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
Oyer and Terminer Gaol-Delivery and Justices of Peace are determined by the Death of the Predecessor that made them Therefore the Statute of 25 Ed. 3. declares it to be Treason if any man kill the Chancellor The Judges represent the King's Person Treasurer or the Kings Justices of the one Bench or the other Justices in Eyre or Assise or any other Justices assigned to hear and determine being in their places doing their Offices The (f) Id. 3. Instit p. 18 140. reason whereof is assigned because all these represent the King 's Royal Person in his own Courts by his own Commission under the Great Seal in the very Execution of the Kings Royal Office viz. Administration of publick Justice to his People As therefore the King at his Coronation (g) Facies fieri in omnibus Justiciis tuis aequam rectam Justitiam discretionem in misericordia veritate secundum vires tuas taketh an Oath to make to be done in all his Judgments equal and right Justice and Discretion in Mercy and Truth according to his Power So he lays the Burthen thereof upon the Judges according to that of E. 3. for the Pleasure of God and quietness of our Subjects as to save our Conscience and keep our Oath by the assent of our great Men and other of our Council we have commanded our Justices that they shall from henceforth do even Law and Execution of right to all our Subjects Rich and Poor without having regard to any Person c. Therefore before this in (h) Nulli vendemus nulli negabimus aut differemus Justitiam vel Rectum c. 29. Magna Charta we find that the King will sell deny or defer Justice to none Yet from hence it doth not follow that if in the opinion of some the King doth not do Justice that therefore any Subject should conclude as the Master of the Hospitallers of Jerusalem in England at Clerkenwell Anno 1252. 37 H. 3. did The Story is thus told by (i) Hist p. 826 827. Edit prioris Matthew Paris The Master waiting a time when he might discourse with the King he complained of some Injuries done him The King loseth not his Authority tho' he do not Justice and shewed the King some Charters of Protection of himself and his Ancestors The King answered with an Oath and in Wrath You Prelates and Religious especially Templars and Hospitallers have so many Liberties and Charters that they make you proud c. Therefore they ought prudently to be revoked which imprudently have been granted to you for even the Pope oftentimes revokes his Grants with a non obstante and the King told him so he would do To all which the (k) Cui Magister Hospitalis respondit alacâ—iter vultu elevato Quid est quod diciâ— Domine Rex Absit ut in ore tuo recitetur hoc verbum illepidum absurdum Quamdia Justitiam observas Rex esse poteris quam cito bane infregeris Rex esse desines Master saith Matt. Paris answered chearfully and with a lifted up Countenance What is this you say my Lord the King far be it from you to speak so absurd a thing As long as you observe Justice you may be a King and as soon as ever you break this you cease to be a King Thus he would make Dominion founded in Justice as others in Grace But I need not add many Authorities upon this Head for by the universal Suffrage of the profound Lawyers the Kings of England solely nominate create and (l) Dyer fol. 56. appoint all the Judges of the great Courts at Westminister and may remove them at their Pleasure and alone make (m) Davis 45. and appoint Justices of Oyer and Terminer of Gaol-delivery Justices of the Peace Sheriffs and the like Officers and (n) Coke 4. Inst n. 4. 14. 114. 117. remove them when they see Cause and the (o) Bulstrod 3. 296. 1 H. 7. c. 25. Prerogative of making Judges cannot be given or claimed by a Subject The King hath also Power to name create make (p) Sheppard's Grand Abridgment part 3. p. 53. and remove the great Officers Ecclesiastical and Civil by Sea and Land as Archbishops Bishops by way I suppose of Conge deslier The King 's placing and displacing all Great Officers and Translation Lord Chancellor or Keeper Lord Treasurer Lord President Lord Privy-Seal Lord High Steward Lord Admiral Lord High Constable Earl Marshal Lord Chamberlain Privy Counsellors the Marshal or Steward of the Kings House and the rest of the Officers of his Houshold Master of the Horse Officers of the Mint of the Castles Port-Towns and Shipping Lord Lieutenants and many more too tedious to be named So that either mediately or immediately all Officers are by the Kings appointment which is not only a manifest badge but a necessary appurtenance of the Soveraignty SECT 2 The Court of High-Steward THE Kings Courts have been various The Court of the High-Steward as that of the Privy-Council called the Council-Board of which I have spoke before The Court of the High-Steward of England intituled Placita Coronae coram Seneschallo Angliae disused since the Reign of Henry the Fourth and now a Lord high-High-Steward is only appointed pro hac vice with limitations for the