Peace is such a form of subordinate Government for the Tranquillity and quiet of the Realm as no part of the Christian World hath the like which may be true in the particular Limitation of the Power Officers like our Justices of Peace anciently in other Countries But that in other Countries such like Officers have been appointed particularly for the preservation of Peace is evident in the ancient Laws of the Wisigothes (b) Lib. 2. c. 16. compiled by Theodoricus their King about the Year of our Lord 437. which constituted Pacis Assertores and appointed them Judges to hear and determine those causes quas illis Regia deputaverit ordinandi Potestas So in the Sicilian (c) Anno 1221. Ibid. p. 704. to 722. lob 1. tit 8. Laws compiled by the Emperor Frederick the Second we find one Title de cultu pacis generali pace in Regno servanda and another de (d) Ibid. tit 41. officio Justiciaratus where the Title Office and Commission of the Justiciarii Regionum is at large recited almost in Parallel terms with ours at this Day The
great Ceremonies swear the points of their Contests He also further declared that those who usurp'd upon the Limits of others Possessions were not only to be punished here but were doomed to Torments in Hell to the end that every Man might be afraid to seize on the Goods of another Mans. These therefore I look upon as the Fundamentals of civil Religion in the rendring so venerable the Faith by Oaths whereby not only Allegiance to the Prince but Society was established upon that firm Basis of mutual Confidence and by the securing Propriety the whole Compages of Government was preserved We ought likewise to consider that there are moral Vertues which conciliate such a Reverence to the Practisers of them Moral Vertues very useful to Government that they are great helps to preserve and make flourishing every Kingdom and Commonweal and which constitute a considerable Religious Portion of civil Government and when Princes and People exercise them both live happilier than when without them great Sanctity and Devotion are only pretended The Vertues I put in the Balance against Bigotry in Religion Better than Hypocritical Holiness are Justice Temperance Charity Fortitude Magnanimity which are branched out into many flourishing Boughs that bear the Golden Fruit upon them such as these Not to do to another that which we would not have done to our selves To live contentedly in our Station To be obedient to our Magistrates and Superiours To live in Charity with all Men To be Compassionate to the Poor and Needy To give no evil Example in any sort of Debauchery To consider that we come into this World to live according to the rules of Life the Sovereign Being of all hath pleased to reveal That we do nothing here which may forfeit our more durable Inheritance in the other World These were the Buttresses of Government in the Heathen World when the whole train of Moral Vertues without Hypocrisie and Dissimulation were practised and can Machiavel or any of his Disciples find that the same things are not pressed as a duty upon all in the Christian Religion there seeming to me this only advantageous difference That the Foundation and Basis upon which these Moral Vertues rest in the Christian Religion is more firm more regular and more curiously hewen and polished and more consentaneous to the Dictates of right Reason in that they are implanted and promulged as standing Laws by one God Omnipotent than in the multiform jarring Polytheism of the Heathens who for every different Species of things or qualifications of Beings introduced a presiding Spirit In answer to the second Plea of the Secretary That Religion doth not dis-spirit Men. That our Religion hath dis-spirited Christians I think every one will be furnished out of the Armory of his own Experience or the perusing of antient and modern Histories with Shield and Buckler against such false Thrusts and will own that there have been as considerable and glorious Atchievements performed by Christians as by Heathens as may be instanced in Constantine the Great Theodosius Valentinian Justin Charlemain Scanderbeg and infinite more modern Christian Princes who neither yield for Manhood Valour or Conduct to Turks or Pagans and how Patient and Meek soever Christianity teacheth Men to be yet it no ways hinders Subjects from using offensive or defensive Arms when commissioned by Lawful Authroity nor discourageth adventuring of Life for the defence of Kings or their Countries nor is it an Extinguisher of Endeavours to serve God the Soveraign or his People in the Honourablest Imployments It must be confessed True Piety lessened by subtile Disputes that since Religion hath been reduced from Precepts and Axioms to Systems and that the practical part of Justice Moral Vertues and Honesty were no longer in Esteem than as they were found subservient to the promoting Speculations there hath been a way found out to render these fundamental and substantial Qualifications of less value in very good Men unless withal they added some quaint Notions that might sublime their Heathenish Moralities as they call them into Elixirs and quintessences of Religion as in our late Times If one could not give a certain Diagnostick when Grace was wrought in him he was not fit for reforming Employment Men being more distinguished by Tests and Oaths than by good Manners By which we forgo the Substance of Moral Piety for a fleeting Shadow and many are so bigotted in their several Sentiments that it is a more arduous task of late than formerly for Princes to comport themselves in this particular so as to keep in one Uniformity Subjects of so different Perswasions whereby they may command that obedience Subjects ought to pay to their Sovereigns To find Expedients or offer any directions to Princes in this Case were to involve ones self in an endless Labyrinth and discover an unpardonable Presumption the Difficulties being very great if not insuperable how to frame Laws that should combine such varieties and diversities of Opinions in one Yoak Order or Rule without such an universal and absolute Monarch as scarce in Idaea much less in Practice can ever be I shall therefore concern my self no way in tugging at the end of that Saw of Controversies which how pleasant soever it may be to such as have an over-weening Opinion of their Knowledge in such Subtilties is very harsh and ungrateful to my Temper This one Hypothesis or Postulatum however I hope few will deny That since Monarchy is the Established Government in his Majestie 's Dominions and however maliciously and potently assaulted in our Memories yet never can be altered here The Government of the Church of England agreeable to the English Monarchy Princes by small searches into the aptitude of the several Schemes of religious Worship and Government may soon find which is most agreeable to the Constitution of the Monarchy and will be most subservient to it In which particular the Church of England as established by Law in its Doctrine and Discipline and all the true Members of it and the Subjects of all Conditions who act according to the Principles of it have obtain'd a Royal and Gracious Character founded upon the constant Experience the Kings of England have had That upon all the most critical trials the Members of it have stood firm to the Crown even when worn by Princes of different Religion Therefore till other Forms practised in the late times can give as undeniable Proofs of their unconditionate Loyalties I think it but reasonable they should allow His Majesty liberty to consult his own and the interest of his Government rather than their inconsistent Models One of the Principles of the Church of England conformable to that of the Christian Religion is That it teacheth Obedience to the Soveraign not for Fear only but for Conscience sake and all considerate as well as Pious Men where they are convinced That it is better to obey God than Man if any thing should be commanded that
by the Law said to be in the King (z) Sheppard ut supra a threefold greatness of Perfection First of being freed from Infamy and all kind of Imperfections common to Man Secondly of Power in having the command of all his People Thirdly of Majesty being the Fountain of Honour Justice and Mercy The King is Gods immediate Viceroy (a) Câ—k 2.44.5.29 within his Dominions Vicarius Dei As his Protection and Government reacheth to all his People as Subjects so the Allegiance and Obedience of them all is due to him as their Sovereign whether Ecclesiastical or Civil and so he is Persona mixta his Prerogatives are called Jura Regalia Insignia Coronae Ancient Prerogatives and Royal Flowers of the Crown so inseparably annexed to the Crown that none but the King may have them nor can they be communicated to or taken by any Subject (b) Bracton lib. 1. c. 8. Stat. 25 H. 8. c. 21. Nemo terram nisi Authoritate Râ—gia possiâ—et Plowden 136. Jenkins Cent. 7. Case 77. 2. Case 16.17 E. 2. c. 17. Nevil 101.174 All Lands are said to be held of him immediately or mediately he can hold of no Man or any be equal to him as to be joynt Tenant of Land with him and his Jurisdiction is over all places within his Dominions both on the dry Land and on the Sea The Judges are to observe it as a certain Rule That whatever may be for the benefit of the King and his profit shall be taken most largely for him and what against him and for his disprofit be taken strictly neither is it only the duty of Judges but of all other his Subjects in their Stations to help the King to his Right The Perogatives are many and great yet such as are his by the Ancient Law of the Land and what the Kings of England have time out of mind used and are such as are of absolute (c) Coâ—e 12.8.30.2 part Instit 262.496.5 part 11.2.8 necessity for the security of the Government and the Public weals As to call and dissolve Parliaments give his Royal Assent to Laws command the Militia coyn Moneys grant Honors make and dispose of the great Seal dispense with penal Laws pardon Felonies and Treasons make and appoint great Officers Justices of Eyre and Assize of the Peace Gaol-delivery and Sheriffs to grant Charters to Corporations and other Persons or Fraternities He hath the sole Power of appointing ratifying and consummating all Treaties with Foreign Princes making War and Peace granting Safe-Conduct and Protection and all these and many other are firmly ascertained (d) Quod Rex est 〈◊〉 Lex est Regi Rex est Amma 〈◊〉 Lex est Anima Regi by Laws and have ever been and still are in the King alone and at his own Discretion Although there is no need in describing the Sovereignty of our Kings to carry it up to that absoluteness of Monarchy where all things are appointed and reversed by the Sovereigns fiat yet (e) Jus Regium p. 42. we must on the other side consider That the Monarchy which is subject to the impetuous Caprices of the Multitude when giddy or to the incorrigible Factiousness of the Nobility when interested is in effect no Government at all it must be owned That in all Governments a Sovereignty must reside some where and a Monarch can 〈◊〉 no Participants For then it would cease to be a Monarchy and in things that relate immediately to Government the King hath as much right to regulate them as to instance to restrain the Licence of the Press or secure Peace as we have to regulate and dispose of our Property Government being the Kings Property for with the Monarchy the King must enjoy all things that are necessary for the Administration of it according to that just Maxim (f) Quando aliquid â—oneditur omnia concessa videntur sine quibus concessum explicari nequit of the Law When any thing is granted all things seem to be granted without which the thing granted cannot be explained Which warrants the Kings Advocate of Scotland to lay that down as a general (g) Jus Regium p. 77. Rule That their Kings can do every thing that relates to Government and is necessary for the Administration thereof though there be no special Law or Act of Parliament for it if the same be not contrary to the Law of God Nature or Nations The Power and Authority of the Kings of England have been much more unbounded than they are at present (h) Part 1. c. 16. sol 34. Bracton speaking of his time saith That neither the Justices or private Persons might dispute the Kings Charter but if there were a doubt of it the Resolution must come from the Kings own Interpretation If Justice be demanded of the King saith (i) Idem lib. 1. c. 8. p. 5. he seeing no Writ lies against him one must petition that he would correct and amend what he hath done By the Condescensions of gracious Princes such Restrictions have been made of their Sovereign Absoluteness By the Grants and Condescensions of our Kings their Absoluteness lessened that they have obliged themselves to govern their Kingdoms transmitted to them with such Limitations by their numerous Ancestors by Rules of Law Equity Justice and right Judgment in Imitation of their Supreme Head and Omnipotent Monarch That therefore it may demonstratively appear how happily the Government of England is constituted for the Benefit of the Subjects who under so benign a Monarchy enjoy more Advantages in the Security of their Persons and Proprieties than under the most free Commonwealth that ever we read of I shall lightly touch upon some of those Particulars which the Kings of England by reason of several Acts of Parliament they have given their Royal Assents to have precluded themselves from the single Disposal of as in Absolute Monarchies are used yet I hope to make it clear in several Branches of this Discourse That there is no such thing as Co-ordinacy of any other Power or such a mixture as vitiates the Monarchy by a debasing Alloy much less that the Government can be Arbitrary or Tyrannical which hath sheathed the Sword of Justice within the Velvet Scabbard of the Laws and lined the Scarlet Robes of Majesty with the softest Ermine of Indulgence to well deserving Subjects who by their Obedience and Considerateness make their Princes and their own Happiness most perfect For it is equally unhappy to Princes and Subjects where (k) Alii Principes Reges hominum ipse Rex Regum Maximilian's Jest is true That whereas other Princes were Kings of Men he was King of Kings because his Subjects would do but only what they list But to come to the Particulars of Royal Abatements and Indulgences The Kings of England may not rule their People by their Will or by Proclamation as the Roman Emperors by their (l) 〈◊〉 lib. 2. c. 8. The
Misgovernment to call their Sovereigns to an account In the first Place it ought to be considered that by constituting any check upon Sovereign Princes all Decisions and Controversies must be writ in Blood and it would lay a fruitful (b) Non tanti est civilia bella movere Arguments against Resisting of Princes Seed-Plot of civil Wars by indulging the most pernicious Freedom of righting our selves for though the People or some ambitious Male-contents may not be so happy as they could wish yet to make use of Force as a Remedy will certainly encrease the Miseries If this Principle be granted it will make Sovereigns always jealous Would make Princes always jealous and consequently studious to secure themselves against such opposition by strong Hand which will be very galling to the Subject Besides upon all differences betwixt the King and People No Judges can be betwixt King and People no Judge can be found to determine the Matter and to allow this Power to the People is to allow a Difference that can have no end before one half of the Nation have ruined another as by sad Experience we found in our late Civil Wars Further it ought to be considered That this not only overthrows Monarchy but all Government for who will obey It overthrows all Government when they can resist Under all Governments we should have one Rebellion (c) Just Right of Monarchy p. 92.93 rising out of the Ashes of another for only those who prevailed should be satisfied and all the rest would certainly conclude that they might more justly oppose those Usurpers than the first did their lawful Prince and thus Government which is designed for the Security Peace and Tranquillity of the State should be perpetually embroyled and by the cruel Hostilities of emulous Factions mastering one another the common People and those who would desire to live peaceably should be the continual Prey of Ravenous Harpyes and Vultures If we allow Subjects to take Arms against their Prince Not allowed in Families we ought to allow Children the like Liberty against their Parents Servants against their Masters Soldiers against their Officers and the common Rabble against their Magistrates For the King in his Sovereignty eminently comprehends all these Relations Besides what reasonable Man can think much more ought to assert that it is fit to allow this Principle when all Ages Mischiess of the Peoples Liberties and daily Experience teach us That the numerous Party of Mankind is difficultly by the most rational and strictest Laws contained in their duty What might we therefore expect if every Man should be invested with Power to be his own Judge and be loosed from all Laws and encouraged to the Duty as it must be upon this Doctrine of transgressing disobeying and breaking all Laws that establish a Government uneasie to him It cannot but be observed and by daily Experience is found 〈◊〉 in all Popular Congresses in all Elections or public Votes of the Body of the People how violent they are when opposed by some few How Insolent when they find their Strength that nos numeri sumus And how Cruel when enraged as in the History of Cardinal Bentivolio to go no higher in that of Naples under Masianello and that of Amsterdam against the De Witts and many more might be instanced in And it will certainly be allowed that the Multitude being cajoled by Pretenders to be their Patriots and the publick-spirited maintainers of their Liberties Properties and Religion the usual Shams and Wheedles ambitious and contriving Men make of to seduce them find these very Men more unjust oppressive exorbitant and Arbitrary than the worst of Princes Therefore since the multitude is no better qualified to judge nor juster when led by such Chieftains Surely all prudent Men and Lovers of their own and their Countries Happiness must conclude it much safer and conducibler to the Publick Weal to obey those whom God hath set over them and the Laws their Duties and Oaths oblige them to bear Faith and Allegiance to than to subject themselves to their fellow-Subjects who can have no other Title but rebellious Success to warrant them to harass butcher and ruin them Whereas at the worst in Kings we have but an ill Master but allowing Subjects to usurp we may fight our selves into slavery under hundreds of Tyrants and those too fighting one against another so that we shall not know even which of those Devils to obey Would we consult the Histories of preceding times or our own Experiences we should find the Pretenders to reform (d) Idem p. 92. Pretenders to Reformation greatest Oppressors Government have proved the greatest Cheats to those they have seduced They in reality neither promoting Liberty or Religion but under that Vizard-mask shrouded other black designs and when they succeeded in their Attempts they became infinitely more oppressive to the People than the lawful Powers ever had or could be they pretended to protect them from the Rigor of And when (e) Idem p. 90 91. others rose against them on the same pretence they did in the severest manner declare that Rebellion in others which they contended to be lawful in themselves Whoever will not be convinced of this if he by woful Experience knew it not may read it in the Histories of our late Miseries and if he have any Spirit of Ingenuity or Christianity will totally abandon such Principles as brought so wasting a Calamity on our Country In the Constitution of our English Government we have but one Sovereign The Constitution of England's Government Monarchical to whom we owe Fealty Homage Allegiance and Obedience by Oaths and Laws Even all the Acts of Parliament that acknowledg this a Monarchy are so many solid Arguments and Testimonies of the Kings Supremacy and to set up any co-ordinate Power whatsoever would be to create Regnum in Regno in Temporals as the Phanatick Principle That Dominium fundatur in Gratia or in Orthodoxa Religione doth in Spirituals Than which no Sentiment was ever invented more dangerous to overturn States and bring all to Confusion If indeed we were to form the Government under which we were to live No new Government now to be framed we might agree upon setting up Ephori Tribunes of the People Daemagogues Calvin's Three Estates or a co-ordinate Power in the two Houses as so many checks upon the Supreme Governour But we are born under a Monarchy fix'd by Law and Consent time out of Mind so that we may as well yield to the Levellers reducing us to the pure pute State of Nature as the forming such an Idaea of a Common-wealth wherein a Sovereign is to be resisted if any factious Party think themselves aggrieved It is to be well considered that though William the Conqueror had little or no Title of Right yet his Conquest with the Subjects submission then and in after Ages to his Successors and the Obligation of Oaths and
this State of the Empire and of absolute Sovereign Princes (x) Leges jubere universis singulis civilâ—s dare De Repub lib. 1. c. 10. lib. 3. Bodin saith it is the first and principal part of Majesty to command Laws and impose them on all and singular the Subjects and he saith That in the Emperors time the name of the Senate was inscribed only to testify such Laws were made and to render them more acceptable to the People by the opinion they would then have that they were made with Council and Prudence So (y) Polit. c. 11. Law-making the Prerogative of Sovereign Princes Anisaeus ranks it among the first of the Jura Majestatis to make Laws for that the Government saith he is for the most part by Laws therefore they should be in the hand of the Sovereign for that they have no Power but as they are inforced by his Authority who possesseth the Plenitude of Empire I shall only note a few things of the absoluteness of the Roman Emperors in point of Law-making or abrogating and so pass to the considerations of our English Monarchy referring the larger and more explicit treating of it to the Chapters of Parliaments In the Capitol now Lateran Palace is extant a Table of (z) Gruteri Inscript p. 142. A Fragment of the Lex Regia yet extant Brass where is to be seen a fragment of the Lex Regia renewed as to Vespasian confirming many things of Sovereign and sole Authority as descending upon him from his Predecessors and enacting That what he had done decreed or commanded before his Ratification should be held and taken for as good Law as if the People it self had done decreed or commanded it So that tho' he might make use of the Senate or Peoples Ratification yet his Right was as strong before So (a) Tit. De Legibus lib. 1. Constantine challengeth to himself alone Authority to judge betwixt Law and Equity and so in point of Repeal of Laws (b) Non ab aliis sed a sese leges abrogatas suisse Lib. 3. Theodosius and Valentinian say That the Laws were to be abrogated by no other but themselves It is not to be doubted but that great and vast Empires require for their better Government a more absolute Power in the Sovereign to make Laws suitable to Emergencies for the Preservation of the whole So the Ottoman Empire and those of China Persia and the Mogul could not well be conserved entire without it Yet in these there are established Laws agreeable to the Laws of Nature and of Nations whereby the Rights of meum and tuum to Strangers are adjusted and the Subjects though they have no Property like the Europaeans yet are kept in Order and under Protection of the Laws and their Absoluteness consists principally in the ordering the Execution of any Subject without Juridical Process in placing and displacing Governours or depriving Cities Provinces and Kingdoms of Priviledges I have enlarged upon this Head to show how happy we are in England The happy State of England in the disposing of the Legislative Power that though the Force and Vigor of all our Laws flow from our Sovereigns Paternal Care â—â—ace and Bounty yet in the Point of making and abrogating Laws not only Consultation is had with so venerable a Body as the two Houses of Parliament are but nothing is done by the Sovereign without their own Preparation of Bills for his Royal Assent A wise and wealthy part of which are chosen by our selves and by the Kings Permission impowered in that particular to act for us in deliberating upon and fashioning such Bills as they petition the Sovereign to grant So that what the Judicious (c) Preface to the Reader Comp. History Dr. Brady after many other learned Men asserts is most true That by time and the Concessions of our Kings the Subjects of this Government have and may enjoy all Freedom and Happiness that sober rational Men can desire and such as is no where to be found but in this Island and the Dominions to it belonging nor can any Man that loves his Prince or Country wish for other than the present Constitution By the whole series of great Councils in the Saxon times until 49 Hen. 3. and the Parliaments succeeding I shall make it clear That the Royal Assent is that which forms the Preparatory Bills presented by both Houses into Laws and that in ancienter times the Laws were made by the Kings sole Grant by way of Charter I shall here only lay down some Preliminaries to shew in general what the ancient Usage was referring Particulars to the following Chapters First it appears That there were no certain (d) Sheringham's Supremacy p. 51. Anciently Kings called whom they pleased to advise them in making Laws Persons designed by Law whose Concurrence was required to constitute a great Council but the Kings used the Advice only of those whom they pleased to call unto themselves who were always such as they thought most able to counsel and direct them in the matters that were to be consulted of and whose assent was most likely to add most Credit and Estimation to the Laws that were to be divulged So we find in (e) Chron. Sax. Anno 670. fol. 516. And tha haefde getheal mid his witum freondam mid heora Teymenysse fultum gethafunge Christes geleassan onfeng Bed Eccl. Hist lib. 3. c. 22. Bede that Segebert or Sigbercht who was King of the East Saxons in the time of Oswi King of Northumberland who perswaded him to become a Christian held a Council with his Wites i.e. Nobles and Wisemen and his Friends and by their Advice Aid and Consent received the Christian Faith We find that Offa King of the Mercians made Laws without the Assent of his Great Council for he being at Rome (f) Mat. Paris vita Offae p. 171. Hoc autem per totam suam ditionem teneri in perpetuum constituit golng into the School of the English which was there out of his Royal Munificence He gave to the support of the People of his Kingdom that should come thither a Penny to be paid yearly for ever out of every Family by all whose Goods in the Fields exceeded the value of Thirty Pence and this he made a perpetual Constitution throughout all his Dominions excepting the Lands conferred upon the Monastery of St. Albans This Imposition and Law continued a long while in force though we find it not confirmed by any great Council in his own time or his Successors only in the Laws of King Edgar and King Edward it is enjoyned to be payed as the Kings Alms which implies it was the Kings Gift solely not by consent of a great Council So his Son (g) Matt. Paris Auct additam fol. 239 240. Ecgfrid grants Thyreseld to St. Albans with the Consent and Testimony of his Magnates which imports it to be granted by Consent of a Great
9. The Words are The Presidents and Princes assembled together to the King and told him That all the Presidents of the Kingdom the Governours and the Princes the Counsellors and the Captains have consulted together to establish a Royal Statute and to make a firm Decree c. Now O King establish the Decree and sign the Writing that it be not changed according to the Law of the Medes and Persians which altereth not Here the Presidents c. assembled consult about the Decree they propose it as they had framed it yet they own it was of no force without the King 's establishing and signing it Which is exactly parallel with the Constitution of the Legislative in England if we joyn the Commoners to the Presidents Princes c. No radical mixture of Power in the two Houses with the King But the Writers for the Long Parliament were so desirous to make the Two Houses to have a Radical Mixture of the Legislative Power equal with the King 's that they sought all the specious and plausible Arguments they could to enforce it having little regard to what was Law it self or ancient Usage Therefore one of them in his (c) Pag. 39. Answer to Dr. Fern saith A Legislative Power is not to be satisfied by a bare powerless Consent Third Objection and therefore deman◠Whether that Consent be causal and authoritative or meerly consiliary and unauthoritative That the Two Houses have an Enacting Authority he would prove from that Clause set in the beginning of Acts Be it Enacted by the King 's most Excellent Majesty This will appear a Form of Words lately made use of in the Twenty fourth Chapter and the Authority of the Lords and Commons assembled in Parliament For he saith this implies distinct Authorities for the Addition of the Authority of the Lords and Commons were superfluous if Laws be enacted by the King's Authority alone To which it may replied according to (d) King's Supremacy p. 89. Mr. Sheringham That though it be granted that they have an Enacting Authority in this particular of Law-making which how step by step it hath been brought to the state it is now in will be cleared in the following Chapters yet the Question is first Whether that be only a Power of assenting that such or such a Law shall be established or a Power that commandeth and giveth life and vigour to the Laws Secondly Whether the Power be radically in themselves or derived from the King As to the first It is agreed by the Judges (e) 2 H. 7.14.11 H. 7.25 Lambard Archeion fol. 271. That the Words Assenteth and Enacteth are equivalent in this Case For their Power of preparing Materials for a Law by framing Bills sufficiently denotes their Assent because they are Bills of their own framing and the Wisdom they show in these and the Care of the Government and People will always make that August Body of great use to the Government and valuable by their Fellow-subjects But secondly In this Particular the Writ of Summons is that which gives them all the Power of which in the Chapter of Parliaments I shall enlarge It must be considered from whom they have this Authority They have the Use and Exercise of the Legislative Power so far as is necessary for that Act although it be not radically in them for although the King's Authority cannot be separated from him privativè so as to deprive him of it yet cumulativè it may be inherent in his own Person and yet be in others too as the Light of the Sun is inherent in its own Body and yet diffused through the whole World And so we call it Moon-shine and Star-light when all their Lights are from the Sun And this Delegate Authority may be called theirs because for the time of their Sitting they are by the Sovereign and Constitution of Government so capacitated to act But since they are called by the King 's Writ and dissolved at his Pleasure they cannot be said to have the Power radically in themselves If this radical Power in the Two Houses were true How could the (f) 24 H. 8. 1 E. 6. c. 2. Statutes declare the King to have entire whole and plenary Power and to be so Supreme that all Authority is derived from him and all Obedience and Allegiance due to him and him alone An utmost Chiefty and Primity of Share as they used to speak in 1641. will not make out the Force of the Statutes Because the Kings of England desiring to rule their People by Lenity have out of Princely Clemency condescended so far as not to impose upon them as hereafter it will appear they anciently did any new Law or alter and repeal the old without their own Consents by their Representatives The Black Parliament of 1641. would have the People believe The Encroachments of the Black Parliament that their Authority was equal with the Kings But when Success had hardned them they were not content with a share they at first challenged but laid claim to all wholly excluding the King and denying him his Negative Voice usurping and taking upon them the whole Power of making Laws So that this Serpent of Co-ordinate Power is not to be suffered to wrigle in its Head lest the whole Body glide easily after But I leave the further discourse of this to its proper Place Preface to the following Chapters and shall now proceed to give some Light to the Government the Britans had among them by the Comparison is found betwixt them the Gauls and Germans Being desirous as much as I can to show the Ancientest usages and under the several Conquests of England how the Government hath received Growth and Alteration sometimes the People being under the Slavery of absolute Conquerors and other times factious Nobles bearding their Kings how the even Thred of Regular Government hath been carried on or interrupted how from an absolute Power of giving Law and ruling in a Military way by the Feudal Law and many other particulars the Government is brought to that Temperament whereby the Subjects may if they will be dutiful live happilier than any other do To illustrate all these it will be necessary to represent the State of the Britans under the Romans and to discourse of the Germans from whence our Saxon Ancestors came and of both of their Manners and Laws and from thence to proceed to illustrate the Legislative Power In all which if I carry my Reader out of his Country to view the State of our Ancient Neighbours I hope he will think it no ill spent time to make that pleasing as well as profitable towr And though I represent him his Ancestors rude and barbarous in Comparison of the Roman civilizedness yet he will find they had some Religion some Arts great and generous Souls as well as strong Bodies and their greatest mis-hap seems to be that those in Britan Gaul or Germany were not under one Monarchy
