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
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
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
Ethelred and his Wites have enacted all his People to mulct for the breach of Peace These were enacted at Woodstock in Mercia after the English Laws Tho general Council of (o) Spâ—lman Concil vol. 1. fol. 510. The Council of Aenham under King Aethelred Aenham called Pananglicum is said to be Hortatu Aelfeagi Dorobernensis Wulstani Eboracensis Archipraesulum ab Aethelredo Rege edictum accersitisque Episcopis universis Anglorum Optimatibus in dic Pentecostes celebratum and the Saxon Title of it is Be witena geraednessa rendred Sapientum decreta In the conclusion of the Latin Copy of them this is added Haec itaque legalia statuta vel decreta in nostro Synodali Conventu a Rege (p) Idem fol. 529. magnopere edict a cuncti tunc temporis Optimates se observaturos fideliter spondebant Sir Henry Spelman gives several reasons why this may be called a General Council because it contains Secular Laws as well as Divine and here we have expresly said it was at Pentecost one of the set times for such Councils and it was by the King's Summons and the Clergy and Optimates consented In the Charter of the Priviledges granted by King (q) Spelman Concil vol. 1. fol. 507 508. Anno 1006. Ethelred to the Church of Canterbury after the Subscription of the King the Archbishops Bishops and Abbats these are subscribed Aelfric Elfhelm Leoffwin Leoffig Ealderman which in the Latin version are stiled Duces Aethelmer mines Alaffordes discthen translated Domini mei dapifer verbatim Dish Thegne or Thane Byrhtric Cynges Thegen Minister Regis Leofric Hraegel Thein rei vestiariae Minister Master of the Wardrobe Aet suman is added but neither Lambard nor Somner interpret it Syward Cynges Thegen aet Raede Minister Regis a Conciliis Secretary or Counsellor the rest only mentioned Gewitnys and in the Latin Charter of the same which we may imagine was the Original these Thegnes are called Ministri and so are these following Ordulf Eadric Ethelric Leofric Sigeraed VVulstan Senex Juvenis Lysing Leofâ—tan The Preface to the Laws of Canutus is conceived in the same Words as that of King Edgar's The Laws of Canutus fol. 97. Regn. coepit A. 1016 desiit 1035 only he is stiled Cnut Cyning ealles Englandes Cyninge Dena Cyning Northrigena Cyning King of all England King of Denmark and Norway they were Established at VVinchester on thaem Halgan Mid-winter Tide i. e. at Christmass The Preface to his Laws in Sir Henry (r) Concil Tom. 1.552 Spelman is conceived in these words This is thonne seo worldcunde geraedness the Ic will midminan VVitenan roede the man heald ofer eall Englaland These are the Worldly Constitutions that I will with my Wites Advice that Men hold all over England In most of the Chapters it is said we laeroth we teach we beodath we bid or command we forbeodath we forbid and in the Conclusion it is in the single Person of the King nu bidde Ic georne on Godes naman beode manna gehwylcne Now I command all and bid every Man in God's Name The Preface to the Latin version of them saith Haec (s) Idem fol. 562. sunt Instituta Cnudi Regis Anglorum Dacorum Norwegarum venerando sapientum Concilio ejus ad laudem gloriam Dei suam Regalitatem commune commodum habita in sancto natali Domini apud Wintoniam So we find that Anno 1024. When (t) Monast Aug. vol. 1. fol. 295. col 1. num 30. Canutus drove the Clerks living dishonestly from the Church of St. Edmund and placed Monks there it is said he did it cum consilio Archiepiscoporum Episcoporum Optimatum So in another Council it is thus Ego Cnut Rex totius Albionis cum Concilio Archiepiscoporum Episcoporum Abbatum Comitum omniumque fidelium elegi sanciendum By the word fidelium here is meant the Thegne or lesser Nobility as Doctor Brady fully proves in his Glossary and elsewhere Anno 1032. He grants Priviledges to Glastenbury (u) Spelman vol. 1. Concil fol. 537. which he doth consensu Optimatum meorum with the consent of his Nobles yet he useth the words concedo prohibeo in the single Person to denote from whose single Authority all concessions flowed Of this Canutus (w) Gest Regum lib. 2. c. 11. Malmsbury saith that he commanded to be observed for ever all the Laws of ancient Kings especially those made by King Ethelred his Predecessor under (x) Sub interminatione Regiae mulctae perpetuis temporibus observari praecepit the penalty of the Kings Fine to the observing of which he saith in his time it was sworn under the name of King Edwards Laws not that he had appointed them but had observed