Tryals of some Peers of the Kingdom upon Inditement His Power anciently was (q) Coke 4 Inst c. 4. Supervidere regulare sub Rege immediate post Regem totum Regnum Angliae omnes Ministros Legum infra idem Regnum temporibus Pacis Guerrarum The next Court which is now totally suppressed was the Honourable Court of Star-Chamber The Star-chamber Court of ancient time stiled Coram Rege Concilio suo coram Rege Concilio suo in Camera stellata of which I shall have occasion to write something in the Chapter below SECT 3 The Court of King's-Bench AS to the great and standing Courts The King's-Bench the first of them that is mentioned in Ancient Writers is that of the Kings Bench coram Rege This (r) Rex illarum Curiarum habet unam propriam sicut Aulam Regiam Justiciarios Capitales qui proprias Causas Regias terminant Bracton saith was the Kings proper Court called the Kings Hall and had for Judges in it Chief-Justices which determined the Kings proper Causes c. The same (s) Justiciariorum quidam sunt Capitales generales perpâ—tui majores a latere Regis residâ—ates qui emnium aliorum corrigere tenentur injurias errores Lib. 3. c. 7. fol. 108 b. Author speaking of the Justices of this Court saith That some of them were Capital General perpetual and the greater sitting by the Kings side which were to correct the injuries and errors of all others Fleta in describing this Court saith My Lord Coke gives this account That the King in this Court hath his Justiciaries as well Knights as Clergy-men as
showed they still retained the old English Valour and now that God hath sent us a King who hath aided both the French and Spanish Armies What we may expect under King James the Second more signally Triumphed at Sea over the Dutch than any Admiral did before or since Who hath a Soul and Genius inclined to Warlike and Heroic Actions and hath with himself resolved and publickly to his two Houses declared by the Assistance and Blessing of God He will adventure his Person as far as any Man in his Dominions for the Good of his People and their safety and endeavour to raise the renown and repute of England as high as any of his Royal Predecessors I cannot see if God prolong his Reign why we should not hope to reap all the advantages either England or any other Nation have enjoyed under their most Victorious Princes and though by so early a Rebellion he hath been necessitated to enter the Field so soon to suppress his ungrateful Subjects it was but the giving him occasion to whet that Sword and scour his Armour which had long been unexposed to the Sun and by this Specimen of his Courage Conduct and good Fortune and his Subjects Valour show to the World that he is able to secure his People from any Foreign Hostile Attacques And if any of his Neighbours be found to have furnished these Rebels with Arms and Money no doubt his Loyal Subjects will be very pressing to be imployed to repay their kindness Character of a Martial Prince and they will find that (l) Tanti esse exercitum quanti Imperatorem Florus l. 2. c. 18. according to the Kings Warlike Spirit so will his Armies be it being true of himself what (m) Nullum genus belli sit in quo illum non exercuerit fortuna Cicero pro lege Manil Cicero saith of another That there hath been no kind of War in which Fortune hath not exercised him so that his Armies may be secure both in his Discipline and Example The Qualifications of an Emperor as (n) Labor in negotio industria 〈◊〉 agendo celeritas 〈◊〉 consiciendo c. Ibid. Cicero describes them all concurring in his Royal Person viz. Labour in Business Fortitude in Danger Industry in Action and Swiftness in Execution joyned with great Temperance Faith and Humanity to which I may adjoyn that of Claudian Ductorque placebit Qui non praecipiti rapiet simul omnia casu Sed qui maturo vel laeta vel aspera rerum Consilio momenta regens nec tristibus impar Nec pro successu tumidus spaciumque norandi Vincendique modum mutatis noscet habenis CHAP. XV. Of the Burthen and Care of Kings in Governing THere are as many other Vertues requisite in a good King as there are in a good Man but I have only treated of those that are the Orientest of the Crown Jewels I shall now consider two great advantages that accrue to People by Kingly Government The first is the Burthen and Care that Kings undergo in the Government of their People and the second the benefit to the People in the Hereditariness of Monarchy and then pass to the King's Sovereignty and the principal Branches of it (a) Nihil aliud est Imperium nisi cura salutis alienae Lib. 29. Ammianus tells us That Empire is nothing else but the Care of the safety of others which according to the extent of their Dominions the well or ill Temperedness of their Subjects are greater or less as will be obvious to all that will consider the continual Consultations and Directions The Benefit of Subjects by their Prince's Care necessary to be sedulously undergone and issued forth the Dispatches Intelligences and regular