its Mitigation So Matt. Paris saith Episcopatus Abbatias omnes quae Baronias tenebant eatenus ab omni servitute sâ—â—ulari libertatem habuerant sub servitute statuit militarâ— and according to the Rules of the Feudal Law which as it was the Law for the most part in Normandy as to Possession and Tenure so was it in England until by the Indulgence of Usurpers as well as of lawful Sovereigns to the great Men and of them to their Tenents and Followers their Tenures became more easie and were changed into Inheritances both Free and Bond. So by Compact or Agreement betwixt kind and favourable as well as indigent Lords and serviceable Tenents as also by the Introduction of the use of the Canon or Imperial Law the Rigor of the Feudal Law was abated and received several Alterations and Amendments by flux of Time and especially by Acts of great Councils or Parliaments and the Necessities or Indulgence of Princes So that instead of more rigid Tenures the soft ones of Fee-simple in all its kinds by Deed or Feofment or inheritable and qualified Copyholds were introduced As to the second Particular concerning William the Conqueror's setling Laws for the equal Government Of the Conqueror's Laws both of the Normans and English I shall first give an account out of (f) Parte posteriori fol. 346. Hoveden what these were and how they were procured He saith That the Danish Laws being understood by the Conqueror to be used in Norfolk Suffolk and Cambridg-shire others (g) Chron. Liâ—â—f See for the Conqueror's Charter and Laws Dr. Brady fol. 17 252 254 258 298 249. add the Deirans and the Isles concerning Forfeitures he preferred them before the other Laws of the Kingdom and commanded they should be observed and gives the reason for it that his and the Ancestors of most of the Barons of Normandy were come from Norway therefore the Laws of the Danes ought to be preferred before those of the Britains viz. of the English and Picts Which saith my (h) Quo audito mox universi compatriota qui legâ—s edixerant tristâ—s essecâ—i unanimiter deprecati sunt quatenus permitâ—eret lâ—ges sibi prâ—prias consueâ—udines â—â—iqua halere Id. num 10. Hoveden fol. 347 num 1. Author being heard by the great Men of the Country who had as hereafter I shall show been appointed to revize the Laws they all were very sorrowful and unanimously intreated him that he would permit them to have the Laws proper to themselves and their ancient Customs under which their Fathers lived and they were born and bred under for that it would be very hard for them to receive unknown Laws and to judge of those things they understood not See Brady's Answer to Argum. Aâ—tiâ—oâ—â— p. 298 299. But finding the King unwilling to be drawn to consent they follow on their suit praying for the Soul of King Edward who bequeathed him his Crown and Kingdom whose Laws they were that they might not have the Laws of strange Nations imposed on them but he would grant them the Continuance of their Countries Laws To which intreaty of his Barons after Counsel taken my Author saith I cannot conceive but here were many of the Saxon Nobility and Men of best Account otherwise they could not call them the Laws their Fathers had lived under and the Normans could not then know much of our Laws or Speech but this was before he had subdued all fully he acquiesced and from that day the Laws of King Edward were of great Authority and Esteem throughout England and were confirmed and observed before other Laws of the Country Our Author further notes That these were not the proper Laws of King Edward but of Edgar his Grandfather which had been little observed for 68 years as in one place and 48 years in another he saith by reason of the Danish Invasions c. and being revived repaired and confirmed by King Edward were called his Laws The Account the Chronicle (i) Anglos Nobiles Sapientes suaâ—â—ge eruditos Id. fol. 348. Spelm. Concil tom 1. fol. 619. of Lichfield gives is this That King William in the fourth year of his Reign at London by the Counsel of his Barons made to be summoned through all the Counties of England all the Noble Wisemen and such as were skilled in their Law that he might hear their Laws and Customs and then gives an account how he approved of the Danish Laws used in Norfolk c. Concerning the Kindness the Conqueror pretended in his first four Years and his Rigour after see at large Dr. Brady in his Answer to the Argumentum Antinormanicum especially p. 260. and 299. But afterwards at the Intreaty of the Community of the English he yielded to grant them King Edward's Laws Before I proceed any further I cannot but note that what Hoveden calls Compatriotae here is called Communitas Anglorum and in both of them afterwards it is called Concilio Baronum by which we may know who these Compatriotae and this Communitas were viz. the Barons or great Men. Our Author proceeds That by the King's Precept out of every County of England Twelve Wisemen were chosen who were enjoyned an Oath before the King that according to their utmost they should discover the establishments of their Laws and Customs (k) Vt quoad possent recto tramite incedentes nec ad dextram nec ad sinistram divertentes nihil addentes nihil praevarieando mutantes Omnia quae praedicti â—urati dixerunt going in a strait Path neither declining to the right or left Hand omitting adding or prevaricating nothing and Aldred Archbishop of York who crowned King William and Hugh Bishop of London by the King's command writ the Laws which the said sworn Persons did produce But it is to be noted that this Chronicle of Lichfield is of a later Date than other Writers and the Laws in it differ from those in Ingulphus The next Testimony is that of (l) Circa sinem Hist fol. 519. num 36. Leges aquiâ—â—mi Regis Edwardi quas Dom. meus inclitus Rex W. authenticas esse perpetuas c. proclamarat Ingulphus who tells us That he brought from London to his Monastery i.e. Croyland the Laws of the most just King Edward which his Lord the famous King VVilliam willed to be Authentic and Perpetual and had proclaimed under the severest Penalties to be inviolably kept through the whole Kingdom of England and commended them to his Justiciaries in the same Language they were set forth in c. of which I shall say something below The Author of Jus Anglorum ab Antiquo and the Argumentum Anti-Normanicum and Mr. Petyt in his Rights of the Commons asserted have writ largely to prove That the Conqueror made little Innovation in our Laws and on the contrary the profoundly learned (m) Answer to Petyt p. 14. Great Officers Normans Doctor Brady hath from undeniable Records
7th May 20 E. 3. runs thus Because that by divers complaints made to us we have perceived that the Law of the Land which we by our Oath are bound to maintain is the less well kept c. we greatly moved of Conscience in this matter c. by the assent of the great Men and other Wise Men of our Council We have ordained c. The Preamble to the Statute of Labourers (h) Idem Anno 1349. fol. 120. repealed 23 E. 3. was thus Upon deliberation and treaty with the Prelates and the Nobles and learned Men assisting us of their mutual assent ordained and that Statute for Labourers which remains in force 25 E. 3. saith Whereas it was ordained by our Lord the King and by assent of the Prelates Earls Barons and others of his Council c. It is apparent by several Records So one Knight for a County when two Burgesses 27 E. 3. So the King names one Knight one Citizen and one Burgess to be sent 43 E. 3. m. 2. That the Kings of England have not been tied to the certain number of Knights Citizens and Burgesses though for a long while two only have been chosen of each but heretofore sometimes but one other times two or three as that 18 E. 1. and 4 Knights 22 E. 1. Besides which liberty there is a (i) Cl. 24 E. 3. p. 2. m. 3. memorable Record in this Kings Reign wherein the King appointed the qualifications of such as were to be chosen Members of the House of Commons The Writ is directed to all the Sheriffs of England Quod de Comitatu tuo duos Milites c. de discretioribus probioribus Militibus Civibus Burgensibus ad laborandum potentioribus qui non sint Placitatores querelarum manutentores aut ex hujusmodi quaestu viventes c. sed homines valentes bonae sidei publicum commodum diligentes eligi Qualification of Members to be elected Pleading Lawyers Maintainers of Plaints and such as lived of such like gain were forbid to be chosen upon some particular Reason of State then inducing it of which I shall write something in the Chapter of Parliaments The other Preambles most (k) Pulton An. 1350. fol. 121.25 E. 3. Idem Anno 1350. fol. 125. Assent of the Commonalty remarkable in this Kings Reign are mostly By the assent of the Prelates Earls Barons and other great men and all the Commons or of all the Commonalty of the Kings Realm The King hath Granted Ordained Established c. The Statute for the Clergy (l) Idem Anno 1350. fol. 122. 25 Regni saith Our Lord the King seeing and examining by good deliberation the Petitions and Articles delivered to him in his Parliament c. by Simon Archbishop of Canterbury and other Bishops of his Province upon certain Grievances c. By the Assent of his Parliament by the assent of his Parliament for him and his Heirs willeth and granteth the Points underwritten The Statute of Provisors 25 E. 3. is (m) Id. 1350. fol. 129.25 E. 3. The King bound by his Oath to remedy Mischiefs and Damageâ— to his Realm by accord of his People in Parliament singular in its Preamble That whereas in the Parliament 15 E. 1. at Carlisle the Petition heard put before the said King and his Council in his said Parliament by the Commonalty of the said Realm containing c. whereupon the said Commons have prayed our Lord the King that sith the right of the Crown of England and the Law of the said Realm is such That upon the Mischiefs and Damages which happen to his Realm he ought and is bound by his Oath with the accord of his People in his Parliament thereof to make Remedy and Law and remove the Mischiefs and Damages which thereof ensue so pray the King thereupon to ordain Remedy The Statute of Provisors (n) Id. 135â— fol. 131. 27 E. 3. runs Our Lord the King by the Assent and Prayers of the Great Men and Commons of this Realm c. hath ordained The Statute of (o) Idem Anno 1353. fol. 133. Staple 27 E. 3. hath a singular Preface whereas good deliberation had with the Prelates Dukes Earls Barons and Great Men of the Counties that is to say of every County one One Knight for a County and so for Cities and Burroughs for all the Counties and so of Cities and Burroughs c. by the Council and common consent of the said Prelates c. Knights and Commons the King hath ordained c. In the 28. Princes are named after Prelates The Preamble of the Statute at (p) Idem Anno 1362. fol. 152. The Request of the Commons Westminster 36 E. 3. runs thus The King at the request of the Commons by their Petition delivered to him in the said Parliament by the Assent of the Prelates Dukes Earls Barons and other Great Men in the Parliament assembled have granted for him and his Heirs for ever the Articles underwritten In the Second Chapter of which it is said The King of his own Will without motion of the Great Men or Commons hath granted in ease of his People The Statutes made (q) Idem Anno 1368. fol. 159. 42 E. 3. have only At the Parliament of our Lord the King it is assented and accorded So in (r) Idem Anno 1369. fol. 190. 43 E. 3. The Prelates Great Men and Commons seeing the Mischiefs pray the King in this present Parliament thereupon to ordain Remedy The Preamble to the Statutes (s) Idem Anno 1376. fol. 191. 50 E. 3. runs thus The Prelates Dukes Earls Barons and others assembled at the Parliament c. Our Lord the King desiring much that the Peace of his Land be well kept and his faithful Subjects in quietness and tranquillity maintained hath therefore made and ordained certain Ordinances and also granted certain Graces and Pardons to his Commons of England In all which it is evident the Two Houses had no more but an Advising or Petitioning and Assenting Power It is every where expressed that the King solely Ordaineth Establisheth Granteth However he owns an obligation by his Coronation Oath to make good Laws for his Subjects CHAP. XXVII Of the Parliaments of England during the Reigns of King Richard the Second to the First Year of King James the Second THE Preface to the Statutes at (a) Pulton An. 1377. fol. 163. Westminster 10 R. 2. is thus Richard by the Grace of God c. to the Sheriff of Nottingham Greeting Know you That to the Honour of God c. by the whole Assent of the Prelates Dukes Earls and Barons of this our Realm Special Instance and Request of the Commons at the instance and special Request of the Commons of our Realm assembled at our Parliament We have ordained and established certain Statutes in amendment and relief of this our said Realm That at (b) Idem Anno 1378.
Assembly was that things there proposed may be orderly and diligently debated deeply considered and thereupon wisely concluded To examine whether any Law already made be too sharp and sore and so over-burthensome to the Subject or over-loose and soft and so over-dangerous to the State For that acriores sunt morsus intermisseae Libertatis quam retentae He further adds The use of them is to consider the want and superfluities of Laws whether Graft Malice or Covetousness hath devised any ways or means to defraud the Benefit and Force of Laws and in matter of Policy for the more perfect upholding and establishing the Soveraigns Royal State and the Preservation of the Common-weal committed to the Princes care Bodin (i) Lib. 3. de Repubâ— p. 350. commends the Constitution of the Government in England and Spain that they have Parliaments once in three Years whereby Princes upon any imminent danger may have recourse to their Council and Assistance to defend their Countries from Hostile Attempts to raise Money for public Necessity cure the Diseases of the Commonweal confirm the State appoint Laws hear the Complaints of the grieved amend Male-Administration by calling ill Mannagers to account understand what the Prince otherwise may be ignorant of and generally to have counsel in all things which in Prudence are necessary for the happy Government of the Commonweal Sir (k) Commonwealth part 1. c. 2. p. 37. Tho. Smith saith As in War where the King himself is in Person with the Nobility Gentry and Yeomanry the Power and Force of England is So in Peace and Consultation where the Prince is to give Life and the last and highest Commandment the Nobility for the higher the Knights Esquires and Gentlemen for the lower part of the Commonwealth and the Bishops for the Clergy be present to advertise and consult and shew what is necessary for the Commonwealth every thing being advised with mature Deliberation every Bill being thrice read and disputed upon in either House apart and after the Prince himself doth consent thereto that is the Prince's and whole Kingdoms Deed whereupon no Man can justly complain but must accommodate himself to find it just See Prynne part 1. Brief Register p. 447. good and obey it and concludes that whatever the People of Rome might do either in Centuriatis or Tribunitiis Comitiis the same may be done by the Parliament of England which representeth and hath the Power of the whole Kingdom Thus far of the general use now to the Constitution Concerning the word Parliament it is concluded by most Of the word Parliament to come from the French word parler to speak therefore before the word was used by our Historians as appliable to this great Convention the Latin word Colloquium was frequently used to signify a Conference betwixt the King and the great Men summoned to consult advise and take Counsel with the King and among themselves Yet before the word was used to signifie these great Assemblies we find it applied to other Meetings in William Rufus's time For Ingulphus Abbat of Croyland speaking of private Consultations in that Abby saith That Semannus de Lek (a) Veniens coram conventu in nostro publico Parliamento c. coming before the Convention in their publick Parliament took his Oath of Fidelity to them as Serjeant of their Church The First that is noted to use this word among all our Historians is (b) Convenit ad Parliamentum Generalissimum totius Regni Angliae c. p. 674. Matthew Paris Anno 1246. 30 H. 3. where he saith There came to the most general Parliament to London the whole Nobility of all the Kingdom of England The first Mention of it on Record is in the (c) Cl. 49 E. 3. d. 11. Writ of Summons to the Cinque Ports summoning them ad instans Parliamentum nostrum and the next is in the Writ of Prorogation of the (d) Cl. 3 E. 1.20 dorso Parliament 3 E. 1. where it is twice mentioned in the Writ generale Parliamentum nostrum eodem Parliamento Having premised thus much concerning the Name and first usage I shall now discourse of it in particular SECT 2. Of the Summons of the Prelates THAT the King is Caput Principium Finis Parliamenti as Sir Edward Coke notes is obvious to all The Summons have been constantly from the King The Summons only from the King or in his Name In the former Chapters I have discoursed out of our Historians that the Great Councils were always convened by the Kings Now I come to prove it by Records and shall note first the Summons to the Prelates then of the Nobles and thirdly of the Knights Citizens and Burgesses only noting some of the remarkablest of them from Mr. Prynn who hath so fully writ of them in his brief Register of Parliamentary Writs in four parts and his Brevia Parliamentaria Rediviva to whose indefatigable pains in transcribing such an infinite of Records all Antiquaries Lawyers and Statesmen will be always beholding though in the use he made of such before the late King's Restauration or at least while he sate in the long Parliament few Loyal Men can follow his Doctrines All the Writs before the Sixth of King John whereby any were summoned to great Councils are utterly lost that runs (e) Claus 6 Joh. m. 3. dorso The Summons in King John's time thus Mandamus vobis rogantes quatenus omni occasione dilatione postposita sicut nos honorem nostrum diligitis sitis ad nos apud London c. nobiscum tractaturi de magnis arduis negotiis nostris communi Regni Vtilitate vestrum habere consilium aliorum Magnatum Terraendstrae Abbates Priores conventuales toti Diuoecesis citari faâ—iatis The second Record is (f) Claus 26 H. 3. m. 13. dorso 26 H. 3. directed to Walter Archbishop of York differing from the former in these particulars Sicut nos honorem nostrum here is added Pariter vestrum diligitis in fide qua nobis tenemini Anno 38 H. 3. the Writ is directed to the Archbishop of Canterbury Paternitatem vestram omni qua possumus affectione rogamus quatenâ—s nos Jura nostra totaliter indeâ—ensa non deserentes cum omni celeritate convocetis coram vobis Capitulum vestrum Cathedrale Archidiaconos Viros Religiosos Clerum vobis subjectum inducentes eos omnibus modis quibus poteritis quod nobis in tanta necessitate liberaliter subveniant I do not bring in this as a Writ of Summons to a Parliament These Summons for Military Aid out only as a special Writ to excite the Clergy to a free voluntary and liberal Contribution for defence of Gascoign and so to show the Customs of Benevolences in that Age out of Parliament The next (g) Claus 49 H. 3. dorso 11. in schedula The first Summons to the Lords when the Commons also were summoned Writ of
Capitularia Caroli (e) See Fred. Lindebrogus Codex Legum Antiq. magnis the Burgundian Alman Bavarian Saxon Longobard Ripuarian and Frisons Laws mention such Officers for preserving the publick Peace and (f) See Prynne 's Irenarch Redivivus p. 1. ad 5. punishing all Malefactors and infringers of the publick Peace as we have At the Common-Law before Justices of Peace were made there were sundry Persons to whose Charge the maintenance of the Peace was recommended and who with their other (g) Dalton's Justice of Peace c. 1. Conservators of the Peace Offices had and yet still have the Conservation of the Peace annexed to their Charge as incident to and inseparable from their said Offices yet they were only stiled and so now are by their Offices the Conservation of the Peace being included therein First the King is the principal (h) Idem Conservator of the Peace within his Dominions The King the principal Conservator of Peace and is properly Capitalis Justiciarius Angliae in whose Hands at the beginning the Administration of all Justice and all Judicature in all Causes first was and afterwards by and from him only was the Authority derived and given to all yet the Power nevertheless remains still in himself insomuch that he may himself sit in Judgment as in ancient times the Kings here have done and may take Knowledg of all cases and causes Before I leave this Head I cannot pass by the Act of (i) 20 H. 7. c. 11. H. 7. wherein is so fully declared the King's Care to have due Administration of Justice as in the close of the last Chapter I have only hinted The Reasons why Justices of Peace made The King's Care for right and easie Administration of Justice The Preamble saith The King considereth that a great part of the Wealth and Prosperity of the Land standeth in that that his Subjects may live in Surety under his Peace in their Bodies and Goods and that the Husbandry of this Land may encrease and be upholden which must be had by due Execution of Laws and Ordinances and so commandeth the Justices to execute the tenor of their Commission as they will stand in Love and Favour of his Grace and in avoiding the pains that he ordained if they do the contrary If they be lett or hindred they must show it to the King which if they do not and it come to the Kings knowledg they shall be out of his Favour as Men out of Credence and put out of Commission for ever Moreover he chargeth and commandeth all manner of Men as well Poor as Rich which be to him all one in due Administration of Justice that is hurt or grieved in any thing that the said Justice of Peace may hear determine or execute in any wise that he so grieved make his complaint to the next Justice of Peace and if he afford no remedy then to the Justices of the Assise and if he find no remedy there then to the King or Chancellor c. and as a further security it is added And over that his Highness shall not lett for any favour affection costs charge nor none other cause but that he shall see his Laws to have plain and true execution and his Subjects to live in security of their Lands Bodies and Goods according to his said Laws Thus we see who is the Principal Other Conservator of the Peace and Royal Conservator of the Peace others are the Lord Chancellor or Lord Keeper Lord Treasurer Lord High Steward of England Earl Marshal Lord High Constable of England every Justice of the Kings Bench and Master of the Rolls who have the power included in their Office and over all the Realm when they are present may award Precepts take Recognisances for the Peace of which and others Lambard in his Eirenarche may be consulted and how far Justices of Assise Stewards of the Sheriffs Turn and Court of Pye-powders the Sheriffs Chief Constable Coroners and Petty Constables may commit to Ward breakers of the Peace in their view though they cannot take surety at the request of any man that being peculiar to the Justices of Peace's Office Sir Edward Coke (k) Term. Pasch fol. 176. 4. Inst Coram Rege prima fuit Institutio Justiciariorum pro Pace conservanda Ad Pacem nostram conservandam saith that the first institution of Justices for the preserving the Peace was 6 Ed. 1. but Mr. Prynne will have it of older date because he finds that King Henry the Third by several Patents or Writs from the 17th to the end of his Reign did constitute and appoint several persons in most Counties of the Realm to be Guardians and Preservers of the Peace of the Realm and in the Patent 51 H. 3. m. 10.13 dorso it is dilectis fidelibus suis custodibus pacis Com. Linc. North. Ebor. Vicecom eorundem Comitat. and the like 54 H. 3. m. 21. d. But the first regular settlement of them seems to be Anno 1327. 1 Ed. 3. c. 16. The Authorities afterwards were further explained 4 Ed. 3. c. 2. 18 Ed. 3. c. 2. 34 Ed. 3. c. 1. Sir Edward Coke (l) Ibid. 171. tells us that the Commission of Peace stood over-burthened and incumbered with divers Statutes some whereof were before and some since repealed and stuffed with many vain and unnecessary repetitions and many other corruptions crept into it by mistaking of Clerks c. for amendment and correction whereof (m) Mich. 32 33 Eliz. Sir Christopher Wray Chief Justice of England assembled all the Judges of England and upon perusal had of the former Commission of Peace and due consideration had thereupon and often conferences betwixt themselves they resolved upon a reformation of the form with divers additions and alterations both in matter and method as it stood in Sir Edward's time and he saith It needed another Reformation by reason of Statutes since repealed and others expired of which he gives several instances Therefore he saith It is a good rule for all Judges and Justices whatsoever that have Jurisdiction by any Statute which at the first was Temporary or for a time to consider well before they give Judgment Whether that Statute hath been continued or made perpetual and if at first it was made perpetual Whether it be not repealed or altered by any later Statute What Commissions Patents and Writs were issued out by King Edward the First for preserving the Peace of the Realm suppressing seising and punishing of those who disturbed it may be found Cl. 9 Ed. 1. m. 10. d. in Rylies (n) P. 443 451 to 457 433 480. Prynne's Animadv fol. 149. Appendix so there is a Patent 14 Ed. 1. m. 15. 15 Ed. 1. m. 13. de militibus constitutis ad Articulos in Statuto de conservatione pacis edito contentoâ— observandos constituting persons of note in every County to observe them named in the Record and so for other Kings Reigns