them It is of latter time (y) MS. Burgi Sancti Edmundi Spelman Conc. vol. 1. fol. 534. recorded that Canutus in the fifth Year of his Reign calling together all the Prelates of his Kingdom Proceresque ac Magnates Wulstan Adelwode the Archbishops and other Bishops seven Dukes and seven Earls and divers Abbats of Monasteries cum quamplurimis gregariis Militibus ac cum populi multitudine copiosa who were personally present Votis Regiis unanimiter consentientibus praeceptum decretum fuit Sir Henry Spelman saith That this Manuscript must be writ towards the latter end of Henry the Third's Reign if not after because it useth the word Parliament and discourseth of the Constitution of Parliament as in that Age not as the great Councils in Canutus time were which I note that it may be observed upon how slender Antiquities Sir Edward (z) Praefat. 4. Report King Edward the Confessor 's Laws Coke relied From what Malmsbury observes of these Laws of Canutus we may conclude that whereever the Laws of King Edward the Confessor are mentioned in after Ages these Laws of Canutus must be understood and that it is a fruitless Enquiry to search for any other than those which Hoveden and Ingulphus give us as confirmed by VVilliam the Conqueror therefore I shall referr the Inquisitive Reader to the Authors and Sir (a) Concil vol. 1.619 625. Henry Spelman and Mr. Selden I shall therefore only note who were the constituent Parts of the great Councils in his time That convention at Christmas the Twenty fifth of his Reign as Sir Henry Spelman (b) Iâ—em fol. 627. hath published it was Praesentibus Edwardo Rege Confâ—ssore Edgitha Regina Stigando Archiep. Cant. Eldredo Archiep. Ebor. caeterisque Angliae Aepiscopis Abbatibus Capellanis Regis Comitibus Ministris seu Thanis Regis Militibus qui in Chartarum sequentium subscriptionibus nominantur Then follows the second Charter to (c) Id. 631. St. Peters of Westminster where after the Bishops and Abbats we find the Subscriptions of Raynbaldus the Chancellor and Harold Edwin Leofdwyn and Guden are titled Dukes Ergar Kendus Wygodus Robertus Ednothus are called Ministri then I suppose
ordained in the Premisses by the Common Council and so the Returns are ad faciendum quod tunc ibidem ordinabitur In 17 E. 2. (h) Cl. 17 E. 2. m. 27. dorso it is enjoyned that the Knights c. be there ad faciendum consentiendum hiis quae in dicto Parliamento ordinari contigerit super negotiis antedictis Anno 21 E. 3. (i) Cl. 21 E. 3. m. 12. dorso there is some more Power granted to the Knights c. ad tractandum consulendum consentiendum hiis quae tunc favente divina Clementia contigerit ordinari Whereas before it was only to hear and do what was ordained by the King the Prince or the great Council here it is to treat consult and consent to what then should be ordained But the Writ Anno 36. (k) Cl. 36 E. 3. m. 16. dorso explains who had the ordaining Power for it runs ad consentiendum hiis quae per nos ac dictos Praelatos Magnates Proceres ordinari contigerit So here the King the Bishops and the Nobles ordain and the House of Commons are to assent Anno 47 E. 3. (l) Cl. 47 E. 3. m. 13. dorso the words are ad faciendum consentiendum eis quae tunc de Communi Concilio Regni nostri favente Domino contingant ordinari which Form is continued to this day so that according to the import of the Writ the Commons are to do and assent to what shall be ordained in Parliament by which two words I suppose they have the full Power to frame Bills and to assent which also implies a Power of Dissent to the Bills sent to them by the House of Lords Having thus drawn into one Scheme the most material Alterations and variety of Expressions from all the Writs of Summons of Mr. Prynne and others that fill so great Volumes and truly as I hope quoted all the Records which illustrate these Particulars and in a very clear Landscape represented the most material Parts of the two so noble and wisely constituted Houses from whose great Wisdom with the Sovereigns Authority and Fiat all those wholesome and necessary Laws are derived that establish this great Monarchy I shall now pass to some general Remarques and from thence to the ancient and modern Priviledges of the House of Commons First it is very obvious Kings not confined to two Knights c. that the Kings of England formerly were not confined to summon only two Knights Citizens and Burgesses as now for Anno 22 (m) Cl. 22 E. 1. m. 6. dorso E. 1. the King issued out his Writs of Summons for two Knights of every County after which follows a second Writ entred immediately after in the same Dorse for other two Knights in these words