ordering such an immense Body Which made the great (b) Omnium otium illius labor omnium delicias illius industria omnium vacationem illius occupatio Vt remissam aliquando animam â—abeâ—it nunquarâ— solut◠〈◊〉 Senec. Consol ad Polyb. Moralist and Courtier experimentally to assert That the Sovereigns Watchfulness makes our Sleep secure his Labour procures our Holy-days his Industry our Delight his continual Employment our Vacation and that he may enjoy sometimes a Relaxation but never a Freedom from Cares Which indeed can be no otherwise when we consider what he else-where (c) Vnius curam excubare pro sdute singulorum atque universorum saith That the Care of this one Sovereign watcheth for the Health of the whole and every particular So that the immense (d) Haeâ— immensa multitudo unius Anima circundata illius spiritu regitur illius ratione flectitur Id. de Clem. c. 3. Multitude whether we take it for Men or Business is encompassed with the Soul of one by his Spirit is governed and by his Reason is bowed or inclined I find it reported of Pericles That so often as he was made Commander in Chief he used at the putting on the Military Cloak to excite himself to the consideration of the Weight of his Employment by observing that he was to command over Freemen (e) Plut. in Apop Graecians and Athenians upon which Reflection he was induced to approve himself more Diligent Careful and Industrious The Weight of Government having the Burthen of all their concerns upon him So a great and learned (f) Non licet doâ—mitabundum esse qui clavo assideâ—â—emper itaque assidue Principi vigilandum est ne quid erret quia non nisi plurimorum pâ—rnicie delinquit Lipsius Epist Author tells us He ought not to sleep who sits at the Helm to pilot the Ship since no Sea hath so great Tempests as every Kingdom hath Therefore a Prince is assiduously and constantly to watch lest he err because he cannot do so but it is with Mischief to many So the (g) Alia ex aliis cura fatigat Vexatque animos novâ— tempestas Non sic Libycis Syrtibus furit alternos volvere fluctus Non curarum somnos domitor pâ—ctora solvit Tragedian not unelegantly according to his wont describes the Cares of Kings thus One Care adds Fatigues to another and new Tempests unquiet their minds so that the successive rolling Waves of the Sea rage not so on the Libyan Shelves or Quicksands nor doth sleep the Subduer of Cares unload their Breasts (h) Aelian Variar Histor lib. 2. Lampridius in vita Who not fit for Government Alexander Severus having Information That Ovinius Camillus a Senator of an Antient Family but withal delicately effeminate intended a Rebellion affecting the Government sent for him to the Palace and gave him thanks that he when other good Men refused did spontaneously offer himself to take care of the Republick carried him to the Senate and called him his Companion in the Empire took him home and made him wear the Imperial Robes took him to walk with him a five Miles march allowing him when tired an Horse and when he was wearied of riding being one not
subsequent Acts of Parliament supplied all Defects and all the Limitations of that absolute Power which accrued by Conquest being the free Concession of himself and his Successors which appears in their Grants by way of Charter as I shall hereafter have occasion to enlarge upon it is most evident that the King's Power is absolute where no Law (f) D. Digs Unlawfulness of Resisting can be produced to the contrary and no special Case can be determined by the Subject to the Kings disadvantage and though the Kings succeeding the Conquest to sweeten Subjection quaedam jura pactis minuerunt and these Acts of Grace were confirmed by Promise and Oath No Contract betwixt King and Subjects whereby they may exact an Account yet we find no Footsteps of any security given that should endanger the Person or Regal Authority by giving to their Subjects any legal Power to unking them if they should not perform Covenant Nor could it be rational to expect such for they knew full well if they should not break such Promises yet a Pretence that they did so as we have known it was alledged concerning the Coronation Oath might upon the first opportunity create a Civil War Therefore their Subjects had as little reason to accept as the Kings had to offer so pernicious a Security as would bring both Parties into such a sad Condition For if Rebellion were to be allowed in any Case that Case would be always pretended and though the Prince were Just Wise and Religious yet ambitious Men to compass their own Ends would impute to him Oppression Weakness or Irreligion as the World knows by too sad Experience was verified in King Charles the Martyr who taking his measures of others Sincerity by the rule of his own Heart suffered pretences of publick Good to grow up to insolent Tumults and at last to Rebellion and notwithstanding his Exemplary Practice in his publick Devotions was traduced to have but handsomly dissembled and favoured another