they were Lords of Mannors where they had their Courts as likewise they were Hundredaries c. CHAP. XXXV Of the Kings Soveraignty in making War and Peace THE great (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 3. Polit. c. 7. Philosopher observes That in a Common-wealth that part is most powerful in which the strength of War consists and which is in possession of Arms for those he saith that have no Arms are the Servants of the Armed Plato (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 12. de LL. Power of making War and Peace the greatest Badge of Sovereignty affirms it as a standing Law That he who without Authority innovates a Peace or makes War shall be adjudged to punishment and gives this reason for it That he who hath in his Hand the Militia it is in his Power that the Commonwealth subsist or be dissolved Bodin makes this one of the greatest badges of Soveraignty because without the power of declaring War and making Peace no Prince can defend himself or his Subjects the Establishment or Destructon of the States depending upon it therefore it is Capital to do the least thing in that kind without the Kings Commission There being nothing more dangerous in War than to betray Counsels it is not fit the ordering of War and consequently of Peace should be in any but the Soveraign In the Greek and (c) Clapmarius de Jure Majâ—statis lib. 1. c. 10. Latin Histories it appears that all Wars were undertaken and performed by the Counsel Will and Pleasure of the Soveraign whether Senate or Emperor and by them solely was decreed unless in some extraordinary Cases that the Peoples consent was required in comitiis Populi centuriatis and when the Republick was changed by the Julian Law it was Treason to make War without the Command of the Prince the words of the Law being Nulli nobis insciis atque inconsultis quorumlibet armorum movendorum copia tribuetur The reasons why this Power should be in the Soveraign solely are many and just for without it no Prince can provide against intestine Seditions For if he wanted that Authority Reasons why this Power should be in the Sovereign alone to make War and Peace as often as Ambitious or Seditious Men perswade the People they were in danger of Oppression by the Government or they had a mind to remove great Officers that they might enjoy their places or that the Rule in Church or State did not please them They might resort to Arms to the ruining of their follow Subjects who would otherwise live peaceably and dutifully By this liberty greatest Convulsions would be in the Kingdom upon every predominancy of ill humours and we should never be without the Plague of War in one place or other and all the miseries of a torn dis-joynted and mangled confusion would be upon us neither should a Prince be able to defend his Subjects from Foreign Invasions or perform that great and necessary Work of assisting the Allies to his State and Te formidable to his Enemies Polybius (d) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polyb. O. notes That there are two things which preserve Government viz. Fortitude against Enemies and Concorâ—â—â— home but neither of these can be performed if the Prince have not the disposal of the Militia This is it which preserves the Kings Authority makes his Laws to be observed keeps the Factious and Seditious at quiet gives repute abroad and Peace at home All the Calamities of War are prevented when an Armed Prince that hath the sole disposal of his Military Power can extinguish the Flame at its first blaze therefore St. (e) Ordo naturalis mortalium paci accommodatus hoc poscit ut suscipiendi belli auctoritas atque consilium penes Principes sit Augustinus contra Faustum Austin saith That the natural order of Mortals accommodated to Peace requires this That the Authority and Counsel of making War be in the Prince That in the time of the Saxon Kings the Power of the Militia was in the Crown doth not obscurely appear in all the Laws for preserving the Peace and in that particularly I have instanced in of King Aethelstan besides which we find the Tenth Law of King Canutus ordained That Fenced Towns Burghote Brighote beonon forth scip forthunga aginne man georne frythunga eac swa a th one thearf sy for â—e men licre neode LL. Canute 10. or Burghs and Bridges be repaired and there be preparations for defence both of Land and Sea-Forces so often as the necessity of the Commonweal requires it The 69th Chapter of Hereots runs thus Every Earl to pay Eight Horses whereof four with Saddles and four without Saddles four Helmets and so many Coats of Mail eight Spears and eight Shields four Swords and twelve Mancusae of Gold and a principal Thane half the number and other Thanes a lesser proportion as may be there seen By which there seemeth some beginning of a Feudal Tenure which in William the Conqueror's time was so settled that as elsewhere I have noted all Persons held of him their Lands in Knights Service to be ready at his pleasure with Horse Men and Arms the which was practised in succeeding Ages The Statute 30. Octob. 7 E. 1. saith That it being accorded of late that in our next Parliament Provision should be made that in all Parliaments Treaties and other Assemblies which should be made in the Realm of England for ever that every man shall come without all Forces and Armors peaceably to the Honour of us and the Peace of us and our Realm Now all Prelates Earls c. have said that to us it belongeth and our part is through our Royal Signiory to * i.e. forbid defend force of Arms and all other force against our Peace at all times when it shall please us and to punish them which shall do contrary according to our Laws and usages of our Realm and hereunto they are bound to aid us their Soveraign Lord at all seasons In 3 Ed. 3. (f) Cap. 2. the Commons decline the having Cognizance of such matters as guarding the Seas and Marches of England but refer it wholly to the King and 25 E. 3. it is High Treason to levy War against the King or aid them that do it Also the Statute of (g) 11 H. 7. c. 18. H. 7. saith Every Subject by duty of his Allegiance is to serve and assist his Prince and Soveraign Lord at all seasons when need shall require There is nothing more indisputably owned by all that understand the Laws than that it was High Treason by the Common Law before the Statute of 25 E. 3. for any Subject to levy War within the Realm without Authority from the King it being one of the Rights of Majesty Badges of Supreme Power and incommunicable Prerogatives of the Crown saith my Lord * 3 Instit c. 9. Coke and with him consent all the long Robe In a Speech in the Star-Chamber to
When Princes not to make themselves Parties but only private-Animosities betwixt some of the Nobility wherein the Government is not much concerned there may be some allowance for my Lord Verulam's Opinion That Princes being Common Parents should not lean to one Party because a Boat that is overset by the unequal Weight on one side may carry such Passengers in it as the Prince would not lose Therefore to study ways to piece them and solder up the flaws is better than to side with one to the Ruin of the other and sometimes of themselves also As we may observe in Henry the third of France who entred into the League and it was shortly after turned against himself which may be a document saith that wise Lord to Kings how they make themselves a Party for by that a Prince makes himself unus ex nobis which makes an Obligation Paramount to that of Soveraignty So that a Prince must be very cautelous when he must side with one Party which he espouseth (d) In caducam pariâ—tem ne inclinet lest he lean upon a ruinous Wall But if there be a Party by whose fall the Prince (e) Cujus râ—ina se quoque tradura est Tacitus de Moribus Germ. likewise shall be sure to be ruined as in case of Factions against Government as I mean in this whole Discourse it is necessary for him strenuously to support it When Princes to support one Party Upon this Consideration it seems to me that it ever will be the great Interest of the Kings of England to defend and support the Episcopal Government for that by fatal Experience it was found that the overthrow of it was the Praeludium to the Destruction of the Blessed King and Monarchy For although he was a very great Champion of the Church of England as established by Law yet he too fatally yielded to take away the Bishops Votes in Parliament whereby he lost a considerable Party in the House that would never have deserted his Interest So that in this case I may apply that of Galba (f) Manifestum est neque perire nos neque salvos esse nisi una posse Tacit. 10. Hist P. 195. Edit Lips 5. to his Soldiers It is manifest that undivided or alone they can neither be Saved or Perish in times when they are attacqued But to return to the Prognosticks of dangerous Seditions I shall mention some that Tacitus hath noted and described Speaking of the Revolt of the Legions in Germany under Germanicus at the Beginning of Tiberius's Reign Unanimity a dangerous Sign he saith Those that looked deeply into the Disposition of the Soldiers judged it a strong Argument of an unappeasable Revolt (g) Id militares animos altius conjâ—â—â—antibus praecipuum indicium magni atque implacabilis motus quod neque disjecti nil paucorum instinctu sed pariter ardescerent pariter silerent tanta aequalitate constantia ut regi crederes 1. Annal. that they were not scattered or divided nor any attempt given by a few but grew insolent together were quiet at once with such moderation and constancy that one would have thought they had been governed by one Head For when any Sedition is carried on with such Unanimity it is a certain Sign that the Poyson hath a large spread and there are few sound Parts left The Progress (h) Ad tuendam plebem Tribunitio Juâ—e â—tentum militem doâ—is populum Annena cunâ—los dulcedine oâ—ii pellexit Insurgere paâ—tatim munia Senaâ—us Magistratuum Legum in se trahere nullo adversante lbid Augustus made to establish the Sovereignty in himself The Methods of Designers is the usual Method by which such as intend subverting of Government may proceed which according to the same Author was That to ingratiate himself with the People he contented himself with Tribunitian Authority to defend the Common People that he wound himself into the Favour of the Soldiers by Gifts of the People by Provision of Sustenance and of all in general with the sweetness of Ease and Repose by little and little taking upon him the affairs of the Senate the Duty of the Magistrates and Laws and so without the Contradiction of any he obtained the Empire This in Augustus was commendable and Politically done being to alter a Commonweal into a Monarchy and Wisemen by his method might have foretold his Design So in Seditious enterprises against Monarchy the way is to court the People and insensibly cajole them with the sweetness of Liberty under a Commonwealth and the heaviness of the Yoak of Monarchy and having possessed them with this they have no more to do but to await some critical time or revolution that may suit their Design as some new Imposition laid some publick Calamity the displacing some great Officer or Death of some great Man or their Prince such (i) Opportunos magnis conatibus transitus rerum 1. Histor Revolutions being the sittest times for great Attempts as Tacitus speaks of Otho's Conspiracy by Galba's Covetousness to the Soldiery c. Concerning Sejanus the same Judicious (k) Primas dominandi spes in arduo ubi sis ingressus adesse studia ministros Lib. 4. Annal. Author gives us the Saying of Drusus That the first hopes of attaining Command or working themselves into Power by Sedition is difficult but after the Entrance there will not want aids of Council and assisting Hands Therefore it is most necessary Speedy Suppression most necessary that Princes diligently watch the motions of all kind of Seditious aspiring Persons to prevent their first Entrance upon their Designs lest they prove afterwards too Powerful In such a State of affairs the Council of (l) Nibil in civilibus discordiis festinatione tutius ubi facto magis quam consilio opus 1. Hist Tacitus is to be followed That nothing is safer in Seditions and Civil Discords than quickness of dispatch when there is more need of Action than Consultation The misfortune is great which happens to the Subjects by Faction and Sedition The Mischiefs of Faction for such things once begun are not in a short time hushed but the Animosities are durable and when one (m) Inter victores victosque nunquam solida sides coalescit Idem 2. Hist Party overcomes yet the Conquered retains his old grudge and is always catching at opportunities to promote his Interest and there is rarely in that Generation at least a sincere amnesty and union of Affections Therefore as Princes by Acts of Pardon endeavour to put all into a State of Unpunishableness though they cannot into a State of Innocence so those that have assisted the Seditious Party ought with a generous Repentance and Fidelity to their Prince endeavour all their Lives to be rubbing out those Stains by their Loyalty For he that (n) Quem paenitet peccasse pene est innocens repents he hath offended is in the next degree to the Innocent It
without citing or hearing them For if they had such Power we should be the greatest Slaves and live under the most arbitrary Government imaginable Therefore an absolute Prince cannot in an Hereditary Kingdom where the Successor is to succeed Jure Regni (z) Nulla clausula Successori Jus auferri potest modo succedat ille Jure Regni Aristaeus c. 7. num 5. prejudge the Successors right of Succession for the same right the present King hath to the Possession the next of Blood hath to the Succession Therefore Hottoman Lib. 2. de Regno Galliae affirms That ea quae Jure Regni primogenito competunt ne Testamento quidem Patris adimi possunt That in the absolute Monarchy of France The Father cannot by his last Will deprive the First-born of those things which belong to him by Royal right So when the King of France designed to break the Salique Law of Succession as in the Reign of Charles the Fifth it was found impracticable by the three States So when Pyrrhus would have preferred his younger Son to the Crown (a) Pausanias lib. 1. the Epirots following the Law of Nations and then own refused him So Anno 1649. when Amurat the Grand Signior left the Empire to Han the Tartarian passing his Brother Ibrahim the whole Officers of State did unanimously cancel the Testament and restored Ibrahim the true Heir though no other than a Fool. So if Kings could have inverted their Succession Saint Lewis had preferred his own Third Son to Lewis his Eldest and Alphonsus King of Leon in Spain had preferred his Daughter to Ferdinand his Eldest Son and Edward the Sixth of England had preferred and did actually prefer the Lady Jane Grey to his Sisters Mary and Elizabeth Thirdly It is undeniable in the opinion of all Lawyers That a King cannot in Law alienate his Crown but that the Deed is void nor can he in Law consent to an Act of Parliament declaring that he should be the last King For if such consents and Acts (b) Jus Regium p. 163. had been sufficient to bind Successors then weak Kings by their own simplicity and gentle Kings by the Rebellion of their Subjects or being wrought upon by the importunity of their Wives or Concubines or the mis-representation of Favourites might do great mischiefs to their People in raising up continual Factions of the miseries of which I shall speak hereafter This is owned in Subjects That the Honour and Nobility that is bestowed upon a man and his Heirs doth so necessarily descend upon those Heirs that the Father or Predecessor cannot exclude the Successor or derogate from his Right by renouncing resigning following base or mean Trades or such like For Fab. Cod. 9. tiâ— 28. say the Lawyers since he derives his Right from his old Progenitors and owes it not to his Father his Fathers Deed should not prejudge him so much more in Kings the ill consequences of such violations of Justice and Right being infinitely more destructive the Predecessor should not do any Act to prejudice his Successor For that right of blood which makes the Eldest First makes the other Second and all the Statutes that acknowledge the present Kings Prerogative acknowledge that they belong to him and his Heirs For as a Prince cannot even ex plenitudine potestatis legitimate a Bastard in prejudice of former Children though they have only but an hope of Succession much less can he bastardize or disinherit the Right Heir who is so made by God and honoured from him with the Character If therefore Kings how absolute soever cannot de jure invert the natural order of Succession there is no reason that the States of Parliament should have such a Power For by the known Laws they have no Legislative Power otherwise than by assenting to what the King does and all that their assent could do would be no more than that they and their Successors should not oppose his nomination because of their consent but that can never amount to a Power of transferring For if the States of Parliament had this Power originally in themselves to bestow why might they not reserve it for themselves and so perpetuate the Government in their own hands So Judge Jenkin asserts according to Law That no King can be named or in any time made in this Kingdom (d) Liberty of Subject p. 25. by the People Kings being before there were Parliaments and there is good reason for then the Monarchy should not be Hereditary but Elective the very Essence of Hereditary Monarchy consisting in the Right of Succession whereas if the Parliament can prefer the next save one they may prefer the last of all the Line and the same reason by which they can chuse a Successor which can only be that they have Power above him should likewise in the opinion of a very (e) Jus Regium p. 167. learned Person justify their deposing of Kings as we saw in the last Age that such reasons as of late have been urged to incapacitate the Children of King Charles the First from the hope of Succession viz. Popery and Arbitrary Government did embolden men to dethrone and murther the Father who was actual King For if it were once yielded that the Houses had a Right in themselves to take care for the Salus populi that none but such Princes should succeed who were approved of by the prevailing Faction in their body nothing but confusion would follow one Party having their Votes seconded by force one time and a quite contrary another yet all pretending the Publick Weal and so a large breach should be made by pretending to stop one dangerous Successor to the inflowing of successive Usurpers and thereby the Crown should not only by ambulatory but unstable upon every head that wore it and alwaies in danger of a bloody surprise till at last the Regalia being secured from the expectant Heir the Factious would find a way to pillage them from the present Soveraign and convert them into a Mace for an House of Commons I writ this Part with greater Enlargements in answer to the plausiblest Arguments for the Bill of Seclusion while that matter was in the hottest agitation But since there will be no need of dilating upon that Subject now that God Almighty hath so signally determined the Controversie by the peaceable settlement of his Majesty upon his Throne I shall close this Chapter with some few remarks of the miseries have been brought upon Kingdoms and especially upon this by the disjoynting the Succession So we read what dreadful (f) Jus Regium p. 166. mischiefs arose from Pelops preferring his younger Son to the Kingdom of Mycene The Miseries which Kingdoms have sustained where the Succession hath been interrupted from Oedipus commanding that Polynices his Youngest Son should reign interchangeably with the Eldest From Parisatis the Queen of Persia's preferring her Youngest Son Cyrus to her Eldest Artaxerxes From Aristodomus admitting
par luy mesme Imprimees par l' Original Brief Animadversions on Amendments of and Additional Explanatory Records to the Fourth Part of the Institutes of the Laws of England concerning the Jurisdiction of Courts By William Prynne Esq Brevia Judicialia or An exact Collection of approved Forms of all sorts of Judicial Writs in the Common Bench together with their Returns By Richard Brownlow Thesaurus Brevium or A Collection of approved Forms of all sorts of Original and Judicial Writs in the King's Bench with their special Directions By J. C. Folio stitch'd The Order of the Installation of Henry Duke of Norfolk Henry Earl of Peterborough and Laurence Earl of Rochester Knights and Companions of the most Noble Order of the Garter in the Royal Chappel of St. George at Windsor July 22. 1685. The General Catalogue of Books English and Latin continued from the Year 1666. to the end of Michaelmas Term 1685. The late Proposals of Union among Protestants Review'd and Rectified Being a Vindication of the most Reverend Father in God Edwin Lord Archbishop of York and the Reverend Dr. Tillotson Dean of Canterbury from the Misprisions of an Apocryphal Proposer with a full Answer to his Proposal presented to the Parliament Books in Quarto An Historical Vindication of the Divine Right of Tythes from Scripture Reason and the Opinion and Practice of Jews Gentiles and Christians in all Ages Designed to supply the Omissions answer the Objections and rectifie the Mistakes of Mr. Selden's History of Tythes Part I. The second Edition corrected and amended By Thomas Comber D. D. Praecentor of York An Historical Vindication of the Divine Right of Tythes which is further proved by Scripture and Antiquity and illustrated by the Solemn Consecration and great Convenience of them With an Answer to the Objections of other Authors against them Part II. To which is added A Discourse concerning Excommunication By Thomas Comber D. D. Praecentor of York Brutum Fulmen or The Bull of Pope Pius the Fifth concerning the Damnation Excommunication and Deposition of Queen Elizabeth as also the Absolution of her Subjects of their Oath of Allegiance with a peremptory Injunction upon pain of an Anathema never to obey any of her Laws or Commands With some Observations and Animadversions upon it By Thomas Lord Bishop of Lincoln Whereunto is annexed the Bull of Pope Paul the Third containing the Damnation Excommunication c. of King Henry the Eighth The Protestant Peace-maker or A seasonable Perswasive to all serious Christians who call themselves Protestants That laying aside Calumnies and all exasperating Disputes they would pursue Charity Peace and Union as the only means now left us of Safety and Reformation of the Publick Manners With a Postscript or Notes on Mr. Baxter and some other late Writings for Peace By Edward Lord Bishop of Cork and Ross in Ireland A Treatise of Spousals and Matrimonial Contracts Wherein all the Questions relating to that Subject are ingeniously Debated and Resolved By Mr. Henry Swinburne Author of the Treatise of Wills and Testaments The Geometrical Key or the Gate of Equations unlocked A new Discovery of the Construction of all Equations howsoever affected not exceeding the Fourth Degree viz. of Linears Quadratics Cubics Biquadratics and the finding of all the Roots as well false as true without the Use of Mesolabe Trisection of Angles without Reduction Depression or any other previous Preparation of Equations by a Circle and any and that but one only Parabole and this by one only General Rule and than which a more Simple more Perfect more General more Easie to be understood or more fit for Practice cannot be devised or wished for Fortified with Demonstrations illustrated with Figures to each Equation and exemplified with Numeral Equations according to all the variety of Cases adapted to each Figure By Thomas Baker Fellow of the Royal Society The History of Gavelkind with the Etymology thereof containing a Vindication of the Laws of England together with a short History of William the Conqueror By Silas Taylor Quarto stitch'd Bishop of St. David's Answer to Sidney's Speech A short Way to a lasting Settlement Billa Vera or An Arraignment of Ignoramus Verbum dici A Word in season An Admonition to a Deist The Compleat Conformist or Seasonable Advice concerning strict Conformity and frequent Colebration of the Holy Communion By Dennis Grenville D. D. Dean of Durham Religion and Loyalty supporting each other or A Rational Account how the Loyal Addressers maintaining the Lineal Descent of the Crown is very consistent with their Affection to the establish'd Protestant Religion Dr. Standish's Sermon at the Temple before the Lord Mayor of London at the Assize at Hartford Elston's Visitation-Sermon before the Bishop of Exeter Laxton at the Funeral of Christoph Sherrard Esq Warren of Religious Loyalty of the End of Christ's Advent Weâ—ge of the Excellency of Man's Soul Davison of the Fall of Angels Dr. Morrice his Sermon 30 Jan. before the King Bishop of Ely's Sermon 30 Jan. At the Coronation of King James the Second and Queen Mary Dr. Gower's Sermon on Christmas-day 1684. Archbishop of Tuam's Sermon before the King at Windsor Dr. Comber's Sermon of Oaths Plays Andronicus Commenius a Tragedy By Jo. Wilson Heracleus Emperor of the East a Tragedy By Lodowick Carbel Esq Lancashire Witches Books in Octavo large Short Discourses upon the whole Common Prayer design'd to inform the Judgment and excite the Devotion of such as daily use the same By Tho. Comber D. D. Praecentor of York The Mystery of Rhetorick unveil'd Wherein above 130 of the Tropes and Figures are severally derived from the Greek into English together with lively Definitions and variety of Latin English Scriptural Exampâ—es pertinent to each of hem apart Eminently delightful and profitable for young Scholars and others of all sorts enabling to discern and imitate and Elegancy in any Author they read c. By John Smith Gent. The Art of Chymistry as it is now practised Written in French by P. Thybault Chymist to the French King and Englished by W. A. Doctor in Physick and Fellow of the Royal Society Aurora Chymica or A Rational Way of preparing Animals Vegetables and Minerals for a Physical Use by which Preparation they are made most efficacious safe and pleasant Medicines for the Preservation of the Life of Man By Edw. Bolnest Med. Reg. Ord. A Compleat Treatise of Preternatural Tumors both General and Particular as they appear in Humane Bodies from Head to Foot To which also are added many excellent and Modern Historical Observations concluding most Chapters in the whole Discourse Collected from the Learned both of Ancient and Modern Physicians and Chirurgeons The Chirurgeons Store-house furnished with Forty three Tables cut in Brass in which are all sorts of Instruments both Ancient and Modern useful for the performance of all Manual Operations with an exact Description of every Instrument together with 100 choice Observations of Famous Cures performed with three Indexes 1. Of
great Oeconomy the whole System is kept in regular and orderly Motion is firmly established and enabled to exert all those beneficial Powers that are admired in a well composed Body Politic. The Body without the Head being but a Trunk and inanimate Carcase and the Head without the Body as a curious piece of Clock-work without Motion It must be owned to be a noble Enterprise to make researches into the constituent Parts Harmony and Composure of Government which is that benign Supreme Power which influenceth vast Societies of men and combines all tempers constitutions and interests in one noble Machine for the benefit of the whole and every part and makes every Dominion a little World wherein Beauty Order and the Blessings of this Life are inspired into all the Members how minute soever with that calmness when no disturbances are given it that we scarce hear the motions of the (c) Sic orbem Reipubliâ—e esse conversum ut vix sonitum audire vix impressam orbitam viâ—ere possumus Cic. â—â— Attic. Ep. 36. Machine or see the Springs that move it But as in the Body Natural the (*) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Philosopher observes That by the turbulence of depraved Appetites by heady Rashness and seducing Passions in the vitious and ill-affected the Body seems to command the Soul and Reason is dethron'd So in the Commonweal when from mistakes and misguided Zeal Discontent Ambition and other vitious Inclinations People are infected whereby the Malignant Fever of Sedition or the Pest of Rebellion rageth in a State the Sovereign is for a time kept from the Exercise of his Royal Power The Scheme of the whole work and sometimes dethron'd But to leave this pleasing Allegory which I could pursue in comparing all the Members of the Body and Faculties of the Soul with the constituent Parts and Offices of Government I shall instead of that draw a short Scheme of my design in this Work which I had never undertaken if it had not been that I was invited to it by a Great and Wise Minister of State My Lord President whose glorious Service to his Prince and Country will be celebrated in remotest Ages and having liv'd to make some Observations on the Causes and Managery of the Rebellion against King Charles the Martyr and the tendency to another Civil War of later date and revolving with my self that though many wise and judicious Persons both know and have learnedly writ of the secret Springs and Movements of them infinitely beyond what I can pretend to and that both our own Country-men have in Parts writ of all the branches of the English Government and many Foreigners of Politics in general or such as were fitted for the Governments under which they lived yet having met with none that had so particularly writ of the Excellency of the English Monarchy as to illustrate it so as it might be useful to the preventing Seditions and Rebellions and to clear the Commodiousness and Necessity of submitting to it and placing a great Portion of our happiness here in living under it I conceived it might be a profitable Essay to excite those who have not leisure and opportunity to peruse great and numerous Volumes to extract for their use such things as had occurred in my poor Reading to induce them to prize it as they ought and to furnish them with such Arguments as my low Reasoning was able whereby to answer the Objections of our late Republicans against it and discover their Methods of Proceedings towards the overthrowing it and to caution all the well-meaning Subjects against all the Arts of Factious and Seditious People and Principles And though I cannot promise my self the success I wish yet I hope I may excite some more knowing learned and judicious to furnish our little World with a more Copious and Elaborate Piece which may supply my defects and more abundantly satisfy the ingenious and curious Reader to whom I shall now draw the Curtain and expose the Model of the designed Work First Therefore (d) cap. 2. as a Foundation I shall treat of the necessity of Government in General In which Chapter I shall discourse of its Original in Families c. (e) cap. 3. Then that the People are not the original of Government Then (f) cap. 4. of the benefit of Government in instituting Laws In (g) cap. 5. securing Property and other particulars From this I proceed to treat of the (h) cap. 6. inconvenience of Democracy and of the several (i) cap. 7. Forms of Common Wealth Governments before and in Aristotle's time After which (k) cap. 8. of the inconvenience of all kinds of Republick Governments Then of the preference (l) cap. 9. of Monarchical Government before all others In all which Chapters I touch upon the Principles and Practices of our late Republicans which having dispatched I give the Character of a good (m) cap. 10. King in general Then that the care (n) cap. 11. of Religion is incumbent upon Kings Then of the (o) cap. 12. Clemency Prudence (p) cap. 13. Courage (q) cap. 14. and Military Conduct of Kings of the (r) cap. 15. burden and care of Kings (s) cap. 16. The Excellency of Hereditary Monarchy Then I proceed to the King's Authority and (t) cap. 17. Sovereignty in general and more (u) cap. 18. particularly according to our Laws by the Enumeration of many particulars (w) cap. 19. Then as a Corollary that the Sovereign is not accountable to any upon Earth That the King is not to be (x) cap. 20. Resisted or Rebelled against In what cases he may (y) cap. 21. dispence with the Execution of the Laws of his Country Then I treat of the King's Authority (z) cap. 22. in making Laws and of the Laws of the Romans in Britain and of the British and German Polity Next of the Saxons (a) cap. 23. great Councils of whom they consisted and how the Laws were established by the respective Kings Then of the great (b) cap. 24. Councils from the Conquest to the beginning of Hen. 3. Then of the great Councils (c) cap. 25. and Parliaments during the Reign of Hen. 3. to the end of Edw. 3. After which of the Parliaments (d) cap. 26. of England during the Reign of Edw. 2. to the 22. of King Charles the 2d Then of Modern (e) cap. 27. rightly constituted Parliaments and of the Factious (f) cap. 28. Members of Parliaments wherein I discourse at large of the Encroachments of some Parliaments especially of some Houses of Commons Then from the great Council I pass to the (g) cap. 29. Right Honourable the Privy Council their Qualifications to be at the King 's sole appointing Of Ministers (h) cap. 30. of State c. Then of the King's Sovereignty in appointing (i) cap. 31. Magistrates (k) cap. 32.