Praeter illos duos Milites eligi facias alios duos Milites legales c. So 28 E. 1. three Knights or other three de probioribus legalioribus discretioribus Liberis Hominibus c. eligi These probi legales homines were such as held in Capite So in the (n) Cl. 26 E. 3. m 14. dorso Vâ— hâ—mines ab ista occupaâ—â—one autumpâ—alibus quo minus possumus retrahamus 26 of E. 3. the King considering that it was Harvest time that he might not withdraw Men from that Employment unum tantum Militem de quolibet Comitatu ad dictum Concilium mittendum habere volumus ista vice So (o) Cl. 45 E. 3. m. 21. dorso Ordinavimus ut laboribus parâ—atur expensis 45 E. 3. the King in his Writ saith That he might spare the Labours and Expences he will have treaty with some only of the Magnates by which the Knights of Shires here are to be understood Citizens and Burgesses One Citizen and one Burgess therefore appoints one Knight for the County of Kent one Citizen for Canterbury and one for Rochester whom he names if they be alive otherwise the Companion of him that was before In 18 E. 3. the Writs issued only for two (p) Brevia Parl. rediviva p. 144. ad 147. Knights in every County and no Writ for Electing Citizens or Burgesses and 26 E. 3. the Writs are for one Knight in every County and no Citizens or Burgesses yet in (q) These things are now reduced to a certainty by the Statutes 5 R. 2. c. 4. and others Prynne's Brief Regisâ— par 2 p. 32. this the King issued out particular Writs to Mayors and Bailiffs oâ— Cities and Burroughs to elect and return one Citizen for every City and one Burgess for every Burrough Secondly That the Kings of England had a Power to supersede particular Persons being chosen to resummon those that returned without leave or appoint others in their places and omit sending Writs to some Cities and Burroughs that had formerly sent and to create new Burroughs So the Lord Camoys (r) See Brief Regist p. 118. ad 123. as I have instanced before being elected by the King 's first Writ the King by new Writ declared it null and ordered to proceed to a new Election and the King appears in that Age to be the sole Judge of void and double Elections So in the (s) Cl. 28 E. 1. m. 7. dorso 28 Ed. 1. Phillip de Geyton being chosen one of the Knights for the County of Northampton and could not attend the King orders another to be chosen So 5 (t) Cl. 5 E. 2. m. 26. dorso E. 2. because the Knights Citizens and Burgesses of Yorkshire went away for certain causes not there expressed it is probable without the Kings Leave therefore he sends his Precept to the Sheriff to cause them to return vel alios ad hoc idoneos loco eorum si ad hoc vacare non possint But this more especially is to be taken notice of when I come to discouse of Priviledges of Parliament As to the last particular of the King 's appointing new Burroughs The King makes new Burroughs impowering them by special Charters to send Citizens and Burgesses to all Parliaments to be afterwards held by the King his Heirs and Successors Judge (u) Reports p. 14 15. Hobarts hath cleared it and (w) Brief Register par 2. p. 170. Mr. Prynne hath reduce them all into Chronological Tables and he makes it a certain Note that where the Sheriff makes his Return nulli sunt Cives nec Burgenses in Com. praedict or non est alia Civitas vel Burgus or non sunt alii Burgi we may certainly conclude that every City or Burrough omitted then out of those ancient Returns and since returned for Cities or Burroughs were made Cities and Burroughs since that time as the curious may see at large in his (x) P. 223. ad 297. Brevia Parliamenta Rediviva But on the other side Old Burroughs discontinued for what reason we find many Burroughs who elected Burgesses in 26 E. 1. as particularly Pontefract and
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
all manner of People as well Poor as Rich that for Highness nor for Riches nor for Hatred nor Estate of no manner of person or persons nor for any Deed Gift nor Promise of any person the which is made to him nor by Craft nor by Ingen he shall let the Kings Right nor none other Persons right he shall disturb let or respite contrary to the Laws of the Land nor the Kings Debts he shall put in respite where that they may goodly be levied that the Kings need he shall speed above all others that neither for gift wages nor good deed he shall layne disturb nor let the profit or reasonable advantage of the King in the advantage of any other person or of himself that he shall take of no person for to do wrong or right to delay or to deliver or to delay the People that have to do before him c. where he may know any wrong or prejudice to be done to the King he shall put and do all his power and diligence that to redress and if he may not do it that he tell it to the King or to them of the Council that may make relation to the King if he may not come to him Sir Edward Coke (z) 4. Instit p. 103. 