Religion in his Heart and at last brought before a crew of Regicides impeached of breach of Trust Tyranny and I know not how many horrid Crimes against his Subjects who yet died the Peoples Martyr and the Royal Asserter of their Liberties and Priviledges which all his Subjects found to expire with him the greatest Arbitrariness and cruellest Tyranny being during their Power exercised by the new Common-wealth Men that ever was read of in any History Those who read Books among those of the Sect of Libertines in Politicks and so much magnify the great name of Liberty of the Subject and co-ordinate Powers Writers who lived under Common-wealths no Guides to us converse most in Greek and Latin Authors who lived under Commonwealths and so were profuse in the commendation of their Country Government against Usurpers or else these admired Authors were (g) Jus Regium p. 134. Stoicks who out of a selfish Pride equalled themselves not only to their Kings but to their own Gods even as our Quakers who pretend a Light within them a more sure guide to them than the Law Now the same reason they had to commend their form of Government We have more reason to commâ—nd our Government than the Romans or Grecians theirs and so much more as Monarchy is preferrable to Aristocracy we in England have reason to commend our Constitution where our Kings are truly the Fathers of their Country and if they would ballance the convenience or inconvenience of either Government they would soon discover it For whereas they say that the Doctrine of Non-resistance is the readiest Motive to establish Tyranny It is much more certain and experimentally known that the Leaders of the Rabble always prove such and that the Distractions of a civil War which ordinarily are occasioned by the pretence of reforming something amiss in the Governours and Competitions betwixt Persons for Soveraignty destroy more than the Lusts of any one Tyrant can do which made Lucan a Republican and of the Pompeian Party conclude after a sad review of the continual Civil Wars betwixt Sylla and Marius Caesar and Pompey without touching upon what followed under the Triumvirs Foelices Arabes Medique Eoaque tellus Qui sub perpetuis tenuerunt Regna Tyrannis And if he preferred even the Tyranny or absoluteness of those Kings before the State of Civil Wars how much more have we reason to submit and that chearfully to the most easy Yoak of the Sovereignty of our Princes We need not be solicitous that their unaccountableness to their Subjects shall prompt them to Tyranny because we have good Security as strong as humane Wisdom ever invented that we shall live happily under that Constitution which our Fore-fathers enjoyed the Benefit of in an high Degree The Security we have that no Arbitrary Government can be exercised in England never distrusting the sound temper of the Policy For first our Kings swear at their Coronations to preserve the Laws Liberties Properties and Religion Secondly If they should command illegal things the Executors of them are responsible to Parliamentary Inquisitions Lastly the Interest of the King is the same with that of the Subject as to their Prosperity and Misery so that a King will always consult the good of his Subjects which made (h) Praeestis hominibus sed hominum causa nec domini modo Arbitri rerum sed Tutores Administratores estis Collata est in sinum vestrum a deo hominibus Respublica sed nempe in sinum ut foveatur Epist Dedicat ad Imp. Reges Principes Lipsius tell the Sovereigns That they govern over Men but for their good and are not only Lords and Judges of Matters but Tutors and Administrators That the Government of the Commonweal by God and Men is placed in their Bosoms or Laps but so as to be cherished and protected there To conclude this discourse We have heard of or seen the sad Calamities the Republican Rebellion brought upon all his Majesties Dominions when the mild Government of King Charles the First was altered to the most Bloody and Tyrannical one of his rebellious Subjects that any Age could parallel and we have had Experience of the merciful Government of his Royal Son and Successor and have lived to see all the Establishments of Usurpers brought to Confusion We have seen a formidable Rebellion burst forth in our Magnanimous King James the Second's Reign which had been forming seven Years before utterly overthrown in two Months and we cannot peruse Histories but we must meet with infinite Examples of the sad devastations such Rebellions bring to their Country and the unsuccessfulness of them Therefore I would earnestly advise all Malecontents never to make their Country's Ruine and the slain Carcasses of their Countrymen the Steps by which they must ascend the Scaffolds or the Rounds of the Ladders they must mount the Gallows which without a Prince's Clemency are the sure Rewards of all Rebels and their certain Fate CHAP.
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
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