their imperious Commands The World never knew greater oppression than those that stiled themselves Keepers indeed Jaylors of the Liberties of England were guilty of It would trouble saith a judicious (s) Malson's Common Interest Author a publick Accountant to cast up those vast Summs and incredible Treasures which in less than twice seven years they raised and spent to support the worst of all luxurious Rebellion and to act upon the publick charge and Theater of the Nation not Masques and Plays as they had charged one great part of the Expences of the Court on but the most real and inhumane Tragedies and those infinite in number one of which was such as the Sun never saw or any History could parallel It would be endless to recount the Annual Revenue of the Crown Bishops Chapter and Cathedral Lands besides the Money they received for the purchace of them the constant heavy and unheard of Assesments free Quarter Plunder Sequestration Compositions Decimations Excise and Customs voluntary Contributions of Plate Jewels c. Summs borrowed on the Publick Faith which some found to their cost was but fides Punica and almost innumerable ways and arts they had to squeeze and drain the Treasure of the Nation into their bottomless Gulph so that the same Writer is confident That not any three Kings of England since William the Conqueror to this present were so expensive to England as that one Tyrannical and Prodigal Parliament The Nation was then and ever will be under any Usurping Republic in worse than Egyptian Bondage In every County a Committee was placed to seize the Estates and Rents of all the Loyal Subjects with such a Tyrannical Arbitrariness as never was known under any Kings Reign and as if that were not enough there were added to them Basha Major Generals and the sucking Vermine in every Town and Hamlet were either fire-side Troopers or some well affected Person whose Information would be believed before the best in the Parish Every one that would not worship those Pagods were proceeded against by some of those or their Arbitrary High Courts of Justice or were convened before the House of Commons where every one of those Parliament Demarchs were as absolute as the Laws of their own will could make them No Person could either question their Actions or Authority but he paid his Life or Fortune or one of them for his presumption so that we saw the whole Kingdom brought into a slavery far greater than theirs that wear Canvase Cloth and Wooden Shooes and not only look like Ghosts but really are so as they made all which they either suspected feared or hated All which was never to have been altered as long as their standing Force should be true to them to the incredible charge oppression and impoverishment of the Subjects Friend and Foe though they had the Policy to lay the heaviest Burthen and Load upon the Backs of their Enemies if possible to break them keeping the Loyal Nobility and Gentry so poor that many of them have not been able or ever will be to forget the kindness of that Government which was the ruin of them and their Families I shall now pass to the last head of Rewards and Punishments No just Distribution of rewards or Punishments and executing of Justice none of which can be according to merit where prevalent Faction shall sway the Balance and open and shut the Eyes of Justice by the cunning Instruments of Partiality It being impossible to separate Faction and Interest from this kind of Authority so that none shall obtain any thing but according as they shall be judged favourable or advantageous to the Interest of the ruling Faction So that the Vertuous shall have the least share since Vertue is not over natural to Mankind it is like to thrive but poorly in a soil where it is not tenderly cherished and frequently refreshed with the encouraging Dews of Reward and Benefit But those shall have the greatest share that can best wheedle or seem by a well-managed Flattery to join with the topmost governing Party I shall therefore give some examples of the Ingratitude of Commonwealths to the well-deserving great and brave Men Ingratitude of Commonwealths who have served their Country and been ill rewarded by the governing Part or been exposed to be baited or worried by the People instigated by Factions or suffered base Ignominy Banishment or Death I shall begin with Athens the eye of Greece and the Seat of the Muses When Xerxes invaded Greece The ill usage of Themistocles the Athenians and Peloponnesians were the most considerable States yet the Athenians were forced to leave their City and get into their Navy which might carry the whole People and their Power to some remote Country where they might enjoy more secure Habitations The Spartans were unwilling to hazzard a Sea-Battle near Salamis but would have weighed Anchor and gone to Isthmus Themistocles did all he could to perswade the staying and joining of the Fleets there to wait the Enemy who would have less Sea room whereas if they fought elsewhere by his numbers he would have overborn the Confederates and when he could not prevail but that they would weigh Anchor the next day he sent a private message to the Persian Captains that the Grecian Fleet intended to fly and in the interim advised the Grecian Fleet to be in a readiness against all Events By which Stratagem he toiled the Persian Fleet to make the Attacque with that disadvantage he desired and the Grecians obtain'd a most memorable Victory Several other great Services he did not only in saving of Athens but the rest of Greece from Xerxes But when the Athenians were returned to their City and rebuilt it after the Battle of Mycale the People were so proud of their Exploits that they not only endeavoured to get the Command of many Towns and Islands of the Greeks but within their own Walls would admit no Government but meerly Democratical which being argued against by Themistocles they laid upon him the Punishment of the Ostracism banishing him for ten Years before which time was expired a new accusation was framed against him by the Lacedemonians that he intended to betray (t) Sir Walt. Raleigh b lib. 3. cap. 8. sect 7. Greece to Xerxes So that he was forced to fly to Artaxerxes who afterwards would have imployed him against Greece but he decided the great Conflict betwixt thankfulness to his well-deserving Patron and natural Affection to his own ill-deserving People by finishing his Life with a draught of Poyson This Ostracism was a Sentence of Banishment writ upon an Oyster-shell and the like in Sicily writ on a Leaf was called Petalismus This was so often abused by exterminating Persons not so much for Crimes as by factious Envy made use of to remove out of the way Persons that were like to oppose the prevailing Factions that the (u) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. lib. 3. c. 13.
affords us many Examples of Persons selling their Country and putting their great Councils upon ill attempts and labouring with their utmost cunning to frustrate good Designs because their Dependance upon a Foreign State or Kingdom was worth much more unto them than they could hope to gain by honest Service to their Country Supposing both the King and Optimacy be willing to promote the Peoples Happiness yet he is more able to compass that End by reason he hath a more United Power and the Execution of all Designs depends upon a single resolve and therefore may be managed with a certain closeness and all convenient swiftness so that good Councils shall be first discovered in their effects Whereas a great Body move slowly and most times the opportunity of Doing is gone by while they are but half way in their deliberation Besides More Inconveniences under Common-wealths than under Kings cateris paribus as there are many Advantages peculiar to Monarchy as in these three Chapters I hope I have evinced so there is not one Inconvenience to which a People living under Aristocracy are not subject in a much higher Degree than they are under Monarchy For supposing a King cruel yet one Man's Cruelty cannot reach so many as that of Multiplied oppressors when every one takes their peculiar Province to fleece or exercise their Lordliness over according as their Estates or Interests are divided The Covetousness likewise of Senators is more devouring because we may feed one Fire with less Expence of Fewel than five Hundred A Princes profuse Largesses to his Favourites is infinitely over-balanced by so many providing for their poor Kindred and making Friends and purchasing Dependants This very thing must likewise be practised by Senators for underproping their several reputations hiring Advocates to plead for them in their absence purchasing of Votes in their private concerns and obtaining of Offices Places and Estates for themselves and their Relations So that these must require more considerable Supplies from the People who must be squeezed every time any single Grandee wants than are necessary to nourish the Liberality of a Prince who hath a large Patrimony standing Revenue and places of Honour and Profit to gratify his Servants withal The wisest States having made ample allowances to their Princes to enable them to bestow Favours according to Merits or liking Some think that of Ecclesiastes Wo to thee O Land when thy King is a Child a strong Argument against Monarchy Another Objection answered because this Calamity is not incident to a Senate because they are not subject to Nonage But the place rightly understood saith a learned (i) Idem p. 23. Writer whom I have epitomized in the Parallel is a very full Confirmation of the happy Condition we have reason to expect under Monarchy and of the Calamities and Woes which probably attend an Aristocracy For the cause of those Miserie 's foretold is plainly thus A King during his Infancy being not able personally to Rule the Government is managed by the Nobles and thence come Factions and all the Mischiefs that accompany them To close therefore this Chapter we may consider that Kings have no Rivals whom they fear and must keep under as Governours of Commonwealths have which is no small Blessing to a People Kings as Proprietors take all the care possible saith a very (k) Jus Regin◠p. 58. Learned Author to improve their Dominions whereas Republicans are as Tenants mind nothing so much as their private Profit and the very Pretenders to Liberty and Property in this and the last Age have been the great Cheats of the Nation They when raised to govern grew insolent whereas Princes are still the same and their Passions rise not because their Fortunes do not The Prevailing Factions in Commonweals spare none that oppose them having no consideration of them but as Enemies whereas Kings pity even Rebels as considering them still as their Subjects and though I cannot say with my (l) Idem Author of one Year yet I may say of the whole time of the Usurpation That more were murthered and ruined in that Reforming Age than suffered by the Great Mogul and King of France in that space of time and more Severity was exercised by those Reformers than by all the Race of our Kings these Six hundred years And whatever Evil Ministers Kings are said to have yet what that Judicious Author notes of Scotland we may say the like of England That after they had taken from the Blessed King his Prerogative of chusing Judges and Councellors the Parliament did the next year put in I will not say with him the greatest Blockheads and Idiots in the Nation but men of much meaner Parts and more corrupt and unfit either for knowledge or the upright dispensing of the Laws Justice and Equity than any Age had known I have discoursed of this Head before and so shall say no more but that as well as in Antient times the unequal Distribution of Justice hath been noted so the Severity of the State of Venice against their Nobles and the executing Men without Citing or Hearing upon meer Jealousies induced a wise Spaniard who hath collected the Arbitrary Courses practised and allowed in that State to say That there is less of Liberty there than under the worst of Monarchies And for the State of Holland it hath been more than once observed how ingrateful they have been to all their Neighbours who have assisted them in their greatest need and with what a Jealousie they treat the Prince of Orange whose Ancestors setled them in the Possession of what they have as well as to the Crown of England is obvious to common Observation By them their Allies have been unworthily deserted In the matter of Trade no Pact or Faith hath been kept In their Country Mint and Cummin Coleworts and Herbs are excised nothing worn nothing fed upon or necessary for Humane Life but pays something to their Exchequer You pay a Tribute for the Ground you walk on for the Rivulets you pass on only they have not yet found out a Tax upon their Foggy Air. CHAP. X. The Character of a good King in general BEfore I come to treat of the Sovereignty I think it convenient to discourse of the usefullest Qualifications of Monarchs and the benefits that will redound to themselves and their Subjects thereby The (a) Ethic. 8. c. 10. Polit. lib. 3. 5. c. 4. Philosopher in several places compares a King to a Parent and Shepherd but a Tyrant to a Lord over Slaves and a Wolf Difference of a King and a Tyrant The One in his Government having a special Regard to the Peoples Benefit the Other governing without or against Law pro nutu arbitrio reducing all things under their absolute will and Power in such a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as is unhappy to their People and in the Conclusion to themselves The ancient Authors Description of a Good
would put them upon that Dilemma will chuse to suffer if they cannot fly rather than rebel Therefore since it pleased his Majesty at his first Step to the Royal Throne which was like that of the rising Sun dispensing innumerable Blessings to his People to express his Royal Favour to the Church of England The King's Commendation of the Principles of the Church of England as to Monarchy with such an Encomium of its Members in that most refreshing Declaration at his first Council which from so just a Prince carries the Force and Energy of an Act of Parliament as well as of State in it it ought to bow the Hearts of all Men that design not to be Rebels as one Man to him Since which by the repeated solemnity of it to his two Houses of Parliament all suspicion of his Majestie 's ever acting to the contrary so long as the Subjects keep their dutiful Station is totally removed His Majesty also hath laid a solid Foundation for true Piety in the discountenancing and discrediting all forts of Vice and Debauchery by which none can doubt but himself as well as his Subjects will in short time reap happy Benefit according to that so the excellent (b) Diutius durant exempla quam mores Tacitus 4. Histor Historian Examples have a more durable force than Laws I shall conclude this particular with the famous Story of the Zealots in (c) Josephus de Bello Judaico lib. 4. c. 5. lib. 7. Judaea Those being told by Vespasian which Messages Josephus himself carried to them that he would change nothing of their Religion but maintain them therein The Evils by Rebelling upon pretence of Religion and in all their Liberties and Franchises yet under colour that they were bound to sacrifice their Lives in the defence of the Temple would never hearken to Peace upon any condition what ever but living upon Forraging Rapines Free-booty and committing most cruel Butcheries Vespasian found himself obliged to arm against them and use them with all Extremity In fine Those who pretended so much the Preservation of their Religion committed a Thousand sort of Impieties and Cruelties and themselves set the Temple of Jerusalem on Fire and at last brought utter Ruin to their Country I shall make no further Application but that from hence we may learn First That it was agreeable to Principles of Government that Vespasian though a Prince of a different Religion to the Jews should not alter their Civil or Religious Government And Secondly That the utter Extermination of a People and their Religion there was the Consequence of the Zelots Rebellion as to the apparent procuring cause for I enquire not here into the Original cause of that Nations Destruction viz. The crucifying of our Lord and Saviour I come now to consider wherein a Sovereign's care of Religion consists Wherein the Sovereign's Care of Religion consists which would carry me into a dangerous Ocean if I should survey all the Rocks Creeks and Quick-sands to be avoided in this matter At the best I shall find an high rolling Sea as that in the Bay of Biscay if I escape the difficult and dangerous passage betwixt Scylla and Charybdis First therefore I shall consider the Obligation the Pagan Romans thought they had not to make any Innovation in matters of their Religion with some Reflections upon it Secondly Consider the Condition of People under Diversity of Religions Thirdly The Roman Heathens not for change of Religion Speak something of the Diversities of Religion sprung up in the time of the late War And Lastly Something concerning Toleration But I must praemonish the Reader that I intend not to treat of these either as Divine or Statesman but only as a Lay-man that loves Order and Peace in transitu as a Parergon First then as to the Heathens we find that remarkable Advice of (*) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Dio Cassius lib. 52. Mecaenas to Augustus That he ought to worship the Deity in all Methods and at all times himself according to his Countries Laws and cause others to do so and further adds That he should restrain those that would innovate in Divine things not for the cause only of the Gods but because those that bring in new Deities do drive men to make other dangerous Changes and from thence Conspiracies Sedition Conventicles Cabals c. which are things no ways conducible to the benefit of Government In which we may consider Mecaenas to advise like a Statesman considering that Augustus had but newly extricated himself from a great and dangerous War for no less than the Empire Therefore it behoved him to make no Alterations in Matters that might endanger the Settlement of his present Estate Therefore we find That Augustus laid aside the name of Triumvir contented with the Consulship and for defence of the People with the Tribunitian Authority which were old Offices the People were acquainted with and that he attracted the Soldiers good Will to him by Gifts the Peoples by Provision of Food and all with the sweetness of Peace arising by (d) Paulatim insurgere munia Senatus Magistratuum 〈◊〉 in se trabere aullo adversante Tacit. 1. Annal degrees to draw to himself the Imployment and Authority of the Senate the Magistrates and the Laws none opposing him How far this is to be imitated by Princes in the Circumstances of Augustus I leave to others to determine As to the general Sentiment that the Heathen Roman Religion was not to be changed I shall content my self with two Authorities of the great Orator who in one place (e) Majorum instituta tueri sacris caeremoniisque retinendis sapientis est Patrios ritus migrare aut violare ubique gentium nefarium sir Cic. de Divinatione saith That it is the part of a wise Man to defend the Institutions of their Ancestors in retaining sacred Ceremonies and that in all Nations it is reputed wicked to violate and banish our Countries Rites In another place (f) Omnes Religione moventur deos patrios quos a majoribus acceperunt colendos sibi diligenter retinendos arbitrantur Cic. in Verrem he pronounceth it absolutely That all are moved with Religion and judge their Country Gods which they have received from their Ancestors to be worshipped and retained I am sensible that if this were yielded to Christianity would not have been propagated in the World For if it had not been lawful to alter the so long established Idol Worship and Polytheism the Doctrine of Christianity had been shut out But on the other side when I consider how Christianity was propagated by the working of Miracles and by the Force and Energy of Conviction upon the Minds of such as would admit the Explanation and Dilucidation of the Doctrine and the Christians patient sufferings under the Heathen Persecutions and peaceable awaiting till God Almighty disposed the Emperor Constantine's Heart to embrace the saving Doctrine of
what condition soever shall draw any out of the Realm in Plea whereof the Cognizance appertaineth to the King's Court or of things whereof Judgments be given in the King's Court c. This Statute as well as that of Provisors 25 Ed. 3. was made to hinder the Subjects Appeals to Rome or to any other Court in such things whereby the King's Soveraignty might be diminished and this Statute relates to one made by King Edward the First Also in the Statute of Provisors 25 Ed. 3. reference is made to the (i) Anno 35 Regni Statute made at Carlisle by King Edward the First The Statute of (k) 16 R. 2. c. 5. Praemunire for purchasing Bulls from Rome gives an account of the preceding Statutes and further saith Whereas our Lord the King and all his Liege-People ought of right and of long time were wont to sue in the King's Court to receive their Presentments to Churches Prebends and other Benefices of Holy Church which they had right to present to the Conisance of Plea of which Presentment belongeth unto the King's Court of the old right of his Crown used and approved c. then particularly enumerates the Encroachments of the Bishop of Rome by Processes Excommunications of Bishops for executing Judgments given in the King's Courts and the translating of Prelates out of the Realm or from one spiritual Living to another against the King's Laws and Regality c. The Statute expresly declares That the Crown of England hath ever been so free that it is in no Earthly Subjection but immediately subject to God in all things touching the Regality of the Crown and to no other Under King Henry the Eighth (l) 24 H. 8. c. 12. the whole Parliament say that by sundry old and authentick Histories and Chronicles it is manifesty declared and expressed that this Realm of England is an Empire and so hath been accepted in the World governed by one Supream Head and King having the Dignity and Royal Estate of the Imperial Crown of the same unto whom a Body Politick compact of all sorts and degrees of People divided in Terms by names of Spirituality and Temporalty have bounden and owen to bear next to God a natural and humble Obedience The next (m) 25 H. 8. c. 21. Year in another Statute it is stiled the Imperial Crown and Royal Authority recognizing no Superior but only Your Grace and in the Chapter following the Kings of England are stiled Kings and Emperors of this Realm and in (n) 28 H. 8. c. 7. another of the same King it is called The most Royal Estate of the Imperial Crown of this Realm So in the same (o) Stat. Hilâ—â—◠〈…〉 8. c. 2. Year before the Title of Lord of Ireland was altered into King the Stile is Kings and Emperors of the Realm of England and of the Land of Ireland and in several other Statutes it is called the Imperial Crown I have inserted these to clear that by our Laws the Kings of England are under no Subjectjon to any foreign Prince or Potentate whatsoever And Mr. (p) Tit. Hâ—â— p. 21 22. Selden saith that the Supremacy is not only used by the English Sovereigns but hath been challenged by the Kings of Spain Denmark Poland the Czars of Muscovy and other free Princes over all within their own Dominions exclusive of all foreign Powers and upon the like ground of Supremacy was that Law made by King James the Third of Scotland in these words Our Sovereign Lord has full Jurisdiction and free Empire within this Realm c. A Confirmation of this Supremacy of our Kings appears in what is reported of our King Edward the Third That when Lewis (q) Quod Râ—x Anglix non se submisit ad osâ—ula pedum suorum of Bavier the Emperor had an Interview with him the Emperor stomached that the King of England submitted not himself to kiss his Feet But the King answered That he was (r) Rex inunctus habet vitam membrum in potesâ—ate sua ideirâ—â— non debet se submittere tantum sicut Rex alius an anointed King and had Life and Member in his Power therefore he ought not to submit himself to him as other Kings Whence it was that Alsonso the ninth King of Castile defining what Kings were after he had dispatched the Particulars that belonged to the Emperor says That they are every one in their Kingdoms the Vicars or Vicegerents of God placed over the People to govern them (s) Bien assi come el Emperador en su Imperio Partid 2. tit 1. Ley 5. 8. no otherwise than as the Emperor is in his Empire Whoever desires further Satisfaction in this Point may have recourse to the voluminous Collections of Mr. Pryn and other Authors that have treated of the Kings Supremacy Most of what I have hitherto discoursed relates to the King's Supremacy ab extra that he hath no foreign Superior that ought to impose any thing upon him or his Subjects contrary to his Pleasure and his Laws in his Dominions I shall now give a short Abridgement of what I find our learned Lawyers have writ concerning the King's Authority and Sovereignty in his Kingdom of England and how Wherein the King's Sovereignty consists according to our Laws in former Ages Kings have quitted some of their Royal Prerogatives In our Laws the King is stiled in Ecclesiastical matters the Supreme Ordinary (t) Cokâ— 11. 86. Calvin's Case 215. in Civil matters caput Reipublicae Pater Patriae totius Regni Pater-Familias Chief Justice c. being furnished with plenary Power to render Justice and Right to every Member and part of the whole Body (u) Coâ—â— 2 part 1 2. 24 H. 8. c. 1. 24 Eliz. c. 1. without the help of Foreign Jurisdiction Some Attributes of God in a similitudinary way say (w) 〈◊〉 8◠〈◊〉 177 2â—8 212 〈…〉 the great Lawyers are aseribed to him for the Excellency of his Person and the greatness of his Office as Sovereignty and Power Omnipresence Majesty Immortality c. In his Political (x) 〈…〉 Grand Abâ—iâ—gment part 3. p. 44. Capacity not subject to the Infirmities of others as Nonage Death Attainder c. So no Laches Negligences Defects or Stops of Blood can be imputed to or fastned upon him as is well known in the case of King Henry the Seventh (y) St. Albans vita â—en 7. p. 29. wherein it was unanimously resolved by the Judges That his Natural Capacity doth so far participate with the Politic which is superadded to the Body natural of the King that these become consolidate consubstantiate and indivisible in one and the same Royal Person and the Body Politic which is the more worthy and of a sublimer Nature is in no ways obnoxious to the Humane Imbecillity of Death Infamy Crime or the like but doth draw from the Natural Body all Imperfections and Incapacities whatsoever So that there is
properly as Somner renders it with the Advice Counsel Instruction or Exhortation as our modern word Lore imports of Cenred my Father and Heddes my Bishop and Ercenwold my Bishop and with all my Aldermen i. e. Princes Dukes Earls Viceroys Military Officers Senators or Ministers of State as the word then signified those old Wites i. e. principal or chief Noble Men Chieftains Governours or Wisemen of my Kingdom do command and likewise with mycelre somnug Godes Theowena The great Assembly Congregation or Synagogue of Gods Servants i.e. the Clergy (f) Waes 〈◊〉 thaere hae le 〈…〉 be thâ—m stâ—â—hâ—le ures rices meditating or studying the Health of our Souls and upon the Estate or establishing of our Kingdom That ryht AE (g) Not Aew Nuptiâ—e 〈…〉 observes and appears in the 〈…〉 Gefasâ—inedâ— and ryhte cynedomas thurh ure Folc Gefaestenode getrymmed waeron That right Laws and right or just Judgment or Dooms of the King or Office and Dignity of Magistrates and Somner be fastned or established and trimmed perfected or accomplished That no Alderman or under our Jurisdiction or as probably the Compound word may be rendred any Prince under us Theoden signifying a Lord Prince or Ruler or as in the Saxon Chronology a King after them shall turn from break corrupt or change Awendan these ure domas these our Decrees Sentences or Ordinances Then in the First Chapter it follows We beodaeth that ealles Folces AE domas thus synd gehealden We bid or command that all our People shall after hold fast or observe these Laws and Dooms From this Preface the candid Reader may observe First Observations on this Preface That Kings are the gift of God and that Godes Gyffe signifies the same with Dei Gratia they are not the Creature of the People Secondly That Princes for the better Government of their People in the setling of Laws in Church and State consult deliberate and advise with their Bishops Noblemen and eminently Wise men of their Kingdoms whom for their Wisdom they honour with public Imployments in their Dominions Thirdly That after such Consultation Deliberation and Advice the Sovereign establishethâ— and instituteth the Laws And Lastly That such Laws are not to be broken or infringed by the Judges or supremest Officers under the King much less by the Subjects The next (h) Spelman Câ—ncil vol. 1. p. 313. Other Great Councils in the Saxon times of Offa. Council I find is that of Colchyth in the Kingdom of Mercia Anno 793. wherein are said to be Nine Kings present viz. Offa and Egferd his Son and seven more numbred by Sir Henry Spelman Fifteen Bishops and Twenty Dukes and so in another at (i) Id. p. 314. Verulam it is said to be under Offa who called together his Bishops and Optimates but these are only about Religious matters So (k) Id. p. 3â—0 Ad Aâ—â—um 8â—â— Kenulph Kenulph King of Mercia writing to Pope Leo the III. begins Kenulphus Gratia Dei Rex Merciorum cum Episcopis Ducibus omni sub nostra ditione dignitatis gradu So at the Synod at (l) Idem fâ—â— 328. Colichyth 6 Kal. Aug. Ann. Dom. 8â—6 Wulfred the Archbishop being Praesident it is expressed that Caenulf the King of the Mercians was present cum suis Principibus Ducibus Optimatibus So we find a Synodal Council at Clovesho (m) Iâ—em fol. â—32 〈…〉 rum praesidente Beornâ—lpho Rege Merciorum and Wulfrid the Archbishop the other Bishops Abbats and the Nobility of all Dignities treating concerning the profit of Ecclesiastical and Secular Persons and the stability of the Kingdom That which I shall note from these is this That in these Synodal Councils sometimes it is said the King praesided other times the Archbishop but mostly all the Persons that constitute such Councils are the King the Archbishops Bishops Abbats Priors and the Optimates The next Council I find is called (n) Idem pag. 336. Anno 833. Withlasius Concilium Pananglicum held at London 26 May Anno 833. wherein Withlasius King of the Mercians gives several immunities to the Abby of Croyland and more than once he saith volo praecipio and this he saith he doth in the (o) In praesentia Dominorum meorum Egberti Regis West-Saxoniae Aethelwulphi filii ejus coram Pontificibus Proceribus presence of his Lords Egbert King of the West Saxons and Aethelwulph his Son and before the Bishops and the greater Noblemen of all England in the City of (p) Majoribus totius Angliae in Civitate Londonia ubi omnes congregati sumus pro consilio capiendo contra Danicos Piratas litora Angliae assidus infestaâ—tes London where they were all gathered to take Counsel against the Danish Pirates daily infesting the Coast of England Therefore Sir Henry Spelman judgeth this Council properly to be called for secular Affairs and to be such as we now call our Parliaments The Witnesses to it are the said Withlase the Archbishop of Canterbury Celnoth and Eadbald Archbishop of York and after nine more Bishops and three Abbats Egbert and his Son Adelwulph sign and after them Wulhard Athelm and Herenbrith Dukes Swithin the Kings Presbyter and Bosa his Secretary But I shall leave these and come to more direct secular great Councils The Laws of King Alfred Regnare coepit 871. desiit 900. as that of King Alfred who in the first part of his Laws recites the Commandments and Laws by Gods appointment delivered by Moses to the Children of Israel to be observed and some of the New Testament and from that of our Saviour quod vobis fieri non velitis id aliis non faciatis concludes that Jâ—Plgment of Right ought to be given to every one and that on (q) On thissum anum Dome mon maege gethencean that he aeghwelâ—re on riht gedemeth LL. Alured p. 21. this one Sentence That Man must bethink him much that judgeth Right to every one and he adds That after the propagating of the Gospel in England as well as in other places were gathered for making of Laws both for Church and State it is to be supposed he means Holy (r) Haligra Bisceopa eac othera gethungenra Witena Ibid. Bishops and other famous wise Men or Wites Then in the Conclusion of the Laws about Religion and Prefatory to the secular Laws he saith I Alfred King have gathered (s) Thaes togaeder gegaderod awritan het these Sanctions together and caused them to be written many of them being observed by his Ancestors Those that he liked (t) Tha the me ne licodon Ic awearp mid minra witena getheat on othre wifan behead to heoldanne Ib. p. 22. not with the Council of his Wites he rejected and those he liked he bid or commanded to be holden and concludes Ic tha Aelfred West-Seaxna Cyning eallum minum Witun thaes geeowde hi tha cwaethon that him that licode eallum to healdenne which thus I