110 111. hath commented on the Mirror to explain all the Power and particular business of the Court and further observeth that the Patent of the King to the Chief Baron the rest of the Barons Atturney General and Sollicitor are not so long as the King pleaseth but quam diu se bene gesserint which is interpreted a place for life and there is good reason being too many changes would give too many an insight into the Kings Revenue There is a Manuscript (a) Codex niger c. 1. Nulli licet statutum Scaccarii infringere vele is quavis temeritate resistere Habet enim hoc commune cum ipsa Dom. Regis Curia in qua ipse in propria persona Jura decernit quod nec Recordationi nec Sententia in eo latae liceat alicui contradicere of Gervasius Tilburiensis writ in the time of Henry the second which gives an account how it came to be called the Exchequer from a checked Covering of the Table at which the Officers of the Court sate and saith That it is lawful for none to infringe the Statutes of the Exchequer or by any rashness to resist them it having that common with the Court of the Lord the King in which he in his proper person gives Judgment that it is not lawful for any to contradict either the Record or Sentence By which it appears that this Court was distinct from the Kings Bench where the King sate in person and that by the Institution of William the Conqueror not only the great Barons of this Realm as well Ecclesiastical as Secular but also the Justice of England as President thereof by his Office were Members of this Court and so continued to do long after as the Judicious (b) Origines Jurisâ—ic fol. 50. Sir William Dugdale hath by Precedent shown Mr. Prynne hath given us two Records out of the Exchequer (c) Commun Term. Mich. 35 H. 3. Rot. 2. 34 H. 3. and Rishanger 40 H. 3. that that King in his proper person sate and gave judgments in the Court of Exchequer and gave not only Rules to be observed about the Revenue Sheriffs and Bailiffs but also concerning punishing Blasphemy defending Pupils Orphans and Widows and how the Magnates deported themselves to their Tenents and if (d) Inquirant qualiter Magnates se gerunt erga homines suoâ— si forte non possunt plenarie corrigere tunc ostendant easdem transgressiones Dom. Regi they found them transgressing that they correct them as they can and if they cannot fully correct them they show the same transgressions to the King He hath also given an account how 54 H. 3. (e) Pat. 54 H. 3. m. 22. dorso Incep 55. Rot. 3. dorso the accounts of the Sheriffs into the Exchequer were to be digested and in Michaelmass-Term the same Year how the Barons of the Exchequer were to administer the new Oath to the Mayor Elect of the City of London likewise in the same (f) Animadv fol. 55 56. Author there is a large refutation of Sir Edward Coke's Opinion that the Statute of Rutland as he calls it was a Statute made by the King Lords and Commons where it is proved against Sir Edward that it was made for the ordering of the Exchequer at Rothelan in Wales by the King and his Council and not at Rutland but I shall not enter into such Particulars There are several other Courts which have peculiar Jurisdictions by the King's Grants and Prescription as the Court of Requests abolished 17 Car. 1. The Court of Chivalry Court of Marshalsea of the Admiralty and that for redress of delays of Justice which Sir Edward Coke and others have treated of at large and fall not so necessarily for me to discourse of So I shall proceed to the Itinerant Justices and of Assizes and Gaol-delivery SECT 7. Of Itinerant Justices and Justices of Assize and Nisi Prius SOme Shadow of this we find in the time of the Conqueror when Geofrey Itinerant Justices Earl of Constance and some other Barones Regis did sit at (g) Regist Ecclesiae Eliensis fol. 24 b. Kenteford to hear and determine the Claim touching the Rights and Liberties of the Church of Ely at that time disputed before them But the settlement of the Constitution of them was not till 22 H. 2. Anno 1176. as Roger Hoveden (h) Annal. pars post p. 148 149 150. hath related when the King held his Great Council at Nottingham communi omnium Consilio divisit Regnum suum in 6 partes per quarum singulas Justiciarios Itinerantes constituit and the Twenty fifth of his Reign at his great Council at Windsor (i) Idem p. 590 591. Et unicuique partium praefecit viros sapientes ad faciendam Justitiam ad audiendum clamorem populi he divided England into four Parts and over every Part he appointed Wisemen to do Justice and hear the Complaints of the People The Form of the special Writ from the King to impower them to act and of the Writ directed to the Sheriffs to summon all such Persons as were concerned in this Service to appear before the Justices may be seen in Sir William Dugdale's Origines Juridiciales fol. 52. a.b. In which latter Writ (k) Cl. 3 H. 3. m. 13. dorso the Persons summoned to appear were Archbishops Bishops Abbats Earls Barons Knights libere tenentes and in every Village four Legales Homines Praepositum de quolibet Burgo 12 Legales Burgenses Sir Ed. Coke (l) 4. Instit p. 184. calls these Justices in Eyre and saith they had Jurisdiction in all Pleas of the Crown and of all Actions real personal and
do Authoritas rei indicatae vim legis habet So that can be no Appeal from the King to himself the King delegates his Power to them quod Rex facit per Officiarios per se facere videtur they give Judgment for the King not for themselves to that the Laws Authorize them and none but them so that the Kings assent or dissent cannot frustrate their Judgment which they render in invitos against the will of one of the Parties at least because expedit Reipublicae ut finis sit datus Therefore as to the Power of declaring Law the King is restrained ordinarily to the Mediation of the Judges who are to give the genuine sence and Interpretation of the Law according to Art and rules of science and so by their Interpretation and Judgment therein they bind both King and Subject Yet in some (d) Case of our Affairs p. 4. cases the Judge do not only consult among themselves Judges to apply themselves to the King to determine a doubtful case but must have recourse to the King as the Fountain of Justice so (e) Postnati si disputatio oriatur Justiciarii non possunt interpretari sed in dubiis obscuris Domini Regis expectanda est Interpretatio voluntas cum ejus est Interpretari cujus est condere It is saith Sir Thomas Smith (f) Commonwealth part 2. c. 10. to be taken for a Principle that the Life and Member of an English man is in the Power only of the Prince and his Laws so that when any of his Subjects is spoiled either of life or limb the Prince is endammaged thereby and hath good cause to ask account how his Subjects should come to that mischief and forasmuch as the Prince who governeth the Scepter and holdeth the Crown of England hath this in his care and charge to see the Realm well governed the Life Member and Possessions of his Subjects kept in peace and assurance he that by violence shall attempt to break that Peace and assurance hath forfeited against the Scepter and Crown of England So that from hence it appears how equal and just it is that the King should have the appointment of Judges Justices of Peace Why the King only to appoint Judges c. that neither his Peace should be broken his Subjects injured in their Persons or Estates nor his Laws be violated What Judges are to observe There being sufficient Provision in the Law against the violating of Justice by the Judges who are to observe these following statutes 1. Magna Charta That no Freeman shall be taken or Imprisoned or disseised of his freehold or liberty or Customs or be Out-lawed or exiled or otherwise destroyed That the King (g) Cap. 9. will not pass upon him or condemn him but by lawful Judgment of his Peers or by the Law of the Land and by another 5 E. 3. That no man shall be Attached by any Accusation nor fore-judged of Life or Limb nor his Lands Tenements Goods nor Chattles seized into the Kings hands against the form of the Great Charter and the Law of the Land and 25 Ed. 3 (h) Cap. 4. Stat. 5. That none shall be taken by Petition or Suggestion made to the King or to his Council unless by Indictment or Presentment of good and lawful People of the same Neighbourhood where such deed be done in due manner or by Process made by writ original at the Common Law and so by (i) 24 E. 3. c. 3. another That no man of what State and Condition soever he be shall be put out of his Lands or Tenements nor taken nor Imprisoned nor disinherited without being brought to answer by due Process of Law and in another (k) 41 E. 5. c. 1. That no man be put to answer without Presentment before Justices or matter of Record or by due Process or Writ original according to the old Law of the Land But I must leave this to the Learned in our Municipal Laws and shall note some few things from old Authors that may discover how much just Judgment