had with Ecclesiasticks and Laicks and in the Laws it is often said Thonne cwaedon these we pronounce or appoint and sometimes the single person is used and in other places us betweonan heoldan it is holden betwixt us Here we find the Great Council summoned by the King and the constituent parts of it to be the Clergy and Laity and that the Laity were only the Princes Dukes Earls great Officers Military Commanders the Kings Ministers Graeves Praepositi Thanes sometimes denoted by the general names of Wites translated Sapientes Magnates Optimates c. as is every where beyond all possible doubt cleared by the most Judicious Dr. Brady in his Answer to Mr. Petyt to whose great collection for the proof of this point before I proceed further I shall only in transitu instance in a few The Title of the Council of Berghamsted (f) Spelman Concil vol. 1. fol. 194. Anno 697. Withrad 5 of Withred King of Kent is This Synd Wightraedes domas Cantuara Cyninges Saxon Great Councils These are the Judgments of Withred King of Kent and the persons mentioned particularly are the King that convened them and Birthwald Bretone Heahbisceop High or Archbishop of Britain Gibmund Bishop of Rochester and the rest of the Ecclesiastick (g) Aelc had ciricean thaere maegthe acmodlice Order of that Nation mid thy Hersuman Folcy with the Military Persons such as in after times were called Here-Thegni in King Ina's Laws and Heretoches in the Auctuary (h) Lamb. tit Heretoch fol. 147. to the 35 Laws of King Edward the Confessor which are there interpreted Barones Nobiles Insignes Sapientes Ductores Excercitus So in the Council at Clovesho 3. Cal. Nov. Anno Dom. 824. under (i) Spelm. Conc. vol. 1. fol. 333. Beornwulph Beornwulph King of the Mercians besides the Archbishop VVulfred and several Bishops and Abbats are enumerated only Beornoth Eadberht Sigered Egberht Eadwulf Alheard Mucel Vhtred and Ludica under the stile of Duces Bynna Frater Regis Aldred Thelonius So in the Great Council at London (k) Idem fol. 336. Egbert 26 May Anno 833. the Title is Presidentibus Egberto Rege West-Saxoniae Withlasio Rege Merciorum utroque Archiepiscopo caeterisque Angliae Episcopis Magnatibus and besides the Bishops and Abbats that subscribe we find these Adelwulphus filius Regis West-Saxoniae Wulhardus Dux Athelmus Dux Herenbrithus Dux So in the Council at Kingsburie Anno 851. Bertulph Idem fol. 344. under Bertulph King of the Mercians it is said to be praesentibus Ceolnotho Dorobernensi Archiepiscopo caeterisque Regni Merciae Episcopis Magnatibus and the Subscribers are besides the Bishops and Abbats Ernulphus Dux Osrithus Dux Serlo Comes Elbertus Comes Huda Comes Oflat Pincerna Regis I have upon this occasion instanced in these few of the Ancientest to clear who the Persons were according to their Orders Ranks and Degrees that constituted these Great Councils and shall now proceed to other Saxon Councils succeeding Eldred King of all England gave the Monastery (l) Ingulphi Hist fol. 477. King Eldred's Great Council of Croyland to Abbat Turketul and his Monks by his Charter dated in Festo Nativitatis B. M. Virginis Anno Dom. 948. cum universi Magnates Regni per Regium edictum summoniti when all the great Men of the Kingdom were summoned by the Kings command and then more particularly he divides them into the two Orders of Ecclesiasticks and Laicks thus Tam Archiepescopi Episcopi Abbates quam caeteri totius Regni Proceres Optimates Londoniis convenissent ad tractandum de negotiis publicis totius Regni Some may object That Ingulphus giving this account may rather express the Members and the occasion of it to treat of the Publick Affairs of the whole Kingdom according to the usage of the Age he lived in than of the Age the Great Council was held in which is well to be observed in many cases But in the Laws of King Edgar I shall shew it was then used in such manner to give account of the great Councils as both his Laws and those I have hitherto mentioned of the oldest Date manifest The Preface to King Edgar's Laws is thus This is seo geraednysse the Eadgar Cyng mid his Witena getheahte geraed King Edgar's Laws Lamb. Conc. fol. 62. Regn. coepit 959. desiit 975. This is the Constitution Act or Decree which King Edgar with his Wisemen or Great-men hath made ready trimmed or enacted Then follow the three great Ends for which such Councils are called viz. God to lofe to the Love Glory or Praise of God in appointing Religious Laws him Sylfum to Cynescipe rendred by Lambard ad Regiae Majestatis ornamentum or according to the significancy of the Words himself to make Kingly or his own Kingship or Soveraignty to manifest and thirdly eallum his leodscip to thearf all his People or Nation to profit or according to Lambard ad totius Reipublicae utilitatem The same King Edgar (m) Spelmanâ— Concil Tom. 1. fol. 4â—5 in his Charter to Glastonbury concludes it thus Hanc privilegii paginam Rex Edgarus XII Regni sui Sacro Scripto apud Londoniam communi Concilio Optimatum suorum confirmavit So that it appears this was in the presence of a great Council and the Witnesses named are Elfgina Regis mater Edward Clito filius Kinedius Rex Albaniae Mareusius Archiparata Admiral Then follow both the Archbishops and several Bishops and Abbats after whom the secular Optimates viz. Elpher Oslac Ethelwine by the Title of Duces Oswold Eufward Ethelsic Ellshie by the Title of Ministri which were Officers under the King as Thegns praepositi In the account given of a Council held at (n) Idem 490. Winchester in this Kings Reign those present at it are reckoned thus Praesentibus Edgaro Rege cum Conjuge Dunstano Archiepiscopo Elfero Principe Merciorum Ethelwino Duce Orientalium Anglorum and the same persons called Duces in the foregoing Charter Elfwoldo suo Germano Brithnotho Comiti cum Nobilitate totius Regni So that none but the Nobility were present The Witnesses to a Charter of the same King to the Monastery of Hyde in Winchester are the King Archbishop Dunstan Eadmund Clito legitimus praefati Regis filius Edward eodem Rege Clito procreatus Aelftheyth Regina Eadgita Regis avia the present Queen hath the precedence of the Queen Dowager Then follow several Bishops and Abbats after whom the Lay-Peers viz. Odgar Athelstan Athelwin Dukes Aethelweard Aelfweard and Walston Ministri It is to be noted That most do make the Laws of King Edward the Confesson to be principally a revival of King Edgar's Laws mixing such as Canutus had adjoyned to them The Preamble to the Laws of King Ethelred runs thus The Laws of Ethelred fol. 88. Regn. coepit A. 979. desiit 1016. This is tha geraednyss the Ethelred Cyning his Witan geraeddon eallum Folc to fritherbote These are the Constitutions King
injuries which were brought upon the King beyond Sea by which not only the King but many of the Earls and Barons were disinherited therefore the King required Counsel and Aid of them of a Fifteenth Upon this the Archbishop and the whole number of Bishops Magna Charta granted Earls Barons Abbats and Priors having had deliberation answered the King That they would willingly yield to the Kings desire if he would grant them the long desired Liberties The King saith my Author being led by Covetousness or as he means being desirous of a supply yielded to what the Magnates desired so he granted that which is called Magna Charta so deservedly priz'd by all Englishmen ever since and the (f) Idem num 30. Charta de Foresta and presently Charters were got drawn and the King sealed them and they were sent into all Counties two one of the Liberties and the other of the Forests Matth. Paris saith expresly That they (g) Ita quod chartae utrorumque Requm in nullo invâ—niuntur dissimiles were the same that King John had granted and so refers the Reader to peruse them in what he had writ on his Reign It is to me very strange that since so many Original Grants of the Kings of England and other ancienter Deeds being every where to be found among the ancient Evidences of many Noble and Gentlemens Families yet no where that I can learn any of these Original Charters are to be found except one at Lambeth as Mr. Pryn hath observed That upon Record being only an Exemplification in King Edward the First 's time Anno 1232. on the Nones of March the King called a Great Council to (h) Idem fol. 314. num 20.17 H. 3. Westminster where there met Magnates Angliae tam Laici quam Praelati The King required an Aid for the payment of his Debts contracted by his Expeditions beyond Sea To which Ralph Earl of Chester on behalf of the Nobility answered That the Earls Barons and Knights that held of the King in Capite being with the King personally in that Expedition and having fruitlesly spent their Money were poor so that of (i) Vnde Regi de Jure auxilium non debebant Idem num 30. The Tenents in Capite having personally served according to the Tenure of their Service deny the King Aid right they ow'd not Aid to the King And so my Author saith the Laics having asked leave all departed and the Prelates answered That many Bishops and Abbats being absent they desired respite till some other meeting which was appointed fifteen days after Easter By this we may observe who they were that had the power of giving consent or granting aid for if there had been any other Members of the Lay Order besides Earls Barons and Knights that held in Capite the Earls of Chester's Argument had been of no validity In the Statute of Merton (k) Pulâ—on Stat. p. 1. In one part it is said Our Lord the King granted by the Consent of his Magnates 20 H. 3. it is thus expressed Before William Archbishop of Canterbury and other his Bishops and Suffragans and before the greater part of the Earls and Barons of England there being assembled for the Coronation of the said King and Helioner the Queen about which they were called thus it was provided and granted as well of the foresaid Archbishop Bishops Earls and Barons as of the King himself and others I shall only cull out some few of the Great Councils in this Kings Reign wherein most fully are expressed the true Members of them or such wherein something remarkable was transacted Anno 1237. 21 H. 3. The King keeping his Christmas at Winchester sent his (l) Matt. Paris fol. 367. num 30. Misu c. scripta Râ—galia pracipiens omnibus ad Regnum Angliae spectantibus c. ut omnes sine omissiâ—ne conveairent Regni negotia tractaturt totum Regnum contingentia Royal Writs through all England commanding all that appertained to the Kingdom of England that is all who were to be Members of the great Council which my Author explains particularly thus viz. Archbishops Bishops Abbats Priors installed Earls and Barons that without failure they should meet at London on the Octaves of the Epiphany to treat of the Affairs of the Kingdom concerning the whole Kingdom then he adds That on the day of St. Hilary there met at London an (m) Insinita Nobilium multitudo viz. Regni totalis universitas infinite Multitude of the Nobles viz. The whole University of the Kingdom which were the Persons of those Orders before particularized Anno 1246. 30 H. 3. By the Kings (n) Edicto Regio convocata convenit ad Parliamentum generali â—â—mum â—otius Regni Anglicani totalis Nobilitas Idem p. 609. num 10. Edict was called to the most general Parliament saith Matthew Paris all the Nobility of the whole Kingdom of England viz. of the Prelates as well Abbats and Priors as Bishops also Earls and Barons and a few Pages after concerning the same Parliament he saith All the Magnates of the Kingdom met and the King himself first spake to the Bishops apart then to the Earls and Barons and last to the Abbats and Priors In this The word Parliament now used that which frequently in Matthew Paris is called Colloquium now he gives the Title of Parliament to from the French word parler to confer or speak together and we find what is meant also by totalis Nobilitas Anno 1253. 37 H. 3. By the (o) Tota edicto Regio convocata Angliae Nobilitas convenit de arduis Regni Negotiis simul cum Râ—ge tractatura Idem fol. 745. num 40. Kings Edict the Nobility of England being summoned met at London to treat together with the King of the arduous Affairs of the Kingdom and there were present with most of the Earls and Barons the Archbishop Boniface and almost all the Bishops of England In this great Council were the Tenents in Capite according to King John's Charter The King in this Parliament or Colloquium requires Money for an Expedition into the Holy Land but for fifteen days there were great Contests about it till the King de novo confirmed King John's Charters and a solemn Excommunication was agreed upon to be pronounced against the Infringers of it and my Author saith Rex Magnates Communitas Populi protestantur in the Presence of the Venerable Fathers c. That they never consented or do consent that any thing be added or altered in the Charters but plainly contradict it so 3 May (p) Pat. 37 H. 3. m. 13. Anno 1253. in Westminster-Hall the Exemplification passed the Seal of the King and other great Men. But it is principally to be considered what is expressed in the Patent * Praefatus Dominus Rex in prolatione praefatae sententiae omnes libertates consuetudines Regni sui Angliae usitatas dignitates Jura Coronae
called 50 Regni By the Statute of Marleburgh 52 H. 3. it is evident All the Barons not summoned but the more discreet and so of the lesser Barons That even all the great Barons were not summoned but only the more Discreet and such as the King thought fit to call and the like is observed of the lesser Barons or Tenents in Capite For if it had been by General Summons that Restriction of the more Discreet had been useless so that it appears that what (z) Britannia fol. 122. Quibus ipâ—â— Rex dignaâ—us est brevia summonitionis dirigere venirent c. non alii Mr. Camden's ancient Author observes is true That after the horrid Confusions and Troubles of the Barons Wars those Earls and Barons whom the King thought worthy to summon by his Writ to meet came to his Parliaments and no other The Preamble to this Statute of (a) Stat. Edit 1576. p. 15. Marlebridge runs thus in Tottel Providente ipso Domino Rege ad Regni sui Angliae meliorationem exhibitionem Justitiae prout Regalis Officii poscit Vtilitas pleniorem convocatis discretioribus ejusdem Regni tam majoribus quam minoribus provisum est statutum ac concordatum ordinatum According to Pulton the (b) Fol. 14. Preamble is thus That whereas the Realm of England of late had been disquieted with manifold Troubles and Dissentions for Reformation whereof Statutes and Laws be right necessary The Use and Benefit of Laws whereby the Peace and Tranquillity of the People must be observed wherein the King intending to devise convenient Remedy hath made these Acts Ordinances and Statutes underwritten which he willeth to be observed for ever firmly and inviolably of all his Subjects as well high as low Thus we see in the whole Reign of H. 3. excepting in that Parliament of Montfort's Faction the Bishops and dignified Clergy Earls Barons and Tenents in Capite were only summoned as Members of the great Councils and there were no Representatives of the Commons and the Kings Authority in summoning dissolving and making Laws is most manifest Of Parliaments in King Edward the First 's Reign I Shall now glean out of Tottel and Pulton's Editions of the Statutes the most material Preambles which give light to the constituent Parts of Parliaments to the Legislative Power in the King with the Concurrence of the two Houses and how that in the Series of the Kings Reign hath been expressed and such other matters relating to the Parliament as may shew the gradual Progress of their Constitution to the usage of this present Age leaving the Reader to make his own remarques from the matters of Fact and the expressions used by my Authors and explaining some The Preface to the Statute of (a) Ceux sont les establishments le Roy Ed. fitz Roy Hen. fait a Westminst c. par son Councel par Passentments des Archevesques Evesques Abbes Priores Countes Barons tout le Commonalty de la terre illonques summons Tottel Stat. fol. 24. Pulton p. 19. Westminster begins thus These are the Establishments of King Edward Son to King Henry made at Westminster at his first General Parliament after his Coronation c. by his Council and by the Assent of the Archbishops Bishops Abbats Priors Earls Barons and the whole Commonalty of the Land thither summoned This Parliament was prorogued before it met and the Writ of Prorogation mentions only Quia generale Parliamentum nostrum quod cum Praelatis Magnatibus Regni nostri proposuimus habere c. Therefore having prorogued it mandamus c. Intersitis ad tractandum ordinandum una cum Praelatis Magnatibus Regni nostri (b) Brady against Petyâ— fol. 147. c. So that all the Members are included in the two general Terms of Praelati Magnates which great Men very frequently comprehended as well the Barones Majores as Minores the Earls Barons and greater Tenents in Capite and the less which then were called the Community of the Kingdom The rest of the Preamble of the Statutes made at (c) Pulton's Stat. An. 1275.3 E. 1. f. 19. Westminster runs thus Because our Lord the King hath great Zeal and desire to redress the State of the Realm c. the King hath ordained and established these Acts under written The Preface to the Statute de Bigamis 4 Oct. 4 Ed. 1. is thus (d) In prasentia venerabilium purum quâ—ruâ—dam Episcoporum Angliae aliorum de Concilio Râ—gis â—â—citatae sâ—â—erunt constitutiones â—ub â—riptae postmodâ—â—m coram Domino Rege Concilio sâ—o auditae publicatae Quia omnes de consiliâ—â—am â—usâ—â—â—â—arii quam alii concordaverunt c. Tottel p. 39. b. expressed In the Presence of certain Reverend Fathers Bishops of England and others of the Kings Council the constitutions under written were recited and after heard and published before the King and his Council for as much as all the King's Council as well Justices as others did agree that they should be put in writing for a perpetual memory and that they should be stedfastly observed In the First Chapter it is said Concordatum est per Justiciarios alios sapientes de Concilio Regni Domini Regis It was agreed by the Justices and other wise or sage Men of the Council of the Kingdom of the Lord the King Perhaps saith the judicious Doctor Brady the best understanding of the preamble and first Chapter may be that the Laws and Constitutions were prepared by the King and his (e) Answer to Pâ—tyt fol. 148. Council with the Assistance of the Justices and Lawyers that were of it or called to assist in it and declared afterwards in Parliament (f) Praeâ—iâ—â—ae autem constitutiones eâ—iâ—â— suerunt c. exâ—une lâ—â—um habeanâ— Tottel fol. 40. for it is said in the close of the Statute The aforesaid Constitutions were published at Westminster in the Parliament after the Feast of St. Michael the 4th of the Kings Reign and thence forward to take place The Preamble to the Statute of Gloucester Anno 1278. 6 E. 1. is thus (g) Pour amendment de son Roialm pur plus pleinir exhibition de droit si comâ—â—â—â— prâ—sit dâ— Office demanâ— appâ—lles le plues discretes de son Roialme auâ—â— bien des Granders comâ— des Meindres establie est concordantment ordine Tottel fol. 50. The King for the amendment of the Realm and for the more full Exhibition of Justice according as the benefit of his Office requires having called the most discreet of his Realm as well the greater as the smaller It is established and unanimously ordained as Pulton adds after by the King and his Justices certain Expositions were made The Statute of Mortmain is thus prefaced Nos pro (h) Tottel p. 48. Vtilitate Regni volentes providere Remedium de Concilio Praelatorum Comitum Baronum aliorum fidelium
Commons in his said Parliament assembled By Authority of the said Parliament by Authority of the same Parliament Our Sovereign Lord the King hath ordained and established divers Statutes Declarations and Ordinances The Preface to the Statutes at (c) Idem Anno 1452. fol. 286. Reading 31 Regni hath these words Our Lord the King by Assent of the Lords Spiritual and Temporal and the Commons being in the said Parliament and by Authority of the same Parliament hath made ordained and established divers Acts and Statutes Here the Commons Assent is joyned with the Lords whereas in most others of his Reign it is At the special request of the Commons So it is in that at Westminster which is like the first only it saith Our Sovereign Lord c. the Thirty ninth of his Noble and Gracious Reign Of the Parliaments in King Edward the Fourth 's Reign THE Preamble to the Statutes of (a) Idem Anno 1461. fol. 291. King Edward by the Grace of God Westminster 1 Regni is Edward by the Grace of God c. to the Honour of God and Holy Church to nourish Peace Unity and Concord within his Realm which he much desireth by the Advice and Assent of the Lords Spiritual and Temporal of the same Realm and at the special Request of the Commons of his said Realm assembled by Authority of the same Parliament hath ordained The rest of the Prefaces vary very little except that in the 3 E. 4. it is By the Advice and Assent of his Lords Spiritual and Temporal and the Commons c. Of the Parliament in King Richard the Third's time THE Preamble to the Statutes at (a) Idem Anno 1483. fol. 315. Westminster 1 R. 3. runs thus Richard by the Grace of God c. to the Honour of God and of Holy Church and for the Common-wealth of his Realm of England Advice and Assent of Lords Spiritual and Temporal and Request of the Commons c. By the Advice and Assent of the Lords Spiritual and Temporal and at the Request of the Commons of the said Realm summoned to the said Parliament by the Authority of the same Parliament hath ordained and established for the Quietness of his People certain Statutes Of the Parliaments in King Henry the Seventh 's time THE Prefaces to all the Acts in his (a) Idem Anno 1485. fol. 324. Reign are much alike thus The King our Sovereign Lord Henry c. To the Honour of God c. By the Assent of the Lords Spiritual and Temporal and the Commons in the said Parliament assembled and by Authority of the said Parliament hath done to be made certain Statutes and Ordinances Of the Parliaments in King Henry the Eighth 's time MOST of the Prefaces to the 20th of his Reign are the same as in King H. the 7th mutatis mutandis The Title of the 21 H. 8. (a) Id. fol. 392. only is Statuta ad Rempublicam spectantia edita in 1 Sessione Parliamenti c. Anno Regni invictissimi Principis Henrici c. In the 5th Chapter of the Acts of the (b) Id. fol. 435. 24th of his Reign The King our Sovereign Lord. it is thus Be it enacted by the King our Sovereign Lord with the Assent of the Lords Spiritual and Temporal and the Commons of this present Parliament assembled and by Authority of the same So most of the rest are excepting that in the second Chapter of the 26. of (c) Id. fol. 465. his Reign it is said Therefore be it enacted by Authority of this present Parliament So in the first Chapter of the (d) Id. fol. 485. 28 Regni it is said For the Remedy whereof May it please the King c. it be enacted may it please the King our Sovereign Lord by the Assent c. it may be enacted The Title of the Acts 31 H. 8. (e) Id. fol. 537. H. 8. Defender of the Faith and in Earth Supreme Head c. runs thus Henry the 8th c. Defender of the Faith and in Earth supreme Head immediately under Christ of the Church of England to the Honour of Almighty God Conservation of the true Doctrine of Christian Religion and for the Concord Quiet and Wealth of this his Realm and Subjects of the same held his most high Court of Parliament c. wherein were established these Acts following and in the first Chapter it is said Be it enacted c. Be it enacted by the King our dread Sovereign Lord and by the assent of the Lords Spiritual and Temporal and by the Commons of this present Parliament assembled The Thirty second of H. 8. hath these Expressions which day the said Parliament continued by divers Prorogations was by His Graces Authority finished and dissolved amongst many other the Acts following By his Highness with the assent of the Lords Spiritual and Temporal and the Commons assembled in the said Parliament have been Established Ordained and Enacted Of the Parliaments in King Edward the Sixth 's Reign IN the first Chapter of the first (a) Id. fol. 687. Statutes made 1. Regni it is said The Kings most Excellent Majesty King 's Excellent Majesty Princely Serenity Highness minding the Governance and Order of his most loving Subjects to be in most perfect Unity and Concord in all things c. as his most Princely Serenity and Majesty hath already declared by evident Proofs Be it enacted by the Kings Highness with the assent of the Lords Spiritual and Temporal and of the Commons of this present Parliament assembled and by the Authority of the same In the second and third Year of Ed. 6. they are called (b) Id. fol. 712. Acts in the Session c. humbly prayen That it may be Ordained and Enacted by His Majesty with the assent of the Lords and Commons in this present Parliament assembled and by the Authority of the same The rest are much what like these foregoing Of the Parliaments in Queen Mary's Reign IN the Title of her first (a) Id. fol. 817. Acts she is stiled Ordained and enacted by the Queen our Sovereign Lady and Assent of Lords Spiritual and Temporal and Commons Defender of the Faith and Supreme Head of the Church c. Be it therefore ordained and enacted by the Queen our Sovereign Lady with the assent of the Lords Spiritual and Temporal and of the Commons in this present Parliament assembled and by the Authority of the same After the Marriage of (b) Id. fol. 831. Queen Mary with King Philip of Spain the title is only Acts made in the Reign of our Sovereign Lord and Lady Philip and Mary Defenders of the Faith leaving out Supreme Head c. In the fourth and (c) Id. fol. 863. fifth of Philip and Mary in the Body of the Acts it is thus Be it Enacted Ordained and Established by the King and Queens Majesty the Lords Spiritual and Temporal and the Commons
Curiae suae Baronum Parium suorum So Anno 1240. 24 H. 3. (i) Graviter accusatus coram Rege Curia tota Lond. Mat. Westm 153. Matthew Paris saith That Hubert de Burgo Earl of Kent was grievously accused before the King and his whole Court and it was adjudged he should resign to the King four of his Castles I cannot omit one memorable passage that (k) Mat. Westm Anno 1260. p. 295 296. Anno 1260. 44 H. 3. there falling out a difference betwixt King Hen. 3. Prince Edward his Son Simon Montfort and other Nobles the King called his Baronage to St. Pauls and there it being urged that Prince Edward had done some injuries to the King he offered to prove himself innocent before the King and his Uncle who was King of the Romans saying Who are Peers of Prince Edward That none of (l) Omnes alios Barones Comites sibi de â—ure non esse Pares nec sâ—â—s in eum excercerâ— disâ—ussiones the rest of the Barons and Earls were by right his Peers nor ought to exercise upon him their Discussions of the matter By which it appears that he judged himself to be something more than a Peer of the Realm being the Heir apparent of the Crown I might fill a large Volum with the Histories and Records to prove this but since Levellers and the House of Commons that voted the House of Lords dangerous and useless have received such deadly wounds by Mr. Prynne in his Plea for the Lords who was once one of their own Champions I think it needless to whet those Weapons again since they always will be in readiness for any one to make use of if need require and shall only obviate one objection that may be urged That whatever the usage was before the Representatives of the Commons An Objection That after the House of Commons were admitted the Jurisdiction of the Lords House was lessened Answered yet the Commons after were often admitted to a share of Judicature in some cases But I shall give a few Instances how after this change of the Constitution of Parliament still this power of Judicature remained in the King and House of Lords Roger de (m) 4 E. 3. num 11.28 E. 3. num 9 10. Mortimer being accused of High Treason 4 E. 3. for the Murther of King Edward 2. after his resignation and unlawful deposition Knighton (n) De Event Angliae lib. 3. c. 16. col 1556 1557. giving an account of the proceedings agreeable to the Parliament Roll saith Rex praecepit Comitibus Baronibus caeteris Magnatibus Regni justum judicium ferre super praedicto Rogero de Mortimer So at the Parliament held at Salisbury 7 R. 2. W. de Zouch is said to be called to the Parliament to stand to the Judgment (o) Ad standum judicio Regis Domincrum Walâ—ingham p. 334. Hist Ang. Hypodig Neust p. 141. of the King and the Lords So Michael de la Pole Earl of Suffolk and Chancellor of England 10 R. 2. (p) Rot. Parl. 10 R. 2. num 6. ad 18. was accused by the Commons in full Parliament before the King Bishops and Lords and at last it is said The Lords in full Parliament gave judgment against him In the Parliament 11 R. 2. Thomas Duke of Gloucester offered to put himself upon his Tryal as the Lords of the Parliament would award c. After which the Lords as well Spiritual as Temporal claimed their Liberties and Franchises namely That all weighty matters in the same Parliament which should be after moved touching the Peers of the Land should be judged and determined by them by the course of Parliament and not by the Civil Law nor yet by the Common Law of the Land used in other Courts of the Realm Yet this seems a very high Demand for they have not Juris dandi but dati Jurisdictionem as they are a Court of Ministerial Jurisdiction being the Court of the King's Barons in Parliament And though when upon Writ of Error (q) Egerton sect 4.22 23. any Judgment in the King's Bench is examined in the House of Lords and there affirmed or reversed the Judgment is said to be affirmed or reversed in Parliament yet we cannot conclude they have the Power of the High Court of Parliament that their Decrees if against the Law should be as binding as Acts of Parliament How the Lords judge ministerially And though the same House in the same Session may not have Power to review again their own Judgment nor to restore again any Judgment they have reversed because they judge ministerially and not sovereignly and so bind their own Hands as well as their Inferiors whereas an Absolute Supreme Court is never at the last Period of Jurisdiction yet we see Attainders in one Parliament reversed in another and so may their Judgments be But this obiter I shall but add one proof more being full and express to the purpose to prove the House of Lords sole Jurisdiction with the King who must always be understood to give Judgment by them The Record is 1 H. 4. (r) Rot. Par. 1 H. 4. num 79. Exact Abridgment p. 392. where it is said That 3 Nov. the Commons in this Parliament shewed to the King Come les joggements du Parlement apperteignent soulement au Roy Seignieurs nient aus Communes c. That the Judgments of Parliament appertained only to the King and to the Lords and not unto the Commons Thereupon they prayed the King out of his special Grace to shew unto them the said Judgments and the cause of them that so no Record might be made in Parliament against the said Commons which are or shall be parties to any Judgment given or hereafter to be given in Parliament without their Privity Whereunto the Archbishop of Canterbury gave them this Answer by the Kings Commandment That the Commons themselves are Petitioners and Demanders and that the King (s) Et que le Roy les Seigniours de tout temps ont eues averont de droit les Juggement in Parliament en manere come mesmes les Communes soâ—t monstres and Lords from all times have had and shall have of right the Judgments in Parliaments in manner as the Commons have shewed How far the King and House of Lords have been Judges of the Priviledges of the House of Commons I shall declare in that part of this Chapter wherein I treat of that House SECT 5. Of the Assistants to the House of Lords HAving thus far treated of the Constituent Parts of the House of Lords I come now to the Assistants to this most Honourable House which were mostly the (t) Prynne's Brief Register part 1. sect 3. p. 240. The Judges and other Assistants of the House of Lords King 's Great Officers as well Clergy-men as Secular Persons who were no Lords or Barons of the Realm as namely his Treasurer