hath ever been valued The impartiality and yet the tenderness and compassion in inflicting Punishment is notorious in Zeleucus Impartiality requisite in a Judge who while he governed the Locrians made a Law That whoever committed Adultery should have both his Eyes put out and his Son being found guilty he commanded the Law to be put in Execution and the body of the Citizens interceding he ordered one of his Sons Eyes to be put out and likewise one of his own that the Law might not be broken and yet that he might not be over rigid to his Son The (l) Neque inflecti gratia neque perfringi potentia neque adulterari pecunia possit Pro Cecinna Orator tells us That Justice should neither be warped by Favour nor broken by Power nor adulterated by Money and in another place (m) Exuit personam Judicis quisquis Amici personam induit saith That he puts off the person of a Judge who assumes that of a friend He indeed is an upright Judge in whose hand the Ballance of Justice neither totters nor falls by the Authority of any Person Talis debet esse Juris minister ut in ejus manu nullius authoritate personae titubet aut vacillet librae Justitiae Besides the avoiding of Partiality Pâ—ecipitancy to be avoided it is necessary in every Judge that he fully examine what is brought before him and not with too great Precipitancy determine matters upon (n) Qui statuiâ— aliquid parâ—e inâ—udita altera 〈…〉 siatuit 〈◊〉 tamen aequus est Senec. Medaea the hearing only of one side for though he may chance to do Justice in such a Case yet he doth not do justly that fully hears not both Parties Allegations It is a very mischievous things when Judges delay the Executing of Justice (o) Holy Court Tom. 1. lib. 3. p. 90. Delays in doing Justice mischievous Causinus out of the Chronicles of Alexandria tells us That Juvenalis a Widow complaining to Theodorick King of the Goths and Romans that a Suit of hers in Court was drawn out for the space of three Years Theodorick called the Judges before him and acquainted them with the Complaint and commanded them to do her speedy Justice which within two days they did and being again called by the King he asked them how it came to pass that they had dispatched that in two days which had not been done in three Years They answered that His Majestie 's Recommendation had made them finish it so soon To whom the King replied That when he put them into Office he consigned all Pleas to them and other Proceedings and since they had spun out the Business for three Years that required but two days dispatch they should die and at that Instant commanded their Heads to be smitten off Court to redress Delays We find in Sir Edward Coke
Parliament of England knew they had no Power to make such an Act and we may conclude That such Politick and Temporary provisions find no approbation either by the Laws or succeeding ages who in all such cases judge more impartially therefore it is much more honourable for the Legislative Power to found their Laws upon Justice and Right rather than upon the humours and Interests of those who desire but the shadow of a Law to countenance their designs It must be owned that King Edward the Second was deposed The Injustice in deposing Kings for making use of Gaveston and the Spencers But how illegally all succeeding ages have acknowledged and it rather shews how extravagant the People and their Representatives are in their humors than how just their Powers are For by the same parity of Reason the horrid Murther of the blessed Martyr or the Murther of Edward the Second may be justified as his deposing may be and the like may be said of King Richard the Second against whom the Fourteenth Article was that he refused to allow the Laws made in Parliament which had been in effect to consent that the two Houses should have been the Soveraign and that he had transferred the Royal Power on them Whoever desires further satisfaction may consult Arnisaeus in that Treatise Quod nulla ex causa subditis fas sit contra legitimum Principem arma sumere Whereas Richard Duke of York in Henry the Sixth's time after he had been declared Heir Apparent was by another Act of Parliament declared uncapable of Succession all that can be inferred from it is When Acts of Parliament to be less esteemed That Acts of Parliament when they are bottomed upon private affections to Parties in times of Faction and civil War are not to be looked upon with that veneration as when they regularly pass in times that are calm when no potent Persons oppress Justice or usurping Powers hinder faithful Judges from expounding the Laws soundly Therefore we find in the claim of