Proclamation and shall return the names of the Knights Citizens and Burgesses Return of Indentures in certain Indentures betwixt the Sheriff and those that were present at the Election whether the persons elected were present or not c. The Returns to the Writs 1 H. 5. Who were Chusers of Burgesses shew the Election to be by common assent and consent of those present as that for Lestwythiel where 32 Electors are named and that for Surry hath only four but adds omnium aliorum fidelium ibidem existentium The Indenture for Sussex is in French and saith Les Gentilles homes Communes the Gentlemen and Commons had chosen Richard Sayvile c. The Sheriff of Bristol saith Coadunatis discretioribus magis sufficientibus Burgensibus ex assensu Johannis Clive Majoris Villae praedictae aliorum plurimorum existentium eligimus c. The elected were two Burgesses of Bristol Thomas Norton and John Leycester both for Knights for the County of Bristol and Burgesses for the Villa of Bristol and in another these are called Burgenses and Mercatores The next alteration that I find is after the Statute of the (b) Cl. 23 H. 6. m. 21. dorso The Knights to be resident in the County and the Electors to have at least 40 s. a year Lands 8 H. 6. c. 7. which agrees with that of 23 H. 6. that every Knight to be chosen within the Kingdom of England to come to the Parliament shall be chosen by such as live in the County whereof every one have a free Tenement to the value of Forty Shillings per annum beyond all Reprizes and that those who are elected be abiding and resident in the said County and the Sheriff have power upon Oath to examine the Electors what yearly Estate they have and that the Sheriff incur the penalty of 100 Marks for his false return and the Knights so returned lose their Wages There are several Precepts that command that at such Elections (c) Proclamari inhiberi facias ne aliqua persona tunc ibidem armata seu modo guerrino arraiata ad electionem illam accedat Rot. Parl. 8 H. 6. m. 13. num 18. None to come in an Hostile manner to elect no person come there Armed or arrayed in Warlike manner or do nor attempt any thing that may be in disturbance of the Kings Peace or the Election as particularly is expressed in the Writs 2 E. 3. m. 31. dorso and several others to be perused in the first part of Prynne's Brief Register a p. 27. ad 28 177 214. Cl. 5 E. 2. m. 22. dorso 18 H. 6. and several other places which were prohibited that Elections thereby might be made free That it may appear that the Elections in ancient times were not made by such as we now call Freeholders of forty Shillings a Year which now is established by Statute Law I think it not amiss to insert what I find of a particular usage in Yorkshire (d) Prynne's Brevia Parliamentaria Rediviva p. 152 153 154. Atturneys of Noblemen and Ladies in Yorkshire Electors whereâ—â— it appears by the first Indentures of the Elections and Returns of Knights for the County of York that the Atturnies of the Archbishop of York and of sundry Earls Lords Nobles and some Ladies who were annual Suitors to the County Court of Yorkshire were sole Electors of the Knights as appears by the Return 13 H. 4. upon the Writ of 12 H. 4. betwixt Edm. Sandford Sheriff on the one part and Will. Holgate Attorney of Ralph Earl of Westmorland Willâ— de Kyllington Atturney of Lucy Countess of Kent Will. Hesham Atturney of Pet. Lord de Mâ—lolacu William de Burton Atturney of William Lord de Roos Rob. Evedal Atturney of Ralph Baron of Graystock William do Heston Atturney of Alex. de Metham Knight Henry de Preston Atturney of Henry de Percy Knight chuse John de Ever Knight and Robert de Plompton Knight Also 2 H. 5. The Indenture is betwixt William de Harrington Knight Sheriff of Yorkshire and Robert Maulevereâ— Atturney of Henry Archbishop of York William Fencotes Atturney of Ralph Earl of Westmorland William Archer Atturney of John Earl Marshal and so the Atturnies of Hen. le Scrop Knight Lord of Masham of Peter de Mulolacu Alexander de Metham Robert Roos of Margaret which was Wife of Henry Vavasor Knight and of Henry Percy The like are found in the Eighth and Ninth of H. 5. and the 1 2 3 5 7 H 6. in all which the Atturnies only of Nobles Barons Lords Ladies and Knights who were Suitors made the Elections of the Knights of Yorkshire in the County Court and sealed the Indenture I have a French Letter of Atturney from the Lady Ross to that purpose concerning which if God give me Life I shall give an account in my Antiquities of Yorkshire This Method ceased before 25 H. 6. at which time the Return made by Robert Vghtred Sheriff of Yorkshire hath the Names of Forty two Gentlemen most of which are of very ancient Families and such as had great Estates then and so continue to have though I doubt not but as it is the Custom now the much lesser part of those present were only inserted as Parties to the Indentures However by the Community we may understand who elected were not like the Freeholders now The next thing we are to consider in the Writs of Summons to Parliament What the Knights Citizens and Burgesses were summoned for is what the Knights Citizens and Burgesses so elected were by the Writ authorized to do The first Writ (e) Ad consulendum consentiendum pro se communitate illa hiis quae Comites Barones Proceres praedicti concorditer ordinaverint in praemissis Cl. 22. E. 1. m. 6. dorso that we find for Election of Knights of Shires expresseth their convening to be To consult and consent for themselves and the Community to those things which the Earls Barons and foresaid Nobles unanimously should ordain in the premisses and the Writ to the Sheriff of Northumberland is ad aâ—diendum faciendum quod tunc ibidem plenius injungemus to hear and do what we shall then and there fullier enjoin In the Writ 25 (f) Cl. 25 e. 1. m. 6. dorso E. 1. the King intending to confirm the great Charter and Charter of the Forrest that he might levy the eighth part of all the Goods of his Lieges for his most urgent necessity against the French convenes the Parliament before Prince Edward his Son and the Knights are to meet to receive the said Charters facturi ulterius quod per dictum Filium nostrum ibidem fuerit ordinatum to do further what should be ordained by the Prince The Writ 25 E. 1. (g) Bundel num 1. Ad faciâ—ndum quod tunc de Communi Conciliâ— ordinabitur in praemissis expresseth that the Knights Citizens and Burgesses are to do what then shall be
Malton in Yorkshire had no Summons that are yet found from 26 E. 1. to 12 E. 4. Now whether this were by the King 's special Directions the Desire of the Places as not being willing to be at the Charge of paying their Burgesses Wages which were in that Age exacted or the Carelesness of the Sheriffs is a Question not easily to be determined though it is certain it might be by any of these Causes That Poverty was a principal Cause appears in the numerous Returns of the Sheriffs of Lancashire (y) Id. p. 236. when Lancaster and Preston before 33 E. 3. used to return Burgesses but from thence till after the Reign of King Edward the Fourth we find the Return to be Non est aliqua Civitas neque Burgus in Balliva mea And the Reason is given in the Return 38 E. 3. Propter eorum debilitatem seu paupertatem inopiam paupertatem or paupertatem debilitatem throughout the whole For it was anciently really reputed a great Burthen for poor and small Burroughs to send Burgesses to Parliament they being bound to defray their Charges (z) Pat. 42 E. 3. par 1. m. 8. So the Bailiffs and Commonalty of Toriton did repute it and petitioned the King in Parliament to free them from this Burthen as likewise did the Abbat of Leicester Anno 14 E. 3. the Prior of St. James without Northampton Anno 12 E. 2. by reason (a) Selden's Titles of Honour p. 730. ad 734. Coke 4. Instit p. 44 45. of their Poverty and extraordinary Expences in repairing to Parliaments to be exempted from all future Parliaments they not holding by Barony and obtained their Request So the Abbat of St. Augustine in Bristol Pat. 15 E. 3. p. 1. m. 13. Mr. Prynne (b) Brev. Parl. rediviva p. 240. owns That the King by his Letters Patents may exempt a Burrough unduely charged by the Practice of Sheriffs or others to send Men to Parliament against Right and common Usage but not (c) 15 E. 3. Stat. 2. c. 6. such as by Duty and Custom ought to send and find Burgesses Under this Head we may consider the Temporary (d) 5 R. 2. c. 4.23 H. 6. c. 15. See more at large for this Prynne's Animadversions on Sir E. Coke's Instit p. 32. Exemption of R. 2. 6 Regni to the Burgesses of Colchester for five years in consideration of the new building and fortifying their Walls yet this did not exempt them for it was against the Statute made 5 Ric. 2. (e) 5 R. 2. Parl. 2. c. 5. wherein it is expresly provided That all Persons and Commonalties which shall from henceforth have Summons to the Parliament shall come in the manner as they be bound to do and have been accustomed within this Realm of England of old time And the Sheriffs are punishable who leave out of the said Returns any Cities or Burroughs which be bound Sheriffs punishable that omâ—t summoning and of old times were wont to come to the Parliament And in (f) C. 15. 23 H. 6. it is said That divers Sheriffs of the Counties have sometimes returned none of the Knights Citizens and Burgesses lawfully chosen but such which were never duly chosen and other Citizens and Burgesses than those which by the Mayors and Bayliffs were to the said Sheriffs returned and moreover made no Precepts to the Mayors or Bayliffs for the Electing of Citizens and Burgesses to come to Parliament Which makes Mr. Prynne (g) Brev. Parl. rediv. p. 241. Sheriffs formerly took liberty what Places to send Writs to infallibly resolve that Sheriffs did before these Acts arbitrarily issue out their Precepts to what Cities and Burroughs they pleased which they might the more freely do because the Precept to them was indefinite de qualibet Civitate quolibet Burgo used in all Writs since the 23 (h) Membr 4. dorso E. 1. without designing the particular Cities or Burroughs by name By which means Sheriffs might use a kind of Arbitrary Power according as their Judgment directed them or their affections of favour partiality malice or the solicitations of any private Burrough to them or of Competitors for Citizens or Burgesses places within their County swayed them which opinion of Mr. Prynn's as also that no new Burroughs by the Kings mere Grant or the House of Commons Order can be legally created or old long discontinued Burroughs be enabled by Vote of the House of Commons to chuse and return Burgesses to our English Parliaments I shall leave to the discussionof those it may concern There was one Custom anciently used which was taken away by the Statute of the 36 H. 6. Knights Citizens and Burgesses elected at the County-Court the same day that in many Counties the Knights Citizens and Burgesses were elected on the same day in their County Courts by the Suitors or others resorting to it or by four or five Citizens and Burgesses only whereof the Mayor Bayliffs or chief Officer was usually one sent from every City and Burrough to the County Court there to elect their Citizens and Burgesses so soon as the Knights were chosen returning them often in one (i) Brev. Parl. rediv. p. 176. Indenture or the Knights alone and the Citizens and Burgesses in another under the Seals of the Citizens and Burgesses electing them as appears by the Indenture for Cumberland 2 H 5. and that of Kent 12 H. 4. of Wilts 1 H. 5. and Bedford 2 H. 5. Before I dismiss this head I shall note out of the great (k) Ibid. p. 223. Collections of Mr. Prynne How many Cities and Burroughs anciently that the total number of the Cities Burroughs and Ports either summoned by the Sheriffs Precepts or Writs to Elect and Return or actually electing and returning Citizens Burgesses or Barons of the Cinque Ports from King Edward the First 's Reign to the end of Edward the Fourth were but a Hundred and Seventy and no more whereof Seven never sent after E. 1st's time and Twenty of them but once during these Kings Reigns and Thirteen of our Abbats and Twenty Seven of our Priors were summoned to our Parliaments but once and several Burroughs but twice thrice four or five or six times all the whole time else being omitted and as some were thus neglected New Burroughs erected in several Kings Reigns so new ones supplied the number In Edward the Second's time Nineteen new Burroughs being added and as many in Edward the Third's time During the Reignâ— of Richard the Second Henry the Fourth and Fifth no new Burroughs created at all and during the Forty Nine Years Reign of Henry the Sixth but Five new Burroughs and in Edward the Fourth's time but one He saith that Fourteen new Burroughs have been made in Cornwal since K. Ed. 4. (l) Idem 230. By which is discovered the Error of the Compiler of the absurd gross late Imposture Intituled Modus tenendi Parliamentum so magnified
Magnatibus Proceribus dicti Regni nostri colloquium habere tractatum Tibi praecipimus firmiter injungentes quod facta Proclamatione in proximo Comitatu tuo post receptionem hujus Brevis nostri tenendo die loco praedicto duos Milites gladiis cinctos magis idoneos discretos Comitatus praedicti de qualibet Civitate Comitatus illius duos Cives de quolibet Burgo duos Burgenses de discretioribus magis sufficientibus libere indifferenter per illos qui Proclamationi hujusmodi interfuerint juxta formam Statutorum inde editorum provisorum eligi nomina eorundem Militum Civium Burgensium sic electorum in quibusdam Indenturis inter te illos qui hujusmodi Electioni interfuerint inde conficiendis sive hujusmodi electi praesentes fuerint vel absentes inseri eosque ad dictum diem locum venire facias ita quod iidem Milites plenam sufficientem potestatem pro se Communitate Comitatus praedicti Cives Burgenses pro se Communitate Civitatum Burgorum praedictorum divisim ab ipsis habeant ad faciendum consentiendum his quae tunc ibidem de communi Concilio dicti Regni nostri favente Deo contigerint ordinari super negotiis ante dictis Ita quod pro defectu potestatis hujusmodi seu propter improvidam Electionem Militum Civium aut Burgensium praedictorum dicta negotia infecta non remaneant quovis modo Nolumus autem quod tu nec aliquis alius Vicecomes dicti Regni nostri aliqualiter sit electus Et Electionem illam in pleno Comitatu factam distincte aperte sub Sigillo tuo Sigillis eorum qui Electioni illae interfuerint nobis in Cancellariam nostram ad dictum dâ—em locum certifices indilate remittens nobis alteram partem Indenturarum praedictarum praesentibus consutam una cum hoc Brevi Teste meipso apud Westmonast THE King to the Sheriff Greeting Whereas by the Advice and Consent of our Council Advice of Privy Council for certain difficult and urgent business concerning us and 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 c. the day c. next ensuing and there to have conference Conference with Prelates c. and to treat with the Prelates Great Men and Peers of our said Kingdom We command and straitly enjoyn you Proclamation at County-Court that making Proclamation at the next County Court after receipt of this our Writ to be holden the day and place aforesaid Two Knights girt with Swords c. 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 Two Citizens and of every Burrough Two Burgesses two Burgesses of the discreeter and most sufficient Indifferently chosen by those present at the Proclamation according to Statutes to be freely and indifferently chosen by them who shall be present at such Proclamation according to the tenure of the Statutes in that case made and provided Their Names inserted in Indentures betwixt the Sheriff and the Electors 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 To cause them to come at the Day and Place The Knights from the County the Citizens and Burgesses from their Cities Burroughs to have full power to do and consent 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 Burroughs may have severally for them full and sufficient power to perform and to consent to those things which by the favour of God shall there happen to be ordained by the Common Council of our said Kingdom concerning the businesses aforesaid Lest for want of that Power or improvident Election the Business be undonâ— so that the business may not by any means remain undone for want of such power No Sheriff to be chosen or by reason of the improvident Election of the aforesaid Knights Citizens and Burgesses Election to be in full County But we will not in any case you or any other Sheriff of our said Kingdom shall be elected The Indentures to be sealed by the Sheriff and Electors And at the day and the place aforesaid the said Election made in the full County Court A Counterpart tacked to the VVrit returned into the Chancery you shall certify 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 Westminster SECT 7. Concerning the Speaker and the Privileges of the House of Commons IT is not my design to treat of all things relating to the Constitution My Design not to controvert the Privileges of the House of Commons but to shâ—w the gradual Alterations Laws and Customs of the House of Commons there are several useful Books extant which are fit for the Honourable Members of the House to consult What I most aim at is to shew what the Ancient Usage hath been and how from time to time things have been refined to the Mode and State they are now in and I hope those great Spirits that honour their Countries with their Service will pardon one that designs nothing more than to give them a Profile of the whole Model both in the days of our remotest Ancestors and what it was in more Modern times under just and undoubted Soveraigns as also how much it was transformed when the pretended House of Commons being confederated with a successful Army murthered their Soveraign voted away the House of Lords and assumed the Title of the Supream Authority of the Nation of which last I shall treat in the next Chapter The Members being according to the Kings Command come to the place appointed sometimes the Soveraign with the Lords in their Robes have rid in State to the Parliament which is generally yet observed in Scotland and Ireland The Solemnity at the Opening of the Parliament However at the opening of the Parliament the King is seated on his Throne under the Canopy with his Royal Crown on his Head the Chancellor standing something backward on his Right-hand and the great Officers as Lord Treasurer Lord President of the Kings Council Lord Privy Seal Great Chamberlain the Lord Constable Marshal Lord Admiral Lord Steward and Kings Chamberlain attend on either side the State or in their Seats
puts an end to the Sessions so that what ever Bills are ready and pass not the Royal Assent must be again read three times in either House for the more security it is usual to insert a Proviso That the Session is not thereby concluded The Royal Assent is given two ways First Royal Assent by Patent by Commission since the Statute of the 33 H. 8. c. 21. wherein it is expressed That the Kings Royal Assent by his Letters Patents under the Great Seal Signed by his hand and declared and notified in his absence to the Lords Spiritual and Temporal and to the Commons Assembled in the higher House is and ever was of as good strengh and force as if the King had been there personally present and assented openly and publickly to the same The manner of the King 's giving his Publick Assent is in this manner The King cometh in Person in his Parliament-Robes Royal Assent when the King present and sitteth in his State and the Upper House sit in their Robes The Speaker with all the Commons House cometh to the Bar of the Lords House and in Sir Thomas Smith's time Sir Th. Smith's Commonwealth p. 45. Speeches used to be made there the Chancellor for the Lords and the Speaker for the Commons in set Speeches returned the Prince Thanks for that he hath so great Care of the good Government of his People and for calling them together to advise of such things as should be for the Reformation Establishing and Ornament of the Commonweal After which the Chancellor in the Prince's Name giveth Thanks to the Lords and Commons for their Pains and Travel taken which he saith the Prince will remember and recompense when Time and Occasion shall serve and that the Prince is ready to declare his Pleasure concerning their Proceedings whereby the same may have perfect Life and Accomplishment by his Princely Authority I think now mostly Hackwell of Passing of Bills p. 181 182. the Speaker of the House of Commons makes a Speech acquainting the King with the purport of the Bills Then the Clerk of the Crown readeth the Title of the Bills in such Order as they are in Consequence After the Title of every Bill is read singly The Clerk of the Crown pronounceth the Royal Assent or Dissent the Clerk of the Parliament pronounceth the Royal Assent according to certain Instructions given from his Majesty in that behalf If it be a Publick Bill to which the King assenteth the Answer is Le Roy le veult The King willeth If a Private Bill allowed by the King the Answer is Soit fait comme il est desire Let it be done as it is desired And upon a Petitionary Bill the like is used If it be a Publick Bill which the King forbeareth to allow he saith Le Roy se avisera The King will advise To a Subsidy Bill the Clerk pronounceth Le Roy remercie ses loyaux Subjects accepte leur Benevolence aussi le veult The King thanks his Loyal Subjects accepts their Benevolence and also willeth To a general Pardon is pronounced Les Prelates Seigneurs Communs en cest Parlement assembles au nom de touts vous autres Subjects remercient tres humblement vostre Majesty prient Dieu vous donner en sante bone vie longe The Prelates Lords and Commons in this Parliament assembled in the name of all your other Subjects thrice humbly give thanks to your Majesty and pray God to give you in health a good Life and long These P. 46. saith Sir Thomas Smith be taken now as perfect Laws and Ordinances of the Realm of England and none other and as shortly as may be are printed except it be some Private Acts made for the Benefit or Prejudice of some Private Man these be only exemplified under the Seal of the Parliament CHAP. XXIX Of Factious Combinations in Parliaments I Hope in the foregoing Chapters I have so explained the Constitution of Parliaments and the Legislative Power that unbiassed and unprejudiced Persons will no more be misled by the Sophisms and plausible pretences which to aggrandize the Power of the two Houses at first and after of the Commons House only the Penmen of the long Parliament made use of yet because many of late were furbishing the rusty Armour of their Demagogues and trimming their Helmets with fresh Plumes I conceive it necessary to take notice of some of their chiefest Arguments and examine those which had greatest Influence upon the People The great and venerable name of Parliament and its Authority was constantly used as Shield and Buckler to ward off all the Force of the Loyal Assaults and Mr. Prynne writ a large Volume which he stiled The Soveraign Power of Parliaments and when the very Lees and Dregs of the Commons House was put in Ferment that very Kilderkin would admit no lower Stile than the supreme Authority of the Nation to be pearched on its Bunghole Therefore to disabuse the less considerate The various Acceptation of the word Parliament and to detect the Frauds of those which under that great Name applyed whatever they met with in the Laws or History to the House of Commons I think it necessary in the first place to clear the acceptation of the Word Appropriated to the Lords House Sometimes the word Parliament is used for the House of (a) Egerton sect 4. 22 23. Lords only as when upon Writ of Error any Judgment in the King's-Bench is examined in the House of Lords the Judgment is said to be affirmed or reversed by Parliament The Appellation of Parliament is likewise used for the two Houses To both the Houses in regard they are the gross Body whereof the Parliament consists there only wanting the Sovereign Head to compleat it But they are so far from being the High Court of Parliament that they cannot co-unite to be an entire Court either of Sovereign or Ministerial Justice but only in concurring in Votes in their several Houses for preparing of matters in order to an act of all the Body which when they have done their Votes are so far from having any legal Authority in the State as in Law there is no Stile or Form of their joynt Acts further than Bills nor doth the Law so much as take notice of them till they have Royal Assent without which the Votes of the two Houses dye in the Womb like an Embryo So that the proper use of the word Parliament How properly the High Court of Parliament as Authority of Law-making is annexed to the name is only when the King and the two Houses concurr in one Act and in that sence only is the Parliament the Supream Court the highest Judicatory and the most Sovereign Power Not for any Soveraignty in the two Houses and from them transferred to the King by their joining and consenting with him but because every compleat and perfect Act of it is the Act of
the personal Will and Power of the Sovereign himself standing in his highest Estate Royal. Therefore whoever reads the Authors that writ in defence of the Parliament must consider this Fallacy they frequently used that he do not apply the Authoritative Act of the King with the Consent of the two Houses to the Houses without the King From the Co-operation of the two Houses in preparing Laws (b) Freeholder's Grand Inquest p. 34. the late 〈◊〉 since King Charles the First 's time of the words The King is not one of the Three Estates Be it endâ—ed by the King the Lords Spiritual and Temporal and Commons as if they were all Fellow-Commissioners and the unwariness of some of the Penners of the King's Answers to some of the Papers of the two Houses wherein they stiled the King the third Estate the Commonwealths-Men have taken the advantage to reckon the King but as a third Legislator Therefore I think it necessary to remove this Rub e're I proceed further Although the Author of the Imposture The Modus makes the Parliament to consist of six Parts called the modus tenendi Parliamentum makes six degrees of constituent Members of the Parliament viz. The King first then Secondly the Archbishops Bishops Abbats Priors and other Clerks who held Baronies Thirdly the Proctors of the Clergy Fourthly the Earls Barons and other great Men who held to the value of a County or Barony Fifthly the Knights of Shires Sixthly the Citizens and Burgesses to which he might have added the Barons of the Cinque-Ports yet he saith the King is the Head Beginning and End of the Parliament and so hath no (c) Ita non habet Parem in suo gradu Peer in his degree Yet it plainly appears that these we now call the two Houses were by reason of their distinct Orders most frequently divided into three For in (d) As queux Prelats ou la Clargie par eux mesmes les Countes Barons par eux mesmes Chevalers Gentz de Countez Gentz de la Commune par eux mesmes entreteront Prynne Animadv p. 10. 6 E. 3. at his Parliament at York the Record saith That on the Friday before the Feast of St. Michael the Prelates or the Clergy by themselves the Earls and Barons by themselves the Knights of the Counties and the Commons by themselves treated c. Othertimes we find the Prelates Earls Barons and great Men and the Knights Citizens and Burgesses to have separate Consultations by themselves and to give their several answers to Articles and business propounded to them in Parliament as Mr. Prynne out of the Abridgment of the Records of the Tower hath given us above twenty instances At the making of the Statute of Praemunire 16 R. 2. the Commons pray The Lords Spiritual Lords Temporal and Commons make the Three Estates That the Lords as well Spiritual as Temporal severally and all the Estates of Parliament might be examined how they thought of that matter and the Lords Spiritual answered by themselves and the Lords Temporal by themselves and the King was Petitioned to make this Examination So in 40 E. 3. the King asking the Houses Whether King John could have subjected the Realm as he did the Prelates by themselves and the Dukes Earls and Barons by themselves gave their Answer Besides we find as at large I have before instanced in the last Chapter the Writs of Summons of the Bishops and Clergy were only in side dilectione and the Barons generally (e) Stat. 18. â— 6. c. 1. in fide homagio or Ligeancia and the Clergy granted their Subsidies apart and distinct from the Nobles Besides that the Bishops are to be esteemed the Third Estate is clear by Act of Parliament for it being questioned (f) 8 Eliz. c. 1. whether the making Bishops had been duly and orderly done according to Law the Statute saith That the questioning of it is much tending to the slander of all the Clergy being 〈◊〉 of the greatest States of the Realm So Sir (g) P. 36. Thomas Smith as in the last Chapter I have noted distinguisheth the two Houses into three Estates and Sir Edward (h) 4. Instr p. 1. Coke saith expresly That the High Court of Parliament consisteth of the Kings Majesty sitting in his Royal Politick Capacity and the three States of the Realm viz. the Lords Spiritual Lords Temporal and Commons the like the learned (i) Interpreter tit Parliament Cowel affirms Sir Henry Spelman (k) Solenne collequium omnium Ordinum Regni Authoritate solius Regis ad consulendum statuendumque de negotiis Regni indictum Gloss p. 449. calls it a Colloquy of all the Orders of the Kingdom convened by the sole Authority of the King to consult and appoint in the Affairs of the Kingdom This was also known to Foreigners uninteressed Persons for the Lord Argenton speaking how Subsidies were granted in England saith * Lib. 5. p. 253. Convocatis primis Ordinibus Clericis Laicis assentiente Populo And Bodin ‖ De Repul lib. 6. whenever he speaks of the Constitution of our Parliament calls it the King and the three Estates of the Realm But to put all out of doubt in King Charles the Second's Reign it is determined in the Act for the Form of Prayers for the Fifth of November For the Preservation of the King and the Three Estates Now the reason why in King Charles the First 's answer Why in some of King Charles the First 's Writings the King was called the Third Estate we meet with the expressions of making the King the third Estate was because at that time the Bishops being voted out of the House of Lords and the two Houses setting themselves in all the points of Controversie in opposition to the King the notion of a Triumvirate was more intelligible as it may be thought to the People and those who were so bitter Enemies to the King and had such a Rebellious force would have still increased the Peoples aversion if the King had asserted his Royal Prerogative otherwise Whether this were the true reason or the oversight of the Penners of his Majesties Answers I will not undertake to determine but I am induced to believe the first because I find the King and those that writ in defence of his Cause using frequently this way of Argument In every State there are three Parts saith (l) Review of Observations one the King ordered to write for him capable of just or unjust Soveraignty viz. the Prince Nobles and People Now through the Piety of our Lawgiving Princes a just and regular course of Government being obtained the stability of which being found to be more concerned in the Power of making Laws than in any other Power belonging to the Soveraign for preventing of Innovations that might subvert that setled regularity the frame and state of Government was in such a sort established as that the
and after by himself and his mock-Representatives by Councils of State and Safety and such new Names and Powers as our Laws never heard of and all this under pretence that they Acted by the Peoples Authority and suffrage and all the sad Devastations of that Age resulted from the confiding so much in the pretended Representatives of the People Which (a) England's Universal Distraction p. 4. one some Years before the sad Catastrophe plainly foretold tho' like belief was given to him as of old to Cassandra His Words are That the so much exalting the Power of the Representatives was first to destroy the King by the Parliament and next the Parliament and Kingdom by the People Thus ignorant Politicians that build upon such Quick-sands soon live to see their Insanae Structurae ruinously fall about their Ears Thirdly Whereas the Advocates for the Representatives would gladly have possessed the People that they could rely upon none so securely and safely as upon those they had themselves chosen they being less subject to private ends and affections than any particular man such a Body being not likely to counsel or consent to any thing but what is publickly advantageous It is to be considered that it is a false Postulatum Such a Body being but an Aggregate of particulars may have as many private ends as any other number of Subjects it being well known that Communities themselves are subject to dangerous Inclinations from private Incitements and I the Representatives subject to misleading Factions and Ambitions of private Men and by coalition of Parties when they fall into designs they are most dangerous and fatally violent and tho' it may at first View seem to be repugnant that an Universality should have private ends yet seeing it is not the number of Agents but the capacity in which they act and the quality of the Actors and the coherence or incoherence of what they pursue with the publick end and weal which makes the Actions of men public or private It must needs follow That if without Authority or out of the way of Public Ordinances men pursue any thing though the whole Community concur in the pursuit yet it is all of the nature of a private Action and done to a corrupt and private end Because the Author of some Observations upon some of K. Charles the 1st Messages was reputed the great Champion of the two Houses I shall content my self with culling out some of the daringest assertions Why Reason and Law were not hearkned to by the Advocates of the Long Parliament he and some other of their Triarii used and apply such of those Answers and Reasonings as the Learned and Loyal offered then against them though they could not be heard while the Torrent bore all down the stream The hideous noise of Tumults and after of Drums Trumpets Cannons and Fire-Arms hushed and silenced all the still voice of Law and Reason But now it is to be hoped when Mens Eyes are unsealed the Mask and Vizard dropped or pulled off the fatal Consequences of such pernicious Principles throughly manifested and the loud Thunder of the Two Houses Ordinance allayed mens Spirits will be better fitted to hear them refuted Besides what I have endeavoured to answer before concerning the Authority of the Representative which they would make an Assembly in which the People in underived Majesty are by these Proxies convened to affirm an Imaginary Power supposed to be theirs originally and in such a convention to be put in execution I say besides this which in several places I have refuted That filled all their Declarations Messages and Treatises when they were contriving the setting up the Commons House Topmost to prove That they were a Body that was not easily corrupted byassed tempted or prevailed upon to Act any thing but what was the best for the Peoples advantage Therefore I think fit in many particulars to shew how such Bodies may be warped to sinister ends and especially how that House not only deceived but tyrannized over the whole Nation Private (b) Answer to Observer p. 130 131. How Passions Affections Interests and Factions may sway Representatives Quarrels and the memory of former Sufferings may work upon some discontent and envy at other mens preferment may transport others the fear of the lash and desire to secure themselves have forced some to personate a part great Offices and Honours have been a Pearl in some Mens Eyes to hinder their Fight others have been like Organ Pipes to whom the wind of popular Applause hath only given a sound others who have premeditated their Parts before their design was discovered have upon some pretences or other suppose of an unlawful Election being Monopolists Abhorrers or such like got those excluded by Vote whom they conceived to be likely to oppose their designs The bewitching Power of Oratory prevails upon many In others there is a Speechless Humour of following the Drove The Ambition and Covetousness of Representatives Can we not easily conceive several of this Body may be ambitious which would prompt them to alter the old way of bestowing Offices and collating of Honours so by disservice as well as service in Parliaments some Men have obtained Honours Offices and Estates finding it a good way to get preferment by putting the King upon necessity of granting Good Woodmen say That some have used Deer-stealing as an Introduction to a Keepers place So we have seen a Non-conformist's mouth stopped I might instance in other Professions with a good Benefice whereas before he was satisfied he could gape as wide as his Neighbours Others by more only ways slip into Preferment for Covetousness and Ambition will sail with any Wind. The Covetousness of the Members of the long Parliament by woful experience was found insatiable witness their Voting for one anothers Offices Governments satisfaction for their losses out of Delinquents Estates sharing the Kings Lands and Revenue the Bishops Deans and Chapters Lands and the Estates of the Royal Party hence together with the itch of Arbitrary rule they drew the determination of Causes out of the ordinary Courts of Justice before their Houses and Committees of them and in every County had their Sub-committees to Tyrannize over the People and fleece them Their cruelty appeared in their erecting High Courts of Justice Major Generals and other Arbitrary Courts The Cruelty of the Long Parliament where many a Loyal and brave man for serving his King against such Rebels either lost his Life or his Liberty and Estate and when they were the gentlest yet they could show hatred enough by Imprisoning upon I know not what suspicion and at leasure prosecuting such as they had a pique against The partiality of Members in such Conventions are very frequent The Partiality in shielding their friends from being questioned though their Corruptions were notorious to all the World So in the fatal Parliament of 1641. A Monopolist if a Loyal man was sure to be
Earls Barons Great Men and the whole body of the Tenents in Capite expressed by those words in the former Questions Clergy and People for by them these demands were made and no doubt they would first ask for themselves for the Vulgar or Rabble could not come near to make their Demands at such a Solemnity as this was so (y) Walsingham fol. 95. num 20. great and splendid there being at it Charles and Lewis Earls of Clermont two of the King of France's Brothers the D. of Brabant the Earl of Fens and the other great Men both of France and England with the Countess of Artois Whoever desires further satisfaction may consult the same learned (z) Elossary p. 24. Author who makes it clear That the word Plebs Vulgus Populus in the Writers of that Age was used for the Laity in way of contradistinction from the Clergy I shall at present leave this and note that for any thing appears to the contrary the same Interrogations Oath c. presented to Edward the Second and Third without the additions of King Richard's continued without any alteration to Henry the Eighth's (a) Book of Oaths fol. 1. time and in that we find the King promiseth he shall keep and maintain the Liberties of the Holy Church of old time granted by their Righteous Kings of England The Oath of King Henry the Eighth I find in the Heralds Office the words thus Do ye grant the rightful Laws and Cusioms to be holden and permit ye after your Strength and Power such Laws as to the Honour of God shall be chosen to the People by you to be strengthned and desensed Vid in Coll. Arm. p. 60. and that he shall keep all the Lands Honours and Dignities righteous and free of the Church of England in all manner Holy without any manner of minishments and the rights of the Crown hurt decay or loss to his Power shall call again into the ancient estate and that he shall keep the Peace of Holy Church and of the Clergy and of the People with good accord and that he shall do in his Judgment Equity and right Justice with Discretion and Mercy and that he shall grant to hold the Laws and Customs of the Realm and to his Power keep them and affirm them which the People and Flock have chosen and the evil Laws and Customs wholly to put out and stedfast and stable Peace to the People of this Realm keep and cause to be kept to his Power In this Oath King Henry the Eighth interlined for the right explication of it instead of People and Flock these Words which the Nobles and People have chosen with my Consent The Oath of King Edward the Sixth Oath of Edward the Sixth so far as relates to my purpose was this Do you grant to make no new Laws but such as shall be to the honour and glory of God and to the good of the Commonwealth and that the same shall be made by the consent of the People as hath been accustomed Oaths of Queen Mary and Queen Elizabeth not seen by the Author The Oaths of King James the First and King Charles the First The Oath of King Charles the Second Hist Coronationis Caroli 2. in Colleg. Arm. I have not seen any Transcripts of the Oaths of Queen Mary or Queen Elizabeth those which King James and King Charles the First took run thus Will you grant to hold and keep the Laws and Rightful Customs which the Commonalty of this Kingdom have and will you defend and uphold them to the Honour of God so much as in you lyeth That Branch of the Oath which relates to my purpose taken by King Charles the Second runs thus Sir Will you grant to keep the rightful Customs which the Commonalty of your Kingdom have c. The Oath that our present King James the Second took at his Coronation The Oath of King James the Second was in the same Words as that of his Royal Brother wherein the Word Customs is to be taken in the largest extent to include Laws also Now upon the whole we must consider First Considerations upon this Discourse of the Coronation Oaths That in the Eye of the Law the King never dyes so that he is King before any Solemnity of Coronation Secondly The variety of Forms and Precedents seem to prove that one precise form is not simply necessary so the interlining of Henry the Eighth upon Record also shews And if it had been of consequence to have retained the old form we should have heard of it either then or in some succeeding Parliaments Lastly it cannot be denied that if the King be bound by a lawful Oath to pass all Bills it is not the form of denying it but the not doing of it which makes the Perjury And so when the King is tender of a flat denial and attributing so much to the judgment of his great Council that he only useth the words avisera it would be a strange Doctrine that all the Kings of England who have given this Answer have been forsworn and neither Parliament nor Convocation taken notice of it in so many Ages But when by dint of Argument the Parliament Champions were driven from these Holds they fled to their last Burrow So one of them confesses that in Acts of Grace the King is not bound to assent nor in Acts wherein he is to depart from the particular right and interest of his Crown and lastly that if he do not consent however bound by Oath yet they are not binding Laws to the Subject How the Long Parliament Writers would have the King part with his Prerogative in Cases of necessity only But then comes the handful of Gourds which spoils the Pottage Except in cases of necessity If the safety of the People be concerned If it may prove dangerous or inconvenient to them then an extraordinary course may be taken This was the plausible Plea of 1641. to get the Militia into their hands for they urged that in case of apparent and imminent danger the Peoples safety was not to be neglected They might not be exposed as a prey to their Enemies therefore must be put into a posture of defence This was grateful to the People out of that real love they bare to themselves they must favour that side which pretends to take care of their safety Give to any Person or Society a Legislative Power without the King in case of necessity (b) Answer to Observ b. 76. permit them withal to be sole Judges of necessity when it is and how long it lasts and then it is more than probable the necessity will not determine till they have their utmost desires which is the same in effect as if they had the Legislative Power Further it must be considered that necessity upon that supposition must be very evident there needs no such great stir who shall be Judge of it when it comes indeed it
calling those who were learned in the Laws for Assistants therein as Mich. 53 and 54 H. 3. rot 37. in the Case of Assise of Mort d'auncester brought by Alexander King of Scots against John de Burgo But as hereafter I shall shew much of the Power of the Kings Council is now taken away The Fourth Council of the King The King's Council at Law are the Kings Judges at Law who are his Council at Law in all Cases wherein he hath occasion to consult them as appears in the Law Books and particularly may be found in (q) 1. Instit lib. 2. cap. 10. sect 164. Sir Edward Coke of which I may have occasion to speak in the Chapter of Judges I thought to premise these things for the better understanding of the differences of the Kings several Councils and shall now proceed to discourse of the most Honourable Privy Council in general as Counsel is necessary for Princes to have and as they ought to be qualified what their Office and Imployment is and ought to be both in Relation to all Princes Secret Councils and particularly according to the constitution of England according to my poor Abilities The most Honourable Privy-Council consists of Noble and Wise Persons chosen by the Prince to assist him with their sage and faithful Advice in the weighty Affairs of Government Kings cannot by their own personal knowledge comprehend (r) Nec unilts me â—â—em tantâ—e molis esse capacem Tacit. 1. Annal. all things therefore it is needful for them to assume others in participationem curarum especially great and weighty Affairs need great Coadjutors as Paterculus (s) magna negotia magnis egere adminiculis Velleius l. 2. well notes and the * Principis labores queis orbem terrae capessit egere adminicu lis ut domestica cura vacuus in commune consular Tacitus 12. Annal. grave Historian tells us That Labours of Princes by which they manage their vast Countries need helps that being free from Domestick Cares they may consult for the Publick Whoever looks only upon the Port and Grandeur of Princes their soft Raiment and feeding delicately may think it a pleasing and desirable State but they never reflect on the anxious Cares the difficulties of managing Matters upon which great and momentous events and ordering of vast bodies of different Interests depend Therefore the (t) Rhetor. ad Alex. Philosopher well noted That to give give good Counsel is one of the Divinest things among Men. Whereas on the other Hand when Counsel is supine Government must be tottering but a Mind (u) Animus qui verum seit scit tuto aggredi Thucyd l. 1. setled in Resolves safely attempts any thing That Reason being the soundest which useth Cunctation and Deliberation and forefears as well as foresees what will happen because in acting it will produce Confidence For they must be a great Defect where Counsel is not taken before Action It being for Sword-Players not those that bear the Sword of Magistracy In arena Consilium capere As to the use of Counsellors (w) Quod fieri debet tractato cum multis quod facturus es cum paucissimis fidelissimis Lib. 3. de Re militari Vegetius tells us it becomes a Prince to treat of those things which ought to be considered with many but those which are to be executed with few or rather by himself agreeable to which is what the learned Lord (x) St. Alban's Essays p. 88. Chancellor notes That some Affairs require extream Secrecy which will hardly allow to go beyond one or two Persons besides the King neither are those Councils unprosperous for besides the Secrecy they commonly go on constantly in one Spirit of Direction without Distraction but such are only to be used by a prudent King who can grind with an Handmill A great part part of the (y) Idem p. 87. Skill of a Prince is discovered in the choice of wise Counsellors and the managing of their Counsels require the greatest Address Ability and Dexterity of Sovereigns Therefore the Antients feigned Jupiter to marry (z) Idem Wisdom of the Ancients Princes to have the Honour of Councils Metis viz. Counsel and she being with Child by him he eat her up and was delivered of Pallas out of his own Head The Moral of which is That Princes refer matters to Council and when the Council grows ripe they are not to suffer their Council to go through with the resolution and direction as if it depended on them but to take matters back again into their own Hands and so make them appear to issue from themselves with Prudence and Power as from their own Head and Advice as Pallas came forth armed fitted for present Action It is in vain for Princes to take Counsel concerning matters Choice of Persons if they take not Counsel likewise concerning Persons for the greatest Errors are committed and the most Judgment shown in Individuals There was never King bereaved of the Benefit of Counsel except when there hath been an over greatness in one Counsellor or an over-strict Combination in divers which are things soon found out and helped therefore Principis maxima est virtus nosse suos In Council the King presiding Princes not to open their Inclinations too much should not open his own Inclination too much in that which he propoundeth if he desire sincere delivery of the Counsellors Judgments lest his Authority sway too much Therefore Princes should take the Opinion of their Council both separate and together private Opinion being more free and Opinion before others more reverend It is therefore a Prince's greatest Interest to be unprejudicate and to keep an open Ear to all wholesome Counsel for as Capitolinus (a) In Gordiano Juniore saith Miser est Imperator apud quem vera reticentur That prince is in a very bad Condition from whom the true Estate of his Affairs is concealed Several wise Princes have with an even Hand distributed their regards to Counsellors that have mortally hated one another Making use of Counsellors of different Perswasions or Interests as some observed in Louvoy and Colbert and it is a certain sign of a good Workman that can work with any Tool The advantage a Prince hath is that they are Spies one upon another and will be both aemulous who can do their Masters Services best but if they grow to be the Heads of different Factions they will prove most dangerous Having thus far proceeded as to the Interest of a Prince in his Counsellors and their advice I shall speak to the Qualifications of Counsellors In (b) Leo Imp. de Belli apparatu secret affairs faithful temperate and close Persons are most fit Counsellors and who have no private Interest The Qualifications of Counsellors for Secrecy is that invisible Clasp that buckles great Affairs the hidden hinge upon which they are moved according to (c) Taciturnitas optimum ac
Gentry be bred up in Learning Young Nobility and Gentry to be so educated as they may be fitted for Magistracy Military Discipline and all other ways that might accomplish them for the service of their Prince and Country for where a Prince can be served by the Nobility and ancient Gentry it much facilitates the execution of their trusts but in some cases it may be requisite to imploy those of great Wisdom Judgment and Diligence the Endowments of noble Minds though not of so noble Extract So (q) 6. Annal. Mecaenas advised Augustus that he should chuse the praefectus praetorio out of the Horsemen lest if he were one of the Nobility he might attempt something against the Prince and so it is noted in (r) Quod pâ—r negotiis â—eque â—upra erat Tacitus That the Province was given to Sabinus not for any excellency but that he was fit and not above the imployment But this caution is unnecessary where Kingdoms are hereditary and depend not upon the approbation of Soldiery or Senate Princes not to give too great Powers to any Above all things Princes should take care that they commit not any of their Royal Prerogatives to the Magistrates or their Curators 'T is not safe for a Prince to intrust any of these in a Subjects hands for it is by many Histories apparent that when by reason of a Prince's Captivity Minority his prosecuting some War out of his Country whereby a Kingdom cannot be governed without a Viceroy or Protector with the whole Authority of a Prince the sweetness of this Power hath tempted them to usurp or do ill Offices to their Prince or People (s) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. lib. 5. c. 11. Hence the Philosopher adviseth not to make such great who in Wit and Manners are bold and daring Therefore it is not safe for Princes to keep Viceroys long in their imployments especially if there be any danger of their Ambitious aimes to get the Soveraignty into their own hands or that they will not be observant of the due Execution of the Laws or for private ends will suppress the Nobility Great Ministers not to be long continued in the same Station or oppress the People by their Interest pervert the course of Justice or introduce new Laws by surprizing the Soveraign in gaining his consent In all such cases the rule of the (t) Qui parvo tempore Magistratui praesunt non tam facile nocere possunt quam qui longo Philosopâ—er is most true They that for a short time obtain the Magistracy cannot so soon hurt as they which enjoy it long as he instanceth in Demagogues in Popular Government and the Dynastae in Oligarchies which by that means became Tyrants Julius Caesar (u) Clapmarius de Arcanis Imperil lib. 2. c. 18. and Augustus made all their Magistrates annually whereby they gratified all the eminent men of the Commonwealth by rotation but (w) Alii taedio novae curae semel placita pro aeternis servavisse quidam invidia ne plures fruerentur sunt qui existiment ut callidum ejus ingenium ita anxium judicium Tiberius did otherwise giving this reason for it That Horse-leeches having sucked much blood are at quiet and so the biting of fresh men are most sharp Some think saith Tacitus he did it only to seclude others from injoying of them and to prevent his yearly trouble in chusing which as it would oblige the Elected so would disoblige the Candidates but most ascribe it to the subtilty of his Nature quod nec (x) Tacitus 1. Annal. cap. ult eminentes virtutes sectabatur rursum vitia oderit ab optimis periculum sibi à pessimis dedecus publicum metuebat He did not make great search or take much care to find men of the most eminent Vertues and yet he hated the Vitious fearing from the best danger to himself and from the worst disgrace to the Commonweal In our constitution of Government The Sovereign's Power to change Magistrates a most excellent temper is observed where by the Princes Power is reserved to change the prime Ministers of State and Judicature at his pleasure which obligeth them to great care to act justly in their Places and prevents Sedition where any other had the Power of Electing for it is the Power of chusing in any other than the Soveraign that is the only cause of Faction not what the (y) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 2. Polit. c. 5. Philosopher notes against Socrates That the same continually being Magistrates is the cause of Sedition by reason of the Envy of the rejected Candidates and also among Spirited and Martial People that expect those imployment The Kings of England have undoubtedly the sole Power of creating and appointing Magistrates See more of this in the next Chapter and Officers of greatest Authority So (z) Smith de Repub. Angliae lib. 2. the grave Author of the Commonwealth of England affirms That in the appointing all the great Officers and Ministers of the Realm whether Spiritual or Temporal the highest are immediately in the Kings Power to nominate and the inferiour by Authority derived from him So the Kings of England appoint the High Commissioner and all other the great Ministers and Officers in Scotland the Lord Lieutenant Lord Justices and other great Ministers and Officers in Ireland and by Letters Patents appoint a Prorex locum tenens or Guardian of the Realm in their absence before whom even Parliaments have been held but it were endless to descend to the particular imployments of Magistrates under the Soveraign Therefore I shall only note what the (a) MS. Speech 1 Eliz. penes Rad. Thoresly de Leedes Gen. Chancellor in the Queens name said to Sir Thomas Gargrave chosen Speaker of the Commons House That to the head of every body Politick bâ—â—ngeth immediately or mediately the assignment and admitting of every Member of the Body to his Ministry and Duty the contrary whereof were monstrous in Nature and Reason It is both a great glory and happiness to a Prince when he is served by Magistrates of great probity for the skill and watchfulness The necessary Care of a Prince in chusing Magistrates as well as indulgent care of a Prince is thereby discovered and revered in such a choice and the evil Complexion of the People is chargeable mostly on the Magistrates Therefore what the Chancellor (b) MS. Speech Trim. Term. 1557. in a Speech in the Star-Chamber by the Queens direction told the Justices is applicable to all sorts of Magistrates That the not or remiss doing of Justice must by the Prince be charged upon their shoulders as the immediate Executors of the Law The qualifications of Magistrates may be the Subject of a Common place I shall only hint some more necessary referring the rest to the succeeding Chapter First they ought to be Persons undisturbed with Passions for as they are appointed to