the said Duke of York that it is more consentaneously to Law expressed That no Act taketh place or is of force against him that is right inheritor of the Crown as accordeth saith the Record with Gods Laws and all natural Laws and we may observe that though there was a Succession of three Kings of the House of Lancaster who had usurped the Crown for Sixty Years yet all our Historians and the Laws call those Kings de facto and not de jure Such a true sence of just and right the uninterested Ages have had of that Usurpation ever since although there were Acts of Parliament carefully penned to corroborate â—he Title of the house of Lancaster during that time and all ways and means used to have established that Line yet by vertue of the Right of Lineal Succession Edward the Fourth Son to the said Duke of York came to be owned lawful King of England though the Right of his Family had been interrupted ever since Henry the Fourth usurped the Crown which might have been a sufficient document to all Ages not to have attempted any sort of praeterition of the Right Heir Yet we find that unsuccessful attempts were made by H. 8. contrary to the fundamentals of Succession which when rightly considered I hope will convince all of how little validity even such Acts are to be reputed Therefore because these have been made use of for Precedents I shall speak a little more fully to them In the 25 of H. 8. (f) Cap. 22. the Marriage with Queen Katherine is made void Concerning the several Entailings of the Crown by King Henry the Eighth and that with Queen Anne's declared good and an Entail made on the Issue Male or Female and the Penalty for hurting the Kings Person disturbing his Title to the Crown or slandering the present Marriage is judged High Treason and Anno 26. (g) Cap. 2. a strict Oath is injoyned to observe the Succession there appointed But 28 H. 8. (h) Cap. 7. it is declared that the former Act was made upon a pure perfect and clear foundation thinking the Marriage then had between his Majesty and the Lady Anne they are the words of the Act in their Consciences to have been pure sincere and perfect and good c. till now of late that it appeareth that the said Marriage was never good or consonant to the Laws but utterly void and of none effect and so both the Marriage with the Princess Katherine and the Lady Anne are declared void and their Issue made illegitimate and the perils are enumerated that might ensue to the Realm for want of a declared lawful Successor to the Crown and the Act impowers the King if he dye without Issue of his body that he may limit the Crown to any by his Letters Patents or his last Will in Writing and it is declared Treason to declare either of the Marriages to be good or to call the Lady Mary or Lady Elizabeth Legitimate and the former Oath is made void and this may be judged to be procured when he resolved to settle the Crown on Henry Fitz Roy Duke of Richmond his natural Son But after the Birth of Prince Edward 38 H. 8. (i) Cap. 1. another alteration is made whereby the Crown is entailed on Prince Edward and for want of his Issue on the Lady Mary and for want of her Issue on the Lady Elizabeth and for want of Issue of the King or them then the King is impowered by his Letters Patents or last Will to dispose of the Crown at his free will It is therefore to be considered that in such a juncture of affairs when the legality of the Kings Marriages were so disputable by reason that two of the legal Successors upon niceties not of nature but of the Popes 〈◊〉 for Divorcing were declared Bastards there was some â—eason (k) 25 H. 8. c. 22. that the Act should express that the Ambiguity of several Titles pretended to the Crown then not perfectly declared but that men might expound them to every ones sinister affection and sence contrary to the right legality of Succession and Posterity of the lawful Kings and Emperours of the Realm hath been the cause of that great effusion and destruction of mens blood and the like cause will produce the like effect as the words are Upon such grounds it was very plausible to declare by Act of Parliament the Succession But this does not prove that where the Right of nature is clear that the Parliament may invert the same and they teach us how dangerous it is to leave Parliaments to the Impression of Kings when it is too obvious the first of these Laws was made to gratifie the Kings affection to Queen Anne in the case of naming a Successor as it is also to expose Kings to the Arbitrariness of Parliaments And we may well infer H. 8. taking such care by his Parliaments to legitimate and illegitimate his