the Justices in Queen Elizabeth's time the Chancellor tells them that the Queen had levied Forces and Reason willeth and the obedience of good Subjects requireth that all things that the Prince commandeth for defence of the State should by the Subjects diligently and obediently be performed for dutys sake either not examining the cause or presuming the best cause but at that time she was pleased to signifie the cause of her doings As to the King of England's making War and Peace abroad it hath always been owned as the King 's sole Prerogative and when some Parliaments have addressed to our Kings to make War or Peace contrary to what the Soveraign judged convenient they have been advertised of their Duties yet when War is to be made in remote Countries which cannot be performed without great Expence much time and the exhausting of the Kingdoms Forces That the People may more chearfully serve their Prince and Country and that the Exchequer may not be too much diminished whereby the usual Charges of the Government may not be substracted Kings have upon good Reason proposed the Matter to their Parliaments whereby necessary Aids might be sufficiently supplied The Laws now in force concerning the Militia are That the (k) 13 Car. 2. c. 6. 14 Car. 2. c. 3. King hath the Prerogative alone to dispose of the Militia of the Nation to make War and Peace Leagues and Truces to grant Safe-Conduct without the Parliament and he may issue out Commissions of Lieutenancy impowering them to form into Regiments to lead them and employ them as well within their own as other Countries as the King shall direct to suppress Insurrections Rebellions and Invasions He hath the Command of all the Forts and places of Strength and alone to have the keeping and Command of the Magazins of Arms he alone to give Letters of Mark and Reprizal in times of War to give Safe-Conduct for Merchants to make a stop of Trades as he sees cause In the time of danger and for defence of the (l) Coke 7. 25. Realm may command all his Subjects to Arm and they are to assist him and for this the Commission of Array may be made use of and all the Courts of Officers of War in a time of War are his Prerogative and the Subjects are to serve the King within the Kingdom against Rebels and Traytors (m) Jenkins Cent. 6. Case 14.26.89 without Pay or Wages and this as it seems in any part of the Nation especially if the King go himself The Subject except in an extraordinary (n) Coke 7.8 Case is not to be forced out of the Realm unless it be to go with the Kings Person nor in any case unless upon the sudden Invasion or Assault of an Enemy to serve the King without wages and the King in time of War may take any mans (o) I e. 3. Stat. 1. 2 Eliz. c. 2. House to build a Fort or make a Bulwark upon any mans Land But the King may not rate the Nation to pay any money towards any War of his It is true in time of Peace the King cannot quarter his Military Forces without the consent of the respective Subjects nor raise money without Act of Parliament for the maintenance of any Army so that the Subject while they keep dutiful are in no danger of oppression by such a Power yet without a competent Standing Force and Guard Some Standing Forces necessary at the Kings absolute pleasure what Livy saith of the Senate (p) Timor inde Patres incessit ac si dimissus exercitus foret rursus câ—tus occultaeque conjurationes fierent Lib. 6. The Long Parliaments Claim of the Militia would be most true of all Soveraigns That if the Forces were dismissed unlawful Assemblies and covert Conspiracies would be again set on foot The longest lived mischievous Parliament that any English History can record knowing that they could not effect their designs of weakning the King without the Power of the Militia though they had a numerous Party prepared to espouse their Interest and as ready for Rebellion as they could desire yet that they might have some colour for justifying their proceedings pretended necessity of putting the Kingdom into a posture of defence against foreign Invasions which by subtile Plots they possessed the people they had Intelligence of and for fear of any violence to be offered to themselves or that the King seduced by evil Counsellors should set up Arbitrary Power so having obtained that Fatal Act of not being to be dissolved without their own consent issued out their Commissions for Levying Trayning and Exercising Forces in all Counties where they had power by no Law or colour of Law but that of pretended imminent danger wherein the King refused to grant Commissions to such as they could confide in for their aforesaid purposes All which was but colour and shew to wrest the Power out of the Kings hands To obviate such like mischievous practices for the future upon his Majestys happy Restauration it was enacted and declared The Claims of any Right of the Two Houses to the Militia totally vacated That the sole supreme Government Command and disposition of the Militia and all Forces by Sea and Land and of all places of strength c. is and by the Law of England ever was the undoubted right of his Majesty and his Royal Predecessors Kings and Queens of England and that both or either of the Houses of Parliament cannot nor ought to pretend to the same nor can or lawfully may raise or levy War offensive or defensive against his Majesty his Heirs and lawful Successors So that now that great Controversy which wasso violently disputed to the loss of so much English Blood and Treasure is I hope eternally determined never again to be revived without an horrid prosperous Rebellion and this Prerogative of the Crown being thus guarded by Law will never more be attacked while the Royal line continues which is to be hoped and wished will without interruption be prolonged while the British Soil exists CHAP. XXXVI Concerning raising of Money upon the Subject and the obligation of Subjects to supply the Soveraign AS to the raising of Money for the support of Government I have discoursed something in the Title of Property and shall here only treat of the necessity in all Government That the Soveraign be plentifully supplyed with a Revenue suitable to the charge Although Darius the Persian be reckoned by Herodotus one of the first that exacted Tribute The necessity of Tributes and Aids yet it cannot be conceived but that ever since there was a Prince who commanded large Countrys and had potent Neighbours Tribute Aid and such like provision was exacted of the people for the defraying the necessary charges of it So Tacitus (a) Nec enim quies gentium sine armis nec arma sine stipendiis nec stipendia sine tributis 4. Hist tells us That we may be
preserved in Peace Arms are necessary and they cannot be provided for without Taxes The Subjects receive the benefit of protection and by the care of the Government peaceable possession of their Houses Fields and Cattle Liberty of Trade dispensation of Justice and other great Emoluments by its guard and vigilance which require a numerous retinue of Officers of State Justice and War and Multitude of subordinate Ministers Something also must be allowed for the grandeur and port is necessary for the regulating it at home and abroad the maintaining Correspondence by Ambassadors the providing for defence against foreign Invasions and preserving Tranquillity at home in all which the Publick is concerned therefore the reason is very just and equitable that besides a standing Revenue for defraying these constant charges there should be subsidiary supplys upon emergencies adequate to the occasions As Cicero justly admonisheth Da operam ut omnes intelligant si salvi esse volunt necessitati esse parendum That the Subjects be made to understand that if they will be safe As the Subject is protected so he ought to support the Government they must yield to necessity this absolute necessity of parting with a portion of their Estates for securing the rest For though it be prudence in a private man justly and moderately to enrich himself yet craftily to withhold from the Publick and to defraud it of such parts of the Wealth as is by Law required is no sign of prudence saith Mr. Hobs as judiciously as any position he lyes down but want of knowledge of what is necessary Civil War for their own defence and covetousness to part with nothing they can hold makes this restive humour in many That the Kings of England have quitted that Soveraign badge of raising money upon the Subject by their own Impositions without consent of Parliament is manifest since Edward the First 's time (b) 27 E. 1. c. 5. Anno 1299. The Act for which runs thus For so much as divers People of our Realm are in fear that the Aids and Tasks which they have given us before time towards our Wars and other business of their own grant and good will howsoever they were made might turn to a Bondage to them and their Heirs because they might be at another time found in the Rolls and likewise for the prices taken throughout the Realm by our Ministers We have granted for us and our Heirs that we shall not draw such Aids Task nor Prices into a Custom for any thing that hath been done heretofore be it by Roll or any other Precedent that may be found (c) Cap. 6. The next is thus Moreover we have granted for us and our Heirs as well to Archbishops Bishops Abbats Priors and other folk of Holy Church as also to Earls Barons and to all the Commonalty of the Land that for no business from henceforth we shall take such manner of Aids Tasks nor Prices but by the common assent of the Realm and for the common profit thereof See for this the Charter of King John saving the ancient Aids and Prices due and accustomed These being not fully enough expressed the Statute of 34. E. 1. though as short in words as any to be found yet is of the largest extent and as liberal a Boon of Royal bounty as any People can boast of from their Prince It is thus No Tallage or Aid shall be taken or levied by Us or our Heirs in our Realm without the good will and assent of Archbishops Bishops Earls Barons Knights Burgesses and other Free-men of the Land Therefore all those who would enjoy the benefit of this Law must take care they preserve the Succession and the two Houses of Parliament (d) MS. Speech second Parl. Elâ—z an 1562. Inducements to supply the Sovereign The Lord Chancellor in Queen Elizabeth's time thus by the Queens command discourseth to the Houses If when any part of the natural Body hap to be in danger the Head and every part hasteth to the relief so how inconvenient and unnatural is it when danger is offered to the whole that the Head should take the whole care and bear the whole burthen and the Members remain uncareful and uncharged It is certain (e) Coke Instit 1.90 the Prince can make no War of any great concernment without the assistance of his Subjects Purses as well as Bodies unless all would voluntarily serve upon their own charges for that neither sudden dangers can be evaded nor Forces raised and all things necessary for them provided nor peace be long preserved when the Prince hath an empty Exchequer for Treasure is Firmamentum Belli Ornamentum Pacis A late (f) States of France Objection French Author concerning his own Country makes this objection That Princes having assigned for their usual charges of the Government Tribute and other Incomes they ought to be therewith contented and not without occasion raise new Taxes to the detriment of the Liege people and contrary to the intention of the Trust Yet he owns this ought to be soberly understood for a wise Physician applies those Remedies necessary without the Patient's leave and will force him though by cutting off a Limb to save his life So when there may happen a necessity urgent and unforeseen that either will suffer no delay or which ought not for some time to be divulged in such cases saith he the King without the States and whether they will or no may lay new Impositions and make all other necessary provisions by the absolute Power he hath to rule and preserve his State and Subjects he not being able to defend them without necessary Forces Therefore in such occasions it is to be supposed that with the Power of Government there is transferred to the Prince the Power to do that without which good Government cannot be executed but when there is not that kind of necessity the States are called Thus far my Author Since therefore (g) Coke 1. Insiit p. 161. qui diruit medium destruit finem he that takes away the necessary means for a King to preserve his people in uncommon events hazards the ruine of the People some have inferred that when dangers should be so sudden that there could not be time to convene a Parliament or that such a Parliament met should for some design deny the Prince Money then the Kings Prerogative might extend to the raising of Money and they instance in the Loans by Privy Seals exacted upon the Subjects even in Queen Elizabeth's time This indeed was the Plea for Ship-money and as the case was stated by King Charles the First Concerning Ship-Money all the Judges once subscribed their affirmative opinions though Mr. Justice Hutton and Crooke retracted after and with great learning the case was argued and Judgment given in favour of the King Yet he hoping by the yielding to the abolishing of it to have stopped the misery of a War consented to an
Representatives using all their industry to make the Subjects believe they were the only Patriots and Liberators They pass Votes conformable to the Petitioners desire animate them to search for more and especially to fix them upon Persons they were mindful to remove out of places of trust Then they begun to impeach several Ministers of State and the Judges that they might weaken the King in his Councils and terrifie others into compliance always taking care to charge the misdeeds upon the Kings evil Counsellors magnifying the Kings Natural Goodness and declaring That if he would consent to redress those Grievances and to punish the Authors they would make him a richer and more glorious King than any of his Predecessors Seditious (t) Address Pamphlets daily came out and the Printing-Press laboured Night and Day to abuse the King and his Ministers and bring the Government Ecclesiastical and Civil into obloquy Their Preachers in the mean time like so many Demagogues plied their business so effectually blowing the Trumpet as they phrased it for the Lord and Gideon that by them the Houses Interest prevailed every where especially in the Populous City which was in a manner wholly at the Houses devotion Having removed the Great and Noble Earl of Strafford by great Industry and Art and the Midwifery of Tumults and got themselves by as strange an Art as oversight perpetuated they set themselves to Remonstrate in which they odiously recount all the miscarriages as they called them in the Blessed Kings Reign charging him though covertly with them and all the very Misfortunes of his Reign They revive the Bill against the Bishops sitting in the House of Lords which had been rejected and in a Parliamentary way ought not again to be set on foot that Session the better to effect which they cause the Rabble and their Confederates to menace and assault them and other Loyal Members of the House they Post up several names of Lords and Commons who opposed their proceedings and having driven the King and his whole Family away by most outragious Tumults they declare their Ordinances to be binding during their sitting and assume the Power of interpreting and declaring what was Law and by all these Arts they brought the People not (u) Culpae vel gloriae socii Tacit. 3. Hist so much to joyn with as to conspire with them Then they pretend a necessity of putting the Kingdom into a posture of defence to secure it against Popery and Arbitrary Government and the Invasion of Foreigners which they pretend were to be brought in to assist these They single out the most confiding and daring in every County to be their Commissioners of the Militia so (w) Quanto quis audacia promptior tanto magis sidus rebusque motis potior babetur Idem 1. Histor much as every one was forwarder in boldness and more hardy by so much the more he was to be confided in and sitter to help forward the turbulent work they were about Having first got the Peoples affections to revere them as their Deliverers they the more easily obtained their Bodies Armour and Moneys and so prosecuted a Rebellious War openly yet with that shameful pretence that they were fighting for the King against his Evil-Counsellors and amongst hands court him with most Dethroning Propositions and success Crowning their arms they wholly destroyed that Monarchy they had all along pretended to establish upon surer foundations for the Honour of the Crown and benefit of the People than former Ages had known Instead of which they made themselves Masters of all their Fellow-Subjects seizing their Estates Imprisoning and Murthering their Persons altering the established Ecclesiastical Government and all the fundamental Laws enriching themselves and over-awing the Kingdom by a standing Army Thus I have drawn that in Miniture which was the Tragedy of many Years and the Subject of numerous Volumes and I shall tack to it something parallel in later Years to let all Posterity see what a Characteristick Mark it is of Turbulent and Factious Inclinations when Petitions against the Will of the Government are violently promoted The great mischief of tumultuous Petitions being considered by the Loyal Parliament The Act against Tumultuous Petitions upon the late Glorious King 's happy Restauration Provision was made that the number of deliverers of Petitions should not exceed ten that three of the Justices of Peace in the County or the major part of a Grand Jury at an Assize or General Sessions or in London the Lord Mayor Aldermen and Common-Council have the ordering and consent to such Petitions which shall be for alteration of things established by Law in Church or State by way of Petition Complaint Remonstrances Declaration or other Address to the King or either Houses of Parliament It cannot be forgot in the interval of a later Parliament how zealous and busy multitudes were to get Petitions with Hundreds and Thousands of Hands to the late King for the sitting of a Parliament before the King in his Wisdom thought sit This occasioned the King to issue forth a Proclamation against tumultuous Petitions and other Loyal Persons to express an abhorrence of such Petitions that would press the King to precipitate their Sitting Those that petitioned the King for convening of a Parliament could not but foresee the ungratefulness of such Petitions to the King yet the Designers gave it not over for they had other Ends. As first to engage Men by their Subscriptions to be more fast to them Secondly to try whether the People might be brought to Tumults Thirdly to incense the People more against the Government if their Petitions were denied Fourthly to shew in terroreon the number of their Adherents Fifthly That through every County the confiding and zealous might be known each to other and Lastly that whenever that Parliament should sit they might have their Thanks and by their Numbers the Parliament might be encouraged to proceed in such things as they desired knowing hereby the Strength of the Party When the House of Commons met nothing was so much clamoured against as the Proceedings upon the late Proclamation as if all the Liberties of the Subjects of England had consisted in this Therefore they vote that it ever hath been the undoubted Right of the Subjects of England See the Votes to Petition the King for the Calling and Sitting of Parliaments for redressing of Grievances and to traduce such Petitioning was a violation of Duty and to represent it to his Majesty as tumultuous and Seditious was to betray the Liberty of the Subject and contribute to the design of subverting the Legal ancient Constitution of the Kingdom and introducing Arbitrary Power and so a Committee called of Abhorrence was appointed to enquire of all such Persons as had offended against the Rights of the Subjects This was it that explained their Vote for all the Controversy was Whether a sew private Men might agree upon a Petition then send Emissaries abroad to
a name of Continuance which as the Law presumes shall always remain as Head and Governour of the People For the English Monarchy (x) Coke 4. Report Praef. knows no Interregnum being Successive by inherent Birthright whereby infinite inconveniences are avoided so that the young Phenix stays not to arise out of the Spicy ashes of the old but the Soul of Royalty by a kind of Transmigration passeth immediately out of one body into another and in the same manner will every right Heir acquire the Royalty after his Predecessor ceaseth to be Therefore the judicious Lord (y) Interregnum aut tituli suspensionem â—aeges Regni non permittere Hist H. 7. p. 26. Verulam observes That H. 7. knowing that the Laws permit not any interim suspension or stay of the Title and having no mind to own his Queens Title the best She being the Heiress of the house of York as he in some respects was Heir of the House of Lancaster he ordered the Act so that it should neither be by recognition nor his Title be established by a new Law (z) Potius media via institit simplicis stabilimenti Ideo verbis tectis utrinque nutantibus his ut haereditas Coronae resideres remaneret continuaretur in Rege but chose a milder way viz. of simple Establishment in covert words interpretable several ways that the inheritance of the Crown should reside remain and continue in him So King James in his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 p. 209. tells the Prince That at the very moment of the expiring of the King Reigning the nearest and lawful Heir entreth in his place and so to refuse him or intrude another is not to hold out the Successor from coming in but to expel and put out their Righteous King So Sir (a) Report 7 8 10 11. Calvin ' s Case Watson and Clark ' s Case 1 Jac. 1. Edward Coke affirms That it is a known Maxim of the Laws That in the moment of the descent of the Crown the person on whom it descends which is the next immediate Heir only becomes complete and absolute King to all intents and purposes And so he saith The second Son of the King of England after (b) 3. Instit 8. the death of the first-born is eldest Son within the Statute of 25 E. 3. as it was resolved in the case of Prince Charles concerning the Dutchy of Cornwall It would be a tedious work to recite all the Authorities in this Case may be found in the Statutes and Law-Books I will content my self instead of all others with the Act of (c) Cap. 2. Recognition 1 Jacobi primi wherein The Recognition of King James the First after the two Houses had enumerated the benefits by the Conjunction of the Houses of York and Lancaster and the uniting of England and Scotland in the Kings Person and that They agnize their constant Faith Obedience and Loyalty to him and his Royal Progeny The worlds of the Act are In most humble and lowly manner do beseech your most Excellent Majesty as a memorial to all posterity among the Records of your High Court of Parliament for ever to endure of our Loyalty Obedience and hearty humble affection it may be published and declared in the High Court of Parliament and enacted by Authority of the same That we being bound thereunto by the Laws of God and man do recognize and acknowledge and thereby express our unspeakable joyes that immediately upon the dissolution and decease of Elizabeth late Queen of England the Imperial Crown of the Realm of England c. did by inherent Birthright and lawful undoubted Succession descend and come to your most Excellent Majesty as being lineally justly and lawfully next and sole Heir of the blood Royal of this Realm as is aforesaid c. and thereunto we most humbly and faithfully do submit and oblige our selves our Heirs and Posterities for ever until the last drop of our blood be spent and do beseech your Majesty to accept the same as the first-fruits of this High Court of Parliament of our Loyalty and Faith to your Majesty and your Royal Progeny and Posterity for ever By which it first appears that the Crown of England is an unalterable Entail and the reversion in him only by whom Kings reign without any Election or consent of the People otherwise than by acknowledging the lawful Right of the Kings derived from God by their blood to them Also from this Recognition we may consider How to understand the Act made by Queen Elizabeth against the Claims of Mary Queen of Scots Secondly what to think of that Act of Queen Elizabeth That if any Person shall affirm that the Parliament of England has not full power to bind and govern the Crown in point of Succession and descent that such a Person during the Queens life shall be guilty of High Treason For we must consider that by the words bind and govern we may conceive the sence to be That the Parliament is Judge where there are differences (d) Jus Regium p. 181. betwixt Competitors in nice and controvertible points which cannot be otherwise decided So that such temporary Acts as these are to be interpreted and restrained by other uncontroverted Laws We must also look upon it as made to secure the Queen against Mary Queen of Scots and to let her know it was to no purpose for her to design any thing against the Right or Person of Queen Elizabeth upon that ground as may be presumed the Queen of Scots might claim for that Queen Elizabeth by Act of Parliament had been declared a Bastard Therefore to let her know that it was to no purpose to insist upon any such claim and that her other Right as next undoubted Heir by blood to the Crown might be altered or governed this Act was made So that we must from hence conclude That it was to be reckoned only as one of those Statutes which the Law says are made ad terrorem ex terrore only which may appear the more evidently because it was never made use of For it is to be mainly considered that this Law being made to exclude Queen Mary and the Scotish Line as appears by that clause wherein it is declared That every Person or Persons of what degree or Nation soever they be who shall during the Queens life declare or publish that they have Right to the Crown of England shall be disinabled to enjoy the Crown in Succession Therefore it was never valid (e) Id. p. 183. For if it had been good King James might have thereby been excluded by that person who should have succeeded next to the Scotish Race For it is undeniable that Queen Mary did during Queen Elizabeth's life pretend Right to the Crown upon the account that Queen Elizabeth was declared Bastard Therefore the calling in of King James after this Act and the acknowledging his Title do clearly evince that the
few Years In Three Books The Whole illustrated with divers accurate Maps and Figures Written originally in Italian by Adam Oliarias Secretary to the Embassie Rendred into English by John Davies of Kidwelly The Second Impression The History of the Execrable Irish Rebellion trac'd from many preceding Acts to the Grand Eruption October 23. 1641. and thence pursued to the Act to Settlement in 1662. The Journals of all the Parliaments during the Reign of Queen Elizabeth both of the House of Lords and House of Commons Collected by Sir Simon D' Ewes of Stow-Hall in the County of Suffolk Knight and Baronet Revised and published by Paul Bowes Esq of the Middle Temple I Ragguagli di Parnasso or Advertisements from Parnassus in Two Centuries With the Politick Touchstone Written originally in Italian by that Famous Roman Traâ—ano Bocalini And now put into English by the Right Honourable Henry Earl of Monmouth Cosmography and Geography In Two Parts The First containing the general and absolute Part of Cosmography being a Translation from that eminent and much-esteemed Geographer Varenius wherein are at large handled all such Arts as are necessary to be understood for the true knowledge thereof To which is added the much wanted Schemes omitted by the Author The Second Part being a Geographical Description of the World taken from the Notes and Works of the Famous Monsieur Sanson late Geographer to the French King To which is added about One hundred Cosmographical Geographical and Hydrographical Tables of several Kingdoms and Isles in the World with their Chief Cities Sea-Ports Bays c. Drawn from the Maps of the said Sanson Illustrated with Maps The Annals of King James and King Charles the First of ever Happy Memory containing a faithful History and impartial Account of the Great Affairs of State and Transactions of Parliaments in England from the Tenth Year of King James 1612. to the Eighteenth of King Charles 1642. Wherein several material Passages relating to the late Civil Wars omitted in former Histories are made known A perfect Copy of all the Summons of the Nobility to the Great Councils and Parliaments of this Realm from the Forty ninth of King Henry the Third until these present Times With Catalogues of such Noblemen as have been summoned to Parliament in Right of their Wives and of such other Noblemen as derive their Titles of Honour from the Heirs Female from whom they are descended and of such Noblemens Eldest Sons as have been summoned to Parliament by some of their Fathers Titles Extracted from Publick Records by Sir William Dugdale Knight Garter Principal King at Arms. The History of the Affairs of Europe in this present Age but more particularly of the Republick of Venice Written in Italian by Baptista Nani Cavalier and Procurator of St. Mark Englished by Sir Robert Honywood Knight The History of Barbadoes St. Christophers Mevis St. Vincents Antego Martinico Monserrat and the rest of the Caribby-Islands in all Twenty eight In Two Books The First containing the Natural the Second the Moral History of those Islands Illustrated with several Pieces of Sculpture representing the most considerable Rarities therein described The Works of the Famous Nicolas Machiavell Citizen and Secretary of Florence Written originally in Italian and now faithfully translated into English A Compleat Treatise of Preternatural Tumors both General and Particular as they appear in Humane Bodies from Head to Foot To which also are added many excellent and Modern Historical Observations concluding most Chapters in the whole 〈…〉 Discourse The Present State of the Ottoman Empire from the Year 1623. to the Year 1677. Containing the Reigns of the Three last Emperors viz. Sultan Morat or Amurat the Fourth Sultan Ibrahim and Sultan Mahomet the Fourth his Son the Thirteenth Emperor By Sir Paul Ricaut late Consul at Smyrna The History of the Cardinals of the Roman Church from the time of their first Creation to the Election of Pope Clement the Ninth With a full Account of his Conclaves In three Parts Written in Italian by the Author of the Nepotismo di Roma The World Surveyed or The Famous Voyages and Travels of Vincent le Blanc of Marcelles into the East and West Indies Persia Pegu Fez Morocco Guinny and through all Africa and the Principal Provinces of Europe A General Collection of Discourses of the Virtuosi of France upon Questions of all sorts of Philosophy and other Natural Knowledge Made in the Assembly of the Beaux Esprits at Paris by the most Ingenious Persons of that Nation Englished by G. Havers In two Volumes A Treatise of the Sibyls giving an Account of the Names and Numbers of them of their Qualities the Form and Matter of their Verses and of their Books Written in French by David Blondell Englished by Jo. Davis of Kidwelly Tracts written by John Selden Esq of the Inner Temple The first entituled Jaâ—â— Anglorum Facies altera Rendred into English with large Notes thereupon by Redman Westcoat Gent. The second England's Epinomis The third Of the Original of Ecclesiastical Jurisdictions of Testaments The fourth Of the Disposition or Administration of Intestate Estates Printed for Tho. Basset and R. Chiswell and sold by R. Clavell Basilica Chymica Praxis Chymiatrica or Royal and Practical Chymistry augmented and enlarged By John Hartman To which is added His Treatise of Signatures of Internal Things or a true and lively Anatomy of the Greater and Lesser World as also the Practice of Chymistry of John Harâ—man M. D. augmented and enlarged by his Son with considerable Additions All faithfully Englished by a Lover of Chymistry The Compleat Chymical Dispensatory in Five Books treating of all sorts of Metals Precious Stones and Minerals of all Vegetables and Animals and Things that are taken from them as Musk Civet c. How rightly to know them and how they are to be used in Physick with their several Doses The like Work never extant before Being very proper for all Merchants Druggists Chirurgeons and Apothecaries and such Ingenious Persons as study Physick or Philosophy Written in Latin by Dr. John Scroder that most Famous and Faithful Chymist and Englished by William Rowland Doctor of Physick The Royal Pharmacopaea Galenical and Chymical according to the Practice of the most Eminent and Learned Physicians of France and published with their several Approbations By Moses Charâ—as the King 's Chief Operator in his Royal Garden of Plants Faithfully Englished and illustrated with several Copper Plates An Abridgment of divers Cases and Resolutions of the Common Law Alphabetically digested under several Titles By Henry Rolls Serjeant at Law Published by the Lord Chief Baron Hales and approved by all the Judges The Reports of Sir George Croke Knight In three Volumes in English Allowed of by all the Judges The second Edition carefully corrected by the Original Les Reports de Henry Rolle Serjeant del ' Ley de divers Cases en le Court del ' Banke le Roy en le Temps del ' Reign de Roy Jaques Colligees